[J-20-2015] 

IN THE SUPREME COURT OF PENNSYLVANIA 

WESTERN DISTRICT 

SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ. 

COMMONWEALTH OF PENNSYLVANIA,

 Appellant 

 v. 

STEVENSON LEON ROSE, 

 Appellee 

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No. 26 WAP 2014 

Appeal from the Order of the Superior 

Court entered November 25, 2013 at No. 

45 WDA 2011, vacating the Judgment of 

Sentence of the Court of Common Pleas 

of Allegheny County entered December 7, 

2010 at No. CP-02-CR-0000810-2008 and 

remanding. 

ARGUED: April 8, 2015 

OPINION 

MADAME JUSTICE TODD DECIDED: NOVEMBER 18, 2015

The issue in this discretionary appeal is whether a defendant convicted of thirddegree murder must be sentenced under the sentencing statute in effect at the time the 

defendant committed the ultimately deadly assault upon the victim, or whether the 

defendant is subject to an enhanced penalty pursuant to a subsequently-enacted 

sentencing statute which was in effect at the time of the victim’s death 14 years later. 

As we conclude that imposition of a sentence in excess of that prescribed by statute at 

the time the defendant committed the deadly assault violates and is prohibited by the Ex 

Post Facto Clause of the United States Constitution, we are constrained to affirm the 
[J-20-2015] - 2 

order of the Superior Court vacating Appellee Stevenson Leon Rose’s sentence and 

remanding for resentencing.1 

I. Factual and Procedural Background 

 The facts of this case are particularly heinous. On July 13, 1993, Appellee Rose 

and Shawn Sadik brutally attacked Mary Mitchell in a park in the East Liberty 

neighborhood of Pittsburgh. During the attack, the men kicked the victim in the head 

approximately 60 times, stabbed her in the throat, and inserted a 16-inch piece of 

aluminum framing into her vagina, causing serious internal injuries. The victim was left 

naked and bleeding until she was discovered by two individuals. The attack left the 

victim in a vegetative state. An investigation led police to Rose and Sadik, and police 

recovered bloody clothing and shoes from Rose’s apartment later that day. Rose 

provided police with a statement in which he admitted that he and Sadik attacked the 

victim after drinking and doing drugs. 

 In March 1994, a jury convicted Rose of attempted murder,2 aggravated assault,3

involuntary deviate sexual intercourse,4 recklessly endangering another person,5 and 

criminal conspiracy,6 and, on March 16, 1994, he was sentenced to 15 to 30 years 

incarceration. His judgment of sentence was affirmed on appeal by the Superior Court, 

and this Court denied his petition for allowance of appeal. Commonwealth v. Rose, 664 

A.2d 1059 (Pa. Super. 1995), appeal denied, 672 A.2d 306 (Pa. 1995). 

 

1

 Our decision herein does not alter Rose’s original aggregate sentence of 15 to 30 

years incarceration for his 1994 conviction for attempted murder and related offenses. 

Our holding speaks only to the sentence that may be constitutionally imposed for 

Rose’s subsequent conviction in 2007 for third-degree murder. 

2

 18 Pa.C.S. § 901(a). 

3

 18 Pa.C.S. § 2702(a)(1). 

4

 18 Pa.C.S. § 3123 (1972). 

5

 18 Pa.C.S. § 2705. 

6

 18 Pa.C.S. § 903. 
[J-20-2015] - 3 

On September 17, 2007, the victim succumbed to the injuries she sustained in 

the attack 14 years earlier, and, on October 9, 2007, the Commonwealth charged Rose 

with criminal homicide.7 Rejecting his diminished capacity defense,8 the jury convicted 

Rose of third-degree murder.9 At sentencing, Rose maintained that he could be 

sentenced only to a maximum term of incarceration of 10 to 20 years, because, at the 

time he assaulted the victim, that was the maximum allowable sentence for third-degree 

murder under 18 Pa.C.S. § 1103(1), which provides that a person convicted of a felony 

of the first degree 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). The Commonwealth argued, however, that 

because the victim’s death did not occur until 2007, Rose’s crime of homicide was not 

“complete” until that time, and, therefore, Rose was subject to the 20 to 40 year 

sentence for third-degree murder prescribed under 18 Pa.C.S. § 1102, which was 

amended in 1995 (two years after the attack) and provides: “Notwithstanding section 

1103, a person who has been convicted of murder of the third degree . . . shall be 

sentenced to a term which shall be fixed by the court at not more than 40 years.” 18 

Pa.C.S. § 1102(d). The sentencing court agreed with the Commonwealth, and 

sentenced Rose to 20 to 40 years incarceration. Rose was credited with approximately 

171⁄2 years of time served for his prior conviction. 

 Rose appealed, and a panel of the Superior Court vacated his sentence and 

remanded for resentencing. The Commonwealth requested, and was granted, en banc

 

7

 At common law, a person could not be convicted of murder unless the victim died 

within a year and a day “from the time the fatal blow was given or the cause of death 

administered.” Commonwealth v. Ladd, 166 A.2d 501, 504 (Pa. 1960). In Ladd, 

however, this Court concluded that the common law rule was a rule of evidence, and 

not part of the definition of murder. Id. 

