Com. v. Rosario, K. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH ANTHONY ROSARIO :
:
Appellant : No. 931 WDA 2022
Appeal from the Judgment of Sentence Entered March 25, 2022
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0002611-2017
BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JUNE 21, 2023
Keith Anthony Rosario (Rosario) appeals from the March 25, 2022
judgment of sentence imposed by the Court of Common Pleas of Washington
County (trial court) following this Court’s remand for resentencing on his
convictions for attempted homicide, two counts of aggravated assault, two
counts of kidnapping and conspiracy to commit homicide, aggravated assault
and kidnapping.1 The trial court resentenced him to an aggregate of 25 to 50
years’ imprisonment followed by one year of re-entry supervision, a reduction
from his original sentence of 35.5 to 90 years’ imprisonment. Rosario
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 901, 2501, 2702, 2901 & 903.
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challenges the discretionary aspects and legality of his sentence. We reverse
and remand for resentencing.
I.
We recounted the factual and procedural history of this matter in detail
in Rosario’s direct appeal. See Commonwealth v. Rosario, 248 A.3d 599,
604-07, 612 (Pa. Super. 2021). Briefly, in September 2017, Rosario and two
other individuals assaulted the victim, Marcus Stancik, as he was walking in
an alley. They threw him into their van and drove him to a different location,
where Rosario removed him from the vehicle and shot him at the base of his
skull near his neck. He attempted to fire a second shot, but his gun jammed,
preventing him from doing so. Stancik survived the gunshot wound and
identified Rosario as one of his assailants to law enforcement.
Following a jury trial, Rosario was convicted of the above-mentioned
offenses. On appeal, he argued in relevant part that his sentences for
attempted homicide and conspiracy to commit aggravated assault were illegal,
as the Sentencing Code prohibits multiple convictions for inchoate crimes
“designed to commit or to culminate in the commission of the same crime.”
Id. at 616-19 (citing 18 Pa.C.S. § 906) (emphasis omitted). He additionally
argued that his sentences for two counts of kidnapping under 18 Pa.C.S.
§ 2901(a)(2) and (3) violated double jeopardy principles because they arose
from the same criminal act. Id. at 619. We agreed and vacated the sentences
for conspiracy and kidnapping. Id. at 619, 621 (citing Commonwealth v.
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Lopez, 663 A.2d 746 (Pa. Super. 1995)). Because our disposition upset the
trial court’s sentencing scheme, we remanded the matter for resentencing.
At the resentencing hearing, the parties stipulated to the entry of the
presentence investigation report (PSI) prepared prior to Rosario’s initial
sentencing hearing in 2019. The report included details of Rosario’s prior
convictions, his family background and educational and employment history,
character statements provided by family members and a victim impact
statement. The trial court also considered excerpts of the transcript of the
original sentencing hearing of statements by Rosario’s mother and sister.
Rosario read a prepared statement on his behalf. While not admitting
guilt, he expressed remorse to the individuals affected by the crime,
particularly his own children. He regretted that his children would grow up
without a father and said that he was working to be a productive member of
society. He was employed as a janitor in state prison and was waiting to begin
a barber shop training program. He was teaching himself Italian, learning
about the law and writing a book. He said that he turned down a favorable
plea deal for 11 to 22 years of incarceration and believed he was penalized for
going to trial when he was sentenced to 35.5 to 90 years of incarceration. He
said that he had no violent history in prison and was currently classified as a
minimum security risk. He completed classes such as thinking for a change,
violence prevention and batterers’ intervention and was on the waiting list for
additional classes such as money smart, seeking out safety, flaggers and
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building and planning. He believed that he was capable of rehabilitation and
successfully reentering society.
After receiving this evidence, the trial court resentenced Rosario to an
aggregate of 25 to 50 years of incarceration followed by one ear of reentry
supervision. For ease of reference, the previous and current sentencing
schemes are as follows:
Charge June 3, 2019 March 25, 2022
Sentence Sentence
Attempted homicide 120 to 240 months 120 to 240 months
Aggravated assault, Merged Merged
(a)(1)
Aggravated assault 36 to 120 months, 60 to 120 months,
with a deadly weapon, consecutive consecutive
(a)(4)
Kidnapping, (a)(2) 90 to 240 months, 120 to 240 months,
consecutive consecutive
Kidnapping, (a)(3) 90 to 240 months, Merged
consecutive
Conspiracy 90 to 240 months, Merged
consecutive
Aggregate 35.5 to 90 years 25 to 50 years
In resentencing Rosario to the statutory maximum on three of the
counts, the trial court explained that it found several aggravating factors
necessitating the sentence. First, Rosario had been paroled for a different
firearms offense approximately four months prior to the instant offenses and
he had also been on probation at the time for two prior drug offenses. The
trial court considered Rosario’s supervised release at the time of his crimes to
be a separate aggravating factor from his prior record score and found that
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prior attempts at rehabilitating him had failed. Second, Rosario had involved
a juvenile with whom he had a bond “much like father and son” in the crimes.
