Com. v. Davis

• Citation: 760 A.2d 406
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. William Irving DAVIS a/k/a Bean Davis a/k/a William Irwin Davis a/k/a William Boo Davis, Appellant.
• Decision Date: 22 September 2000
• Court: Pennsylvania Superior Court

760 A.2d 406

COMMONWEALTH of Pennsylvania, Appellee, v. William Irving DAVIS a/k/a Bean Davis a/k/a William Irwin Davis a/k/a William Boo Davis, Appellant.

Superior Court of Pennsylvania.

Submitted March 6, 2000.

Filed September 22, 2000.

Paul R. Dachille, Pittsburgh, for appellant.

Michael W. Streily and Sandra Preuhs, Asst. Dist. Attys., Pittsburgh, for Commonwealth, appellee.

BEFORE: JOYCE, LALLY-GREEN, and BROSKY, JJ.

LALLY-GREEN, J.:

¶ 1 Appellant, William Irving Davis, appeals from the order entered April 20, 1999, denying his first petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We reverse and remand for resentencing.

¶ 2 The facts underlying Appellant's conviction were summarized by this Court on direct appeal as follows:

On October 16, 1984, Jobe Wright, Terrance George and Appellant drove through the Monroeville Mall parking lot in a red Chevrolet Camaro. George reached out of the car and snatched the purse of Marjorie Wilson. Appellant and his companions then exited the parking lot and proceeded along Route 22 west-bound towards Pittsburgh. After traveling approximately one-half mile, Appellant, who was driving, lost control of the vehicle and crossed over into the lanes of oncoming traffic. In the tragic collision which ensued, an elderly couple [ (Elmer and Sarah Burger) ] died. Terrance George also lost his life. Appellant fled the scene of the accident on foot. He turned himself in to police several days later.

Docket Entry 46 at 1-2; Commonwealth v. Davis, 388 Pa.Super. 224, 565 A.2d 458, 459 (1989), appeal denied, 525 Pa. 595, 575 A.2d 561 (1990).

¶ 3 On the date of the offense, October 16, 1984, a single auto accident caused by criminal behavior was considered one offense against the Commonwealth, exposing the defendant to only one penalty, regardless of the number of victims involved (the "one sentence rule"). See, e.g., Commonwealth v. Frisbie, 318 Pa.Super. 168, 464 A.2d 1283, 1288-1289 (1983) ("Frisbie I").

¶ 4 On December 13, 1984, Appellant was charged by information as follows:

CC # 8411736¹—Robbery

Criminal Conspiracy

Theft by Unlawful Taking

CC # 8411789²—Homicide (Elmer Burger)

Homicide (Sarah Burger)

Homicide by Vehicle (Terrance George)

Homicide by Vehicle (Elmer Burger)

Homicide by Vehicle (Sarah Burger)

CC # 8412440³—Recklessly Endangering Another Person ("REAP")

Receiving Stolen Property

Careless Driving

Driving at an Unsafe Speed

¶ 5 On December 18, 1984, approximately two months after the incident in question, our Supreme Court reversed this Court's decision in Frisbie I. Specifically, the Court held that one criminal incident involving multiple victims could be considered more than one crime, carrying more than one penalty, depending on the language of the criminal statute at issue (the "multiple sentence rule"). Commonwealth v. Frisbie, 506 Pa. 461, 485 A.2d 1098, 1099-1100 (1984) ("Frisbie II").⁴

¶ 6 Appellant's case proceeded to trial on October 22-29, 1985. On October 31, 1985, Appellant was convicted of all charges. Docket Entries 26-28. The homicide charges were graded as third degree murder. Docket Entry 27. On October 7, 1986, Appellant was sentenced to an aggregate prison term of 18¼ years to 36½ years.⁵ Docket Entries 1-3.

¶ 7 At this point, we will briefly identify two aspects of the sentence that Appellant challenges herein. First, the sentence included a term of 7½ to 15 years for the murder of Elmer Burger, and a second consecutive term of 7½ to 15 years for the murder of Sarah Burger.⁶ Docket Entry 1. Second, the sentence included two consecutive prison terms related to the death of victim Sarah Burger (the aforementioned 7½ to 15 years for third degree murder, and a consecutive term of 2½ to 5 years for homicide by vehicle).⁷ Id.

¶ 8 On October 23, 1986, the sentencing court denied Appellant's Motion to Modify Sentence. Docket Entry 76; N.T., 10/23/86, at 35. This Court affirmed the judgment of sentence on October 16, 1989.⁸ Docket Entry 46; Davis, 388 Pa.Super. 224, 565 A.2d 458. The Pennsylvania Supreme Court denied allowance of appeal on May 2, 1990. Docket Entry 46; Davis, 525 Pa. 595, 575 A.2d 561.

