Commonwealth v. Rose
81 A.3d 123
Pa. Super. Ct.2013Background
- In July 1993 Rose and an accomplice brutally assaulted Mary Mitchell; she survived in a vegetative state and died on September 17, 2007. Rose was convicted of related offenses in 1994 (attempted murder, aggravated assault, etc.).
- After Mitchell’s death, Rose was charged with homicide (third-degree murder) in 2007; a jury convicted him in October 2010. The sentencing court imposed 20–40 years under 18 Pa.C.S. § 1102(d) (added in 1995).
- Rose argued the 1995 statutory increase in the maximum sentence for third‑degree murder (from 10–20 to up to 40 years) could not be applied to acts he completed in 1993 because that would be an ex post facto and retroactive application.
- The Commonwealth argued the murder did not occur until the victim’s death in 2007, so the 1995 statute applied and there was no ex post facto violation.
- The Superior Court majority vacated and remanded for re‑sentencing, holding that applying § 1102(d) violated the Ex Post Facto Clauses because all criminal acts causing the death occurred before the statute’s enactment. Judge Gantman dissented.
Issues
| Issue | Plaintiff's Argument (Rose) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether applying 18 Pa.C.S. § 1102(d) (1995) to conduct completed in 1993 is retroactive/ex post facto | Rose: The criminal acts were completed in 1993; increasing punishment after the acts is retroactive and violates ex post facto protections | Commonwealth: Murder was not consummated until the 2007 death, so the 1995 statute (in effect when murder occurred) validly governs sentencing | Held for Rose: Ex post facto violated because the acts causing death were completed before the statutory increase, so §1102(d) could not be applied to increase punishment |
| Whether the question is governed by timing of underlying acts or timing of consummation (death) | Rose: Focus should be on when the criminal acts were committed (1993) for ex post facto analysis | Commonwealth: Focus should be on when the crime (murder) was consummated (death in 2007) | Held: Majority applies original-meaning ex post facto analysis focusing on completed acts; statute increased punishment for pre‑statute acts |
| Whether notice/reliance concerns undermine an ex post facto claim when statute alters post‑death sentencing | Rose: Reliance/notice should protect against greater punishment for pre‑statute acts | Commonwealth: Notice concerns weak here because murder need not be intentional; also statute only applied if death occurred after enactment | Held: Court acknowledges weak notice interest but rejects it as dispositive; still finds ex post facto violation because statutory increase penalizes earlier acts |
| Whether the case is an as‑applied ex post facto challenge or a facial/due process claim | Rose: As‑applied ex post facto challenge to §1102(d) | Commonwealth: Disagrees that application is retroactive or unconstitutional | Held: Treated as as‑applied ex post facto challenge; court finds constitutional violation and orders resentencing |
Key Cases Cited
- Calder v. Bull, 3 U.S. 386 (1798) (foundational definition and categories of ex post facto prohibitions)
- Weaver v. Graham, 450 U.S. 24 (1981) (ex post facto test: whether new law is "more onerous" than law when crime committed)
- Commonwealth v. Ladd, 402 Pa. 164 (1960) (discusses year-and-a-day rule and that murder requires death)
- State v. Detter, 298 N.C. 604 (1979) (holding for ex post facto purposes the date of the murderous acts governs, not date of death)
- State v. Masino, 216 La. 352 (1949) (statute creating negligent homicide after negligent acts found to violate ex post facto principles)