from the Judgment of Sentence Entered January 30, 2014 In the
Court of Common Pleas of Dauphin County Criminal Division at
BEFORE: BENDER, P.J.E., BOWES, PANELLA, LAZARUS, OTT,
STABILE, DUBOW, MOULTON, and RANSOM, JJ.
Kwame Lamar Barnes appeals from the January 30, 2014 judgment
of sentence entered in the Common Pleas Court of Dauphin
County ("trial court"), following his jury
convictions for criminal attempt-homicide, aggravated
assault, kidnapping, and recklessly endangering another
person ("REAP"). Upon review, we vacate and remand for
facts and procedural history underlying this appeal are
undisputed. On December 19, 2010, the victim, who was sixteen
at the time of trial, was sleeping alone at her mother's
home in Steelton when she received a text message from
Appellant, her ex-boyfriend. N.T. Trial, 2/28/12, at 136-39.
Although they were no longer dating, the victim and Appellant
still had an amicable relationship. Id. at 139.
Appellant indicated in the text message that he was at the
back door of the residence and the victim allowed Appellant
to enter the home. Id. at 140. The victim and
Appellant went upstairs to the victim's bedroom where
they talked, engaged in sexual intercourse, and then talked
again. Id. at 140-41. They then had an argument. The
victim asked Appellant to leave and she escorted him
downstairs to the back door. Id. at 141-42. Prior to
leaving, Appellant threatened to hit the victim with a
vacuum. Id. at 143-44. Subsequently, Appellant
strangled the victim from behind by using his arm.
Id. at 144-45. She lost consciousness. Id.
at 145. When she regained consciousness, Appellant said to
the victim, "you're gonna die today, " and
proceeded to strangle her again until she lost consciousness
a second time. Id. at 145-47. When the victim
finally regained consciousness, she was wrapped in a blanket
and lying head-first in a recycling dumpster under the State
Street Bridge. Id. at 147-50. She eventually freed
herself and managed to get to the side of a roadway, where
the driver of a passing vehicle stopped and took her to the
hospital. Id. at 149. The victim suffered a broken
vertebra in her neck, various facial injuries, a lacerated
and swollen tongue, a large contusion to her right eye, and
hypothermia. Id. at 16-21.
December 20, 2010, Appellant was charged with criminal
attempt to commit homicide ("attempted murder"),
aggravated assault, kidnapping, REAP, terroristic threats,
and theft by unlawful taking. On February 28, 2012, at the
conclusion of a jury trial, Appellant was found guilty of
attempted murder, aggravated assault, kidnapping, and REAP.
The jury found Appellant not guilty for the charge of
terroristic threats. On May 18, 2012, Appellant was sentenced
to a term of incarceration of 20 to 40 years for the
conviction of attempted murder, a consecutive term of
incarceration of 2½ to 5 years for his conviction of
aggravated assault, and a consecutive term of incarceration
of 2½ to 5 years for his conviction of kidnapping. The
trial court imposed no additional sentence for the conviction
of REAP. Appellant timely appealed to this Court.
December 3, 2013, a panel of this Court ("2013
decision") determined that the convictions of aggravated
assault and attempted homicide should have merged because the
crimes arose from a single set of facts, i.e.,
Appellant choked the victim to unconsciousness. Accordingly,
the panel vacated the judgment of sentence, and remanded for
resentencing. Commonwealth v. Barnes, No. 691 MDA
2013, unpublished memorandum, at 2-3 (Pa. Super. filed
December 3, 2013). On January 30, 2014, upon remand, the
trial court resentenced Appellant to 20 to 40 years'
