Does the act of murder occur at the time an attack is carried out or when the victim dies?
That's the question now before a panel of nine state Superior Court judges, who must decide if Stevenson Rose -- convicted of savagely beating a woman in 1993 who died from her injuries 14 years later -- should be sentenced under the law as it existed at the time of the beating, or at the time Mary Mitchell died.
The en banc panel heard argument on the issue Tuesday in Pittsburgh. The request for re-argument was made by the Allegheny County district attorney's office, which lost a 3-0 decision by the court in June 2012. At the time, the three-judge panel remanded Rose for resentencing, finding that Common Pleas Judge Kathleen Durkin's sentence of 20 to 40 years, the penalty in place when Mitchell died in 2007, was not appropriate.
Rose and Shawn Sadik attacked Mitchell at Larimer Park early in the morning of July 13, 1993. According to police, the woman was kicked and stomped dozens of times. She also had her neck slashed and had internal injuries inflicted with a 14-inch piece of metal.
The men were charged with attempted homicide and aggravated assault, and in 1994, Rose was convicted and sentenced to 15 to 30 years in prison.
Mitchell lived in a persistent vegetative state in a nursing home for 14 years, dying from complications from decreased brain function in September 2007.
Following her death, the district attorney's office charged both Sadik and Rose with criminal homicide. After separate jury trials, Sadik was found guilty of first-degree murder and sentenced to life in prison without parole.
Rose, though, was found guilty of third-degree murder. In 1993, third-degree murder called for a maximum sentence of 10 to 20 years in prison. But by 2007, when Mitchell died, the law called for 20 to 40 years.
Deputy District Attorney Daniel Fitzsimmons argues that the current penalty should apply, saying that all of the elements of the crime of third-degree murder -- including that the victim has died -- were not present until 2007.
"You can't have homicide without a death," he said.
But Judge John T. Bender, who was on the original panel finding against him, asked, "Aren't you changing the penalty after the act was committed? Isn't it as simple as that?"
Mr. Fitzsimmons said that to understand when the crime was committed, the court should look for guidance from Pennsylvania's statute of limitations.
Although there is not a specific time limit for bringing a charge for murder, the law dictating statutes of limitations for other criminal acts said that "a crime is committed when every element occurs."
Judge Bender responded, "Death is a result of acts that were committed, and they were committed when the beating occurred."
William Kaczynski, who argued on behalf of Rose, told the Superior Court that the Pennsylvania criminal statute does not define when homicide occurs.
"Mr. Rose did nothing further to the victim after 1993," he said. "Everything that caused the death of the victim occurred in 1993."
President Judge Correale F. Stevens responded, "So, he benefits because the person he beat up lingered on and didn't die right away?"
Mr. Kaczynski dismissed the prosecution's argument that the court should make its decision in concert with the statute of limitations.
"If there's anything absurd, it's that argument," he said. "We already knew the Legislature didn't intend to define when a death occurred."
Paula Reed Ward: firstname.lastname@example.org or 412-263-2620.