N.T., 3/25/22, at 28. Third, the trial court stated that Rosario lacked remorse
and had failed to take responsibility for his actions. He did not specifically
express remorse to the victim during his allocution and had denied his guilt.
Finally, the trial court found that the crime had a profound effect on the victim,
who suffered medical issues stemming from the attack and still had the bullet
lodged in his face at the time of trial. Based on those reasons, it concluded
that the statutory maximum sentences were appropriate. Notably, its
reasoning for imposing the sentences following remand were materially
identical to the reasoning it provided in support of the original sentence.
Compare N.T., 6/3/19, at 29-31, with N.T., 3/25/22, at 27-29.
Rosario timely filed a post-sentence motion, which the trial court denied
after argument. He timely appealed and he and the trial court have complied
with Pa. R.A.P. 1925.
II.
We begin with Rosario’s challenges to the discretionary aspects of his
sentence.2 He contends that the trial court abused its discretion because his
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2
Our standard of review is well-settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
(Footnote Continued Next Page)
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sentences for aggravated assault with a deadly weapon and kidnapping
exceeded the aggravated range of the sentencing guidelines and were
unreasonable. He further contends that these sentences were excessive and
that the trial court imposed maximum sentences without considering
mitigating circumstances or his individual character.
A.
Before considering the merits of Rosario’s claim, we must consider
whether he has properly invoked this Court’s jurisdiction. Commonwealth
v. Conte, 198 A.3d 1169, 1173 (Pa. Super. 2018) (citation omitted). A
defendant must preserve his claims at the time of sentencing or in a post-
sentence motion, file a timely notice of appeal, and include a statement of
reasons for allowance of appeal pursuant to Pa. R.A.P. 2119(f) in his brief and
raise a substantial question for review. Id. Rosario has complied with the
first three requirements. Accordingly, we proceed to consider whether he has
raised a substantial question.
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of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias[,] or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Wallace, 244 A.3d 1261, 1278–79 (Pa. Super. 2021)
(citation omitted).
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“A substantial question exists only when the appellant advances 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.”
Commonwealth v. Clarke, 70 A.3d 1281, 1286–87 (Pa. Super. 2013)
(citation omitted). We have previously held that a defendant presents a
substantial question when he alleges that the trial court exceeded the
aggravated range of the sentencing guidelines without justification. See
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008).
Moreover, a defendant presents a substantial question when he or she alleges
that the court imposed an aggravated range sentence without considering
mitigating circumstances. See Commonwealth v. Bowen, 55 A.3d 1254,
1263 (Pa. Super. 2012) (citation omitted); Commonwealth v. Dodge, 77
A.3d 1263, 1270-71 (Pa. Super. 2013) (finding a substantial question for our
review when a defendant alleged that the court imposed a manifestly
excessive sentence without considering mitigating evidence). Rosario has
alleged both of these abuses of discretion in his 2119(f) statement. 3 As a
result, we find that he has raised a substantial question and proceed to the
merits of his claim.
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3 These claims are not mere challenges to the consecutive nature of the
sentences, as argued by the Commonwealth. See Commonwealth’s Brief at
9-10.
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B.
When imposing a sentence, a trial court must ensure that the sentence
is “consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). “The court is
not required to parrot the words of the Sentencing Code, stating every factor
that must be considered under Section 9721(b). However, the record as a
whole must reflect due consideration by the court of the statutory
considerations [enunciated in that section].” Commonwealth v.
Coulverson, 34 A.3d 135, 145 (Pa. Super. 2011) (citations omitted). A
sentencing court is not required to impose the “minimum possible
confinement,” but rather must craft an individualized sentence after
considering “the particular circumstances of the offense and the character of
the defendant.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super.
2010) (citations omitted).
When the court imposes a sentence outside of the sentencing guidelines,
it is required to provide a statement of reasons for the deviation.4
Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007). While the
guidelines are advisory and not binding on the sentencing court, it must
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4 This requirement can be satisfied by placing the statement of reasons on the
record in open court and in the defendant’s presence. See Commonwealth
v. Bowen, 55 A.3d 1254, 1263-64 (Pa. Super. 2012).
