*1 659 Accordingly, we need not definitively resolve Act whether 47 the single-subject violates rule—either pursuant to the stan- dards effect at the time passage, its under set forth in precepts City Philadelphia its progeny—or and whether to appropriate apply City would be Philadelphia retroactively legislation enacted before it was decided. Additionally, applies as our holding equally the other two process challenges that were pending Superior before the ie., Court, 4 III, those based Sections Article see supra 6, note there is no need for further review intermediate court. Superior
The order of the Court is reversed and the matter remanded reinstatement the common pleas court’s dismissing order the amended complaint. EAKIN, BAER,
Justices TODD join STEVENS opinion. A.3d Pennsylvania, Appellant
COMMONWEALTH of
v. ROSE, Appellee. Leon Stevenson Supreme of Pennsylvania.
Argued 8, April 2015. 18,
Decided Nov. LLP, 269, 301, Moreover, 605 Pa. 989 A.2d holding judicial opinion against Maloney of a be read is to its facts. See Facilities, Inc., Valley Med. Pa. 984 A.2d Thus, (2009), general judicial precept, impacting as a constructs wide ranges develop light incrementally scenarios tend to presented dispute. Upjohn generally circumstances in each See Co. v. States, 677, 681, United 449 U.S. 101 S.Ct. 66 L.Ed.2d ("[W]e cases[.]”). sit decide concrete *3 Carr, Fitzsimmons,
Keaton Daniel Mi- Esq., Esq., Edward Wayne Streily, Esq., County chael District Allegheny Attor- Office, ney’s for Commonwealth of Pennsylvania. C. Kaezynski, Esq.,
William for Stevenson Leon Rose. SAYLOR, EAKIN, BAER, C.J., TODD, STEVENS, JJ.
OPINION Justice TODD. discretionary appeal
The issue this is whether a defen- dant convicted must be sentenced under statute in effect at the time the sentencing defen- upon victim, dant ultimately deadly committed the assault subject whether the to an penalty defendant is enhanced pursuant subsequently-enacted sentencing to a statute 14 years of the victim’s death later. in effect at the time
was of a in excess imposition sentence As we conclude that committed at the time by statute defendant prescribed Facto prohibited by the Ex Post deadly assault violates and Constitution, we are constrained Clause of United States Superior vacating Appellee order of the to affirm the remanding sentence and resentenc- Leon Rose’s Stevenson ing.1 Background Procedural
I. Factual and July heinous. On particularly this case are facts attacked brutally Mary and Sadik Appellee Rose Shawn Liberty neighborhood in a East Pitts- park Mitchell attack, men burgh. During kicked the victim the throat, times, stabbed her and approximately head vagina, into her framing a 16-inch aluminum piece inserted injuries. The was left causing victim naked serious internal bleeding until discovered individuals. The and she was two investigation in a An vegetative the victim state. attack left Sadik, police bloody recovered police led Rose and apartment day. shoes from Rose’s later that clothing and he police with a statement in which admitted provided Rose drinking doing the victim that he and Sadik attacked after drugs. attempted murder,2 Rose of jury March convicted intercourse,4 assault,3 involuntary deviate sexual
aggravated recklessly endangering person,5 another and criminal conspir- and, 16, 1994, to 16 acy,6 March he sentenced judgment His incarceration. sentence was affirmed years aggregate original not alter Rose's sentence 1. Our decision herein does *4 attempted years for for of 15 to 30 incarceration his 1994 conviction holding only speaks Our to the sentence murder and related offenses. constitutionally imposed subsequent may that be Rose’s conviction third-degree murder. 2007 for 901(a). § 18 2. Pa.C.S. 2702(a)(1). §
3. 18 Pa.C.S. (1972). § Pa.C.S. 3123
4. 18 §
5. 18 Pa.C.S. 2705. § 18 Pa.C.S. 903.
6.
663
appeal by
Superior Court,
and this Court denied his
of
petition
Rose,
allowance
appeal. Commonwealth v.
445
Pa.Super.
630,
denied,
(1995),
A.2d 1059
appeal
543 Pa.
712,
(1995).
On September 2007, injuries the victim succumbed to the earlier, she sustained in years the attack 14 and, on October 2007, the charged Commonwealth with Rose criminal homi- Rejecting cide.7 his defense,8 diminished capacity jury of convicted Rose third-degree At sentencing, murder.9 Rose that he maintained could only be sentenced to a maximum term of of incarceration 10 to 20 years, because, at the time he victim, assaulted the was maximum sen- allowable for third-degree tence § murder under 18 1103(1), Pa.C.S. provides that a person which of a felony convicted of the first degree may “for be term shall by sentenced a which fixed be 1103(1). the court at not more 20 years.” § than 18 Pa.C.S. The however, Commonwealth argued, the vic- because tim’s death did occur until of Rose’s crime homicide not “complete” time, and, therefore, was until Rose was subject to the 20 to 40 year sentence for murder § prescribed under Pa.C.S. which was amended (two attack) years provides: after the “Notwith- standing section a person who has been convicted degree of the third ... shall to a term be sentenced shall years.” fixed court more than be at not 1102(d). § 18 Pa.C.S. sentencing agreed court with the Commonwealth, years to 20 incar- and sentenced Rose years ceration. Rose was credited with approximately ½ time his prior served for conviction.
