Com. v. Bernardo, A., Jr.

J-S44044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY ROY BERNARDO, JR. :
:
Appellant : No. 241 MDA 2022
Appeal from the Judgment of Sentence Entered October 19, 2021
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000160-2019
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
DISSENTING MEMORANDUM BY PELLEGRINI, J.: FILED JUNE 28, 2023
This appeal involves the issue of whether time should be imposed for a
crime of which the defendant was acquitted. The defendant in this case,
Anthony R. Bernardo, Jr. (Bernardo) arranged to sell four ounces of marijuana
for $550.00 to Issayah Fostion, who then conspired with Wesley Burnett to
rob Bernardo rather than buy the marijuana. At the agreed-upon time at an
isolated location, while Bernardo was sitting in the front passenger seat of a
car, Burnett ran up to the rear passenger door, drew and fired his gun.
Bernardo shot back, striking Burnett, who fled and later died. Bernardo was
charged with homicide, attempted homicide as well as attempt to deliver
marijuana, conspiracy to deliver marijuana and carrying a firearm without a
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* Retired Senior Judge assigned to the Superior Court.
J-S44044-22
license. Bernardo was found not guilty of homicide and attempted homicide
but was found guilty of the drug and firearm charges.
For those three convictions, Bernardo was sentenced to an aggregate
term of 87 to 204 months’ incarceration. Aside from the sentences for each
of those convictions to run consecutively, the length of the sentence was in
part due to the trial court imposing sentences in excess of the guidelines’
maximum aggravated range by six months as to all three convictions. In
doing so, it acknowledged that Bernardo was not guilty of homicide and was
not being sentenced for Burnett’s death, but nonetheless increased the
sentence above the guidelines for just that reason. Its justification for doing
so was that the sentencing guidelines for the crimes of conspiracy and
attempting to deliver marijuana do not take into account the death of another
person because that does not normally occur as part of a typical marijuana
transaction, and “but for” Bernardo selling the marijuana, Burnett would not
have died.
While acknowledging the trial court’s statement that Bernardo was not
being sentenced for the death is in tension with its statement that it was
considering the death when sentencing Bernardo for attempt and conspiracy,
the majority nonetheless finds that it was not an abuse of discretion because
the trial court acknowledged that it had acquitted him for the homicide, while
simultaneously informing Bernardo that it was nonetheless considering the
death as a circumstance that Bernardo’s criminal activity had brought about.
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It appears to attempt to bolster its reasoning by stating that since a sentencing
court may consider even arrests that result in acquittals, it can consider
Burnett’s death in sentencing, not mentioning that Burnett’s death was the
result of Burnett trying to murder Bernardo.1
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1 None of the cases that the majority cites to support this general proposition
is applicable because they do not address whether it is proper to exceed the
guidelines as well as those cases that involve the defendant’s conduct. In
Commonwealth v. Bowers, 25 A.3d 349 (Pa. Super. 2011), the issue was
whether he should have been sentenced as a second time offender because
he had accepted ARD in a previous DUI. (For the current status of whether
ARD is a second offense see Commonwealth v. Moroz, 2022 PA Super 169,
284 A.3d 227 (2022). In Commonwealth. v. Archer, 722 A.2d 203 (Pa.
Super. Ct. 1998), the issue was whether an offense of which a defendant could
be used in calculating the offense gravity score. In that case, the defendant
participated in a robbery and the victim was shot with his gun. Even though
the defendant was acquitted of the murder under the felony murder rule,
because he was a direct participant in the robbery that resulted in the murder,
the victim’s death could be taken into consideration in determining that
offense gravity score. In Commonwealth v Tisdale, 334 A.2d 722 (1975),
in a case decided before the guidelines, the trial court considered in sentencing
that a death had occurred even though defendant was acquitted of the charge,
because the sentencing court was convinced that defendant was responsible
for the death of the victim. We found no abuse of discretion, reasoning that
the trial court was aware that Tisdale “was not convicted of that murder and
only weighed such evidence along with other considerations (prior arrests,
possibility of employment, and family life) in determining the proper
sentence.” Id. at 724. Tisdale was decided well before the guidelines and
was only considered one of the factors in deciding the appropriate sentence,
unlike here, where we are trying to determine proper factors used in exceeding
the guidelines.
The use of prior arrests as a factor in sentencing is now before our Supreme
Court in Commonwealth v. James Berry, 16 EAP 2023. In that case, the
defendant was found guilty of two counts of endangering the welfare of
children and one count of sexual abuse of children. The trial court considered
that he had been previously arrested for similar conduct. Our Supreme Court
granted an allowance of appeal to consider “Did it not violate due process and
(Footnote Continued Next Page)
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I disagree with the majority because under the Sentencing Code, a
person is only to be sentenced for their conduct and the impact that their
conduct caused, not the impact someone else caused. In this case, what made
this transaction purportedly atypical was the person who tried to kill Bernardo
and not any conduct of Bernardo. Because to sentence someone outside the
guidelines, directly or indirectly, for defending yourself from someone
attempting to murder you is improper as well an abuse of discretion under the
Sentencing Code, I respectfully dissent. Let me explain in more detail.
I.
Trial courts have broad discretion in sentencing and the guidelines of
the Sentencing Code do not require trial courts to impose any particular
sentence. See Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007);
Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002). The reasons for
a trial court’s deviation from the guidelines, however, must be stated on the
record, and a sentence which exceeds the guidelines must be affirmed unless
the reviewing court determines that the sentence is “unreasonable.” See 42
Pa.C.S. § 9781(c)(3).
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the Sentencing Code for the trial court to consider Petitioner’s bare arrest
record as a factor in imposing a more severe sentence, and did not the
Superior Court err in reviewing this under an abuse[ ]”.