8

 Rose asserted a voluntary intoxication defense at trial. 

9

 18 Pa.C.S. § 2502(c). 
[J-20-2015] - 4 

review by the Superior Court. The en banc panel of the Superior Court, in an opinion 

written by Judge Mary Jane Bowes, recognized that “[n]either the framers nor the 

ratifiers of the Pennsylvania or federal constitution contemplated application of the ex 

post facto law to the factual situation herein,” and, further, that no Pennsylvania case 

has yet addressed the issue. Commonwealth v. Rose, 81 A.3d 123, 129 (Pa. Super. 

2013) (en banc).10 However, the court found instructive the decisions of other states 

that have addressed analogous issues, see infra, and reasoned that, “[a]lthough the 

crime of third degree murder was not consummated until the victim died, all of the 

criminal acts causing the victim’s death were completed” prior to the enactment of 

Section 1102(d), which increased the penalty for the acts that caused the victim’s death. 

Id. at 136. Accordingly, the en banc court concluded Rose’s sentence of 20 to 40 years 

violated the Ex Post Facto Clauses of both the United States and Pennsylvania 

Constitutions. Then-Judge, now-President Judge, Susan P. Gantman filed a dissenting 

opinion, which was joined by Judge Cheryl Allen. Judge Gantman opined that, because 

a murder is “committed only when the victim of the assault dies,” the trial court properly 

sentenced Rose for third-degree murder under the sentencing statute in effect at the 

time of the victim’s death in 2007. Id. at 136-37. The Commonwealth filed a petition for 

allowance of appeal with this Court, which we granted in order to consider whether the 

Superior Court erred in holding that sentencing Rose pursuant to 18 Pa.C.S. § 1102(d), 

which became effective after he committed the deadly assault on the victim, but before 

the victim died, would violate the prohibition against ex post facto laws. 

II. The Ex Post Facto Clause 

 

10 As the Superior Court observed, Rose’s challenge to Section 1102(d) is an “as 

applied” challenge to its constitutionality, in that he does not contend the law is 

unconstitutional as written, but that its application to him in this instance is 

unconstitutional. Rose, 81 A.3d at 126-27. 
[J-20-2015] - 5 

The Ex Post Facto Clause of the United States Constitution is contained in Article 

1, § 10, which provides: “No State shall . . . pass any Bill of Attainder, ex post facto Law, 

or Law impairing the Obligation of Contracts . . . .” U.S. Const. art. I, § 10.11 The 

definition of an ex post facto law in the context of American law was first set forth more 

than two centuries ago in Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798), wherein Justice 

Chase offered the following description of the term: 

1st. Every law that makes an action, done 

before the passing of the law, and which was 

innocent when done, criminal; and punishes 

such action. 2nd. Every law that aggravates a 

crime, or makes it greater than it was, when 

committed. 3rd. Every law that changes the 

punishment, and inflicts a greater punishment, 

than the law annexed to the crime, when 

committed. 4th. Every law that alters the legal 

rules of evidence, and receives less, or 

different, testimony, than the law required at 

the time of the commission of the offence, in 

order to convict the offender. 

 3 U.S. (3 Dall.) 386, 390 (1798). As noted by the lower courts in the instant case, 

Rose’s sentence implicates the third Calder category, in that it arguably increases the 

punishment for his crime of third-degree murder at the time of the victim’s death from 

 

11 As the Ex Post Facto Clause of the United States and the Ex Post Facto Clause of 

the Pennsylvania Constitution, Art. 1, § 17, are virtually identical in language, this Court 

has explained that the standards applied to determine ex post facto violations under 

both constitutions are comparable, and a law that violates an appellant’s federal ex post 

facto rights will be held violative of his state ex post facto rights. Commonwealth v. 

Young, 637 A.2d 1313, 1317 n.7 (Pa. 1993). In light of our determination that the trial 

court’s sentence violated Rose’s federal ex post facto rights, we need not separately 

consider whether his sentence also violated his rights under the Pennsylvania 

Constitution. 
[J-20-2015] - 6 

the punishment that was applicable at the time he committed the acts which led to the 

victim’s death. 

The phrase “‘ex post facto law’ was a term of art with an established meaning at 

the time of the framing.” Peugh v. United States, 133 S.Ct. 2072, 2081 (2013) (quoting 

Collins v. Youngblood, 497 U.S. 37, 41 (1990)).12 The high Court has observed that, 

“[b]uilding on Justice Chase’s formulation of what constitutes an ‘ex post facto Law,’ our 

cases ‘have not attempted to precisely delimit the scope of this Latin phrase, but have 

instead given it substance by an accretion of case law.’” Id. (quoting Dobbert v. Florida, 

432 U.S. 282, 292 (1977)). 

The ex post facto prohibition 

forbids the Congress and the States to enact any law “which 

imposes a punishment for an act which was not punishable 

at the time it was committed; or imposes additional 

punishment to that then prescribed.” Through this 

prohibition, the Framers sought to assure that legislative 

Acts give fair warning of their effect and permit individuals to 

rely on their meaning until explicitly changed. The ban also 

restricts governmental power by restraining arbitrary and 

potentially vindictive legislation. 