Rose appealed, panel Superior and a Court vacated his for resentencing. sentence and The Common- remanded law, person 7. At common of murder could not convicted unless year day victim died “from time the blow within and a fatal Ladd, given or the cause administered.” Commonwealth Ladd, however, 402 Pa. 166 A.2d this evidence, concluded common law rule was a rule and not part definition murder. Id. voluntary 8. Rose asserted intoxication defense at trial. 2502(c). § Pa.C.S. *5 by the and was en review requested, granted, banc
wealth in Court, of the panel Superior en banc Superior Court. Bowes, recognized by Judge Mary Jane opinion written “[njeither Pennsylva framers of the nor the ratifiers of the contemplated application constitution ex nia or federal and, further, herein,” to the factual situation post law facto Com yet no case has addressed the issue. Pennsylvania (en Rose, 129 (Pa.Super.2013) A.3d monwealth v. ).10 the decisions of However, the court found instructive banc issues, infra, analogous have addressed see other states that that, degree third “[ajlthough the crime of and reasoned died, until the victim all not consummated murder was the victim’s causing completed” death were criminal acts 1102(d), of Section which increased the to the enactment Id. at for that caused the victim’s death. 136. the acts penalty concluded en banc court Rose’s sentence Accordingly, the the Ex Post Facto of both the years to 40 violated Clauses Pennsylvania Then-Judge, Constitutions. United States dissenting Susan P. Judge, Gantman filed now-President joined by Judge Cheryl Judge Allen. opinion, which was that, a murder only because is “committed opined Gantman dies,” properly of the assault the trial court when victim sentencing sentenced under the Rose of the victim’s in 2007. Id. the time statute effect petition filed a at 136-37. The Commonwealth allowance Court, granted this which in order to appeal with we Superior holding consider whether Court erred 1102(d), § sentencing pursuant Rose 18 Pa.C.S. he deadly after committed the assault effective became victim, died, prohibition the victim would violate the but before ex laws. against
II. The Ex Post Facto Clause
Facto
The Ex Post
Clause
United States Consti
1, §
is contained
which provides:
tution
Article
“No
observed,
1102(d)
Superior
challenge
As the
Section
Rose’s
challenge
applied”
constitutionality,
"as
he does
is an
to its
in that
written,
application
contend the law is unconstitutional as
but that its
Rose,
to him in
instance is
1st. Every action, law that makes an done before passing law, of the and which done, was innocent when criminal; and such punishes Every action. 2nd. law that crime, aggravates was, or it greater makes than it when 3rd. committed. law that Every changes the punishment, a greater and inflicts punishment, than the annexed to law crime, when committed. 4th. Every law that alters the legal evidence, rules less, different, and receives or testimony, than the required law at the time of the commis- offence, sion of the in order to convict the offender. Dall.) (3 386, (1798).
3 U.S. 390 As by noted the lower courts case, in the instant Rose’s sentence implicates the third Calder that it category, in arguably increases the for his crime of at the time the victim’s death from the punishment that was at applicable the time he committed the acts which led to the death. victim’s “ The phrase post ‘ex law’ term of an was a art with facto meaning established at the framing.” Peugh time v. — States, -, 2072, 2081, United U.S. 133 186 S.Ct. 37, L.Ed.2d 84 (quoting Youngblood, Collins v. 497 U.S. 41, (1990)).12 S.Ct. L.Ed.2d high 11. As the Ex Post Facto States Clause United and the Ex Post 1, 17, Constitution, Pennsylvania § virtually Facto Clause Art. are language, explained identical this Court has the standards applied post to determine ex violations under both constitutions facto comparable, post are and a appellant’s law that ex violates an federal rights post rights. will be held violative ex of his state facto facto Young, Commonwealth v. 536 Pa. 1317 n. 637 A.2d light of our determination that the sentence violated trial court’s rights, separately Rose’s federal we need not consider Pennsylvania rights whether also under the his sentence violated his Constitution. suggested surviving 12. One commentator who reads the ”[o]ne has con- record of the constitutional debates of cannot avoid the 1787-88 that, “[b]uilding on Justice formulation Chase’s has observed our Law,’ ‘ex ‘have an cases of what constitutes scope phrase, this Latin attempted delimit precisely to accretion case substance given have instead but ” Florida) Dobbert (quoting law.’ Id. (1977)). 53 L.Ed.2d prohibition The ex any to law “which and the States enact Congress forbids the punishable was not for an act which imposes a punishment committed; imposes punish- additional time it was Through prescribed.” prohibition, this ment then give legislative Acts fair sought assure the Framers rely warning permit effect and individuals their re- changed. also meaning their The ban explicitly until arbitrary power by restraining governmental stricts legislation. potentially vindictive *7 Graham, 28-29, 960, 24, 450 101 67 v. U.S. S.Ct. Weaver (1981) (footnotes omitted); see and citations also L.Ed.2d 17 Florida, 2446, 96 423, 430, 107 482 S.Ct. v. U.S. Miller (1987) (“[A]lmost recog outset, the we have L.Ed.2d 351 from a concern prohibition to the ex nized that central notice governmental for ‘the lack of fair and when restraint beyond pre was legislature the increases what ” Weaver, was consummated.’ (quoting scribed when the crime 960)), 101 on other 30, disapproved part 450 U.S. S.Ct. Morales, 499, v. 514 grounds Dep’t Corrections U.S. Calif. (1995).13 1597, 131 3,115 506 n. 588 L.Ed.2d S.Ct. against statutory retroactivity major policy force elusion the that Natelson, adoption of G. behind the the Constitution.” Robert U.S. View, 489, Statutory Retroactivity: 527 39 Idaho L.Rev. Founders’ (2003). the point, suggested On has that this another commentator latter governmental power by theory the Ex Post Facto Clause restricts arbitrary legislation restraining "bears no substance and vindictive notice,” beyond primary first concern in that that borne and for irrationally spiteful impermissi may as law be condemned or as "[a] legislative power, ble breach of restrictions on but the constitutional for review will not be the Ex Post Facto Clause unless basis punishment.” spitefulness overreach form of retroactive takes the Sentences; Adams, One-Book, Ex Facto Consider Andrew Two Post C. addition, In prohibition “upholds separation powers by confining the legislature to penal with prospective decisions effect and the judiciary and execu Weaver, applications existing penal tive law.” 450 U.S. 10, at 29 n. In discussing S.Ct. 960. protections Clause, by the Ex Post Facto afforded one scholar observed an additional protection: asserted basis “namely, that it ‘assures the can legislature stigmatizing make recourse to penalties of only the criminal law when its core purpose ” deterrence could R. thereby possibly be Wayne served.’ (5th ed.2010) LaFave, (hereinafter Criminal Law 116 “La- Fave”) omitted). (citations
The ex post
prohibition is concerned with legisla
acts,
judicial
tive
as
opposed
decisions.
