Appeal from the Judgment of Sentence December 7, 2010 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CC 2008-0810, CP-02-CR-0000810-2008
BEFORE: STEVENS, P.J., [*] BENDER, BOWES, GANTMAN, DONOHUE, ALLEN, OLSON, OTT, and WECHT, JJ.
Stevenson Leon Rose appeals from the judgment of sentence of twenty to forty years incarceration imposed by the trial court after a jury convicted him of third degree murder. After considerable review, we vacate and remand for re-sentencing.
Appellant and Shawn Sadik brutally attacked Mary Mitchell in the early morning hours on July 13, 1993, in Larimer Park in the East Liberty section of Pittsburgh. During the attack, the victim was kicked in her head approximately sixty times, forty to fifty times by Appellant, and her throat was nearly severed. In addition, a sixteen-inch piece of aluminum framing was inserted into her vagina, causing serious internal bleeding. Appellant and Mr. Sadik left the victim naked and bleeding. Ms. Mitchell was initially found in Larimer Park by two drug addicts, James Migliore and Thomas Solomon. Initially, one of the men believed Ms. Mitchell was dead; however, when they discovered that she was alive, they moved her to a sidewalk and attempted to get help by knocking on surrounding neighborhood doors. Unsuccessful in these attempts, the two men telephoned police from a pay phone and awaited their arrival.
The police investigation led to Appellant and Mr. Sadik. Bloody clothing and shoes were recovered from Appellant's residence in the afternoon of July 13, 1993. After waiving his Miranda rights, Appellant provided police with a statement, which was recorded. In that statement, Appellant admitted that he and Mr. Sadik had been drinking and had attacked the victim by kicking and stomping her. He denied stabbing the victim.
The attack left Ms. Mitchell in a vegetative state; however, Ms. Mitchell did not succumb to her injuries until September 17, 2007. The Commonwealth initially tried Appellant for attempted murder, aggravated assault, involuntary sexual deviate intercourse, and recklessly endangering another person. A jury convicted Appellant of these crimes and, on March 16, 1994, the court sentenced Appellant to fifteen to thirty years imprisonment. This Court affirmed and our Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Rose, 664 A.2d 1059 (Pa.Super. 1995) (unpublished memorandum), appeal denied, 672 A.2d 306 (Pa. 1995).
Following the death of the victim, Appellant and Mr. Sadik were charged with criminal homicide on October 9, 2007. The two men were tried separately. Appellant asserted a diminished capacity defense based on his high level of intoxication. The defense offered evidence that, within twenty four hours of the attack, Appellant had consumed four twelve ounce beers, a forty ounce beer, three shots of gin, three shots of vodka, one-and-a-half quarts of wine, a gram of cocaine, and smoked two marijuana cigarettes. Appellant presented expert testimony that his blood alcohol level at the time of the attack was .40 and that he lacked the ability to formulate a specific intent to kill.
Ultimately, on October 13, 2010, the jury convicted Appellant of third-degree murder. At sentencing, Appellant maintained that when he assaulted the victim, the applicable sentence for third-degree murder was ten to twenty years, and, therefore, he could only be sentenced to that term of incarceration. The Commonwealth countered that because the murder was not complete until after the victim died, the current twenty to forty year maximum was applicable. See 18 Pa. C.S. § 1102(d). The sentencing court agreed with the Commonwealth and this timely appeal ensued.
The court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the trial court authored a Pa.R.A.P. 1925(a) decision. A panel of this Court initially vacated Appellant's sentence in a published decision, and the Commonwealth sought en banc review. This Court granted en banc re-argument. The matter is now ready for our review. Appellant presents two interrelated issues for this Court's consideration.
I. Whether the trial court's retroactive application of an after-enacted sentencing statute is prohibited by the express terms of 1 Pa.C.S.A. § 1926, which forbids retroactivity absent a clear and manifest intent by the General Assembly. And whether the trial court erred in retroactively applying the statute to conduct and acts which had been completed long before enactment of the statute.
II. Whether the sentencing court's retroactive application of 18 Pa.S.C.A. [sic] § 1102(d) to the Appellant's circumstances increased the punishment for criminal acts long after they had been committed, thereby violating the Ex Post Facto and Due Process Clauses of the Pennsylvania and United States Constitutions.
