J-A34012-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KWAME LAMAR BARNES,

Appellant No. 947 MDA 2014

Appeal from the Judgment of Sentence January 30, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0000426-2011

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.

DISSENTING MEMORANDUM BY SHOGAN, J.: FILED MARCH 16, 2016

While the learned Majority presents a thoughtful analysis in reaching 

its decision to vacate the judgment of sentence in this criminal matter, I 

disagree with its conclusions. Thus, because I would affirm the judgment of 

sentence which was imposed by the trial court upon remand, I am compelled 

to respectfully dissent.

From my review, the facts surrounding this brutal case are as follows. 

On December 19, 2010, the sixteen year-old female victim (“Victim”) was 

sleeping alone at her mother’s home when she received a text message from 

her ex-boyfriend, Appellant. N.T., 2/27-28/12, at 137-139. Although the 

couple were no longer dating, they still had an amicable relationship. Id. at 

139. Appellant indicated in the text message that he was at the back door 

of the residence and Victim allowed Appellant to enter the home. Id. at 
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140. Victim and Appellant went upstairs to Victim’s bedroom where they 

talked, eventually had a sexual encounter, and then talked again. Id. at 

140-141. The two then had an argument, Victim asked Appellant to leave, 

and she escorted Appellant downstairs to the back door. Id. at 141-142. 

Before leaving, Appellant threatened to hit Victim with a vacuum. Id. at 

143-144. Subsequently, Appellant strangled Victim from behind by using his 

arm. Id. at 144-145. Victim lost consciousness. Id. at 145. When Victim 

regained consciousness, Appellant said to Victim, “you’re gonna die today,” 

and proceeded to strangle Victim again until she lost consciousness a second 

time. Id. at 145-147. When Victim finally regained consciousness, she was 

wrapped in a blanket and lying head-first in a recycling dumpster, under the 

State Street Bridge. Id. at 147-150. Victim eventually worked her way free 

and managed to get to the side of a roadway, where the driver of a passing 

vehicle finally stopped and took Victim to the hospital. Id. at 149. Victim 

was suffering from a broken vertebra in her neck, various facial injuries, a 

lacerated and swollen tongue, a large contusion to her right eye, and 

hypothermia. Id. at 16-21.

On December 20, 2010, Appellant was charged with criminal attempt 

to commit homicide, aggravated assault, kidnapping, recklessly endangering 

another person (“REAP”), terroristic threats, and theft by unlawful taking.1 

____________________________________________

1

 The charge of theft by unlawful taking was subsequently dismissed.
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On February 28, 2012, at the conclusion of a jury trial, Appellant was found 

guilty of the crimes of criminal attempt — homicide, aggravated assault, 

kidnapping, and REAP. The jury found Appellant not guilty for the charge of 

terroristic threats. On May 18, 2012, Appellant was sentenced to a term of 

incarceration of twenty to forty years for the conviction of attempted 

homicide, a consecutive term of incarceration of two and one-half to five 

years for his conviction of aggravated assault, and a consecutive term of 

incarceration of two and one-half to five years for his conviction of 

kidnapping. The trial court imposed no sentence for the conviction of REAP.

On direct appeal, this Court determined that the convictions of 

aggravated assault and attempted homicide should have merged because 

the crimes arose from a single set of facts (namely, that Appellant choked 

the victim to unconsciousness), vacated the judgment of sentence, and 

remanded for resentencing. Commonwealth v. Barnes, 691 MDA 2013, 

93 A.3d 497 (Pa. Super. filed December 3, 2013) (unpublished 

memorandum). On January 30, 2014, the trial court resentenced Appellant 

to a term of incarceration of twenty to forty years for the conviction of 

attempted homicide and a consecutive term of incarceration of five to ten 

years for the conviction of kidnapping. On February 5, 2014, Appellant filed 

a post-sentence motion, which the trial court denied on May 12, 2014. This 

appeal followed.
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In this direct appeal, the Majority concludes that because the jury did 

not render a separate finding regarding serious bodily injury for the crime of 

attempted murder, we are required to vacate the judgment of sentence 

under Apprendi v. New Jersey, 530 U.S. 466 (2000), and remand for 

resentencing. For the following reasons, I am compelled to dissent from the 

Majority’s determination.

