J-E03001-16

                                  2017 PA Super 215

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

KWAME LAMAR BARNES

                            Appellant                         No. 947 MDA 2014


       Appeal from the Judgment of Sentence Entered January 30, 2014
               In the Court of Common Pleas of Dauphin County
               Criminal Division at No: CP-22-CR-0000426-2011


BEFORE: BENDER, P.J.E., BOWES, PANELLA, LAZARUS, OTT, STABILE,
        DUBOW, MOULTON, and RANSOM, JJ.

OPINION BY STABILE, J.:                                         FILED JULY 10, 2017

        Appellant Kwame Lamar Barnes appeals from the January 30, 2014

judgment of sentence entered in the Common Pleas Court of Dauphin

County (“trial court”), following his jury convictions for criminal attempt-

homicide, aggravated assault, kidnapping, and recklessly endangering

another person (“REAP”).1            Upon review, we vacate and remand for

resentencing.

        The   facts   and    procedural        history   underlying   this   appeal   are

undisputed.     On December 19, 2010, the victim, who was sixteen at the

time of trial, was sleeping alone at her mother’s home in Steelton when she

received a text message from Appellant, her ex-boyfriend.                     N.T. Trial,


____________________________________________


1
    18 Pa.C.S.A. §§ 901 (a), 2702(a)(1), 2901(a)(3), and 2705, respectively.
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2/28/12, at 136-39. Although they were no longer dating, the victim and

Appellant still had an amicable relationship. Id. at 139. Appellant indicated

in the text message that he was at the back door of the residence and the

victim allowed Appellant to enter the home.      Id. at 140.   The victim and

Appellant went upstairs to the victim’s bedroom where they talked, engaged

in sexual intercourse, and then talked again. Id. at 140-41. They then had

an argument.    The victim asked Appellant to leave and she escorted him

downstairs to the back door.    Id. at 141-42.     Prior to leaving, Appellant

threatened to hit the victim with a vacuum. Id. at 143-44. Subsequently,

Appellant strangled the victim from behind by using his arm. Id. at 144-45.

She lost consciousness.   Id. at 145.     When she regained consciousness,

Appellant said to the victim, “you’re gonna die today,” and proceeded to

strangle her again until she lost consciousness a second time. Id. at 145-

47. When the victim finally regained consciousness, she was wrapped in a

blanket and lying head-first in a recycling dumpster under the State Street

Bridge. Id. at 147-50. She eventually freed herself and managed to get to

the side of a roadway, where the driver of a passing vehicle stopped and

took her to the hospital. Id. at 149. The victim suffered a broken vertebra

in her neck, various facial injuries, a lacerated and swollen tongue, a large

contusion to her right eye, and hypothermia. Id. at 16-21.




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       On December 20, 2010, Appellant was charged with criminal attempt

to commit homicide (“attempted murder”), aggravated assault, kidnapping,

REAP, terroristic threats, and theft by unlawful taking.2       On February 28,

2012, at the conclusion of a jury trial, Appellant was found guilty of

attempted murder, aggravated assault, kidnapping, and REAP.            The jury

found Appellant not guilty for the charge of terroristic threats. On May 18,

2012, Appellant was sentenced to a term of incarceration of 20 to 40 years

for the conviction of attempted murder, a consecutive term of incarceration

of 2½ to 5 years for his conviction of aggravated assault, and a consecutive

term of incarceration of 2½ to 5 years for his conviction of kidnapping. The

trial court imposed no additional sentence for the conviction of REAP.

Appellant timely appealed to this Court.

       On December 3, 2013, a panel of this Court (“2013 decision”)

determined that the convictions of aggravated assault and attempted

homicide should have merged because the crimes arose from a single set of

facts, i.e., Appellant choked the victim to unconsciousness. Accordingly, the

panel vacated the judgment of sentence, and remanded for resentencing.

Commonwealth            v.   Barnes,       No.   691   MDA   2013,   unpublished

memorandum, at 2-3 (Pa. Super. filed December 3, 2013). On January 30,

2014, upon remand, the trial court resentenced Appellant to 20 to 40 years’

____________________________________________


2
  The charge of theft by unlawful taking was subsequently dismissed at
preliminary hearing.



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imprisonment for attempted murder and a consecutive term of incarceration

of 5 to 10 years for the conviction of kidnapping.      On February 5, 2014,

Appellant filed a post-sentence motion, which the trial court denied on May

12, 2014. The instant appeal followed.3

       Appellant raises four issues on appeal:

       [I.] Apprendi doctrine.      The United States Constitution
       mandates that juries should decide all facts that increase a
       crime’s statutory maximum sentence. Here, a jury convicted
       [Appellant] of attempted murder, generally—a 20 year maximum
       sentence. If the trial court submits the crime of attempted
       murder resulting in serious bodily injury to the jury, the
       maximum sentence increases to 40 years. But [the trial] court
       didn’t submit this element. Is [Appellant’s] legal attempted
       murder maximum sentence 20 years?

