Commonwealth v. Haynes

J-A20017-15

2015 PA Super 214

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

ROYSCE HAYNES,

Appellee No. 2067 EDA 2014

Appeal from the Judgment of Sentence July 1, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014368-2012, CP-51-CR-0014369-

2012

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROYSCE HAYNES,

Appellant No. 2219 EDA 2014

Appeal from the Judgment of Sentence July 1, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014368-2012, CP-51-CR-0014369-

2012

BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.

OPINION BY SHOGAN, J.: FILED OCTOBER 05, 2015

In these cross-appeals, Roysce Haynes (“Haynes”) and the

Commonwealth appeal from the judgment of sentence entered on July 1,

2014, in the Philadelphia County Court of Common Pleas. On appeal, the

J-A20017-15

Commonwealth challenges the trial court’s refusal to apply 42 Pa.C.S. §

9715, which mandates a life sentence for a defendant “who has previously

been convicted at any time of murder,” based on the trial court’s conclusion

that the term “murder” excludes “murder of an unborn child.” In his cross-

appeal, Haynes claims that the sentence of thirty-five to seventy years of

incarceration is manifestly excessive and fails to take into consideration his

mental health needs. After careful review, we conclude that neither party is

entitled to relief, and we affirm the judgment of sentence.

The trial court set forth the relevant factual background of this matter

as follows:

During the afternoon of September 10, 2012, Philadelphia

Probation and Parole Officers Shondell Williams and Evan Moore-

Mathis visited [Haynes]. As they approached his apartment, they

saw him sitting on the steps outside the apartment entrance. He

appeared stunned and was somewhat unresponsive to questions.

His head was lowered and when asked whether the police should

be summoned, he said yes. N.T. April 29, 2014, pp. 81-87.

Philadelphia Police Officer Jonathan Ransom was called to

850 Chelton Avenue in the Germantown section of Philadelphia.

There he encountered [Haynes], who told him that he had been

in an argument with his girlfriend, that the argument had

become physical, and that he had choked her. When Officer

Ransom went inside [Haynes’s] apartment, he saw the decedent,

Atiya Perry, lying on the floor and bleeding from the head. She

had no signs of life. Officer Ransom noticed a bloody towel lying

on the floor near her head. Id. at 32-46.

Dr. Marlin Osbourne, Assistant Medical Examiner,

performed the autopsy on the decedent and determined that her

death was a homicide achieved by strangulation. [The decedent]

also had small lacerations on her left cheek. Dr. Osbourne

determined that based on the size of the fetus in her uterus, she

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had been pregnant for seven weeks at the time of her death. Id.

at 113-124.

Detective Edward Tolliver took a statement from [Haynes]

the day of the killing. In it, [Haynes] acknowledged killing the

decedent. He said that the decedent had been hitting him with a

closed fist on the side of his head and that she had tried to use

pepper spray against him, and that he choked her. He also said

that the decedent had told him that she was pregnant, but that

he did not believe her. Id. at 139-157. Detective Tracey Byard

searched the apartment in the immediate aftermath of the

murder. He did not find any mace or pepper spray anywhere in

the apartment. Id. at 189. Prenatal vitamins and magazines

about pregnancy were found in the apartment. Id. at 68-69.

Trial Court Opinion, 9/18/14, at 2-3 (footnote omitted).

On September 10, 2012, Haynes was arrested and charged with

murder and murder of an unborn child.1 On April 30, 2014, following a jury

trial, Haynes was found guilty of murder in the third degree for killing Atiya

Perry and third-degree murder of her unborn child. On July 1, 2014, the

trial court sentenced Haynes to a term of twenty to forty years of

incarceration on the third-degree murder charge and a consecutive term of

fifteen to thirty years of incarceration for third-degree murder of an unborn

child. This resulted in an aggregated sentence of thirty-five to seventy

years. On July 21, 2014, the Commonwealth filed a timely notice of appeal

and on July 22, 2014, Haynes filed a timely cross-appeal. The

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1

An additional charge of abuse of a corpse was dismissed at the preliminary

hearing.

