Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County, No. CC 8509115.
Kemal A. Mericli, Assistant District Attorney, Pittsburgh, for Com., appellant.
James R. Fitzgerald, Pittsburgh, for appellee.
Wieand, Tamilia and Hester, JJ.
[ 362 Pa. Super. Page 131]
On February 6, 1986, Anthony James Rizzo was found guilty of one count of aggravated assault*fn1 and one count of terroristic threats.*fn2 The conviction resulted from an incident on July 23, 1985 in which Rizzo had punched a 70 year old man, causing the elderly gentleman to fall to the ground and break his hip, after which Rizzo had kicked the fallen man in the ribs, slapped his face and threatened to kill him. At the sentencing hearing on March 21, 1986, the Commonwealth contended that Section 9717 of the Sentencing Code was applicable and mandated that Rizzo be sentenced to a minimum term of imprisonment for two years on the conviction for aggravated assault. The sentencing court refused to apply Section 9717 and imposed a sentence of imprisonment for not less than eleven and one-half months nor more than twenty-three months for the aggravated assault conviction and probation for five years for the crime of making a terroristic threat. In this appeal by the Commonwealth, it is argued that the sentencing court erred when it refused to apply Section 9717 and then imposed an unreasonably lenient sentence in disregard of the sentencing guidelines. There is merit only in the latter contention.
Section 9717 of the Sentencing Code, 42 Pa.C.S. § 9717, provides:
A person under 60 years of age convicted of the following offenses when the victim is over 60 years of age and not a police officer shall be sentenced to a mandatory term of imprisonment as follows:
[ 362 Pa. Super. Page 13218]
Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated assault) -- not less than two years.
The sentencing court refused to sentence Rizzo according to the mandates of this statute because (1) the information had failed to aver the ages of Rizzo and his victim and (2) the Commonwealth had failed to provide Rizzo with reasonable notice of its intention to invoke the provisions of the statute prior to sentencing.
In holding that the Commonwealth's failure to allege the respective ages of Rizzo and his victim in the information was a bar to the application of the statute at sentencing, the sentencing court relied upon this Court's decision in Commonwealth v. Taylor, 346 Pa. Super. 599, 500 A.2d 110 (1985). There the defendant had been charged with and convicted of aggravated assault with attempt to cause serious bodily injury, in violation of 18 Pa.C.S. § 2702(a)(1). Neither the information nor the evidence produced at trial had suggested the use of a deadly weapon. Nonetheless, the Commonwealth attempted to prove at sentencing that the defendant had possessed a deadly weapon during the assault and asserted that, as a result, the sentence enhancement provisions of Section 303.4 of the sentencing guidelines were applicable. The sentencing court refused to consider evidence that a deadly weapon had been present at the commission of the assault and refused to consider the enhancement provisions of the guidelines. The Commonwealth appealed and this Court, sitting en banc, affirmed. The crime of assault with a deadly weapon, as defined at 18 Pa.C.S. § 2702(a)(4), was substantially different from the crime of which the defendant had been convicted, i.e., assault with ...