Lead Opinion
OPINION
This Court granted discretionary review in this criminal appeal to address whether appellant’s two prior armed robbery convictions arose from separate criminal transactions such that appellant was properly sentenced under what is commonly termed the “three strikes” provision of the Sentencing Code, 42 Pa.C.S § 9714(a)(2) (as amended December 20, 2000, effective in 60 days). For the reasons set forth below, we agree with the courts below that appellant’s prior convictions arose from separate criminal transactions and, accordingly, appellant was properly given an enhanced sentence as a three strike offender. We therefore affirm the order of the Superior Court.
On September 15,1999, a jury convicted appellant of escape, aggravated assault (two counts) and related offenses. The assaults occurred on January 28, 1999, when FBI Agent Charles Williams and Harrisburg City Police Officer Deborah Reigle attempted to arrest appellant on an escape charge. Rather than surrender, appellant put his vehicle into reverse and backed directly toward the officers, who had to leap out of the way of the oncoming vehicle in order to avoid being struck. Appellant rammed into Reigle’s police cruiser and, when his own vehicle became disabled, appellant fled on foot. When appellant was later apprehended, he spat in the face of a third officer, stating, “you’re lucky I didn’t have my gun.”
Appellant proceeded to a consolidated sentencing hearing on both cases on October 27, 1999. At the sentencing hearing, the Commonwealth introduced evidence proving that appellant had previously been convicted of two armed robberies in 1991 and argued that those robbery convictions constituted two prior crimes of violence arising from separate criminal transactions. The Commonwealth asserted that the assault of Officer Reigle, which was graded as a first degree felony, constituted a third crime of violence for which appellant should receive a mandatory minimum sentence of 25 years imprisonment pursuant to the “three strikes” law. In support of its contention, the Commonwealth introduced certified copies of the criminal indictments charging appellant with the 1991 robberies. In addition, the Commonwealth presented testimony concerning the circumstances of the prior offenses. Specifically, the Commonwealth introduced testimony that appellant and two co-defendants, John Straining and Charles Brown, robbed a person as he stood outside of the Maverick Steakhouse in Harrisburg at approximately 8:13 p.m. on the evening of February 7,1991. See N.T. 10/27/1999 at 10-11,16. Later that evening, at approximately 8:41 p.m., appellant and his two co-defendants robbed a second victim as she stood outside of Sisco’s Pizza Shop which is also in Harrisburg. The distance between the two locations is 3.3 miles and, the investigating detective testified, it took him approximately seven minutes to drive that particular distance at a speed of up to 45 miles per hour. Id. at 16-17.
Appellant, for his part, argued that he should not be sentenced under the “three strikes” law because the 1991 robberies arose from a single criminal transaction. In support of this argument, appellant read into the record an excerpt of co-
The trial court concluded that the 1991 robbery convictions constituted two predicate crimes of violence arising from separate criminal transactions. Accordingly, the trial court held that the instant aggravated assault conviction involving Officer Reigle qualified as appellant’s third crime of violence which triggered the “three strikes” provision. Consistently with that provision, the court sentenced appellant to a 25 to 50 year term of incarceration on this charge. The aggregate sentence imposed on all charges was 39 to 78 years of imprisonment. Appellant filed a motion to modify sentence, renewing his claim that the two prior robberies should be deemed a single transaction for purposes of Section 9714. The trial court denied the motion.
On appeal to the Superior Court, appellant renewed his claim that the trial court erred in sentencing him as a third strike offender because the 1991 robberies constituted a single criminal transaction. The Superior Court affirmed in an unpublished opinion, with Judge Cavanaugh concurring in the result only. The panel began its analysis of appellant’s “three strikes” claim by noting that it was a challenge to the discretionary aspects of appellant’s sentence and that such a claim may only be entertained by the appellate court when there is a substantial question that the sentence is not appropriate under the Sentencing Code as a whole. Superior Court slip op. at 5. The panel then observed that Pennsylvania courts have not defined the term “transaction” for purposes of the “three strikes” law. The panel noted, however, that the fourth edition of the Pennsylvania Sentencing Guidelines, which were
A transaction is a crime or crimes which were committed by an offender at a single time or in temporally continuous actions that are part of the same episode, event, or incident, or which are conspiracy and the object offense. “Spree” crimes are not part of the same transaction unless they occurred as continuous actions not separated in time by law-abiding behavior.
