Com. v. Cruz, G.

2024 Pa. Super. 174, 320 A.3d 1257

• Court: Superior Court of Pennsylvania
• Decided: August 8, 2024
• Docket: 2084 EDA 2020
• Status: Published

Opinion

J-E01002-24

2024 PA Super 174

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GABRIEL CRUZ : : Appellant : No. 2084 EDA 2020

Appeal from the PCRA Order Entered September 24, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0011957-2010

BEFORE: LAZARUS, P.J., BOWES, J., STABILE, J., DUBOW, J., KUNSELMAN, J., NICHOLS, J., KING, J., SULLIVAN, J., and LANE, J.

OPINION BY BOWES, J.: FILED AUGUST 08, 2024

Felix Santos was left in a persistent vegetative state after he received

puncture wounds to his heart, lung, and bowel that caused him to lose so

much blood that he suffered hypoxic brain damage. He sustained these

injuries as a consequence of Appellant Gabriel Cruz restraining him while Jose

Torres stabbed him repeatedly in the chest and torso. Appellant was convicted

by a jury of both aggravated assault—causing serious bodily injury and

attempted murder. He now contends that, because the jury did not separately

render a finding that Mr. Santos sustained serious bodily injury in connection

with the attempted murder charge, his enhanced sentence for that offense is

illegal pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000). While we

agree that Appellant’s constitutional rights were violated, we reject his claim

that his sentence is illegal. Rather, because it is manifest that Appellant J-E01002-24

suffered no harm from the Apprendi error, his illegal-sentence challenge is

unavailing. Therefore, we affirm the order that dismissed his petition filed

pursuant to the Post Conviction Relief Act (“PCRA”).

I. Case History

On May 9, 2010, a melee broke out among neighbors in Philadelphia.

Hostilities began after Appellant’s mother-in-law spat in the face of Mr.

Santos’s son when he refused to move his car from a parking spot. While Mr.

Santos went into his home to call the police, Torres, who is Appellant’s

brother-in-law, threatened to kill Mr. Santos and then battered his car with a

shovel. Mr. Santos then emerged from his residence and struck Torres with

a baseball bat before the police arrived and instructed everyone to return to

their homes. Shortly thereafter, Mr. Santos received a call informing him that

Torres had attacked Mr. Santos’s teenage nephew who lived across the street.

When the Santoses went outside, violence erupted among the men, women,

and children, and only ended after Torres stabbed Mr. Santos while Appellant

and another man held his arms then left him bleeding on his porch.

Following Appellant’s identification by several witnesses, he was

arrested and charged with attempted murder, aggravated assault, criminal

conspiracy, unlawful restraint, terroristic threats, simple assault, and

recklessly endangering another person. The criminal complaint included the

following supplemental allegations following the list of charges:

At or near the 700 block of West Butler Street, [Appellant] and his cohorts attempted to kill the victim, [Mr. Santos], or knowingly,

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intentionally, or recklessly under circumstances manifesting an extreme indifference to the value of human life [and] inflicted serious bodily injury on the victim. [Appellant] and his co- conspirators did this by stabbing the victim multiple times in the chest. [Appellant] acted in concert with another or others.

Criminal Complaint, 5/27/10, at 2 (capitalization altered, emphasis added).

The cases against Appellant, Torres, and the third defendant proceeded

to a joint jury trial while Mr. Santos remained unconscious, attached to a

ventilator, and fed through a tube placed directly into his stomach. Appellant

did not contest the nature of the injuries, but contended that he did not

participate in the assault of Mr. Santos. Specifically, counsel described

Appellant’s defense as follows during opening statements:

[Y]our heart goes out to the complainant in this matter. It has to go out to somebody that’s on life support in the way he is right now. But you know what, that’s not what we’re here for. We’re not here for that. We’re here to see was it this man, [Appellant], or anybody else was it them, are they the ones that did it. That’s the question. That’s what has to be decided.

N.T. Trial, 9/20/12, at 51. Indeed, no defendant disputed the medical

evidence concerning the nature and extent of Mr. Santos’s injuries. See N.T.

Trial, 9/24/12, at 80-82.

Following the close of evidence, the trial court instructed the jury that,

in order to find Appellant guilty of attempted murder, it must conclude that

the Commonwealth proved beyond a reasonable doubt that Appellant or a co-

conspirator stabbed Mr. Santos, that the stabbing was done with the specific

intent to kill Mr. Santos, and that the stabbing was a substantial step toward

committing murder. See N.T. Trial, 9/28/12, at 119-20. In turn, for the

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charge of “aggravated assault, causing serious bodily injury,” the trial court

instructed the jury that guilt had to be based upon the finding beyond a

reasonable doubt that Appellant “caused serious bodily injury to [Mr.] Santos.”

Id. at 122. The court further defined the term “serious bodily injury” as

“bodily injury that creates a substantial risk of death or that causes serious

permanent disfigurement or protracted loss or impairment of the function of

any bodily member or organ.”1 Id. The jury found Appellant guilty of both

crimes.2

The trial court initially sentenced Appellant to an aggregate term of forty

to eighty years of imprisonment, composed of consecutive sentences of

twenty to forty years for attempted murder, ten to twenty years for

aggravated assault, and ten to twenty years for conspiracy. However, the

court later vacated that judgment of sentence and, on January 14, 2014,

resentenced him to an aggregate term of thirty to sixty years of imprisonment

upon determining that Appellant’s aggravated assault conviction merged with

attempted murder for sentencing purposes, indicating that both convictions

____________________________________________

1 This is nearly identical to the definition include in the Crimes Code. See 18 Pa.C.S. § 2301 (defining “serious bodily injury” 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”).

2 The jury also convicted Appellant of conspiracy to commit aggravated assault, but acquitted him of conspiracy to commit murder. The Commonwealth nolle prossed the remaining charges.

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were based upon the same criminal act. See 42 Pa.C.S. § 9765 (“No crimes

shall merge for sentencing purposes unless the crimes arise from a single

criminal act and all of the statutory elements of one offense are included in

the statutory elements of the other offense.”).

On direct appeal, Appellant challenged the sufficiency of the evidence to

sustain his convictions and the discretionary aspects of his sentence. Finding

no merit in his claims, we affirmed his judgment of sentence, and our Supreme

Court denied his nunc pro tunc petition for discretionary review. See

Commonwealth v. Cruz, 122 A.3d 446, 2015 WL 7187959 (Pa.Super. 2015)

(unpublished memorandum), appeal denied, 188 A.3d 1120 (Pa. 2018).

Appellant filed a timely pro se PCRA petition. The court appointed

Thomas F. Coleman, Esquire, who sought to withdraw pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth

v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). Among the issues

addressed by Attorney Coleman was Appellant’s claim that sentencing counsel

should not have complained about the discretionary aspects of his sentence,

but instead asserted that it was illegal because it was beyond the statutory

maximum. See Turner/Finley Letter, 3/16/20, at 28.

