J-A24013-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BRYANT WHITNEY

Appellant No. 1948 EDA 2014

Appeal from the Judgment of Sentence May 29, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014495-2008

BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 13, 2015

Appellant, Bryant Whitney, appeals from the judgment of sentence 

entered on May 29, 2014, by the Honorable Anne Marie Coyle, Court of 

Common Pleas of Philadelphia County. Whitney argues that the trial court 

imposed an illegal sentence under Apprendi v. New Jersey, 530 U.S. 466 

(2000). In Apprendi, the United States Supreme Court determined that 

“any fact that increases the penalty for a crime beyond the prescribed 

statutory maximum, other than the fact of a prior conviction, must be 

submitted to a jury and proved beyond a reasonable doubt.” Id., at 466. 

Section 1102(c) of the Crimes Code provides for the imposition of an 

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* Retired Senior Judge assigned to the Superior Court.
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increased maximum sentence of 20 to 40 years’ imprisonment where 

“serious bodily injury” results from an attempted murder. In this case, we 

consider whether the application of Section 1102(c) was in violation of 

Apprendi. For the reasons stated below, we affirm. 

Whitney, along with at least one other person, fired gunshots at the 

victim, Robert Jackson. Jackson sustained fourteen gunshot wounds in 

various parts of his torso and groin, resulting in a severed spine and 

permanent paralysis from the waist down. Following a jury trial, Whitney 

was convicted of attempted murder,1aggravated assault,2conspiracy,3

possession of an instrument of crime,4and three violations of the Uniform 

Firearms Act.5 The trial court sentenced Whitney to an aggregate term of 

331⁄2 to 67 years of imprisonment. Whitney subsequently filed a postsentence motion for reconsideration of sentence, which the trial court 

denied. This timely appeal followed. 

On appeal, Whitney raises a single issue for us to consider. Whitney 

contends that the 20 to 40 year maximum sentence imposed under Section 

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1 18 Pa.C.S.A. § 901. 

2 18 Pa.C.S.A. § 2702.

3 18 Pa.C.S.A. § 903. 

4 18 Pa.C.S.A. § 907. 

5 18 Pa.C.S.A. §§ 6105, 6106, and 6108. 
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1102(c) of the Crimes Code6for the attempted murder conviction was an 

illegal sentence because the jury was never presented with nor rendered a 

decision on the question of whether serious bodily injury7resulted from the 

attempted murder. Although Whitney was convicted of aggravated assault,8

which includes serious bodily injury as an element of the crime, he maintains 

that the trial court erred in imposing the maximum sentence for the 

attempted murder conviction because the jury was not instructed on the 

serious bodily injury requirement specific to that crime. Thus, he maintains, 

the 20 to 40 year maximum sentence imposed was illegal under Apprendi

because “it is within the sole province of the jury to find those facts 

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6 Section 1102(c) of the Crimes Code, provides:

[A] person who has been convicted of attempt, solicitation or 

conspiracy to commit murder, murder of an unborn child or 

murder of a law enforcement officer where serious bodily injury 

results may be sentenced to a term of imprisonment which shall 

be fixed by the court at not more than 40 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 20 years.

18 Pa.C.S.A. § 1102(c) (emphasis added). 

7

“Serious bodily injury” is defined in the Crimes Code 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 a bodily 

member or organ.” 18 Pa.C.S.A. § 2301. 

8 Aggravated assault is defined as either attempting to cause or causing 

“serious bodily injury to another ... intentionally, knowingly or recklessly 

under circumstances manifesting extreme indifference to the value of human 

life.” 18 Pa.C.S. § 2702(a)(1) (emphasis added). 
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necessary to increase the maximum terms of imprisonment for a specific 

charge beyond a reasonable doubt.” Appellant’s Brief, at 11.

Whitney’s claim challenges the legality of the sentence. “Issues 

relating to the legality of a sentence are questions of law. . . . Our standard 

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

Commonwealth v. Brougher, 978 A.2d 373, 377 (Pa. Super. 2009)

(citation omitted). 

The instant matter involves the application of Section 1102(c) of the 

Crimes Code, and, in particular, the serious bodily injury requirement. 

“[T]he statute imposes a condition precedent to the imposition of a 

maximum term of imprisonment of up to 40 years, specifically, that ‘serious 

bodily injury’ must have resulted from the attempted murder. Otherwise, 

the sentence shall be not more than 20 years.” Commonwealth v. 

Johnson, 910 A.2d 60, 66 (Pa. Super. 2006). Serious bodily injury is “a 

fact that must be proven before a maximum sentence of forty years may be 

imposed for attempted homicide.” Commonwealth v. Reid, 867 A.2d 

1280, 1281 (Pa. Super. 2005). At issue is whether the jury was properly 

instructed on the serious bodily injury requirement and subsequently 

determined beyond a reasonable doubt that serious bodily injury in fact 

resulted from the attempted murder. 