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Commonwealth, Haynes, and the trial court have complied with Pa.R.A.P.

1925.

Commonwealth’s Appeal at 2067 EDA 2014

In a case of first impression, in the appeal at Superior Court Docket

Number 2067 EDA 2014, the Commonwealth presents the following issue for

this Court’s consideration:

Did the lower court impose an illegal sentence by declining to

comply with 42 Pa.C.S. § 9715?

Commonwealth’s Brief at 2.

We review an illegal-sentence claim pursuant to the following

parameters:

The scope and standard of review applied to determine the

legality of a sentence are well established. If no statutory

authorization exists for a particular sentence, that sentence is

illegal and subject to correction. An illegal sentence must be

vacated. In evaluating a trial court’s application of a statute, our

standard of review is plenary and is limited to determining

whether the trial court committed an error of law.

Commonwealth v. Poland, 26 A.3d 518, 523 (Pa. Super. 2011) (citation

omitted).

Here, the Commonwealth avers that the trial court erred in failing to

apply the sentencing requirement set forth in 42 Pa.C.S. § 9715, which

provides as follows:

Life imprisonment for homicide

(a) Mandatory life imprisonment.--Notwithstanding the

provisions of section 9712 (relating to sentences for offenses

committed with firearms), 9713 (relating to sentences for

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offenses committed on public transportation) or 9714 (relating to

sentences for second and subsequent offenses), any person

convicted of murder of the third degree in this Commonwealth

who has previously been convicted at any time of murder

or voluntary manslaughter in this Commonwealth or of the same

or substantially equivalent crime in any other jurisdiction shall be

sentenced to life imprisonment, notwithstanding any other

provision of this title or other statute to the contrary.

42 Pa.C.S. § 9715(a) (emphasis added).

The crimes for which Haynes was convicted, third-degree murder and

third-degree murder of an unborn child, are defined as follows:

§ 2501. Criminal homicide

(a) Offense defined.--A person is guilty of criminal homicide if

he intentionally, knowingly, recklessly or negligently causes the

death of another human being.

(b) Classification.--Criminal homicide shall be classified as

murder, voluntary manslaughter, or involuntary manslaughter.

18 Pa.C.S. § 2501.

§ 2502. Murder

(a) Murder of the first degree.--A criminal homicide

constitutes murder of the first degree when it is committed by an

intentional killing.

(b) Murder of the second degree.--A criminal homicide

constitutes murder of the second degree when it is committed

while defendant was engaged as a principal or an accomplice in

the perpetration of a felony.

(c) Murder of the third degree.--All other kinds of murder

shall be murder of the third degree. Murder of the third degree is

a felony of the first degree.

18 Pa.C.S. § 2502.

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§ 2604. Murder of unborn child

* * *

(c) Third degree murder of unborn child.--

(1) All other kinds of murder of an unborn child shall

be third degree murder of an unborn child.

(2) The penalty for third degree murder of an unborn

child is the same as the penalty for murder of the

third degree.

18 Pa.C.S. § 2604(c).

The Commonwealth argues that the trial court erred in not imposing a

life sentence and cites to Commonwealth v. Morris, 958 A.2d 569 (Pa.

Super. 2008) (en banc) as support for its argument. Commonwealth’s Brief

at 7. In Morris, a case where the appellant was convicted of two separate

counts of third-degree murder, an en banc panel of this Court concluded that

even though both convictions arose from the same criminal incident and

trial, the trial court did not err in applying 42 Pa.C.S. § 9715 and imposing a

life sentence. The Morris Court concluded that while the appellant was

convicted of two third-degree murders in the same trial, the “at any time”

language from the statute allowed one of the murder convictions to mandate

a life sentence for the other murder conviction.

