*2 CIRILLO, KELLY, Before DEL SOLE JJ. CIRILLO, Judge:
This is a appeal Commonwealth from a judgment of sentence entered in the Court of Common Pleas of Philadel- phia. We vacate and remand for resentencing.
Darryl Brown was convicted of aggravated assault and possession of an instrument of crime. 18 Pa.C.S. 2702(a)(1); 10, 1989, 907. On January Brown stabbed §§ his former girlfriend ten times with a dry-wall saw. At the time of the attack the victim was pregnant seven months with Brown’s child. Brown entered a guilty plea to both charges.
At sentencing, the court refused to apply the deadly weapon enhancement of Guidelines. See Sentencing 303.4, following 9721.1 reprinted Pa.Code Pa.C.S. § § sepa-
The court reásoned that since Brown was sentenced
for
and the
rately
posses-
assault conviction
conviction,
sion
the enhancement
of an instrument of crime
Pa.Const.,
prohibited
jeopardy principles.
under double
Burkhardt,
10;
I,
Article
526 Pa.
(1991).
This court’s authored majority *3 Judge Popovich, held: affirm a sentence that is outside the may
While we reasonable, 42 it is Pa.C.S.A. guidelines provided 9781(c)(3), imperative sentencing it is that court § starting point guidelines determine the correct them____ sentencing Instantly, outside we find before correctly the lower court did not first determine the that 303.4(a): Sentencing provide, at 204 § 1. The Guidelines Pa.Code possessed court determines that the defendant When the definitions), (relating weapon, Pa.C.S.A. to as defined in 18 2301 § offense; during the commission of the current conviction at least 12 be to the shall added up confinement months and to 24 months guidelines range sentence applica- which would otherwise have been ble. 303.4(a), following (empha- reprinted 42 204 Pa.Code Pa.C.S. 9721 § § added). sis "Deadly weapon” defined as is firearm, unloaded, any designed Any loaded or or device as whether bodily injury, capable producing death or serious which, instrumentality any or in the manner other device or used, likely or it is used or intended to be is calculated which injury. added). produce bodily or serious (Emphasis death Pa.C.S. 2301. § that court noted that it fashioned the sentence 2. The so level; permit county serve his sentence at the this would Brown could suffering psychotherapy. Apparently, his Brown was him to continue anxiety depression. from If, guidelines____ upon under the appropriate sentence remand, to deviate from the appropriate court finds it suffi- by placing it do so proper sentencing range, may record, subject cient reasons on the later review court____ it clear that convic- Presently, is [defendant’s] (causes bodily injury), for assault serious tion 2702(a)(1), offense score gravity carries a Pa.C.S.A. § Thus, that the trial “9,” apparent it is readily not “8.” sentenc- appropriate determine the correctly court did clear [defendant]____ It is also ing range ap- deadly weapon application of the pellant’s aggravated does not violate assault conviction Moreover, is jeopardy---- it principles of double may, at to remember important discretion, suggested by a sentence below that impose its guidelines ranges____ enhanced (citations Id,., 372-74, A.2d at 7-9 Pa.Superior Ct. added).3 omitted) (emphasis order, 26, 1991, court’s pursuant to this April
On months to 20 to imprison- defendant was resentenced AO conviction; sentence ment for the of an instrument of crime conviction for the merger.” The Commonwealth “suspended by virtue sentence, reconsideration of which was filed a motion for appeal denied. This followed. has raised a find that the Commonwealth
Initially, we inappro- question that substantial 9781(b); Code,4 42 Sentencing under the Pa.C.S. priate *4 Guidelines, Sentencing entitled note that Section 303.4 of the 3. We enhancement,” provides "Deadly weapon that the enhancement shall 2702(a)(4) aggravated Brown was con- apply assault. to section (a)(1), therefore aggravated under section victed of applicable to conviction. See 204 Pa.Code was enhancement 303.4(b). 2119(f) provides: statement 4. The Commonwealth’s nineteen months below the was at least sentence [D]efendant’s Although ranges. lower court’s sen- guidelines recommended tence guidelines, the lower clearly from the deviated any deviating, for the offer reasons failed to admit it was court deviation, guideline recommended or even bother to recite the 2119(f), Pa.R.A.P. and therefore agree we with the Com- monwealth that yet “another round of is warrant- review” Dotzman, See Commonwealth v. ed. 403 Pa.Super. (the (1991) Commonwealth raised substantial as question appropriateness to of the sentence as a result of the trial court’s finding that the deadly weapon enhance- defendant, ment was to inapplicable who committed first-degree at robbery knife-point). The Commonwealth raises the following three issues:
