J-S69007-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA


                       v.

STEVENSON LEON ROSE

                            Appellant                       No. 1832 WDA 2016


              Appeal from the Judgment of Sentence July 6, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0000810-2008


BEFORE: BOWES, RANSOM, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.:                                FILED FEBRUARY 28, 2018

       Stevenson Leon Rose appeals from his July 6, 2016 judgment of

sentence of ten to twenty years incarceration, imposed after he was

convicted of third-degree murder.              The trial court ran it consecutively to

Appellant’s original judgment of sentence, resulting in an aggregate

sentence of twenty-five to fifty years imprisonment.1 After careful review,

we vacate Appellant’s judgment of sentence and remand for resentencing.

____________________________________________


1  Appellant was originally convicted of aggravated assault, recklessly
endangering another person, conspiracy, involuntary deviate sexual
intercourse, and criminal attempt, based on the 1993 incident discussed
infra. In 1994, he received a sentence of ten to twenty years incarceration
for aggravated assault and a consecutive sentence of five to ten years
incarceration for conspiracy, with no addition penalty for the remaining
charges, for an aggregate sentence of fifteen to thirty years imprisonment.
(Footnote Continued Next Page)


* Former Justice specially assigned to the Superior Court.
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      Our High Court previously set forth the salient factual and procedural

background:

             The facts of this case are particularly heinous. On July 13,
      1993 [Appellant] and Shawn Sadik brutally attacked Mary
      Mitchell in a park in the East Liberty neighborhood of Pittsburgh.
      During the attack, the men kicked the victim in the head
      approximately 60 times, stabbed her in the throat, and inserted
      a 16-inch piece of aluminum framing into her vagina, causing
      serious internal injuries. The victim was left naked and bleeding
      until she was discovered by two individuals. The attack left the
      victim in a vegetative state. An investigation led police to
      [Appellant] and Sadik, and police recovered bloody clothing and
      shoes from [Appellant’s] apartment later that day. [Appellant]
      provide police with a statement in which he admitted that he and
      Sadik attacked the victim after drinking and doing drugs.

             In March 1994, a jury convicted [Appellant] of attempted
      murder, aggravated assault, involuntary deviate sexual
      intercourse, recklessly endangering another person, and criminal
      conspiracy, and, on March 16, 1994, he was sentenced to 15 to
      30 years incarceration. His judgment of sentence was affirmed
      on appeal by the Superior Court, and this Court denied his
      petition for allowance of appeal. Commonwealth v. Rose, 664
      A.2d 1059 (Pa.Super. 1995), appeal denied, 672 A.2d 306
      (1995).

             On September 17, 2007, the victim succumbed to the
      injuries she sustained in the attack 14 years earlier, and, on
      October 9, 2007, the Commonwealth charged [Appellant] with
      criminal homicide. Rejecting his diminished capacity defense,
      the jury convicted [Appellant] of third-degree murder.      At
      sentencing, [Appellant] maintained that he could be sentenced
      only to a maximum term of incarceration of 10 to 20 years,
      because, at the time he assaulted the victim, that was the
(Footnote Continued) _______________________

In 2010, Appellant was sentenced to twenty to forty years incarceration,
concurrent to his original sentence, for third degree murder following the
death of the victim. That sentence was vacated in 2016, and he was
resentenced to the sentence at issue herein.



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     maximum allowable sentence for third-degree murder under 18
     Pa.C.S. § 1103(1), which provides that a person convicted of a
     felony of the first degree may be sentenced “for a term which
     shall be fixed by the court at not more than 20 years.” 18
     Pa.C.S. § 1103(1). The Commonwealth argued, however, that
     because the victim’s death did not occur until 2007, [Appellant’s]
     crime of homicide was not “complete” until that time, and,
     therefore, [Appellant] was subject to the 20 to 40 year sentence
     for third-degree murder prescribed under 18 Pa.C.S. § 1102,
     which was amended in 1995 (two years after the attack) and
     provides: “Notwithstanding section 1103, a person who has
     been convicted of murder of the third degree . . . shall be
     sentenced to a term which shall be fixed by the court at not
     more than 40 years.” 18 Pa.C.S. § 1102(d). The sentencing
     court agreed with the Commonwealth, and sentenced [Appellant]
     to 20 to 40 years incarceration. [Appellant] was credited with
     approximately 17 ½ years of time served for his prior conviction.

