Com. v. Bernardo, A., Jr. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY ROY BERNARDO, JR. :
:
Appellant : No. 241 MDA 2022
Appeal from the Judgment of Sentence Entered October 19, 2021
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000160-2019
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 28, 2023
Anthony Roy Bernardo, Jr. appeals from the judgment of sentence
following his convictions for attempted delivery of marijuana, conspiracy to
deliver marijuana, and carrying a firearm without a license.1 He argues the
court erred in relying on an improper consideration when it imposed his
sentence and in applying the deadly weapon enhancement. We affirm in part
and vacate in part the judgment of sentence, and remand for resentencing.
This case arose from a drug transaction. Bernardo was the seller, and
with the help of another man, Cole Robinson, he arranged to sell marijuana
to Issayah Fostion. Fostion, in turn, entered into a secret agreement with the
victim, Wesley Burnett, to rob Bernardo, rather than buy marijuana from him.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 901(a), 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903, 35
P.S. § 780-113(a)(30); and 18 Pa.C.S.A. § 6106(a)(1), respectively.
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Fostion and Burnett arrived at the agreed time and place, where Bernardo was
sitting in the front passenger seat of a car. Burnett ran up to the rear
passenger door, behind where Bernardo was sitting, and drew his gun.
Bernardo, who was armed, pulled out his own gun. Burnett fired first, and
Bernardo shot back, striking Burnett, who fled and later died.
Bernardo was charged with several crimes: attempted murder (as to
Fostion), homicide generally (as to Burnett), attempted delivery of marijuana,
conspiracy to deliver marijuana, and carrying a firearm without a license. He
proceeded to a bench trial and argued self-defense. The judge found him not
guilty of homicide and attempted murder, concluding Bernardo had prevailed
on his claim of self-defense. The judge found him guilty of attempted delivery
of marijuana, conspiracy to deliver marijuana, and carrying a firearm without
a license.
As to the conviction for attempted delivery of marijuana, Bernardo was
sentenced to a prison term of 24 to 60 months. The trial court applied the
deadly weapon “used” enhancement, calculating the standard range
guidelines as six to 15 months, with the aggravated range of up to 18 months.
As to the conviction for conspiracy to deliver marijuana, Bernardo was
sentenced to a term of 24 to 60 months. The court again applied the deadly
weapon “used” enhancement, calculating the standard range guidelines to be
six to 15 months, with the aggravated range of up to 18 months.
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As to the weapon possession conviction, Bernardo was sentenced to 42
to 84 months’ incarceration. The standard range was 24 to 36 months, with
the aggravated range up to 42 months.
Bernardo filed a post-sentence motion, which the court granted in part.
The court determined that the enhancement for the use of a deadly weapon
should not have been applied to the conspiracy count. At resentencing, the
court imposed the same sentences on the attempted delivery of marijuana
and carrying a firearm without a license convictions. However, instead of
applying the deadly weapon “used” enhancement on the conspiracy
conviction, it applied the deadly weapon “possessed” enhancement and
imposed a slightly lesser sentence of 21 to 60 months’ incarceration on that
count. All the sentences were to run consecutively, for an aggregate term of
87 to 204 months’ incarceration.
Bernardo filed another post-sentence motion challenging the upward
departures from the guidelines. The court denied the motion, explaining in an
opinion that in its view, the circumstances of the case were not typical of
conspiracies and attempts to deliver marijuana and were not sufficiently
accounted for by the guidelines. This appeal followed. Bernardo raises the
following issues:
1. Whether the [t]rial [c]ourt committed an abuse of discretion by
[s]entencing [Bernardo] outside of the aggravated range
guidelines on his convictions for Attempt and Conspiracy to
Deliver Marijuana without proper justification and without
adequate explanation?
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2. Whether the [t]rial [c]ourt erred in applying a deadly weapon
enhancement to [Bernardo’s s]entence for Attempt to Deliver
Marijuana where [Bernardo] did not use a deadly weapon
during the commission of the offense, and by failing to consider
that application of sentencing enhancements are improper for
inchoate crimes?
3. Whether the [t]rial [c]ourt erred in applying a deadly weapon
enhancement to [Bernardo’s s]entence for Conspiracy to
Deliver Marijuana where there was insufficient evidence that
[Bernardo] possessed a deadly weapon when he committed the
Conspiracy, and by failing to consider that application of
sentencing enhancements are improper for inchoate crimes?
Bernardo’s Br. at 7.