       [II.] Substantial questions.        To appeal the discretionary
       aspects of a sentence, an appellant must present a “substantial
       question” why the sentencing court’s actions are inconsistent
       with the Sentencing Code or contrary to the fundamental norms
       underlying the sentencing process. This sentencing court: (1)
       increased a crime’s sentence where the only changed fact was
       the exercise of appellate rights; and (2) failed to provide reasons
       for its new sentence on the record. Does [Appellant] raise
       substantial questions?

       [III.] Judicial Vindictiveness. A presumption of vindictiveness
       arises where a sentencing court imposes a more severe sentence
       absent objective evidence justifying an increased sentence. This
       trial court doubled [Appellant’s] kidnapping sentence at his
       resentencing. It based the increased sentence on the same facts

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3
  The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement of
errors complained of on appeal. Appellant complied. In response, the trial
court issued a memorandum opinion, noting that its May 12, 2014
memorandum opinion set forth the reasons for concluding Appellant was not
entitled to post-sentence relief. Pa.R.A.P. 1925(a) Opinion, 6/13/14, at 1.



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       and information as at the time of the original sentence.       Is
       [Appellant’s] new kidnapping sentence void?

       [IV.] Record reasons for an imposed sentence.                 On
       resentencing, following remand, the court shall make as a part of
       the record, and disclose in open court at the time of sentence, a
       statement of reason or reasons for the imposed sentence. In
       [Appellant’s] five-minute resentencing this record does not make
       such a statement. Should this Court vacate [Appellant’s] current
       sentence and resentence him to provide a reasoned statement?

Appellant’s Brief at 8-9.4

       This Court certified this case for en banc review to address the

following issues: (1) Whether, under Apprendi v. New Jersey, 530 U.S.

466 (2000), the jury was required to render a separate finding of serious

bodily injury for the crime of attempted murder to subject Appellant to the

40-year maximum sentence for such crime? (2) Whether the law of the case

doctrine applies here based on the 2013 decision issued by a panel of this

Court?

       Appellant first argues that the trial court erred in applying Section

1102(c) of the Crimes Code, 18 Pa.C.S.A. § 1102(c), when it imposed a

maximum term of imprisonment of 40 years for the offense of attempted

murder in the absence of a jury finding of serious bodily injury arising from

such offense. As a result, Appellant argues that his sentence for attempted

murder violates the United States Supreme Court’s decision in Apprendi,


____________________________________________


4
  We decline to address Appellant’s second issue as a standalone issue
because it is subsumed by his third and fourth issues on appeal.



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wherein the Court held that “[o]ther 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; accord Commonwealth v. Gordon,

942 A.2d 174, 175 n.1 (Pa. 2007), cert. denied, 553 U.S. 1028 (2008);

Commonwealth v. Conaway, 105 A.3d 755, 761 (Pa. Super. 2014),

appeal denied, 118 A.3d 1107 (Pa. 2015). We agree.

       At the outset, we note that Appellant’s claim implicates the legality of

a sentence.      Commonwealth v. Aponte, 855 A.2d 800, 802 n.1 (Pa.

2004). “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) (citation omitted).

       Section 1102(c) of the Crimes Code provides, “a person who has been

convicted of attempt       . . . to commit murder . . . where serious bodily

injury[5] results may be sentenced to a term of imprisonment which shall be

fixed by the court at no more than 40 years.”          18 Pa.C.S.A. § 1102(c)

(emphasis added). “Where serious bodily injury does not result, the person

may be sentenced to a term of imprisonment which shall be fixed by the
____________________________________________


5
  The Crimes Code defines “serious bodily injury” as [b]odily injury which
creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of a bodily
member or organ.” 18 Pa.C.S.A. § 2301.



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court at not more than 20 years.”      Id.   Indeed, in Commonwealth v.