imprisonment for attempted murder and a consecutive term of
incarceration of 5 to 10 years for the conviction of
kidnapping. On February 5, 2014, Appellant filed a
post-sentence motion, which the trial court denied on May 12,
2014. The instant appeal followed.
raises four issues on appeal:
[I.] Apprendi doctrine. The United States
Constitution mandates that juries should decide all facts
that increase a crime's statutory maximum sentence. Here,
a jury convicted [Appellant] of attempted murder, generally-a
20 year maximum sentence. If the trial court submits the
crime of attempted murder resulting in serious bodily injury
to the jury, the maximum sentence increases to 40 years. But
[the trial] court didn't submit this element. Is
[Appellant's] legal attempted murder maximum sentence 20
[II.] Substantial questions. To appeal the discretionary
aspects of a sentence, an appellant must present a
"substantial question" why the sentencing
court's actions are inconsistent with the Sentencing Code
or contrary to the fundamental norms underlying the
sentencing process. This sentencing court: (1) increased a
crime's sentence where the only changed fact was the
exercise of appellate rights; and (2) failed to provide
reasons for its new sentence on the record. Does [Appellant]
raise substantial questions?
[III.] Judicial Vindictiveness. A presumption of
vindictiveness arises where a sentencing court imposes a more
severe sentence absent objective evidence justifying an
increased sentence. This trial court doubled
[Appellant's] kidnapping sentence at his resentencing. It
based the increased sentence on the same facts and
information as at the time of the original sentence. Is
[Appellant's] new kidnapping sentence void?
[IV.] Record reasons for an imposed sentence. On
resentencing, following remand, the court shall make as a
part of the record, and disclose in open court at the time of
sentence, a statement of reason or reasons for the imposed
sentence. In [Appellant's] five-minute resentencing this
record does not make such a statement. Should this Court
vacate [Appellant's] current sentence and resentence him
to provide a reasoned statement?
Appellant's Brief at 8-9.
Court certified this case for en banc review to
address the following issues: (1) Whether, under Apprendi
v. New Jersey, 530 U.S. 466 (2000), the jury was
required to render a separate finding of serious bodily
injury for the crime of attempted murder to subject Appellant
to the 40-year maximum sentence for such crime? (2) Whether
the law of the case doctrine applies here based on the 2013
decision issued by a panel of this Court?
first argues that the trial court erred in applying Section
1102(c) of the Crimes Code, 18 Pa.C.S.A. § 1102(c), when
it imposed a maximum term of imprisonment of 40 years for the
offense of attempted murder in the absence of a jury finding
of serious bodily injury arising from such offense. As a
result, Appellant argues that his sentence for attempted
murder violates the United States Supreme Court's
decision in Apprendi, wherein the Court held that
"[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt." Apprendi, 530 U.S.
at 490; accord Commonwealth v. Gordon, 942 A.2d 174,
175 n.1 (Pa. 2007), cert. denied, 553 U.S. 1028
(2008); Commonwealth v. Conaway, 105 A.3d 755, 761
(Pa. Super. 2014), appeal denied, 118 A.3d 1107 (Pa.
2015). We agree.
outset, we note that Appellant's claim implicates the
legality of a sentence. Commonwealth v. Aponte, 855
A.2d 800, 802 n.1 (Pa. 2004). "Issues relating to the
legality of a sentence are questions of law . . . . Our
standard of review over such questions is de novo
and our scope of review is plenary." Commonwealth v.
Brougher, 978 A.2d 373, 377 (Pa. Super. 2009) (citation
1102(c) of the Crimes Code provides, "a person who has
been convicted of attempt . . . to commit murder . . . where
serious bodily injury results may be sentenced to a
term of imprisonment which shall be fixed by the court at
no more than 40 years." 18 Pa.C.S.A. §
1102(c) (emphasis added). "Where serious bodily injury
does not result, the person may be sentenced to a term of
imprisonment which shall be fixed by the court at not more
than 20 years." Id. Indeed, in Commonwealth
v. Johnson, 910 A.2d 60 (Pa. Super. 2006), appeal
denied, 923 A.2d 1173 (Pa. 2007), we explained that
Section 1102(c) "imposes a condition precedent to the
imposition of a maximum term of imprisonment of up to 40
years, specifically, that 'serious bodily injury'
must have resulted from the attempted murder. Otherwise, the
sentence shall be not more than 20 years."
