J-S85008-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                        Appellee

                   v.

MALIK MILES

                        Appellant                     No. 1052 EDA 2016


                Appeal from the PCRA Order March 11, 2016
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0006808-2009


BEFORE: PANELLA, J., RANSOM, J., AND MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                          FILED JANUARY 06, 2017

     Appellant, Malik Miles, appeals from the order entered in the

Philadelphia County Court of Common Pleas, dismissing his timely filed pro

se petition pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A.

§§   9541-9546.    We   vacate      Appellant’s   sentence   and   remand   for

resentencing.

     On December 31, 2008, a heated dispute over territory for drug sales

arose between Appellant and Eldridge Wesley. Appellant and his co-

defendant, Dontey Edwards, began shooting at Wesley. The bullets struck

Wesley several times in the legs and abdomen. A witness flagged down two

nearby officers, who rushed Wesley to the hospital. Wesley underwent

approximately eighteen surgeries following the shooting, and ultimately

survived. Police later apprehended Appellant and Edwards.
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       Appellant and his co-defendant proceeded to a jury trial. The jury

found Appellant guilty of attempted murder, aggravated assault, criminal

conspiracy, possession of firearms by a person prohibited, carrying firearms

without a license, possession of an instrument of crime, and recklessly

endangering another person.1 The court sentenced Appellant to twenty to

forty years’ incarceration on the attempted murder conviction, based on a

sentence enhancement for serious bodily injury under 18 Pa.C.S.A. §

1102(c),    and    imposed      no   further   punishment   on   Appellant’s   other

convictions.

       Appellant filed a direct appeal, and this Court affirmed his sentence.

See Commonwealth v. Miles, 1855 EDA 2010 (Pa. Super., filed July 23,

2012) (unpublished memorandum). Appellant did not file a petition for

allowance of appeal to our Supreme Court, and his judgment of sentence

became final on August 22, 2012. Appellant then filed the current timely

PCRA petition. After the court held a Grazier2 hearing, it permitted

Appellant to proceed pro se. The court issued Rule 907 notice, and

thereafter dismissed Appellant’s PCRA petition. Appellant timely filed a notice

of appeal, and a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).
____________________________________________


1
  18 Pa.C.S.A. §§ 901(a); 2702(a); 903(a)(1); 6105(a)(1); 6106(a)(1);
907(a); 2705(a), respectively.
2
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1988).



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      On appeal, Appellant raises a single issue for our consideration.

Appellant argues the enhancement of his sentence based on a finding of

serious bodily injury constituted an illegal sentence, because the jury was

not tasked with determining whether serious bodily injury occurred.

Appellant contends the court instructed the jury that it could find Appellant

guilty of aggravated assault if Appellant actually caused or merely attempted

to cause Victim serious bodily injury. See N.T. Trial, 2/22/10, at 63.

Appellant maintains the court did not ask the jury to make a specific finding

as to whether Wesley in fact suffered serious bodily injury. Appellant

concludes the court imposed an illegal sentence under Apprendi v. New

Jersey, 530 U.S. 466 (2000). We agree.

      Appellant’s claim challenges the legality of his sentence. “Issues

relating to the legality of a sentence are questions of law. … Our standard of

review over such questions is de novo and our scope of review is plenary.”

Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. Super. 2009)

(internal citation omitted).

      “Other than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be

submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530

U.S. at 490. The United States Supreme Court has stated that “the statutory

maximum for Apprendi purposes is the maximum sentence a judge may

impose solely on the bases of the facts reflected in the jury verdict or

admitted by the defendant.” Blakely v. Washington, 542 U.S. 296, 303-

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304 (2004).

     Appellant’s sentence was enhanced from the statutory maximum of

twenty years based on the following provision in 18 Pa.C.S.A. § 1102(c):

     § 1102. Sentence for murder, murder of unborn child and
     murder of law enforcement officer

                                 *    *    *

     (c) Attempt, solicitation and conspiracy.— Notwithstanding
     section 1103(1) (relating to sentence of imprisonment for felony),
     a person who has been convicted of attempt, solicitation or
     conspiracy to commit murder, murder of an unborn child or
     murder of a law enforcement officer where serious bodily injury
     results may be sentenced to a term of imprisonment which shall
     be fixed by the court at not more than 40 years. Where serious
     bodily injury does not result, the person may be sentenced to a
     term of imprisonment which shall be fixed by the court at not
     more than 20 years.

                                 *    *    *

“[T]he statute imposes a condition precedent to the imposition of a

maximum term of imprisonment of up to 40 years, specifically, that ‘serious

bodily injury’ must have resulted from the attempted murder.     Otherwise,

the sentence shall be not more than 20 years.” Commonwealth v.

Johnson, 910 A.2d 60, 66 (Pa. Super. 2006) (holding sentencing court

improperly imposed enhanced sentence under Section 1102(c) for attempted

murder resulting in serious bodily injury where jury was never presented

with question of whether serious bodily injury actually resulted). Serious

bodily injury is “a fact that must be proven before a maximum sentence of

forty years may be imposed for attempted homicide.” Commonwealth v.



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Reid, 867 A.2d 1280, 1281 (Pa. Super. 2005).

      On appeal, the Commonwealth concedes the illegality of Appellant’s

sentence. The court’s instruction to the jury reads:

      Now there are two ways that you might find [Appellant] guilty of
      this offense. Either because he caused serious bodily injury or he
      attempted to cause serious bodily injury to [Victim]. In either of
      these ways of aggravated assault, you must understand what
      serious bodily injury means. So let me describe that for you now.
      Serious bodily injury means bodily injury that [creates]
      substantial risk of death, serious permanent disfigurement, or
      protracted loss or impairment of the function of any body
      member or organ.

N.T. Trial, 2/22/10, at 63.

      The court’s decision to sentence Appellant as though the jury found he

had inflicted serious bodily injury on Wesley increased Appellant’s statutory

maximum sentence. Based on the above instruction, however, the jury could

have convicted Appellant of aggravated assault either because Appellant

actually caused serious bodily injury to Wesley, or because Appellant merely

attempted to cause such injury. Since the record does not reveal the basis

for the jury’s decision, the court erred by imposing the enhanced sentence of

twenty   to   forty   years   for   Appellant’s   attempted   murder   conviction.

Accordingly, we reverse the PCRA court’s order, vacate Appellant’s judgment

of sentence, and remand for resentencing.

      Order reversed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2017




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