I begin by noting that a challenge to the legality of sentence is an 

attack upon the power of a court to impose a given sentence. 

Commonwealth v. Lipinski, 841 A.2d 537, 539 (Pa. Super. 2004). 

Accordingly, our standard of review of Appellant’s issue is de novo, and our 

scope of review is plenary. Commonwealth v. Saunders, 946 A.2d 776, 

788 n.12 (Pa. Super. 2008).

First, it is my understanding that our Supreme Court precedent 

requires a conclusion that the element of serious bodily injury was 

determined by the fact finder when the jury found Appellant guilty of the 

crime of aggravated assault. Indeed, the act of attempted murder, which 

requires a substantial step toward an intentional killing, subsumes the act of 

aggravated assault, which requires an attempt to inflict serious bodily injury. 

As our Supreme Court stated in Commonwealth v. Anderson, 650 A.2d 20 

(Pa. 1994):

It is clear that the offense of aggravated assault is necessarily 

included within the offense of attempted murder; every 

element of aggravated assault is subsumed in the 

elements of attempted murder. The act necessary to 
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establish the offense of attempted murder--a substantial step 

towards an intentional killing--includes, indeed, coincides with, 

the same act which was necessary to establish the offense of 

aggravated assault, namely, the infliction of serious bodily 

injury.

Id. at 24 (emphasis added). Accordingly, by virtue of its verdict convicting 

Appellant of the crime of aggravated assault, the jury concluded that the 

element of serious bodily injury was met, thereby permitting the imposition 

of a maximum sentence of forty years for the conviction of attempted 

murder.

Second, in reaching its conclusion, the Majority relies upon this Court’s 

per curiam decision in Commonwealth v. Johnson, 910 A.2d 60 (Pa. 

Super. 2006), for the proposition that the judgment of sentence must be 

vacated under Apprendi because “the jury was never presented with, nor 

rendered a decision on, the question of whether a serious bodily injury 

resulted from the attempted murder.” Maj. slip op. at 6, citing Johnson. 

However, I am constrained to conclude that Johnson is distinguishable from 

the instant matter. 

As the Court in Johnson explained:

Here, however, (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 
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of whether a serious bodily injury resulted from the attempted 

murder.9

9 Compare: Commonwealth v. Reid, 867 A.2d 

1280 (Pa.Super. 2005), appeal denied, 586 Pa. 725, 

890 A.2d 1058 (2005) (affirming legality of a term of 

imprisonment of up to forty years for attempted 

murder, imposed following plea of nolo contendere, 

where defendant was not formally charged with 

attempted murder resulting in serious bodily injury, 

but where the Commonwealth indicated its desire to 

seek a maximum term of imprisonment of forty 

years, and recited facts of substantial bodily injury, 

to which defendant thereafter entered his plea of 

nolo contendere to the charge of attempted murder).

Johnson, 910 A.2d at 67 (footnote and emphasis in original).

Instantly, I must observe that, prior to commencement of trial in this 

matter the Commonwealth provided Appellant with a copy of the sentencing 

guidelines (with a print date of January 10, 2012), describing the charge as 

a “Murder Inchoate — Attempt with S.B.I. [Serious bodily Injury].” 

Commonwealth’s Answer to Defendant’s Post-Sentence Motion, Attachment 

“A.” (Docket Entry 70). In addition, the statutory limit section of those 

sentencing guidelines indicates a maximum penalty of 480 months. Id. 

Thus, I believe that any claim that Appellant was not apprised of the crime 

and possible maximum sentence is unavailing.

Further, in rendering instructions to the jury the trial court stated the 

following pertaining to the crime of criminal attempt to commit murder:

[Appellant] has been charged with criminal attempt, 

murder. To find [Appellant] guilty of this offense you must find 

that the following three elements have been proven beyond a 

reasonable doubt:
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First, that [Appellant] did a certain act; that is, he 

physically assaulted and strangled [Victim].

Second, that at the time of this alleged act, [Appellant] 

had the specific intent to kill [Victim]; that is, he had the fully 

formed intent to kill and was conscious of his intention.

And, third, that the act constituted a substantial step 

toward the commission of the killing [Appellant] intended to 

bring about.