           [Appellant] appealed, and a panel of the Superior Court
     vacated his sentence and remanded for resentencing. The
     Commonwealth requested, and was granted en banc review by
     the Superior Court . . . The en banc panel concluded
     [Appellant’s] sentence of 20 to 40 years violated the Ex Post
     Facto Clauses of both the United States and Pennsylvania
     Constitutions. . . . The Commonwealth filed a petition for
     allowance of appeal with this Court, which we granted in order to
     consider whether the Superior Court erred in holding that
     sentencing [Appellant] pursuant to 18 Pa.C.S. § 1102(d), which
     became effective after he committed the deadly assault on the
     victim, but before the victim died, would violate the prohibition
     against ex post facto laws.

Commonwealth v. Rose, 127 A.3d 794, 796-797 (Pa. 2015) (internal

footnotes omitted).

     The Supreme Court affirmed and held that the imposition of a longer

sentence based upon an amendment to the statute that occurred after

Appellant committed the assault in question violated his rights under the Ex




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Post Facto Clause.    Id.    Thus, the High Court remanded for resentencing

pursuant to the statute in effect at the time of the assault.

      Meanwhile, on June 14, 2016, Appellant was granted parole after

serving twenty-three years of his original sentence of fifteen to thirty years

imprisonment.    However, he remained incarcerated on a detainer for his

then-upcoming resentencing.       Since his 2010 sentence of twenty to forty

years imprisonment, which ran concurrent to his original sentence, was

vacated, the trial court resentenced Appellant on July 6, 2016.                 At that

proceeding,   Appellant     received   a   sentence   of   ten   to    twenty    years

imprisonment for third-degree murder, the statutory maximum, and the trial

court imposed that sentence to run consecutively to his original sentence.

Thus, Appellant received an aggregate sentence of twenty-five to fifty years

incarceration, which was in excess of the twenty to forty year sentence he

received in 2010.

      Appellant filed a post-sentence motion challenging his sentence, which

was denied by operation of law on November 21, 2016.                  He then filed a

timely notice of appeal and complied with the trial court’s order to file a Rule

1925(b) concise statement of errors complained of on appeal.                The trial

court authored its Rule 1925(a) opinion, and this matter is now ready for our

review.

      Appellant raises two questions for our consideration:




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      I. Whether the sentence imposed by the trial court is manifestly
         excessive, unreasonable, or an abuse of discretion?

      II. Whether the trial court’s imposition of a consecutive sentence
          constitutes vindictiveness?

Appellant’s brief at 1.

      Appellant’s issues challenge the discretionary aspects of his sentence.

We have long held that “[t]he right to appeal a discretionary aspect of

sentence is not absolute.” Commonwealth v. Barnes, 167 A.3d 110, 122

(Pa.Super.   2017)    (citation   omitted).      Instead,   such   challenges   are

considered petitions for allowance of appeal. Id. An appellant who wishes

to challenge the discretionary aspects of his sentence must satisfy a four-

part test to invoke this Court’s jurisdiction:

      (1) whether appellant has filed a timely notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      appellant’s brief has a fatal defect pursuant to Pa.R.A.P. 2119(f);
      and (4) whether there is a substantial question that the sentence
      appeal from is not appropriate under the Sentencing Code.

Id. (citation omitted).   Finally, “[w]hether a particular issue constitutes a

substantial question about the appropriateness of sentence is a question to

be evaluated on a case-by-case basis.” Id. (citation omitted).

