Attempted Murder: Longer Sentence Notice Requirement; Multiple Convictions for More Than One Inchoate Offense

Commonwealth v. King, 2018 WL 4271212 (Pa. Super. 2018) (unreported), allocatur granted March 5, 2019, appeal docket 3 EAP 2019

Appellant Jimel King was sentenced to thirty-five to seventy years of incarceration and five years of probation for his convictions for attempted murder, aggravated assault, conspiracy to commit attempted murder and aggravated assault, and firearms offenses.  His crimes all involved a single incident in which he assaulted Arielle Banks, a woman with whom he had previously been friendly. On June 17, 2015, when the two met in the vicinity of 25th and Allegheny Streets in Philadelphia, where King lived, he demanded to know why Ms. Banks had not been answering his phone calls. She responded that she had not appreciated his disrespectful, aggressive conversation the last time they had spoken. In response, he told her to leave the block and not be there when he got back. She stayed.  Later, when she was getting ready to leave on foot, a car in which King was a passenger drove towards her. King jumped out, holding an Uzi-like weapon.  He chased her and fired thirteen to fourteen times, seriously wounding her in the ankle, buttocks, lower back, and hip.  She later identified King from a photo array, a grand jury indicted him, and he was convicted and sentenced.

On appeal to the Superior Court, King raised a number of issues, only two of which are now implicated in the Supreme Court’s grant of allocatur.  First, he argued that the trial court imposed an illegal sentence of twenty to forty years of incarceration for attempted murder, where he was not charged with “attempted murder causing serious bodily injury” and where the Commonwealth did not give him notice it intended to seek an aggravated offense. King maintained that the Commonwealth was required to give written notice of its intent to seek the aggravated sentence under 18 Pa. C.S. § 1102(c), and because it did not, his sentence is illegal.  18 Pa. C.S. § 1102(c) provides that:

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 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.

Additionally, case law holds that the serious bodily injury must have resulted from the attempted murder and is a fact that must be proven before the sentence may be imposed. Additionally, the defendant must be put on notice when the Commonwealth is seeking the forty-year maximum sentence.

Superior Court summarized the record concerning required charge and notice to the defendant as follows: (1) King was charged with attempted murder in the first degree; (2) the criminal information noted that the offense was a felony of the first degree; (3)  at a pre-trial hearing, the Commonwealth indicated that the guideline range for attempted murder was seventeen and one-half years, and that it would seek the maximum forty-year sentence, as opposed to the general twenty-year maximum; (4) following the close of testimony at trial the prosecution and defense reviewed the charges that would be read to the jury; (5) the charge for attempted murder was read and explained to the jury, including an instruction that the prosecution had to prove that the defendant’s acts constituted a substantial step towards the commission of the killing of the victim; (6) the trial court  instructed the jury on serious bodily injury in the context of aggravated assault; (7) the jury found that the victim had suffered serious bodily injury because of King’s acts; (8) King was convicted of aggravated assault that caused serious bodily injury; and (9) the Commonwealth in its sentencing memorandum indicated that the maximum sentence for attempted murder was forty years and recommended a sentence of twenty to forty years.

The Superior Court, based on this summary and focused more on the fact that King did not dispute that serious bodily injury resulted from the attempted murder rather than on the requirement that King must be put on notice that the Commonwealth is seeking the forty-year maximum sentence, concluded that the requirements of § 1102(c) had been satisfied.  Without pointing to evidence that King had been given notice, Superior Court found that King had been given “sufficient” notice that the Commonwealth would seek a sentence of 40 years:

Based on the above, we conclude that Appellant was provided with sufficient notice that the Commonwealth intended to invoke 18 Pa.C.S.A. § 1102(c). The indictment noted that Appellant had shot Ms. Banks multiple times and the criminal information charged him with attempted homicide as a first-degree felony. And Appellant stipulated to the extent and severity of the victim’s injuries and was informed he faced a minimum sentence of seventeen and one-half years on the attempted murder charge. … The jury made the determination, beyond a reasonable doubt, that Appellant had inflicted serious bodily injury on Ms. Banks, and also convicted him of aggravated assault that caused serious bodily injury. … Thus, the court’s twenty to forty-year sentence for attempted murder was lawfully imposed, and Appellant is not entitled to relief.

Slip Op. at 12-13 (citations omitted).

The second issue King raised in the Superior Court as to which the Supreme Court has granted allocatur alleges misapplication of the statutes governing the situation where multiple crimes are the subject of the same conspiracy. Specifically, 18 Pa. C.S. §§ 903(c) and 906, provide as follows:

(c) Conspiracy with multiple criminal objectives.—If a person conspires to commit a number of crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object of the same agreement or continuous conspiratorial relationship.

18 Pa. C.S. § 903(c).

A person may not be convicted of more than one of the inchoate crimes of criminal attempt, criminal solicitation or criminal conspiracy for conduct designed to commit or to culminate in the commission of the same crime.

18 Pa. C.S. § 906.

King argued to the Superior Court that his multiple crimes were the object of the same agreement or conspiratorial relationship, and designed to culminate in the commission of the same crime.  Superior Court dismissed this argument on the basis of its decision in Commonwealth v. Kelly, 78 A.3d 1136, 1144-1145 (Pa. Super. 2013), where it held that a defendant may be sentenced for conspiracy to commit aggravated assault and conspiracy to commit murder, because the two offenses “are not designed to culminate in the commission of the same crime, i.e., murder . . . Specifically, attempted murder requires a specific intent to kill, which conspiracy to commit aggravated assault does not, and the conspiracy crime requires an agreement that is not included in attempted murder.”

King sought allocatur review by the Pennsylvania Supreme Court, and the Court has granted review of both issues. Those issues, as phrased by Jimel King, are:

  1. Did not the Superior Court err and deny petitioner due process and Sixth Amendment rights in holding that the Commonwealth need not provide formal notice to a defendant when seeking to prosecute him for an aggravated offense, specifically the 40-year maximum sentence authorized under 18 Pa. C.S.A. § 1102(c)?
  2. Did not the Superior Court err and conflate 18 Pa. C.S.A. §§ 906 and 903(c) in holding that conspiracy to commit murder and conspiracy to commit aggravated assault are separate conspiracies, where petitioner’s actions were the object of one conspiratorial agreement and relationship, pursuant to § 903(c), and where petitioner was, therefore, subject to an illegal sentence contrary to the prohibition under § 906 against multiple convictions for more than one inchoate offense?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.