J. A27008/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
DUWAYNE DIXON,                           :          No. 621 WDA 2013
                                         :
                         Appellant       :


            Appeal from the Judgment of Sentence, March 12, 2013,
              in the Court of Common Pleas of Allegheny County
               Criminal Division at No. CP-02-CR-0016492-2008


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED FEBRUARY 12, 2015

     This is an appeal from the judgment of sentence entered March 12,

2013, by the Honorable Joseph K. Williams, III, in the Court of Common

Pleas of Allegheny County. Following review, we vacate and remand.

     Andre Ripley (“Ripley”) was scheduled to testify against the leader of

appellant’s gang in an unrelated criminal matter. On February 28, 2008, as

Ripley was entering his house, he was suddenly shot from behind; the bullet

struck his right shoulder. Ripley was then shot again, this time in the head,

and blacked out.    Ripley testified that before blacking out, he was able to

turn and identify appellant as the shooter. Ripley recognized appellant as he

had seen him once before and knew appellant’s mother was a friend of his

aunt. Ripley’s mother, Alicia, and his Aunt Topaz were also present at the

shooting.    At trial, Alicia, Topaz, and Ripley each testified that Ripley had
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yelled appellant’s nickname, Bear, after being shot. Ripley was hospitalized

and was unable to see for approximately two months after the shooting; he

attended a rehabilitation clinic for four months. On June 27, 2008, following

his release from rehabilitation, Ripley met with detectives and identified

appellant in a photo array.

        On December 9, 2008, in connection with the shooting of Ripley,

appellant was charged with one count each of aggravated assault,

18 Pa.C.S.A. § 2702(a)(1), conspiracy, 18 Pa.C.S.A. § 903(a), criminal

attempt (homicide), 18 Pa.C.S.A. §901(a); intimidation of a witness,

18 Pa.C.S.A. § 4952(a), (b); and retaliation against a witness, 18 Pa.C.S.A.

§ 4953(a) and (b). After many pre-trial delays,1 appellant proceeded to a

jury trial before Judge Williams from January 7 through January 18, 2013.

Appellant was found guilty of all charges.          On January 30, 2013, the

Commonwealth filed a sentencing memorandum and mandatory notice. The

court ordered appellant to file a written reply no later than February 20,

2013; no reply was filed.

        At the March 12, 2013 hearing, appellant was sentenced as follows:

aggravated assault -- 3 to 6 years’ incarceration to be followed by 10 years

of probation; conspiracy -- 10 years of consecutive probation; attempted

homicide -- 15 to 30 years of incarceration to be followed by 20 years of

consecutive probation; intimidation of a witness -- 5 to 10 years of


1
    Appellant originally pled guilty but was permitted to withdraw his plea.


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consecutive imprisonment; retaliation against a witness -- 5 to 10 years of

consecutive imprisonment. Thus, the aggregate sentence, according to the

trial court opinion, was intended to be 28 to 56 years of imprisonment,

followed by 40 years of probation. Also on this date, defense counsel was

permitted to withdraw, and the court noted that a public defender would be

appointed. (Docket #72.)

        A pro se motion to reconsider sentence was timely filed on March 19,

2013. (Docket #74.)2 Counsel filed a timely notice of appeal on April 11,

2013. (Docket #75.) Thereafter, on May 23, 2013, the trial court issued an

order stating it had received two communications from the Department of

Corrections regarding appellant’s judgment of sentence; the order stated

that appellant’s sentence was to run consecutively to a sentence in

Montgomery County.         (Docket #79).     Appellant complied with the trial

court’s order to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has

filed an opinion.

        The following issues have been presented for our review:

              I.    WAS    THE       SENTENCE       IMPOSED   ON
                    [APPELLANT]       ILLEGAL      IN    MULTIPLE
                    RESPECTS?

                    A.    SHOULD NOT THE SENTENCES FOR
                          AGGRAVATED    ASSAULT    AND
                          ATTEMPTED   HOMICIDE  MERGE
                          FOR SENTENCING PURPOSES?

2
    It does not appear that the trial court addressed this motion.


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                   B.      SHOULD NOT THE SENTENCES FOR
                           THE TWO INCHOATE OFFENSES
                           THAT   WERE   DESIGNED    TO
                           CULMINATE IN THE COMMISSION
                           OF THE SAME CRIME NAMELY
                           ATTEMPTED    HOMICIDE    AND
                           CRIMINAL          CONSPIRACY
                           (HOMICIDE),    MERGE     FOR
                           SENTENCING PURPOSES?

                   C.      WAS THE SENTENCE IMPOSED FOR
                           CRIMINAL ATTEMPT (HOMICIDE)
                           ILLEGAL   BECAUSE   IT  WAS
                           GREATER THAN THE LAWFUL
                           MAXIMUM PERMITTED FOR THAT
                           OFFENSE?

                   D.      WAS THE SENTENCE IMPOSED ON
                           COUNT 5, RETALIATION AGAINST
                           WITNESS OR VICTIM, OF FIVE TO
                           TEN YEARS OF INCARCERATION,
                           ILLEGAL BECAUSE THE CRIME IS
                           GRADED AS A FELONY 3, WHICH
                           HAS A STATUTORY MAXIMUM
                           SENTENCE OF 7 YEARS?

Appellant’s brief at 6.

       Each of appellant’s claims concerns the legality of his sentence. Issues

relating to the legality of a sentence are questions of law, as are claims

raising a court's interpretation of a statute.      Our standard of review over

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

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa.Super. 2012),

appeal denied, 53 A.3d 756 (Pa. 2012).