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nevertheless consider the guidelines as one factor in sentencing and provide
a reasoned justification for departing from them when it chooses to do so. Id.
at 964; Commonwealth v. Sessoms, 532 A.2d 775, 781 (Pa. Super. 1987)
(“The guidelines must be ‘considered’ and, to ensure that such consideration
is more than mere fluff, the court must explain its reasons for departure from
them.”). Moreover,
the inherent seriousness of the offense is taken into consideration
in the guideline recommendations. If the sentencing court
imposes a sentence that deviates significantly from the guideline
recommendations, it must demonstrate that the case under
consideration is compellingly different from the “typical” case of
the same offense or point to other sentencing factors that are
germane to the case before the court. These factors include the
character of the defendant or the defendant’s criminal history.
Commonwealth v. Robertson, 874 A.2d 1200, 1213 (Pa. Super. 2005)
(citations omitted). “Where the sentencing court had the benefit of a [PSI],
we can assume the sentencing court was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” Commonwealth v. Hill, 210 A.3d 1104,
1117 (Pa. Super. 2019) (internal quotations & citation omitted).
Pursuant to 42 Pa.C.S. § 9781(c)(3), when the sentencing court has
imposed a sentence outside the guidelines, we must vacate and remand if
“the sentence is unreasonable,” otherwise, we must affirm. In Walls, our
Supreme Court noted that reasonableness is not defined in the statute and
“commonly connotes a decision that is ‘irrational’ or ‘not guided by sound
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judgment.’” Walls, supra, at 963. Reasonableness is assessed in two distinct
ways. First, 42 Pa.C.S. § 9781(d) states that we shall consider the following:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
Id. “A sentence may be found unreasonable if it fails to properly account for
these four statutory factors . . . [or] if the sentence was imposed without
express or implicit consideration by the sentencing court of the general
standards applicable to sentencing.” Commonwealth v. Durazo, 210 A.3d
316, 321 (Pa. Super. 2019) (citation omitted, bracketing in original).
Here, Rosario challenges his sentences for aggravated assault with a
deadly weapon and kidnapping. Based on his prior record score (PRS) of four
and the offense gravity score (OGS) of eight, the standard range of the
guidelines for aggravated assault with a deadly weapon was a minimum of 21
to 27 months’ incarceration, with an aggravated range of 36 months’
incarceration. Rosario was sentenced to the statutory maximum of 60 to 120
months’ incarceration on that count. Kidnapping carried an OGS of ten,
resulting in a standard range of a minimum of 48 to 60 months’ incarceration,
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with an aggravated range of 72 months’ incarceration.5 Rosario was
sentenced to the statutory maximum of 120 to 240 months’ incarceration on
that count. Accordingly, his sentences on these two counts were above the
aggravated range of the guidelines and we must assess whether they were
“reasonable.” 42 Pa.C.S. § 9781(c)(3).
C.
Preliminarily, the Commonwealth contends that this Court is bound by
the law of the case established in Rosario’s prior appeal when determining
whether his new sentence is reasonable. In assessing the discretionary
aspects of his prior sentence, we explained:
We also agree the imposition of consecutive sentences did not
result in an “excessive aggregate sentence.” [Rosario], while on
supervised release, kidnapped Stancik, beat him both with his fists
and with the gun, threatened him, and forced him to a remote
area. He dragged him from the car, shot him execution-style in
the back of his head, and when the first shot was not fatal,
attempted a second shot, failing only because the gun jammed.
We find the aggregate sentence of 35½ to 90 years is not grossly
disparate to [Rosario’s] conduct and does not “viscerally appear
as patently ‘unreasonable.’” Commonwealth v. Gonzalez–
DeJesus, 994 A.2d 595, 599 (Pa. Super. 2010).
Rosario, supra, at 614-15. The Commonwealth argues that because we
concluded that a 35.5 to 90 year sentence was not unreasonable, we are
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5Though the trial court applied the deadly weapon used enhancement to this
count at Rosario’s initial sentencing, it declined to do so on resentencing. See
N.T., 3/25/22, at 23-24.
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bound by that assessment in evaluating Rosario’s reduced 25 to 50 year
sentence.
“The law of the case doctrine refers to a family of rules which embody
the concept that a court involved in the later phases of a litigated matter
should not reopen questions decided by another judge of that same court or
by a higher court in the earlier phases of the matter.” Commonwealth v.
McCandless, 880 A.2d 1262, 1267 (Pa. Super. 2005) (en banc) (citation
omitted). The doctrine serves judicial economy, protects the expectations of
the parties, ensures consistency and uniformity, streamlines cases and
ensures that litigation can be brought to an end. Id. However, as a rule
intended to promote public policy concerns, it is not absolute. “Hence, the
law of the case doctrine might not apply under exceptional circumstances,
including: an intervening change in the law, a substantial change in the facts,
or if the prior ruling was ‘clearly erroneous’ and ‘would create a manifest
injustice if followed.’” Id. at 1268 (citation omitted).
When this Court upsets a trial court’s sentencing scheme, we remand
for resentencing and the original sentence is rendered a legal nullity.