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When evaluating the reasonableness of the stated reasons for a
departure from the guidelines, an appellate court must review the record with
regard for:
(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.
42 Pa.C.S. § 9781(d).
According to our Supreme Court, these four factors are deliberately
vague in that they lack “any concrete rules as to the unreasonableness inquiry
for a sentence that falls outside of applicable guidelines[.]” Walls, 926 A.2d
at 964; see also Commonwealth v. Holiday, 954 A.2d 6, 11-12 (Pa. Super.
2008) (same). However, the Court inferred from the vagueness of the factors
that the General Assembly intended for “the concept of reasonableness to be
inherently a circumstance-dependent concept that is flexible in understanding
and lacking precise definition.” Walls, 926 A.2d at 963.
To aid in the application of the reasonableness standard, our Supreme
Court has explained that in addition to Section 9781(d), review of an above-
guidelines sentence should be informed by Section 9721(b) of the Sentencing
Code. This latter provision mandates consideration of “the protection of the
public; the gravity of the offense in relation to the impact on the victim and
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the community; and the rehabilitative needs of the defendants.” Walls, 926
A.2d at 964 (citing 42 Pa.C.S. § 9721(b)) (emphasis added).
“Impact,” as used in Section 9721(b), is undefined in the statute and
the Sentencing Code, but our Supreme Court has construed the term as
meaning something narrower than any fathomable effect a defendant’s
conduct may have on a victim or the community at large. That much was
made clear in Commonwealth v. Ali, 149 A.3d 29 (Pa. 2016), where the
defendant had been convicted of selling narcotics to a person who became
impaired and caused a fatal car accident because of that impairment. It
acknowledged that at sentencing, a trial court can take into consideration that
defendant’s conduct – the sale of drugs – resulted in a fatal accident under
Section 9721(b) that makes that impact or effect a relevant consideration at
sentencing. The Ali Court cautioned, though, that sentencing judges “must
take a measured approach to community and indirect victim effects depending
upon the level of attenuation between the crime and the proffered impact.”
Id. at 39.
II.
In this case, the trial court imposed an unreasonable sentence by
considering the death of Burnett as the sole reason to depart upwardly from
the sentencing guidelines for several reasons.
First, Burnett’s death does not qualify as the type of “victim impact”
contemplated in Section 9721(b). See Ali, 149 A.3d at 37. Burnett was not
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a victim of any of the three offenses the trial court found Bernardo to have
committed (attempted sale of marijuana, conspiracy to sell marijuana and
possession of a firearm without a license). In fact, Burnett was not a victim
at all but an attempted murderer.
Second, Bernardo was found not guilty of the homicide charges. “It is
beyond peradventure that when a defendant has been exonerated in the legal
system, either by a jury or on constitutional grounds, with respect to a criminal
act, that act cannot be used to enhance a sentence.” Commonwealth v.
P.L.S., 894 A.2d 120, 130 (Pa. Super. 2006) (citing Commonwealth v.
Calvert, 344 A.2d 797 (Pa. 1975); Commonwealth v. Smithton, 631 A.2d
1053 (Pa. Super. 1993). Bernardo’s sentence was enhanced for a conduct for
which he was exonerated. He was impermissibly sentenced in excess of the
guidelines not for his conduct, but for Burnett’s conduct who tried to murder
him.
Third, the record does not establish that Burnett’s death was logically
connected to Bernardo’s criminal acts. Bernardo was convicted for intending
to sell marijuana and carrying a firearm without a license. At the time
Bernardo committed those offenses, he had no reason to know that Burnett
would be planning to rob him at the meeting place for the transaction. He did
not even know that Burnett would be present at the location of the planned
sale. The violence that ensued was instigated by Burnett, and the trial court
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found that Bernardo was legally justified in using lethal force to defend himself
against him.
Fourth, as can be seen, the facts are too attenuated to form a “logical
connection” between Bernardo’s crimes and a “community impact suffered by
specific individuals.” Violence is a well-known effect of illicit drug sales, see
Ali, 149 A.3d at 38, but none of the violence in this case was precipitated by
Bernardo’s attempted sale of marijuana or lack of a license to carry a weapon.
Indeed, the trial court was only able to find the shooting relevant by framing
Bernardo’s crimes as one of the infinite “but-for” causes of Burnett’s death,
which is incompatible with the “measured approach” to causation required by
our Supreme Court in Ali.
Finally, at sentencing and in its written opinion, the trial court justified
the departure by remarking that Bernardo had “put into motion a chain of
events that risked serious injury or death” and “started the ball rolling” toward
the fatal shooting. The implication is that Bernardo’s sentence could exceed
the guidelines based on any possible link in the causal chain of events between
his offenses and Burnett’s death, with no apparent regard for the intervening
(and far more serious) criminal acts of Burnett and Fostion. Under the trial
court’s “but-for” test of causation, “even the most remote and insignificant
force may be considered the cause of an occurrence.” Takach v. B. M. Root
Co., 420 A.2d 1084, 1086-87 (Pa. Super. 1980) (quoting Prosser, Law of Torts
(4th ed. 1971), p. 238-39). It is for that precise reason that but-for causation
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alone does not impart liability: “once events are set in motion there is, in
terms of causation alone, no place to stop. [An] event without millions of
causes is simply inconceivable; and [but-for] causation alone can provide no
clue of any kind to single out those wh[o] are . . . legally responsible.” Id.In conclusion, the only reason given on the record by the trial court for
exceeding the guidelines is Burnett’s death. In doing so, the trial court relied
on an improper sentencing factor, gave no proper justification on the record
for exceeding the guidelines, and misapplied Ali’s standard for discerning the
scope of relevant community impact caused by a victimless crime.
Accordingly, I respectfully dissent.
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