202 Pa.Code § 303.7(c) (amended effective June 13, 1997). Working from this definition, the Superior Court noted that the 1991 crimes were committed approximately 28 minutes apart and more than three miles apart. The temporal and geographical separation of the crimes, the panel reasoned, “constituted a break in criminal activity.” Slip op. at 7. Thus, the Superior Court concluded that the crimes were separate criminal transactions. Accordingly, the court held that there was no substantial question as to the appropriateness of the sentence and affirmed the trial court’s judgment of sentence. This Court granted discretionary review.
Appellant claims that the trial court erred in sentencing him under the “three strikes” law. Appellant agrees with the Superior Court that, in construing the term “transaction” in Section 9714, this Court should look to the definition of that term which was included in the fourth edition of the Sentencing Guidelines. Appellant contends that under this definition, the two robberies were a same transaction “spree crime:” i.e., it was a continuous action that was not sufficiently separated in time by lawful conduct so as to comprise more than one criminal transaction. In support of this assertion, appellant notes that he received concurrent sentences of seven and one-half to fifteen years’ imprisonment for the 1991 robbery convictions, a fact which suggests that the 1991 sentencing court viewed his crimes as arising from the same transaction.
The Commonwealth responds that the 1991 robbery convictions arose from crimes that “were separated in time and space” and thus appellant was properly sentenced as a “three strikes” offender. The Commonwealth notes that the common meaning of “transaction” is “an act, process, or instance of transacting.” Brief for Appellee at 3 (quoting Webster’s Third New International Dictionary). The Commonwealth argues that the two robberies, which occurred twenty-eight minutes apart at different locations separated by over three miles, “constituted separate acts and, therefore, separate transactions.” Id. at 3. The Commonwealth agrees with appellant that it is appropriate to look to the Sentencing Guidelines’ definition of the word “transaction,” but argues that, under that definition, appellant’s two previous robberies were not a spree crime that occurred as a single continuous action, but rather were separated by sufficient time and distance to constitute a break in criminal activity.
At the outset, we note that if this appeal were a challenge solely to the discretionary aspects of appellant’s sentence, this Court generally would lack jurisdiction to entertain the matter. See 42 Pa.C.S. § 9781(f) (“No appeal of the discretionary aspects of the sentence shall be permitted beyond the appellate court that has initial jurisdiction for such appeals.”); Commonwealth v. Mouzon,
We do not agree with the Superior Court, however, that appellant’s specific claim is one sounding entirely in the discretionary aspects of his sentence. Appellant’s contention that he was improperly sentenced as a three strike offender under Section 9714 of the Judicial Code, 42 Pa.C.S. § 9714, raises a question of statutory construction, which is a pure question of law. Commonwealth v. Gilmour Manufacturing. Co.,
The Pennsylvania General Assembly, like the United States Congress and the legislatures of many other states, has determined that recidivist violent offenders should face guaranteed and increasingly substantial periods of imprisonment. Section 9714 is aimed at accomplishing this goal. The “three strikes” provision of the statute addresses offenders who have been
Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.
42 Pa.C.S. § 9714(a)(2). A “crime of violence” includes, inter alia, aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) or (2), and robbery as defined in 18 Pa.C.S. § 3701(a)(l)(i), (ii), or (iii). 42 Pa.C.S. § 9714(g).
