Appeal From Judgment of Sentence, Court of Common Pleas, Criminal Division, Philadelphia County, No. 86-01-237 And 238.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Cavanaugh, Montemuro and Kelly, JJ.
[ 368 Pa. Super. Page 257]
Appellant entered a plea of nolo contendere to charges of robbery and criminal conspiracy. While admitting his involvement in the street robbery, appellant denied using a knife in perpetration of the crime as claimed by the complainant at the plea hearing. The court found that appellant had in fact used a knife during the robbery, and accordingly added the deadly weapon enhancement*fn1 to the minimum ranges. Appellant was sentenced to two concurrent terms of two to ten years imprisonment. Following denial of his petition for reconsideration of sentence, appellant filed the instant appeal.
The sole issue raised on appeal is a constitutional challenge to the deadly weapon enhancement provision. This provision mandates augmented sentencing ranges when the accused possesses a deadly weapon during the commission of an offense. It is appellant's position that the terms "possession" and "deadly weapon" are impermissibly vague. Appellant also claims that the deadly weapon enhancement provision is overbroad and violative of substantive due process because of the lack of a nexus between the particular behavior sought to be prevented, and the wide range of behavior actually proscribed by the wording of the provision.
Appellant's argument rests solely on this court's en banc decision in Commonwealth v. Taylor, 346 Pa. Super. 599, 500 A.2d 110 (1985), aff'd., per curiam 516 Pa. 21, 531 A.2d 1111 (1987). However, the view of the deadly weapon enhancement provision as unconstitutionally vague and
[ 368 Pa. Super. Page 258]
overbroad was adopted by only three of the nine judges on the panel, and did not command a majority of the court; it is therefore not binding in the case at bar.
In a recent decision in Commonwealth v. McKeithan, 350 Pa. Super. 160, 504 A.2d 294 (1986), we declined to follow the holding in Taylor. Instead, in considering appellant's facial attack on the vagueness of the statute, and absent a claim of infringement of First Amendment freedoms, it was held that the specificity of the statute is to be measured against the actual conduct in which the appellant engaged. Commonwealth v. Heinbaugh, 467 Pa. 1, 4-5, 354 A.2d 244, 245 (1976).
The terms which appellant challenges as vague are "possession" and "deadly weapon". There is no assertion by appellant that his First Amendment rights were infringed. The arguments made by appellant deal exclusively with a range of scenarios where application of the deadly weapon enhancement provision would arguably work an unconstitutional result. Unfortunately for the appellant, his case exists outside the realm of the hypothetical, and we are compelled to look to the facts at hand, and appellant's own conduct, in order to judge the vagueness of the statute. The complainant testified that appellant approached her, held an eight-inch knife to her throat and demanded her valuables. Appellant has not claimed that the term "possession" was so vague as to preclude him from realizing that his possession of the knife was behavior encompassed by the deadly weapon enhancement provision. Further, there could be no serious argument advanced which would convince us that the knife could have been considered anything but a deadly weapon ...