1. Did the lower court erroneously construe the sentenc- ing guidelines in concluding that the deadly weapon en- hancement provision could not be to applied defendant’s aggravated assault if sentence defendant separately sentenced possessing an instrument of crime? 2. Did the lower court err in failing give reasons for its from deviation the recommended guidelines sentence? sentence, 3. Was defendant’s aggravated assault nine- teen months below bottom of the guide- recommended mitigated range, lines lenient unreasonably under circumstances of this case? argues court, the sentencing remand,
upon ignored the relevant law and the law of the 20,1991 case as stated in this court’s February opinion. On remand, the court same sentence which had Rich, 380, 383, ranges____ Commonwealth v. n. Moreover, (1990)____ 572 A.2d ignored 1284 n. 4 the lower court the brutal nature of defendant’s assault ... and ill, disregarded addict, mentally drug the fact that defendant is not Rather, product disadvantaged background. imposing or a sentence, of a only ensuring the court was concerned with that defen- seeing private dant would be therapist able to continue his for his "depression ranting anxiety.” Finally, question ... substantial war- review Court's is also raised the lower court’s guidelines. erroneous construction of the ed that The lower court conclud- possession defendant’s for of an instrument of merged crime with the enhanced assault sentence and suspended sentence on the of an instrument of crime Moreover, charge____ deadly weapon provision crime, punishment is not even a those who choose to but a recommended increase accomplish underlying use offense. Appellant, pp.
Brief of the 14-15.
539 appeal. first to the Commonwealth’s prior been of discretion. nor an abuse This, itself, neither error is on the however, sentence court, suspended The conviction, concluding of crime an instrument of possession assault aggravated the enhanced into “merged” it conviction. deadly of the “application Brown, this court held that con- assault aggravated appellant’s enhancement jeopardy.” of double the principles does violate
viction resentencing, the Upon A.2d at 8. appli- weapon enhancement deadly applied conviction. assault aggravated range for guideline cable sepa- not sentence it could determined that The court then charge and assault aggravated enhanced for both the rately At resen- charge. of crime of an instrument stated: the court tencing weapons deadly of the application of an [possession on the a sentence inappropriate
makes you once add the Because charge. of instrument crime] then enhancement, cannot sentence you weapons is the charge of crime because instrument on the you adding the enhancement---- very [I]f basis enhancement, cannot you then deadly weapons apply event, In any weapon’s charge____ sentence on also on the this court will be the sentence minimum of 20 months assault, will be a the sentence to be months. That forty a maximum The sentence Prison. Philadelphia County in the served charge is sus- of crime an instrument possessing on the used merger, having it been by virtue pended guidelines. enhance with the Hearing). agree We (Resentencing 145a R.R. erroneously sentencing court has that the Commonwealth guidelines. interpreted Burkhardt, Pa.
Recently, com- Supreme Court (1991), Pennsylvania 586 A.2d jeopardy double relationship between on the mented merger. McDermott, Justice who authored the lead opin- ion, stated:
In the context of protecting defendants against simulta-
*6
neous multiple punishments for
offense,”
the “same
concepts of double jeopardy, greater and lesser included
merger
offenses and
are related
separate
but
legal con-
cepts. See
Tarver,
Commonwealth v.
