
    127 A.3d 794
    COMMONWEALTH of Pennsylvania, Appellant v. Stevenson Leon ROSE, Appellee.
    Supreme Court of Pennsylvania.
    Argued April 8, 2015.
    Decided Nov. 18, 2015.
    
      Keaton Carr, Esq., Daniel Edward Fitzsimmons, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney’s Office, for Commonwealth of Pennsylvania.
    William C. Kaezynski, Esq., for Stevenson Leon Rose.
    SAYLOR, C.J., EAKIN, BAER, TODD, STEVENS, JJ.
   OPINION

Justice TODD.

The issue in this discretionary appeal is whether a defendant convicted of third-degree 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 order of the Superior Court vacating Appellee Stevenson Leon Rose’s sentence and remanding for resentenc-ing.

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, aggravated assault, involuntary deviate sexual intercourse, recklessly endangering another person, and criminal conspiracy, and, on March 16, 1994, he was sentenced to 16 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, 445 Pa.Super. 630, 664 A.2d 1059 (1995), appeal denied, 543 Pa. 712, 672 A.2d 306 (1995).

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. Rejecting his diminished capacity defense, the jury convicted Rose of third-degree murder. 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 17 ½ 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 review by the Superior Court. The en banc panel of the Superior Court, in an opinion written by Judge Mary Jane Bowes, recognized that “[njeither 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 ). However, the court found instructive the decisions of other states that have addressed analogous issues, see infra, and reasoned that, “[ajlthough 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

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 Obiigation of Contracts.... ” U.S. Const, art. I, § 10. 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, 1 L.Ed. 648 (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 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, — U.S. -, 133 S.Ct. 2072, 2081, 186 L.Ed.2d 84 (2013) (quoting Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990)). 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, 97 S.Ct. 2290, 53 L.Ed.2d 344 (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, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (footnotes and citations omitted); see also Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (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 30, 101 S.Ct. 960)), disapproved in part on other grounds Calif. Dep’t of Corrections v. Morales, 514 U.S. 499, 506 n. 3,115 S.Ct. 1597, 131 L.Ed.2d 588 (1995).

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, 101 S.Ct. 960. 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 “La-Fave”) (citations omitted).

The ex post facto prohibition is concerned with legislative acts, as opposed to judicial decisions. Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (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, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964), contains “some expansive language that is suggestive of the broad interpretation for which petitioner argues,” Rogers, 532 U.S. at 458, 121 S.Ct. 1693, the high Court held:

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 decisionmak-ing, on the other.

Id. at 460, 121 S.Ct. 1693.

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, 460 U.S. at 29, 101 S.Ct. 960 (footnote omitted); see also Young, 637 A.2d at 1318 (“Only those laws which disadvantage a defendant and fall within a Colder 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 homicide was not complete until 2007, the year the victim died. Id. at 24-25 (citing Commonwealth v. Ramunno, 219 Pa. 204, 68 A. 184 (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.

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 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, 298 N.C. 604, 260 S.E.2d 667 (1979). In Better, 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 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, [229 N.C. 348, 49 S.E.2d 617 (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 690 (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.

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.

64 N.W. at 448.

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 Better’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.

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 Galder:

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, 46 S.Ct. 68, 70 L.Ed. 216 (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, 46 S.Ct. 68.

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.

363 U.S. 144, 160, 80 S.Ct. 1146, 4 L.Ed.2d 1109 (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, 101 S.Ct. 960 (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, 101 S.Ct. 960 (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 [71 U.S. 277], 4 Wall. 277, 325, 18 L.Ed. 356 (1867).

Id. at 31 n. 15, 101 S.Ct. 960 (emphasis added).

More than 60 years after Beazell, the high Court, in Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (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 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); Colder, 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 8 Dali, 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.

497 U.S. at 43-44, 110 S.Ct. 2715 (emphasis added).

Although the Commonwealth maintains that the ex post facto prohibition applies only to prior completed crimes, 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 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, 216 La. 352, 43 So.2d 685, 687 (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”). 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, 107 S.Ct. 2446; Weaver, 450 U.S. at 28-29, 101 S.Ct. 960; see also Broughton, at 728; LaFave, at 121; Cook, at § 1:18.