Rogers
Tennes
see,
U.S.
S.Ct.
Extending the Post Clause to Facto] through [Ex courts process rubric due ... would circumvent the clear consti- text. regard tutional It also evince too would little *8 important contextual institutional and differences between hand, on legislating, the one and common law decisionmak- ing, on other. 460, 121
Id. at S.Ct.
In order for a or penal criminal law to ex deemed an be law, critical elements” must met: “two “it must be Kumar, ations One-Book United States v. Am. Rule of after J.Crim. L. occurring is, must retrospective, apply events enactment, offender disadvantage and it its must before (foot Weaver, at by it.” 460 U.S. affected (“Only at those omitted); also 637 A.2d Young, note see a a and fall within Colder disadvantage which laws defendant infirm.” constitutionally post facto laws category are ex original)). (emphasis sentencing Rose dispute does not
The Commonwealth 18 Pa.C.S. third-degree on his murder conviction under 1102(d), 40 years maximum of provides § which sentence 1103(1), provides § of 18 incarceration, instead Pa.C.S. Rose disadvantages of years, a maximum sentence subjecting him to an sentence. thus focus increased We pursuant sentence question imposition whether 1102(d) of the application constitutes a retroactive Section sentencing statute. that a holding erred in asserting Superior Pa.C.S. third-degree pursuant murder
sentence
1102(d)
rights
Calder’s
§
Rose’s ex
under
violates
upon
greater punish-
it inflicts
Rose a
category
third
because
than
statute
at the time he assaulted
ment
effect
Facto
victim,
Ex Post
stresses
Commonwealth
increasing
from
legislature
“only prohibits
Clause
Com-
against
past
his
crimes.”
defendant
added).
above,
at 20
As noted
(emphasis
Brief
monwealth’s
that,
the Commonwealth maintains
because the death
homi-
crime
criminal
essential element
victim an
2007, the
cide,
complete
until
Rose’s crime
homicide was
(citing
Id.
24-25
year the victim died.
Commonwealth
(“Murder
Ramunno,
is commit-
219 Pa.
Clause increased acts. that,
Regarding position the Commonwealth’s because victim, requires the offense of criminal homicide death 2007, and, crime of Rose not “commit” the homicide until did sentencing thus, no application there was retroactive any Pennsylvania to be caselaw statute, appear does not there However, this set circumstances. North governing in a similar situation State Supreme Carolina Court addressed Better, Detter, v. N.C. S.E.2d to kill her several occasions defendant husband attempted him with January by poisoning between and March 1977 killer, lead, including and drugs, concentrated ant various 9, 1977, an cocaine The died on June and and PCP. victim autopsy primary he of arsenic poisoning, died revealed first- ingredient in ant killer. The was convicted of defendant On appeal, and sentenced death. she degree murder alia, argued, imposition a death sentence violated inter because, at in all rights engaged her ex the time she husband, maximum penalty of her kill her efforts life as Car- first-degree imprisonment, murder was North olina’s did take effect until June penalty death statute explained: court The com- is whether this murder was presented [T]he question performed acts so mitted when the murderous were or murder punishment imprisonment is life whether this was when death resulted so the sentence committed constitutionally pursuant to 15A-2002 is death G.S. imposed Ex United permissible provisions under the It that the States North Carolina constitutions. is true of murder of a human killing definition includes unlawful aforethought being poisoning, malice means by with premeditation pre- are which case and deliberation Therefore, requiring .... murder a crime both sumed Williams, N.C. [229 act a result. We held State v. ], 49 S.E.2d that one who rendered after aid the fatal blow struck resulting but before the death of accessory could not be convicted after the fact to murder because the crime of not complete murder was until the resulting occurred.
However, necessary when it becomes to choose between the time the fatal blow is struck or the time of death for special purpose, some accessory such as after the fact to murder to determine if a certain is barred by clause, the Ex the choice should dictated (2d inquiry. the nature of Perkins, Criminal Law ed.1969). added). (emphasis
Id. court continued: Therefore, our decision State Williams ... which we time of chose the death as time was commit- ted for purpose if deciding was an accesso- defendant *11 ry murder, sound, after the fact to although, is for purposes of prohibition the Ex against post facto legislation, we hold date(s) of the the murderous acts rather than the date of death is the the murder date was committed.
Id.
The
court
the
Detter
observed that
“scant authority
on this question”
exists
was
its
Id.
holding.
consistent with
Gill,
(1856),
the
cited
Specifically,
People
court
v.