      Here, Appellant preserved his claimed errors in a post-sentence motion

and filed a timely notice of appeal after that motion was denied by operation

of law. In addition, he appended to his appellate brief a statement pursuant

to Pa.R.A.P. 2119(f) entreating this Court to review the merits of his



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challenge to the discretionary aspects of his sentence. Hence, we must only

determine whether his claims raise a substantial question.

      A substantial question exists when an appellant raises “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.”           Id.     at 122-

123. Appellant first argues that his sentence is excessive and unreasonable

because the resentencing court emphasized the seriousness of his offense

and failed to consider his rehabilitative needs and other mitigating

circumstances, which militated in favor of a lesser sentence.            Appellant’s

brief at 18-19.    We have previously held that such a claim raises a

substantial question.     See Commonwealth v. Knox, 165 A.3d 925, 929-

930 (“[The] claim that the trial court focused exclusively on the seriousness

of the crime while ignoring other, mitigating circumstances, such as his

mental health history and difficult childhood, raises a substantial question.”).

      Next,   Appellant    claims   that   the   imposition   of   his     sentence

consecutively to his previous judgment of sentence following remand from

the Supreme Court evinces judicial vindictiveness.      Appellant’s brief at 19.

We have also previously determined that a claim of judicial vindictiveness

following a remand for resentencing raises a substantial question. Barnes,

supra at 123 (“[I]t is settled that Appellant’s claim that his sentence on

remand was a product of vindictiveness presents a substantial question for

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our review.”) As such, Appellant has invoked our jurisdiction, and we may

reach the merits of this appeal.

      Since we find that Appellant’s second issue is dispositive, we will

consider it first. Appellant alleges that his sentence constituted a violation of

due process, as it reflects judicial vindictiveness. We observe,

      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.

Commonwealth v. Barnes, 167 A.3d 110, 123 (Pa.Super. 2017) (citing

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

grounds by Alabama v. Smith, 490 U.S. 794 (1989) (emphasis omitted)).

      The Pearce rationale also “applies when the original sentence is

vacated and a second sentence is imposed without an additional trial.” Id.

(citation omitted).    As such, “whenever a trial court imposes upon a

defendant a more severe sentence following resentencing, the reasons for

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such sentence must be made part of the record.”             Id. at 124.      “Absent

evidence   [that]   a   sentencing   increase   is   justified   due   to   objective

information   concerning     a   defendant’s     case,     the    presumption      of

vindictiveness cannot be rebutted.” Id. (citation omitted).

     In addition, we have previously held that

     when a sentence is vacated and the case is remanded to the
     sentencing court for resentencing, the sentencing judge should
     start afresh. Reimposing a judgment of sentence should not be
     a mechanical exercise.      Given the important nature of the
     interests involved, the judge at the second sentencing hearing
     should reassess the penalty imposed on the defendant –
     especially where defense counsel comes forward with relevant
     evidence which was not previously available. Thus, appellant’s
     conduct since the prior sentencing hearing is relevant at
     resentencing. The sentencing judge must take note of this new
     evidence and reevaluate whether the jail term which appellant
     received is a just and appropriate punishment.

Commonwealth v. Serrano, 150 A.3d 470, 473 (Pa.Super. 2016) (cleaned

up) (citing Commonwealth v. Jones, 640 A.2d 914, 919-920 (Pa.Super.

1994)).

     To recap, in 2010, after he was convicted for third degree murder

following the victim’s death, Appellant was sentenced to a term of

incarceration of twenty to forty years incarceration. The sentencing court at

that time did not run Appellant’s sentence consecutive to his original

sentence of fifteen to thirty years imprisonment, but rather, ran them

concurrently for a total sentence of twenty to forty years imprisonment.




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      Upon appeal, we vacated the sentence for third degree murder, and

the Supreme Court affirmed our holding, finding that Appellant’s sentence

was unconstitutional. After remand, the same sentencing court resentenced

Appellant to ten to twenty years imprisonment, based on the statutory

maximum applicable at the time he assaulted Ms. Mitchell.          However, the

court imposed that sentence consecutive to his prior aggregate sentence of

fifteen to thirty years incarceration for a total sentence of twenty-five to fifty

years.