Johnson, 910 A.2d 60 (Pa. Super. 2006), appeal denied, 923 A.2d 1173

(Pa. 2007), we explained that Section 1102(c) “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.” Johnson, 910 A.2d at 66. Serious bodily injury is “a fact that must

be proven before a maximum sentence of [40] years may be imposed for

attempted homicide.” Commonwealth v. Reid, 867 A.2d 1280, 1281 (Pa.

Super. 2005), appeal denied, 890 A.2d 1058 (Pa. 2005).           Moreover, a

defendant must be put on notice when the Commonwealth is seeking a 40-

year maximum sentence for attempted murder. See id. at 1284

      In Johnson, the Commonwealth charged and the jury convicted the

defendant of, inter alia, attempted murder and aggravated assault arising

from the defendant’s ambush and shooting of the victim who previously had

testified for the Commonwealth against the defendant’s brother in an

unrelated first-degree murder case.    During the attack in question on the

victim, the defendant pointed a handgun at the victim’s head and fired but

missed.   The defendant then pursued the victim and fired several more

rounds at her, striking the victim in the heel of her foot. At sentencing, the

trial court imposed upon the defendant a term of imprisonment of 17½ to 40

years for attempted murder.




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      Among      other   issues,   the   defendant   challenged   on   appeal   the

attempted murder sentence based on insufficient evidence of serious bodily

injury.    The trial court reasoned that serious bodily injury had been

established because the jury found the defendant guilty of the companion

offense of aggravated assault.           Relying, however, on the precepts of

Apprendi, this Court explained:

      [I]t was not the prerogative of the trial court, but solely the
      responsibility of the jury in this case to find, beyond a
      reasonable doubt, whether a serious bodily injury resulted from
      the instant attempted murder.

          ....

      Here, however, (1) [the defendant] was not charged with
      attempted murder resulting in serious bodily injury, (2) [the
      defendant] was not on notice that the Commonwealth sought
      either to prove that a serious bodily injury resulted from the
      attempted murder or to invoke the greater maximum sentence,
      and (3) the jury was never presented with, nor rendered a
      decision on, the question of whether a serious bodily injury
      resulted from the attempted murder. Thus, the jury verdict
      here was limited to a finding of guilt on the crime of
      attempted murder generally, for which the maximum
      sentence is [20] years.

Johnson, 910 A.2d at 67-68 (emphasis added) (footnote omitted).

      Instantly, our review of the record reveals that the docket sheet does

not show that Appellant was charged with attempted murder resulting in

serious bodily injury.    Specifically, both the complaint and the information

sub judice do not allege that Appellant caused serious bodily injury to the

victim when he attempted to kill her. The verdict sheet in this case also is

bereft of any mention of serious bodily injury with respect to the attempted


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murder charge. Additionally, the jury here was not instructed to render a

finding on whether serious bodily injury resulted from the criminal attempt.

Particularly, the trial court instructed the jury as follows:

            [Appellant] has been charged with criminal attempt,
      murder. To find [Appellant] guilty of this offense you must find
      that the following three elements have been proven beyond a
      reasonable doubt:

            First, that [Appellant] did a certain act; that is, he
      physically assaulted and strangled [the victim].

             Second, that at the time of this alleged act, [Appellant]
      had the specific intent to kill [the victim]; that is, he had the
      fully formed intent to kill and was conscious of his own intention.

            And, third, that the act constituted a substantial step
      toward the commission of the killing [Appellant] intended to
      bring about.

             The meaning of substantial step: A person cannot be
      guilty of an attempt to commit a crime unless he or she does an
      act that constitutes a substantial step toward the commission of
      that crime.

            An act is a substantial step if it is a major step toward
      commission of the crime and also – and also strongly
      corroborates the jury’s belief that the person at the time he did
      the act had a firm intent to commit the crime.

            I’ll read that again, because they use the same words to
      define what you’re supposed to understand.

             An act is a substantial step if it is a major step toward
      commission of the crime and also strongly corroborates the
      jury’s belief that the person at the time he did the act had a firm
      intent to commit the crime.

           An act can be a substantial step even though other steps
      would have been taken before the crime could be carried out.

           If you are satisfied that the three elements of attempted
      murder have been proven beyond a reasonable doubt, you

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       should find [Appellant] guilty.       Otherwise, you must find
       [Appellant] not guilty of this crime.

N.T. Trial, 2/28/12, at 214-15. The trial court repeated to the jury the same

instructions for attempted murder three more times.             See id. at 235-37,

244-47, and 260-63. As the foregoing indicates, the Commonwealth did not

charge Appellant with attempted murder resulting in serious bodily injury.