Commonwealth v. Ali, 197 A.3d 742, 759 (Pa. Super. 2018). Thus, on
resentencing, a trial court must “start ‘afresh’ and re-evaluate the sentencing
factors.” Id. This reassessment includes consideration of any evidence that
was not available at the previous sentencing hearing, including evidence of
the defendant’s conduct or performance on supervision in the intervening
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time. Commonwealth v. Jones, 640 A.2d 914, 919-20 (Pa. Super. 1994).
Accordingly, on remand for resentencing, a trial court is not limited by and
should not solely consider the record of the original sentencing hearing.
Instead, it must consider all relevant factors outlined in the Sentencing Code
in light of the defendant’s background and the circumstances of the offense in
order to craft an appropriate sentence. See Commonwealth v. Luketic,
162 A.3d 1149, 1160-61 (Pa. Super. 2017); Commonwealth v. Finnecy,
135 A.3d 1028, 1032 (Pa. Super. 2016). As discussed in Part II.B, supra, the
trial court is not bound on remand by its prior sentencing decisions, but rather
must reconsider all of the sentencing factors in light of the newly-developed
record and adequately articulate the reasoning behind the sentence it chooses
to impose.
The fact-specific nature of this inquiry undermines the Commonwealth’s
argument that our review of the discretionary aspects of a sentence is bound
by the law of the case that derived from an earlier sentencing hearing. On
remand for resentencing, the trial court must start afresh in its evaluation of
the sentencing factors, see Jones, supra, and our review of the trial court’s
exercise of discretion is based on that fresh record, see Wallace, supra.
Simply put, what is “reasonable” on one sentencing record may not be
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reasonable on a subsequent one.6 Accordingly, we conclude that the law of
the case does not require this Court to adhere to a prior panel’s assessment
of Rosario’s sentence based on a different sentencing hearing. See also
Pepper v. U.S., 562 U.S. 476, 506-07 (2011) (holding that the law of the
case doctrine does not bind subsequent sentencing court when case is
remanded for a de novo sentencing hearing).
D.
Rosario’s challenges to the discretionary aspects of his sentence are
related and we address them together. First, he contends that his sentences
for aggravated assault with a deadly weapon and kidnapping were
unreasonable because no new information was adduced at the resentencing
hearing to justify the increase above the aggravated range of the guidelines.
He identifies two changes that occurred between the two sentencing hearings:
the trial court did not apply the deadly weapon enhancement to the kidnapping
charge, and Rosario presented new information regarding his time in
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6 Additionally, Rosario was previously sentenced within the aggravated range
of the sentencing guidelines on the relevant counts, so we reviewed his
sentence to determine whether it was “clearly unreasonable.” 42 Pa.C.S.
§ 9781(c)(2). The aggravated range for kidnapping was based on the
application of the deadly weapon enhancement, which the trial court did not
apply on resentencing. In the instant appeal, Rosario was sentenced outside
the guidelines entirely and we review to determine whether the sentence was
“unreasonable.” 42 Pa.C.S. § 9781(c)(3). Because we must apply a different
legal standard to review the instant sentence, in addition to a different factual
record, the law of the case doctrine does not bind our analysis.
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incarceration through his allocution. Without more, he contends that the
increase from the aggravated range to outside the guidelines entirely was
unreasonable. Second, he argues that the trial court failed to consider any
mitigating circumstances and based his statutory maximum sentences purely
on the nature of the crimes. He acknowledges that the trial court reviewed a
PSI, victim impact statement and character statements from Rosario’s family
members, but argues that the trial court did not consider his efforts at
rehabilitation during his incarceration.
The record reveals that the trial court considered the PSI that was
prepared prior to Rosario’s first sentencing hearing, along with written
character statements that had been provided at that time and testimony from
Rosario’s family members. While Stancik did not appear at resentencing, he
provided a victim impact statement. Finally, Rosario exercised his right to
allocution to express remorse to his family and explain the steps he had taken
toward rehabilitation. After receiving this evidence, the trial court provided
the following reasoning for its aggregate 25 to 50-year sentence:
The Court notes that it has sentenced the Defendant to the
statutory maximum allowed by law. The Court has considered the
Pennsylvania sentencing guidelines but notes that the guidelines
are advisory only. The Court does not believe that a guideline
sentence is appropriate, given the facts and circumstances of this
particular case. There are several aggravating factors the Court
has considered in imposing sentence outside the sentencing
guideline recommendations.
First and foremost, at the time of this offense, Defendant was on
parole for a firearms violation. He had been paroled less than four
months at the time of this—prior to this incident and was under
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the supervision of the Pennsylvania Board of Probation and Parole
at the time he committed this offense. He was also subject to a
consecutive probationary sentence on two prior drug offenses.
