Commonwealth v. Soto
| Decision Date | 28 January 1990 |
| Docket Number | 4473,4477 |
| Citation | 22 Phila. 7 |
| Parties | Commonwealth of Pennsylvania v. Domingo Soto |
| Court | Pennsylvania Commonwealth Court |
(1) A trial court does not have the discretion to disregard the deadly weapon enhancement provided for under 303.4(a) of the Sentencing Guidelines in determining the appropriate sentencing ranges
(2) A deadly weapon constitutes any item or instrument which is either inherently dangerous or which is likely to produce death or serious bodily injury in terms of its actual or intended use under the given facts and circumstances
(3) The provisions of the deadly weapon enhancement found at 204 Pa Code 303.4(a) are not unconstitutionally void for vagueness and are rationally related to the purpose of the deadly weapon enhancement provision
(4) The intended purpose of the deadly weapon enhancement found under 303.4(a) of the Sentencing Guidelines is to deter the dangerous and intimidating use of deadly weapons by persons in the perpetration of crimes, to lengthen the periods of incarceration for those who use such weapons, and to maintain public confidence in our criminal justice system by doing so
(5) The legislature intended to vest the Sentencing Commission with the power to promulgate guidelines with respect to the crime of murder of the third degree
(6) The deadly weapon enhancement may be used in the computation of the sentence for the fully completed crime of third degree murder
(7) The fact that murder of the third degree is possibly that type of crime in which a deadly weapon is used does not result in either " double counting" or " double punishment" when the deadly weapon enhancement provisions of the Sentencing Guidelines are applied in the sentencing function.
David Desiderio, Assistant District Attorney, for the Plaintiff.
Peter C. Bowers, Esquire, for Defendant.
On June 1, 1990, Domingo Soto, this defendant, entered guilty pleas to the charges of murder of the third degree and aggravated assault before this Court. These guilty pleas were entered pursuant to a plea bargain agreement under which the Commonwealth merely certified that the degree of guilt rose no higher than third degree murder on the homicide information; however, the sentences on both charges were open matters rested in the sole discretion of this Court. The charges in this case stemmed from a sidewalk argument here in Philadelphia on October 16, 1989 between this defendant and Joseph and Frank Schmidt who were brothers. At first, this defendant inflicted severe bodily injuries upon Joseph Schmidt by striking him in the face, legs, and other body parts with a baseball bat. Joseph Schmidt immediately departed from the scene and survived the incident despite his injuries. Thereafter, this defendant struck Frank Schmidt on the head with the baseball bat. This blow inflicted internal brain injuries of subdural hematoma, brain swelling, and multiple herniations which resulted in Frank Schmidt's death on October 19, 1989, three days later (N.T. dated 6/1/90 at pp. 39-42). On September 24, 1990, this Court sentenced this defendant to a term of not less than 7 nor more than 14 years for the charge of murder of the third degree (Frank Schmidt) and prescribed a concurrent term of imprisonment of not less than 4 nor more than 8 years for the charge of aggravated assault (Joseph Schmidt). Pursuant to Pa. R. Crim. P. 1410, this defendant filed a motion to reduce or modify sentence and supporting memorandum of law with this Court on October 4, 1990, and this motion was denied by this Court without further hearing on October 5 1990. Despite the fact that these items were not formally filed of record with the Office of the Clerk of Quarter Sessions, this Court has personally inserted and made them part of this record. It would appear that the principal and only appellate issue presented is a challenge to the legality of this Court's sentence for the charge of murder of the third degree since the 12 to 24 months deadly weapon enhancement provided by the Pennsylvania Sentencing Guidelines was included in its computation. 204 Pa. Code § 303.4; 42 Pa. C.S.A. § 9721. Of course, an issue respecting the legality of a sentence is never waived, despite the fact that it was not raised in the lower court. Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Paige, 287 Pa.Super 133, 429 A.2d 1135 (1981); Commonwealth v. Ford, 315 Pa.Super 281, 461 A.2d 1281 (1983). Thus, this issue would be preserved for appellate review even in the absence of a record objection in the lower court. Here, defense counsel apparently preserved a challenge to the legality of this sentence by raising the issue in his motion to reduce or modify sentence and supporting memorandum of law. Soto advances six varied constitutional and other legal challenges to support his contention that this Court erroneously and unlawfully used the deadly weapon enhancement to compute his sentence for murder of the third degree in this case. Each of these grounds will be separately discussed hereafter. All of them were properly rejected for the reasons to be discussed.