Appellant also was not on notice that the Commonwealth sought either to

prove that a serious bodily injury resulted from the attempted murder or to

invoke the greater maximum sentence.6              Finally, and most importantly for

purposes of Apprendi, the jury was never presented with, nor rendered a

decision on, the question of whether a serious bodily injury resulted from the

attempted murder.          Differently put, the issue of serious bodily injury

resulting from the attempted murder was never submitted to the jury as an


____________________________________________


6
  Even if the Commonwealth had put Appellant on notice that it sought to
prove serious bodily injury resulted from the attempted murder, Appellant’s
sentence still would have violated Apprendi if the jury did not find serious
bodily injury in connection with attempted murder. Also, to the extent the
Commonwealth relies on Reid to compel a different outcome here, such
reliance is misplaced because Reid is procedurally and factually
distinguishable.   In Reid, the defendant entered into a plea of nolo
contendere, agreeing with the Commonwealth’s recitation of the facts
underlying the charge of attempted murder. The facts with which the
defendant agreed detailed the magnitude of the victim’s injuries. See Reid,
867 A.2d at 1285 (noting that “[the defendant] admitted at his nolo plea
colloquy that the victim suffered serious bodily injury in that he admitted she
sustained eleven stab wounds and that her neck was slashed.”).
Accordingly, we concluded that the defendant sufficiently was on notice that
the Commonwealth sought the maximum sentence of 40 years for
attempted murder resulting in serious bodily injury. Id.



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element of the crime or as a special interrogatory. Accordingly, consistent

with Johnson and Apprendi, supra, we conclude that the trial court erred

in sentencing Appellant to the maximum term of imprisonment of 40 years

for attempted murder because the jury did not determine that serious bodily

injury occurred relative to the attempted murder charge.

      Nonetheless, the Commonwealth contends that the jury’s finding with

respect to the aggravated assault charge was sufficient to prove that the

attempted murder charge involved a serious bodily injury.         It is beyond

dispute that the jury was instructed on, and subsequently found Appellant

guilty of, aggravated assault causing serious bodily injury. At trial, the trial

court specifically instructed the jury:

           The next crime is aggravated assault, causing serious
      bodily injury.

            The defendant has been charged with aggravated assault.
      To find the defendant guilty of this offense, you must find that
      each of the following elements has been proven beyond a
      reasonable doubt.

            First, the defendant caused serious bodily injury to [the
      victim].

             Serious bodily injury is bodily injury that creates a
      substantial risk of death or that causes serious permanent
      disfigurement, or protracted loss or impairment of the function
      of any bodily member or organ.

           And, second, that the defendant acted intentionally,
      knowingly, or recklessly under circumstances manifesting
      extreme indifference to the value of human life.

N.T. Trial, 2/28/12, at 215-16 (emphasis added).



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       We, however, reject the Commonwealth’s argument for two reasons.

First, as we determined in Johnson, any finding by the jury of serious bodily

injury for aggravated assault could not be used to infer that the jury found

serious bodily injury for the attempted murder charge. See Johnson, 910

A.2d at 68 n.10; accord Commonwealth v. Watley, 81 A.3d 108, 119

(Pa. Super. 2013) (en banc), appeal denied, 95 A.3d 277 (Pa. 2014).

Specifically, we reasoned in Johnson:

       The fact that the jury may have considered the question of
       serious bodily injury when they were evaluating the
       Commonwealth’s evidence supporting the charge of aggravated
       assault is not relevant to a sufficiency analysis on the separate
       charge of attempted murder “where serious bodily injury
       results.” The Courts of Pennsylvania have consistently respected
       the authority of a jury to find, or to decline to find, the existence
       of each element of each criminal offense. Nor is there authority
       for a trial court to reason to a verdict of guilt by tacking the
       finding of culpability of one element of a companion offense on
       to a separate criminal offense upon which the jury had also
       rendered a verdict.

Johnson, 910 A.2d at 68 n.10 (citation omitted). 7               Thus, a jury’s

consideration of serious bodily injury for the aggravated assault count is not

relevant to the attempted murder conviction.            Attempted murder and

aggravated assault are two distinct offenses—one inchoate and the other

____________________________________________


7
  Like the Johnson Court, we too emphasize that it is of no moment
whether sufficient evidence existed to conclude that the attempted murder
caused serious bodily injury. Rather, what is important is whether the jury
rendered a factual finding on serious bodily injury in accord with Apprendi
and related decisions affecting the law in this Commonwealth.