While the guidelines include the prior record conviction score, they
do not take into account that the Defendant was on supervised
release at the time of the new charges.
It is abundantly clear to me that the Court—that prior attempts to
rehabilitate the Defendant have failed. It is also noteworthy that
the Defendant was on parole for a prior firearms offense when he
committed this offense with a firearm.
Further, the Court is troubled by Defendant involving a juvenile,
Tyree King, in the criminal episode. Both the Defendant and Mr.
King testified at the jury trial that the two of them had a special
bond much like father and son. Yet Defendant exposed him to the
violent assault on Mr. Stancik, and even encouraged him to
remain silent after the commission of the assault.
The Court also considers Defendant’s lack of remorse and his
failure to accept any responsibility for his actions as an
aggravating factor. From the outset and to this day, Defendant
has not accepted any responsibility or expressed a scintilla of
remorse toward the victim. His only mention of the word remorse
in his allocution today was remorse toward his children. Further,
he stated at the start of his allocution that it was, “[n]ot an
admission of guilt.”
Finally, the Court considers the profound impact this assault had
on the victim, Marcus Stancik. At the jury trial, the Court had the
benefit of hearing extensive medical testimony from the treating
emergency room physician. He explained the injuries which
resulted from Mr. Stancik being shot in the back of his head and
even provided X-rays showing the bullet lodged in his skull.
The Court also heard directly from the victim, Mr. Stancik, the
horrifying account of his abduction and assault. His trial testimony
demonstrated the extreme mental and physical cruelty inflicted on
him by the Defendant. It’s truly a miracle that Mr. Stancik
survived being shot in the back of his head at close range and that
he lived to tell us about it.
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Although Mr. Stancik somehow survived this attempted execution,
the bullet remains lodged in his face, a lasting reminder of the
atrocities that were committed on September 5, 2017.
For all of these reasons, the Court finds that a guideline sentence
would be inappropriate in this case and that the statutory
maximum sentence is not only warranted, but it is necessary, as
Defendant clearly poses a grave danger to society.
N.T., 3/25/22, at 27-29. As noted supra, this reasoning mirrored—and is in
fact, almost verbatim—the reasoning the trial court provided for the sentence
it imposed initially in 2019. Compare N.T., 6/3/19, at 29-31, with id.
However, in 2019, the trial court sentenced Rosario within the aggravated
range of the guidelines for the counts of aggravated assault with a deadly
weapon and kidnapping.
We conclude that the trial court abused its discretion in imposing
sentences that were substantially outside of the aggravated range of the
guidelines on these two counts. The statutory maximum sentences and the
trial court’s rationale in support were unreasonable in several respects under
Section 9781(d). As Rosario argues, the only new information the trial court
had before it in resentencing was Rosario’s allocution, which did not support
an increase in the sentences compared to his initial sentencing in 2019.
The first two factors under Section 9781(d), “[t]he nature and
circumstances of the offense and the history and characteristics of the
defendant” and “[t]he opportunity of the sentencing court to observe the
defendant, including any presentence investigation,” are related. 42 Pa.C.S.
§ 9781(d)(1)-(2). Here, the trial court relied on the presentence investigation
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that was prepared prior to Rosario’s initial sentencing in 2019 and Rosario
offered supplementary information through his allocution. He explained that
he was employed as a janitor and was waiting to begin cosmetology school.
He was considered a minimum security risk in prison and did not have any
history of violence while incarcerated. He had completed numerous classes
that were recommended by prison officials, including classes in violence
prevention and batterers’ intervention, and was on the waiting list for
additional optional classes focused on career and life skills. He expressed
remorse to his family and a desire to become a productive member of society
upon release. His statement represented a marked departure from the
statements he provided in 2019 in his original PSI, which focused on asserting
his innocence and downplaying any prior incidents of violence.
While we do not discount the trial court’s opportunity to observe Rosario
at both sentencing proceedings, the reasoning it placed on the record at
resentencing evidenced a singular focus on Rosario’s statement of remorse
and the circumstances of the offenses to the exclusion of any mitigating
evidence. The trial court was entitled to consider Rosario’s lack of remorse
toward the victim as a factor in sentencing. Nonetheless, it was required to
consider the evidence Rosario presented regarding his attempts at
rehabilitation in the time since his initial sentencing. Here, the trial court did
not address that evidence in imposing sentences that were substantially
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higher than the ones it imposed prior to Rosario undertaking those
rehabilitative efforts.
Next, we consider “[t]he findings upon which the sentence was based.”