320,
493 Pa.
(1981)____
A.2d 569
now hold that in the context of
[W]e
simultaneous convictions of multiple offenses, [footnote
pursuant
to guilty pleas or
verdicts,
trial
omitted]
trial court may sentence
separately
each distinct
crime of
statutory
which the
convicted,
defendant is
limit-
ed only by express legislative intent
to the contrary.
Id.,
344-45,
The test enunciated by Justice McDermott departed from
the tests set forth in
Williams,
Commonwealth v. Leon
521 Pa.
(1989)
(a) generally.—A person commits instruments Criminal *7 possesses if he degree any a of the first misdemeanor employ intent to it criminally. instrument of crime with (b) weapon.—A commits a misde- person Possession of if he firearm possesses first or degree meanor the intent upon person concealed his with other it criminally. use
18 907.6 Pa.C.S. § that
An
of the statutes indicates
examination
intended that
the crime of
legislature
expressly
has not
Williams,
by
majority
in
authored
Justice
5. We note
decision
Zappala
joined by
Justice Nix
Flaherty, was
Justices
and Stout. Chief
separate
joined
majority
concurring
and filed a
decision
also
opin-
Papadakos
concurring
dissenting
opinion.
filed a
and
Justice
ion,
joined.
which
Larsen
Justice McDermott
filed
dis-
in
Justice
senting opinion,
joined
by
The
deci-
also
Justice Larsen.
Weakland
sion,
Flaherty,
joined
by
by
Chief Justice
also authored
Justice
Papadakos
Zappala
filed a con-
Nix
Justices
and Stout.
Justice
and
Larsen,
curring
dissenting opinion,
joined by
and
and
Justice
Justice
by
dissenting opinion,
joined
also
Justice Larsen.
McDermott
filed a
is
907 as
of crime”
defined
section
6. "Instrument
use;
(1)
adapted
Anything
specially
specially made or
for criminal
or
possessed
(2)
commonly
purposes
Anything
for criminal
used
manifestly appropriate
by
actor under circumstances not
may
uses
have.
lawful
it
“Weapon"
as
is defined
'
possession of
instrument
crime be “subsumed
or
by,
Burkhardt,
merged
aggravated-
into”
assault.
supra7
here,
Williams,
Leon
Additionally,
as
supra,
“the
same
facts are
support
used to
convictions for crimes having
elements,
different
...
the crimes do not merge for
[but]
sentencing purposes, unless
same
support
facts
convic
Williams,
tions of
lesser included offenses.” Leon
521 Pa.
at
case,
have. 907(c). 18 Pa.C.S. § (defined 2702(a)(1) Compare above)
7. 18 Pa.C.S. § with 18 Pa.C.S. 2702(a)(4) ("attempts intentionally knowingly to § cause or or causes bodily deadly injury weapon"). to another with a We reiterate that (a)(1). Brown was convicted under subsection 303.4(b) provides 8. Section that "there shall be no enhancement for (relating possessing convictions: under 18 907 ... Pa.C.S. instru- § crime)!.]” 303.4(b). ments of 204 Pa.Code
543 perceive We no imposed). to be punishment the minimum sen- impediment applying enhanced double jeopardy conviction, and for the tence of an instrument crime possession on the separately multiple punishments not constitute This does conviction. for same offense. the Dotzman, 325, 588 Commonwealth (1991), plea a to four guilty the defendant entered
A.2d 1312 of an counts of instru- counts of three robbery, theft, counts of unlawful generally, ment crime two illegal counts of use of taking disposition, two deadly that the sentencing court determined computer. The not to the weapon applied enhancement should be defen- of these robberies robbery convictions because “each dant’s first of the use of degree of the because felony became used, if had not been the weapon weapon ... felony no than a of the higher would have risen robbery therefore, concluded, The degree.” third already been counted weapon that “the use of the ha[d] and to raise the offense degree robbery raise the Id., 588 A.2d at Pa.Superior score.” Ct. gravity 1315. to this court and we vacated appealed resentencing. for of sentence and remanded judgment at 1317.
