Commonwealth v. Cruz

320 A.3d 1257

COMMONWEALTH of Pennsylvania

v.Gabriel CRUZ, Appellant

No. 2084 EDA 2020

Superior Court of Pennsylvania.

Submitted February 20, 2024

Filed August 8, 2024

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, Charles A. Ehrlich, J.

Matthew Sullivan, Philadelphia, for appellant.

Joshua S. Goldwert, Assistant District Attorney, for Commonwealth, appellee. Lawrence J. Goode, Supervisor, District Attorney’s Office, Philadelphia, for Commonwealth, appellee.

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.:

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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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 suffered no harm from the Apprendi error, his illegalsentence 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 base- ball 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, 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 coconspirators 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 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 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, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (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 competed of a first-degree felony may be sentenced "for a term which shall be fixed by the court at not more 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 coun- sel 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 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 ...