Commonwealth v. Hartz

8103(c)(1). 42 Pa.C.S. the constraint subject Equibank’s granted the order which vacate therefore We a determination case for and remand petition, relin- Jurisdiction and answer. petition merits quished. J., in the result.

BECK, concurs Pennsylvania

COMMONWEALTH HARTZ, Appellant. Bradley E. Pennsylvania. Court of Superior Argued May 1986. Sept.

Filed 1987. 16, 1987.

Reargument Denied Oct. Cirillo, Judge, opinion and filed an President concurred JJ., Johnson, joined. Brosky in which Heather J. Mattas and M. Nester, Charles Assistant Defenders, Pottstown, Public for appellant. Suss, Chester,

Stuart B. West Assistant District Attor- Com., ney, for appellee. CIRILLO,

Before President Judge, and CAVANAUGH, BROSKY, McEWEN, SOLE, BECK, DEL TAMILIA, JOHNSON, KELLY and JJ. Judge: SOLE,

DEL imposed fol- of sentence the judgment Appellant appeals Restraint, charges of Unlawful plea guilty his lowing Person, Terroristic Another Endangering Recklessly issues raised Assault. The Aggravated Threats and alleges first Appellant matters. sentencing appeal relate deadly weapons enhancement finding for five bases Guidelines, 42 Pa.C.S.A. Sentencing provisions addition, In 303, unconstitutional. Pa.Code Ch. excessive; the sen- imposed he maintains the the reasons upon the record tencing failed state judge and, failed consider sentence; judge history, and the character crime circumstances reasons following For the of the Appellant. and condition and, merits of these claims find reach the we cannot we of sentence. therefore, judgment affirm the we 10, November 1983. was first sentenced on Appellant a of 18 to 36 time, the court total sentence imposed At that incarceration, $1,000.00 a probation and years months 7 the costs Appellant pay fine. also ordered to The court to in the amount of and make restitution prosecution $20.00. 17, 1983, timely a Motion to Appellant filed On November granted Appel The court Modify Sentence. Reconsider 22, 1983, it its and on vacated lant’s motion November a imposed modifying previous sentence probationary period 16 to and the prison term to 36 months sentencing hearing, 5 At the of the second years. to close days court he had ten Appellant by informed was application an the court reconsidera which to file Nevertheless, to file Appellant failed tion his sentence. and, from No instead, filed an appeal such a petition 11, this on December 22nd sentence with court vember 1983. had to a similar set of

This has occasion consider Court Cottman, 327 Pa.Su- v. circumstances (1984). Therein, 40 it noted: A.2d was per. his correctly modify original a motion to Appellant filed sentence, required princi- Pa.R.Crim.P. 1410. The pal purpose provide of this rule is to the sentencing court with the first its to opportunity modify sentence and any sentencing. correct errors have occurred may at Burtner, Commonwealth v. 230, 235, 307 Pa.Super. (1982), A.2d In and cases cited therein. the ab- motion, sence such defendant may only seek sentence. Com- appellate review of the of his legality DeCaro, monwealth Pa.Super. 444 A.2d 160 (1982). present Failure to claims of abuse of discretion to the sentencing court constitutes waiver. Boyce, Common- Pa.Super. (1982); 450 A.2d 83 Dumas, wealth v. 299 Pa.Super. (1982). Although appellant did afford the court the opportunity adjust sentence, its initial he failed to provide opportunity respect to that court with to the amended imposed following was the vaca- tion of the initial sentence. The issue instantly raised alleges that error was committed at second sentenc- ing hearing. appellant’s Since initial sentence was vacat- ed and no motion reconsider appellant’s current sen- filed, tence this issue is waived.

Id., 460-461, 476 A.2d at 44. Cottman, in Commonwealth v.

For the reasons set forth find Appellant’s error, we waived claims with the excep- tion the constitutionality of 9721.1 The constitutional questions Appellant raised are as challenges viewed of his sentence legality and are not waived for failure to Broadie, 1. Commonwealth v. 489 A.2d 218 Tamilia, Opinion holds, dissenting Judge in cited of as did Com- Cottman, supra., petition modify monwealth v. that a to sentence must days imposition be filed within ten of the aof modified in sentence Broadie, preserve sentencing Cottman, citing order to issues. without provide procedure went that this would become effective in 60 However, days. language superfluous. this merely in Broadie was retroactive/prospective analysis The in unnecessary Broadie was since already this court required had ruled in Cottman that Rule 1410 a new motion for reconsideration to filed be when a defendant is resen- tenced. interpreting Since court in existing Cottman was rule making changes existing practice, not and in applied its decision all cases. Common- for Reconsideration. in Motion included (1985). A.2d 63 Cooke, wealth in ap- raised this questions the constitutional Although are unable waived, other reasons we peal are review of seeks our Appellant these claims. consider section constitutionality clear, The makes record Sentencing of Guidelines. potential by not affected however, that Appellant 9721. applicability asked specifically counsel

Appellant’s provisions when added the enhancement court it whether responded: sentence. court calculating Appellant’s speaks guideline It’s considered. THE COURT: enhancement. it attach to the specifically I intend

Frankly, don’t Well, what these impose. that I remember talking we about being started out when were charges thing like kidnapping, homicide and attempt criminal period imprisonment eighteen-month I think an that. circumstances, we although under the rather modest They not before us. are charges those are appreciate comes, criminality this out of factual contentions mind, not we had a whether or I think with that enhancement, period I a minimum can’t see weapons any than sixteen months turn any less certainly events. there, don’t intend to I rather it’s in but figure

So I think because whether any way set it forth separately (S.T. not, unchanged. it or sentence would be my existed 4). 11-22-83 at is not affected person prejudicially

Where a review, is not in the case under individual statute alleged statute’s question entitled to be heard on Samuels, unconstitutionality. Commonwealth (1986). 128, 146-147, In the Super. case, court, comments, Appellant reveals instant its operation of the statute. prejudice by suffered no case, Because of the factual circumstances in this we decline to reach the issue of the constitutionality of 9721.2 In making this determination are we mindful of the “well proposition established that a court is not to rule on the of a constitutionality statute unless it is absolutely neces- in sary to do so order to decide the issue it”. before Samuels, Commonwealth v. supra.

Judgment of sentence affirmed.

CAVANAUGH, BECK, JJ., McEWEN and join. CIRILLO, President Judge, concurs in an in opinion JOHNSON, JJ., which BROSKY and join.