Weaver v. Graham, 450 U.S. 24, 28-29 (1981) (footnotes and citations omitted); see 

also Miller v. Florida, 482 U.S. 423, 430 (1987) (“[A]lmost from the outset, we have 

recognized that central to the ex post facto prohibition is a concern for ‘the lack of fair 

notice and governmental restraint when the legislature increases punishment beyond 

what was prescribed when the crime was consummated.’” (quoting Weaver, 450 U.S. at 

 

12 One commentator has suggested that “[o]ne who reads the surviving record of the 

constitutional debates of 1787-88 cannot avoid the conclusion that the policy against 

statutory retroactivity was a major force behind the adoption of the U.S. Constitution.” 

Robert G. Natelson, Statutory Retroactivity: The Founders’ View, 39 Idaho L. Rev. 489, 

527 (2003). 
[J-20-2015] - 7 

30)), disapproved in part on other grounds Calif. Dep’t of Corrections v. Morales, 514 

U.S. 499, 506 n.3 (1995).13 

In addition, the ex post facto prohibition “upholds the separation of powers by 

confining the legislature to penal decisions with prospective effect and the judiciary and 

executive to applications of existing penal law.” Weaver, 450 U.S. at 29 n.10. In 

discussing the protections afforded by the Ex Post Facto Clause, one scholar observed 

an additional asserted basis for the protection: “namely, that it ‘assures the legislature 

can make recourse to stigmatizing penalties of the criminal law only when its core 

purpose of deterrence could thereby possibly be served.’” Wayne R. LaFave, Criminal 

Law 116 (5th ed. 2010) (hereinafter “LaFave”) (citations omitted). 

 The ex post facto prohibition is concerned with legislative acts, as opposed to 

judicial decisions. Rogers v. Tennessee, 532 U.S. 451 (2001). In Rogers, the Supreme 

Court rejected the petitioner’s suggestion that, because both the Due Process and Ex 

Post Facto Clauses safeguard the interest in fundamental fairness (through notice and 

fair warning) and the prevention of arbitrary and vindictive legislation, the strictures of 

the Ex Post Facto Clause should be extended to the context of judicial construction. 

Acknowledging that its opinion in Bouie v. City of Columbia, 378 U.S. 347 (1964), 

contains “some expansive language that is suggestive of the broad interpretation for 

which petitioner argues,” Rogers, 532 U.S. at 458, the high Court held: 

 

13 On this latter point, another commentator has suggested that the theory that the Ex 

Post Facto Clause restricts governmental power by restraining arbitrary and vindictive 

legislation “bears no substance beyond that borne by the first and primary concern for 

notice,” in that “[a] law may be condemned as irrationally spiteful or as an impermissible 

breach of restrictions on legislative power, but the constitutional basis for that review will 

not be the Ex Post Facto Clause unless the spitefulness or overreach takes the form of 

retroactive punishment.” Andrew C. Adams, One-Book, Two Sentences: Ex Post Facto 

Considerations of the One-Book Rule after United States v. Kumar, 39 Am. J. Crim. L. 

231, 236 (2012). 
[J-20-2015] - 8 

Extending the [Ex Post Facto] Clause to courts through the 

rubric of due process . . . would circumvent the clear 

constitutional text. It also would evince too little regard for 

the important institutional and contextual differences

between legislating, on the one hand, and common law 

decisionmaking, on the other. 

Id. at 460. 

In order for a criminal or penal law to be deemed an ex post facto law, “two 

critical elements” must be met: “it must be retrospective, that is, it must apply to events 

occurring before its enactment, and it must disadvantage the offender affected by it.” 

Weaver, 450 U.S. at 29 (footnote omitted); see also Young, 637 A.2d at 1318 (“Only 

those laws which disadvantage a defendant and fall within a Calder category are ex 

post facto laws and constitutionally infirm.” (emphasis original)). 

The Commonwealth does not dispute that sentencing Rose on his third-degree 

murder conviction under 18 Pa.C.S. § 1102(d), which provides a maximum sentence of 

40 years incarceration, instead of 18 Pa.C.S. § 1103(1), which provides a maximum 

sentence of 20 years, disadvantages Rose by subjecting him to an increased sentence. 

We thus focus on the question of whether imposition of a sentence pursuant to Section 

1102(d) constitutes a retroactive application of the sentencing statute. 

