A defendant convicted of murder must be sentenced under the statute in effect at the time of the assault rather than the death of the victim, the Pennsylvania Supreme Court held in Com. v. Rose, __ A.3d __ (26 WAP 2014, filed Nov. 18, 2015). On July 13, 1993, Stevenson Rose and an accomplice brutally attacked the victim, Mary Mitchell, leaving her in a vegetative state. Rose was convicted of attempted murder and other charges in 1994 and sentenced to 15 to 30 years incarceration. Mitchell succumbed to her injuries in 2007, and Rose was tried and convicted of third-degree murder. At sentencing, he argued that the maximum sentence was 10 to 20 years, which was the maximum allowable sentence for third-degree murder at the time of the assault. The Commonwealth countered that Rose’s crime was not “complete” until Mitchell died in 2007, after the maximum sentence for third-degree murder had been raised to 20 to 40 years under 18 Pa. C.S. §1102(d). The sentencing court agreed with the Commonwealth and sentenced Rose to 20 to 40 years.
On appeal, an en banc Superior Court panel vacated Rose’s sentence and remanded for resentencing. Com. v. Rose, 81 A.3d 123 (Pa. Super. 2013). The Court reasoned that Rose’s sentence violated the Ex Post Facto Clauses of the United States and Pennsylvania Constitutions because all of the criminal acts causing the victim’s death were completed prior to the enactment of 18 Pa. C.S. §1102(d). The Supreme Court allowed the Commonwealth’s appeal.
Writing for the 4-1 majority, Justice Todd affirmed the Superior Court’s order vacating Rose’s sentence. The Court explained that, for purposes of evaluating whether a sentence for third-degree murder violates the Ex Post Facto Clause, the date on which all of the elements of the crime are met, including the death of the victim, is not dispositive. The intent behind the Ex Post Facto Clause, the Court reasoned, is “to prohibit the legislature from retroactively increasing the punishment not simply for completed crimes, but for an individual’s prior criminal acts.” To hold otherwise, the Court observed, would deprive a defendant of “fair warning” of the consequences of his actions. Here, Rose committed the criminal acts prior to the increase in the maximum allowable sentence, so he could not have had fair warning that he could face 40 years imprisonment if his victim died as a result of his actions.
In a concurring opinion, Chief Justice Saylor opined that the majority inaccurately depicted the Commonwealth’s position as “the prohibition against ex post facto laws does not apply to unintentional crimes.” Rather than engaging in a “distracting” analysis of intentionality or unintentionality, Chief Justice Saylor would focus on the broader requirements for culpability set forth in the Crimes Code to determine whether a defendant had fair notice of a potential punishment. Justice Eakin, in a separate concurring opinion, criticized as “fallacious” the Commonwealth’s premise that third-degree murder does not require specific intent to kill, noting that “absence of specific intent to kill is not an element of third-degree murder, nor did the jury find an absence of specific intent to kill.”
Justice Stevens authored a dissenting opinion criticizing the majority for allowing Rose to “escape appropriate punishment because the victim miraculously survived for a period of thirteen years.” Justice Stevens opined that because a victim’s death is an essential element of criminal homicide, Rose did not commit third-degree murder until Mitchell died in 2007. Rose was not disadvantaged by changes in the sentencing scheme because he could not have been subjected to prosecution and punishment for homicide until 2007.