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 ease 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, 120 S.Ct. 1620, 146 L.Ed.2d 577 (2000)). In Carmell, the high Court considered an ex post facto challenge to a Texas law, an amendment to 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, 120 S.Ct. 1620. 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.

Id. at 531 n. 21, 120 S.Ct. 1620. 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, 50 Haw. 351, 440 P.2d 528 (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 lav? 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, 120 S.Ct. 1620.

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 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.

Chief Justice SAYLOR and Justices EAKIN and BAER join the opinion.

Chief Justice SAYLOR files a concurring opinion.

Justice EAKIN files a concurring opinion.

Justice STEVENS files a dissenting opinion.

Chief Justice SAYLOR,

concurring.

I join the majority opinion, subject to a few modest differences.

Initially, I agree with the majority, at least as a general rule, that the ex post facto prohibition is implicated when a legislative enactment increases the adverse legal consequences of criminal acts completed before the law’s effective date. In other words, where the relevant conduct is fully consummated before the implementation of a crime-creating or penalty-enhancing law, the date of the offense, for ex post facto purposes, generally should be the date the conduct occurred, and subsequently ensuing results should be treated as relating back to such date. Along these lines, and consistent with the majority opinion, I am unpersuaded by the Commonwealth’s argument that the word “crime,” as utilized in the seminal description of ex post facto laws in Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798), necessarily means a fully realized criminal offense, encompassing all elemental results.

My differences with the majority opinion are as follows. First, like Mr. Justice Eakin, I find it preferable to avoid the “disadvantage” and “substantial personal rights” rubric from which the Supreme Court of the United States appears to have distanced itself. See Concurring Opinion, at 684, 127 A.3d at 809 (Eakin, J.) (citing Collins v. Youngblood, 497 U.S. 37, 45, 110 S.Ct. 2715, 2721, 111 L.Ed.2d 30 (1990)). That said, conceptually, I acknowledge that I have less difficulty, on my own part, with a measured use of these terms in the ex post facto arena.

Next, I differ with the majority’s depiction that the Commonwealth’s position is, in effect, that “the prohibition against ex post facto laws does not apply to unintentional crimes.” Majority Opinion, at 679, 127 A.3d at 806. Indeed, nowhere in its brief does the Commonwealth contend that legislation subjecting a defendant who previously was convicted of and sentenced for any fully realized crime to enhanced penalties would not be proscribed. Rather, the Commonwealth’s discrete focus is upon crimes that are unconsummated as of the effective date of intervening legislation.

I also find this focus upon intentionality or unintentionality to be somewhat distracting and, accordingly, I would address the Commonwealth’s contentions in terms of the broader requirements for culpability set forth in the Pennsylvania Crimes Code, 18 Pa.C.S. § 302 (indicating, subject to one express exception, that “a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly or negligently, as the law may require”). Within each of these categories, with regard to their conduct, citizens have the ability to conform themselves to the requirements of the law upon fair notice. Moreover, as the majority otherwise acknowledges, such notice of the criminal-law consequences of a failure to conform traditionally has been a recognized concern of ex post facto jurisprudence. See Majority Opinion, at 677-79, 127 A.3d at 805-06 (citing, inter alia, Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987), disapproved in part on other grounds Calif. Dep’t of Corrections v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 1602 n. 3, 131 L.Ed.2d 588 (1995)).

From my point of view, the notice concern directly pertains here, albeit that the Supreme Court has seen fit to invoke broader fairness principles where conceptual differences have arisen in discussing notice or reliance upon their own terms. Accord id. at 679-80, 127 A.3d at 806-07 (citing Carmell v. Texas, 529 U.S. 513, 531 n. 21, 120 S.Ct. 1620, 1632 n. 21, 146 L.Ed.2d 577 (2000)). In the present setting, perhaps recourse to the broader principles aids in avoiding a digression into whether a defendant truly would or would not have engaged in some sort of a mental penalty calculus, when the salient consideration is the requirement for the government to provide notice pertinent to conduct in the first instance.

Justice EAKIN,

concurring.

I agree with the Majority that the ex post facto prohibition is violated when a more severe sentence is imposed based on a statute that was amended between the criminal act and its result. See Majority Op., at 681, 127 A.3d at 807-08.