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choate.   Here, Appellant was charged with aggravated assault causing

serious bodily injury. As noted, the jury was instructed on this offense and

found beyond a reasonable doubt that Appellant caused serious bodily injury

when he committed aggravated assault against the victim. In contrast, as

we stated earlier, Appellant was charged only with attempted murder

generally and the jury was never presented with, nor rendered a decision

on, the question of whether a serious bodily injury resulted from the

attempted murder.    Thus, consistent with Johnson, we cannot infer from

the jury’s finding of serious bodily injury relating to aggravated assault that

the jury also found serious bodily injury relating to attempted murder.

      Second, it is well-settled that inconsistent verdicts are permissible in

this Commonwealth. See Commonwealth v. States, 938 A.2d 1016, 1025

(Pa. 2007).   As we explained in Commonwealth v. Petteway, 847 A.2d

713 (Pa. Super. 2004):

      We note first that inconsistent verdicts, while often perplexing,
      are not considered mistakes and do not constitute a basis for
      reversal.    Consistency in verdicts in criminal cases is not
      necessary. When an acquittal on one count in an indictment is
      inconsistent with a conviction on a second count, the court looks
      upon the acquittal as no more than the jury’s assumption of a
      power which they had no right to exercise, but to which they
      were disposed through lenity. Thus, this Court will not disturb
      guilty verdicts on the basis of apparent inconsistencies as long
      as there is evidence to support the verdict. The rule that
      inconsistent verdicts do not constitute reversible error applies
      even where the acquitted offense is a lesser included offense of
      the charge for which a defendant is found guilty.




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Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa. Super. 2004)

(citations and quotation marks omitted).           Because juries are permitted to

render inconsistent verdicts in this Commonwealth,8 it was perfectly

acceptable for the jury here to find serious bodily injury with respect to

aggravated assault but not attempted murder.             Moreover, as we detailed

above, the jury here actually was never instructed nor asked to make a

determination on serious bodily injury resulting from attempted murder.

Based on these reasons, it would be improper for us to infer from the jury’s

finding of serious bodily injury relating to aggravated assault that the jury

also found serious bodily injury relating to attempted murder.

       Finally, the Commonwealth argues that the law of the case doctrine

applies sub judice.      Specifically, the Commonwealth argues that our 2013

decision in the instant matter precludes us from determining that the jury

did not render a finding on serious bodily injury relating to attempted

murder. We disagree.

       As this Court explained in Commonwealth v. Gacobano, 65 A.3d

416 (Pa. Super. 2013):

       The law of the case doctrine refers to a family of rules which
       embody the concept that a court involved in the later phases of
       a litigated matter should not reopen questions decided by
       another judge of that same court or by a higher court in the
____________________________________________


8
  The parties here do not dispute that aggravated assault is a lesser-included
offense of attempted murder. Commonwealth v. Anderson, 650 A.2d 20,
24 (Pa. 1994).



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     earlier phases of the matter. . . . The various rules which make
     up the law of the case doctrine serve not only to promote the
     goal of judicial economy . . . but also operate (1) to protect the
     settled expectations of the parties; (2) to insure uniformity of
     decisions; (3) to maintain consistency during the course of a
     single case; (4) to effectuate the proper and streamlined
     administration of justice; and (5) to bring litigation to an end.

Gacobano, 65 A.3d at 419-20 (quoting Commonwealth v. McCandless,

880 A.2d 1262, 1267 (Pa. Super. 2005) (en banc) (additional citation

omitted)). Therefore, under the law of the case doctrine,

     when an appellate court has considered and decided a question
     submitted to it upon appeal, it will not, upon a subsequent
     appeal on another phase of the case, reverse its previous ruling
     even though convinced it was erroneous. This rule has been
     adopted and frequently applied in our own State. It is not,
     however, inflexible. It does not have the finality of the doctrine
     of res judicata. “The prior ruling may have been followed as the
     law of the case but there is a difference between such adherence
     and res judicata; one directs discretion, and the other
     supercedes (sic) it and compels judgment. In other words, in
     one it is a question of power, in the other of submission.” The
     rule of the “law of the case” is one largely of convenience and
     public policy, both of which are served by stability in judicial
     decisions, and it must be accommodated to the needs of justice
     by the discriminating exercise of judicial power.

Id. at 420 (quoting McCandless, 880 A.2d at 1268 (additional citation

omitted)).

