Com. v. Brown, J.

J-A10030-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

JOHN BROWN :

:

Appellant : No. 1575 EDA 2022

Appeal from the Judgment of Sentence Entered September 29, 2021

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006696-2019

BEFORE: PANELLA, P.J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.: FILED SEPTEMBER 12, 2023

Appellant, John Brown, appeals nunc pro tunc from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas, following

his open guilty plea to attempted murder and possessing an instrument of

crime (“PIC”).1 We affirm.

The relevant facts and procedural history of this appeal are as follows.

On July 6, 2019, Appellant stabbed his girlfriend (“Victim”) in the neck when

she tried to end their relationship. Appellant twisted the knife in Victim’s neck

before stabbing her approximately seven more times in the face and elbow.

As a result of the attack, Victim required surgery and hospitalization.

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 901 and 907(a), respectively.

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On July 10, 2019, the Commonwealth filed the criminal complaint. In

it, the Commonwealth charged Appellant with attempted murder and PIC, as

well as aggravated assault, simple assault, and recklessly endangering

another person. The complaint stated that Appellant “attempted to cause the

death of [Victim] by stabbing her multiple times with a knife in the neck, face

and body thereby causing injury including a collapsed lung.” (Complaint,

dated 7/10/19, at 1). On September 25, 2019, the Commonwealth filed the

criminal information. Again, the Commonwealth charged Appellant with

multiple offense including attempted murder, PIC, and aggravated assault.

Regarding the charge of aggravated assault, the Commonwealth alleged that

Appellant “[a]ttempted to cause serious bodily injury” to Victim. 2

(Information, filed 9/25/19, at 1).

On June 2, 2021, Appellant executed a written guilty plea colloquy. The

written colloquy indicated that Appellant would enter an open guilty plea to

attempted murder and PIC, and the Commonwealth would drop the remaining

charges. For attempted murder, graded as a first-degree felony, Appellant

acknowledged that he could receive a sentence of up to twenty (20) to forty

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2 “Serious bodily injury” is defined as “[b]odily injury which creates a

substantial risk of death or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or

organ.” 18 Pa.C.S.A. § 2301.

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(40) years’ imprisonment.3 For PIC, graded as a first-degree misdemeanor,

Appellant acknowledged that he could receive a sentence of up to two and

one-half (2½) to five (5) years’ imprisonment. Thus, Appellant recognized

that he faced possible sentencing exposure of twenty-two and one-half (22½)

to forty-five (45) years’ imprisonment. (See Written Colloquy, dated 6/2/21,

at 1).

Also on June 2, 2021, the court conducted an oral colloquy at the plea

hearing. At that time, Appellant confirmed that the court could impose “a

maximum jail sentence of 45 years[.]” (N.T. Plea Hearing, 6/2/21, at 7).

Thereafter, the prosecutor provided the following factual basis for the plea:

On July 6th of 2019, near the area of 5933 Washington

Avenue, in the city and county of Philadelphia, [Appellant]

attempted to cause the death of [Victim] by stabbing her

multiple times with a knife on her neck, face and left elbow,

once she tried to end their then year-long relationship.

On that day, [Appellant] kept asking [Victim], “This is it?”

as she tried to walk away from him, and then proceeded to

punch her twice in the face, and then began to stab and

twist a knife in her neck. [Appellant] continued to stab her

approximately seven more times as [Victim] lay on the

ground.

[Victim] was rushed to Presbyterian Hospital, once police

arrived on scene, and she required surgery to treat her

multiple stab wounds. She remained in the hospital for four

days, from July 6th of 2019 to July 10th of 2019.

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3 The statutory maximum sentence for attempted murder “where serious

bodily injury results” is forty years. 18 Pa.C.S.A. § 1102(c). “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.

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(Id. at 12-13). Appellant did not object to or dispute the factual basis

provided by the Commonwealth. Thereafter, the court accepted Appellant’s

plea and deferred sentencing to obtain a presentence investigation (“PSI”)

report. (See id. at 13).

With the benefit of the PSI report, the court conducted Appellant’s

sentencing hearing on September 29, 2021. At the conclusion of the hearing,

the court sentenced Appellant to eleven (11) to twenty-five (25) years’

imprisonment for attempted murder, plus a concurrent term of two and one-

half (2½) to five (5) years’ imprisonment for PIC. Appellant timely filed a

post-sentence motion on October 8, 2021, which challenged the discretionary

aspects of his sentence. The court denied the post-sentence motion on

October 22, 2021. Appellant did not file a notice of appeal.