KELLY, J., concurs an opinion. TAMILIA, J., opinion. dissents CIRILLO, President Judge, concurring: I concur in the majority’s decision not disturb judgment of sentence of sixteen to thirty-six months’ im- Cirillo, Concurring Opinion by 2. Judge In the President the issue of Tuladziecki, application of Commonwealth v. opinion suggest is raised and the appeal would that the as it may interpreted discretionary aspects to be from the sentencing, of First, quashed. should be discretionary aspects sentencing being they issues are not reached since have been waived for failure to However, modify file a second motion pointed sentence. it must be analysis Judge opinion out that the application Cirillo's is incorrect in its Tuladziecki, nature, very proce- its is a Tuladziecki requirement Supreme dural opinion and the Court in that stated: Appellant properly preserved challenge [Tuladziecki] his to this violation, procedural Superior and for the reasons stated herein the Court’s decision to overlook it must be vacated. analysis court, An case reveals that in this Tuladziecki appellant Commonwealth was the appellee. and Mr. Tuladziecki the appellee had objection continued to raise an to the Common- procedural wealth’s objection violations. It was this which the Su- preme However, Court stated this court should not have overlooked. case, in the appellee instant any procedural has not objec- raised tions to the appellant method used discretionary who raised the aspects Therefore, sentencing question. the Commonwealth has procedural waived this question violation and reviewing should the discretionary aspects present, been we would be able to exercise our discretion and determine whether or not we wish to Muller, review same. See Commonwealth v. Sole, (1987—Concurring J). A.2d 191 Opinion by Del restraint for unlawful imposed appellant prisonment register my However, separately I to crimes. write related and opinion, in the majority with the dictum disagreement has opinion, appellant that dissenting the statements weap- challenges his to constitutional preserved Guidelines, 204 provision Sentencing of the on reprinted 303.4, 42 9721 note Pa.C.S.A. Pa.Code § to in a motion his to include them (1982), despite failure statements my colleagues’ I sentence. believe modify sentencing provision to a challenge that a constitutional never be sentence and hence can legality raises the they erroneous, in need of correction before are and waived being in constitution- sentencing issue couched every lead to the issue consequences waiving terms to avoid the al the trial court. held that clearly Court has Pennsylvania Supreme sentencing issues, issues based even

constitutional in the trial constitution, are if not raised properly waived Walton, 600, v. 588, court. Commonwealth 397 483 Pa. on restitution (1979) (due 1179, process 1185 attack A.2d court); sentencing presented not to statute waived where Lee, 1317, v. 70, 4, Commonwealth 478 Pa. 73 n. 385 A.2d than (1978) (claim sentencing other by judge n. 4 1319 Com waived); had been judge process trial violated due McConnell, 470 Pa. (1977) v. 312, monwealth 646 368 A.2d (due challenges imposition to process equal protection waived); minimum had life sentences without terms been Boone, 898, v. 181, 168, 467 Pa. 354 A.2d minimum (1975) (due challenge to process imposition 904 Common sentencing); where not raised sentence waived Strand, v. 544, 548, 675, (1975) wealth Pa. 347 A.2d 677 464 to failure challenge sentencing to court’s (equal protection at sen minimum where not raised impose sentence waived Piper, 307, 309-11, 328 tencing); 458 Pa. accord Commonwealth 845, (same); 847 Thurmond, 268 283, 287, 1357, 1359 407 A.2d Pa.Super. J.) (Hoffman, (Superior wouldn’t consider constitu Court sentencing court’s of de challenge consideration tional only challenge false where raised below testifying fendant’s case), that such reliance on facts of improper was denied, appeal allowance 283, 407 A.2d Pa.Super. Rutherford, Commonwealth v. (Pa.1979); Pa.Su 952, (1977) (claims 381 A.2d that sentenc per. sentencing ing process right speedy violated due Com court); presented sentencing waived where not Olsen, monwealth v. 513, 523, Pa.Super. 372 A.2d (1977) (claim that sentences dou consecutive violated vacated on below), jeopardy waived where raised ble Common grounds, other (1980); 410 A.2d 299 Henderson, wealth v. 525, 528, 341 A.2d (1975) (Hoffman, J.) (equal protection challenge 196-97 sentencing); statute waived where not raised at Jefferson, Commonwealth v. denied, appeal allowance of (same), Pa.Super.

657 denied, cert. xxvii, (Pa.), 947, 338 A.2d 657 423 U.S. 96 S.Ct. see also Commonwealth v. 362, (1975); 46 L.Ed.2d 281 Henderson, 359, 364-65, 1146, (1978) 482 Pa. 393 A.2d 1148 (double opinion) attack on sentence (plurality jeopardy raised in for did not petition appeal preserve allowance process challenge petitioner argument); due which raised Cherpes, Commonwealth v. 246, 266, Pa.Super. 360 520 439, (1987) 449 2 (equal protection A.2d n. attack on manda fine-enhancement statute not set out in tory waived where denied, appeal brief), 612, argument section of 515 Pa. 530 (Pa.1987). requirement A.2d 866 that constitutional issues raised is an extension of timely merely be general “[ijssues rule that not raised in the lower court and cannot raised for the first time on are waived 302(a). fact, In appeal.” requiring Pa.R.A.P. this rule issues be raised first the trial court takes on added significance when someone attacks the of a constitutionality statute, appellate because an court should not rule on the of a statute unless constitutionality absolutely necessary Cacek, Commonwealth v. it, decide the case before 358 (1986) (Del 381, 384, 992, Sole, J.); A.2d 993 Pa.Super. 517 Samuels, v. Commonwealth 128, 144-45, Pa.Super. 354 511 appeal allowance granted, 221, (Hoffman, J.), 230 A.2d 20, (1986), 513 Pa. 518 A.2d 801 no constitutional where

275 the record trial court raised has been objection making such a purposes for inadequate usually will be this “Thus, cavil beyond it is determination. weighty sponte raise questions not sua constitutional court will should we Nor parties. framed have not been unnecessarily or when issues constitutional address court in the lower preserved presented properly Barone, 276 v. review.” Commonwealth appellate our 457, (1980) (plurality 286, 460 282, 419 A.2d Pa.Super. added) (citations and footnotes (en banc) (emphasis opinion) Warren, 31, v. omitted); accord Commonwealth challenge to (1977) (constitutional 561, 562 35, A.2d 379 court); in trial not raised statute waived where robbery Maute, 408, 394, v. 485 A.2d Pa.Super. Commonwealth 336 J.) attack (1984) (Hoffman, (equal protection 1138, 1145-46 waived), intercourse statute deviate sexual involuntary on denied, (Pa.1985); appeal allowance of 394 Pa.Super. 336 Byron, v. Pa.Super. Commonwealth 465 intoxi- on (1983) (constitutional voluntary attack denied, appeal allowance waived), statute cation Danko, Pa. (Pa. 1984); Pa.Super. (1980) (constitutional 97, 101, Super. waived); prostitution statute attacks Ashford, 225, 231, 407 A.2d waived); threats statute (due challenge to terroristic process Paul, 289, 291, 111 A.2d Commonwealth v. lotteries statute (dictum) (due challenge to process allocatur court), in trial where not raised preserved denied, xxvi, (Pa.1955). 111 A.2d 374 Pa.Super. 177 to the rules exception relies on an oft-stated majority holds that claims of preservation issue requiring See, Com e.g., can waived. of sentence never be illegality Gillespie, 1180, monwealth v. 349, 355, 516 512 Pa. A.2d (double claim); (1986) (plurality opinion) jeopardy 1183 Isabell, 2, 6, Commonwealth v. 9 n. 467 A.2d 503 Pa. & rule); (1983) (dictum) 1287, (questioning n. 6 1290-91 & Norris, 308, 9, Commonwealth v. 319 n. 446 A.2d Common claim); (1982) sentences 246, (duplicitous 251 n. 9 Lee, (1987) v. 405, wealth A.2d 405 526 Pa.Super. 363 276 on recidi minimum sentence mandatory