      Appellant argues that the sentencing court’s imposition of his sentence

of ten to twenty years incarceration consecutive to his prior sentence

represents judicial vindictiveness since it resulted in a longer aggregate

sentence than what he faced prior to resentencing. He maintains that the

circumstances between his sentencing in 2010 and 2016 were largely

unchanged, and in fact, favored a lesser sentence. Thus, the trial court had

no basis for extending his sentence in this way.

      Specifically, Appellant argues that his post-offense conduct, especially

his behavior following the imposition of sentence in 2010, was salutary. He

emphasizes the reasoning employed by the Pennsylvania Board of Parole

and Probation when it granted his parole.        Appellant alleges that he was

granted parole “because of his participation in and completion of all

prescribed programs; the positive recommendation made by the Department

of Corrections on his behalf (the direct result of exemplary institutional

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comportment); his demonstrated motivation for success; his acceptance of

responsibility for the offense; and his state of remorse for the offense

committed.”2 Appellant’s brief at 31 (citations to the record omitted). He

maintains that the court did not mention any of these factors in rendering

his sentence, and that the court could not rely solely on its review of his

presentence report since it was authored in 2010, and thus, it did not

include the mitigating conduct he had engaged in since that time.3

       Essentially, Appellant’s argument reduces to the claim that, where a

sentencing     court    imposes        a    longer     sentence   following   remand   for

resentencing, the reasons for doing so must be expressed on the record, and

that   the    court’s   failure   to       enunciate    such   reasons   herein   raises a

presumption of vindictiveness that cannot be overcome based on the record

before us.4

____________________________________________


2 We note that the Department of Corrections and the Board of Probation
and Parole entered into a memorandum of understanding (“MOU”) in
October 2017. The MOU set forth the agencies’ agreement to consolidate
and coordinate overlapping functions under the auspices of the Department
of Corrections, including the full integration of the community reentry and
parole supervision functions of those departments. However, the Board of
Probation and Parole continues to exercise exclusive and independent power
of parole decisions.

3 The presentence investigation report was not made part of the certified
record.

4Appellant also raises the claim that the Supreme Court determined that his
sentence could not exceed ten to twenty years incarceration, and thus, the
(Footnote Continued Next Page)


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       Instantly, we observe that, during the sentencing hearing, counsel for

Appellant apprised the court of the sentencing guidelines that were in effect

at the time of Ms. Mitchell’s assault in 1993. N.T. Sentencing, 7/6/16, at 3-

5. He also summarized Appellant’s accomplishments and the evidence of his

good    behavior,     including   his   exemplary      conduct   while   imprisoned,

completion of educational courses, employment, and his remorse. Id. at 7-

8. Counsel indicated that Appellant had been recently paroled, and read to

the court portions of a letter from the Department of Corrections outlining

the reasons Appellant was granted parole. Id. at 9-10. Appellant spoke on

his own behalf, and reiterated his regret for Ms. Mitchell’s injuries.        Id. at

12.

       The   trial   court   offered    the    following   remarks   when   imposing

Appellant’s sentence:

       The Court: It was at – he was found guilty of the charge of
       murder of the third degree, and so at that, that’s what I’m
       sentencing at and I’m imposing the following sentence. This is
       based on the guidelines, everything I’ve heard, everything I
       heard at trial, just totality of the circumstances really.   I
       reviewed the entire case file before coming in today and I am
       imposing sentence.



(Footnote Continued) _______________________

sentence imposed represents an abuse of the sentencing court’s discretion.
We note that the Supreme Court’s determination that Appellant’s sentence
was unconstitutional had no bearing on the sentencing court’s discretion to
run his term of imprisonment consecutively to his original sentence.