The was blow but the death ensured the passage death must to of the last statute. The be made it, relate the which as back unlawful act occasioned and the on received party consequence died wounds particular committed, on the act day, day the was and determined, is act the result was
not the one on which charged. is to be properly day on which 6 Cal. referencing Supreme Nebraska, Debney, is committed
Gill, observing that a crime deemed supra, and if the given, the fatal wounds were even county in the where reasoned: county, in another victim died such when offense was committed follows [I]t occurred at True, inflicted. the death were wounds mortal date, subsequent relates back the time but the acts The accused committed all injury received. was 4th; en- July offense on the death which constituting the 9th, his July merely characterized county, in Platte sued and intentionally consists in acts. crime murder and, that the death, while it is true unlawfully causing occurs, incorrect until it is complete yet crime It is is an element the crime. say that the death necessary to it. The merely a condition elements malice, crime acts such as perpetrator, are the committed intent, wound The crime blow. inflicted, wounds he is to be tried mortal were when the then in force. laws at 448.15 N.W. proposition since relied on Detter for the Other courts have meeting purpose, an offense for one such that the as date crime, than the statutory may elements be different an ex purpose, of the offense another such as date States, In Little A.2d 708 inquiry. v. United (D.C.App.1998), example, the court held that the defendant *12 fact to accessory not convicted of an the being could be after on actions taken while the was still murder based decedent Debney, also 15. In to the decisions in Gill and the Detter Court addition Perkins, treatises, including holding support found for its in several ed.1969), (2nd Scott, Criminal and LaFave & Criminal Law 93-94 Law ("With crimes of both and the result those which consist conduct homicide, conduct, theory is case with ... the [i]f of as the criminal warning, it prohibition retroactivity giving on that of behind the is fair post purposes should seems that for ex facto the date of the blow clear offense.”). be date of alive, where victims were alive at still the time the away defendant drove from the scene so crime. holding, the court on inquiry” relied Better’s “nature of the language, and noted fact that “[t]he a homicide is complete purpose one it does make for all complete purposes.” Id. n. at 712
Consistent with the foregoing authority, the North including Carolina Supreme approach Detter, Court’s conclude we that, for purposes evaluating a whether defendant’s sen- tence the Ex violates Post Facto Clause, the all date which statutory elements crime of third-degree murder met, including victim, are is not dispositive. Rather, in determining whether imposition un- sentence der statute was amended after a defendant committed the deadly upon victim, acts death, but victim’s violates the ex prohibition, must consider the we intent the Ex Post Facto behind Clause. Ohio,
Nearly century ago, in Beazell v. the United States Supreme Court offered following definition of an ex law, to, alia, alluding inter Justice opinion Chase’s Galder: settled,
It by is decisions this court so known that well their may with, citation which dispensed any statute punishes as a an committed, crime act previously which done, innocent when more which makes burdensome crime, commission, for a after its or which deprives charged one any with crime of defense available according committed, to law at the time when the act was prohibited ex post facto. as 169-70, Exam- 70 L.Ed.
ining underlying rationale of prohibition, the ex explained: the Beazell Court prohibition
The constitutional judicial interpretation and the form, laws, rest the notion that whatever their upon criminal after the purport make innocent acts event, aggravate offense, or to harsh and oppressive, are act, and that criminal to an quality either attributable *13 or by or the of the offense nature definition legal commission, for its punishment imposed of amount enactment, after the legislative should not be altered fact, disadvantage of the accused.
Id. at
The mark past for designated punishment acts. The can fairly be are question consequences in each case where unpleasant conduct, for prior an individual is brought upon to bear legislative punish aim was to individual whether the or past the individual activity, whether restriction as a to a regulation comes relevant incident a about present situation. 1146, 4 80 S.Ct. L.Ed.2d U.S. added).
(emphasis
Weaver,
high
supra,
In
held
a
repealed
Florida
statute and reduced the
statute
time”
good
state
“gain
prisoner
amount
conduct
could
rights
his
against
receive
sentence violated the ex
pled guilty
second-degree
murder and was
prisoner who
holding,
In so
statute’s effective date.
sentenced before
the Court
that the
“presence
first explained
absence
affirmative,
is
...
right
enforceable
not relevant
to the ex
prohibition,
imposition
punishment
which forbids
assigned by
more
than
severe
law when the
Weaver,
punished
act to be
occurred.”
added).
argument
(emphasis
rejecting
the State’s
face,
because,
that the
statute
not
on its
retrospective
new
date,
after
the Court
applied only
its effective
concluded
effect,
fails
it is
argument
acknowledge
“[t]his
form,
determines whether it is
law that
changes
critical
question
whether the
law
facto.
its
legal consequences completed
effective
acts
before
added).
Id. at
(emphasis
date.”
“The Constitution deals with not shadows. Its *14 inhibition was levelled thing, not It at name. rights intended that of the citizen should be secure against deprivation for past conduct by legislative enact- form, ment, any under disguised.” however Cummings 277], [71 Missouri 4 325, 18 Wall. 356 L.Ed. (1867). 15, 101 added).
Id. at n. 960 (emphasis 31 S.Ct. Beazell, than 60 years Court, More after high Collins v. Youngblood, 497 U.S. 110 111 30 L.Ed.2d (1990), reaffirmed the Beazell definition of term post “ex and its law” focus acts:
The Beazell formulation is faithful to our of knowledge best original understanding of the Ex Post Facto Clause: Legislatures not may retroactively alter of the definition or punishment crimes increase the for criminal acts. Sev early eral employed State Constitutions this definition of the term, they appear and have been basis for the Framers’ of the understanding provision. See The Federalist No. (J. 1961) (J. Farrand, p. Madison); 301 Cooke ed. M. 2 of (1911); Records p. Federal Convention of Dall, Colder, J.); Chase, at 391-392 of (opinion at id. 396- J.). Paterson, (opinion Constitutions Mary- Carolina, example, land and North declared that “retro- laws, spective punishing facts committed the exis- before laws, of such by only criminal, tence them declared are unjust, oppressive, and incompatible liberty; with wherefore no ought to made.” law See Constitution of (1776); Maryland, Declaration Rights, Art. XV Constitu- Carolina, tion of North Declaration of Rights, Art. XXIV (1776). Constitutions, Other State though using the phrase “ex facto,” included similar See articles. Decla- of Rights ration and Fundamental Rules of the Delaware (1776); § or State Constitution Form of Government for Massachusetts, Commonwealth Declaration of Rights, Art. XXIV Commentaries, reference, Blackstone’s historical