     In the 2013 decision, a prior panel of this Court stated:

           Appellant argues that his convictions for Aggravated
     Assault and Attempted Homicide arise from a single set of facts
     and, therefore, these offenses merge for sentencing
     purposes. Commonwealth v. Rovinski, 704 A.2d 1068, 1075
     (Pa. Super. 2007). We note that the Commonwealth does not
     dispute Appellant’s contention.




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            Upon review of the record, we are constrained to agree.
      The convictions in question arise from a single set of facts;
      namely, that Appellant choked the victim to unconsciousness.
      As such, the sentences for these offenses merge for
      sentencing purposes, and we are compelled to vacate
      Appellant’s sentence.

Barnes, No. 691 MDA 2013, unpublished memorandum, at 2-3 (Pa. Super.

filed December 3, 2013) (emphasis added).

      As the foregoing excerpt from our 2013 decision demonstrates, the

prior panel of this Court was not asked to address, nor did it address, the

issue of whether the jury here rendered a serious bodily injury finding with

respect to attempted murder.     The prior panel likewise did not determine

whether the jury’s serious bodily injury finding relating to aggravated assault

was sufficient to infer that the jury also found serious bodily injury for the

attempted murder charge. In other words, no determination was made by

the prior panel as to whether the jury found beyond a reasonable doubt that

Appellant’s choking of the victim constituted serious bodily injury for

purposes of attempted murder.      The prior panel, however, considered and

addressed only a very narrow issue, i.e., whether aggravated assault

merged with attempted murder for purposes of sentencing. As stated, the

prior panel determined that the two offenses merged because they arose

from a single set of facts, i.e., Appellant’s choking of the victim to

unconsciousness.

      In sum, here as in Johnson, “the jury was never presented with, nor

rendered a decision on, the question of whether a serious bodily injury

resulted from the attempted murder.”         Johnson, supra at 67 (footnote

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omitted). Accordingly, we are constrained to vacate Appellant’s sentence for

attempted murder and remand for resentencing.

       Next, Appellant argues that the trial court abused its discretion in

imposing upon him a more severe sentence for kidnapping on remand than

it did on his original sentence.9 Consequently, he claims that his sentence

on remand invites a presumption of vindictiveness.

       Because Appellant’s issues implicate only the discretionary aspects of

his sentence, we note it is well-settled that “[t]he right to appeal a

discretionary aspect of sentence is not absolute.”        Commonwealth v.

Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011).               Rather, where an

appellant challenges the discretionary aspects of a sentence, an appellant’s

appeal should be considered as a petition for allowance of appeal.




____________________________________________


9
  When reviewing a challenge to the trial court’s discretion, our standard of
review is as follows:
       Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
       absent a manifest abuse of discretion. An abuse of discretion is
       more than just an error in judgment and, on appeal, the trial
       court will not be found to have abused its discretion unless the
       record discloses that the judgment exercised was manifestly
       unreasonable, or the result of partiality, prejudice, bias, or ill-
       will.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)
(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.
2002)), appeal denied, 64 A.3d 630 (Pa. 2013).



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Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we

stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

       An appellant challenging the discretionary aspects of his
       sentence must invoke this Court’s jurisdiction by satisfying a
       four-part test:
          [W]e conduct a four-part analysis to determine: (1)
          whether appellant has filed a timely notice of appeal, see
          Pa.R.A.P. 902 and 903; (2) whether the issue was properly
          preserved at sentencing or in a motion to reconsider and
          modify sentence, see Pa.R.Crim.P. [720]; (3) whether
          appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
          (4) whether there is a substantial question that the
          sentence appealed from is not appropriate under the
          Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis.     See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).

       Here, Appellant has satisfied the first three requirements of the four-

part Moury test. Appellant filed a timely appeal to this Court, preserved the

issue on appeal through his post-sentence motions, and included a Pa.R.A.P.

2119(f) statement in his brief.10          We, therefore, must determine only if

Appellant’s sentencing issues raise a substantial question.
____________________________________________


10
    Rule 2119(f) provides that “[a]n appellant who challenges the
discretionary aspects of a sentence in a criminal matter shall set forth in his
brief a concise statement of the reasons relied upon for allowance of appeal
with respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).