Previously, in Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925) and Dobbert v. Florida, 482 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the United States Supreme Court attempted to distinguish between procedural and substantive changes in Ex Post Facto Clause analysis by focusing on the disadvantage, burden, and substantial personal rights of the accused. The High Court has since expressly abandoned its prior focus on “disadvantage” and “substantial personal rights”—terms that have been erroneously construed to expand the interpretation of the Ex Post Facto Clause. In Collins v. Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990), the High Court stated, “a procedural change may constitute an ex post facto violation if it affects matters of substance[.] ... We think this language from the cases cited[, inter alia Beazell and Dobbert,] has imported confusion into the interpretation of the Ex Post Facto Clause.” Id. at 45, 110 S.Ct. 2715 (internal quotation marks and citations omitted). Additionally, “[a]fter Collins, the focus of the ex post facto inquiry is not on whether a legislative change produces some ambiguous sort of ‘disadvantage,’ ... but on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable.” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 506 n. 3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). The High Court has stated the controlling inquiry is whether the amended law creates “ ‘a sufficient risk of increasing the measure of punishment attached to the covered crime.’ ” Garner v. Jones, 529 U.S. 244, 250, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000) (quoting Morales, at 509, 115 S.Ct. 1597); see also Peugh v. United States, — U.S. -, 133 S.Ct. 2072, 2083 n. 4, 186 L.Ed.2d 84 (2013) (“The relevant question is whether the change in the law creates a sufficient or significant risk of increasing the punishment for a given crime.” (internal quotations and citations omitted)).

The Commonwealth argues third-degree murder is a crime that does not require a specific intent to kill, concluding, “[I]t would seem disingenuous for one to suggest that Rose’s right to notice of the possible penalty for his crime was violated where Rose did not necessarily specifically intend to commit the crime for which he was ultimately found guilty[.]” Commonwealth’s Brief, at 34. The Commonwealth’s third-degree murder premise is fallacious, as absence of specific intent to kill is not an element of third-degree murder, nor did the jury find an absence of specific intent to kill. The verdict did not mean the jury found as a fact Rose lacked the intent to kill; all that can be said is that the prosecution did not prove the presence of such intent. A lack of proof does not equate to a finding of the contrary proposition any more than an acquittal is a verdict of innocence.

This Court specifically rejected this strand of logic in Commonwealth v. Fisher, 622 Pa. 366, 80 A.3d. 1186, 1191 (2013) (“The elements of third[-]degree murder absolutely include an intentional act, but not an act defined by the statute as intentional murder.”). The absence of specific intent to take a life does not mean a defendant has acted unintentionally. “It is well-established that third[-]degree murder is distinguishable from first[-]degree murder in that only first[-]degree murder requires the specific intent to kill.” Commonwealth v. Williams, 602 Pa. 360, 980 A.2d 510, 525 (2009) (citations omitted). Under Pennsylvania law, third-degree murder does not require a specific intent to kill but does require that one act with malice. Commonwealth v. Santos, 583 Pa. 96, 876 A.2d 360, 363 (2005) (explaining third-degree murder requires proof of malice aforethought); Commonwealth v. Carter, 481 Pa. 495, 393 A.2d 13, 15 (1978) (“Murder of the third[-]degree is an unlawful killing with malice expressed or implied, but absent any specific intent to take a life.”) (citation omitted); United States v. Marrero, 743 F.3d 389, 401 (3d Cir.2014) (“In Pennsylvania, third-degree murder is ‘an unlawful killing with malice but without specific intent to kill.’ ” (quoting Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa.Super.2011))). Malice is “intent[,] without justification or excuse, to commit a wrongful act.” Black’s Law Dictionary 1100 (10th ed.2014). We have long held that malice includes “every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured.” Commonwealth v. Drum, 58 Pa. 9, 15 (1868).

For these reasons, I join the Majority’s decision affirming the Superior Court, which remanded for resentencing.

Justice STEVENS,

dissenting.

In this case Appellee was convicted in 1994 of attempted murder and aggravated assault, but his victim did not die until 2007, and he should not escape appropriate punishment because the victim miraculously survived for a period of thirteen years.