Another on the during Framers debates was discussed of the Farrand, Records Clause, M. see Post Facto Ex (1911), and deemed 1787, pp. 448-449 Convention Federal term meaning of the technical source authoritative an Dali, J.); Chase, id. at 396 Calder, (opinion see 8 understanding. this Paterson, J.), buttresses (opinion after “when Blackstone, is ex a law According itself) committed, (indifferent legisla- action crime, have been first time declares for the tor then commit- who has person upon inflicts a in- Although Blackstone, Commentaries. ted it.” W. in the explicitly not mentioned are punishments creased their questioned has never sources, the Court historical enhance- theory “[t]he on the apparently prohibition, same within the to come crime, penalty, or seems of a ment Calder, penalty.” of a crime the creation mischief as *15 J.). Paterson, The Beazell defini- of (opinion at supra, post use of the term “ex faithful to the tion, then, is facto adopted. at the time the Constitution ” law added). 43-44, 110 (emphasis S.Ct. 2715 at 497 U.S. post the ex maintains that the Commonwealth Although crimes,16not completed only prior applies prohibition facto Beazell, in De the Court acts, language employed the prior Ex Post that the Weaver, suggests Veau, Youngblood Supreme acknowledges States "the United that The Commonwealth and ‘offense’ ‘crime’ or ‘acts’ the words ‘acts’ and has conflated high questions,” specifically references analyzing Calder when supra: language Peugh, Court’s when a post violation is an ex here whether there consider We facto promulgated after he com- under Guidelines is sentenced defendant higher provides version the new his criminal acts and mitted place range at sentencing [ ] the version than applicable Guidelines of offense. the time 2078). Peugh, at (quoting 133 S.Ct. Brief at 35 Commonwealth contends, however, precision phrasing of "that lack Commonwealth Peugh, the differ- protection make because not a constitutional does question before the not control the two words did ence between high Court’s address the fails to The Commonwealth Court.” Id. above; discussed in the other cases recurring indeed, the term "act” use of Beazell, De no reference brief contains Commonwealth’s Veau, or Weaver. Facto Clause was to prohibit legislature intended from retroactively increasing not simply for com- pleted crimes, for an but individual’s criminal acts. See Broughton, also at 728 (suggesting the meaning of the Weaver, phrase completed,” “acts as to in referred “does necessarily Rather, fully completed mean a crime. it could refer to fulfillment of of completion any part the actus of a any reus crime or element of the crime an requires defendant.”). affirmative act on the of part Indeed, criminal law scholar Wayne R. LaFave opined has that, in determining the date of offense ex purposes, is the criminal date act is relevant: those With crimes consist conduct both and the (a of conduct, result as is the case with criminal homicide with a resulting needed), blow may is there arise as to question the time of the offense for purposes Thus, applying ex clause. if the defendant delivers the mortal blow on April new homicide statute law on April becomes and the victim from his dies on can April statute, wounds the new if disadvantageous defendant, constitutionally applied his situation? theory prohibition If retroactivity behind the giving warning, fair it seems clear that for purposes date the blow should be the date offense.
LaFave, added); Cook, (emphasis Joseph see also G. (3rd ed.) (July § Constitutional the Accused Rights 1:18 2015) (hereinafter “Cook”) (“For ex post purposes facto law ... it is the of the acts than time rather the time the result *16 key. results insuring is Such are consistent with criminality the accused has of the potential received notice act.”). consequences his that,
The courts of our have similarly sister states concluded for purposes determining the date of an offense when evaluating claim, on ex the date which the See, Detter, act controlling. e.g., criminal was committed is (for 260 at purposes prohibition against S.E.2d 590 ex date(s) legislation, “the the murderous acts rather murder was commit- than the date the the date is Masino, ted”) La. 590; So.2d Id. at State for “the crime (noting that, purposes, act, is deed, original the is on the date on which the committed death”).17 This performed, and not on the the victim’s date Ex focus with one of the Post Facto on acts consistent Miller, underlying warning. See Clause’s rationales—fair 2446; Weaver, 28-29, 101 450 U.S. at U.S. at 107 S.Ct. 728; LaFave, 121; Cook, 960; at Broughton, see also §at 1:18. victim judice, case sub Rose’s assault occurred third-degree for murder the maximum sentence when legislature imprisonment. Although
was 20 later years third-degree maximum sentence increased all of Rose’s criminal years imprisonment, acts occurred and, increase, at the time he committed acts, warning not have had fair he could criminal he could if victim as a of his imprisonment face 40 died result years actions. above,
Notwithstanding the the Commonwealth maintains warning” protected by to fair the Ex Post “right is not implicated Facto Clause the instant ease because murder, not Rose was convicted of which does require Brief at specific intent. Commonwealth’s following highlights Commonwealth observation Superior Court below: possess specific the individual does intent
Where crime, cannot possibly contemplating commit the he Therefore, potential punishment for the crime. notice of cannot particular punishment dissuade commission no for the requirement offense where there is intent differently, the notice interest that the ex crime. Phrased (sic) post facto clauses was intended to serve is weakest Hare, (1973), 17. In State v. 190 Neb. N.W.2d Court, addressing sufficiency challenge, Supreme like- Nebraska prosecution manslaughter wise “in a of an held the commission battery, at the assault the time of the offense is affixed time the fatal blow was struck.” *17 when category the third at at Calder issue its and strongest categories when the two are in question. first Rose, 134). Commonwealth’s Brief (quoting at 34 81 A.3d at effect, In the Commonwealth prohibition contends the against ex does not apply laws unintentional crimes.
However, in the
following
sentence
the above-quoted lan
guage,
Superior Court,
quoting the United
Su
States
Court,
preme
course,
concluded: “Of
‘the
absence
a reliance
interest is not an
in favor
argument
of abandoning
catego
” Rose,
Texas,
ry itself.’
134 (quoting
at
A.3d
Carmell v.
1620, 146
(2000)).
531 n.
L.Ed.2d
In
Carmell,
high
Court considered an
challenge
law,
ato Texas
amendment
which altered
rules of
evidence
crimes
committed
amendment. The
charged
defendant
committing
was
with
sexual offenses
against his stepdaughter
1991 and
between
when
years
time,
victim was
At
between
old.