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      The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.        Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007).        We have found that a substantial question

exists “when the appellant advances a colorable argument that the

sentencing judge’s actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the fundamental norms

which underlie the sentencing process.” Commonwealth v. Phillips, 946

A.2d 103, 112 (Pa. Super. 2008) (citation omitted), appeal denied, 964

A.2d 895 (Pa. 2009). “[W]e cannot look beyond the statement of questions

presented and the prefatory [Rule] 2119(f) statement to determine whether

a substantial question exists.” Commonwealth v. Christine, 78 A.3d 1, 10

(Pa. Super. 2013), aff’d, 125 A.3d 394 (Pa. 2015). Indeed, it is settled that

Appellant’s   claim   that   his   sentence     on   remand   was   a   product    of

vindictiveness presents a substantial question for our review.                    See

Commonwealth v. Tapp, 997 A.2d 1201, 1202-03 (Pa. Super. 2010)

(noting that “alleging judicial vindictiveness . . . constitute[s] a substantial

question mandating appellate review”), appeal denied, 12 A.3d 752 (Pa.

2010).   Accordingly, we address the merits of Appellant’s vindictiveness

claim.

      When a due process violation is raised regarding resentencing, this

court must satisfy itself that an increase in a sentence is not the result of

judicial vindictiveness. See Commonwealth v. Walker, 568 A.2d 201 (Pa.

Super. 1989), disapproved of on other grounds by Commonwealth v.

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Robinson, 931 A.2d 15, 20-22 (Pa. Super. 2007) (en banc).11            In North

Carolina v. Pearce, 395 U.S. 711 (1969), overruled on other grounds

by Alabama v. Smith, 490 U.S. 794 (1989), the United States Supreme

Court remarked:

              Due process of law, then, requires that vindictiveness
       against a defendant for having successfully attacked his first
       conviction must play no part in the sentence he receives after a
       new trial.    And since the fear of such vindictiveness may
       unconstitutionally deter a defendant’s exercise of the right to
       appeal or collaterally attack his first conviction, due process also
       requires that a defendant be freed of apprehension of such a
       retaliatory motivation on the part of the sentencing judge.

             In order to assure the absence of such a motivation, we
       have concluded that whenever a judge imposes a more severe
       sentence upon a defendant after a new trial, the reasons for
       his doing so must affirmatively appear. Those reasons must
       be based upon objective information concerning identifiable
       conduct on the part of the defendant occurring after the time of
       the original sentencing proceeding. And the factual data upon
       which the increased sentence is based must be made part of the
       record, so that the constitutional legitimacy of the increased
       sentence may be fully reviewed on appeal.

Pearce, 395 U.S. at 725-26 (footnote omitted) (emphasis added). Although

Pearce dealt with an increased sentence following the grant of a new trial,

we have held that Pearce’s rationale for providing reasons on the record


____________________________________________


11
   Walker and prior cases held that a claim of judicial vindictiveness in
resentencing was a “non-waivable challenge to the legality of sentence.”
Robinson, 931 A.2d at 22. In Robinson, however, an en banc panel of this
Court overruled Walker and other cases on this issue by holding that claims
of judicial vindictiveness, and any due process concerns arising therefrom,
implicate only discretionary aspects of sentence. Robinson, 931 A.2d at 22.



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applies also when the original sentence is vacated and a second sentence is

imposed without an additional trial.           See Commonwealth v. Greer, 554

A.2d 980, 987 n.7 (Pa. Super. 1983) (noting that Pearce applies to harsher

sentence imposed by trial court after trial court granted post-trial request for

resentencing).12 Thus, under Pearce, whenever a trial court imposes upon

a defendant a more severe sentence following resentencing, the reasons for

such sentence must be made a part of the record. “Absent evidence [that] a

sentencing increase is justified due to objective information concerning a

defendant’s case, the presumption of vindictiveness cannot be rebutted.”

Commonwealth v. Serrano, 727 A.2d 1168, 1170 (Pa. Super. 1999).

       Here, the trial court originally sentenced Appellant on the kidnapping

conviction to a consecutive term of 2½ to 5 years of incarceration.            On

remand, however, the trial court was obligated to merge the offenses of

aggravated assault with attempted homicide.           In so doing, the trial court

doubled the kidnapping sentence to a consecutive term of 5 to 10 years’

imprisonment.       In its opinion, the trial court explained that it “merely

maintained its original sentencing structure by increasing the kidnapping

[sentence] when the aggravated assault charge merged into the criminal



____________________________________________


12
   Consistent with Greer, we must disagree with the trial court’s conclusion
that the instant case is distinguishable from Pearce based on the fact that
Appellant did not proceed to a new trial, but rather was resentenced after
this Court found a sentencing error. See Trial Court Opinion, 5/12/14, at 4.



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attempt charge.     In doing so, the [trial] court was able to maintain the

original sentence.” Trial Court Opinion, 5/12/14 at 4.