Attorney Coleman analyzed the claim with reference to two statutes.

First, regarding felonies generally, § 1103 of the Crimes Code provides that,

with exceptions not relevant here, someone convicted of a first-degree felony

may be sentenced “for a term which shall be fixed by the court at not more

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than 20 years.” 18 Pa.C.S. § 1103(1). Second, and more specifically,

§ 1102(c) provides:

Notwithstanding [§] 1103(1) (relating to sentence of imprisonment for felony), a person who has been convicted of attempt, solicitation or conspiracy to commit murder . . . where serious bodily injury results may be sentenced to a term of imprisonment which shall be fixed by the court at not more than [forty] years. 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 [twenty] years.

18 Pa.C.S § 1102(c).

Having observed that Mr. Santos’s stab wounds were life-threatening

and left him comatose, Attorney Coleman concluded that Appellant’s

sentences of ten to twenty years for conspiracy and twenty to forty years for

attempted murder were not unlawful, but rather the maximum sentences

authorized by the respective statutes. See Turner/Finley Letter, 3/16/20,

at 24, 28-29. The PCRA court, agreeing with counsel as to the overall lack of

merit in Appellant’s petition, issued notice of its intent to dismiss it without a

hearing. Appellant did not file a response, and the court entered orders

allowing Attorney Coleman to withdraw and dismissing the petition.

Appellant filed a timely notice of appeal and the PCRA court issued an

order pursuant to Pa.R.A.P. 1925(b). Newly-appointed counsel, Matthew

Sullivan, Esquire,3 filed a Rule 1925(b) statement contending that the court

should have held a hearing on an claim concerning an alibi witness, and the

3 Another attorney was appointed and permitted to withdraw in the interim.

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trial court addressed that issue in its Rule 1925(a) opinion. However, in this

Court, Attorney Sullivan jettisoned that claim of error in favor of a claim that

Attorney Coleman provided ineffective assistance in failing to challenge the

legality of Appellant’s attempted-murder sentence pursuant to Apprendi.4

See Appellant’s brief at 5. The Commonwealth conceded the facial plausibility

of Appellant’s Apprendi claim and suggested a remand for the PCRA court to

consider it in the first instance. See Commonwealth’s brief at 8. Yet it noted

that, despite this Court’s precedent to the contrary, there was “a strong

argument” that the harmless error analysis employed by federal courts should

be considered to validate the sentence. Id. at 8 n.4.

Rather than remand for litigation of the ineffectiveness claim, a three-

judge panel of this Court sua sponte examined the underlying issue concerning

the legality of Appellant’s sentence and held that the sentence was unlawful

pursuant to Apprendi. The author of the instant opinion filed a concurrence,

agreeing that the majority’s ruling was correct under existing precedent, but

advocated for that precedent to be overruled in favor of the federal harmless

error paradigm. The Commonwealth filed an application for en banc

4 The new claim of Attorney Coleman’s ineffectiveness was properly raised on

appeal pursuant to Commonwealth v. Bradley, 261 A.3d 381, 401 (Pa. 2021) (“[A] PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel’s ineffectiveness at the first opportunity to do so, even if on appeal.”). We further note that Appellant fully briefed all three prongs of his ineffective assistance claim in accordance with Bradley and Commonwealth v. Lawrence, 309 A.3d 152, 156 (Pa.Super. 2023).

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reargument which we granted, prompting the withdrawal of the prior

memorandum. See Commonwealth v. Cruz, 2084 EDA 2020, 2023 WL

2003971 (Pa.Super. Feb. 15, 2023) (non-precedential decision), reargument

granted, memorandum withdrawn, 2084 EDA 2020, 2023 WL 3108559

(Pa.Super. Apr. 27, 2023).

The parties filed substituted briefs and the matter was scheduled for oral

argument. However, we granted an unopposed application to submit the case

for a decision on the briefs. Accordingly, the following question is now ripe

for our disposition: “Does the trial court’s sentence violate the Sixth

Amendment under Apprendi where the court imposed an enhanced sentence

for attempted murder, even though the jury did not render any finding

regarding the predicate fact for the enhanced sentence?” 5 Appellant’s

substituted brief at 5 (citation omitted).

II. Pertinent Precedent

A. Apprendi and its Application in Federal Courts

We begin our review with an examination of the Apprendi decision and

how it applies to sentencing challenges in federal court. In Apprendi, the

defendant received an enhanced sentence pursuant to a statute that permitted

5 Appellant in his substituted brief, in accordance with this Court’s withdrawn

panel decision, directly questions the legality of his sentence rather than alleging that Attorney Coleman was ineffective. Therefore, we have no cause to consider or discuss the elements of an ineffectiveness claim in determining whether to affirm the PCRA court’s order dismissing his petition.

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the trial judge to find by a preponderance of the evidence at sentencing that

the shooting at issue was a hate crime. The New Jersey Supreme Court held

that the statute was valid because the racial bias was not an element of the

underlying crime that had to be submitted to the jury to be found beyond a

reasonable doubt. The U.S. Supreme Court disagreed, holding that the due

process clause of the Fourteenth Amendment and the Sixth Amendment’s

right to a trial by jury mandate that:

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. . . . It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.

Apprendi, 530 U.S. at 490 (cleaned up).6

The question then became what to do about Apprendi violations. The

U.S. Supreme Court was presented with this issue in United States v.

Cotton, 535 U.S. 625 (2002). In Cotton, the operative indictment alleged

that the defendants engaged in a conspiracy to possess and distribute a

“detectable” amount of cocaine base but did not indicate any quantities. The

defendants were found guilty at a trial in which the amount of drugs was

6 In Blakely v. Washington, 542 U.S. 296, 303–04 (2004), the High Court

clarified that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings” beyond those made by the jury. Id. at 303-04.

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among the proffered evidence. An applicable statute set the statutory

maximum sentence of twenty years for possession of a detectable amount of

cocaine base with an increased maximum of life imprisonment if at least fifty

grams was involved. The trial court determined at sentencing that the

defendants possessed in excess of that threshold and sentenced them to

maximum terms above twenty years.

Apprendi was decided while the case was on appeal, prompting the

defendants to argue that Apprendi invalidated their sentences because the

enhancing element of the drug weight was neither alleged in the indictment

nor submitted to the jury. The Court of Appeals granted relief, concluding

that the failure to set forth all elements of the offense in the indictment

deprived the court of jurisdiction to impose a sentence for the offense. The

High Court reversed, first ruling that a defect in a federal indictment is not

jurisdictional. See Cotton, 535 U.S. at 629-31.

Next, the Cotton Court considered whether the defendants were

entitled to relief based upon the federal plain-error test, which permits an

appellate court to correct an error not raised at trial if the plain error affected

substantial rights and seriously impacted the fairness of the proceedings.