Appellant's brief at 4.
Appellant's retroactivity, ex post facto and due process positions are largely intertwined since retroactivity is integral to both whether an ex post facto and/or a due process violation occurred. Further, Appellant and the Commonwealth intermingle their retroactivity arguments with a discussion of ex post facto law. As we find Appellant's ex post facto argument dispositive, we proceed to that analysis.
Appellant's constitutional challenge is an as-applied attack on § 1102(d), in contrast to a facial challenge. This Court has explained the difference, stating,
A facial attack tests a law's constitutionality based on its text alone and does not consider the facts or circumstances of a particular case. An as-applied attack, in contrast, does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right....
Commonwealth v. Brown, 26 A.3d 485, 493 (Pa.Super. 2011).
Article I, Section 17 of the Pennsylvania Constitution is Pennsylvania's ex post facto clause. The prohibition against ex post facto laws has been part of Pennsylvania's Constitution since 1790. The clause reads, "No ex post facto law, nor any law impairing the obligation of contracts, or making irrevocable any grant of special privileges or immunities, shall be passed." Pa.Const. Art. I, § 17. Similarly, the federal constitution provides that "No State shall...pass any Bill of Attainder, ex post facto Law, or Law impairing the obligation of contracts...." U.S. Const. Article I, § 10. Our Supreme Court has opined that the "same pre-revolutionary-war concerns shaped the ex post facto provision of the constitutions of Pennsylvania and the United States." Commonwealth v. Gaffney, 733 A.2d 616, 621 (Pa. 1999). Accordingly, "the standards applied to determine an ex post facto violation under the Pennsylvania Constitution and the United States Constitution are comparable." Commonwealth v. Young, 637 A.2d 1313, 1317 n.7 (Pa. 1993); Commonwealth v. Allshouse, 36 A.3d 163, 184 (Pa. 2012) (citing Young, supra).
In interpreting the Pennsylvania Constitution, "great regard should be paid to spirit and intention" and it is important to examine the "probable intent of the makers." Farmers' & Mechanics' Bank v. Smith, 1817 WL 1771, 5 (Pa. 1817), reversed on other grounds at 19 U.S. 131 (1821) (emphases in original); Firing v. Kephart, 353 A.2d 833, 835-836 (Pa. 1976). As the eminent Chief Justice John Bannister Gibson stated,
A constitution is made, not particularly for the inspection of lawyers, but for the inspection of the million, that they may read and discern in it their rights and their duties; and it is consequently expressed in the terms that are most familiar to them. Words, therefore, which do not of themselves denote that they are used in a technical sense, are to have their plain, popular, obvious, and natural meaning[.]
Monongahela Nav. Co. v. Coons, 6 Watts and Serg. 101, 114 (Pa. 1843). Concomitantly, a fundamental precept in interpreting our constitution is that the language "must be interpreted in its popular sense, as understood by the people when they voted on its adoption. Our ultimate touchstone is the actual language of the Constitution itself." Stilp v. Commonwealth, 905 A.2d 918, 939 (Pa. 2006) (citations omitted).
Simply put, under long standing and established principles, we are required to examine the original public meaning of the text at issue, giving due regard to both its spirit and the intent of the framers of the clause. The text itself of the Pennsylvania and United States Constitution is largely un-illuminating. As Justice Chase opined with regard to the federal provision, "naked and without explanation, it is unintelligible, and means nothing." Calder v. Bull, 3 Dall. 386, 390 (1798).
In Calder, the United States Supreme Court first discussed the federal constitutional prohibition against ex post facto laws. Justice Chase noted that the phrase "ex post facto laws" was technical in nature and "had been in use long before the Revolution, and had acquired an appropriate meaning." Id. at 389; see also Peugh v. United States, 133 S.Ct. 2072, 2081 (2013) (citing Collins v. Youngblood, 497 U.S. 37, 41 (1990) and stating, "The phrase "'ex post facto' was a term of art with an established meaning at the time of the framing."). According to the Calder Court, the prohibition against ex post facto laws applied only to criminal law. Relying heavily on English common law scholar Richard Wooddeson's treatise,  Justice Chase set forth four specific types of laws that would violate the federal constitution's bar against ex post facto laws.
1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.2d. Every law that aggravates a crime, or makes it greater than it was, when committed.3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, ...