      We find Appellant’s argument that he received an enhanced sentence

to be wanting. Appellant’s argument requires us to look only at one part of

his new sentence and compare it to one part of his old sentence without

examining the overall sentencing scheme of both the new and old sentences.

Appellant fails to note the trial court’s overall sentencing scheme. Before his

successful appeal in 2013, his aggregate sentence was 25 to 50 years’

imprisonment.     Thereafter, on remand, the trial court resentenced him to

the same aggregate sentence. We have held that preserving the integrity of

a prior sentencing scheme is a legitimate sentencing concern. See Walker,

568 A.2d at 205 (“Upon resentencing, a court has a valid interest in

preserving the integrity of a prior sentencing scheme.”) (citation omitted).

Indeed, a trial court properly may resentence a defendant to the same

aggregate sentence to preserve its original sentencing scheme.            See

Commonwealth v. Bartug, 732 A.2d 1287 (Pa. Super. 1999) (noting a

resentence of 7½ to 15 years for burglary was lawful after not receiving a

sentence for burglary and having been given previously the same sentence

for theft by unlawful taking), appeal denied, 747 A.2d 896 (Pa. 1999).

“[I]n most circumstances, a judge can duplicate the effect of the original

sentencing plan by adjusting the sentences on various counts so that the

aggregate punishment remains the same.”          Walker, 568 A.2d at 206.

However, “[i]f a judge could have imposed the same aggregate sentence he

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handed down at the original sentencing hearing, and . . . instead imposes a

harsher aggregate sentence, the presumption of vindictiveness could not be

rebutted by invoking the need to preserve the original sentencing plan.” Id.

In Commonwealth v. McHale, 924 A.2d 664, 667 (Pa. Super. 2007),

overruled in part on other grounds as stated in Commonwealth v.

Robinson, 931 A.2d 15 (Pa. Super. 2007), we upheld the trial court’s

resentencing of the defendant when his conviction on the most serious

charges, two counts of aggravated assault, previously had been reversed

based on insufficient evidence. McHale, 924 A.2d at 673-74. After remand,

to maintain the same total aggregate sentence as originally imposed, the

trial court increased the overall sentence on the surviving counts.   Id. at

667. Noting that the aggregate sentence remained unchanged, we upheld

the new sentence. Id. at 674. In so doing, we noted:

     [O]ur conclusion is not altered by the fact that remand and
     resentencing were prompted by reversal of two of [the
     defendant’s] convictions. . . . Whether remand is the result of
     reversal of one or more convictions or vacation of an illegal
     sentence, we conclude that the trial court has the same
     discretion and responsibilities in resentencing.

Id. at 673-74.

     Appellant here was not the victim of a vindictive sentence on the part

of the trial court, as his aggregate sentence after remand remained the

same. Put differently, consistent with Greer, Walker, and McHale, the trial

court’s resentencing did not rise to vindictiveness because the trial court

here sought to preserve the integrity of the original sentencing scheme by


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imposing     the   same     aggregate     sentence.   See   Commonwealth     v.

Vanderlin, 580 A.2d 820, 831 (Pa. Super. 1990) (recognizing authority of

the trial court, after reducing sentence on one count to accord with the law,

to impose greater sentence on another count in order to insure appellant

remained in prison for a certain length of time); Commonwealth v.

Grispino, 521 A.2d 950, 954 (Pa. Super. 1987) (noting that trial court does

not violate double jeopardy principles by increasing sentence on remand

where aggregate term is not increased), appeal denied, 531 A.2d 1119

(Pa. 1987). Accordingly, Appellant is not entitled to relief on his due process

claim under Pearce.13




____________________________________________


13
   Based upon our disposition of Appellant’s first issue, we need not address
his fourth issue. However, we remind the trial court that “[r]eimposing a
judgment of sentence should not be a mechanical exercise.”
Commonwealth v. Losch, 535 A.2d 115 (Pa. Super. 1987). When a
sentence is vacated and the case remanded for resentencing, the sentencing
judge should start afresh; the requirement to state reasons for the
imposition of sentence applies both to the original sentencing hearing and to
all subsequent resentencing hearings. Id. at 123 n.9.



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         Judgment of sentence vacated.       Case remanded for resentencing.

Jurisdiction relinquished.

         President Judge Emeritus Bender, Judge Bowes, Judge Panella, Judge

Lazarus, Judge Ott, Judge Dubow, and Judge Moulton join this Opinion.

         Judge Ransom files a Concurring Statement in which Judge Dubow

joins.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2017




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