Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Alleghency County, No. CC 8301135.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellant.
Carl M. Janavitz, Pittsburgh, for appellee.
Cavanaugh, Popovich and Montgomery, JJ. Popovich, J., files a concurring opinion and joins Montgomery, J., majority opinion. Cavanaugh, J., files a dissenting opinion.
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Appellee Michael Septak pleaded guilty to charges of unlawful restraint,*fn1 terroristic threats,*fn2 and criminal conspiracy.*fn3 The sentencing court, over the Commonwealth's objection, refused to apply the deadly weapon enhancement
[ 359 Pa. Super. Page 378]
provision of the Sentencing Guidelines,*fn4 and sentenced appellee to four (4) years probation and payment of a $500.00 fine and court costs. The court acknowledged that the sentence was below the applicable minimum guideline sentence. On appeal, the Commonwealth requests that we vacate the sentence and remand with instructions to apply the deadly weapon enhancement and impose a sentence within the enhanced guidelines. We agree with the Commonwealth that the sentencing court erred in refusing to apply the deadly weapon enhancement provision and that the sentence imposed unreasonably deviated from the Guidelines. We therefore vacate and remand for resentencing.*fn5
This appeal arises out of a criminal episode which took place on November 10, 11 and 12 of 1982. The victim was Robert Johns, and the criminal actors included appellee Michael Septak and co-defendants Joseph Pokorny, Carl Pokorny, James Pokorny and Ronald Smith.
Robert Johns, a carpenter, was performing some work at the home of Joseph Pokorny. After learning that Joseph Pokorny had hidden a quantity of cocaine in the house, Johns stole the cocaine. It then occurred to Johns that Joseph Pokorny would discover the theft and seek retribution. In order to divert attention to another suspect, Johns set fire to Joseph Pokorny's motorcycle and forged a threatening note which he hoped would mislead Joseph Pokorny into thinking that some other person had burned his motorcycle and stolen his cocaine. Unfortunately for Johns, Joseph Pokorny was not misled.
On the afternoon of November 10, 1982, Joseph Pokorny came to Johns' home, punched Johns in the jaw, and then abducted Johns at the point of a loaded handgun. With the assistance of three associates, Joseph Pokorny took Johns
[ 359 Pa. Super. Page 379]
back to the Pokorny residence, where Joseph's brothers Carl Pokorny and James Pokorny were waiting. Joseph Pokorny telephoned Johns' girlfriend, made a demand for $9,000.00 he felt he was owed by Johns, and warned the girlfriend not to call the police. The three Pokorny brothers then took turns guarding Johns with the handgun.
A few hours later, in the late afternoon or early evening of November 10, 1982, appellee Michael Septak appeared at the Pokorny residence. We do not know what Septak had been told by the Pokorny brothers, but we do know that Septak approached Johns in a threatening manner and stated that if he (Septak) had been "ripped off", he would have killed Johns. Septak also told Johns that the Pokornys should either shoot him or kill him. Shortly after this confrontation, Septak helped Carl Pokorny to tie Johns' hands together. Sometime before midnight, after Johns' hands had been untied, Septak suggested that Johns should be tied up again. Septak helped to tie Johns' hands and feet, and Johns was made to lie on a sleeping bag in the kitchen. Septak left the house around midnight, and had no further involvement in the criminal episode.
Subsequent events may be briefly summarized. On November 11, 1982, a member of the Johns family contacted the F.B.I. In turn, the local police were called in. Arrangements were made to deliver the ransom money at noon on November 12. At the designated time and place, Joseph Pokorny picked up the money and was immediately arrested. Later that day, Carl Pokorny, who had been guarding Johns at the Pokorny residence, was also arrested. Michael Septak was arrested on December 2, 1982.
By information filed on February 18, 1983, Septak was charged with kidnapping, unlawful restraint, terroristic threats, theft by extortion, and criminal conspiracy. Count four of the information, theft by extortion, specifically alleged that Septak had threatened "to shoot Robert Johns and/or otherwise injure him if he ...