In asserting the Superior Court erred in holding that a sentence for third-degree 

murder pursuant to 18 Pa.C.S. § 1102(d) violates Rose’s ex post facto rights under 

Calder’s third category because it inflicts upon Rose a greater punishment than the 

statute in effect at the time he assaulted the victim, the Commonwealth stresses that the 

Ex Post Facto Clause “only prohibits the legislature from increasing the punishment 

against a defendant for his past crimes.” Commonwealth’s Brief at 20 (emphasis 

added). As noted above, the Commonwealth maintains that, because the death of the 

victim is an essential element of the crime of criminal homicide, Rose’s crime of 
[J-20-2015] - 9 

homicide was not complete until 2007, the year the victim died. Id. at 24-25 (citing 

Commonwealth v. Ramunno, 68 A. 184 (Pa. 1907) (“Murder is committed only when the 

victim of the assault dies.”)). Accordingly, the Commonwealth contends that, because 

Rose was sentenced under the statute in effect at the time of the victim’s death in 2007, 

there was no retroactive application of a sentencing statute, and, thus, no ex post facto

violation.14 

In support of its position, the Commonwealth relies on the language of 

Pennsylvania’s Crimes Code, which provides, in relevant part, that “[a] person is guilty 

of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the 

death of another human being.” 18 Pa.C.S. § 2501(a). The Commonwealth observes 

that, pursuant to 42 Pa.C.S. § 5552, “[a]n offense is committed either when every 

element occurs, or, if a legislative purpose to prohibit a continuing course of conduct 

plainly appears, at the time when the course of conduct or the complicity of the 

defendant therein is terminated.” 42 Pa.C.S. § 5552(d). The Commonwealth further 

notes that the legislature has defined the phrase “element of an offense,” as “[s]uch 

conduct or such attendant circumstances or such a result of conduct as . . . is included 

in the description of the forbidden conduct in the definition of the offense.” 18 Pa.C.S. 

§ 103. In reference to the Calder categories described above, the Commonwealth 

contends that the Superior Court, in reaching its conclusion, “conspicuously discarded 

the word ‘crime’ expressly used in the third Calder category and replaced it with the 

 

14 Rose’s crime of third-degree murder in the instant case may be characterized as a 

“straddle offense.” In his law review article “On Straddle Crimes and the Ex Post Facto 

Clauses,” J. Richard Broughton defines straddle offenses as crimes involving elements 

which occur both before and after a change in the law that either criminalizes the 

combination of elements or increases the punishment for their completion. J. Richard 

Broughton, On Straddle Crimes and the Ex Post Facto Clauses, 18 Geo. Mason L. Rev. 

719, 720 (Spring 2011) (hereinafter “Broughton”); see also U.S. v. Zimmer, 299 F.3d 

710, 718 (8th Cir. 2002). 
[J-20-2015] - 10 

word ‘acts.’” Commonwealth’s Brief at 29. According to the Commonwealth, the 

Superior Court’s substitution in this regard conflates Calder’s first and third ex post facto

categories, and extends the third category beyond what was intended. Id. 

Rose, on the other hand, maintains that the Superior Court’s holding is correct, 

and that the court properly rejected the Commonwealth’s suggestion that the ex post 

facto prohibition applies only to prior completed crimes, and not to prior conduct. Rose 

avers that neither this Court nor the United States Supreme Court has expressly limited 

application of the Ex Post Facto Clause in this manner, and instead have accepted a 

more expansive definition, which, consistent with the original meaning of the federal and 

state Ex Post Facto Clauses, encompasses past acts, conduct, or activity. Rose further 

offers that other state appellate courts which have faced this issue have uniformly held 

that the Ex Post Facto Clause prohibits increased punishment for such prior criminal 

acts. 

Regarding the Commonwealth’s position that, because the offense of criminal 

homicide requires the death of the victim, Rose did not “commit” the crime of homicide 

until 2007, and, thus, there was no retroactive application of a sentencing statute, there 

does not appear to be any Pennsylvania caselaw governing this set of circumstances. 

However, the North Carolina Supreme Court addressed a similar situation in State v. 

Detter, 260 S.E.2d 567 (N.C. 1979). In Detter, the defendant attempted to kill her 

husband on several occasions between January and March 1977 by poisoning him with 

concentrated lead, ant killer, and various drugs, including cocaine and PCP. The victim 

died on June 9, 1977, and an autopsy revealed he died of arsenic poisoning, the 

primary ingredient in ant killer. The defendant was convicted of first-degree murder and 

sentenced to death. On appeal, she argued, inter alia, that imposition of a death 

sentence violated her ex post facto rights because, at the time she engaged in all of her 
[J-20-2015] - 11 

efforts to kill her husband, the maximum penalty for first-degree murder was life 

imprisonment, as North Carolina’s death penalty statute did not take effect until June 1, 

1977. The court explained: 

[T]he question presented is whether this murder was 

committed when the murderous acts were performed so that

the punishment is life imprisonment or whether this murder 

was committed when death resulted so that the sentence of

death imposed pursuant to G.S. 15A-2002 is constitutionally 

permissible under the Ex post facto provisions of the United 

States and North Carolina constitutions. It is true that the 

definition of murder includes the unlawful killing of a human 

being with malice aforethought by means of poisoning, in 

which case premeditation and deliberation are presumed. 

. . . Therefore, murder is a crime requiring both an act and a 

result. We held in State v. Williams, [49 S.E.2d 617 (N.C. 

1948)], that one who rendered aid after the fatal blow was 

struck but before the resulting death could not be convicted 

of accessory after the fact to murder because the crime of 

murder was not complete until the resulting death occurred. 

However, when it becomes necessary to choose 

between the time the fatal blow is struck or the time of 

death for some special purpose, such as accessory after 

the fact to murder or to determine if a certain 

punishment is barred by the Ex post facto clause, the 

choice should be dictated by the nature of the inquiry. 