The term “transaction” is not defined in Section 9714 or elsewhere in the Sentencing Code. Nor are we aware of any
The word “transaction” arguably has acquired a “peculiar and appropriate meaning” in the sentencing context. The Sentencing Guidelines’ definition quoted above was part of the guideline commentary in previous editions of the Guidelines and the Superior Court has repeatedly cited this definition in construing the term “transaction” for Sentencing Guidelines purposes. See Commonwealth v. Kozarian,
We recognize that the Sentencing Commission, while being a legislative agency,
Before turning to that consideration, however, we note that the Sentencing Guidelines are not the only other instance in Pennsylvania criminal law where issues arise concerning whether multiple crimes should be treated as single or multiple episodes or transactions. For example, similar issues routinely arise under the compulsory joinder rule set forth in Section 110 of the Crimes Code. 18 Pa.C.S. § 110. Specifically, Section 110 prevents the Commonwealth from bringing a second prosecution if, inter alia, a former prosecution resulted in an acquittal or a conviction and the subsequent prosecution is for “any offense based on the same conduct or arising from the same criminal episode” and certain other factors, not relevant here, are also satisfied. Id. § 110(l)(ii). See Commonwealth v. Spotz,
This Court’s focus on logical and temporal relationships in the Section 110 context is, we believe, consistent with the considerations powering the Guidelines’ definition of a criminal “transaction.” The Guidelines’ focus upon “a single time,” “temporally continuous actions,” and continuous actions “not separated in time by law-abiding behavior” echo the temporal proximity factor under Section 110, while their emphasis upon the “same” “episode,” “event,” “incident” or “transaction” is similar to the Section 110 focus upon the logical relationship between the acts. These similarities reaffirm the propriety of accepting the parties’ invitation that we look to the Guidelines definition to assess whether appellant’s two prior convictions involved a single or multiple “transaction.”
Nor does the mere fact that appellant and his confederates committed the same type of crime upon the two victims render them “ ‘[s]pree’ crimes ... [that] occurred as continuous actions not separated in time by law abiding behavior.” Appellant did not, for example, rob the first victim outside of the Maverick Steakhouse and then immediately rob a second victim at the same location. Instead, appellant and his accomplices completed the first robbery, split the proceeds and left the scene of this crime. The trio then drove to a different location three miles away. In another apparent crime of opportunity, the three then robbed their second victim outside a pizza shop. Although the offenses were committed in relatively short proximity to one another, they were not part of a single, continuous train of criminal events with no break in criminal activity. Accordingly, we hold that the courts below properly deemed them to be “separate criminal transactions” for purposes of the three strikes provision.
In a separate argument, appellant also contends that he should not have been subject to a “three strikes” sentence because his 1991 robbery convictions led to a single term of imprisonment. Appellant notes that his is not the situation of an offender who had two separate failed opportunities for rehabilitation before committing his “third strike.” Appellant poses that Section 9714’s three strikes provision is only intended to punish those violent offenders who are punished and released at least twice, but then continue to commit additional violent offenses. Appellant submits that treating his two
Appellant’s argument interprets Section 9714 not according to its plain terms but according to what this Court has in other situations characterized as “the recidivist philosophy,” i.e., a philosophy suggesting that the “point of sentence enhancement is to punish more severely offenders who have persevered in criminal activity despite the theoretically beneficial effects of penal discipline.” Commonwealth v. Williams,
Appellant did not raise his recidivist philosophy-based argument at the sentencing hearing, in post-sentencing motions, or in his statement of matters complained of on appeal to the Superior Court. As a consequence, neither the trial court nor the Superior Court addressed the claim in their respective opinions. Since the claim was not properly raised and preserved below, we cannot reach it on this appeal. See Pa.R.A.P. 302(a); Pentlong Corp. v. GLS Capital, Inc., 820
Because appellant’s 1991 robbery convictions constituted two prior crimes of violence arising from separate criminal transactions, the trial court properly sentenced appellant under the “three strikes” provision. Accordingly, the order of the Superior Court is affirmed.
Notes
. The fourth edition of the Sentencing Guidelines became effective August 12, 1994. The three strikes provision was adopted by the General Assembly on October 11, 1995, and became effective 60 days thereafter.