Johnson, 910 A.2d at 66. Serious bodily injury is
"a fact that must be proven before a maximum sentence of
 years may be imposed for attempted homicide."
Commonwealth v. Reid, 867 A.2d 1280, 1281 (Pa.
Super. 2005), appeal denied, 890 A.2d 1058 (Pa.
2005). Moreover, a defendant must be put on notice when the
Commonwealth is seeking a 40-year maximum sentence for
attempted murder. See id. at 1284
Johnson, the Commonwealth charged and the jury
convicted the defendant of, inter alia, attempted
murder and aggravated assault arising from the
defendant's ambush and shooting of the victim who
previously had testified for the Commonwealth against the
defendant's brother in an unrelated first-degree murder
case. During the attack in question on the victim, the
defendant pointed a handgun at the victim's head and
fired but missed. The defendant then pursued the victim and
fired several more rounds at her, striking the victim in the
heel of her foot. At sentencing, the trial court imposed upon
the defendant a term of imprisonment of 17½ to 40
years for attempted murder.
other issues, the defendant challenged on appeal the
attempted murder sentence based on insufficient evidence of
serious bodily injury. The trial court reasoned that serious
bodily injury had been established because the jury found the
defendant guilty of the companion offense of aggravated
assault. Relying, however, on the precepts of
Apprendi, this Court explained:
[I]t was not the prerogative of the trial court, but
solely the responsibility of the jury in this case
to find, beyond a reasonable doubt, whether a serious bodily
injury resulted from the instant attempted murder.
. . . .
Here, however, (1) [the defendant] was not charged with
attempted murder resulting in serious bodily injury, (2) [the
defendant] was not on notice that the Commonwealth sought
either to prove that a serious bodily injury resulted from
the attempted murder or to invoke the greater maximum
sentence, and (3) the jury was never presented with, nor
rendered a decision on, the question of whether a serious
bodily injury resulted from the attempted murder. Thus, the
jury verdict here was limited to a finding of guilt
on the crime of attempted murder generally, for
which the maximum sentence is  years.
Johnson, 910 A.2d at 67-68 (emphasis added)
our review of the record reveals that the docket sheet does
not show that Appellant was charged with attempted murder
resulting in serious bodily injury. Specifically, both the
complaint and the information sub judice do not
allege that Appellant caused serious bodily injury to the
victim when he attempted to kill her. The verdict sheet in
this case also is bereft of any mention of serious bodily
injury with respect to the attempted murder charge.
Additionally, the jury here was not instructed to render a
finding on whether serious bodily injury resulted from the
criminal attempt. Particularly, the trial court instructed
the jury as follows:
[Appellant] has been charged with criminal attempt, murder.
To find [Appellant] guilty of this offense you must find that
the following three elements have been proven beyond a
First, that [Appellant] did a certain act; that is, he
physically assaulted and strangled [the victim].
Second, that at the time of this alleged act, [Appellant] had
the specific intent to kill [the victim]; that is, he had the
fully formed intent to kill and was conscious of his own
And, third, that the act constituted a substantial step
toward the commission of the killing [Appellant] intended to
The meaning of substantial step: A person cannot be guilty of
an attempt to commit a crime unless he or she does an act
that constitutes a substantial step toward the commission of
An act is a substantial step if it is a major step toward
commission of the crime and also - and also strongly
corroborates the jury's belief that the person at the
time he did the act had a firm intent to commit the crime.
I'll read that again, because they use the same words to
define what you're supposed to understand.
An act is a substantial step if it is a major step toward
commission of the crime and also strongly corroborates the
jury's belief that the person at the time he did the act
had a firm intent to commit the crime.
An act can be a substantial step even though other steps
would have been taken before the crime could be carried out.
If you are satisfied that the three elements of attempted
murder have been proven beyond a reasonable doubt, you should
find [Appellant] guilty. Otherwise, you must find ...