First, it is contended that this Court erred and abused its discretion by failing to disregard the deadly weapon enhancement in the computation of the sentence in this case. The theory underlying this claim is that this Court was vested with a discretion of deciding whether or not to add the 12 to 24 months periods of confinement provided under the deadly weapons enhancement to the range chart sentences prescribed in this case. In support of this contention that an application of the deadly weapon enhancement is a matter within the discretion of this Court. Soto cites the following precedents: (1) the explanatory comments of the Pennsylvania Commission on Sentencing pertinent to § 303.4(b) which appear at Pa. C. Sent. 3d (August 1, 1988), Description, p. 42; (2) the decisional law to be found in Commonwealth v. Samuels, 516 Pa. 300, 532 A.2d 404 (1987).
The commentary relied upon pertains to § 303.4(b) of the Sentencing Guidelines and states:
The deadly weapon enhancement can be added to crimes which are usually committed with a deadly weapon, but for which weapon possession is not a part of the statutory definition of the offense. For example, the enhancement should be applied when a deadly weapon is possessed when committing murder. (Emphasis added.)
In sum, it is argued that usages of the words can and should in this commentary vested this Court with a discretion to apply or not apply the deadly weapon enhancement to the computation of the sentence in this case. Of course, as is the case with respect to actual guidelines promulgated by the Pennsylvania Sentencing Commission pursuant to its delegated legislative powers, these mere explanatory comments do not have the binding effect of law upon the lower courts of this Commonwealth. Moreover, § 303.4(b) does not apply here since it designates those offenses to which the deadly weapon enhancement do not apply . In fact, § 303.4(a) solely applied to this Court's sentencing function in this case. Thus, this first reason in support of the contention that this Court was vested with a discretion to instantly apply the deadly weapon enhancement must be rejected.
Further, the argument is advanced that the Pennsylvania Supreme Court's interpretation of the word shall in Commonwealth v. Samuels, supra warrants the legal conclusion that this Court is vested with a discretion to not apply the deadly weapon enhancement to the sentence imposed here. The Samuels case is inapposite to this case. In the Samuels case, the Supreme Court was not dealing with the meaning of any of the guidelines promulgated by the Pennsylvania Sentencing Commission. There were no interpretations of § 303.4(a) and § 303.4(b) of the Sentencing Guidelines which are applicable to this case. Samuels dealt with the use of the word shall as found at 42 Pa. C.S.A. § 2154 which constituted the enabling legislation under which the Pennsylvania General Assembly delegated the Pennsylvania Commission on Sentencing its authority to promulgate the Sentencing Guidelines. The Pennsylvania Supreme Court ruled that the usage of the word shall in such enabling legislation was not so exclusive and mandatory in nature as to deprive the Pennsylvania Sentencing Commission of power to enact guideline provisions which increased the severity of sentences based on prior convictions for misdemeanors not involving deadly weapons. Most importantly, Samuels did not interpret the meaning of shall in the provisions of § 303.4(a) which are applicable here. Thus, this second reason in support of the possibility that this Court could have exercised a discretion in this case must be rejected.
The Sentencing Guideline provision applicable to this case is § 303.4(a) which provides:
(a) When the court determines that the defendant possessed a deadly weapon, as defined in 18 Pa. C.S.A. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence range which would otherwise have been applicable. (Emphasis added.)
204 Pa. Code § 303.4(a) effective April 25, 1988, 42 Pa. C.S.A. § 9721.
Of course, the usage of the word shall in legislation is generally regarded to be mandatory and imperative in connotation. Matter of Columbia Borough, 24 Pa.Commw. 190, 354 A.2d 277 (1976); 1 Pa. C.S.A. § 1903(a). Moreover, the Pennsylvania Superior Court has repeatedly held that a trial court does not have the discretion to disregard the deadly weapon enhancement provided for under § 303.4(a) of the Sentencing Guidelines in...
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