The Majority holds that where an amendment to a sentencing statute provides a more severe sentence for a crime, the date upon which one engaged in and completed the criminal acts underlying his or her conviction determines whether the amendment applies, even when the crime is third-degree murder and the victim is still alive prior to the effective date of the amendment. I respectfully dissent.

The Majority refers to Appellee’s attack upon the victim on July 13, 1993, as a “deadly assault” and reasons that any resultant sentence beyond the maximum allowable sentence at that time for third-degree murder under 18 Pa.C.S. § 1102(d) would subject him to an “enhanced penalty” and constitute an ex post facto punishment. Respectfully, I disagree, for it is well-established that a victim’s death is an essential element of criminal homicide; therefore, Appellee did not commit third-degree murder until 2007. It follows that, as it pertains to him, the sentencing enhancement at 18 Pa.C.S. § 1102(d) does not constitute ex post facto legislation, for it was impossible for Appellee to have been sentenced prior to his conviction of third-degree murder at which time that statute prescribed a 20 to 40 year sentence for the crime.

On March 16, 1994, a jury convicted Appellee of, inter alia, attempted murder and aggravated assault for the brutal beating of the victim. Appellee was neither charged with third-degree murder in 1998 nor convicted of that crime in 1994 because, contrary to the Majority’s characterization, his violent assault had not been a deadly one, for his victim survived. Notwithstanding, the Majority has determined that the date upon which all of the elements of criminal homicide are met is not dispositive for purposes of evaluating whether a defendant’s sentence violates the Ex Post Facto Clause of the United States Constitution. In doing so, it stresses that as Appellee’s criminal acts occurred prior to the increase in the statutory sentencing scheme in 1995, the Ex Post Facto Clause is implicated because he had no way to anticipate he could be sentenced to 20 to 40 years in prison upon his conviction of third-degree murder. In support of its holding the Majority deems the facts of State v. Detter, 298 N.C. 604, 260 S.E.2d 567 (1979) to be analogous to those herein.

In Detter, a death penalty case, the North Carolina Supreme Court framed the dispositive question as whether a defendant commits first-degree murder when she intentionally inflicts murderous acts or at the time of the resultant death of the victim. In holding that one commits an intentional murder at the time she performs the murderous acts, the court distinguished its decision from that it had reached in State v. Williams, 229 N.C. 348, 49 S.E.2d 617 (1948). Therein, the court had found that an individual who assisted another after the latter had inflicted upon the victim what would later prove to be a fatal blow could not be convicted as an accessory after the fact to murder because the murder was not complete until the resulting death and no such charge could have been brought prior to that time. Detter, 260 S.E.2d at 590 (citing Williams, supra).

Herein, unlike the defendant in Detter, who clearly contemplated killing her husband in the months prior to his death when the maximum penalty for first-degree murder was life imprisonment, Appellee’s attempted murderous and assaultive acts did not expose him to any penalty for third-degree murder until that charge could have been brought against him in 2007. In Detter, the defendant engaged in what the court termed “murderous acts” at a time when a death sentence was not a foreseeable punishment and, thus, arguably was disadvantaged and subjected to an enhanced penalty when the death penalty was reinstated just days before her victim passed away.

Here, Appellee never has been deemed to have engaged in intentionally murderous behavior on July 13, 1993. Because his ultimate conviction of third-degree murder did not require a specific intent, his awareness of the possible punishment he could face if his victim died as a result of his actions would have had no deterrent effect.

I further believe it is not possible for a court engaging in an ex post facto inquiry involving criminal homicide to assign one date to the time at which the criminal acts were committed and a separate one to the time at which he could be charged with an offense, ie., following the death of the victim. In this regard, I find Superior Court President Judge Susan Peikes Gantman’s analysis set forth in her dissent to be convincing:

Here, Appellant did not ‘commit’ the murder until the victim died on September 17, 2007. See Ramunno, supra. Although the attack happened years before, there was no murder until the final element of the offense, the victim’s death, actually occurred. In my opinion, the court did not ‘retroactively apply’ Section 1102(d); rather, the court utilized the sentencing statute in effect at the time of the murder. Therefore, the court’s sentence was proper because Section 1102(d) went into effect in 1995, before the murder occurred. See Calder v. Bull, 3 U.S. 386, 390 [3 Dall. 386], 1 L.Ed. 648, - (1798) (defining ex post facto law as “law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed”).