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N.T. Sentencing Hearing, 7/6/16, at 27.5

       Pursuant to Pearce, supra, in order to increase Appellant’s sentence,

the sentencing court was mandated to affirmatively state its reasons for

doing so on the record. Barnes, supra; Pearce, supra.                   We do not find

that the trial court’s pronouncement that Appellant’s sentence was based on

“everything [it] heard” satisfied this burden. Our conclusion is bolstered by

the fact that defense counsel apprised the court of Appellant’s progress

towards rehabilitation while incarcerated, and that progress undoubtedly

militated in favor of a lighter sentence.

       It is beyond cavil that the purposes underlying our system of criminal

punishment      is   premised     in   part    upon   a   theory   of    rehabilitation.
____________________________________________


5 In its Rule 1925(a) opinion, the trial court offered that “[t]he sentence
imposed by this [court] was sufficient, but not greater than necessary to
reflect the seriousness of the offense, and to provide a just punishment for
the offense. The sentence will afford adequate deterrence to criminal
conduct, and will protect the public from further crimes by [Appellant].”
Trial Court Opinion, 3/27/17, at 3. This reasoning was not offered on the
record at the sentencing proceeding, and we are cognizant that we cannot
consider the court’s rationale as stated in a later opinion. Commonwealth
v. Flowers, 149 A.3d 867 (Pa.Super. 2016) (citing Commonwealth v.
Giles, 449 A.2d 641 (Pa.Super. 1982)).

Further, we observe that the trial court may have been confused as to the
effect of its sentence based on assurances by the Commonwealth that such
a sentence would merely “maximiz[e] the parole time that [Appellant] would
have[.]” N.T. Sentencing, 7/6/16, at 14. Nonetheless, defense counsel
apprised the court that the sentence imposed herein would lead to the
aggregate sentence of twenty-five to fifty years imprisonment, and thus, the
court was aware of the effect of its sentence. Id. at 24-25.




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Commonwealth v. Williams, 652 A.2d 283, 285 n.1 (Pa. 1994).

Rehabilitation has always been the noblest pursuit of our criminal justice

system. In addition to the protection of the public and deterrence, the time

a convicted criminal spends incarcerated is designed to provide the

treatments necessary, and the skills required, for that individual to reenter

society with the requisite tools to cope with the challenges of modern living

without resorting to criminal conduct.            Here, the evidence demonstrated

Appellant   significantly   benefitted    from     programs   geared   towards   his

rehabilitation. As stated, he was poised for release on parole immediately

prior to resentencing, when the Board of Probation and Parole had fully

considered all of the facts of his case, including the subsequent death of Ms.

Mitchell.

      In light of the evidence of Appellant’s rehabilitation, which, as noted

above, the sentencing court was not only aware of, but was required to

consider, Serrano, supra, the court was obligated to provide objective

information on the record as to why the protection of the public and the

gravity of the offense outweighed Appellant’s rehabilitative progress.           See

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa.Super. 2006)

(noting that, when imposing a sentence, the court must consider the factors

set forth in 42 Pa.C.S. § 9721(b), that is, the protection of the public, the

gravity of the offense in relation to the impact on the life of the victim and

on the community, and the rehabilitative needs of the defendant.). This is

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especially significant since the Board of Probation and Parole, only a month

prior to resentencing, had determined that Appellant’s conduct while

incarcerated was laudable, and on that basis, granted him parole. Indeed,

on the record before us, we are unable to determine the extent to which, if

any, the sentencing court considered the evidence proffered by Appellant, or

on what basis an increased sentence was justified.         Hence, we must

presume that Appellant’s sentence resulted from judicial vindictiveness,

vacate Appellant’s judgment of sentence, and remand for resentencing

consistent with this writing. Barnes, supra; Serrano, supra. As we find

that Appellant’s second issue warrants relief, we need not consider his first

claimed error.

      Judgment    of   sentence   vacated.    Case   remanded.   Jurisdiction

relinquished.

      Judge Ransom joins the memorandum.

      P.J.E. Stevens files a concurring statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/28/2018




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