Com. v. Smith

• Citation: 528 Pa. 380,598 A.2d 268
• Parties: , 11 A.L.R.5th 989 COMMONWEALTH of Pennsylvania, Appellee, v. Charles H. SMITH, Appellant.
• Decision Date: 02 October 1991
• Court: United States State Supreme Court of Pennsylvania

Page 268

598 A.2d 268

528 Pa. 380, 11 A.L.R.5th 989

COMMONWEALTH of Pennsylvania, Appellee, v. Charles H. SMITH, Appellant.

Supreme Court of Pennsylvania.

Submitted March 8, 1991.

Decided Oct. 2, 1991.

Lester G. Nauhaus, Public Defender, Shelley Stark, Chief-Appellate Div., Chris Rand Eyster, Asst. Public Defender, and

Robert A. Crisanti, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., Kemal A. Mericli and Scott A. Bradley, Asst. Dist. Attys., for appellee.

NIX, C.J., and FLAHERTY, LARSEN, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.

OPINION OF THE COURT

CAPPY, Justice.

The primary issue before the Court is whether a court-martial for robbery constitutes a prior conviction for purposes of imposing a mandatory sentence as a recidivist pursuant to 42 Pa.C.S. § 9714. We conclude that the prior court-martial convictions of appellant for the offense of robbery constitute prior convictions within the meaning of Section 9714(b)(1). Accordingly, we affirm the decision of the Superior Court, 386 Pa.Super. 626, 563 A.2d 905.

Following a non-jury trial, appellant was convicted of robbery and criminal conspiracy. These convictions stem from appellant's participation in the armed robbery of Frank's Jewelry Store on July 20, 1985. On that date, appellant waited in the car while his two accomplices, posing as a young couple interested in purchasing an engagement ring, entered the jewelry store and asked to see some rings. One of the accomplices held the owner at gunpoint while the other took two trays of rings. As the couple fled the store, the owner retrieved his own gun and fired at the armed accomplice as he climbed into the vehicle driven by appellant.

Following the denial of post-trial motions, the trial court sentenced appellant to concurrent five to ten year sentences. The Superior Court remanded the matter for resentencing, finding merit in the claim of appellant that his counsel was ineffective in failing to file a motion to reconsider sentence based upon the failure of the trial court to indicate sentencing factors. On remand, the trial court imposed a sentence of two concurrent eleven and one-half to twenty-three month sentences. The Commonwealth filed a petition for reconsideration/modification of sentence which petition the trial court denied. The Commonwealth then appealed arguing, inter alia, that the trial court erred in failing to impose the mandatory minimum sentence pursuant to 42 Pa.C.S. § 9714 based upon appellant's prior court martial convictions for robbery. The Superior Court vacated the judgment of sentence and remanded the matter for resentencing finding that appellant's court-martial convictions constituted prior convictions within the meaning of § 9714. We granted appellant's Petition for Allowance of Appeal to address the issue of the applicability of § 9714 in those cases where the prior conviction arose from a court-martial. For the following reasons, we affirm the order of the Superior Court.

Appellant raises several issues regarding the applicability of Section 9714. Initially, we must address the issue of waiver. Appellant contends that the Commonwealth waived the issue of the applicability of Section 9714 by failing to file a motion to modify sentence within ten days following imposition of sentence as required by Rule 1410 of the Pennsylvania Rules of Criminal Procedure.

The Superior Court correctly found that claims concerning illegality of the sentence are not waivable. In addition, we note that § 9714(e) specifically provides that the Commonwealth shall have the right to appellate review where the sentencing court fails to apply § 9714. ¹ Accordingly, the issue as to the applicability of § 9714 was not waived.

The principal argument advanced by appellant is that court-martial convictions are not prior convictions within the meaning of § 9714 and, therefore, cannot be considered for purposes of imposing a mandatory sentence as a recidivist. Section 9714 provides in relevant part as follows:

(a) Mandatory sentence--Any person who is convicted in any court of this Commonwealth of ... robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), ... shall, if they have previously been convicted of a crime of violence as specified in section (b), be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.