The trial court reasons that the maximum sentence is proper because 

the jury was presented with ample evidence to determine that Whitney 

inflicted serious bodily injury upon his victim. See Trial Court Opinion, 
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2/6/2015, at 4. We agree with the trial court’s conclusion that there was 

sufficient evidence for the jury to determine that serious bodily injury 

resulted—the victim’s fourteen gunshot wounds; his severed spine; the 

paralysis. 

We further point out that the jury in fact determined beyond a 

reasonable doubt that serious bodily injury occurred when they found 

Whitney guilty of the companion offense of aggravated assault. In this case, 

the jury instructions were fashioned so that the jury could only convict 

Whitney of aggravated assault if they found beyond a reasonable doubt that 

he intentionally caused serious bodily injury to his victim. The trial court 

issued the following instructions for the aggravated assault charge.

A person is guilty of aggravated assault if he causes serious 

bodily injury to another human being or causes such injury 

intentionally and knowingly or recklessly under circumstances 

manifesting extreme indifference to the value of human life. You 

must find each of the elements proven beyond a reasonable 

doubt. One, the defendant caused the serious bodily injury to 

[the victim]. Serious bodily injury is an injury that would create 

a substantial risk of death that would cause serious permanent 

disfigurement or protracted loss or impairment of the function of 

any bodily member or organ. In order to find that the defendant 

did so, you must find that the defendant engaged in conduct that 

constitutes a substantial step towards causing serious bodily 

injury to [the victim].

Second, the conduct in this regard must be intentional in that his 

conscious purpose or object was to cause that serious bodily 

injury. Any particular action by the defendant, including pointing 

a loaded weapon and firing at a vital part of [the victim’s] body, 

should be considered to determine whether or not it was the 

conscious intent to cause serious bodily injury. 
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Upon consideration of all of the evidence, if you conclude beyond 

a reasonable doubt that the defendant’s action was a substantial 

step in a chain of events that he consciously set in motion with 

his intention, result being that [the victim] would actually suffer 

serious bodily injury, then you should find him guilty of this 

count. Otherwise, you should find the defendant not guilty of 

aggravated assault. 

N.T., Trial, 3/27/14, at 20-21 (emphasis added). 

A jury is presumed to have followed the trial court’s instructions as to 

the applicable law. See Commonwealth v. LaCava, 666 A.2d 221, 228 

(Pa. 1995). Thus, in ruling that Whitney was guilty of aggravated assault, 

the jury in fact concluded that Whitney inflicted serious bodily injury upon 

his victim. 

Whitney cites Commonwealth v. Johnson, 910 A.2d 60 (Pa. Super. 

2006), and Commonwealth v. Kearns, 907 A.2d 649 (Pa. Super. 2006), in 

support of his assertion that the jury had to be specifically instructed as to 

the serious bodily injury requirement for the attempted murder offense. 

Both cases are distinguishable from the case at hand. 

In Johnson, this Court concluded that the jury did not find serious 

bodily injury for the purposes of applying the maximum for attempted 

murder, even though the appellant had been convicted of aggravated 

assault. See 910 A.2d at 67-68. However, unlike in the present case, there 

was no evidence in Johnson that the jury convicted the appellant of 

aggravated assault on the basis that serious bodily injury actually occurred. 

See id., at 68 n.10. Thus, the jury in Johnson could have convicted the 
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appellant of aggravated assault based merely on an attempt to commit 

serious bodily injury. As such, Johnson is clearly distinguishable from the 

case at hand. 

The Kearns case is also distinguishable from the instant case. There, 

the two offenses at issue had distinct elements. See 907 A.2d at 659. 

Here, however, the jury was instructed on an identical element between the 

two offenses at issue. Specifically, the jury was instructed that in order to 

convict Whitney of aggravated assault, they had to find that serious bodily 

injury actually resulted, which was the identical element necessary for 

increasing the maximum sentence of the attempted murder offense. 

Because the serious bodily injury element of both offenses was identical, the 

jury’s guilty verdict on the aggravated assault offense granted the trial court 

the authority to impose the maximum sentence for the attempted murder 

offense.9 Thus, Whitney’s attempt to use Kearns in support of his position 

fails. 

In fact, in dicta, the Kearns court made the following statement, 

which directly supports our decision. 

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9 Whitney’s assertion that he was never put on notice that the 

Commonwealth was seeking to request a sentence up to 40 years is refuted 

by the certified record. The record makes clear that the trial court informed 

Whitney of the possibility of a 20 to 40 year sentence for the attempted 

murder at his oral colloquy. See N.T., Hearing, 3/5/13, at 10. 
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Of course, it is not sufficient that two phrases are substantially 

similar or substantially overlap. Unless the two phrases are 

construed in identical fashion, and the jury so charged, the jury’s 

finding [as to the one element] would not satisfy [the slightly 

different other element] because it would be unclear whether the 

jury’s finding rested upon a conclusion that fell within the first 

definition but not within the one of importance for our inquiry. 

Id., at 660 (emphasis added). 

In light of the foregoing, we conclude that the trial court did not err in 

imposing the maximum sentence of 20 to 40 years of imprisonment for the 

attempted murder conviction. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/13/2015
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