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filed: January 31, 1986.


Appeal from the Judgment of Sentence of June 27, 1984 in the Court of Common Pleas of Franklin County, Criminal Division No. 65 of 1984.


Douglas W. Herman, Assistant Public Defender, Chambersburg, for appellant.

John R Walker, District Attorney, Chambersburg, for Commonwealth appellee.

Cavanaugh, Cercone and Lipez, JJ.

Author: Cercone

[ 350 Pa. Super. Page 162]

Jerry McKeithan was found guilty of aggravated assault*fn1 by a judge sitting without a jury. He was sentenced on June 27, 1984, to undergo imprisonment in the Franklin County Prison for a period of not less than 20 months nor more than 59 months, to pay a fine of $300.00 and the costs of prosecution. Appellant was sentenced in accordance with the Deadly Weapon Enhancement of the Sentencing Guidelines.*fn2 In his timely filed Motion to Modify Sentence

[ 350 Pa. Super. Page 163]

    and now on appeal, appellant advances several challenges to the constitutionality of the weapons enhancement provision and to the manner in which it was applied to him.

The charges arose from an altercation between appellant and one Willie James Thomas during the early morning hours of December 10, 1983. A fight had initially ensued between two women at a social club. When the fight moved outside, Thomas, the eventual victim, attempted to break it up. Appellant interfered saying "let the women fight". The two men exchanged angry words and when Thomas turned away, appellant stepped up and cut him across the neck. Thomas did not see a weapon, but testified at trial that he did see appellant drop something from his clenched right fist and heard it fall on the ground. Then the fight between the two men began. Thomas wrestled appellant to the ground and punched him several times before the fight was stopped. Thomas was heard to say, "Man, you cut me!" Appellant testified that he did not have a knife and that he did not cut Thomas. Moreover, his testimony was that Thomas struck him first.

Thomas was taken to a hospital and was treated in the emergency room. The two cuts on his neck required between 32 and 34 stitches, and the court's opinion describes the victim's scars as "very long and ugly". Debra Parr, a witness to the relevant events testified that later on the same day she heard appellant remark to some people, "Hey, man, did you hear what I did to Cricket." (It was established at trial that Thomas, the victim, was also know as "Cricket".) No knife was ever located.

Appellant's arguments on appeal are:

(1) The trial court erred in imposing the deadly weapon enhancement of 12 to 24 months in that it is a violation of due process under the Fifth and Fourteenth Amendments to the United States Constitution and to similar provisions of the Pennsylvania Constitution

[ 350 Pa. Super. Page 164]

    because it does not provide a standard of proof by which the sentencing court may determine that the defendant possessed a deadly weapon during the commission of this offense;

(2) The trial court erred in imposing the enhancement section in that the Commonwealth did not prove beyond a reasonable doubt at trial or at sentencing that appellant so possessed a deadly weapon;

(3) The trial court erred in sentencing appellant pursuant to the enhancement section because it is violative of due process in that the definitions of the elements of possession and deadly weapon are so vague that they fail to put a person of ordinary intelligence on notice that his contemplated conduct is unlawful.


Appellant urges us to declare the challenged provision of the Sentencing Guidelines unconstitutional as a violation of due process for failing to specify a particular standard of proof for the determination of whether the provision is applicable to a case. The comparison between the provision with which we are concerned and section 9712 of the Mandatory Minimum Sentencing Act is unavoidable, since by both vehicles, in the proper case, convicted felons will incur more stringent penalties if they possessed certain enumerated weapons in the commission of crimes. See Commonwealth v. Taylor, en banc, 346 Pa. Superior Ct. 599, 500 A.2d 110, 119-120 (1985) (Comparison of both sections: the mandatory sentence section provides for a minimum standard of proof, preponderance of the evidence, whereas the guidelines provide none.)

Both sections come into play at sentencing proceedings, after the determination of guilt has been made by the fact-finder or a guilty plea has been accepted by the court. Despite the differences between the mandatory sentence section of the sentencing code and the enhancement section of the guidelines with which we ...

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