The Commonwealth also argues that the term “murder” as used in the

phrase “previously been convicted at any time of murder” is unambiguous

and includes “murder of an unborn child.” Commonwealth’s Brief at 7.

Thus, the Commonwealth asserts that Haynes was “previously convicted of

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murder” because the jury convicted him of third-degree murder of an

unborn child as well as third-degree murder of decedent, Atiya Perry.

Accordingly, the Commonwealth claims the trial court imposed an illegal

sentence when it did not sentence Haynes to a mandatory term of life in

prison. Commonwealth’s Brief at 7.

It is undisputed that 42 Pa.C.S. § 9715 provides that when a

defendant “has previously been convicted at any time of murder or voluntary

manslaughter in this Commonwealth or of the same or substantially

equivalent crime in any other jurisdiction” it triggers the application of a life

sentence for a separate third-degree murder conviction. Morris further

instructs us that the order of commission or conviction of the offenses is

immaterial so long as the defendant has been convicted of another

“murder.” Morris, 958 A.2d at 580. However, the facts of the case sub

judice raise an additional issue: does murder of an unborn child qualify

as a crime contemplated by section 9715 that requires a life sentence upon

a separate third-degree murder conviction? Because we conclude that

murder of an unborn child is not an offense enumerated in section 9715

which triggers a mandatory life sentence,2 we affirm.

____________________________________________

2

Given our disposition, we decline to address the applicability of Morris.

However, we note that Morris may raise issues under Alleyne v. United

States, 133 S. Ct. 2151 (2013). In Alleyne, the United States Supreme

Court recognized a narrow exception for the fact of a prior conviction. Id.

at 2160, n.1 (citing Almendarez–Torres v. United States, 523 U.S. 224

(Footnote Continued Next Page)

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Section 9715 states that if a defendant is convicted of murder or

voluntary manslaughter in the Commonwealth of Pennsylvania, the

mandatory sentence of life in prison applies if that defendant is convicted of

an additional third-degree murder. 42 Pa.C.S. § 9715(a). However, section

9715(a) makes no mention of the separate crime of murder of an unborn

child. This creates some ambiguity, or uncertainty, in the statute.

Accordingly, we look to our well-established rules of statutory construction.

In considering a question of statutory construction, we are

guided by the sound and settled principles set forth in the

Statutory Construction Act, including the primary maxim that the

object of statutory construction is to ascertain and effectuate

legislative intent. 1 Pa.C.S. § 1921(a). In pursuing that end, we

are mindful that “when the words of a statute are clear and free

from all ambiguity, the letter of it is not to be disregarded under

the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). Indeed,

“as a general rule, the best indication of legislative intent is the

plain language of a statute.” In reading the plain language,

“words and phrases shall be construed according to rules of

grammar and according to their common and approved usage,”

while any words or phrases that have acquired a “peculiar and

appropriate meaning” must be construed according to that

meaning. 1 Pa.C.S. § 1903(a). However, when interpreting non-

explicit statutory text, legislative intent may be gleaned from a

variety of factors, including, inter alia: the occasion and

necessity for the statute; the mischief to be remedied; the

object to be attained; the consequences of a particular

interpretation; and the contemporaneous legislative history. 1

_______________________

(Footnote Continued)

(1998)). In Morris, however, the defendant did not have a prior

conviction, but rather was convicted concurrently of crimes, one of which

triggered the application of the mandatory minimum. Furthermore, the

Supreme Court in Alleyne appeared willing to revisit Almendarez–Torres,

but it declined to do so because the parties did not raise the issue of the

continued viability of Almendarez–Torres. Alleyne, 133 S. Ct. at 2160,

n.1.

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Pa.C.S. § 1921(c). Moreover, while statutes generally should be

construed liberally, penal statutes are always to be construed

strictly, 1 Pa.C.S. § 1928(b)(1), and any ambiguity in a penal

statute should be interpreted in favor of the defendant.