On November 29, 2021, Appellant requested reinstatement of his

appellate rights nunc pro tunc. The court granted relief on May 12, 2022.

Appellant timely filed a notice of appeal nunc pro tunc on June 11, 2022. On

June 13, 2022, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Appellant timely filed his Rule

1925(b) statement on June 22, 2022.

Appellant now raises one issue for this Court’s review:

Whether or not the trial court erred by sentencing Appellant

to a sentence greater than the lawful maximum.

(Appellant’s Brief at 2) (unnumbered).

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Appellant cites Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.

2348, 147 L.Ed.2d 435 (2000), for the proposition that facts increasing a

maximum sentence must be admitted by the defendant or found by a jury

beyond a reasonable doubt. Appellant invokes Apprendi because the

Commonwealth did not specifically charge him with attempted murder

“causing ‘serious bodily injury,’ which is what triggers the maximum sentence

of 40 years.” (Id. at 3). To satisfy Apprendi, Appellant argues that “a

defendant must be charged with causing serious bodily injury or at least be

‘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.’” (Id.) (quoting Commonwealth v. Johnson, 910 A.2d 60, 67

(Pa.Super. 2006), appeal denied, 592 Pa. 766, 923 A.2d 1173 (2007)).

Because the criminal complaint in the instant case did not use the phrase

“serious bodily injury” in conjunction with the attempted murder charge,

Appellant insists that he did not receive proper notice of the Commonwealth’s

intent to pursue a forty-year maximum sentence. Appellant concludes that

this Court must vacate his judgment of sentence and remand the matter for

resentencing. We disagree.

“The defendant or the Commonwealth may appeal as of right the legality

of the sentence.” 42 Pa.C.S.A. § 9781(a). “As long as the reviewing court

has jurisdiction, a challenge to the legality of the sentence is non-waivable

and the court can even raise and address it sua sponte.” Commonwealth v.

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Infante, 63 A.3d 358, 363 (Pa.Super. 2013). “A challenge to the legality of

sentence is a question of law; our standard of review is de novo and our scope

of review is plenary.” Commonwealth v. Alston, 212 A.3d 526, 528

(Pa.Super. 2019).

A claim that implicates the fundamental legal authority of

the court to impose a particular sentence constitutes a

challenge to the legality of the sentence. If no statutory

authorization exists for a particular sentence, that sentence

is illegal and subject to correction. An illegal sentence must

be vacated. Likewise, a sentence that exceeds the statutory

maximum is illegal. If a court imposes a sentence outside

of the legal parameters prescribed by the applicable statute,

the sentence is illegal and should be remanded for

correction.

Infante, supra at 363 (internal citations and quotation marks omitted).

“Other 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,

supra at 490, 120 S.Ct. at 2362-63, 147 L.Ed.2d at ___.

[I]n Blakely v. Washington, 542 U.S. 296, 124 S.Ct.

2531, 159 L.Ed.2d 403 (2004), the United States Supreme

Court clarified its holding in Apprendi by indicating that, at

sentencing, the trial court may not make judicial

determinations concerning material facts not charged and

never placed before the factfinder. This Court recently

noted that Apprendi does not suggest that it is

impermissible for a trial judge to impose sentence within

the applicable statutory maximum. Commonwealth v.

Bromley, 2004 PA Super 422, 6, 862 A.2d 598 (filed

October 29, 2004) (quoting Apprendi, 530 U.S. at 481, 120

S.Ct. 2348). We also noted that it is inconsistent with the

federal constitution for a sentencing court to impose a

sentence predicated on facts not found by a jury, when a

jury trial has been conducted in the matter.

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Commonwealth v. Reid, 867 A.2d 1280, 1281-82 (Pa.Super. 2005), appeal

denied, 586 Pa. 725, 890 A.2d 1058 (2005) (emphasis in original).

Nevertheless, “[t]he question that must be asked when … a defendant

… elects to enter a guilty plea, or a nolo contendere plea, is whether either

the information or the complaint contains references that imply the existence

of a factor that affects the severity of the sentence.” Id. at 1283.

In Johnson, supra, the defendant fired a gun at the

victim’s head and missed. After firing several more shots,

Johnson struck the victim in the heel of her foot. A jury

convicted Johnson of attempted murder and aggravated

assault, among other crimes. The court imposed an

enhanced sentence of 17½ to 40 years’ imprisonment for

the attempted murder conviction, reasoning that the jury’s

finding of serious bodily injury associated with the

aggravated assault conviction also established serious

bodily injury for the attempted murder conviction. On

appeal, Johnson contested the 40-year maximum sentence

as illegal, because the Commonwealth failed to prove that

the victim suffered serious bodily injury in connection with

the attempted murder conviction.

