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filed: October 4, 1985.


Appeal from the Judgment of Sentence of March 4, 1983 in the Court of Common Pleas of Erie County, Criminal Division No. 1522 of 1982


Michael R. Cauley, Assistant District Attorney, Erie, for Com., appellant.

Robert A. Graci, Harrisburg, for amicus curiae.

Spaeth, President Judge, and Cavanaugh, Wickersham, Rowley, Olszewski, Montemuro, Beck, Tamilia and Johnson, JJ. Rowley, J., joins in the Court's affirmation of the Judgment of Sentence and in Part II of the Majority Opinion. Spaeth, President Judge, concurs with opinion, joined by Beck, J. Johnson, J., concurs, joined by Cavanaugh, J. Wickersham, J., dissents with opinion.

Author: Tamilia

[ 346 Pa. Super. Page 603]

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,*fn1 four years probation for aggravated assault,*fn2 to be consecutive to the prison term, and two years probation for theft by unlawful taking*fn3 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.*fn4

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

[ 346 Pa. Super. Page 604]

    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).

[ 346 Pa. Super. Page 605]

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 name the minimum. Commonwealth v. Wright, et al., 508 Pa. 25, 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 non-judicial 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.

[ 346 Pa. Super. Page 606]

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 Page 606} the Interest of Tina Jones, et al., 286 Pa. Super. 574, 429 A.2d 671 (1981), in a dispositional proceeding for dependent 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.


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

[ 346 Pa. Super. Page 607]

    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:

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 causes serious bodily injury and aggravated assault with a deadly weapon. The wording of Count 4 clearly alleges § 2702(a)(1), aggravated assault, an attempt to cause or causes serious bodily injury to another, a felony.

[ 346 Pa. Super. Page 608]

Since the District Attorney's office has the power to modify the information as it relates to the complaint (so long as the offense is substantially the same or cognate to the offense alleged in the complaint) to conform to what it perceives to be its proof or its determination of prosecutorial merit, it would appear the district attorney concluded that assault with attempt to cause serious bodily injury, without a weapon, was the proper charge in this case. See Pa.R.Crim.P. 225(b)(5) and Commonwealth v. Wilkinson, 278 Pa. Super. 490, 420 A.2d 647 (1980), Commonwealth v. El, 273 Pa. Super. 1, 416 A.2d 1058 (1979), Commonwealth v. Epps, 260 Pa. Super. 57, 393 A.2d 1010 (1978). This was also the charge of which the defendant had notice to defend, and this was the charge presented to the court. Since the proof required for subsection (a)(1) and subsection (a)(4) is substantially different and the penalties involved, likewise, are substantially different, the defendant cannot be charged with one subsection and be presented with proof or allegations of a different subsection at trial without amendment approved by the defendant. Commonwealth v. Hertzog, 492 Pa. 632, 425 A.2d 329 (1981). Aggravated assault, § 2702(a)(4) is not a lesser included offense of aggravated assault, § 2702(a)(1). Commonwealth v. Ritchey, 313 Pa. Super. 238, 459 A.2d 828 (1983). If, upon a conviction or a plea, the court imposed a sentence relating to one subsection of the Crimes Code, when a different subsection carrying a different penalty was proved, this in effect would be an illegal sentence.

This Court concludes on the basis of the charge in the information, the Commonwealth, by limiting the proof to causing or attempting to cause serious bodily injury to another, knowingly or recklessly, under circumstances manifesting extreme indifference to the value of human life, is bound by its charge and cannot go beyond the allegation in the information and proceed to offer proof of the use of a deadly weapon at sentencing.

[ 346 Pa. Super. Page 609]


The second area in which the Commonwealth's procedure is defective in seeking enhancement of the sentence pertains to the defendant's plea to Counts 2, 3 and 4.

As to Count 2, theft by unlawful taking, the following colloquy ensued between Mr. Cauley, the assistant district attorney, and the defendant:

MR. CAULEY: The reason you are charged with that offense is because on or about September 19, 1982, here in Erie County, Pennsylvania, you, Gus Taylor, III, unlawfully took or exercised unlawful control over movable property of another person.

That would be the sum of $120 in currency. You took it from the vehicle belonging to Belinda Watson, this occurring at 4122 Maxwell Avenue in Erie, Pennsylvania, and you took it with the intent to deprive her of that property; thereby, you committed the crime of Theft by Unlawful Taking or Disposition. That's the reason why you did or why you were charged with that offense; do you understand that?


MR. CAULEY: Okay, when you plead guilty to that, you are admitting that that's in fact what you did, correct?

MR. TAYLOR: Correct.

MR. CAULEY: You did that?

MR. TAYLOR: Right.

(P.T. 8) Next, Mr. Cauley carried Mr. Taylor through an exposition of the facts constituting the crime of unlawful restraint, as follows:

MR. CAULEY: When you plead guilty to that, sir, you admit that on or about the same day and year, which would be September 19, 1982, here in Erie County, you, Gus Taylor, III, did knowingly restrain another person -- that would be Belinda Watson -- unlawfully in circumstances which placed her in danger of serious bodily injury as I've explained it to you in that you kept her against her will in her vehicle, you took her to a certain

[ 346 Pa. Super. Page 610]

    location which is unknown to the Commonwealth here in the City of Erie, and during the time that you had her in that location you beat her, as you will admit later in the Aggravated Assault charge. By doing all of these things under those circumstances, you exposed her to this risk of serious bodily injury that would be the basis of the charge to which you would be pleading guilty; do you understand that?

MR. TAYLOR: Right.

MR. CAULEY: Okay, and is that what you are telling the Court you did?

MR. TAYLOR: Right.

(P.T. 10-11) Likewise, these admissions contained no reference to a knife.

[ 346 Pa. Super. Page 11]

As stated above, the Commonwealth elected to charge in the information a substantially different allegation than contained in the complaint, charging defendant with § 2702(a)(1), rather than § 2702(a)(4). In conformity with the charge, defendant entered into a plea agreement with the district attorney's office in which he pled guilty to Count 4 as it was stated in the information. At Page 11 of the plea testimony, Mr. Cauley, the assistant district attorney, addressed the defendant as follows:

MR. CAULEY: Okay, the Aggravated Assault charge at Count 4, Mr. Taylor, would be somewhat similar. Aggravated Assault requires that you attempt to cause serious bodily injury to another person; that is, that you tried to do that as I've defined serious bodily injury or you actually do cause that injury intentionally, knowingly, or recklessly, which means basically knowing what you were doing on purpose under circumstances by which it can be shown that you have a serious ...

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