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.

DISSENTING OPINION BY SULLIVAN, J.: FILED AUGUST 08, 2024 While the Majority’s harmless error exception to the requirements of Apprendi v. New Jersey, 530 U.S. 466 (2000) is understandable given the factual framework before us, I am constrained by current law to dissent.

Insofar as Apprendi remains valid law and requires any fact that “increases the penalty for a crime beyond the prescribed statutory maximum . . . be submitted to a jury, and proved beyond a reasonable doubt”, and inasmuch as the Pennsylvania Supreme Court has, to date, not adopted a harmless error exception to the Apprendi mandate1, I am compelled to exert judicial restraint and follow current Pennsylvania precedent. ____________________________________________

My disagreement with the Majority is at once narrow and profound. The majority and I agree about much of the underlying facts and law. I agree with the Majority that Cruz’s assault against the victim was brutal and has left him in a vegetative state.2 See Majority Opinion at 2-4. I also agree with the Majority that the trial court violated Cruz’s constitutional rights under Apprendi by failing to ensure the jury render a specific finding that serious bodily injury resulted from the attempted murder. See id. at 1. I further agree with the Majority that Apprendi violations compelled the grant of relief in both Commonwealth v. Barnes, 167 A.3d 110 (Pa. Super. 2017) (en banc), and Johnson, 910 A.2d 60 (Pa. Super. 2006), where the appellants, like Cruz, were charged with attempted murder and aggravated assault, and the trial courts in both Barnes and Johnson failed to require the jury determine beyond a reasonable doubt that serious bodily injury resulted from the attempted murder. See Majority Opinion at 14-15, 20-21; Barnes, 167 A.3d at 117-19; Johnson, 910 A.2d at 67-68.3 Additionally, the Majority ____________________________________________

Alleyne v. United States, 570 U.S. 99 (2013) (permitting the imposition of a mandatory minimum sentence), where a jury has not found the sentence- enhancing fact beyond a reasonable doubt. See Commonwealth v. Wolfe, 140 A.3d 651, 662 (Pa. 2016) (declaring that the Court was “not unsympathetic to the plight of the Commonwealth in Alleyne’s wake,” and rejecting as unconstitutional a statute that purported to do so).

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acknowledges that our Supreme Court in Commonwealth v. Wolfe, 140 A.3d 651, 662 (Pa. 2016), specifically rejected the Commonwealth’s invitation to apply a harmless error exception in a case decided after Alleyne, 570 U.S. 99 (2013), involving a statutory mandatory minimum sentence for involuntary deviate sexual intercourse where the victim was under sixteen years old. Our Supreme Court required the jury to determine the age of the victim beyond a reasonable doubt before a trial court may impose a mandatory minimum sentence.4 See Majority Opinion at 18-19.

I depart from the Majority where it concludes that a harmless error exception shall apply where, as here, a clear Apprendi violation occurred (see Barnes and Johnson holdings supra), because the authority offered to support the majority is dispositively distinguishable from this case and because the opinion relied upon fails to follow the Supreme Court’s requisite analytical framework.

The Majority contends that in Commonwealth v. King, 234 A.3d 549 (Pa. 2020), the Pennsylvania Supreme Court determined an Apprendi violation can be harmless error. See Majority Opinion at 23-26. I do not read such authority in King. The Commonwealth charged King with attempted ____________________________________________

relief to Cruz on Apprendi grounds “was correct under existing precedent.”

See Majority Opinion at 7.

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murder, aggravated assault, and related offenses, and it is absolutely clear from the opinion that the verdict sheet required the jury to determine whether the victim suffered serious bodily injury as a result of the attempted murder beyond a reasonable doubt. Id. at 553, 555-556. Of critical importance, King argued on appeal that the Commonwealth failed to provide formal (written) notice of its intention to seek a serious bodily injury sentencing enhancement in the indictment or criminal information, pre-trial, and contended this lack of formal notice violated Apprendi. See id. at 557.

Our Supreme Court clarified that Apprendi was not the proper analytical framework for King’s lack of formal notice argument. 5 Rather, our Supreme Court analyzed King’s notice argument under the legal framework of “Rule and the Pennsylvania Constitution,” and it is under this framework, not the Apprendi framework, that the Supreme Court agreed that the “indictment and criminal information” was deficient but that King was “adequately apprised through other means . . . and the charging error was harmless.”

See id. at 560-563. Thus, our Supreme Court employed a different legal analysis as it related to the lack of formal notice pre-trial and never employed a harmless error analysis to an Apprendi violation. King does not stand for the proposition that our Supreme Court permits a harmless error exception vis-à-vis Apprendi and is inapposite to the matter before us.

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I recognize the Majority’s dissatisfaction with the law as it stands and am not unsympathetic to its desire to change the law. 6 However, in Wolfe, our Supreme Court made clear that a statute that permits a sentencing court to impose a mandatory minimum sentence based on that fact must be reviewed by the jury and the jury must make a finding beyond a reasonable doubt in order to impose the mandatory minimum. See Wolfe, 140 A.3d at 658-659.7 8 ____________________________________________

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While I understand the Majority’s preferred outcome based on the compelling facts of this case, and the federal court’s own recognition of a harmless error exception to Apprendi, the constraints imposed on intermediate appellate court judges do not permit me to join the Majority. As the Pennsylvania Supreme Court recently instructed: [i]f this [Supreme] Court has decided an issue, the Superior Court must apply our precedent faithfully, irrespective of whether or not it agrees with the analysis or outcome. . . it is not the prerogative of an intermediate appellate court to enunciate new precepts of law or to expand existing legal doctrines. Such is the province reserved to the Supreme Court.

N.W.M. and E.M. v. Langenbach, 316 A.3d 7, 21-22 (Pa. 2024) (footnotes, quotations marks, and citations omitted). The Supreme Court further explained that “[t]he Superior Court’s main function is to correct errors and abuses made by the trial courts. In doing so, it must maintain and effectuate the decisional law of this Court as faithfully as possible.” Id. (footnote, quotations marks, and citation omitted).

For these reasons, I believe this Court is obligated to follow the Pennsylvania Supreme Court precedent, which follows Apprendi and declines to adopt a harmless error exception thereto, and therefore dissent.

President Judge Lazarus and Judge Lane join this dissenting opinion. ____________________________________________

See, e.g., Commonwealth v. Alexander, 243 A.3d 177, 202 (Pa. 2020) (holding the Pennsylvania constitution affords greater protection than the federal constitution for Pennsylvanians subjected to warrantless car searches); Commonwealth v. Edmunds, 586 A.2d 887, 905-06 (Pa. 1991) (declining to adopt the federal good faith exception to the Pennsylvania constitution’s warrant requirement).

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