Bernardo challenges the discretionary aspects of his sentence. “The
right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018). Before
reviewing the merits of Bernardo’s claim, we must determine whether:
(1) the appeal was timely; (2) the appellant has preserved his
issue; (3) his brief includes a concise statement of the reasons
relied upon for allowance of an appeal with respect to the
discretionary aspects of his sentence; and (4) the concise
statement raises a substantial question whether the sentence is
inappropriate under the Sentencing Code.
Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super. 2019); see also
Pa.R.A.P. 2119(f) (stating that an appellant who challenges the discretionary
aspects of a sentence “shall set forth in a separate section of the brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence”).
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Here, Bernardo has complied with the first three requirements: his
appeal is timely, he preserved the issue in a post-sentence motion, and his
brief includes a statement of the reasons for allowance of appeal. We now turn
to whether Bernardo has raised a substantial question.
A substantial question exists when the appellant makes a colorable
argument that the sentencing judge’s actions were either inconsistent with a
specific provision of the Sentencing Code or contrary to the fundamental
norms underlying the sentencing process. Commonwealth v. Moury, 992
A.2d 162, 170 (Pa.Super. 2010). Bernardo claims that the trial court relied on
improper considerations in imposing his sentence and did not provide an
adequate explanation on the record for the sentence imposed. Bernardo’s Br.
at 18. This presents a substantial question. See Commonwealth v. King,
182 A.3d 449, 454 (Pa.Super. 2018); Commonwealth v. Rodda, 723 A.2d
212, 214 (Pa.Super. 1999) (en banc). Bernardo also argues the trial court
abused its discretion by applying the deadly weapon enhancement. A
challenge to the application of the deadly weapon enhancement presents a
substantial question. See Commonwealth v. Tavarez, 174 A.3d 7, 9-10
(Pa.Super. 2017); Commonwealth v. Raybuck, 915 A.2d 125, 127
(Pa.Super. 2006). We will proceed to the merits of Bernardo’s claims.
Bernardo first argues that even though the court stated it was not
sentencing him for taking Burnett’s life, “it provided no reason or explanation
as to how [his] conduct in attempting or conspiring to deliver marijuana was
any different than an ordinary attempt or conspiracy to deliver marijuana.”
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Bernardo’s Br. at 22. Bernardo also argues that the court “provided no
explanation, other than the fact Mr. Burnett lost his life, to justify running the
sentence at each count consecutive to one another[.]” Id. Bernardo concludes
that “by considering only the fact that Mr. Burnett lost his life, and by providing
no other reason to deviate from the aggravated range guidelines, the [t]rial
[c]ourt abused its discretion[.]” Id. at 23 (emphasis in original).
“Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of discretion.” Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa.Super.
2018) (citation omitted). An abuse of discretion occurs where “the sentencing
court ignored or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable
decision.” Id. (citation omitted). In imposing a sentence, the sentencing court
must consider “the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b).
Where the court has the benefit of a pre-sentence investigation (“PSI”)
report, we presume the court was aware of all appropriate sentencing factors
and considerations and consider the requirement that the court place its
reasoning on the record to be satisfied. Commonwealth v. Johnson-
Daniels, 167 A.3d 17, 26 (Pa.Super. 2017). In conducting appellate review,
we may not reweigh the sentencing factors and impose our own judgment in
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place of that of the trial court. Commonwealth v. Macias, 968 A.2d 773,
778 (Pa.Super. 2009).
Here, although the court sentenced Bernardo outside the sentencing
guidelines, “[i]t is well established that the [s]entencing [g]uidelines are
purely advisory in nature.” Commonwealth v. Yuhasz, 923 A.2d 1111, 1118
(Pa. 2007). A “sentencing court is permitted to deviate from the sentencing
guidelines; however, the court must place on the record its reasons for the
deviation.” Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780
(Pa.Super. 2009) (citation omitted). Indeed,
the sentencing court may deviate from the guidelines, if
necessary, to fashion a sentence which takes into account the
protection of the public, the rehabilitative needs of the defendant,
and the gravity of the particular offense as it relates to the impact
on the life of the victim and the community, so long as it also
states of record the factual basis and specific reasons which
compelled it to deviate from the guideline range.
Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa.Super. 2012) (citation
and brackets omitted).
At sentencing, the court said that although it was not sentencing
Bernardo “for taking Wesley Burnett’s life,” stating explicitly that it had found
the shooting “justified,” it was nonetheless considering the killing in
sentencing Bernardo. The court reiterated, “I want to be very clear, Mr.