(failure impose Campbell, v. driver); Commonwealth Pa. 351 drunk vist (1986) (en banc) 262, A.2d 263-651 56, 59-63, 505 Super. Ohling v. Commonwealth doctrine); merger (common law * er, 25, (1985) *, A.2d 26 n. 437, 440 n. 487 Pa.Super. 337 Youth Of violation of minimum (imposition Britton, v. Commonwealth 485); Act, 61 P.S. fenders banc) (en 1294, (1984) 1304 203, 221, A.2d 482 Pa.Super. 334 dis appeal maximum), exceeding statutory (sentence Commonwealth missed, (1986); 620, 506 A.2d 895 Pa. 509 1224, 137, 145, A.2d 1228 Zaengle, v. 480 Pa.Super. 332 vacated, act), single for unlawful sentences (1984) (multiple Riley, v. Commonwealth (1985); 355, 1330 Pa. 497 A.2d 508 (1984) 509, (multiple 201, 210, 479 A.2d 514 Pa.Super. 330 v. Du Commonwealth single conspiracy); sentences den, 614, (assertion that 73, 82, A.2d 619 473 Pa.Super. 326 exceeding from minimum sentence total prohibited statute consecutively imposed longest the maximum half denied, appeal allowance of 73 Pa.Super. 326 sentences) Bossche, 1, 5, v. Pa.Super. (Pa.1984); Commonwealth 324 v. jeopardy); Commonwealth (double 93, (1984) 471 A.2d 95 (1984) Staples, 302, 847, 849 296, 471 A.2d Pa.Super. 324 felony); connected for murder sentences (separate Mathis, 362, 372, v. A.2d Commonwealth 464 Pa.Super. 317 restitution); (whether authorized 362, (1983) statute 367 Mathis, 226, 229, v. A.2d Commonwealth 463 Pa.Super. 317 first-degree misde (1983) (maximum sentence for 1167, 1169 second-de higher rose no than crime imposed meanor where Fulton, 315 Pa.Su v. Commonwealth misdemeanor); gree 265, (1983) (statutory 4, 266 n. 420, 422 n. 462 A.2d per. Reardon, v. Commonwealth offenses); merger of inchoate (1981) (term of 200, 792, 193, Pa.Super. law); sentence allowed exceeding maximum probation Albertson, 7, n. Pa.Super. (both and maximum minimum A.2d 817 n. 7 ap allowance limits), statutory exceeded terms prison denied, (Pa.1980); peal 410 A.2d 815 Wilks, n. burglary (1977) (statutory merger 890 n. 6

277 Lane, Pa.Super. 236 crime); v. Commonwealth intended sentencing 233, n. 5 5, (improper A.2d 234 462, n. 345 465 limits), statutory exceed sentence to caused repeat offender (Pa. xxvi, 345 A.2d 233 denied, Pa.Super 236 allocatur establishing illegal that an However, 1975). these cases missing share an element waived all cannot be sentence that the sentence a claim each concerned from this case: sentencing court lacked in that the per se unlawful impose it. authority or statutory power or constitutional chal sense, jurisdictional all these cases involved In that sentences, constitutional or without to the because lenges a jurisdiction impose has no authority a court statutory sentence, defects are not jurisdictional and since given waiver, can and indeed must appellate an court subject to them. parties if the fail to raise Com address them even 470, 472, Kozrad, 499 A.2d Pa.Super. v. monwealth (1985)(“it of this court to correct 1096, required 1097-98 mine)); (emphasis accord illegal sponte.” sentence sua 126, 134, 463 A.2d Ruffin, v. Commonwealth Boerner, 1117, (1983); v. 281 Pa.Su Commonwealth 6, 583, (1980) (“When n. 6 513 n. per. conferred on it law beyond power court takes action to it (its nullity, objection its action is a jurisdiction), the defendant. cannot be waived 341, 354, (1928).”), Hall, A. allowance 291 Pa. (Pa. denied, 505, 422 A.2d 583 appeal 1981). the deadly weapon constitutional attacks on

Appellant’s of his question legality do not call in claims regardless validity these because on him is imposed sixteen- to thirty-six-month and, indeed, itself, legal may constitutional and both valid exercise of the “broad discretion perfectly [which impose trial court to a sen legislature has vested] case comes before it.” appropriate tence to each Tuladziecki, (1987). has classified unlaw Assembly The General as a misdemeanor of the first Pennsylvania ful restraint prescribed and has a maxi degree, see 18 Pa.C.S. § for such crimes. imprisonment years’ mum sentence of five sentence prison minimum term of a 1104(1). Id. Since § maximum, 42 Pa.C.S. half the see not exceed one may im could have sentence the court 9756(b), greatest § The years. and a half to five on was two posed appellant well sentence he received was thirty-six-month sixteen- to a authorized legislatively and thus it was those limits within crime; otherwise nor the sentence for the it outside in the sense that was or unconstitutional illegal sentence is truly illegal it. A power impose court’s its discre has abused simply the trial court not one where discretionary power tion, beyond any that goes one but appellant’s is not the case with to the court. Such granted one of every if each and uphold Even we were sentence. the deadly and strike down arguments his constitutional enhancement, court not neces sentencing would the same sentence reimposing from sarily prevented on the remand, justified the sentence is otherwise provided Goldhammer, v. facts of this case. Commonwealth Cf. (double not jeopardy did 587, 517 A.2d 1280 origi with trial court’s resentencing accordance prohibit upset court had sentencing appellate scheme where nal — counts), denied, cert. discharging several scheme 1613, (1987). —, 94 L.Ed.2d 798 Whether 107 S.Ct. U.S. exercise of the proper indeed a sentence was appellant’s the facts and circumstanc light discretion in trial court’s because, determine, as the need not of this case we es holds, has his claims appellant waived correctly majority them in a motion to failing to raise of discretion abuse sentence. modify challenges to a sen- that constitutional proposition sentence, implicate “legality”

tencing provision waived, in the case of originates and hence cannot be 58, 63, 492 A.2d Cooke, Pa.Super. v. Commonwealth (Pa.1985). denied, Pa.Super. appeal allowance challenge to Pa.C.S. a constitutional Cooke involved minimum sentence 9712, prescribes mandatory committed for certain felonies imprisonment years’ five addressed court possession. a firearm visible the fact despite the statute attack on constitutional Cooke’s in motion to sentencing or it at not raised that he had sentence can legality of a stating “the modify A.2d at 68 at 68 n. Pa.Super. never be waived.” finding no rationale The court offered n. 1. “legality” raised the arguments constitutional Cooke’s and Fulton nor did the Norris cases which it sentence; they did involve since support proposition, cited court statutes. Our challenges constitutional the Cooke comment holding without has since followed Sterling, 272 n. Bossche); Cooke (1985) (citing 790 n. Anderson, 410 n. Cooke); Common- (1985) 1 887, (citing n. 498 A.2d 888 356, 868, v. Irving, 349, wealth 500 A.2d 872 Pa.Super. 347 Gonzales, 350 Norris); v. Commonwealth (1985) (citing 886, (1986) (citing 373, 5, 888 n. 5 377 n. 504 A.2d Pa.Super. Eliason, 353 Cooke); and Norris 1296, A.2d 1298 n. 3 n. 509 However, Cooke). respect with all due Cooke’s (citing J. colleague Judge Sydney author, learned and admired my decided, and that Cooke Hoffman, wrongly I believe should disavow Cooke proge- and its that the court en banc ny- stat- sentencing on a attack