Texas
provided
law
testimony
a victim over the
of 14
age
not
could
a
support
conviction unless
other
corroborated
evidence, or the victim had informed another
person
offense
its
within six months of
If a
occurrence.
victim was
under the age
support
the victim’s
alone
testimony
could
a
In
conviction.
the law
to allow a
was amended
on
conviction based
if
testimony
victim’s
alone
the victim was
under the
age
The defendant was convicted
on
he
four
appeal,
argued
his convictions
counts that
on conduct that occurred after the
were based
victim
14 could not stand
pre-1993
turned
under the
version
law because the victim
under 14 and had not made
was
timely
outcry.
convictions,
high
four
reversing
defendant’s
law
the Ex
Court concluded the
violated
amendment
Clause,
Post Facto
fell
as the amendment
within Calder’s
less
than
category, authorizing
fourth
conviction on
evidence
catego-
previously required.
opined, “[t]he
The Court
fourth
understood,
ry,
harmoniously
so
with one
resonates
Ex
principal interests that
Clause
de-
Post Facto
531, 120
serve,
justice.”
fundamental
529 U.S. at
signed to
The
further
S.Ct. 1620.
observed:
concerns,
is,
course,
Clause
also aimed
other
*18
warning
fair
of
give
“namely
legislative
enactments
meaning
on their
permit
rely
effect and
individuals to
their
reinforcing
separa-
and at
the
explicitly changed,”
until
...
aims,
But
only
those are not its
the
powers....
tion of
a
not
in favor of
argument
of
reliance interest is
an
absence
were,
If it
category
the same conclu-
abandoning the
itself.
(increases in
category
third
sion would follow
Calder’s
few, if
interests in
punishment),
any,
as there are
reliance
on
planning
expectation
future criminal activities based
the
of
repercussions.
severe
less
Thus,
context,
n.
analysis noted in Finally, Supreme as the United States Ex regarding protection provided by Post Carmell Facto Clause:
There is plainly interest, fundamental apart fairness even from claim of any notice, reliance in having govern- ment abide rules lav? it to govern establishes circumstance under which deprive person can of his or her or life. liberty 533, 120
529 U.S. at S.Ct. 1620. For all of the reasons above, that, for discussed we conclude purposes an ex inquiry, the Commonwealth’s focus of an criminal result individual’s acts—in this case, the Rather, the victim—is we misplaced. hold that, requires where a crime both a criminal act and a subsequent (e.g., homicide), result imposition of a more severe sentence based on a statute that was after the amended committed, act was but act, result violates prohibition. the ex
This must to Court adhere the set in principles forth the Constitution, United States as by the interpreted high Court. As Rose’s on assault the victim in occurred when the statute applicable provided a maximum of 20 sentence murder, years the trial court’s imposition longer years—under sentence—a maximum term of 40 amendment to statute occurred the subsequent assault, rights violated Rose’s the Ex Facto under Post Thus, Superior Clause. Court the vacated trial properly court’s sentence and remanded for resentencing.
Order affirmed.
Chief Justice SAYLOR BAER and Justices EAKIN and join the opinion.
Chief a concurring opinion. Justice SAYLOR files Justice EAKIN files a concurring opinion.
Justice dissenting STEVENS files a opinion. SAYLOR,
Chief Justice concurring. join I majority opinion, subject differ- to few modest ences. majority, general I as a at least
Initially, agree with implicated is rule, prohibition when a post that the ex facto legal legislative consequences adverse enactment increases before law’s date. completed acts effective criminal fully words, conduct the relevant consummated other where or penalty- crime-creating of a implementation before the offense, law, post for ex date enhancing facto occurred, the date conduct generally should be purposes, relating ensuing should treated results as subsequently lines, Along consistent with the to date. these back such unpersuaded by I the Commonwealth’s majority opinion, am “crime,” argument as utilized the seminal the word Bull, (3 v. description ex laws Calder (1798), Dall.) 386, fully means a necessarily 1 L.Ed. offense, encompassing elemental results. all realized criminal as follows. majority opinion are differences with My First, Eakin, preferable I avoid like Mr. Justice find from “disadvantage” personal rights” and “substantial rubric Supreme appears United States at Concurring Opinion, See have itself. distanced J.) (Eakin, Youngblood, (citing at 497 U.S. A.3d Collins (1990)). 2715, 2721, That 45, 110 L.Ed.2d I said, conceptually, acknowledge difficulty, I that have less terms in part, these the ex my own with a measured use arena. Next, majority’s depiction I with the that the Com differ is, effect, position against “the prohibition monwealth’s unintentional crimes.” apply laws does Indeed, 679, 127 Opinion, at nowhere Majority A.3d its does legislation the Commonwealth contend brief *20 subjecting a who of and previously defendant was convicted any fully for crime enhanced penalties sentenced realized to Rather, proscribed. not be dis would Commonwealth’s focus is crimes are as of the upon crete unconsummated of intervening date legislation. effective I unintentionality this focus or upon intentionality also find distracting and, to I accordingly, be somewhat would address in of the broader the Commonwealth’s terms contentions forth in requirements Pennsylvania culpability set
688
Code,
§
Crimes
18 Pa.C.S.
302 (indicating, subject
to one
express exception,
person
that “a
is
guilty
an offense
unless
intentionally,
he acted
knowingly,
negli
or
recklessly
gently, as the
may require”).1
law
Within each of these
categories,
conduct,
with
regard
their
citizens
have
ability to conform themselves to the requirements of
law
upon
Moreover,
fair notice.
as the
ac
majority otherwise
such
knowledges,
notice of the
of a
consequences
criminal-law
failure to conform traditionally has been a recognized concern
677-79,
of ex post
jurisprudence.
Opinion,
See Majority
at
alia,
Florida,
(citing,
A.3d
805-06
inter
v.
Miller
430,
423,
2451,
2446,
(1987),
107 S.Ct.
L.Ed.2d
disapproved
part
grounds
on other
Dep’t Correc
Calif.
Morales,
3, 115
tions v.
514 U.S.
506 n.
1597, 1602n.
(1995)).
3,
From
the notice
directly
concern
pertains
here,
Supreme
albeit
Court has
fit
seen
to invoke
broader fairness principles
conceptual
where
differences have
arisen in discussing
upon
notice or reliance
their
terms.
own
at 679-80,
Accord id.
