Commonwealth v. Rose
| Decision Date | 18 November 2015 |
| Docket Number | No. 26 WAP 2014,26 WAP 2014 |
| Citation | 127 A.3d 794 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant v. Stevenson Leon ROSE, Appellee. |
| Court | Pennsylvania Supreme Court |
Keaton Carr, Esq., Daniel Edward Fitzsimmons, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, for Commonwealth of Pennsylvania.
William C. Kaczynski, Esq., for Stevenson Leon Rose.
OPINION
The issue in this discretionary appeal is whether a defendant convicted of third-degree murder must be sentenced under the sentencing statute in effect at the time the defendant committed the ultimately deadly assault upon the victim, or whether the defendant is subject to an enhanced penalty pursuant to a subsequently-enacted sentencing statute which was in effect at the time of the victim's death 14 years later. As we conclude that imposition of a sentence in excess of that prescribed by statute at the time the defendant committed the deadly assault violates and is prohibited by the Ex Post Facto Clause of the United States Constitution, we are constrained to affirm the order of the Superior Court vacating Appellee Stevenson Leon Rose's sentence and remanding for resentencing.1
The facts of this case are particularly heinous. On July 13, 1993, Appellee Rose 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 Rose and Sadik, and police recovered bloody clothing and shoes from Rose's apartment later that day. Rose provided 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 Rose of attempted murder,2 aggravated assault,3 involuntary deviate sexual intercourse,4 recklessly endangering another person,5 and criminal conspiracy,6 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, 445 Pa.Super. 630, 664 A.2d 1059 (1995), appeal denied, 543 Pa. 712, 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 Rose with criminal homicide.7 Rejecting his diminished capacity defense,8 the jury convicted Rose of third-degree murder.9 At sentencing, Rose 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 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, Rose's crime of homicide was not "complete" until that time, and, therefore, Rose 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 Rose to 20 to 40 years incarceration. Rose was credited with approximately 17 ½ years of time served for his prior conviction.
Rose 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 of the Superior Court, in an opinion written by Judge Mary Jane Bowes, recognized that "[n]either the framers nor the ratifiers of the Pennsylvania or federal constitution contemplated application of the ex post facto law to the factual situation herein," and, further, that no Pennsylvania case has yet addressed the issue. Commonwealth v. Rose, 81 A.3d 123, 129 (Pa.Super.2013) (en banc ).10 However, the court found instructive the decisions of other states that have addressed analogous issues, see infra, and reasoned that, "[a]lthough the crime of third degree murder was not consummated until the victim died, all of the criminal acts causing the victim's death were completed" prior to the enactment of Section 1102(d), which increased the penalty for the acts that caused the victim's death. Id. at 136. Accordingly, the en banc court concluded Rose's sentence of 20 to 40 years violated the Ex Post Facto Clauses of both the United States and Pennsylvania Constitutions. Then–Judge, now-President Judge, Susan P. Gantman filed a dissenting opinion, which was joined by Judge Cheryl Allen. Judge Gantman opined that, because a murder is "committed only when the victim of the assault dies," the trial court properly sentenced Rose for third-degree murder under the sentencing statute in effect at the time of the victim's death in 2007. Id. at 136–37. 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 Rose 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.
The Ex Post Facto Clause of the United States Constitution is contained in Article 1, § 10, which provides: "No State shall ... pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts...." U.S. Const. art. I, § 10.11 The definition of an ex post facto law in the context of American law was first set forth more than two centuries ago in Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), wherein Justice Chase offered the following description of the term:
1st. Every law that makes an action, done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2nd. Every law that aggravates a crime, or makes it greater than it was, when committed. 3rd. 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.
3 U.S. (3 Dall.) 386, 390 (1798). As noted by the lower courts in the instant case, Rose's sentence implicates the third Calder category, in that it arguably increases the punishment for his crime of third-degree murder at the time of the victim's death from the punishment that was applicable at the time he committed the acts which led to the victim's death.
The phrase " ‘ex post facto law’ was a term of art with an established meaning at the time of the framing." Peugh v. United States, ––– U.S. ––––, 133 S.Ct. 2072, 2081, 186 L.Ed.2d 84 (2013) (quoting Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990) ).12 The high Court has observed that, "[b]uilding on Justice Chase's formulation of what constitutes an ‘ex post facto Law,’ our cases ‘have not attempted to precisely delimit the scope of this Latin phrase, but have instead given it substance by an accretion of case law.’ " Id. (quoting Dobbert v. Florida, 432 U.S. 282, 292, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977) ).
482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) , disapproved in part on other grounds Calif. Dep't of Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).13
In addition, the ex post facto prohibition "upholds the separation of powers by confining the legislature to penal decisions with prospective effect and the judiciary and executive to applications of existing penal law." Weaver, 450 U.S. at 29 n. 10, 101 S.Ct. 960. In discussing the protections afforded by the Ex Post Facto Clause, one scholar observed an additional asserted basis for the protection: "namely, that it ‘assures the legislature can make recourse to stigmatizing penalties of the criminal law only when its core purpose of deterrence could thereby possibly be served.’ " Wayne R. LaFave, Criminal Law 116 (5th ed.2010) (hereinafter "LaFave") (citations omitted).
The ex post facto prohibition is concerned with legislative acts,...
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