. Our review of questions of law is not deferential but de novo, and our scope of review is plenary. Gilmour Manufacturing, supra; Stoner v. Stoner,
. We note that, following appellant’s sentencing in this matter, the General Assembly amended Section 9714 on December 20, 2000, effective in 60 days. The amendments removed provisions having to do with the presumption of high-risk dangerous offender. Subsection 9714(a)(2), which is at issue in this appeal, was not amended.
We also note that the Superior Court held in Commonwealth v. Eddings,
. The current version of the Guidelines (the fifth edition promulgated on June 13, 1997) is offense-based rather than transaction-based and does not use the term. The glossary to the implementation manual for the current edition, however, retains the prior definition of the word. See Sentencing Guidelines Implementation Manual, Fifth Edition, at 275.
. See 42 Pa.C.S. § 2151(a) ("The Pennsylvania Commission on Sentencing shall be established as an agency of the General Assembly...."’). See also Commonwealth v. Sessoms,
. See 42 Pa.C.S. § 2155(b) ("Subject to gubernatorial review pursuant to section 9 of Article III of the Constitution of Pennsylvania, the General Assembly may by concurrent resolution reject in their entirety any guidelines adopted by the commission....”). See also Sessoms, supra (describing power of Assembly to reject Guidelines and constitutional implications arising from that power).
Concurrence Opinion
concurring.
While I agree with the majority’s ultimate conclusion that Appellant Taboo Bradley was properly sentenced under the “three strikes” provision of the Sentencing Code, 42 Pa.C.S. § 9714(a)(2), I write separately to address what the majority calls Appellant’s “recidivist philosophy-based argument.” Op. at 1135.
Here, as the majority notes, Appellant was convicted of two armed robberies in 1991, and did not commit the aggravated assault at issue here until eight years later, in 1999. Given these circumstances, where Appellant had eight years to rehabilitate himself but opted not to, I agree with the majority that Appellant was properly given an enhanced sentence.
Such was not the case, at least in my view, in Commonwealth v. Vasquez,
Unlike the appellee in Vasquez, however, Appellant did in fact have an adequate opportunity to rehabilitate himself given that a period of eight years lapsed between his first two convictions and his third conviction. As such, I agree with the majority that Appellant was properly sentenced under the three-strikes law, and I am therefore able to join in the result reached by the majority.
Concurrence Opinion
concurring.
Since substantial aspects of the majority’s reasoning are predicated on waiver by and/or acquiescence of Appellant respecting debatable legal points, it is difficult to discern the extent to which the decision is meant to control future arguments concerning, in particular, the relevance of the Sentencing Commission’s regulations, or the recidivist philosophy, to interpretation of the Three Strikes Law. Thus, while I concur in the disposition of this appeal in light of Appellant’s presentation, I maintain reservations concerning undeveloped counterarguments, particularly the position that ambiguity in the General Assembly’s use of the phrase “separate criminal transactions” entitles defendants who may be subject to the Three Strikes Law to the benefit of the rule of lenity, see 1 Pa.C.S. § 1928(b)(1) (providing that the provisions of a penal statute be strictly construed); Commonwealth v. Lassiter,
I also would not consider the meaning of separate criminal transactions for purposes of Section 9714 in relation to the “same criminal episode” language underlying the compulsory
. For example, courts in other jurisdictions have focused upon: the location and time between the offenses, the number of victims involved, the existence of sequential docket numbers, and whether the defendant entered guilty pleas on the same date, was represented by the same • attorney, and received concurrently imposed sentences. See, e.g., Chronological or Procedural Sequence of Former Convictions as Affecting Enhancement of Penalty Under Habitual Offender Statutes, 7 A.L.R.5th at § 2b. Here, although the crimes involved different victims and separate locations, the time between the crimes was relatively brief, common issues of law and fact existed, the charges were consolidated, Appellant pleaded guilty to the offenses at the same time, and he received concurrent terms of incarceration.
. Under Section 110, crimes are treated as arising from the same criminal episode where there is a temporal and logical relationship, with the latter requirement focusing upon the existence of common issues of law and fact. See Commonwealth v. Hude,