L.Ed.2d 577 In the present setting, perhaps recourse to the broader principles avoiding digression aids into whether truly a defendant would would not have engaged calculus, some sort a mental penalty when the salient requirement consideration is the government to pro- pertinent vide notice first conduct instance. EAKIN,
Justice concurring. I agree with the Majority that the ex prohibition when a violated more severe sentence is on a imposed based statute that was amended between the criminal its act and 681, 127 Majority result. See atOp., A.3d at 807-08. framework, regard,
1. The adopted Crimes Code's in this from the Code, ''prun[e] Model Penal from served the lexicon a plethora terms,” terms, leaving culpability common-law four core Common Roebuck, 642, 649, (2011), wealth A.3d Pa. *21 684 Ohio, 68, 167, 46 70 269 S.Ct.
Previously, in Beazell
U.S.
Florida,
282, 97 S.Ct.
(1925)
482 U.S.
216
and Dobbert v.
L.Ed.
(1977),
Court
2290,
Supreme
344
the United States
53 L.Ed.2d
procedural and substantive
attempted
distinguish
between
on the
analysis by focusing
in Ex
Facto
changes
Post
Clause
burden,
of the
personal rights
and
disadvantage,
substantial
its
High
expressly
Court has since
abandoned
The
accused.
personal
“substantial
“disadvantage”
on
focus
to ex-
erroneously
that have been
construed
rights”—terms
Ex Post
Facto Clause.
interpretation
pand
2715, 111
37, 110
Youngblood,
S.Ct.
Collins v.
497 U.S.
(1990),
stated,
procedural
“a
High
L.Ed.2d 30
if
affects
constitute an ex
violation
change may
from the
think this language
substance[.]
matters of
... We
Dobbert,]
cited[,
imported
alia
has
cases
inter
Beazell
Ex
interpretation of the
Post Facto Clause.”
confusion into the
(internal
45,
quotation marks and cita
Id. at
The Commonwealth kill, specific concluding, “[I]t intent to require that does right suggest disingenuous for one Rose’s would seem violated possible penalty for his crime was to notice of where Rose did not necessarily specifically intend commit crime which he was ultimately guilty[.]” Com- found Brief, monwealth’s Commonwealth’s *22 premise fallacious, murder is as specific absence of to intent kill is not an of murder, element nor third-degree jury did the find an of to specific absence intent kill. The verdict not did jury mean the as a kill; found fact Rose lacked the intent to all that can be prosecution said is did not prove the of presence such A proof intent. lack of not to does a equate contrary of the finding proposition any than an acquittal more is a verdict innocence.
This specifically rejected this of logic strand in Com- Fisher, 366, 1186, (2013) v. 622 monwealth Pa. 80 A.3d. 1191 (“The of third[-]degree absolutely elements murder an include act, not intentional an but act defined the statute as murder.”). intentional The of specific absence intent to a take life not does mean a defendant has acted unintentionally. “It is third[-]degree well-established that is distinguish- murder from able first[-]degree only first[-]degree murder requires specific murder to kill.” intent v. Commonwealth Williams, 360, 510, (2009) (citations 602 Pa. 980 A.2d 525 omitted). law, Pennsylvania third-degree Under does murder not require a intent to require specific kill but does that one Santos, act with malice. v. 583 Commonwealth Pa. 876 A.2d (explaining third-degree murder requires proof Carter, aforethought); malice v. Commonwealth (1978) (“Murder Pa. third[-]degree 393 A.2d is an unlawful with malice or killing expressed implied, but life.”) (citation any omitted); intent a specific absent to take Marrero, (3d (“In Cir.2014) United v. States F.3d is ‘an Pennsylvania, killing murder unlawful with ” malice kill.’ specific (quoting but without intent Common- 1215, 1219 Dunphy, (Pa.Super.2011))). wealth v. 20 A.3d Mal- excuse, “intent[,] justification ice a without commit (10th ed.2014). wrongful Dictionary act.” Law Black’s long “every We have held that malice includes case where heart, disposition, cruelty, there is hardness wickedness consequences, regardless recklessness and mind social may not intended be duty, although particular person Drum, 9, 15 injured.” Commonwealth Pa. reasons, Majority’s affirming I join the decision
For these resentencing. Court, remanded Superior STEVENS, dissenting. Justice attempted in 1994 of Appellee this case was convicted assault, his did not until aggravated but victim die appropriate punishment he be- escape should miraculously period the victim for a thirteen survived cause years. Majority where amendment to sentenc- holds crime, for a
ing a more sentence provides statute severe engaged completed in and the criminal upon date which one her whether the underlying acts his or determines conviction *23 the crime is third-degree amendment even when applies, prior and the is still to the effective date murder victim alive respectfully of I dissent. the amendment. the victim on Majority upon to attack Appellee’s refers 1993, “deadly any reasons as a assault” and
July beyond the maximum sentence at resultant sentence allowable 1102(d) § for under 18 Pa.C.S. time murder subject penalty” him to an “enhanced and constitute would disagree, I for it is punishment. Respectfully, ex post facto is of death an essential well-established that a victim’s element homicide;1 therefore, not commit Appellee criminal did third- that, it pertains It follows as to degree murder 2007.2 until 1102(d) § him, at 18 sentencing Pa.C.S. does enhancement 2501(a) (indicating a § See 18 criminal homicide occurs when Pa.C.S. person knowingly, recklessly negligently "intentionally, causes also, being.”); another human See Commonwealth v. Ramun ("Murder no, (1907) only 219 Pa. 68 185 A. committed dies”). addition, In when States the victim of the assault United any Supreme that was has held law essential fact jury beyond a penalty of an must find a is an element which offense — -, States, -, Alleyne v. reasonable doubt. United 2151, 2159, L.Ed.2d states; 2502(c) degree.—All § other 2. 18 "Murder the third Pa.C.S. degree. of the of murder shall murder of third Murder kinds felony degree.” degree is a third first not constitute legislation, for it impossible for to Appellee been prior have sentenced to his conviction third-degree murder at which time that prescribed statute a 20 to 40 for year sentence the crime.3 16, 1994, alia, March a jury of,
