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COMMONWEALTH PENNSYLVANIA v. ADAM C. DIVELY (06/15/84)

SUPERIOR COURT OF PENNSYLVANIA


June 15, 1984

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
ADAM C. DIVELY

No. 177 Harrisburg 1983, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Cumberland County at No. 970 Criminal 1982.

Before Wickersham, Olszewski and Hoffman, JJ. Olszewski, J. files dissenting opinion.

Per Curiam:

Order affirmed.

OLSZEWSKI, J. files a dissenting opinion.

OLSZEWSKI, J.:

I respectfully dissent from the holding of the majority affirming the action of the lower court. I would hold that the lower court exceeded its jurisdiction in reducing the charge of burglary from a felony of the first degree to a misdemeanor of the first degree. In my view, the proper disposition of this case would be to vacate the order and remand for resentencing.

The Pennsylvania General Assembly has defined a single grade of offense for burglary, it is a felony of the first degree.*fn1 The legislature derives its authority from the Pennsylvania Constitution.*fn2 It is exclusively the legislative function to define offenses and to prescribe related punishment, and this function can not be delegated to any other branch of government. Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959); Commonwealth v. Young, 17 D & D.2d 649 (Cumberland County, 1959). The exercise of this legislative power does not violate Article V, Section I of the Constitution, vesting, judicial powers in the courts. Commonwealth v. Glover, supra.

I emphathize with the praiseworthy purpose of the court below to craft a punishment appropriate to the rehabilitative needs of this individual appellee. Further, I am in complete agreement that our sentencing courts should have the power to reduce a felony conviction to a lesser degree of felony or to a misdemeanor.*fn3

Nevertheless, it is axiomatic that in a democratic society the separation of the powers of government must be preserved. I must conclude that the legislature considered and weighed the possibility of grading the offense of burglary when modeling our felony statute on Section 211.1 of the Model Penal Code, which allows grading.*fn4 It is settled that the courts may not legislate or by interpretation add to legislation matters which the legislature saw fit not to include. Commonwealth ex rel. Fox v. Swing, 409 Pa. 241, 186 A.2d 24 (1962).


*fn1 42 Pa. C.S.A. § 3502(c).

Model Penal Code § 6.12. Compare, A.B.A. Standards Relating to Sentencing Alternatives and Procedures, § 3.7, (Approved Draft, 1968).

We are aware that Pa.R.Cirm.P. 314 was substantially amended in 1983, but the 1977 version is applicable to the instant offense, which occurred in November, 1982. See, U.S. ex rel. Forman v. McCall, 709 F.2d 852 (3d Cir. 1983) (ex post facto law).

*fn2 Pa. Constitution, Article II, § 1.

*fn4 See, 18 Pa. C.S.A. § 3502 (Historical Note).

*fn6 The appellee's argument that the Commonwealth waived its right to appeal this issue under Pa.R.Crim.P. § 14120: Motion to Modify Sentence is inapposite. Here we deal with a question of jurisdiction of the court to reduce a grade of a felony, which issue may be raised at any time by the parties or sua sponte by the courts. Commonwealth v. Magnum, 231 Pa. Super. 162, 332 A.2d 467 (1974).


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