Commonwealth v. Rose, 81 A.3d 123, 137 (Pa.Super.2013) (en banc) (Gantman, J., dissenting). Indeed, it is absurd to think that Appellee could have been charged with criminal homicide in 1993 or convicted of third-degree murder in 1994, in that his victim miraculously survived his attack for over a decade thereafter.

Simply put, Appellee was not disadvantaged by the changes to the sentencing scheme for third-degree murder which became effective in 1995 because he could not have been subjected to prosecution and punishment on a criminal homicide charge until the victim’s death. Stated another way, Appel-lee’s punishment pursuant to 18 Pa.C.S. § 1102(d) was not made more burdensome or retroactive since he could not have been charged with or convicted of third-degree murder prior to 2007. 
      
      . 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.
     
      
      . 18 Pa.C.S. § 901(a).
     
      
      . 18 Pa.C.S. § 2702(a)(1).
     
      
      . 18 Pa.C.S. § 3123 (1972).
     
      
      . 18 Pa.C.S. § 2705.
     
      
      . 18 Pa.C.S. § 903.
     
      
      . 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, 402 Pa. 164, 166 A.2d 501, 504 (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.
      
     
      
      . Rose asserted a voluntary intoxication defense at trial.
     
      
      . 18 Pa.C.S. § 2502(c).
     
      
      . 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.
     
      
      . 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, 536 Pa. 57, 637 A.2d 1313, 1317 n. 7 (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.
     
      
      . One commentator has suggested that ”[o]ne who reads the surviving record of the constitutional debates of 1787-88 cannot avoid the con-elusion 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).
     
      
      . 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 Consider
        
        ations of the One-Book Rule after United States v. Kumar, 39 Am.J.Crim. L. 231, 236 (2012).
     
      
      . 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).
     
      
      . 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.”).
     
      
      . 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.
      
     
      
      . In State v. Hare, 190 Neb. 339, 208 N.W.2d 264, 267 (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.”
     
      
      . The Crimes Code's framework, in this regard, adopted from the Model Penal Code, served to ''prun[e] from the lexicon a plethora of common-law culpability terms, leaving four core terms,” Commonwealth v. Roebuck, 612 Pa. 642, 649, 32 A.3d 613, 618 (2011),
     
      
      . See 18 Pa.C.S. § 2501(a) (indicating criminal homicide occurs when a person "intentionally, knowingly, recklessly or negligently causes the death of another human being.”); See also, Commonwealth v. Ramunno, 219 Pa. 204, 208, 68 A. 184, 185 (1907) ("Murder is committed only when the victim of the assault dies”). In addition, the United States Supreme Court has held that any fact that was by law essential to the penalty is an element of an offense which a jury must find beyond a reasonable doubt. Alleyne v. United States, — U.S. -, -, 133 S.Ct. 2151, 2159, 186 L.Ed.2d 314 (2013).
     
      
      . 18 Pa.C.S. § 2502(c) states; "Murder of the third degree.—All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.”
     
      
      . I further disagree with the Majority's statement the Commonwealth does not controvert that sentencing Appellee under 18 Pa.C.S. § 1102(d) "disadvantages” him by subjecting him to a greater sentence than that he would have received pursuant to 18 Pa.C.S. § 1103(1). Indeed, the entire premise of the Commonwealth’s argument is that Appellee could not have been sentenced pursuant to 18 Pa.C.S. § 1103(1) because he had neither committed nor been convicted of third-degree murder when that sentencing statute was effective; thus, his sentence under 18 Pa.C.S. § 1102(d) did not constitute a retroactive application of a sentencing statute.
     
      
      . To the contrary, at his first trial Appellee denied stabbing the victim, although he admitted he kicked and stomped on her, and he claimed his actions were the result of his excessive drinking and drug use on the night of the attack. At his criminal homicide trial, Appellee asserted a diminished capacity defense based on his high level of intoxication that evening.
     
      
      . Judge Cheryl Allen joined in this dissent.
     