J-A24013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

BRYANT WHITNEY

                            Appellant                No. 1948 EDA 2014


             Appeal from the Judgment of Sentence May 29, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0014495-2008

BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                       FILED NOVEMBER 13, 2015

        Appellant, Bryant Whitney, appeals from the judgment of sentence

entered on May 29, 2014, by the Honorable Anne Marie Coyle, Court of

Common Pleas of Philadelphia County. Whitney argues that the trial court

imposed an illegal sentence under Apprendi v. New Jersey, 530 U.S. 466

(2000).     In Apprendi, the United States Supreme Court determined that

“any fact that increases the penalty for a crime beyond the prescribed

statutory maximum, other than the fact of a prior conviction, must be

submitted to a jury and proved beyond a reasonable doubt.”      Id., at 466.

Section 1102(c) of the Crimes Code provides for the imposition of an

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*
    Retired Senior Judge assigned to the Superior Court.
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increased maximum sentence of 20 to 40 years’ imprisonment where

“serious bodily injury” results from an attempted murder. In this case, we

consider whether the application of Section 1102(c) was in violation of

Apprendi. For the reasons stated below, we affirm.

          Whitney, along with at least one other person, fired gunshots at the

victim, Robert Jackson.         Jackson sustained fourteen gunshot wounds in

various parts of his torso and groin, resulting in a severed spine and

permanent paralysis from the waist down.            Following a jury trial, Whitney

was convicted of attempted murder,1 aggravated assault,2 conspiracy,3

possession of an instrument of crime,4 and three violations of the Uniform

Firearms Act.5 The trial court sentenced Whitney to an aggregate term of

33½ to 67 years of imprisonment.               Whitney subsequently filed a post-

sentence motion for reconsideration of sentence, which the trial court

denied. This timely appeal followed.

          On appeal, Whitney raises a single issue for us to consider. Whitney

contends that the 20 to 40 year maximum sentence imposed under Section



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1
    18   Pa.C.S.A.   § 901.
2
    18   Pa.C.S.A.   § 2702.
3
    18   Pa.C.S.A.   § 903.
4
    18   Pa.C.S.A.   § 907.
5
    18   Pa.C.S.A.   §§ 6105, 6106, and 6108.




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1102(c) of the Crimes Code6 for the attempted murder conviction was an

illegal sentence because the jury was never presented with nor rendered a

decision on the question of whether serious bodily injury7 resulted from the

attempted murder. Although Whitney was convicted of aggravated assault,8

which includes serious bodily injury as an element of the crime, he maintains

that the trial court erred in imposing the maximum sentence for the

attempted murder conviction because the jury was not instructed on the

serious bodily injury requirement specific to that crime. Thus, he maintains,

the 20 to 40 year maximum sentence imposed was illegal under Apprendi

because “it is within the sole province of the jury to find those facts
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6
    Section 1102(c) of the Crimes Code, provides:

        [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.

18 Pa.C.S.A. § 1102(c) (emphasis added).
7
  “Serious bodily injury” is defined in the Crimes Code 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.
8
   Aggravated assault is defined as either attempting to cause or causing
“serious bodily injury to another ... intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to the value of human
life.” 18 Pa.C.S. § 2702(a)(1) (emphasis added).



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necessary to increase the maximum terms of imprisonment for a specific

charge beyond a reasonable doubt.” Appellant’s Brief, at 11.

      Whitney’s claim challenges the legality of the 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)

(citation omitted).

      The instant matter involves the application of Section 1102(c) of the

Crimes Code, and, in particular, the serious bodily injury requirement.

“[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).        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. Reid, 867 A.2d

1280, 1281 (Pa. Super. 2005).     At issue is whether the jury was properly

instructed on the serious bodily injury requirement and subsequently

determined beyond a reasonable doubt that serious bodily injury in fact

resulted from the attempted murder.

      The trial court reasons that the maximum sentence is proper because

the jury was presented with ample evidence to determine that Whitney

inflicted serious bodily injury upon his victim.    See Trial Court Opinion,

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2/6/2015, at 4.   We agree with the trial court’s conclusion that there was

sufficient evidence for the jury to determine that serious bodily injury

resulted—the victim’s fourteen gunshot wounds; his severed spine; the

paralysis.

      We further point out that the jury in fact determined beyond a

reasonable doubt that serious bodily injury occurred when they found

Whitney guilty of the companion offense of aggravated assault. In this case,

the jury instructions were fashioned so that the jury could only convict

Whitney of aggravated assault if they found beyond a reasonable doubt that

he intentionally caused serious bodily injury to his victim. The trial court

issued the following instructions for the aggravated assault charge.