Conceivably a constitutional imposed under of a sentence implicate legality the ute could remove the statute would it, if, example, for invalidation of the trial court statutory jurisdiction constitutional or the it did. But impose the sentence cf. Kuhn, 72, 83, (plurality A.2d at- church (constitutionality requiring of sentence opinion) could raise sua that court illegality didn’t raise tendance denied, appeal allowance Pa.Super. 72 sponte), However, not case with Cooke’s (Pa.1984). such was the claims, had the court ruled even sentencing because unconstitutional, Cooke’s statute sentencing mandatory robbery still attempted term for ten-year prison five- to sentence. See a authorized statutorily have been would (b) first-degree felo- 3701(a)(l)(i)-(iii), (relating to Pa.C.S. § id. first-degree 905(a) (attempt to commit a ny robbery); § id. 1103(2) degree); a of the second felony felony second-degree years). is ten (maximum felony sentence for claims found sentencing The nature of jurisdictional distinguishes them from previous in cases non-waivable Cooke case In all cases, line of and from this as well. cases, claims, if sentencing upheld the earlier court of court, would have robbed appellate for or at least imposing basis for jurisdictional its length one chal- of the same as the a sentence imposing appeal. lenged on Norris a supreme court addressed example,

For rape corrupting separate sentences claim act defendant’s arising from the same violated the minor court found jeopardy. free from double right not in the trial court though raised claim waived even question. put it sentences “legality” because authority at 251 n. Pa. at 319 n. 9. Walker, Commonwealth v. cited for this proposition, court (1976), multiple Pa. 362 A.2d 227 established “beyond the power for the same crime are sentences 468 Pa. at sentence,” and hence unlawful. imposing court Manderino, concur- n. 3. Justice 330 n. at 230 Walker, that “the issue of double ring explained further subject jurisdiction. is similar to an issue of matter jeopardy initially appeal. raised time even on may any It jurisdiction to or sen- Constitutionally, try no court has and Penn- twice, in Federal person tence a violation Id., 336, 468 Pa. at 362 A.2d at 233 Constitutions.” sylvania J., mine). (Manderino, concurring) (emphasis jurisdiction impose a no to more The reason court has legisla offense one sentence for the same then punishment. prov one “It is the only ture has authorized legislature punishment imposa of the to determine ince Wright, v. conduct,” 508 for criminal ble nom. McMil sub (1985), 25, 40, 354, 494 361 Pa. A.2d aff'd 477 U.S. Pennsylvania, 79, 2411, 91 lan v. 106 S.Ct. (1986); of common “[ijndeed, L.Ed.2d 67 with abolition fix for crimes, power penalties no has judiciary law provided by have been they offenses unless criminal 287, 256, Sutley, v. legislature.” Commonwealth (citation J., dissenting) (1977) (Roberts, A.2d multiple pun- on omitted). jeopardy prohibition The double rule of merely therefore same offense is ishments for the the sentenc- “prevent which seeks statutory construction than greater punishment ing prescribing court from Hunter, 459 U.S. v. legislature intended.” Missouri (1983). “The intent 673, 678, 74 L.Ed.2d 535 366, 103 S.Ct. provisions prevent is ... double-jeopardy im- its authorization exceeding legislative court from for the offense.” Com- same posing multiple punishments 131-132, A.2d Williams, 514 Pa. monwealth v. added) (emphasis (quoting Common- 345, 350, Bostic, 500 Pa. wealth Thus, only dual sentences where (1983)). imposition occurred, of a sentence imposition like the one offense has guilt, Paige, see finding without a (1981), 1135, 1140 n. 3 133, 142 n. issue, another simply which is jurisdictional “raise[s] has to act power a court question name for a whether ques- circumstances. Jurisdictional given under a set of only be raised may tions are non-waivable and v. Boer- court but must be.” Commonwealth sponte, sua 11, 422 A.2d at 588 n. ner, at 515-16 n. added). (citations omitted) As the court went (emphasis Boerner, explain sponte[,] not raise issues sua a court should ordinarily propo- stands for the imply do not we Walker ] [ all generally, issues or even sition that constitutional issues, are non- jeopardy issues or all double a consti- The mere fact that issue involves waivable. not mean it should be raised sua right tutional does claims can be waived. jeopardy double sponte. Many sentencing errors are also waivable. Un- types of Many however, for both [Walker], appellant’s sentence der theft, him charging the information theft and retail when act as the basis single these crimes made out but a 282 one which illegal was an charges,

for both impose. court below power beyond ourselves, if it even must raise it may therefore We court or either in the lower raised has never been appeal. n.

Id., 11, 422 A.2d at 588-89 n. at 516 Pa.Superior 281 Ct. Barnhart, v. Commonwealth accord omitted); (citations 11 Com- 616, (1985); 628-29 10, 33, 497 A.2d Pa.Super. 345 Fortune, 441, 444, 451 A.2d monwealth v. Pa.Super. 305 Usher, v. Pa.Super. Commonwealth 246 729, (1982); refused, allocatur 998, 251 Pa.Su- 995, 607, A.2d 602, Bossche (court claim considered (Pa.1977); xxxv per. cf. jeop- violated double reconsideration increasing sentence on modify to file motion failure despite defendant’s ardy court). in trial the Fulton claim that dealt with a case Similarly, in- multiple sentenced unlawfully defendant had been commission of culminate designed to choate offenses Code, explic- 18 Pa.C.S. crime. The Crimes the same convictions, there- and the court multiple such itly prohibits “illegal” despite of the sentences one fore vacated duplic- sentencing. Such object defendant’s failure beyond offenses “are multiple inchoate sentences for itous court and, power jurisdiction con- normal rules therefore, despite our can be considered review.” Commonwealth sponte waiver and sua cerning Ford, v. n. 296-97 Pa.Super. added); accord Commonwealth (1983) (emphasis

1289 n. Watts, 1267, 1269, 137, 140, v. A.2d Pa.Super. denied, (Pa.1983); appeal allowance of Pa.Super. Martinez, 260, 262, 438 v. Bright, see also Commonwealth (1981); 984-85 (1987). 522 A.2d 573 similar jurisdic- doctrine raises a merger common law more than one power impose court’s defect tional for a sentences single “[Mjultiple offense. sentence for a power beyond are are unlawful and single criminal act Campbell, 351 Pa.Su- court,” of the trial

