Com. v. Whitney, B. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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