¶ 9 On February 12, 1996, Appellant filed a pro se PCRA petition. Docket Entry 52. A counseled, amended PCRA petition was filed on June 26, 1998. Docket Entries 58-60. The PCRA court dismissed Appellant's petition on April 20, 1999. Docket Entry 66. This appeal followed.

¶ 10 Appellant raises the following issues:

A. Are Appellant's sentences illegal because, under the sentencing law which prevailed at the time of the offenses, it was unlawful to impose multiple punishments for one vehicular act?

B. Are Appellant's sentences illegal because, under the sentencing law which prevailed at the time of the offenses, the Supreme Court regarded homicide by vehicle as a lesser included offense of third degree murder and, therefore, those offenses should have merged?

Appellant's Brief at 9.

¶ 11 Our review of a PCRA court's grant or denial of relief is limited to examining whether the court's determination is supported by the evidence and whether it is free of legal error. Commonwealth v. Walker, 721 A.2d 380, 381 (Pa.Super.1998). Under the PCRA, a petitioner must plead and prove by a preponderance of the evidence that his claim falls within one of seven specific categories of error, including "[t]he imposition of a sentence greater than the lawful maximum." 42 Pa.C.S.A. § 9543(a)(2)(vii).

¶ 12 Both of Appellant's claims are cognizable under the PCRA because they involve allegations that the court imposed separate sentences on charges that should have merged. Commonwealth v. Lehr, 400 Pa.Super. 514, 583 A.2d 1234, 1236 (1990); see also, Commonwealth v. Neupert, 454 Pa.Super. 62, 684 A.2d 627, 628-629 (1996). Moreover, challenges to the legality of a sentence cannot be waived. Commonwealth v. Hockenberry, 455 Pa.Super. 626, 689 A.2d 283, 288 (1997), appeal denied, 548 Pa. 645, 695 A.2d 784 (1997). Accordingly, these issues are preserved even though Appellant did not raise them on direct appeal.

¶ 13 First, Appellant argues that the trial court violated his due process rights by sentencing him in accordance with the multiple sentence rule announced in Frisbie II. Specifically, he asserts that: (1) Frisbie II represented a new and unexpected change in the law; and (2) that retroactive application of Frisbie II exposed him to a greater prison term than he could have expected at the time of the offense. Appellant concludes that he should be resentenced under the one sentence rule which was in effect at the time of the offense.

¶ 14 Appellant's due process claim has its origins in the ex post facto clauses of the United States Constitution and the Pennsylvania Constitution. U.S. Const. Art. 1, § 10; Pa. Const. Art. 1, § 17.

¶ 15 The United States Constitution provides that "no State shall ... pass any ... ex post facto Law...." U.S. Const. Art. 1, § 10. The Pennsylvania Constitution provides that "no ex post facto law ... shall be passed." Pa. Const. Art. 1, § 17. The Pennsylvania Constitution provides the same ex post facto protections as the United States Constitution. Commonwealth v. Fisher, 559 Pa. 558, 741 A.2d 1234, 1238 (1999). Because there is no appreciable difference between the two constitutional provisions or our Courts' analysis thereof, we will refer to them collectively as "the ex post facto clause".

¶ 16 Before we turn directly to the due process claim, we will briefly review relevant ex post facto principles. In 1798, the United States Supreme Court identified four types of prohibited ex post facto laws:

1st. Every law that makes an action done before passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Calder v. Bull, 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798) (emphasis added). These four categories are still recognized today. Collins v. Youngblood, 497 U.S. 37, 42, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990); Fisher, 741 A.2d at 1238.

¶ 17 We recently set forth other relevant ex post facto principles as follows:

The bulk of our ex post facto jurisprudence has involved claims that a law has inflicted a "a greater punishment, than the law annexed to the crime, when committed." Calder[.] We have explained that such laws implicate the central concerns of the Ex Post Facto Clause: "the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." Weaver v. Graham, 450 U.S. 24, 30, [101 S.Ct. 960, 67 L.Ed.2d 17][ ] (1981).

To fall within the ex post facto prohibition, a law must be retrospective—that is "it must apply to events occurring before its enactment"—and it "must disadvantage the offender affected by it" id., at 29[,] by altering the definition of criminal conduct or increasing the punishment for the crime, see Collins [,] 497 U.S. [at 50].

Commonwealth v. Kline, 695 A.2d 872, 874 (Pa.Super.1997), appeal denied, 552 Pa. 694, 716 A.2d 1248 (1998).

¶ 18 Appellant's due process claim is not, strictly speaking, an ex post facto claim. That phrase is a term of art applying to statutes passed by legislatures. Marks v. United States, 430 U.S. 188, 191, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977).

¶ 19 Some judicial enlargements of a criminal statute do, however, operate, like ex post facto laws. The United States Supreme Court has held that:

[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex

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