42 Pa.C.S. § 9781(d)(3). As we have already observed, the trial court’s
rationale for imposing the statutory maximums following resentencing was
substantially identical to the reasoning it provided in support of Rosario’s 2019
sentence. However, a trial court on resentencing may not mechanically
reimpose its earlier sentence without considering any change in circumstances
that may have arisen in the intervening years. Jones, supra, at 920 (citation
omitted) (“Reimposing a judgment of sentence should not be a mechanical
exercise.”). The trial court relied on the same findings to support the 2022
sentence and 2019 sentence, but made no effort to explain why those findings
supported a sentence substantially above the guidelines on resentencing when
it initially found an aggravated range sentence to be appropriate. This was
unreasonable.
Finally, we consider “[t]he guidelines promulgated by the commission”
in assessing the reasonableness of a sentence. 42 Pa.C.S. § 9781(d)(4). In
this respect, we reiterate that the guidelines already take into account the
inherent egregiousness of a particular offense. Robertson, supra, at 1213.
Thus, in sentencing outside of the guidelines, a trial court “must demonstrate
that the case under consideration is compellingly different from the ‘typical’
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case of the same offense or point to other sentencing factors that are germane
to the case before the court.” Id.Here, the minimum sentence imposed for aggravated assault with a
deadly weapon was 24 months above the aggravated range of the guidelines.
The minimum sentence for kidnapping was 48 months above the aggravated
range of the guidelines, which the trial court calculated without the deadly
weapon enhancement. While the trial court identified several “aggravating
factors” to justify its sentence, it did not acknowledge any mitigating
circumstances that emerged since the prior sentencing hearing or articulate
why those factors supported a departure of six years from the aggravated
range of the guidelines, particularly when it had previously found based on
the same information that aggravated range sentences were appropriate.
Under these circumstances, where the trial court relied on nearly identical
rationale to impose a vastly increased sentence, we cannot conclude that it
was reasonable for the trial court to exceed the guidelines.
Accordingly, we conclude that the trial court abused its discretion in
resentencing Rosario to the statutory maximum sentences on the counts of
aggravated assault and kidnapping. As our conclusion upsets the sentencing
scheme, we vacate the sentence in toto and remand to the trial court to
resentence Rosario and to provide adequate reasons for the length of sentence
it imposes.
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III.
Next, we consider whether Rosario’s sentence is illegal.7 He argues that
the trial court increased his sentences for aggravated assault with a deadly
weapon and kidnapping without any objective information justifying the
increase. Despite the decrease in his aggregate sentence, he contends that
the trial court cannot overcome the presumption of vindictiveness following
his successful first appeal and, as a result, his increased sentences at those
counts violate his right to due process under the federal and state
constitutions. In response to the trial court’s reasoning that it is permitted to
attempt to effectuate its original sentencing scheme on remand for
resentencing, he argues that it offends due process to allow a court to
reimpose an aggregate sentence that was deemed illegal. Additionally, he
argues that the count of aggravated assault with a deadly weapon should have
merged for sentencing purposes with the count of attempted homicide and
that any additional sentence for aggravated assault is illegal.
A.
In North Carolina v. Pearce, 395 U.S. 711 (1969), overruled in part
by Alabama v. Smith, 490 U.S. 794 (1989),8 the United States Supreme
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7 Whether a sentence is illegal is a question of law and our scope of review is
plenary. Commonwealth v. Maxwell, 932 A.2d 941, 942 (Pa. Super. 2007).
8In Alabama v. Smith, 490 U.S. 794 (1989), the United States Supreme
Court held that the presumption of vindictiveness in resentencing does not
(Footnote Continued Next Page)
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Court held that “it would be a flagrant violation of the Fourteenth Amendment
for a state trial court to follow an announced practice of imposing a heavier
sentence upon every reconvicted defendant for the explicit purpose of
punishing the defendant for his having succeeded in getting his original
conviction set aside.” Id. at 723-24 (emphasis added).
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.
Id. at 726. The presumption of vindictiveness and prohibition thereon
“emanates from the protections safeguarded to individuals by the Due Process
Clause.” Commonwealth v. Prinkey, 277 A.3d 554, 565 (Pa. 2022).
Rosario points to Commonwealth v. Pearson, 303 A.2d 481 (Pa.
1973), in support of his vindictiveness claim. There, the defendant was
convicted of aggravated robbery on eleven separate indictments and received
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arise when the initial sentence was based on a guilty plea and the second
sentence followed a trial after the guilty plea was vacated. Id. at 795. It did
not disturb Pearce’s general holding that a presumption of vindictiveness
arises when a sentence is increased following a successful appeal without
objective information justifying the increase. Id. at 799. Smith is consistent
with Pearce’s pronouncement that an increased sentence should be based on
new information appearing on the record following the initial proceedings.
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sentences of five to ten years’ imprisonment, consecutively, on eight of the
cases. He received suspended sentences on the remaining three. He was
subsequently granted a new trial after a direct appeal. He was retried on six
of the indictments, found guilty on five, and was sentenced to consecutive
terms of two to four years’ imprisonment on each of the five cases, including
one in which he had previously received a suspended sentence. Id. at 482.