Ultimately, the Court found no lack of fairness because the evidence

establishing the quantity of cocaine base was “overwhelming and essentially

uncontroverted,” such that the jury would have found that the requisite weight

was involved. Id. at 633 (cleaned up). Thus, the Cotton Court held that

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sentencing the defendants based on facts not included in the indictment or

presented to the jury did not amount to plain error.

The U.S. Supreme Court considered Apprendi violations under the

rubric of harmless error in Washington v. Recuenco, 548 U.S. 212 (2006).

In that case, the defendant threatened his wife with a handgun during a fight

and was charged with “assault in the second degree, i.e., intentional assault

with a deadly weapon, to-wit: a handgun.” Id. at 215 (cleaned up). A jury

convicted him and made the specific factual finding that he was armed with a

deadly weapon at the time of the offense. At sentencing, the trial court found

that he had possessed a “firearm” during the commission of the crime, and

thus imposed a three-year mandatory sentence enhancement rather than the

one-year enhancement pertinent to possession of a generic “deadly weapon.”

Id. On appeal, the defendant argued, and the prosecution conceded, that the

sentence violated Apprendi and Blakely. The prosecution advocated a

finding of harmless error, but the Washington Supreme Court vacated the

sentence, deeming the error structural and thus not amenable to a harmless-

error analysis. Id. at 216.

The U.S. Supreme Court disagreed, relying heavily on its decision in

Neder v. United States, 527 U.S. 1 (1999). There, the Court observed that

“most constitutional errors can be harmless,” with the rare exceptions being

structural errors that “contain a defect affecting the framework within which

the trial proceeds, rather than simply an error in the trial process itself,”

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rendering the entire trial process “fundamentally unfair.” 7 Id. at 8-9 (cleaned

up). The Neder Court found “[t]he error at issue here—a jury instruction that

omits an element of the offense—differs markedly from the constitutional

violations we have found to defy harmless-error review.” Id. at 8.

Consequently, the Neder Court held that “the omission of an element is an

error that is subject to harmless-error analysis[.]” Id. at 15. As such,

“[w]here a reviewing court concludes beyond a reasonable doubt that the

omitted element was uncontested and supported by overwhelming evidence,

such that the jury verdict would have been the same absent the error, the

erroneous instruction is properly found to be harmless.” Id. at 17.

The Recuenco Court determined that Neder was indistinguishable from

the case before it, explaining:

Our decision in Apprendi makes clear that any possible distinction between an “element” of a felony offense and a “sentencing factor” was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation’s founding. Accordingly, we have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt. The only difference between this case and Neder is that in Neder, the prosecution failed to prove the element of materiality to the jury beyond a reasonable doubt, while here the prosecution failed to prove the sentencing factor of “armed with a firearm” to the jury beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes. ____________________________________________

7 The Court cited examples of structural error such as the complete deprivation

of counsel, racial discrimination in jury selection, or a biased trial judge. See Neder v. United States, 527 U.S. 1, 8 (1999) (collecting cases).

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Recuenco, 548 U.S. at 220 (cleaned up). The Court concluded: “Failure to

submit a sentencing factor to the jury, like failure to submit an element to the

jury, is not structural error.” Id. at 222. Hence, such Sixth Amendment

violations may be deemed harmless.

Since Recuenco was decided, federal courts, as well as many state

courts, have considered whether a violation of Apprendi and its progeny was

harmless because proof of the missing element was overwhelming or

uncontested before holding that relief is due. See, e.g., United States v.

Legins, 34 F.4th 304, 322 (4th Cir. 2022) (collecting cases); Niles v. State,

555 S.W.3d 562, 572 (Tex. Crim. App. 2018) (collecting cases).

B. Application of Apprendi in Pennsylvania Courts

Shortly before the U.S. Supreme Court decided Recuenco, this Court

was presented with an Apprendi challenge to an enhanced § 1102(c)

sentence for attempted murder in Commonwealth v. Reid, 867 A.2d 1280

(Pa.Super. 2005). In that case, Reid stabbed his victim eleven times then

slashed her neck, requiring multiple surgeries and ongoing treatment. He

entered a nolo contendere plea to attempted murder, and the judge sentenced

him to seventeen to forty years of imprisonment pursuant to § 1102(c). On

appeal, Reid claimed that his sentence was illegal pursuant to Apprendi

because the Commonwealth did not put him on notice that he was charged

with attempted murder causing serious bodily injury. This Court found no

Apprendi violation, observing that Reid was apprised by the criminal

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information and the plea colloquy that he faced up to forty years, and he

agreed with the facts of the victim’s injuries. Id. at 1285.

The following year, after Recuenco was handed down, we again

considered Apprendi in connection with § 1102(c) in Commonwealth v.

Johnson, 910 A.2d 60 (Pa.Super. 2006). In that case, Johnson and his

accomplice shot at a person who testified against Johnson’s brother at a

preliminary hearing. The initial shot aimed at the victim’s head missed, but a

subsequently-fired bullet struck her foot. Johnson was convicted of attempted

murder and aggravated assault and sentenced to seventeen to forty years of

incarceration for the attempted murder. On appeal, Johnson argued that his

sentence was illegal because the evidence was insufficient to establish that

the victim sustained serious bodily injury. This Court sua sponte examined

the sentence under Apprendi and determined it illegal because:

(1) [Johnson] was not charged with attempted murder resulting in serious bodily injury, (2) [Johnson] 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 twenty years.

Id. at 67–68 (cleaned up). While the trial court had deemed the sentence

appropriate because the jury had found the existence of serious bodily injury

in rendering the guilty verdict as to aggravated assault, this Court disagreed,

explaining:

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The fact that the jury may have considered the question of serious bodily injury when they were evaluating the Commonwealth’s evidence supporting the charge of aggravated assault is not relevant to a sufficiency analysis on the separate charge of attempted murder where serious bodily injury results. The Courts of Pennsylvania have consistently respected the authority of a jury to find, or to decline to find, the existence of each element of each criminal offense. Nor is there authority for a trial court to reason to a verdict of guilt by tacking the finding of culpability of one element of a companion offense on to a separate criminal offense upon which the jury had also rendered a verdict.

Id. at 68 n.10 (cleaned up). Notably, the Johnson Court did not acknowledge

the Recuenco decision and, since it raised the Apprendi issue sua sponte,

there was no opportunity for the Commonwealth to argue for a harmless error

analysis.

In the following decade, much of the appellate case law addressing

Apprendi issues concerned its extension in Alleyne v. United States, 570

U.S. 99 (2013), to define any fact that increases a mandatory minimum

sentence as an element of the crime which must be submitted to the jury. Id.

at 103. For example, in Commonwealth v. Watley, 81 A.3d 108, 120

(Pa.Super. 2013) (en banc), Watley appealed from his sentence imposed on

convictions for conspiracy, possession with intent to deliver (“PWID”), and

firearms violations. At sentencing, the trial court applied a mandatory

minimum based upon a statute requiring it if the judge at sentencing found

by a preponderance of the evidence that a firearm was in close proximity to

the drugs. Watley appealed, challenging the sufficiency of the evidence to

sustain his convictions, and Alleyne was decided during the pendency of the

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appeal. As it implicated the legality of the sentence, this Court sua sponte

considered the issue.