283 added); 63, merger 265 (emphasis 505 A.2d at per. at clause, provides a doctrine, jeopardy merely like the double determining many construction for how statutory rule of to has authorized the court legislature punishments v. criminal act. See Commonwealth single for a impose Williams, 31, (1985) (en 108, 126, 41 496 A.2d Pa.Super. 344 court banc). merge, appellate multiple If sentences v. see Commonwealth sponte, sua should raise the issue (1985); Neidig, 217, 224, 921, 924-25 489 A.2d Pa.Super. 340 Vazquez, v. 86, 91, Commonwealth Pa.Super. 476 A.2d illegal, and, 466, (1984), the sentences are because See legislature. hence, punishments unauthorized Hamilton, v. 1, 7-8, also Commonwealth Pa.Super. (court (1985) sua raised sponte legality 488 A.2d Sentencing Code); sentence not authorized suspended Everett, Pa.Super. 419 A.2d 793 (1980) (court alternate sen- sponte illegality sua raised Code); Sentencing proscribed by tences Fral, 560, 562-63, (1977) 383-84 where no statute autho- (illegality restitution waived sentencing the time of and hence it rized restitution at was per rev’d curiam on power impose), court’s beyond other grounds, (holding A.2d 1186 probation); as condition of restitution had been authorized Olsen, Commonwealth v. 372 A.2d at jurisdiction J., (“No (Spaeth, dissenting) court has impose beyond a sentence maximum for the statutory mine)); 9712(c) (emphasis crime committed.” 42 Pa.C.S. § authority (“There in any impose shall be no court to on an applicable any offender to which this section is lesser sen- (a)____” tence than for in provided (emphasis subsection court shall mine)); 3731(e) (“the sentencing 75 Pa.C.S. person pay order the a fine of not less than $300 of____” a minimum term of imprisonment (emphasis serve mine)).

Perhaps supreme no case from our court illustrates bet- ter than Commonwealth v. Walton the distinction between that, and one truly illegal though a nonwaivable lawful, or unconstitutional consid- impermissible involves that Walton In court found eration. Walton supreme to an order of restitution challenge had not waived alleged statutory lack of on the trial court’s premised restitution, same time impose while at the authority had waived constitutional holding Walton said, objec- raised no The court “Since Walton argument. court, attack only appellate in the trial his basis tions a condition of probation the order of restitution] [with authority.” it legal lacked the jurisdictional ground added). The (emphasis 397 A.2d at 1183 483 Pa. at trial court contention that addressed Walton’s court to restitution as a condition authority impose lacked attack, court holding the that the rejected probation, Id., statutorily grant to restitution. empowered had been However, 593-600, after at Pa. at 1182-84. to the challenge jurisdictional of this non-waivable disposing the court turned sentencing authority, supreme court’s trial that the restitution order in separate argument to Walton’s statute, to and that the if construed arbitrary, question it, process. and violative of due allow was overbroad sentencing attack found this on the court constitutional waived, saying, statute however, at his

As noted Walton previously, the order or hearing failed to to the amount of the object it, ascertain procedure used to appropriateness Thus, in had our although opportunity he the do so. view, issues. The order was within he has waived these and cannot in itself be said authority the the statute the render statute unconstitutional. omitted).

Id., (citations A.2d at 1185 Here, statutory court for the sentence authority the had Hartz, on of his constitutional attacks on and none imposed Sentencing the weapon provision enhancement deadly the the sen- authority that or render would remove Guidelines illegal itself or unconstitutional. tence the Brother that agreement my I in Tamilia Were mandatory prescribes enhancement weapon deadly twenty-four-month every addition to sentence twelve- in some cases guidelines, the by suggested otherwise limit for the legal the beyond the sentence might push that case where in a agree offense, I then would and a consti- “illegal” itself would the sentence happened impli- would enhancement challenge to tutional However, guide- sentence. “legality” of cate the by limits prescribed “within are bound themselves lines guideline any prohibits and this law,” 42 Pa.C.S. § maximum. statutory half the exceeding one from sentence fact, Pennsylvania Com- 303.1(i). In 204 Pa.Code See § the situation envi- exactly Sentencing anticipated on mission trial Tamilia, judges cautioned Judge sioned deadly weapon twenty-four-month the twelve- where to exceed guideline caused statute, statutory sentence allowed longest minimum sentence as enhanced. guideline control over limit would Sentencing, Sentenc- of Pa. Comm’n See (1982); see also Manual 57 Implementation ing Guidelines 348 n. Lowe, (1987). 617 n. only “mandatory” weapon enhancement must “consider” sentencing court that the the sense 9721(b), and sentence, 42 Pa.C.S. imposing guidelines twenty-four adding twelve consider therefore must of a possession sentence for visible guideline months the 204 of the offense. in the commission weapon however, guide- the court, reject can The 303.4. Pa.Code § weapons enhancement apply the lines’ recommendation in recommendation guideline other reject any as it can just Indeed, in majority the discretion. exercise of its sound the apply declined to sentencing judge finds that the this case discretionary this provision, and the the court to declare has not led judge part choice on the “illegal.” sentence itself prescribe man- Sentencing Guidelines do Because sentencing discre- structure merely sentences but datory sentence, issues of a and tion, legality do not affect they other just any as them can be waived compliance with 286 sentence aspects on the of a impinging discretionary