On appeal, the defendant argued that his sentence of imprisonment on
the indictment for which he had previously received a suspended sentence
violated Pearce. Our Supreme Court agreed, holding that no “good cause,”
which is “limited to events occurring subsequent to the first trial,” appeared
of record to justify the increased sentence. Id. at 485. Notably, the
Commonwealth argued in Pearson that the sentence was not vindictive
because the aggregate sentence following the second trial was lower than that
imposed after the first. Our Supreme Court summarily rejected that argument
and held that “[t]he sentence imposed on each indictment is controlling.” Id.
In Commonwealth v. Barnes, 167 A.3d 110 (Pa. Super. 2017) (en
banc), a panel of this Court sitting en banc addressed an analogous
vindictiveness claim. There, the defendant was convicted of attempted
homicide, aggravated assault, kidnapping and recklessly endangering another
person. He was sentenced to 20 to 40 years of incarceration for attempted
homicide and consecutive terms of 2.5 to five years of incarceration for
aggravated assault and kidnapping. On appeal, this Court determined that
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the aggravated assault charge merged with the attempted homicide charge
and remanded for resentencing. On remand, the trial court sentenced the
defendant to 20 to 40 years of incarceration for attempted homicide and a
consecutive term of five to ten years of incarceration for kidnapping, resulting
in the same aggregate sentence as originally imposed. Id. at 115.
On appeal, the defendant argued that his increased sentence on the
count of kidnapping was the result of judicial vindictiveness. We rejected this
piecemeal approach to assessing vindictiveness and held that the aggregate
sentence is controlling for evaluating such a claim. Id. at 124-25. “Indeed,
a trial court properly may resentence a defendant to the same aggregate
sentence to preserve its original sentencing scheme.” Id. at 124 (emphasis
in original). Thus, while the sentence for kidnapping had increased, the
aggregate sentence remained the same and the defendant was not entitled to
relief under Pearce. Id. at 125.
Barnes is controlling here. Unlike the defendant in Barnes, Rosario
benefited on resentencing by over ten years—his second sentence was
reduced in aggregate from 35.5 to 90 years’ incarceration to 25 to 50 years’
incarceration. It is of no moment that the individual sentences imposed for
aggravated assault with a deadly weapon and kidnapping were increased, as
the overall sentence was substantially reduced. The trial court explained in
its opinion that it intended to preserve the initial sentencing scheme,
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consistent with Barnes. Trial Court Opinion, 9/30/22, at 13-15. This is
sufficient to rebut the presumption of vindictiveness and no relief is due.
Rosario’s argument based on Pearson is squarely foreclosed by
Barnes, which was also decided on due process grounds. In Pearson, the
defendant was convicted on different indictments for different criminal
episodes and his sentence for one of those indictments was unjustifiably
increased following his direct appeal. Here, much like in Barnes, Rosario was
sentenced for multiple counts occurring in the same indictment for the same
criminal episode. Regardless of the individual sentences imposed on the
counts of aggravated assault with a deadly weapon and kidnapping, his overall
sentence was reduced substantially following his successful appeal. Under
Barnes, no presumption of vindictiveness arises in this circumstance. Rosario
is due no relief on this claim.
B.
Finally, we turn to whether the counts of attempted homicide and
aggravated assault with a deadly weapon merge for sentencing purposes.9
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9 The Commonwealth complains in its brief that litigants should not be
permitted to raise legality of sentence claims for the first time on appeal and
“urge[s] this Court and the appellate courts of this Commonwealth to
reconsider the jurisprudence of this procedural morass.” Commonwealth’s
Brief at 23-24 n.3. However, it does not dispute that our Supreme Court has
repeatedly held that merger claims implicate the legality of a sentence and
are not waivable. See, e.g., Commonwealth v. Edwards, 256 A.3d 1130,
1136 (Pa. 2021). It is beyond cavil that this Court is bound by our Supreme
Court’s pronouncements. See Commonwealth v. Volk, 138 A.3d 659, 663
(Footnote Continued Next Page)
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Offenses merge when “the crimes arise from a single criminal act and all of
the statutory elements of one offense are included in the statutory elements
of the other offense.” 42 Pa.C.S. § 9765. Here, it is undisputed that both
offenses arose from Rosario’s single criminal act of firing a gun into the back
of the victim’s head. Accordingly, our analysis is limited to whether all of the
elements of attempted homicide are included in the elements of aggravated
assault with a deadly weapon or vice versa.
“A person commits an attempt when, with intent to commit a specific
crime, he does any act which constitutes a substantial step toward the
commission of that crime.” 18 Pa.C.S. § 901. First-degree murder is a
criminal homicide “committed by an intentional killing.” 18 Pa.C.S. § 2502(a).