Nonetheless, this Court declined to disturb the sentence based upon the

Apprendi/Alleyne violation, distinguishing Johnson and relying upon

Cotton:

[W]e find Cotton instructive and persuasive. Contrary to the defendant in Johnson, who contested the facts necessary to increase his sentencing maximum, namely, whether serious bodily injury resulted from shooting the victim therein in the foot, [Watley] never disputed the evidence that the firearms were in close proximity to the [drugs]. Rather, [Watley] challenged that he was the person present in the vehicle who fled the scene, i.e., identity. [Watley] certainly was on notice that the Commonwealth sought to prove that he possessed two firearms and the jury was presented with evidence of those facts. More important, the jury’s finding on the two firearms charges in this matter is directly aligned with the requirement under [the mandatory minimum statute] that the defendant possess a gun . . . . Succinctly put, the jury did render a specific finding as to whether [Watley] possessed the handguns found in the car; the reason it did not do so in conjunction with the PWID count is that the prevailing law at the time, unlike in . . . Johnson, did not require such a procedure.

Similar to Cotton, the uncontroverted evidence in the instant case established that one firearm was located in the same glove compartment as the drugs and another handgun was located on the passenger-side floor in close proximity to the drugs, and the jury determined beyond a reasonable doubt that [Watley] possessed those firearms. Therefore, the facts necessary to establish application of the mandatory minimum sentence not only were essentially undisputed and overwhelming, they were determined by the jury. Since [Watley] was convicted of PWID and unlawfully possessing two firearms relative to the same incident, the factual predicates for determining the mandatory minimum were proven to a jury beyond a reasonable doubt, and his sentence is not illegal.

Id. at 120–21 (cleaned up).

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However, the following year a different en banc panel of this Court

invalidated in its entirety the mandatory minimum statute at issue in Watley

in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc).

The Court observed that the statute was plainly in conflict with the mandate

of Apprendi and Alleyne that the sentence-enhancing element, in that

instance possession of a firearm, “be pleaded in the indictment, and . . . found

by the jury beyond a reasonable doubt before the defendant may be subjected

to an increase in the minimum sentence.” Id. at 98. With the enactment

expressly calling for enhanced sentencing based upon judicial fact-finding by

a preponderance standard, this Court concluded that the unconstitutional

provision was not severable, but needed to be rewritten by our legislature to

be workable. Id. at 103.

The Commonwealth, citing Neder, advocated for a finding of harmless

error rather than reversal. The Newman Court did not reject the applicability

of harmless error to Apprendi/Alleyne violations. Rather, it undertook the

harmless error analysis and concluded that the evidence before it was “not

necessarily overwhelming” such that it could not “say with finality that a panel

of lay jurors would undoubtedly conclude from the evidence here that the

firearm was in close proximity to the drug contraband.” Id. at 100. Hence,

Newman accepted the possibility that an Apprendi error could be harmless.

The first time the U.S. Supreme Court’s Recuenco decision was

acknowledged by a Pennsylvania appellate court was in Commonwealth v.

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Wolfe, 140 A.3d 651 (Pa. 2016) (“Wolfe II”). There, a jury convicted Wolfe

of involuntary deviate sexual intercourse pursuant to the subsection of the

criminal statute providing “that it is a felony of the first degree to engage in

deviate sexual intercourse with a complainant who is less than sixteen years

of age.” Id. at 653. The trial court sentenced him to a mandatory minimum

sentence pursuant to a statute structured as the one in Newman.

Specifically, it stated that the age was not an element of the crime, but a

factor to be determined by the judge at sentencing by a preponderance of the

evidence. On appeal, this Court sua sponte ruled the sentence to be illegal

because Newman mandated that such a statute be struck down

unconstitutional.8

Our Supreme Court granted allocatur on the question of whether this

Court erred by invalidating the statute as facially unconstitutional. Among the

Commonwealth’s arguments in support of reversal were that there was no

judicial fact-finding in the case because the jury already determined that the

8 The author of this Court’s Wolfe opinion, then-Judge and now-Justice Mundy, noted that she had expressed her disagreement in Newman with the ruling that the Alleyne-violative provision was not severable, and that a harmless error analysis is apt in considering the legality of such sentences. See Commonwealth v. Wolfe, 106 A.3d 800, 803 n.4 (Pa.Super. 2014) (“Wolfe I”). The author of the instant opinion, joined by the third panel member, also contended that Newman was wrongly decided and “where the fact-finder’s findings already encompass the necessary facts needed to subject a defendant to a mandatory minimum sentence, or the facts have been stipulated to,” the error is harmless. Id. at 808 (cleaned up) (Bowes, J., concurring).

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victim was under sixteen, and that any error was harmless pursuant to Neder,

Cotton, and Recuenco. Id. at 656-57.

In a fractured ruling, our High Court ultimately affirmed this Court’s

holding that the mandatory minimum statute was “irremediably

unconstitutional on its face, non-severable, and void.” Id. at 663. The Court

declined to consider whether the error was harmless since the jury had indeed

found beyond a reasonable doubt the fact that increased the punishment,

namely the victim’s age, in convicting him of the underlying offense. It

explained: “Although we realize that the Supreme Court of the United States

and other courts have found Apprendi-based errors to be harmless in various

cases, . . . none of these concerned a scenario in which the underlying

sentencing statute was itself found to be invalid and non-severable.” 9 Id. at

662.

9 The statute at issue in the instant appeal, namely § 1102(c), did not come

under scrutiny in the aftermath of Alleyne because, unlike the mandatory minimum statutes like the one at issue in Wolfe II, § 1102(c) does not call for judicial factfinding by a preponderance standard at sentencing. Rather, as quoted above, it provides that “where serious bodily injury results” the court may impose a higher sentence, without specifying how or by whom the enhancing fact is determined. See 18 Pa.C.S. § 1102(c) (quoted in full at page 6 infra).

Thus, unlike the statute at issue in Wolfe II, § 1102(c) is not facially unconstitutional and void and consequently incapable of producing a legal sentence. The Dissent fails to appreciate this distinction or its significance. As a result, our esteemed colleagues overstate their case insofar as they suggest that Wolfe II foreclosed the application of harmless error in cases such as the one presently before us where the sentence did not lack statutory authorization.