issues Mease, 357 See, v. Commonwealth Pa.Su- can be waived. v. Commonwealth 366, 376, 24, (1986); 29 516 A.2d per. Gallagher, (1986) 510 A.2d 749 Pa.Super. J.) (constitutional (Hoffman, attack (alternative holding) waived). Sentencing Code’s apply guidelines failure guidelines consider the sentencing judge that a requirement considera- imposed without such does not render a for failure if a sentence “illegal,” tion even we would vacate raised properly if the issue were guidelines to consider the Sentencing trial court. The Code also preserved requires reasons on the record sentencing that a court state sentence, a sentence where may for its and we vacate See 9721(b). is, in It comply. court fails to Pa.C.S. § sense, give not to reasons for illegal for the trial court sentence, legal, as the sentence itself is long its but Whetstine, Commonwealth v. See waived. may issue Com- 246, 256-57, (1985); 496 A.2d Pa.Super. Martin, monwealth v. 498, 477 A.2d 555 Pa.Super. Tolassi, v. Commonwealth (1984) (en banc); denied, appeal allowance Pa.Su- Rules of Criminal (Pa.1982). Pennsylvania per. require cases to sentencing many court Procedural investigation report place or his rea- presentence order a one. Pa.R.Crim.P. dispensing sons on the record for 1403(A). sentencing for a “illegal” judge It is that sense ordering or state his reasons for not report to fail to order a one, resentencing defendant can obtain on this basis and a e.g., the issue. See Common- preserves if he properly Carter, (1984). wealth v. 275, 485 A.2d 802 authorized, However, legislatively if the sentence does not make the sentence itself report of such absence if does not raise appellant “illegal” appeal, court and on he waives issue both in the Sourbeer, the issue. 17, (plurality opinion); A.2d 116 Stockard, (1985) 263, A.2d 598 Pa.Super. (plurality Tolassi. illegal the consideration of an Similarly, opinion); to consider a factor that sentencing, in or the failure factor considered, should have does not render the sentence been See, e.g., Commonwealth v. illegal, may be waived. Preston, 524, (1980) n. 488 Pa. 319 n. (alleged improper denial allocution and consideration of waived where not raised juvenile adjudications apparently Walls, Commonwealth v. sentencing); 481 Pa. (1978) (sentencing misapprehension A.2d 1064 under about Commonwealth v. below); not raised the law waived where Shoemaker, (1975) curiam) (per waived); (alleged improper consideration of arrest record Boyce, 450 A.2d 83 Com- waived); (alleged excessiveness sentence Ellison, monwealth v. 439 A.2d 136 (1981) (failure sentencing to consider factors did statutory make sentence defendant it “illegal,” by not waived not sentence). raising modify motion to Similarly, appellant argues here that constitutional con- require sentencing siderations court consider not twenty-four-month the twelve- sentence enhancement provided Sentencing section 303.4 of the Guidelines. appellant arguments, Were correct his and had he raised below, properly vacating them we would be justified deadly weapon sentence that took the into However, again, account. make would not the sen- unconstitutional, tence unlawful or because the sen- itself tence is within the limits established General Assem- not, se, per and is bly an unconstitutional sentence. Cooke, inAs the merits of appellant’s constitutional at- deadly weapon tacks on the enhancement do not render his illegal, the legislature clearly because has autho- rized such a sentence permissible as within the bounds of sentencing court’s discretion for the crime appel- which sentence which lant committed. It is not appellant argues illegal, but a particular feature of the guidelines allegedly offends the constitution. He excused failing should from to raise his constitution- arguments court, al in the sentencing the same as other any on of the Commonwealth attacking the laws

argument first be raised below. grounds must constitutional determination that majority’s of the consequence sentencing statute is of a constitutionality challenge to sua case must raise every this court is that never waived might there be challenges constitutional sponte whatever the defendant was under which guideline or the statute cannot do so whenever we sentenced, at least we must or by finding in this case does majority the issue as the avoid sentencing law of the unconstitutionality alleged chal If constitutional the defendant. prejudice did not below, it to raise them then failure lenges are not waived even if not are not waived they follows that necessarily McCabe, v. Commonwealth court, raised in our cf. (Hoffman, J., (1976) 413, 420, 364 A.2d Pa.Super. curiam, per A.2d 323 dissenting), aff'd must raise such issues should and indeed (1978), and we appeal. them on appellant or not the raises whether result, which impossible and unwieldy The answer to this intend, return to a does not is to majority I am sure Cooke, predated of sentence which “illegality” definition of long from a departed for the first time this court found that a contrary holding cases line of could not waived. sentencing issue constitutional argument does not reaffirm is that principle we should unless it attacks the of the sentence implicate “legality” power or jurisdiction court to impose chal- constitutional appellant’s at issue. Because do not affect the weapons enhancement lenges deadly to the challenges, I find these of his would legality reasons, inadequate claims of excessiveness and as the well to modify. in a motion being presented for not waived go issues Further, appellant’s that all my view based sentence, I his quash of his would discretionary aspects for properly petition for failure to allowance appeal See of sentence. discretionary aspects from the appeal Hawthorne, 364 Pa.Super. v. Tuladziecki; Commonwealth (1987) appeal (quashing A.2d 559 Commonwealth’s apply court’s refusal trial questioning Grove, enhancement); exces- alleging appeal (1987) (quashing A.2d 369 Thomas, siveness); inadequate alleging appeal (quashing A.2d 380 sentence). reasons JOHNSON, JJ., join.

BROSKY KELLY, concurring: Judge, not its but majority the by in the result reached

I concur reasoning and express my separately I to reasoning. write in this opinions by separate the issues raised to address case.

I. appel- conclusion that the agree majority’s I cannot constitutionality the challenge standing lant lacks not he was provision because weapon enhancement The trial court was application. its by affected adversely for the its reasons guidelines, the state required to consider deviation any on the record imposed, explain range. 42 Pa.C.S.A. standard minimum applicable from the see 303.3(2); 303.1(a, h), 9721(b); b & 204 Pa.Code §§ Stevens, v. 14 Commonwealth A.2d Pa.Super. 503 Royer, v. Commonwealth Pa.Super. (1986); arguendo (1984). Assuming provision that the A.2d 453 of unconstitutional, I that the consideration would find was the sentence and guideline the less favorable enhanced guideline unenhanced to consider the more favorable failure give appellant prejudice sentence constitutes sufficient I find that the challenge provision. do not standing to simple expedient declaring by is removed prejudice otherwise, the sen- calculated guidelines that had the been Commonwealth still the same. tence would have been Cf. Johnakin, v. 432, 438, 502 A.2d Pa.Super. statement sentencing anticipatory court’s (despite guidelines if reasons for outside explaining erroneous, to be guidelines was found calculation of remand necessity that pursuaded not panel was Dickison, I note that precluded). this (1984), panel 549, 553, guideline provi- application in the that error Court held the same the fact that rendered harmless sions was guidelines had the been imposed sentence could have been I note that Finally, correctly applied.

Samuels, 128, 161-62, 238-39 relies) panel of this Court (1986) (upon majority it resentencing when remanded sentence and vacated misdemeanor conviction prior found application was unconstitutional provision improperly increasing appellant by prejudiced provision appli- court determined the from which the guideline ranges I no material distinction sentence. find guideline cable case and that alleged in the instant prejudice between being sufficient this Court recognized by previously provisions. challenge guideline similar give standing II.

Nonetheless, Judge I President Cirillo’s persuaded am doctrine that appellant’s of the waiver exhaustive review constitutionality of the challenges to the failure by appellant’s waived provision enhancement were too, I, the issues in the trial court. preserve to raise and Cooke, 58, v. would disavow Commonwealth Pa.Super. 342 (1985). I chal agree non-jurisdictional 492 A.2d 63 Thus, appel I find to sentence are waivable. would lenges en challenges deadly weapon to the lant’s constitutional failure by appellant’s hancement to also have been waived the modify original file a second motion to after See Com imposed. sentence was was vacated and new Cottman, 453, monwealth v. A.2d 40 Pa.Super. 327 476 (1984). however, Judge President agree,

I cannot Cirillo’s that: statement court, however, guidelines’ the recommen- reject can enhancement it can apply weapons just

dation

291 exercise in the guideline recommendation other any reject discretion. sound of its supra, Pa.Superior Cirillo, P.J., Opinion by

