Com. v. Taylor

• Decision Date: 04 October 1985
• Citation: 346 Pa.Super. 599,500 A.2d 110
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Gus TAYLOR, III. 354 Pittsburgh 1983
• Court: Pennsylvania Superior Court

Page 110

500 A.2d 110

346 Pa.Super. 599

COMMONWEALTH of Pennsylvania, Appellant, v. Gus TAYLOR, III.

354 Pittsburgh 1983

Superior Court of Pennsylvania.

Argued Dec. 13, 1984.

Filed Oct. 4, 1985.

Michael R. Cauley, Asst. Dist. Atty., Erie, for Com., appellant.

Robert A. Graci, Harrisburg, for amicus curiae.

Before SPAETH, President Judge, and CAVANAUGH, WICKERSHAM, ROWLEY, OLSZEWSKI, MONTEMURO, BECK, TAMILIA and JOHNSON, JJ.

TAMILIA, Judge:

This case was certified to the court en banc on a motion for reargument by the Commonwealth from the decision of a panel of this Court which has not been reported. This appeal arises from the Judgment of Sentence of the Erie County Criminal Court sentencing the defendant to 11 1/2 to 23 months to the Erie County Jail on the charge of unlawful restraint, ¹ four years probation for aggravated assault, ² to be consecutive to the prison term, and two years probation for theft by unlawful taking ³ to be concurrent with the prison term. The sentence was the result of a guilty plea and plea agreement.

It is alleged by the District Attorney of Erie County that the court erred in sentencing by not providing a deadly weapon enhancement of at least 12 months because the defendant allegedly used a hunting knife during the assault. Section 303.4 of the Pennsylvania Sentencing Guidelines requires that when the current offense is one in which a deadly weapon is possessed, the court must add an additional 12 months to the lower limit of the appropriate guideline sentence range, and 24 months to the upper limit of that range before a sentence is chosen. ⁴

There are discrepancies between the initial charges and the information, variations between the guilty plea and the proof at sentencing, and constitutional infirmities relating to the definition of "possession of a deadly weapon" and due process, which require dismissal of the appeal by the District Attorney of Erie County and affirmance of the sentence by the court below.

On January 12, 1983, the defendant tendered a guilty plea to the charges of aggravated assault, theft by unlawful taking, and unlawful restraint, arising from an altercation on September 19, 1982 with Belinda Watson, who had known the defendant for two years. Sentencing occurred on March 4, 1983. During the sentencing procedure, the Commonwealth produced the victim to testify the defendant held a knife to her throat and threatened her with the knife. It is this testimony upon which the Commonwealth bases its appeal and alleges error by the trial court in failing to consider defendant's possession of a deadly weapon at the time of the offenses, which would provide a basis for a weapon enhancement sentence. The Commonwealth filed motions to reconsider which were denied by the sentencing judge and, thereafter, an appeal was timely filed.

Defense counsel argues the trial court is endowed with broad discretion in sentencing and that the sentencing system in Pennsylvania necessitates this broad discretion in determining, among the sentencing alternatives, the range of permissible penalties and the proper sentence to be imposed. He cites as authority Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and Commonwealth v. Martin, 466 Pa. 188, 351 A.2d 650 (1976). The cases cited by appellee are inapposite as the legislature, within its constitutional powers, can define crime and establish sentencing parameters. Although the legislature cannot delegate the power to make a law, it may, when necessary, confer authority and discretion in connection with execution of the law. Commonwealth v. Cherney, 454 Pa. 285, 312 A.2d 38 (1973); Belovsky v. Redevelopment Authority of the City of Philadelphia, 357 Pa. 329, 54 A.2d 277 (1947), 172 A.L.R. 953; Keystone Trucking Corp. v. Workman's Compensation Appeal Bd., 40 Pa.Commw. 326, 397 A.2d 1256 (1979). The legislature may utilize establishment of administrative agencies as part of the legislative process in the tripartite system of government to regulate and control segments of society which the legislature in its wisdom deems necessary of control. Bortz Coal Co. v. Air Pollution Commission, 2 Pa.Commw. 441, 279 A.2d 388 (1971).