Id., Relying Ct. at 588 A.2d Pa.Superior weapon en- Brown, deadly held that the upon supra, we determining excluded in improperly hancement 331- Id., Pa.Superior Ct. at guideline range. sentence Although A.2d Dotzman is at 1316-1317. us, precise principles issue of the before dispositive guidance case here: offer some espoused protection pre- double against jeopardy The constitutional for the same of- being punished one from twice cludes fense____ for provide 303.4 does not sen- ... [Section] offense, twice for the same but tencing the defendant guidelines an increase rather calls for used____ has been range where [Sec- the prohibition against does not conflict with 303.4 tion] jeopardy The double jeopardy, double [footnote omitted]. multiple punishments “protects against ... clause *9 same offense.” An increase in the [citations omitted]. guideline sentencing range does not constitute multiple punishment for the same offense.
Id.,
330-31,
403 Pa.Superior Ct.
1312, 1315-1316
588 A.2d
v.
(1991),
citing
Brown,
Commonwealth
402 Pa.Super.
(1991).
Dotzman and Brown presented double jeopardy concerns in the sense the underlying crime and the attached enhancement interpreted, were erroneously, as pun double Brown, same supra; Dotzman, ishments the offense. supra. 303.4(b). too, 204 Pa.Code Here the sentencing Cf. has mistakenly court construed the weapon deadly enhance as sentence; ment a separate case, the in distinction this however, as is that a of the result error the court found that double jeopardy separate crime, barred on a not the crime to which attached, the enhancement as was in Dotzman previous the case and decision in Brown. our The distinction does not call for a different result case, the in because source the error as well as in Dotzman, Brown same; is the in each case trial the misconstrued a separate as sen tence. This is point critical to clear understanding of the guideline enhancement and the concept mérger. We conclude, therefore, that a proper application of enhancement, see 204 Pa.Code 303.4, does not bar on separate sentence another conviction.9 trial court’s determination that applying the en deadly weapon hancement to the precluded conviction on separate of an instrument crime conviction was error. We vacate remand for Although applied 9. be enhancement must in order to determine guideline range, guidelines the correct as a whole are not manda- stated, tory. repeatedly As the of this courts Commonwealth have considered; guidelines only be need consulted and judge may depart guidelines, provided adequate from the explana- See departure such Commonwealth tion for included record. 115,377 Rivera, Riggins, (1977); v. Commonwealth v. 474 Pa. A.2d 140 (1985); Pa.Super. Royer, A.2d (1984). *10 relinquished. resentencing.10 Jurisdiction resen- vacated; for case remanded of Judgment sentence relinquished. Jurisdiction tencing. SOLE, J., dissenting opinion. files
DEL SOLE, dissenting. Judge, DEL reversing sentence this court is second time For the case, in my in this and view is trial court by the imposed time, unjustifiably. for the second taking such action is con- ruling ultimate its initial Prefacing the Majority’s the Commonwealth’s that it to review appropriate clusion is because “the the defendant’s sentence regarding claims question that the has raised a substantial the Sentencing is under imposed inappropriate sentence I this conclusion Opinion at 537. believe Majority Code.” discretionary sentencing the regard erroneous with with unnecessary and raised the Commonwealth issues ques- the concerning claims to the regard Commonwealth’s weapons the of the merger application tions of enhancement. address the leniency which
The Commonwealth's claims
has been
not constitute what
of
sentence
do
the
deserving
appellate
of
question”
to be a “substantial
found
effect,
asks
Court to substitute
appellant
“In
review.
of
sentence for that
appropriate
an
its judgment regarding
remaining
unnecessary
the
it
to address
Commonwealth’s
10. We find
claims,
merger
We
having disposed
this case on the
issue.
of
two
reiterate, however,
previous
our
decision in
this court’s concerns in
this case:
day to 24 months less
of 12 months less one
sentence
[Defendant’s]
years
than even
day
is over two
less
assault
one
mitigated range
guidelines. Even if we consider [defen-
of the
day
one
40 months
aggregate
18 months less
sentence of
dant’s]
suggested
years
day,
two
less than the
is still almost
one
it
less
range)
alone.