(b) Prior convictions for crimes of violence--For purposes of subsection (a), an offender shall be deemed to have prior convictions for crimes of violence if both of the following conditions hold:

(1) The offender was previously convicted in this Commonwealth or any other state or the District of Columbia or in any Federal court of murder, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii), (iii), arson ..., kidnapping or aggravated assault ..., an equivalent crime under the laws of the Commonwealth in effect prior to the effective date of Title 18 (relating to crimes and offenses) or an equivalent crime in another jurisdiction ...

(2) The previous conviction occurred within seven years of the date of the commission of the instant offense, except that any time during which the offender was incarcerated in any penitentiary, prison or other place of detention shall not be considered in computing the relevant seven-year period.

42 Pa.C.S. § 9714.

Appellant contends that court-martials are not part of the judicial power of the United States and not considered federal nor state courts nor are they included in the courts of the District of Columbia. Thus, he argues that court-martial convictions do not constitute prior convictions within the meaning of the statute because appellant has not been "previously convicted in this Commonwealth or any other state or the District of Columbia or in any Federal court of ... robbery ..." 42 Pa.C.S. § 9714(b)(1).

While our rules of construction provide that penal statutes must be strictly construed, the courts of this Commonwealth are not required to give words of a criminal statute the most narrow meaning or disregard evident legislative intent. 1 Pa.C.S.A. § 1928; Commonwealth v. Wooten, 519 Pa. 45, 545 A.2d 876 (1988). Moreover, in ascertaining the intent of the legislature it is presumed that the legislature did not intend a result that is absurd or unreasonable. 1 Pa.C.S.A. § 1922; Lehigh Valley Co-op. Farmers v. commonwealth Bureau of Employment Sec. Dept. of Labor and Industry, 498 Pa. 521, 447 A.2d 948 (1982).

Section 9714 is recidivist in nature, concerning itself with the number of prior similar acts committed by the offender. Recidivist statutes such as this serve the legitimate public policy of segregating from society those persons with propensities to commit crime, who by their repeated criminal acts demonstrate their unwillingness or inability to be rehabilitated. Frontini v. Commonwealth of Pennsylvania, Department of Transportation, 527 Pa. 448, 593 A.2d 410 (1991). As such, the primary goal of section 9714 is to provide an enhanced punishment for those individuals who by their repeated acts, demonstrate that they are a greater danger to society and are in need of additional punishment. The clear intent of the legislature in enacting § 9714 was to assure that repeat offenders of crimes of violence be imprisoned for a minimum of five years. Appellant would have us apply a technical approach to the statute and find that since the legislature did not specifically mention court-martial convictions, application of section 9714 to the facts of the instant case is improper. However, we believe that to apply such an overly technical approach here would yield an absurd result and one that was clearly not intended by the General Assembly.

Robbery is defined in the Uniform Code of Military Justice (UCMJ) by language which parallels the language employed in the counterpart Pennsylvania statute, 18 Pa.C.S. § 3701. The UCMJ defines robbery as follows:

§ 922. Art. 122 Robbery

Any person subject to this chapter [10 USCs §§ 801 et seq.] who with intent to steal takes anything of value from the person or in the presence of another, against his will, by means of force or violence or fear of immediate or future injury to his person or property or to the person or property of a relative or member of his family or of anyone in his company at the time of the robbery, is guilty of robbery and shall be punished as a court-martial may direct.

10 U.S.C. § 922. ² It would be unreasonable to conclude that a military conviction for the offense of armed robbery which is equivalent to our crime of robbery would be exempt from use as a prior conviction for purposes of a recidivist statute.

In the instant case, the court-martial records reveal that appellant pled guilty to seven counts of robbery and two counts of attempted robbery. In all nine incidents giving rise to the above guilty pleas, appellant, brandishing a gun, forcefully took his fellow servicemen's money and/or wallets. During one such occasion, the victim received injuries to his head that required stitching. Appellant was sentenced to seven years confinement of hard labor at the United States Disciplinary Barracks at Fort Leavenworth, Kansas. It would be absurd to interpret section 9714 as excluding the above mentioned robberies merely because appellant committed these acts while in the military when if he had been a civilian at the time said acts were committed, they would have constituted prior convictions within the meaning of the statute. Where as here the military offense is equivalent to our counterpart state statute, it would be nonsensical to hold that the court-martial conviction would be exempt from use to enhance a sentence for the subsequent offense.

Section 9714(b) employs the terms "or an equivalent crime in...