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Of note, (now-Chief) Justice Todd, joined by Justice Dougherty,

dissented. Justice Todd both disputed the ruling as to the unconstitutionality

of the statute because Wolfe “was charged and convicted of an offense which

includes as an element the sentencing fact triggering the mandatory minimum

sentence,” and posited that, even if the statute were infirm, the federal

harmless error framework should apply. Id. at 670-71 (Todd, J. dissenting)

(citing, inter alia, Recuenco). Justice Todd opined that the failure to find

harmless error in that case, “where a jury actually found beyond a

reasonable doubt the triggering fact,” was “inconsistent with the teachings of

Alleyne, subsequent state and federal caselaw, and common sense.” Id. at

671 (emphasis in original).

The issue of an Apprendi violation concerning a § 1102(c) sentence

resurfaced in this Court the following year in Commonwealth v. Barnes, 167

A.3d 110 (Pa.Super. 2017) (en banc). There, Barnes had strangled his victim

into unconsciousness twice and left her in a dumpster headfirst with a broken

vertebra, hypothermia, and other lacerations and contusions. A jury convicted

him of, inter alia, attempted murder and aggravated assault—causing serious

bodily injury. The trial court sentenced Barnes to twenty to forty years of

imprisonment on the attempted murder conviction, but concluded that the

conviction for aggravated assault merged with it for sentencing purposes

because both convictions arose from the same act of choking the victim.

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On appeal, Barnes contended that his attempted murder sentence

violated Apprendi because serious bodily injury was not submitted to the jury

as an element of that offense. This Court agreed based upon our ruling in

Johnson. We observed that Barnes, like Johnson, was not put on notice that

he was being charged with attempted murder resulting in serious bodily injury,

as neither the complaint nor the information alleged that he caused serious

bodily injury when he attempted to kill his victim. Id. at 117. Also akin to

Johnson, the trial court did not charge the jury that it was required to find

serious bodily injury as an element of the attempted murder offense. Id. at

118. Hence, Apprendi was violated.

While the Barnes opinion does not reflect that the Commonwealth

invoked Neder or Recuenco to advocate harmless error per se as a basis for

affirmance, the Commonwealth did argue that the jury’s finding of serious

bodily injury in connection with the aggravated assault conviction was

sufficient to justify the enhanced sentence. We rejected that contention on

two bases: (1) Johnson correctly ruled that the jury’s finding as to one

charge could not be used to infer the same finding as to the other; and (2)

because inconsistent verdicts are deemed an exercise of lenity, it would have

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been “perfectly acceptable for the jury here to find serious bodily injury with

respect to aggravated assault but not attempted murder.” 10 Id. at 120.

This Court had cause to revisit Apprendi in Commonwealth v.

Bickerstaff, 204 A.3d 988 (Pa.Super. 2019). In that case, Bickerstaff shot a

man at close range, causing him to suffer cracked ribs and punctured lungs

and requiring extensive surgery. Id. at 990-91. The Commonwealth did not

specifically charge him with causing serious bodily injury in connection with

attempted murder, and the trial court did not instruct the jury to make a

finding in connection with that charge. Nonetheless, the verdict slip included

an interrogatory asking the jury to indicate whether the attempt caused

serious bodily injury. The jury found Bickerstaff guilty of attempted murder

and answered yes to the interrogatory, and also convicted him of aggravated

assault—causing serious bodily injury based upon the same conduct.

10 The Dissent, citing the above discussion of Johnson and Barnes, suggests

that we are in agreement that Apprendi compelled the results in those cases. See Dissenting Opinion at 2. That is false. We agree that those decisions held that Apprendi dictated finding the sentences in those cases to be illegal. As our discussion infra details, Apprendi actually does not mandate a finding of illegality if the error was harmless.

The Dissent further notes that “the author of the instant opinion acknowledges that as a member of the three-judge panel originally deciding this case, [Judge Bowes] averred the grant of relief to [Appellant] on Apprendi grounds was correct under existing precedent.” Id. at 2-3 n.3. We fail to see the significance of this observation, as it is beyond peradventure that, unlike this en banc panel, the three-judge panel that originally reviewed this case was bound by the Barnes decision.

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Bickerstaff was sentenced to twenty to forty years for the attempted murder.

Id. at 991.

In a PCRA petition, Bickerstaff claimed that his trial counsel was

ineffective in failing to challenge as illegal under Apprendi the enhanced

§ 1102(c) sentence where the Commonwealth did not give him notice of its

intent to prove serious bodily injury as an element of attempted murder. This

Court agreed based upon the lack of notice, ruling that Bickerstaff “was

essentially ambushed with the verdict sheet’s special interrogatory that raised

for the first time a question about serious bodily injury in connection with

attempted murder.” Id. at 997.

The Commonwealth argued that any error was harmless because

Bickerstaff was on notice that serious bodily injury would be at issue as an

element of the aggravated assault charge. It further observed that the

evidence that the victim suffered serious bodily injury was overwhelming and

uncontroverted, noting that Bickerstaff had stipulated to the medical records

establishing the extensive serious injuries. Id. at 994-95. This Court rejected

the argument, relying heavily on Johnson and Barnes with no reference to

Reid or Watley. Without any examination of whether Bickerstaff was

prejudiced by a lack of notice that the extent of the victim’s injuries pertained

to the attempted murder charge as well as the aggravated assault charge, the

Court held that “the special interrogatory presented to the jury did not serve

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to mitigate the fundamental injustice in the present case,” and vacated the

sentence as illegal. Id. at 998.

Finally, our Supreme Court undertook an assessment of this Court’s

Apprendi jurisprudence in Commonwealth v. King, 234 A.3d 549 (Pa.

2020). There, King shot a firearm at his victim nine times, hitting her in the

ankle and lower back. He was charged with attempted murder and aggravated

assault, among other crimes. The information did not reference § 1102(c) or

otherwise allege that serious bodily injury resulted from the attempted

murder.

King’s defense at trial was that someone else was the shooter. He did

not contest the severity of the injuries, stipulating that the victim suffered

shattered ankle and hip bones that required multiple surgeries and physical

therapy. The jury slip included an interrogatory asking whether, in the event

it found King guilty of attempted murder, serious bodily injury resulted. The

jury found him guilty and answered the interrogatory in the affirmative, and

further convicted him of aggravated assault and other offenses. The trial court

sentenced him to twenty to forty years for the attempted murder. Id. at 552-

53.

King filed a post-sentence motion challenging the legality of his

sentence, citing the Commonwealth’s failure to provide notice that it intended

to seek the enhanced sentence for attempted murder. The trial court rejected

the claim, opining that Johnson’s references to Apprendi’s notice

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requirements were dicta and that the jury properly found the sentence-

increasing facts as Johnson demanded. On appeal, this Court affirmed on

the basis that the notice was adequate pursuant to Reid, and the verdict slip

satisfied Johnson and Barnes. Id. at 554-56.