Bernardo, that you’re not being sentenced today for murdering Wesley
Burnett.” N.T., 10/19/21, at 7-8. However, it explained that the killing and
the crimes for which it had found Bernardo guilty were connected, stating,
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“[T]he fact of the matter remains with respect to the drug deal that you put
in motion through the assistance of Cole Robinson then with the agreement
of Wesley Burnett and Issayah Fostion, Wesley Burnett lost his life.” Id. at 8.
The court further opined:
Of course, the sentencing guidelines with respect to uncompleted
drug delivery offenses and unlicensed possession of a firearm
contemplate the potential for some danger. However, it cannot
reasonably be argued that the sentencing guidelines account for
the actual death of another human being as a result of a gunshot.
The circumstances surrounding this case went so far beyond the
nature of typical marijuana transaction cases. The most serious
and irreversible type of harm possible resulted from these crimes:
someone lost his life. [Bernardo] put into motion a chain of events
that risked serious injury or death, even though he may not be
legally responsible for the resulting death. In contrast, [Bernardo]
has not offered any argument that the circumstances of this case
are in any way typical of cases falling under the broad nature of
conspiracy to deliver marijuana and attempt to deliver marijuana,
in terms of either what transpired during their commission or the
seriousness of harm to another individual.
Trial Court Opinion, 1/6/22, at 30-31.
We discern no abuse of discretion. To the extent the court’s statement
that Bernardo was not being sentenced for the death is in tension with its
statement that it was considering the death when sentencing Bernardo for
attempt and conspiracy, that is no reason to vacate the sentence. The court
was obviously acknowledging that it had acquitted Bernardo for the killing,
while simultaneously informing Bernardo that it was nonetheless considering
the death as a circumstance that Bernardo’s criminal activity had brought
about.
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Further, pursuant to precedent, the court permissibly considered the
death, notwithstanding the acquittal. A court may consider “even arrests that
result in acquittals, if the judge is aware of the acquittal.” Commonwealth
v. Bowers, 25 A.3d 349, 356 (Pa.Super. 2011); see also Commonwealth
v. Archer, 722 A.2d 203, 212 (Pa.Super. 1998) (en banc); Commonwealth
v. Tisdale, 334 A.2d 722, 724 (Pa.Super. 1975), abrogated on other grounds,
Commonwealth v. Kelly, 78 A.3d 1136, 1145 n.8 (Pa.Super. 2013).2 This
case easily meets that test. The judge here was obviously aware that she had
just acquitted him. If that were not enough, as just stated, she also made her
awareness of the acquittal apparent on the record at sentencing. In addition,
the court had the benefit of a PSI report. We therefore presume it weighed all
relevant factors. Johnson-Daniels, 167 A.3d at 26.3
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2 See also United States v. Watts, 519 U.S. 148, 157 (1997) (“a jury’s
verdict of acquittal does not prevent the sentencing court from considering
conduct underlying the acquitted charge, so long as the conduct has been
proved by a preponderance”); Commonwealth v. Long, Nos. 757 & 758 EDA
2019, 2020 WL 7075310, at **5 (Pa.Super. 2020) (unpublished mem.).
3 The dissent would grant relief based on Commonwealth v. Ali, 149 A.3d
29 (Pa. 2016). Its reliance on Ali is misplaced. The question before the Court
in Ali was, according to the Supreme Court’s opinion in that case, “Does a
sentencing judge have discretion to consider victim impact evidence where
the offense is not a ‘crime against a person?’” Id. at 34. The Court there did
not purport to render a decision on the issue we confront: the sentencing
court’s consideration of a death that gave rise to charges for which the
defendant was acquitted. The other cases the dissent cites are similarly not
dispositive on this issue. The cases either did not address this issue, or if they
somehow touched on it, the portion cited is dicta. Nonetheless, statements in
Ali are arguably in tension with the cases cited above, which have never been
overruled. But we need not decide the effect of Ali on this issue to render a
(Footnote Continued Next Page)
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Bernardo next argues the court erred in applying the deadly weapon
“used” enhancement when it sentenced Bernardo for attempted delivery of
marijuana. Bernardo’s Br. at 23. It contends the crime of attempted delivery
of marijuana was already completed before Burnett fired a shot at Bernardo.
Id. at 24. Bernardo therefore concludes that the enhancement should not
have been applied because he did not use a deadly weapon when he
committed the offense of attempted delivery. We agree.
The deadly weapon “used” enhancement provisions of the sentencing
guidelines require that an enhancement shall apply “when the court
determines that the offender used a deadly weapon during the commission
of the current conviction offense[.]” 204 Pa.Code § 303.10(a)(2) (emphasis
added). “[T]o establish use of a deadly weapon under this provision, the
record must show that the defendant used the weapon to threaten or injure
the victim while committing the particular offense.” Tavarez, 174 A.3d at 11.
