The Allegheny County District Attorney's office said today it will appeal a decision by the state Superior Court issued Monday in which a panel of judges found that a man convicted of third-degree murder must be sentenced under the law at the time the assault occurred in 1993 and not the law at the time of the death, which was in 2007.
Stevenson Rose, 49, is being held at the State Correctional Institution at Albion.
He was found guilty of third-degree murder in October 2010. The underlying crime occurred on July 13, 1993, when he and another man attacked Mary Mitchell at Larimer Park.
Mitchell survived the attack but remained in a vegetative state until her death on Sept. 17, 2007.
Rose was arrested the same day as the attack and was convicted of aggravated assault, recklessly endangering another person and involuntary deviate sexual intercourse. He was sentenced to 15 to 30 years in prison.
But after Mitchell died in 2007, Rose and his co-defendant, Shawn Sadik, were charged with criminal homicide. Sadik was found guilty of first-degree murder, but the jury in Rose's case apparently believed testimony at trial that he was so drunk at the time of the crime that he could not form the requisite intent to kill to find him guilty of first-degree.
At the time of the assault, third-degree murder carried a maximum penalty of 20 years in prison, but the law changed a couple years later, doubling that.
Deputy District Attorney Dan Fitzsimmons argued to Allegheny County Common Pleas Judge Kathleen Durkin that the crime wasn't completed until the death occurred, and therefore Rose should be sentenced to the maximum under the law in 2007.
The defense argued that it should be the penalty in place when the underlying attack occurred.
Judge Durkin sided with the prosecution and sentenced Rose to 20 to 40 years.
But on Monday, the Superior Court issued a 25-page opinion reversing Judge Durkin and siding with the defense. The court wrote that to sentence under the law in 2007 would be a violation of the Constitution which prohibits punishment ex post facto -- or after the fact.
"Although 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 before the passage of the third degree murder sentencing statute at issue," wrote Superior Court Judge Mary Jane Bowes for the majority.
Paula Reed Ward: email@example.com or 412-263-2620. Twitter: @PaulaReedWard