Our Supreme Court granted allocatur to decide, inter alia, whether this

Court denied King his “due process and Sixth Amendment rights in holding

that the Commonwealth need not provide formal notice to a defendant when

seeking to prosecute him for an aggravated offense,” specifically § 1102(c)’s

forty-year maximum. Id. at 556. King argued that Barnes, Bickerstaff,

and Wolfe II mandated that a defendant receive formal notice that the

Commonwealth intended to prove serious bodily injury and seek the enhanced

sentence. The Commonwealth maintained that Apprendi did not invalidate

the sentence. Specifically, it contended that the notice King received was

adequate under Reid; that Johnson, Barnes, and Bickerstaff did not apply

since the jury did find serious bodily injury in connection with the attempted

murder charge; that Bickerstaff was wrong insofar as it imposed a per se

rule when the information does not reference § 1102(c); and that, even if

there was an Apprendi violation, it was harmless error under Cotton because

the evidence of serious bodily injury was overwhelming and uncontested and

was not a basis of King’s trial defense. Id. at 559.

The High Court agreed with King that there was an Apprendi violation,

holding that, “when the Commonwealth intends to seek an enhanced sentence

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for attempted murder resulting in serious bodily injury under [§] 1102(c), the

Commonwealth must include a citation to the statutory provision as well as its

language in the charging documents.” Id. at 562. The Court went on to say:

“Because we decide this matter on due process notice grounds, we need not

address in detail the Superior Court’s decisions in Barnes, Johnson, Reid,

and Bickerstaff.”11 Id. at 562-63.

The remaining issue was the proper remedy for the Apprendi violation.

Noting that “the element of serious bodily injury in connection with attempted

murder was indeed submitted to the jury and found beyond a reasonable

doubt,” the question became whether the lack of notice in the information

made the sentence illegal. Id. at 563. The Court concluded it did not

automatically result in an invalid sentence, ruling that, “[s]ince a proper notice

would permit the sentence, we agree that the instant error is amenable to

harmless error review.” Id. at 566.

11 The Dissent suggests that King is irrelevant to our discussion because the

Court in that case “clarified that Apprendi was not the proper analytical framework for King’s lack[-]of[-]formal[-]notice argument.” Dissenting Opinion at 4 (emphasis in original). While the King Court noted that Apprendi did not address the necessity pursuant to the Fifth Amendment of referring to sentence-enhancing facts in a federal grand jury indictment, it did consider the Fourteenth Amendment’s mandate that the states afford due process of law. See King, 234 A.3d at 560. Accordingly, our Supreme Court observed that “Apprendi thus implicates two related areas of law: notice as required by due process and the right to a jury trial.” Id. The fact that the King Court opted to decide the case only by examining the Fourteenth Amendment Apprendi violation instead of the Sixth Amendment Apprendi violation does not, as the Dissent opines, mean that Apprendi was not implicated in King or that King is inapposite to our present analysis.

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The King Court then conducted a harmless error analysis and found

“that the Commonwealth ha[d] met its burden of establishing that the error

was harmless beyond a reasonable doubt.” Id. The Court explained:

Similar to Cotton, the evidence of serious bodily injury in this case was overwhelming and uncontroverted. Moreover, this is not a case where the judge made the requisite finding, as in Cotton, but rather it was stipulated to and found by the jury beyond a reasonable doubt. King never contested the severity of [the victim’s] injuries, but rather stipulated that, as a result of two gunshot wounds, [she] suffered a shattered hipbone and anklebone, requiring multiple surgeries and high intensity inpatient occupational and physical therapy. While King did not receive formal notice of the Commonwealth’s intent to seek the enhancement, King received de facto notice, at various points before trial, that the Commonwealth was seeking the enhancement. For example, the factual summaries in the charging documents made clear that [the victim] suffered serious bodily injury. Moreover, the Commonwealth advised King that the minimum penalty for attempted murder if convicted was seventeen and one-half years, signaling that the Commonwealth intended to seek the enhancement. Finally, the Commonwealth and King’s attorney reviewed and agreed to the content and form of the verdict sheet prior to jury deliberations, which included a special interrogatory regarding whether [the victim] suffered serious bodily injury as a result of the attempted murder.

We also find persuasive the Commonwealth’s point that its failure to provide formal notice of its intent to seek the enhanced sentence did not affect King’s choice of defense or execution of that defense, considering King stipulated to [the victim’s] injuries and instead sought to demonstrate that another unknown individual committed the crime. Therefore, the harmless nature of the error precludes a finding that the sentence was illegally imposed.

Id. at 566 (cleaned up).

In sum, the current status of Pennsylvania law regarding the

applicability of harmless error review to an Apprendi claim differs depending

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on which type of violation is at issue. If the infraction concerns the due

process right to notice that the prosecution is seeking to prove a crime that

contains a sentencing enhancement as an element, then King establishes that

the error may be harmless. If the Apprendi violation implicates the Sixth

Amendment right to a jury trial, then Barnes provides that the enhanced

sentence is necessarily illegal, notwithstanding the views to the contrary

expressed in Watley and Newman, and despite the U.S. Supreme Court’s

ruling that such violations of the U.S. Constitution are not structural and thus

are harmless if the evidence of the enhancing element was uncontroverted or

overwhelming.

III. Standard of Review and the Arguments of the Parties

With the above law in mind, we return to the instant case, beginning

with our standard of review and the arguments of the parties. This appeal

was taken from the order that dismissed Appellant’s PCRA petition. “The

standard of review of an order dismissing a PCRA petition is whether that

determination is supported by the evidence of record and is free of legal error.

The PCRA court’s findings will not be disturbed unless there is no support for

the findings in the certified record.” Commonwealth v. Williams, 244 A.3d

1281, 1286–87 (Pa.Super. 2021) (citation omitted).

Here, Appellant challenges not a ruling made by the PCRA court, but the

legality of his sentence. “Issues relating to the legality of a sentence are

questions of law. When the legality of a sentence is at issue, our standard of

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review over such questions is de novo and our scope of review is plenary.”

Commonwealth v. Ramos, 197 A.3d 766, 768–69 (Pa.Super. 2018)

(cleaned up).

Appellant’s argument is that Johnson and Barnes correctly established

that it was illegal for the judge to sentence him according to the increased

maximum sentence provided in § 1102(c) because the jury did not make a

finding beyond a reasonable doubt that his attempt to murder Mr. Santos

resulted in serious bodily injury. See Appellant’s substituted brief at 12. He

observes that both this Court and our Supreme Court have had the

opportunity to overrule those decisions but have declined to do so. Id.

Appellant posits that there is nothing novel about this case to warrant a

different result, and that we should hold his sentence to be illegal because he

“was charged with one crime (attempted murder) and was convicted of

another (attempted murder causing serious bodily injury) sans charge, jury

instruction, or jury verdict.” Id. at 13.

The Commonwealth, on the other hand, advocates overruling Barnes.

It observes that the U.S. Supreme Court, in applying its own Apprendi

decision to vindicate federal constitutional rights, expressly ruled in Recuenco

that the Sixth Amendment violation of failing to submit to the jury an element

of a crime, including facts that increase statutory maximum sentences, may

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be harmless error.12 See Commonwealth’s substituted brief at 12-13. It

observes that the federal harmless error paradigm generally, and the

Recuneco decision specifically, was unanimously embraced by our Supreme

Court in King. Id. at 16.