Here, the record demonstrates Bernardo did not “use” a deadly weapon
during the commission of the attempted delivery of marijuana, as required
under 204 Pa.Code § 303.10(a)(2). Bernardo did not draw his weapon against
Burnett and Fostion until after they had attacked him with deadly force, at
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decision here. Even if the dissent is correct and Ali put a gloss on the cases
permitting sentencing judges to consider conduct underlying acquitted
charges, Ali’s “logical impact” test is satisfied. See id. at 38 n.6. The trial
court explained the logical connection it found between the crime and the
death: Bernardo’s conspiratorial conduct with Robinson and Fostion to sell
marijuana put into motion the circumstances that resulted in Burnett’s death.
See Tr. Ct. Op. and Order, 1/6/22, at 30-31. That was not an abuse of
discretion.
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which point Bernardo was no longer attempting to commit the offense of
selling marijuana to them. The trial court therefore abused its discretion in
applying the deadly weapon “used” enhancement to Bernardo’s sentence.
Bernardo makes a similar argument in his final issue. He contends the
court erred in applying the deadly weapon “possessed” enhancement when it
sentenced him for conspiracy to deliver marijuana. Bernardo’s Br. at 25.
Bernardo argues the crime of conspiracy “was complete the moment that the
first overt act was taken in furtherance of the conspiracy, which in this case
was when Mr. Robinson, at [Bernardo’s] request, left to go pick up [Bernardo]
at [Bernardo’s] house, with knowledge that [Bernardo] had the marijuana
ready to sell to Mr. Fostion.” Id. at 26. According to Bernardo, the crime of
conspiracy was already completed before Bernardo and Robinson travelled to
the agreed upon location and “the record is wholly void of any evidence that
[Bernardo] possessed a firearm during the forming of the agreement with Mr.
Robinson or during the overt act in furtherance of the agreement.” Id. at 27.
The deadly weapon “possessed” enhancement applies “when the court
determines that the offender possessed a deadly weapon during the
commission of the current conviction offense[.]” 204 Pa.Code § 303.10(a)(1)
(emphasis added).
Unlike his previous claim, Bernardo’s claim concerning the enhancement
on the conspiracy count has no merit. There is no dispute that Bernardo
agreed with Robinson to sell marijuana to Fostion at a certain location, and
that Bernardo was armed at the time he arrived there. The record establishes
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that Bernardo was armed with a deadly weapon when he was still carrying out
the conspiracy to sell marijuana. Bernardo cites no legal authority for the
proposition that a conspiracy offense is completed the moment it has begun,
and this Court has affirmed the application of deadly weapon enhancements
to conspiracy convictions under similar circumstances. See Commonwealth
v. Pennington, 751 A.2d 212, 217 (Pa.Super. 2000) (affirming application of
deadly weapon enhancement as to the offense of conspiracy to commit
robbery); see also Commonwealth v. Matthews, 196 A.3d 242, 252-53
(Pa.Super. 2018) (same).
Bernardo additionally argues that sentencing enhancements, in general,
are not applicable to inchoate crimes, such as conspiracy. See Bernardo’s Br.
at 27. In support of his argument, he cites Commonwealth v. Ali, 112 A.3d
1210 (Pa.Super. 2015), vacated and remanded on other grounds, 149 A.3d
29 (Pa. 2016); Commonwealth v. Young, 922 A.2d 913 (Pa.Super. 2007);
and Commonwealth v. Adams, 760 A.2d 33 (Pa.Super. 2000). However,
Bernardo’s reliance on these cases is misplaced. Ali and Adams addressed
the school and youth enhancements — not the deadly weapon enhancement.
Young also did not involve the deadly weapon enhancement, but rather a
sentencing enhancement for “second or subsequent offenses” under the
Controlled Substance, Drug, Device and Cosmetic Act. Moreover, section
303.10(a)(3) of the sentencing guidelines lists crimes for which the deadly
weapon enhancement does not apply, and inchoate crimes are not
enumerated. 204 Pa.Code § 303.10(a)(3). Thus, the court did not abuse its
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discretion in applying the deadly weapon “possessed” enhancement to the
conspiracy conviction.
Judgment of sentence vacated in part and affirmed in part. Case
remanded for resentencing. Jurisdiction relinquished.
President Judge Panella joins the memorandum.
Judge Pellegrini files a dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/28/2023
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