“Thus, a conviction for attempted murder requires that the Commonwealth
prove beyond a reasonable doubt that the defendant had the specific intent to
kill and took a substantial step toward that goal.” Commonwealth v.
Predmore, 199 A.3d 925, 929 (Pa. Super. 2018) (en banc) (citation omitted).
As relevant here, a person is guilty of aggravated assault under subsection
2702(a)(4) if he “attempts to cause or intentionally or knowingly causes bodily
injury to another with a deadly weapon.” 18 Pa.C.S. § 2702(a)(4). The
Crimes Code defines “bodily injury” as “[i]mpairment of physical condition or
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(Pa. Super. 2016) (citing Commonwealth v. Friday, 90 A.2d 856, 859 (Pa.
Super. 1952)).
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substantial pain” and includes “[a]ny firearm” within the definition of “deadly
weapon.” 18 Pa.C.S. § 2301.
In Commonwealth v. Edwards, 256 A.3d 1130 (Pa. 2021), our
Supreme Court explained that merger requires an analysis of the elements of
the statute, not the specific facts of the case at issue. See id. at 1137-38.
There, the Court held that aggravated assault and recklessly endangering
another person (REAP) did not merge, even when arising out of a single act,
when not all statutory alternatives for the former crime were subsumed by
the elements of the latter. Id. at 1139. The crime of aggravated assault
under subsection 2702(a)(1) prohibited both actually causing serious bodily
injury and attempting to cause serious bodily injury, while REAP required a
showing of actual danger of death or serious bodily injury. Id. at 1135. The
defendant was convicted for a single act of actually inflicting serious bodily
injury on the victim. Nevertheless, our Supreme Court held that the charges
did not merge for sentencing purposes because it is possible to attempt to put
someone in danger of serious bodily injury under subsection 2702(a)(1)
without actually doing so under the REAP statute. Id. at 1138 (citing
Commonwealth v. Cianci, 130 A.3d 780, 782 (Pa. Super. 2015)).
While we have not previously addressed whether attempted homicide
merges with aggravated assault with a deadly weapon, we have analyzed
other subsections of the aggravated assault statute for merger with attempted
homicide. We have held that aggravated assault under subsection 2702(a)(1)
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is a lesser included offense of attempted homicide. See Barnes, supra, at
120 n.8. In contrast, in Commonwealth v. Johnson, 874 A.2d 66 (Pa.
Super. 2005), we held that attempted homicide does not merge with
aggravated assault of a police officer under subsection 2702(a)(2) because
the crimes each include elements not required by the other: attempted
homicide requires proof of a specific intent to kill, and aggravated assault of
a police officer requires proof that the victim was an enumerated officer
performing official duties. Id. at 71.
Rosario relies on Commonwealth v. Anderson, 650 A.2d 20 (Pa.
1994), for the proposition that aggravated assault is a lesser included offense
of attempted homicide because it is “tautologous that one cannot kill without
inflicting serious bodily injury.” Rosario’s Brief at 47 (citing Anderson, supra,
at 583). However, Anderson was decided in 1994 and predates the current
merger statute. We have previously recognized that Anderson’s approach to
merger is no longer instructive since the legislature adopted the merger
statute. See Commonwealth v. Coppedge, 984 A.2d 562, 564 (Pa. Super.
2009) (“The legislature has thus rejected the prior common law approach to
merger espoused in [Anderson]. . . . Whether or not the facts of this case
comprise both crimes, if the crimes themselves can result in committing one
without committing the other, the elements in general are different, and the
legislature has said merger cannot apply. The analyses by cases arising before
the effective date of 42 Pa.C.S.A. § 9765 are therefore not instructive here.”).
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Here, the offenses of attempted homicide and aggravated assault with
a deadly weapon both include elements that the other does not. Attempted
homicide requires proof that the defendant had the specific intent to kill at the
time he took the substantial step toward committing the murder. Predmore,
supra. A defendant may commit aggravated assault with a deadly weapon
without the specific intent to kill, as long as he intentionally or knowingly
causes or attempts to cause bodily injury. Similarly, aggravated assault with
a deadly weapon requires proof that the defendant committed the offense
while using a deadly weapon. 18 Pa.C.S. § 2702(a)(4). Attempted homicide
does not, as it is certainly possible to attempt to kill another without employing
a weapon, such as by manual strangulation. Thus, because both offenses
include elements that the other does not, they do not merge for sentencing
purposes under the statute even when based on the same criminal act.
Jones, supra; Edwards, supra. No relief is due on this claim.
Affirmed in part. Reversed in part. Remanded with instructions.
Jurisdiction relinquished.
President Judge Panella dissents.
President Judge Emeritus Bender joins the memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2023
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