(mitigated
for the
alternatives,
choosing among
the lower
the various
solely
Brown to the exclusion
appears
on
needs
to have
of
focused
including
gravity
sentencing factors,
other
offense
appears unreasonably
impact upon
The sentence
the victim.
its
stabbing,
omitted].
brutal
[citations
lenient for
Id.,
I believe that the Majority would not dispute it was sentencing well within the court’s no impose discretion further sentence on the defendant his of conviction possessing an instrument of crime. The court sentence on the recognizing assault conviction role the deadly weapon provision in played structuring guidelines for this crime. fact court failed to impose a further penalty possessing on the an charge, instrument of crime not, view, in an my can be deemed of abuse discretion. My the sentencing belief that court was well within its discretion, refusing impose a sentence on the possess- an of ing charge instrument crime supported by the fact that a on such a in this charge conviction case was inappro- A priate. wall is not of dry saw an “instrument crime.” of to a violation 18 Pa.C.S.A. Appellant pled guilty “instrument crime” as: defines an which for crim- (1) adapted or specially specially made Anything use; inal or criminal
(2)
purposes
used for
commonly
Anything
not manifest-
the actor under circumstances
possessed by
may
for lawful uses it
have.
ly appropriate
has held that a
this statute this court
interpreting
screwdriver,
slash at a
not an
to stab and
victim was
used
Eddowes, 397
of crime. Commonwealth v.
instrument
(1990). We have also held that
551,
The formu- bring attempting when to facts of this case that the sentence, possessing for the an instru- particularly late guilty. The charge Appellant plead to which ment of crime merger did not in a engage in this case sentencing court rather found that it Majority, as but analysis, does on this defendant to sentence inappropriate would be the facts as upon view my conviction. based law, was entirely case this action and relevant presented appropriate. recognized that the sentencing, the court
At to receive an enhanced recommended was assault conviction a deadly Guidelines because range Sentencing under the of the crime. during perpetration used weapon was While the dry wall saw constitutes a “deadly weapon” purposes of (see the enhancement provisions 18 Pa.C.S.A. 2301), the court was of opinion separate that sen- tence should not be for a conviction of possessing an instrument of crime. The court stated: application
The of the deadly weapons makes inappropriate a sentence on charge. the PIC Be- cause once add you weapons enhancement, the deadly you cannot sentence then on the instrument crime charge because is the very basis for adding the enhance- ment.
Also it is interesting note, to under Morgan, (1979) ], drya [265 wall saw is not an probably instrument of a crime.
I accepted plea because I prosecu- believed tor at the time had discussed that with defense counsel. And, that there had been some discussion about this was the plea presented. that was to be In retrospect, I Iwish had insisted that it is not an instrument of crime. It might be a deadly weapon. But it is certainly espe- cially adapted for use criminal activities.
So under 907 a dry Purdon’s wall saw would not PIC, that, be a if I consider and don’t apply sentence on the PIC charge. event,
In any because it is covered by enhancement, weapons now, what I have before me as far concerned, as I am is a on an weapons enhancement, with a deadly guideline and the range 9 and a zero.
I find the trial court was well within it’s discretion in refusing a sentence apply an possessing instru- ment of crime I charge. further note that upon remand it free, will be once again, formulate this same sentence. actions, Majority’s my view are needless unre- sponsive to the recognition court’s that a sen- the possessing tence on instrument charge of crime *13 in this inappropriate case.