The Legislature may properly impose authority in a Sentencing Commission in establishing sentencing standards. The appellee alleges the Legislature (Commission), in establishing a mandatory enhancement sentence, infringes on the inherent powers of judges to exercise discretion in sentencing. This issue has long been laid to rest in the Commonwealth. The Legislature has the right to classify crimes, to designate the maximum and likewise, can if it sees fit, name the minimum. Commonwealth v. Wright, et al., 508 Pa. ----, 494 A.2d 354 (1985). The necessity or wisdom of so doing is a question for its determination. The power of determining the extent of punishment to be inflicted was not, and is not now, the subject of constitutional limitation, and the Legislature could fix the length of imprisonment upon conviction of a particular offense making, if it saw fit, the term rigid and invariable or allowing room for use of good judgment by the judge, made acquainted by the trial with the attending circumstances. Commonwealth v. Sweeney, 281 Pa. 550, 127 A. 226 (1924); Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959). Also, legislation authorizing indeterminate sentences does not violate this section (Pa. Const. Art. 5, § 1) as transforming judicial discretion to a nonjudicial board. Commonwealth v. McKenty, 52 Pa.Super. 332 (1912). Appellee's arguments are, therefore, without merit. The constitutionality of the creation of the Sentencing Commission, as opposed to the authority of a validly created commission, is not before us, as only the latter was briefed and argued.

It is clear, however, that the sentencing process is subject to the due process clause. Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977), Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). If the sentencing procedure is improper, it involves deprivation of due process. Commonwealth v. Walker, 286 Pa.Super. 239, 428 A.2d 661 (1981). Compare Commonwealth v. Opara, 240 Pa.Super. 511, 362 A.2d 305 (1976). (The due process clause applies to sentencing procedure (Spaeth, J.).) In a case involving juveniles, In the Interest of Tina Jones, et al., 286 Pa.Super. 574, 429 A.2d 671 (1981), in a dispositional proceeding for dependant children, which would be analogous to sentencing in a criminal procedure, this Court, Cavanaugh, J., held that enactments, providing that reports or oral testimony may be relied upon to the extent of their probative value, and that sources of information given in confidence, need not be disclosed, (Juvenile Act--42 Pa.C.S.A. § 6341(d) ) was a denial of the due process right to confrontation of witnesses by the children's mother.

Having laid the foundation for our consideration, we proceed to consider the matters presented by this appeal. The issues presented in this case are:

(1) Whether or not the Commonwealth, in filing its information, chose to ignore an essential element of this crime thereby changing its character from aggravated assault with a weapon to aggravated assault without a weapon.

(2) Whether, in accepting a guilty plea to charges on a plea agreement to nol pros other counts of the information, the Commonwealth was bound by the defendant's admissions and statements as to his actions in the purported crimes, none of which implicated his possession of a deadly weapon.

(3) Whether or not the definition of possession of a deadly weapon is so legally vague as to be constitutionally impermissible.

I.

As to the first issue, it is apparent upon a close review of the record that the charges, as they emanated from the magistrate's office, were substantially different from those finally presented to the court in the form of an information. On September 20, 1982, the criminal complaint was prepared and alleged as follows:

The defendant did intentionally, knowingly or recklessly cause serious bodily injury to Miss Belinda Watson, B/F, D.O.B. 1/18/61, who resides at 4122 Maxwell Avenue, in that he did come to the home of Belinda Watson, and against Belinda's own will, did take Belinda from her home by threatening her with a knife that he put up to her neck, putting her life in danger and verbally threatening to kill her....

The charge was aggravated assault and the magistrate indicated the applicable section was § 2702 of the Pennsylvania Crimes Code, without designating whether it was aggravated assault with intent to cause or causes serious bodily injury to another which is § 2702(a)(1), a felony of the second degree, or an attempt to cause or knowingly causes bodily injury to another with a deadly weapon which is § 2702(a)(4), a misdemeanor of the first degree. A fair reading of the complaint impels the conclusion that the defendant was charged with § 2702(a)(4), attempt to cause bodily injury to another with a deadly weapon.

The information filed by the District Attorney of Erie County on or about October 28, 1982, alleges that on or about September 19, 1982 in Erie County, the defendant at Count 4:

... did attempt to cause serious bodily injury to another, or caused such injury intentionally, knowingly, recklessly under circumstances manifesting extreme indifference to the value of human life, to-wit: BELINDA WATSON, and that the said GUS TAYLOR, III did beat BELINDA WATSON with his fists numerous times about the face and body causing serious bodily injury, contusions, abrasions and a broken nose this occurring at an unknown location; thereby the said GUS TAYLOR, III did commit the crime of AGGRAVATED ASSAULT, a felony of the second degree.

The statute citation section of the information refers to 18 Pa.C.S.A. 2702, without designating the subsection number which would differentiate between aggravated assault by attempt to cause, or...