Perkins, Criminal Law (2d ed. 1969). 

Id. at 590 (emphasis added). The court continued: 

Therefore, our decision in State v. Williams . . . in which we 

chose the time of death as the time the murder was 

committed for the purpose of deciding if defendant was an 

accessory after the fact to murder, is sound, although, for 

purposes of the prohibition against Ex post facto legislation, 

we hold that the date(s) of the murderous acts rather than 

the date of death is the date the murder was committed. 

Id. 
[J-20-2015] - 12 

The Detter court observed that the “scant authority that exists on this question” 

was consistent with its holding. Id. Specifically, the court cited People v. Gill, 6 Cal. 

637 (1856), and Debney v. State, 45 Neb. 856, 64 N.W. 446 (1895). In Gill, the 

defendant attacked a victim; a month later, the California legislature divided the crime of 

murder into first and second degree. The victim subsequently died of the injuries 

suffered in the attack, and the defendant was tried and convicted of second-degree 

murder, for which he was subject to a potential life sentence. The court, without 

expressly discussing the Ex Post Facto Clause, resolved: 

The blow was given before, but the death ensured after, the 

passage of the last statute. The death must be made to 

relate back to the unlawful act which occasioned it, and as 

the party died in consequence of wounds received on a 

particular day, the day on which the act was committed, and 

not the one on which the result of the act was determined, is 

the day on which the murder is properly to be charged.

6 Cal. at 638. 

In Debney, the Supreme Court of Nebraska, referencing Gill, supra, and 

observing that a crime is deemed committed in the county where the fatal wounds were 

given, even if the victim died in another county, reasoned: 

[I]t follows that the offense was committed when such 

wounds were inflicted. True, the death occurred at a 

subsequent date, but it relates back to the time the mortal 

injury was received. The accused committed all the acts 

constituting the offense on July 4th; the death which ensued 

in Platte county, on July 9th, merely characterized his acts. 

The crime of murder consists in intentionally and unlawfully 

causing the death, and, while it is true that the crime is not 

complete until death occurs, yet it is incorrect to say that the 

death is an element in the crime. It is merely a necessary 

condition to it. The elements of the crime are the acts of the 

perpetrator, such as the malice, intent, and the wound or 

blow. The crime was committed when the mortal wounds

were inflicted, and he is to be tried by the laws then in force. 
[J-20-2015] - 13 

64 N.W. at 448.15 

Other courts have since relied on Detter for the proposition that the date of an 

offense for one purpose, such as meeting the statutory elements of a crime, may be 

different than the date of the offense for another purpose, such as an ex post facto

inquiry. In Little v. United States, 709 A.2d 708 (D.C. App. 1998), for example, the court 

held that the defendant could not be convicted of being an accessory after the fact to 

murder based on actions taken while the decedent was still alive, where the victims 

were still alive at the time the defendant drove away from the scene of the crime. In so 

holding, the court relied on Detter’s “nature of the inquiry” language, and noted “[t]he 

fact that a homicide is complete for one purpose does not make it complete for all 

purposes.” Id. at 712 n.9. 

Consistent with the foregoing authority, including the North Carolina Supreme 

Court’s approach in Detter, we conclude that, for purposes of evaluating whether a 

defendant’s sentence violates the Ex Post Facto Clause, the date on which all of the 

elements of the statutory crime of third-degree murder are met, including the death of 

the victim, is not dispositive. Rather, in determining whether imposition of a sentence 

under a statute that was amended after a defendant committed the deadly acts upon 

the victim, but prior to the victim’s death, violates the ex post facto prohibition, we must 

consider the intent behind the Ex Post Facto Clause. 

 

15 In addition to the decisions in Gill and Debney, the Detter Court also found support for 

its holding in several treatises, including Perkins, Criminal Law (2nd ed. 1969), and 

LaFave & Scott, Criminal Law 93-94 (1972) (“With those crimes which consist of both 

conduct and the result of conduct, as is the case with criminal homicide, . . . [i]f the 

theory behind the prohibition on retroactivity is that of giving fair warning, it seems clear 

that for ex post facto purposes the date of the blow should be the date of the offense.”). 
[J-20-2015] - 14 

Nearly a century ago, in Beazell v. Ohio, the United States Supreme Court 

offered the following definition of an ex post facto law, alluding to, inter alia, Justice 

Chase’s opinion in Calder: 

It is settled, by decisions of this court so well known that their 

citation may be dispensed with, that any statute which 

punishes as a crime an act previously committed, which was

innocent when done, which makes more burdensome the 

punishment for a crime, after its commission, or which 

deprives one charged with crime of any defense available 

according to law at the time when the act was committed, is 

prohibited as ex post facto. 

269 U.S. 167, 169-70 (1925). Examining the underlying rationale of the ex post facto

prohibition, the Beazell Court explained: 

The constitutional prohibition and the judicial interpretation of 

it rest upon the notion that laws, whatever their form, which 

purport to make innocent acts criminal after the event, or to 

aggravate an offense, are harsh and oppressive, and that 

the criminal quality attributable to an act, either by the legal 

definition of the offense or by the nature or amount of the 

punishment imposed for its commission, should not be 

altered by legislative enactment, after the fact, to the 

disadvantage of the accused. 