In keeping with Apprendi, supra, this Court said: “[I]t was

not the prerogative of the trial court, but solely the

responsibility of the jury…to find, beyond reasonable doubt,

whether a serious bodily injury resulted from the instant

attempted murder.” Johnson, supra at 67. In arriving at

its decision, this Court emphasized the Commonwealth: (1)

had not charged Johnson with attempted murder/serious

bodily injury; (2) had not put Johnson on notice that the

Commonwealth would try to prove attempted

murder/serious bodily injury; (3) did not prosecute

Johnson for attempted murder/serious bodily injury; (4) did

not request and the court did not instruct the jury on serious

bodily injury associated with the attempted murder offense;

and (5) did not ask the jury to render a verdict on that

question. The Johnson Court concluded the jury verdict

was limited to a finding of guilty on the crime of attempted

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murder generally, which carried a maximum sentence of

only 20 years.

Commonwealth v. Bickerstaff, 204 A.3d 988, 996-97 (Pa.Super. 2019),

appeal denied, 655 Pa. 509, 218 A.3d 862 (2019) (emphasis added).

Compare Reid, supra (holding that forty-year maximum sentence for

attempted homicide was not illegal under Apprendi where: 1) defendant did

not proceed to jury trial; 2) defendant entered nolo contendere plea after

prosecutor provided facts that would be proven to jury, including fact that

victim was stabbed eleven times and her throat was slashed; 3) defendant did

not contest prosecutor’s summary of facts, which indicated that victim

suffered serious bodily injury; and 4) defendant explicitly acknowledged that

he could be sentenced to maximum term of forty years).

Instantly, the court determined that the Commonwealth provided ample

notice of its intent to prove serious bodily injury and pursue a forty-year

maximum sentence:

First, the [affidavit of probable cause] against [Appellant]

avers that he stabbed [Victim] “in [the] neck and dug it

around really deep,” in addition to stabbing her seven more

times, including her torso, resulting in a “collapsed left

lung.” The [affidavit of probable cause] further avers that

[Victim] was “bleeding heavily from the neck” and due to

the “severity of her injuries,” police did not wait for an

ambulance but immediately transported her to the hospital

for life-saving treatment. While the [affidavit of probable

cause and criminal complaint do] not use the phrase

“serious bodily injury,” it is beyond cavil that a collapsed

lung by itself is a serious bodily injury, never mind the

massive stab wound to the neck which would have caused

[Victim] to bleed out but for emergency police rescue.

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Moreover, the Information in this case charged [Appellant]

not just with attempted murder, but also with aggravated

assault, explicitly for “attempt[ing] to cause serious bodily

injury to another.” That this lesser included offense2

ultimately was nolle prossed due to [Appellant’s] guilty plea

does not “unring the bell.” Simply put, [Appellant] was on

explicit notice of “serious bodily injury.”

2 See Commonwealth v. Anderson, 650 A.2d 20,

24 (Pa. 1994) (holding aggravated assault is a lesser

included offense of attempted murder).

Additionally, at the preliminary hearing, [Victim] testified in

detail regarding the serious bodily injuries she sustained

from [Appellant’s] attack. Among other injuries, she

testified that [Appellant] stabbed her several times in the

left torso, causing her to suffer a collapsed lung, requiring

emergency surgery.

[Victim] further testified that [Appellant] stabbed her

several times in the neck, and even after she was down, he

stabbed her once more in the neck and twisted the knife to

increase the likelihood of death[.]

* * *

If the foregoing were not enough, [Appellant’s] written

guilty plea colloquy explicitly states that he is entering a

guilty plea to attempted murder with a permissible range of

sentence of “20-40” years, which [Appellant] endorsed via

signature. [Appellant] further acknowledged, “I know I can

go to jail for up to 22½-45 years and be fined $35,000 for

the crimes [of attempted murder and PIC] I committed.”

Finally, at his guilty plea hearing, [Appellant] again

confirmed his awareness that he was facing the greater

sentence for attempted murder[.]

(Trial Court Opinion, filed 9/20/22, at 5-7) (internal emphasis and record

citations omitted).

Our research confirms the court’s conclusions, and we emphasize that

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the record does not support Appellant’s argument regarding improper notice

of the possibility of a forty-year maximum sentence for attempted murder.

See Reid, supra. Because statutory authorization exists to support the

sentence imposed, we conclude that Appellant’s sentence is legal. See

Infante, supra; 18 Pa.C.S.A. § 1102(c). Accordingly, we affirm the

judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/12/2023

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