Commonwealth v. Grow, 2015 PA Super 186, at *1-*2, ___ A.3d ___,

___ (Pa. Super. 2015) (en banc) (citation omitted).

“Murder of an unborn child” is contained in Chapter 26 of the Crimes

Code, entitled “Crimes Against the Unborn Child Act,” as opposed to

“criminal homicide,” which is set forth in Chapter 25. Thus, the legislature

separated crimes against unborn children, including murder of an unborn

child, from crimes committed against other victims, and it placed crimes

against unborn children in a wholly separate chapter of the Crimes Code.

The Commonwealth argues that: “it cannot be seriously suggested

that ‘murder’ as used in § 9715 does not include all the degrees of

murder[.]” Commonwealth’s Brief at 12 (emphasis in original). Insofar as

this assertion labels murder of an unborn child as a degree of murder

generally, the Commonwealth is incorrect. Murder of an unborn child as set

forth in Chapter 26 of the Crimes Code, be it of the first, second, or third

degree, is not a “degree” of Chapter 25 murder – it is a crime distinct from

murder as defined in Chapter 25. Additionally, the available sentences for

crimes committed under Chapter 25 and Chapter 26 are markedly different

in that first degree murder is a capital offense, but first-degree murder of an

unborn child is not. Commonwealth v. Murray, 83 A.3d 137 (Pa. 2013).

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We are aware of no published case where a conviction for murder of

an unborn child under Chapter 26 served as the predicate to a life sentence

under 42 Pa.C.S. § 9715 for a separate conviction of Chapter 25 homicide,

or vice versa. Rather, what our research has uncovered is that in instances

where the facts are analogous to those in the case at bar, section 9715 was

not applied.

In Commonwealth v. Luster, 71 A.3d 1029 (Pa. Super. 2013), the

defendant was convicted of third-degree murder and third-degree murder of

an unborn child, but he received an aggregate sentence of fourteen to

twenty-eight years of incarceration. Similarly, in Commonwealth v.

Bullock, 913 A.2d 207 (Pa. 2006), the defendant was found guilty, but

mentally ill, of third-degree murder and voluntary manslaughter of an

unborn child; however, the trial court sentenced the defendant to

consecutive terms of imprisonment of fifteen to forty years for the murder of

the adult victim, and to a term of five to twenty years for voluntary

manslaughter of the victim’s unborn child. Id. at 211. Additionally, a case

distinguishing murder of an unborn child from homicide generally is

Commonwealth v. Booth, 766 A.2d 843 (Pa. 2001). In Booth, the

Pennsylvania Supreme Court held that the death of an unborn child resulting

from a motor vehicle accident where the defendant was driving under the

influence does not serve as the predicate for the crime of homicide by

vehicle while driving under the influence.

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Moreover, in another mandatory sentencing statute, 42 Pa.C.S. §

9714, which deals with sentences for second and subsequent offenses, the

Legislature specifically enumerated murder and murder of an unborn child as

separate offenses which can serve as a predicate offense to the imposition of

a mandatory minimum sentence. 42 Pa.C.S. § 9714(g). The decision to

specifically include murder of an unborn child in section 9714 illustrates the

Legislature’s awareness that murder and murder of an unborn child are

separate offenses, and conversely, the absence of murder of an unborn child

from section 9715 indicates that the omission was volitional.

In sum, the legislature chose to distinguish murder of an unborn child

from murder generally, and it chose not to add murder of an unborn child to

the predicate crimes specified in section 9715. The ambiguity evidenced in

this case could have been alleviated by the Legislature by its inclusion of

murder of an unborn child in section 9715, as it did in section 9714.

Because we conclude that murder of an unborn child is not one of the

offenses set forth in section 9715 triggering the imposition of a mandatory

life sentence for a separate conviction of third-degree murder, the trial court

was correct in holding that section 9715 did not mandate a life sentence in

the case at bar. The Commonwealth is entitled to no relief on its appeal.