      A person is guilty of aggravated assault if he causes serious
      bodily injury to another human being or causes such injury
      intentionally and knowingly or recklessly under circumstances
      manifesting extreme indifference to the value of human life. You
      must find each of the elements proven beyond a reasonable
      doubt. One, the defendant caused the serious bodily injury to
      [the victim]. Serious bodily injury is an injury that would create
      a substantial risk of death that would cause serious permanent
      disfigurement or protracted loss or impairment of the function of
      any bodily member or organ. In order to find that the defendant
      did so, you must find that the defendant engaged in conduct that
      constitutes a substantial step towards causing serious bodily
      injury to [the victim].

      Second, the conduct in this regard must be intentional in that his
      conscious purpose or object was to cause that serious bodily
      injury. Any particular action by the defendant, including pointing
      a loaded weapon and firing at a vital part of [the victim’s] body,
      should be considered to determine whether or not it was the
      conscious intent to cause serious bodily injury.



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      Upon consideration of all of the evidence, if you conclude beyond
      a reasonable doubt that the defendant’s action was a substantial
      step in a chain of events that he consciously set in motion with
      his intention, result being that [the victim] would actually suffer
      serious bodily injury, then you should find him guilty of this
      count. Otherwise, you should find the defendant not guilty of
      aggravated assault.

N.T., Trial, 3/27/14, at 20-21 (emphasis added).

      A jury is presumed to have followed the trial court’s instructions as to

the applicable law.   See Commonwealth v. LaCava, 666 A.2d 221, 228

(Pa. 1995). Thus, in ruling that Whitney was guilty of aggravated assault,

the jury in fact concluded that Whitney inflicted serious bodily injury upon

his victim.

      Whitney cites Commonwealth v. Johnson, 910 A.2d 60 (Pa. Super.

2006), and Commonwealth v. Kearns, 907 A.2d 649 (Pa. Super. 2006), in

support of his assertion that the jury had to be specifically instructed as to

the serious bodily injury requirement for the attempted murder offense.

Both cases are distinguishable from the case at hand.

      In Johnson, this Court concluded that the jury did not find serious

bodily injury for the purposes of applying the maximum for attempted

murder, even though the appellant had been convicted of aggravated

assault. See 910 A.2d at 67-68. However, unlike in the present case, there

was no evidence in Johnson that the jury convicted the appellant of

aggravated assault on the basis that serious bodily injury actually occurred.

See id., at 68 n.10. Thus, the jury in Johnson could have convicted the


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appellant of aggravated assault based merely on an attempt to commit

serious bodily injury. As such, Johnson is clearly distinguishable from the

case at hand.

         The Kearns case is also distinguishable from the instant case. There,

the two offenses at issue had distinct elements.       See 907 A.2d at 659.

Here, however, the jury was instructed on an identical element between the

two offenses at issue. Specifically, the jury was instructed that in order to

convict Whitney of aggravated assault, they had to find that serious bodily

injury actually resulted, which was the identical element necessary for

increasing the maximum sentence of the attempted murder offense.

Because the serious bodily injury element of both offenses was identical, the

jury’s guilty verdict on the aggravated assault offense granted the trial court

the authority to impose the maximum sentence for the attempted murder

offense.9 Thus, Whitney’s attempt to use Kearns in support of his position

fails.

         In fact, in dicta, the Kearns court made the following statement,

which directly supports our decision.


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9
   Whitney’s assertion that he was never put on notice that the
Commonwealth was seeking to request a sentence up to 40 years is refuted
by the certified record. The record makes clear that the trial court informed
Whitney of the possibility of a 20 to 40 year sentence for the attempted
murder at his oral colloquy. See N.T., Hearing, 3/5/13, at 10.




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     Of course, it is not sufficient that two phrases are substantially
     similar or substantially overlap. Unless the two phrases are
     construed in identical fashion, and the jury so charged, the jury’s
     finding [as to the one element] would not satisfy [the slightly
     different other element] because it would be unclear whether the
     jury’s finding rested upon a conclusion that fell within the first
     definition but not within the one of importance for our inquiry.

Id., at 660 (emphasis added).

     In light of the foregoing, we conclude that the trial court did not err in

imposing the maximum sentence of 20 to 40 years of imprisonment for the

attempted murder conviction.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2015




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