Id. at 170. 

 The high Court again discussed the characteristics of an ex post facto law in 

De Veau v. Braisted, emphasizing that the essence of an ex post facto law is the 

punishment for prior acts: 

The mark of an ex post facto law is the imposition of what 

can fairly be designated punishment for past acts. The 

question in each case where unpleasant consequences are 

brought to bear upon an individual for prior conduct, is 

whether the legislative aim was to punish that individual for 

past activity, or whether the restriction of the individual 

comes about as a relevant incident to a regulation of a 

present situation. 
[J-20-2015] - 15 

363 U.S. 144, 160 (1960) (emphasis added). 

In 1981, the high Court in Weaver, supra, held that a Florida statute that repealed 

a prior statute and reduced the amount of “gain time” for good conduct a state prisoner 

could receive against his sentence violated the ex post facto rights of a prisoner who 

pled guilty to second-degree murder and was sentenced before the statute’s effective 

date. In so holding, the Court first explained that the “presence or absence of an 

affirmative, enforceable right is not relevant . . . to the ex post facto prohibition, which 

forbids the imposition of punishment more severe than the punishment assigned by law 

when the act to be punished occurred.” Weaver, 450 U.S. at 30 (emphasis added). In 

rejecting the State’s argument that the new statute was not retrospective because, on 

its face, it applied only after its effective date, the Court concluded “[t]his argument fails 

to acknowledge that it is the effect, not the form, of the law that determines whether it is 

ex post facto. The critical question is whether the law changes the legal consequences 

of acts completed before its effective date.” Id. at 31 (emphasis added). The Court 

further observed: 

“The Constitution deals with substance, not shadows. Its

inhibition was levelled at the thing, not the name. It intended 

that the rights of the citizen should be secure against 

deprivation for past conduct by legislative enactment, under 

any form, however disguised.” Cummings v. Missouri, 4 

Wall. 277, 325, 18 L.Ed. 356 (1867). 

Id. at 31 n.15 (emphasis added). 

More than 60 years after Beazell, the high Court, in Collins v. Youngblood, 497 

U.S. 37 (1990), reaffirmed the Beazell definition of the term “ex post facto law” and its 

focus on acts: 

The Beazell formulation is faithful to our best knowledge of 

the original understanding of the Ex Post Facto Clause: 

Legislatures may not retroactively alter the definition of 
[J-20-2015] - 16 

crimes or increase the punishment for criminal acts. 

Several early State Constitutions employed this definition of 

the term, and they appear to have been a basis for the 

Framers’ understanding of the provision. See The Federalist 

No. 44, p. 301 (J. Cooke ed. 1961) (J. Madison); 2 M. 

Farrand, Records of the Federal Convention of 1787, p. 376 

(1911); Calder, 3 Dall., at 391-392 (opinion of Chase, J.); id., 

at 396-397 (opinion of Paterson, J.). The Constitutions of 

Maryland and North Carolina, for example, declared that 

“retrospective laws, punishing facts committed before the 

existence of such laws, and by them only declared criminal, 

are oppressive, unjust, and incompatible with liberty;

wherefore no ex post facto law ought to be made.” See 

Constitution of Maryland, Declaration of Rights, Art. XV 

(1776); Constitution of North Carolina, Declaration of Rights, 

Art. XXIV (1776). Other State Constitutions, though not 

using the phrase “ex post facto,” included similar articles. 

See Declaration of Rights and Fundamental Rules of the

Delaware State § 11 (1776); Constitution or Form of

Government for the Commonwealth of Massachusetts, 

Declaration of Rights, Art. XXIV (1780). 

 Another historical reference, Blackstone’s 

Commentaries, which was discussed by the Framers during 

debates on the Ex Post Facto Clause, see 2 M. Farrand, 

Records of the Federal Convention of 1787, pp. 448-449 

(1911), and deemed an authoritative source of the technical 

meaning of the term in Calder, see 3 Dall., at 391 (opinion of 

Chase, J.); id., at 396 (opinion of Paterson, J.), buttresses 

this understanding. According to Blackstone, a law is ex 

post facto “when after an action (indifferent in itself) is 

committed, the legislator then for the first time declares it to

have been a crime, and inflicts a punishment upon the 

person who has committed it.” 1 W. Blackstone, 

Commentaries. Although increased punishments are not 

mentioned explicitly in the historical sources, the Court has 

never questioned their prohibition, apparently on the theory 

that “[t]he enhancement of a crime, or penalty, seems to 

come within the same mischief as the creation of a crime or 

penalty.” Calder, supra, at 397 (opinion of Paterson, J.). 