Haynes’s Appeal at 2219 EDA 2014

In Haynes’s cross-appeal at Superior Court Docket Number 2219 EDA

2014, Haynes presents the following issue for this Court’s consideration:

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Did not the sentencing court abuse its discretion and impose a

manifestly excessive sentence when it sentenced the appellant

to 35 to 70 years[’] incarceration following a jury trial on the

charges of third degree murder, 18 Pa.C.S. § 2502(c) and third

degree murder of an unborn child, 18 Pa.C.S. § 2604(c), where

even the aggravated range of the sentencing guidelines called

for a lesser sentence and the trial court failed to take into

consideration appellant’s mental health needs?

Haynes’s Brief, at 4.

Haynes’s issue challenges the discretionary aspects of his sentence.

We note that “[t]he right to appeal a discretionary aspect of sentence is not

absolute.” Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa. Super.

1999). Rather, where an appellant challenges the discretionary aspects of a

sentence, the appeal should be considered a petition for allowance of appeal.

Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

An appellant challenging the discretionary aspects of his

sentence must invoke this Court’s jurisdiction by satisfying a

four-part test:

[W]e conduct a four-part analysis to determine: (1)

whether appellant has filed a timely notice of appeal,

see Pa.R.A.P. 902 and 903; (2) whether the issue

was properly preserved at sentencing or in a motion

to reconsider and modify sentence, see Pa.R.Crim.P.

[708]; (3) whether appellant’s brief has a fatal

defect, Pa.R.A.P. 2119(f); and (4) whether there is a

substantial question that the sentence appealed from

is not appropriate under the Sentencing Code, 42

Pa.C.S.A. § 9781(b).

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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). The determination of whether there is a substantial question is

made on a case-by-case basis, and this Court will grant the appeal only

when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 912-913

(Pa. Super. 2000).

Herein, the first three requirements of the four-part test are met:

Haynes brought a timely appeal, raised the challenges in a post-sentence

motion, and included in his appellate brief the necessary separate concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Haynes raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

In his Pa.R.A.P. 2119(f) statement, Haynes argues first that the trial

court failed to consider his mental health issues and rehabilitative needs.

Haynes’s Brief at 10. However, this Court has held on numerous occasions

that a claim of inadequate consideration of such factors does not raise a

substantial question for our review. E.g., Commonwealth v. Cannon, 954

A.2d 1222, 1229 (Pa. Super. 2008). We point out that Haynes does not

allege that the trial court was unaware of his mental health issues or his

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rehabilitative needs. Indeed, Haynes has not raised an issue that his

sentence is “(1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.” Moury, 992 A.2d at 170. Thus, we conclude that this

claim fails to present a substantial question for review.3

Next, Haynes avers that the trial court sentenced him to a term of

imprisonment that exceeded the aggravated range of the sentencing

guidelines resulting in a manifestly excessive sentence. Haynes’s Brief at

11-12. While a bald claim of excessiveness does not present a substantial

question for review, a claim that the sentence is manifestly excessive,

inflicting too severe a punishment, does present a substantial question.

Commonwealth v. Cartrette, 83 A.3d 1030, 1038 (Pa. Super. 2013).

Because Haynes’s second issue arguably presents a claim that the sentence

is manifestly excessive and too severe, we conclude that Haynes has

presented a substantial question, and we proceed with our analysis.

Sentencing is a matter vested in the sound discretion of the sentencing

judge, and a sentence will not be disturbed on appeal absent a manifest

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3

We also point out that this argument is belied by the record. The trial

court specifically noted that it reviewed Haynes’s Presentence Investigation

(“PSI”) report and Mental Health Report prior to sentencing. N.T.,

Sentencing, 7/1/14, at 4. Where a sentencing court is informed by a PSI

report, “it is presumed that the court is aware of all appropriate sentencing

factors and considerations, and that where the court has been so informed,

its discretion should not be disturbed.” Commonwealth v. Ventura, 975

A.2d 1128, 1135 (Pa. Super. 2009).