N.T., 2/27-28/12, at 214. This exact instruction was again repeated to the 

jury prior to deliberations. Id. at 235. Then again, on two occasions after 

jury deliberations began, the jury asked for various instructions to be 

reread, and the above instruction was repeated verbatim. Id. at 244-245, 

261. Thereafter, the jury returned a verdict of guilty on the crime of 

criminal attempt to commit murder. Id. at 265. Thus, by rendering such a 

verdict the jury made a determination that, in committing the crime of 

criminal attempt to commit murder, Appellant physically assaulted and 

strangled Victim. Hence, I believe that the jury made the necessary 

determinations with regard to serious bodily injury relevant to the crime of 

attempted murder and the trial court properly imposed the maximum 

sentence of forty years.

Moreover, I am compelled to conclude that the “law of the case” 

doctrine applies in this matter. Specifically, this Court’s prior decision on 

appeal precludes us from determining that the jury did not render a decision 

on the particular element of serious bodily injury for the crime of attempted 

murder necessary to impose the instant sentence.
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The law of the case doctrine “refers to a family of rules which embody 

the concept that a court involved in the later phases of a litigated matter 

should not reopen questions decided by another judge of that same court or 

by a higher court in the earlier phases of the matter.” Commonwealth v. 

Starr, 664 A.2d 1326, 1331 (Pa. 1995).

Among the related but distinct rules which make up the law of 

the case doctrine are that: (1) upon remand for further 

proceedings, a trial court may not alter the resolution of a legal 

question previously decided by the appellate court in the matter; 

(2) upon a second appeal, an appellate court may not alter the 

resolution of a legal question previously decided by the same 

appellate court; and (3) upon transfer of a matter between trial 

judges of coordinate jurisdiction, the transferee trial court may 

not alter the resolution of a legal question previously decided by 

the transferor trial court.

The various rules which make up the law of the case doctrine 

serve not only to promote the goal of judicial economy ... but 

also operate (1) to protect the settled expectations of the 

parties; (2) to insure uniformity of decisions; (3) to maintain 

consistency during the course of a single case; (4) to effectuate 

the proper and streamlined administration of justice; and (5) to 

bring litigation to an end.

Id. (citations omitted).

“Under the law of the case doctrine, a trial court cannot overrule the 

holding of this Court upon remand proceedings.” Commonwealth v. 

McCandless, 880 A.2d 1262, 1267 (Pa. Super. 2005) (en banc). “A [trial] 

court is without power to modify, alter, amend, set aside or in any manner 

disturb or depart from the judgment of the reviewing court as to any matter 

decided on appeal.” Id. (quoting Commonwealth v. Williams, 877 A.2d 

471, 475 (Pa. Super. 2005)). “[T]he law of the case doctrine might not 
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apply under exceptional circumstances, including: an intervening change in 

the law, a substantial change in the facts, or if the prior ruling was ‘clearly 

erroneous’ and ‘would create a manifest injustice if followed.’” McCandless, 

880 A.2d at 1268 (quoting Starr, 664 A.2d at 1332).

My review reflects that in Appellant’s initial direct appeal before this 

Court, we stated the following:

Appellant argues that his convictions for Aggravated 

Assault and Attempted Homicide arise from a single set of 

facts and, therefore, these offenses merge for sentencing 

purposes. Commonwealth v. Rovinski, 704 A.2d 1068, 1075 

(Pa. Super. 2007). We note that the Commonwealth does not 

dispute Appellant’s contention.

Upon review of the record, we are constrained to agree. 

The convictions in question arise from a single set of 

facts; namely, that Appellant choked the victim to 

unconsciousness. As such, the sentences for these offenses 

merge for sentencing purposes, and we are compelled to vacate 

Appellant’s sentence.

Barnes, 691 MDA 2013, 93 A.3d 497 (unpublished memorandum at 2-3) 

(emphasis added). Therefore, our previous determination that Appellant’s 

convictions of aggravated assault, which included a finding of the element of 

serious bodily injury, and attempted murder stemmed from the same 

criminal act satisfies the requirements of a jury determination as to that 

element for the crime of attempted murder. Because this Court confirmed 

that the same facts found by the jury were relied upon to convict Appellant 

of both attempted murder and aggravated assault, the trial court on remand 

properly imposed the instant maximum sentence.