The Beazell definition, then, is faithful to the use of the term 

“ex post facto law” at the time the Constitution was adopted. 
[J-20-2015] - 17 

497 U.S. at 43-44 (emphasis added). 

Although the Commonwealth maintains that the ex post facto prohibition applies 

only to prior completed crimes,16 not prior acts, the language employed by the Court in 

Beazell, De Veau, Weaver, and Youngblood suggests that the Ex Post Facto Clause 

was intended to prohibit the legislature from retroactively increasing the punishment not 

simply for completed crimes, but for an individual’s prior criminal acts. See also 

Broughton, at 728 (suggesting that the meaning of the phrase “acts completed,” as 

referred to in Weaver, “does not necessarily mean a fully completed crime. Rather, it 

could refer to the completion or fulfillment of any part of the actus reus of a crime or any 

element of the crime that requires an affirmative act on the part of the defendant.”). 

 Indeed, criminal law scholar Wayne R. LaFave has opined that, in determining 

the date of an offense for ex post facto purposes, it is the date of the criminal act which 

is relevant: 

With those crimes that consist of both conduct and the result 

of conduct, as is the case with criminal homicide (a blow with 

a resulting death is needed), there may arise a question as 

 

16 The Commonwealth acknowledges that “the United States Supreme Court has 

conflated the words ‘acts’ and ‘crime’ or ‘acts’ and ‘offense’ when analyzing Calder 

questions,” and specifically references the high Court’s language in Peugh, supra: 

We consider here whether there is an ex post facto violation 

when a defendant is sentenced under Guidelines 

promulgated after he committed his criminal acts and the

new version provides a higher applicable Guidelines 

sentencing range than the version in [] place at the time of 

the offense. 

Commonwealth Brief at 35 (quoting Peugh, 133 S.Ct. at 2078). The Commonwealth 

contends, however, “that lack of precision in phrasing does not a constitutional 

protection make because in Peugh, the difference between the two words did not 

control the question before the Court.” Id. The Commonwealth fails to address the high 

Court’s recurring use of the term “act” in the other cases discussed above; indeed, the 

Commonwealth’s brief contains no reference to Beazell, De Veau, or Weaver. 
[J-20-2015] - 18 

to the time of the offense for purposes of applying the ex 

post facto clause. Thus, if the defendant delivers the mortal 

blow on April 1, a new homicide statute becomes law on 

April 10, and the victim dies from his wounds on April 20, 

can the new statute, if disadvantageous to the defendant, 

constitutionally be applied to his situation? If the theory 

behind the prohibition on retroactivity is that of giving 

fair warning, it seems clear that for ex post facto

purposes the date of the blow should be the date of the 

offense. 

LaFave, at 121 (emphasis added); see also Joseph G. Cook, Constitutional Rights of 

the Accused § 1:18 (3rd ed.) (July 2015) (hereinafter “Cook”) (“For ex post facto law 

purposes . . . it is the time of the acts rather than the time of the result which is key. 

Such results are consistent with insuring that the accused has received notice of the 

criminality and potential consequences of his act.”). 

The courts of our sister states have similarly concluded that, for purposes of 

determining the date of an offense when evaluating an ex post facto claim, the date on 

which the criminal act was committed is controlling. See, e.g., Detter, 260 S.E.2d at 

590 (for purposes of the prohibition against ex post facto legislation, “the date(s) of the 

murderous acts rather than the date of death is the date the murder was committed.”) 

Id. at 590; State v. Masino, 43 So.2d 685, 687 (La. 1949) (noting that, for ex post facto

purposes, “the crime is committed on the date on which the deed, the original act, is 

performed, and not on the date of the victim’s death”).17 This focus on acts is consistent 

with one of the Ex Post Facto Clause’s underlying rationales − fair warning. See Miller, 

482 U.S. at 430; Weaver, 450 U.S. at 28-29; see also Broughton, at 728; LaFave, at 

121; Cook, at § 1:18. 

 

17 In State v. Hare, 208 N.W.2d 264, 267 (Neb. 1973), the Nebraska Supreme Court, in 

addressing a sufficiency challenge, likewise held “in a prosecution for manslaughter in 

the commission of an assault and battery, the time of the offense is affixed at the time 

the fatal blow was struck.” 
[J-20-2015] - 19 

 In the case sub judice, Rose’s assault on the victim occurred in 1993, when the 

maximum sentence for third-degree murder was 20 years imprisonment. Although the 

legislature later increased the maximum sentence for third-degree murder to 40 years 

imprisonment, all of Rose’s criminal acts occurred prior to the increase, and, at the time 

he committed the criminal acts, he could not have had fair warning that he could face 40 

years imprisonment if the victim died as a result of his actions. 

Notwithstanding the above, the Commonwealth maintains that the “right to fair 

warning” protected by the Ex Post Facto Clause is not implicated in the instant case 

because Rose was convicted of third-degree murder, which does not require specific 

intent. Commonwealth’s Brief at 34. The Commonwealth highlights the following 

observation by the Superior Court below: 

Where the individual does not possess a specific intent to 

commit the crime, he cannot possibly be contemplating 

potential punishment for the crime. Therefore, notice of a 

particular punishment cannot dissuade the commission of 

the offense where there is no intent requirement for the 

crime. Phrased differently, the notice interest that the ex 

post facto clauses (sic) was intended to serve is weakest 

when the third Calder category is at issue and at its 

strongest when the first two categories are in question. 