Concurring court does sentencing 1141. The 273, 532 A.2d at Ct. at enhance- deadly weapon disregard the discretion have sen- guideline applicable determining in provision ment Pokorny, 384, v. Pa.Super. Commonwealth tence. See Sep- v. Commonwealth (1987); 511, 388-89, 520 A.2d (1986); tak, 380-81, Pa.Super. Johnakin, v. Commonwealth supra; v. Commonwealth 491 A.2d Drumgoole, Johnakin, supra, panel In (1985). explained: this court is sentence that outside affirm a may

While we reasonable, it is Pa.C.S.A. provided guidelines court 9781(c)(3), sentencing imperative it is starting guidelines point determine the correct outside of them. sentencing before Drumgoole, also Commonwealth v. See at 603. Maleno, supra, 1355; 491 A.2d at Cf. 430-31, (prior 502 A.2d 617 record not themselves modi gravity scores and offense scores are court). In deter sentencing at the discretion of the fiable sentencing mining guideline applicable disregard provisions may any court not elect to guideline sentence has been guidelines. only It after that a sen properly determined and considered correctly tencing guidelines court elect to deviate from based may set forth on the records. upon grounds reasonable

III. one issue raised in compelled I feel to address Finally, deadly weapon Judge dissenting opinion. Tamilia’s date of provision effect at the provided pertinent part: case in instant that the defendant or an When the court determines weapon, a as defined in 18 accomplice possessed definitions), during the com- (relating Pa.C.S.A. § least 12 offense; mission the current conviction up months and months shall be added to the 2b sentence which would otherwise have been guideline imposed. 303.4(a). added). (Emphasis Seizing upon

204 Pa.Code § above, emphasized portion the statute dissent reasons:

However, herein lies the crucial distinction between the us; provision Wright provision in and the before minimum sen- provision requires mandatory tence within the term of imprisonment legislation, set by Weapon whereas the Guidelines Enhancement section adds exceed guideline to the sentence and therefore may imprisonment legislature. the term of mandated Taylor, supra. guidelines, The fact in some instances, maximum, go beyond statutory and section l(i) 303. provides imposed the sentence should not exceed cases, the maximum time in permitted by statute those below, offers no relief. As indicated the enhancement is added to the imposed which would have been and, cases, mil result many beyond a sentence maximum, range statutory even if the limited to the statutory period. severity of consequences which could from weapons ensue enhancement is precisely constitutionally requires proof beyond what a reasonable an issue of presents process. doubt due Dissenting Opinion, infra, 367 Pa.Superior Ct. at (Emphasis A.2d at 1159. supplied).

If I agree were to application deadly weapon provision could result in a guideline sentence limit, which exceeds the I statutory would not hesitate to join the dissent declaring deadly weapon enhance- provision ment unconstitutional. The Sentencing Commis- sion’s enabling clearly required act the Commission to “adopt guidelines within the limits established law.” 2154; Commonwealth v. Pa.C.S.A. Washington, 548, 563, Super. J., (Kelly, dissent- However, ing). I find that the dissent errs in two material weapon en- the deadly of application and that respects, provision cannot result in a sentence guideline hancement statutory the limit. in excess deadly weapon stating in the First, errs the dissent sentence.” guideline the “adds to provision enhancement provides: above). Pa.Code 303.2 contrary, To {See the § sentence guideline the determining procedure as shall be follows: and

1) gravity offense prior the record Determine scores____ Chart____

2) Range Refer the Sentence 3) circumstances mitigating if or aggravating Determine

apply.... 4) Range a from Chart:... sentence the Sentence Select 5) in the deadly if was used offense weapon Determine apply provisions (relating to deadly § 3034 enhancement).

weapon Thus, deadly enhance- added). weapon while the (Emphasis sentence “which guideline add to provision ment does imposed,” been would otherwise have add it does not to the pursuant final as determined guideline sentence Rather, the enhance- application 303.2.1 Pa.Code § required step is in the determination of the provision ment Thus, 303.2(5). guideline sentence. Pa.Code § (24) month enhancement of the twenty-four twelve sentence selected step guideline sentence four of, process component determination is a rather than an to, the guideline addition sentence.2 303.2, they 1. 204 Pa.Code existed § § Under Pa.Code 303.4 case, if the at the time the instant guideline provision apply, did not then the sentence was enhancement guideline step four of the sentence determin- sentence selected ing process. provision applied, was If the the enhancement added four; thus, directly step to the selected in the enhancement sentence guideline which "added to the sentence would otherwise have was imposed.” § 204 Pa.Code been 303.4. notes, deadly weapon provision 2. dissent As the enhancement that, provide up "... at to 24 amended least months and months range guideline shall be added to the sentence confinement 303.4(a) applicable.” otherwise been See § would have 204 Pa.Code Second, the dissent erroneously contends that while ranges limit guidelines may guideline to the statutory limits, the guidelines prevent guideline do not from exceeding statutory limit when the deadly weapon guideline ranges. However, added to the 303.1(i) 204 Pa.Code provides: When the sentence exceeds guideline permitted 18 Pa.C.S. 1103 and 1104 to (relating sentence of §§ imprisonment misdemeanors) for felony and and 42 Pa. 9755(b) 9756(b) C.S. (relating partial to sentence of §§ confinement) or total or other applicable setting statute then the statutory limit confinement, maximum term of is the guideline sentence. added).