On Appellee convicted inter attempted murder aggravated assault for the brutal beat- ing victim. Appellee was neither with charged third- degree in 1998 nor that crime convicted because, contrary to the characterization, his vio- Majority’s lent one, assault had not deadly been his victim survived. Notwithstanding, Majority has that the date determined upon all of the elements of criminal homicide are met is dispositive purposes evaluating whether defen- dant’s sentence violates the Ex Post Facto Clause of the United doing so, States Constitution. In it stresses that as Appellee’s criminal acts occurred the increase statutory sentencing scheme Ex Post Facto implicated Clause is had no because he he way anticipate could be sentenced to to 40 years upon his prison conviction of third-degree In holding murder. of its support Majority Detter, deems facts of State v. 298 N.C. to be analogous S.E.2d herein. those Detter, case, a death penalty the North Carolina Su- preme the dispositive question Court framed as whether first-degree defendant commits intentionally murder when she inflicts or at murderous acts the time of the resultant death In holding victim. one commits an intentional mur- der at time performs acts, she the murderous the court *24 distinguished its from decision that had State reached Williams, 229 N.C. Therein, S.E.2d 617 disagree 3. I Majority's further with the statement the Commonwealth sentencing Appellee does not controvert under Pa.C.S. 1102(d) "disadvantages” greater § subjecting him him to a sentence 1103(1). pursuant § than Indeed, he have received to 18 Pa.C.S. would premise argument the entire of the Commonwealth’s is that Appellee pursuant could not have been sentenced to 18 Pa.C.S. 1103(1) § because he had neither committed nor been convicted effective; thus, sentencing third-degree murder when that statute was 1102(d) § his sentence under 18 did not a Pa.C.S. constitute retroactive application sentencing aof statute. after that an who assisted another court had found individual prove upon latter had inflicted the victim what would later after accessory could not to a fatal blow be convicted as be not until complete to the fact murder because the was charge and could have been resulting death no such Detter, (citing at to that time. brought prior S.E.2d Williams, supra). Detter,
Herein, contem- clearly unlike the defendant who in the to his death plated killing her husband months life penalty maximum for murder was first-degree when the and murderous assaultive imprisonment, Appellee’s attempted him expose any penalty not to acts did him charge brought against could have been murder until Detter, court engaged the defendant in what the 2007. acts” at a time when a death sentence was termed “murderous and, thus, disad- arguably not foreseeable was a subjected penalty and to an when the vantaged enhanced just victim penalty days reinstated before her away. passed
Here, Appellee engaged never has deemed have been on behavior 1993.4 Because intentionally July murderous of third-degree require his conviction murder did not ultimate he intent, possible punishment his awareness specific if a result of his actions would face his victim died as could no had deterrent effect. have in an possible engaging it is a court
I further believe one involving assign criminal homicide inquiry at which criminal acts were committed date to the time charged could separate one time which he be and ie., this the death of the victim. In offense, following with an Judge President Peikes Superior I find Susan regard, convincing:5 forth in her analysis Gantman’s set dissent victim, Appellee stabbing first contrary, 4. at his trial denied To her, stomped although he he and he claimed admitted kicked drinking drug on the were result his excessive use his actions trial, Appellee night At his criminal asserted of the attack. homicide capacity high defense based on his level intoxication diminished evening. Judge Cheryl joined in this dissent. Allen *25 Here, Appellant did not ‘commit’ until victim the murder September Ramunno, died on Al supra. 2007. See the attack though before, happened years there was no offense, murder until final element the victim’s death, actually In my occurred. the court not opinion, did ‘retroactively apply’ 1102(d); rather, uti Section the court lized sentencing statute in effect the time Therefore, murder. the court’s was proper sentence be 1102(d) cause Section went into effect before Bull, murder occurred. See Calder v. 3 U.S. 390 [3 386], Dall. 648, - (1798) (defining L.Ed.
law as “law changes punishment, inflicts a greater punishment, than crime, the law annexed to the committed”). when Rose,
Commonwealth v. (Pa.Super.2013) A.3d (en banc) J., Indeed, (Gantman, dissenting). it is absurd think that Appellee have charged could with criminal been in 1993 or homicide convicted of third-degree murder in in that miraculously his victim his attack for over a survived decade thereafter.
Simply put, Appellee not disadvantaged by changes was sentencing scheme be- third-degree murder which came in 1995 subject- effective because he have could not been prosecution ed to punishment criminal homicide charge until victim’s way, Appel- death. Stated another 1102(d) § lee’s pursuant Pa.C.S.
made more burdensome or retroactive since he could not have been charged with or of third-degree convicted to 2007. notes has the phrase defined “element offense,” of an “[s]uch as conduct or such attendant circum- stances or such a result of ... is conduct as in included description of the in the forbidden conduct definition § offense.” 18 Pa.C.S. reference the Calder above, categories described the Commonwealth contends that Court, Superior reaching conclusion, its “conspicuously expressly discarded the word ‘crime’ used the third Calder ” category replaced and it with the word ‘acts.’ Common- wealth’s at 29. According Commonwealth, Brief Superior Court’s substitution regard this conflates Calder’s first third categories, and ex and extends the third category beyond what was intended. Id. Rose, hand, on the Superior other maintains holding correct, Court’s rejected the court properly suggestion prohibi- Commonwealth’s tion applies only crimes, prior completed prior and not conduct. Rose avers Court that neither this nor the United States Supreme expressly application has limited manner, Ex Post Facto in this Clause and instead have definition, which, accepted expansive a more consistent with meaning Ex original federal state Facto Post involving defines offenses straddle as crimes elements which both occur change before and after a the law that either criminalizes the comple of elements combination or increases the for their Broughton, tion. J. Richard On and the Straddle Crimes Ex Post Facto Clauses, 2011) (hereinafter (Spring Geo. Mason L.Rev. Zimmer, (8th "Broughton”); see also U.S. 299 F.3d Cir. 2002). acts, Clauses, conduct, activity. Rose encompasses past have state courts which appellate further offers other Facto uniformly have held that the Ex Post faced this issue criminal