Commonwealth’s Brief at 34 (quoting Rose, 81 A.3d at 134). In effect, the 

Commonwealth contends that the prohibition against ex post facto laws does not apply 

to unintentional crimes. 

However, in the sentence following the above-quoted language, the Superior 

Court, quoting the United States Supreme Court, concluded: “Of course, ‘the absence of 

a reliance interest is not an argument in favor of abandoning the category itself.’” Rose, 

81 A.3d at 134 (quoting Carmell v. Texas, 529 U.S. 513, 531 n.21 (2000)). In Carmell, 

the high Court considered an ex post facto challenge to a Texas law, an amendment to 
[J-20-2015] - 20 

which altered the rules of evidence for crimes committed prior to the amendment. The 

defendant was charged with committing sexual offenses against his stepdaughter 

between 1991 and 1995, when the victim was between 12 and 16 years old. At that 

time, Texas law provided that testimony of a victim over the age of 14 could not support 

a conviction unless corroborated by other evidence, or the victim had informed another 

person of the offense within six months of its occurrence. If a victim was under the age 

of 14, the victim’s testimony alone could support a conviction. In 1993, the law was 

amended to allow a conviction based on a victim’s testimony alone if the victim was 

under the age of 18. The defendant was convicted in 1996, and on appeal, he argued 

that his convictions on the four counts that were based on conduct that occurred after 

the victim turned 14 could not stand under the pre-1993 version of the law because the 

victim was not under 14 and had not made a timely outcry. 

In reversing the defendant’s four convictions, the high Court concluded the 

amendment to the law violated the Ex Post Facto Clause, as the amendment fell within 

Calder’s fourth category, authorizing a conviction on less evidence than previously 

required. The Court opined, “[t]he fourth category, so understood, resonates 

harmoniously with one of the principal interests that the Ex Post Facto Clause was 

designed to serve, fundamental justice.” 529 U.S. at 531. The Court further observed: 

The Clause is, of course, also aimed at other concerns, 

“namely that legislative enactments give fair warning of their 

effect and permit individuals to rely on their meaning until 

explicitly changed,” . . . and at reinforcing the separation of 

powers . . . . But those are not its only aims, and the 

absence of a reliance interest is not an argument in favor of 

abandoning the category itself. If it were, the same 

conclusion would follow for Calder’s third category 

(increases in punishment), as there are few, if any, reliance 

interests in planning future criminal activities based on the 

expectation of less severe repercussions. 
[J-20-2015] - 21 

Id. at 531 n.21. Thus, in at least one context, namely, crimes implicating the fourth 

Calder category, the high Court has condemned the reliance interest argument 

advanced by the Commonwealth − rejecting the notion that protection of an individual’s 

reliance interests is the sole aim of the Ex Post Facto Clause − and suggested that such 

an argument would be equally unavailing in the context of the third Calder category at 

issue herein. 

Additionally, the Commonwealth cites no case law which would support limiting 

the ex post facto prohibition to intentional crimes; to the contrary, other courts have 

found ex post facto violations in circumstances involving unintentional crimes. See, 

e.g., Masino, supra (holding the date of the criminal negligence by contractors who 

failed to properly encase underground gas pipes in concrete, resulting in leakage and 

an accumulation of gas which caused an explosion that killed several people, not the 

date of the consequences of such negligence, was the relevant date of the unintentional 

crime for purposes of an ex post facto analysis); State v. Bunn, 440 P.2d 528 (Haw. 

1968) (engaging in ex post facto analysis in case involving negligent homicide by 

vehicle). 

Finally, as the United States Supreme Court noted in Carmell regarding the 

protection provided by the Ex Post Facto Clause: 

There is plainly a fundamental fairness interest, even apart 

from any claim of reliance or notice, in having the 

government abide by the rules of law it establishes to govern 

the circumstance under which it can deprive a person of his 

or her liberty or life. 

529 U.S. at 533. 

For all of the reasons discussed above, we conclude that, for purposes of an ex 

post facto inquiry, the Commonwealth’s focus on the result of an individual’s criminal 

acts − in this case, the death of the victim − is misplaced. Rather, we hold that, where a 
[J-20-2015] - 22 

crime requires both a criminal act and a subsequent result (e.g., a homicide), the 

imposition of a more severe sentence based on a statute that was amended after the 

act was committed, but prior to the result of that act, violates the ex post facto

prohibition. 

This Court must adhere to the principles set forth in the United States 

Constitution, as interpreted by the high Court. As Rose’s assault on the victim occurred 

in 1993, when the applicable statute provided for a maximum sentence of 20 years for 

third-degree murder, the trial court’s imposition of a longer sentence − a maximum term 

of 40 years − under an amendment to the statute that occurred subsequent to the 

assault, violated Rose’s rights under the Ex Post Facto Clause. Thus, the Superior 

Court properly vacated the trial court’s sentence and remanded for resentencing. 

Order affirmed. 

Mr. Chief Justice Saylor and Messrs. Justice Eakin and Baer join the opinion. 

Mr. Chief Justice Saylor files a concurring opinion. 

Mr. Justice Eakin files a concurring opinion. 

Mr. Justice Stevens files a dissenting opinion.