12 Indeed, the Commonwealth points to Wilkerson v. Superintendent Fayette SCI, 871 F.3d 221 (3d Cir. 2017), a case involving habeas corpus review of a Pennsylvania conviction, to demonstrate that Johnson and Barnes are at odds with the federal courts on a matter of federal law:

Had the jury been asked, it is inconceivable that it would not have made the requisite finding of serious bodily injury for Wilkerson to receive an enhanced sentence. Thus, because it is a near certainty that Wilkerson would have received the identical sentence had the jury been given the proper instruction, Wilkerson cannot demonstrate that this Apprendi error, or any ineffective-assistance-of-counsel claim derived from it, affected his substantial rights or seriously affected the fairness, integrity or public reputation of judicial proceedings.

Commonwealth’s substituted brief at 15 (quoting Wilkerson, 871 F.3d at 238 n.17) (cleaned up).

We observe that the same can be said for the law of our sister states. See, e.g., Galindez v. State, 955 So.2d 517, 524 (Fla. 2007) (“In light of the clear and uncontested record evidence of penetration regarding Count I, we hold that no reasonable jury would have returned a verdict finding there was no penetration. Accordingly, we find the error in this case harmless beyond a reasonable doubt.” (citation omitted)); Adams v. State, 153 P.3d 601, 614 (Mont. 2007) (“Because the evidence that Adams used a gun while committing aggravated assault is uncontroverted, we conclude that the result would be the same; that Adams would have received an enhanced sentence based on use of a weapon had the jury been asked to make a finding on that issue. The error in this case is harmless.”); State v. Blackwell, 638 S.E.2d 452, 459 (N.C. 2006) (finding harmless error in application of aggravating sentencing factor where there was “uncontroverted and overwhelming evidence that defendant committed the present crimes while on pretrial release for another offense”).

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Additionally, while noting that Appellant makes no meaningful defense

of Barnes, the Commonwealth eschews Barnes’s reliance upon a jury’s

ability to render inconsistent verdicts, contending that “[u]nder the Supreme

Court’s decisions, the correct question is not whether the jury could have

done so, but whether it is likely that the jury would have done so if properly

instructed.” Id. at 14 (emphases in original). The Commonwealth further

observes that the Johnson and Barnes decisions disincentivize timely

defense objections to Apprendi errors and instead “create a sentencing

windfall that as a practical matter benefits only defendants with counsel

careless enough not to raise the issue at trial or savvy enough to know to

withhold it.” Commonwealth’s substituted brief at 11 (emphasis in original).

As for the case sub judice, the Commonwealth asserts that the lack of

a jury instruction or finding of serious bodily injury as an element of attempted

murder was harmless. It reiterated that Appellant only challenged his

identification as a participant in the attack on Mr. Santos, he did not dispute

the existence or severity of his wounds, and the uncontroverted evidence of

Mr. Santos’s resultant condition overwhelmingly satisfied the definition of

serious bodily injury. In these circumstances, the Commonwealth argues

“there is simply no likelihood, let alone a reasonable one, that a properly

instructed jury would have failed to return a finding of ‘serious bodily injury’

in connection with the attempted murder charge.” Id. at 18 (emphasis in

original). Therefore, the error was harmless, the sentence is not illegal, and

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Appellant was not prejudiced by Attorney Coleman’s failure to raise the

Apprendi claim. Id.

In reply, Appellant again advocates for the continued application of

Barnes not upon any legal analysis, but on the basis that stare decisis, and

the clarity and consistency of the prior rule, should not be flouted merely “to

correct the Commonwealth’s mistakes” of failing to observe Apprendi rights.

See Appellant’s substituted reply brief at 1. He asserts that fundamental

fairness requires that we follow Barnes and vacate his sentence rather than

reward the “last-ditch attempt at having the Court sweep aside the

Commonwealth’s mistake.” Id. at 2. Notably, Appellant does not offer any

argument that the constitutional error in his case harmed him in any way.

IV. Holdings and Analyses

A. Harmless Error Doctrine Applies to all Apprendi Violations

After thorough consideration of the parties’ arguments and the pertinent

decisional law, we conclude that the failure to submit serious bodily injury to

the jury as an element of attempted murder, while violative of Apprendi,

does not necessarily render an enhanced § 1102(c) sentence illegal. Rather,

the constitutional violation is one that is subject to harmless error review, the

same as the due process violation of failing to formally charge a defendant

pursuant to § 1102(c), as was recognized by our Supreme Court in King.

Our reasoning for rejecting the Barnes Court’s suggestion that a Sixth

Amendment Apprendi violation results in a per se illegal sentence is as

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follows. First, the Neder, Cotton, and Recuenco decisions, which are U.S.

Supreme Court precedent on a matter of federal constitutional law, specify

that an Apprendi error is not structural. This precedent was embraced by

this Court’s en banc decisions in Watley and Newman, and never rejected

by our Supreme Court.13 Yet the Barnes en banc panel failed to even

acknowledge, let alone consider, harmless error as a basis for affirming a

sentence imposed in violation of Apprendi.

Second, application of harmless error review to non-structural

Apprendi violations is consistent with our High Court’s King ruling that,

where following the proper procedure would have permitted legal imposition

of the sentence, the “error is amenable to harmless error review.” 14 King,

234 A.3d at 566.

13 The Dissent would hold that we are precluded from applying federal court

decisions interpreting the scope of the United States Constitution’s guarantees because “in other contexts, the Pennsylvania Supreme Court has decided that federal statutes set a floor, not a ceiling, of constitutional protections for Pennsylvania criminal defendants.” Dissenting Opinion at 5 n.8. However, our colleagues in dissent fail to acknowledge that where, as here, an appellant does not invoke the Pennsylvania Constitution and assert an argument that it provides greater protection than its federal counterpart, we limit our analysis to the United States Constitution and the relevant case law. See, e.g., Commonwealth v. Rosendary, 313 A.3d 236, 241 n.3 (Pa.Super. 2024). Our decision today in no way precludes future litigants from asserting a claim that Pennsylvania affords greater protections than those recognized in Apprendi and its progeny.

14 Moreover, applicability of the federal paradigm specifically where the Sixth

Amendment portion of Apprendi was violated has been endorsed by at least three current members of our Supreme Court. See Wolfe II, 140 A.3d at (Footnote Continued Next Page)

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Third, Barnes misconstrued our Watley decision. In particular,

Barnes cited Watley as supporting the notion that the factual finding as to

one charge could not satisfy Apprendi as to another conviction. See Barnes,

167 A.3d at 119 (citing Watley, 81 A.3d at 119). However, the cited portion

of the Watley opinion merely acknowledged Johnson before going on to, as

described hereinabove, distinguish it and find harmless error in accordance

with Cotton. See Watley, 81 A.3d at 119-20. Further, in embracing

Johnson’s concerns about a jury’s right to render inconsistent verdicts in

declining to consider its explicit finding that the criminal act in question had

indeed caused serious bodily injury, Barnes did not address Watley’s

observation that the doctrine of permitting inconsistent verdicts “is used to

prevent overturning convictions that are inconsistent with an acquittal on

another charge, not to disregard a jury’s factual findings on valid convictions.”