       We begin by summarily addressing appellant’s first, second and fourth

issues. The trial court and the Commonwealth each concede that appellant’s


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analysis of these three claims is correct.    Following our review, we also

agree with appellant that he is entitled to a remand for the purpose of

resentencing.

      Under the circumstances of this case, appellant’s sentences for

attempted murder and aggravated assault should have merged.          Although

appellant shot the victim twice, his acts demonstrate a single criminal

episode. See Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994).

Accordingly, we must vacate the judgment of sentence for appellant’s

aggravated assault conviction.

      We also agree that the offenses of criminal conspiracy and criminal

attempt-homicide both fall within the purview of Chapter 9 of the Crimes

Code. Appellant’s sentence for the two aforementioned inchoate crimes is

violative of 18 Pa.C.S.A. §906, which provides

            A person may not be convicted of more than one of
            the inchoate crimes of criminal attempt, criminal
            solicitation or criminal conspiracy for conduct
            designed to commit or to culminate in the
            commission of the same crime.

It is apparent from our review of the facts that the offenses were

perpetrated with one objective in mind -- the (attempted) killing of Ripley.

Accordingly, a remand for resentencing is required. See Commonwealth

v. Ford, 461 A.2d 1281, 1289-1290 (Pa.Super. 1983).

      Finally, we agree with appellant that the 5 to 10-year sentence

imposed for retaliation must be vacated as that offense, a felony of the third



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degree, carries a statutory maximum sentence of only 7 years. 18 Pa.C.S.A.

§ 4953(a), (b), 18 Pa.C.S.A. § 1103(c). As the sentence imposed is beyond

this statutory limit, it is therefore illegal.

      We now turn to the third issue presented which concerns the sentence

imposed for the conviction of criminal attempt-homicide.       Appellant claims

the sentence of 15 to 30 years of incarceration and a consecutive term of 20

years’ probation exceeds the statutory maximum. Appellant’s argument is

two-fold.    First, appellant argues that 18 Pa.C.S.A. § 1102(c) permits a

sentence of up to 40 years for attempted homicide where serious bodily

injury results, but only up to 20 years where serious bodily injury does not

result.     (Appellant’s brief at 25.)       Appellant directs our attention to

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), wherein the United

States Supreme 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.” Appellant notes that the verdict form in this case did not

mention serious bodily injury with respect to the attempted homicide charge

and argues such a finding cannot be implied by virtue of the fact that the

court instructed the jury on serious bodily injury. Second, appellant argues

that, in any event, the totally combined maximum sentence of 15 years to

30 years of incarceration followed by 20 years of probation would exceed the

40-year maximum.



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      We agree with appellant that the failure of the jury to render a

separate finding regarding serious bodily injury requires that we vacate the

conviction and remand for resentencing. We find support for our conclusion

in Commonwealth v. Johnson, 910 A.2d 60 (Pa.Super. 2006), appeal

denied, 923 A.2d 1173 (Pa. 2007).        In Johnson, this court held that a

defendant convicted of attempted murder and aggravated assault was

sentenced illegally where the jury did not determine that serious bodily

injury occurred relative to the attempted murder charge.       The trial court

therein concluded that serious bodily injury was proven because the jury

convicted the defendant of aggravated assault causing serious bodily injury.

The Johnson court found that the jury’s consideration of serious bodily

injury for the aggravated assault count was not relevant to the attempted

murder conviction.

      Relying on Apprendi, supra, the Johnson court held that it was not

the prerogative of the trial court but solely the responsibility of the jury to

find, beyond a reasonable doubt, whether a serious bodily injury resulted

from the attempted murder. The court held that to sentence a defendant to

a maximum term of incarceration of 40 years for attempted murder, the jury

must determine that the Commonwealth proved serious bodily injury as it

specifically pertained to the attempted murder charge.

      Instantly, the trial court points to other facts which it found served to

distinguish this case from Johnson.        First, the trial court noted that



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appellant had been put on notice that the Commonwealth was alleging

serious bodily injury in connection with the attempted homicide.          Also,

appellant originally had entered a guilty plea on October 3, 2011, resulting

in the preparation of a sentencing memorandum by the Commonwealth that

set forth its position that Ripley had sustained serious bodily injury.

Appellant was later permitted to withdraw his plea and proceed to trial

aware of the Commonwealth’s contention.          Additionally, the trial court

pointed to its instruction to the jury in connection with the criminal attempt

charge:

            The final element you must find is whether, as a
            result of the defendant’s attempt to commit murder,
            solicitation to commit murder or conspiracy to
            commit murder, serious bodily injury resulted 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. If you find that the defendant caused
            serious bodily injury, you should mark the verdict
            slip accordingly. If you find that nonserious bodily
            injury was caused, you should mark the verdict slip
            as such.

Notes of testimony, 1/11-18/13 at 600.

      However, we agree with appellant that Apprendi requires more than

notice that a defendant is facing an increased sentence.         Furthermore,

regardless of the instruction, the verdict slip did not provide a place for the

jury to indicate whether or not they found serious bodily injury. While the

trial court notes that appellant did not contest that serious bodily injury



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resulted, the prevailing law at the time explicitly called for an Apprendi

instruction and finding. Thus, we are constrained to vacate the sentence on

this count and remand for resentencing.

      Judgment of sentence vacated.       Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/12/2015




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