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abuse of discretion. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.

Super. 2006). In this context, an abuse of discretion is not shown merely by

an error in judgment. Id. Rather, the appellant must establish, by

reference to the record, that the sentencing court ignored or misapplied the

law, exercised its judgment for reasons of partiality, prejudice, bias or ill will,

or arrived at a manifestly unreasonable decision. Id.

Haynes argues that the trial court sentenced him to “a sentence that

far exceeded the aggravated range of the sentencing guidelines.” Haynes’s

Brief 35. Haynes is mistaken.

Haynes correctly notes that the offense gravity score (“OGS”) was

fourteen while his prior record score (“PRS”) was two. Haynes’s Brief at 11.

Haynes also correctly notes that the sentencing guidelines provide a

minimum recommended sentence of between eight years up to the statutory

limit. Id. It is at this point, however, that Haynes proffers a non sequitur.

He asserts that:

the trial court imposed a sentence that far exceeded the

aggravated range of the sentencing guidelines. [Haynes’s] prior

record consisted of an aggravated assault conviction, graded as

a felony of the second degree and a simple assault conviction,

thereby adding two points to his prior record score. The offense

gravity score for both crimes he was convicted of, third degree

murder and third degree murder of an unborn child, was

fourteen. 204 Pa.Code § 303.7. Consequently, the sentencing

guidelines recommended a range of ninety-six (96) months (or

eight years) to the statutory limit, plus or minus twelve months.

204 Pa.Code § 303.7. The trial court essentially disregarded

this range and sentenced Mr. Haynes to an aggregate

term of 35 to 70 years in custody.

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Haynes’s Brief at 35 (emphasis added).

After review, the trial court clearly did not disregard the sentencing

guidelines. In fact, in both the third-degree murder and third-degree

murder of a child convictions, Haynes received a sentence in the standard

range of the guidelines.

As noted, the applicable standard minimum-range sentence for each

crime was between eight years and the statutory limit. 204 Pa.Code §

303.16. For the third-degree murder charge, Haynes received a sentence of

twenty to forty years of imprisonment. Because forty years is the statutory

maximum,4 and because a minimum sentence cannot be more than half of

the maximum sentence,5 the statutory limit for the minimum was twenty

years. Therefore, Haynes’s sentence of twenty to forty years of

incarceration for third-degree murder was a standard-range sentence.

The same logic holds true for the sentence imposed for murder of an

unborn child. For the third-degree murder of an unborn child charge,

Haynes received a sentence of fifteen to thirty years of imprisonment.

Again, forty years is the statutory maximum,6 and because, as explained

above, a minimum sentence cannot be more than half of the maximum

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4

18 Pa.C.S. § 1102(d).

5

42 Pa.C.S. § 9756(b)(1).

6

18 Pa.C.S. § 1102(d).

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sentence, the statutory limit on the minimum was twenty years. Thus,

Haynes’s sentence of fifteen to thirty years of incarceration for third-degree

murder of an unborn child was a standard-range sentence, and no relief is

due.7

In conclusion, we discern no error in the trial court’s conclusion that 42

Pa.C.S. § 9715 was not applicable under the facts of this case, and

therefore, the Commonwealth is entitled to no relief in the appeal at 2067

EDA 2014. Additionally, we conclude that there was no abuse of discretion

in the sentence the trial court imposed, and Haynes is entitled to no relief in

the appeal at 2219 EDA 2014. Accordingly, we affirm the judgment of

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/5/2015

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7

To the extent that Haynes views his aggregate sentence of thirty-five to

seventy years as excessive due to the consecutive nature of the sentences,

that claim is completely undeveloped in his brief. As such, we deem any

argument as to the sentences being served consecutively waived on appeal.

Commonwealth v. Palo, 24 A.3d 1050, 1058 (Pa. Super. 2011).

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