Watley, 81 A.3d at 119. Stated differently: “The fact that we accept a jury’s

ability to potentially exercise leniency does not require us to disregard, for

purposes of sentencing, its uncontroverted determination of facts that subject

a defendant to an increased punishment[.]” Id.

Fourth, as the Commonwealth notes, the effect of the Barnes ruling is

to encourage a practice that is contrary to the axiomatic principle that, with

rare exceptions, “a party must make a timely and specific objection at the

670-71 (Todd, J., joined by Dougherty, J., dissenting); Wolfe I, 106 A.3d at 803 n.4 (Mundy, J.).

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appropriate stage of the proceedings before the trial court” in order to

preserve an issue for relief on appeal. Commonwealth v. Russell, 209 A.3d

419, 429 (Pa.Super. 2019). We have explained: “A party may not remain

silent and afterwards complain of matters which, if erroneous, the court would

have corrected.” Commonwealth v. Spone, 305 A.3d 602, 608 (Pa.Super.

2023). Under Barnes, a defendant is discouraged from objecting to

Apprendi errors until after it is too late to remedy them knowing that, no

matter how harmless the error, he will be entitled to a shorter sentence than

our legislature provided.

Finally, we reject Appellant’s argument that fundamental fairness

requires us to grant him a sentencing windfall by following Barnes’s per se

rule despite all the above reasons for instead considering whether the non-

structural error was harmless. Rather, to paraphrase the Cotton Court:

The real threat to the fairness, integrity, or public reputation of judicial proceedings would be if [Appellant], despite the overwhelming and uncontroverted evidence that [Mr. Santos suffered most serious bodily injuries], were to receive a sentence prescribed for those committing less substantial [harm] because of an error that was never objected to at trial.

Cotton, 535 U.S. at 634 (cleaned up).

Therefore, we hereby hold that Barnes is no longer good law to the

extent that it proclaimed all sentences tainted by Apprendi violations to be

ipso facto illegal. Henceforth, when a court is faced with an Apprendi

violation, whether of the due process or jury trial variety, the court is to

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undertake a harmless error analysis before ruling that the sentence is illegal. 15

King sets the standard for the analysis where notice rights were infringed. As

for Sixth Amendment Apprendi violations, the sentence is nonetheless legal

if “a reviewing court concludes beyond a reasonable doubt that the omitted

element was uncontested and supported by overwhelming evidence, such that

the jury verdict would have been the same absent the error[.]” 16 Neder, 527

U.S. at 17.

15 It is true that “[t]he Commonwealth bears the burden of proving that the

error was harmless beyond a reasonable doubt.” Commonwealth v. Holt, 273 A.3d 514, 540 (Pa. 2022). Nonetheless, an appellate court “may sua sponte invoke the harmless error doctrine as it does nothing more than affirm a valid judgment of sentence on an alternative basis.” Id. (cleaned up). If the existence of harmlessness is not readily apparent when the doctrine is invoked sua sponte, the reviewing court may require advocacy from the parties on the issue.

16 The Dissent repeatedly submits that we are eschewing our Supreme Court’s

precedent to engage in result-oriented judicial activism. See Dissenting Opinion at 1, 5, 6. However, our learned colleagues have not cited a single case in which the Pennsylvania Supreme Court declined to apply harmless error to an Apprendi violation where, as here, the sentencing-enhancing statute was facially constitutional. Meanwhile, our detailed discussion of our High Court’s precedent reveals no mandate that we vacate a sentence that is the product of a harmless Apprendi error. Where our Supreme Court has not spoken to the issue at hand, our role as an error-correcting court encompasses both determining whether errors have occurred and deciding whether they need correcting. See, e.g., Commonwealth v. Taylor, 230 A.3d 1050, 1073 (Pa. 2020) (remanding case to the Superior Court to decide whether harmless error analysis applied to, and defeated a claim for relief from, a Fifth Amendment violation).

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B. The Failure to Submit Serious Bodily Injury to the Jury was Harmless Error in the Instant Case

Having determined that harmless error analysis applies to the Apprendi

violation in Appellant’s case, we have no hesitation in concluding that the error

was harmless here.17 As detailed at the outset, Appellant’s defense was that

he was merely present during the melee and did not participate in the assault

on Mr. Santos. The evidence that Mr. Santos suffered serious bodily injury

from the attack in which Appellant was found to have participated was

overwhelming and uncontroverted, as neither Appellant nor any of his co-

defendants disputed that the victim sustained serious bodily injury. Moreover,

the jury actually found beyond a reasonable doubt that the assault resulted in

serious bodily injury in rendering its verdict on a count that merged with the

attempted murder conviction because it was based upon the same criminal

act.

17 Appellant argues the jury-trial aspect of Apprendi as a basis for relief. We note that the certified record does not contain the criminal information, so we cannot verify whether § 1102(c) was referenced therein. It seems unlikely, as it was not included in the complaint, and the information in this case was filed in 2010, ten years before King held that Apprendi mandates its citation in charging documents. However, it is manifest that the lack of formal notice was also harmless error in this case since, as we detailed above, the complaint referenced serious bodily injury in connection with all charges, the aggravated assault charge supplied the same impetus for Appellant to contest that element, and the lack of notice specific to the attempted murder charge had no impact upon his identify defense.

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It is abundantly plain to us that, had the jury been asked whether the

attempted murder resulted in serious bodily injury to Mr. Santos, it would

have said yes, just as it did in connection with the aggravated assault charge.

Hence, Appellant’s Sixth Amendment rights were not undermined, the error

was harmless, and the sentence was not illegal.

V. Conclusion

In sum, the United States Supreme Court, the lower federal courts, and

our sister states have long recognized that the failure to submit an issue to a

jury does not necessarily undermine the resulting judgment of sentence, but

rather warrants relief only if the error was not harmless. Today we join them.

To the extent that our Johnson and Barnes decisions suggested that a

sentence imposed in violation of Apprendi or its progeny can never be

harmless and is per se illegal, those decisions are overruled. Since the

violation of Appellant’s rights in this case was harmless error, his sentence is

not illegal. Therefore, we affirm the order dismissing his PCRA petition.

Order affirmed.

Judges Stabile, Dubow, Kunselman, Nichols and King join this Opinion.

Judge Sullivan files a Dissenting Opinion in which P.J. Lazarus and Judge

Lane join.

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Date: 8/8/2024

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