(Emphasis This section applies to limit the guide- ranges. line not merely guideline the (see In order to reach the result obtained the dissent Dissenting Opinion, infra, Ct. at Pa.Superior 309 & n. 15, 532 A.2d at 1153 & n. court would have to apply provisions 303.1(i) of 204 Pa.Code after § the fourth step guideline sentence determination (selection process of a sentence from the Sentencing Range Chart, 204 303.2(4)), Pa.Code but before the fifth step § (application of the deadly weapon provision, enhancement 303.2(5)). 204 Pa.Code Such a construction of the guide- § in pari provisions line fails to provisions construe materia and construe the provisions so as to give full effect (1 1932), each Pa.C.S.A. violates the presumption § against absurd, constructions which yield impossible or (1 1922(1)), unreasonable results Pa.C.S.A. violates the § presumption against constructions which violate the state (1 or federal 1922(3)), constitution Pa.C.S.A. fails to con- §. strue the words of the statute in accordance with their plain (1 meaning 1903, 1921(b)), Pa.C.S.A. and fails to effectu- §§ (Amended, 2, 1986). January effective The effect of the amendment to 204 Pa.Code 303.4 is guideline § to reverse the order of the determining process sentence in 204 Pa.Code § 303.2. When the provision applies, range the enhancement is added to the selected in step guideline three and then a sentence is selected. It does not affect deadly weapon the fact that the provision compo- is a of, to, nent guideline not an addition sentence. (1 1901). Con- Pa.C.S.A. legislature the intent § ate be rejected. such construction must sequently, intent, and effect meaning, Instead, plain I find that the any automatically reduce 303.1(i) 204 Pa.Code § 204 Pa.Code determined pursuant sentence guideline guideline limit statutory when 303.2 to § limit. See statutory have exceeded the otherwise would 1, 1986). Thus, 204 Pa.Code (September Pa.C.Sent.2d upon guideline limitation 303.1(i) provides absolute compliance legislative which ensures sentences guide- that imperative constitutional and the mandate 42 Pa.C. by law.” the limits established lines be “within reached reject I the conclusion Consequently, 2154. S.A. § the dissent. TAMILIA, dissenting: Judge, proper procedure agree majority I with the Cottman, case, pursuant this following (1984), requires sentence, peti- of an earlier a resentencing, vacation after of the second days filed within ten modify tion to be subsequent Opinion I note in a only would sentence. Broadie, issue, dealing same with the treated (1985), our Court de and held: the matter novo from A a sentence modified sentence constitutes new appeal notice filing the of which the time for a of date (com- to run See Pa.R.Crim.P. 1410 begin will anew. of supported filing the a ment). The same reasons that the regard original motion in sentence modification a motion for new sentence. support filing the such the is original If filed the motion still dissat- party the who sentence, gives motion the sen- the second isfied with modify new tencing opportunity court the first the oppor- trial Similarly, sentence. the court will have that if, party case the who did tunity instantly, is the sen- original file motion is new dissatisfied cases, will give In both the additional motion tence. appellate sentencing court the benefit court’s views of the claims of error as to the party’s new sentence. will particularly Such additional motion be beneficial where, as is also the case the defendant instantly, wishes of the challenge aspect hearing some modification or sentencing court’s reasons for the new sentence rath- Thus, er than simply length sentence. we concluded that Pa.R.Crim.P. 1410 that a requires motion filed modify sentence be with the court ten after imposition within of a modified days to preserve any sentencing However, order issues. since Rule not expressly require procedure, 1410 does this we generate believe that it would be unfair and would unnec- essary post-conviction litigation to enforce this require- Holmes, Commonwealth v. ment retrospectively. Cf (1983) pro- A.2d 1268 (applying spectively only requirements of specificity under Pa.R. 1123). Therefore, Crim.P. we hold that effective 60 days procedure from today the set forth above must fol- to preserve lowed order sentencing issues under Rule 1410. Cottman this appealed

Since case was either before or Broadie Broadie (1985), permitted a direct appeal reconsideration, without a second for holding motion the requirement for filing second motion apply would only prospectively, and only sixty after from days filing Broadie, comes within the Broadie exception case this the appeal quashed. should not be

Even if this Court should hold that a waiver existed failure to file a second reconsideration, motion for appeal properly before us and must be heard on the merits because issue of the legality Norris, v. Commonwealth can never waived. 498 308, 94, 246, Pa. 319 n. Common- 446 A.2d 251 (1982); n. 9 Cooke, wealth v. Pa.Super. (1985). 492 A.2d 63 majority would hold that the issue of the legality of sen- tence is not court, before us because the trial in somewhat ambiguous language, unclear, made it initially, My is view was to be considered.

enhancement factor otherwise. court did that the trial question is absolutely beyond

It factor in enhancement weapons consider and include the trial permit is to otherwise sentencing. To conclude words, enhancement court, provide a on play time, In legality issue. and, the same avoid dealing fashion, avoid with would majority a similar sentenc- section of the weapons legality before squarely placed guidelines that issue was ing when rely would majority the Court en banc resolution. Samuels, 511 A.2d Pa.Super. on v. Commonwealth on the (1986), not be heard holding that we should it neces- absolutely unless is constitutionality of statute necessary I it is to decide the issue. believe sary to decide it raised constitutionality squarely because the issue of to frame and case, en directed counsel this the Court banc cried out for question it is has argue the issue and Taylor, since resolution (en banc); numerous court 500 A.2d lower guidance in their determination appeals require cases McKeithan, the issue. (1986), Taylor, which declined follow determining en banc from other- prevent

does not Court law, wise, considerations and case particularly when there, I Accordingly, are here. would considered reviewed beginning appellant’s the merits of the case address allegation of error in its multifaceted form. first This is an from of sentence entered on appeal judgment Pleas of November Court Common 1983. County Appel- as modified November Chester plea entered a of nolo contendere to two counts each of lant restraint,1 endangerment,2 reckless terroristic unlawful threats,3 aggravated The crimes were assault.4 com- firearm. mitted with a 2902. §

1. Pa.C.S.A. §

2. 18 Pa.C.S.A. 2705. 18 Pa.C.S.A. 2706. §

3.

4. 18 Pa.C.S.A. 2702. facts accepted trial court indicate on 29, 1983, January the two victims the appellant offered assistance as he car experiencing along trouble a roadside. Appellant turned gun victims and direction, in their narrowly missing Then, fired twice them. at gunpoint, the victims were forced to the appellant drive Delaware. victims eventually escaped. 10, 1983,

On appellant November was sentenced to pay of prosecution, $20, costs $1,000 restitution of a fine of to serve not less than eighteen nor more than thirty six imprisonment months and two consecutive sentences of two probation. years 17, 1983, On November appellant filed a motion to modify 22, 1983, sentence. On November court vacated the previously imposed appel- sentence and lant’s minimum sentence was reduced from eighteen to sixteen months with the two sentences of years proba- two tion permitted to run other, concurrent with each con- but secutive with imprisonment. Without filing new motion reconsideration of appellant filed this timely appeal from the modified sentence.

Appellant’s Statement of Questions Presented raises the following issues for our review:

I. IS THE DEADLY WEAPONS ENHANCEMENT

PROVISION 303.4—TITLE 204 CHAPTER 303. §

SENTENCING GUIDELINES UNCONSTITUTIONAL AAS VIOLATION OF PENNSYLVANIA CONSTITU- TION, V, ARTICLE THE VESTING JUDICIAL POW- ER THE COURTS THE OF COMMONWEALTH? IN A. Does the Deadly Weapons Enhancement violate Pennsylvania Constitution, V, Article by usurping power of the Courts? B. Deadly Does the Weapons Enhancement violate the Constitution, Pennsylvania V, 10(c)? Article C. Does the of Weapons lack Enhancement Notice in information due process violate of law and deprive the court of Jurisdiction?

D. Does the failure to indicate the burden proof to be utilized at sentencing violate due process of law? de- specifically to adequately E. the failure Does of law? process due violate Weapon fine Deadly 8-9).5 (Appellant’s brief not be considered need appellant raised issues

Other I resolve would manner in which in of the light here effect here what not need consider We issues. above Tuladziecki, A.2d 17 our decision would case as the basis (1987) has on such a discretionary to the issue as to reach require not us sentence. an aspect of appel- claims issue, the Commonwealth As to the first argu- the constitutional raise specifically lant’s failure to disagree. I a waiver. in court constitutes ments the trial chal- not his constitutional did raise Although appellant sentence, his modify in to or his motion lenges at legality the sen- attack on the of an arguments constitute Cooke, Norris, supra; which can never be waived. tence supra. allegations first of appellant’s merits

Accordingly, necessary precursor to considered. As error will now be Weapon Deadly of the determining constitutionality Provision, with appellee’s we contend Enhancement must not provision of the is constitutionality argument because the trial court the court this time properly before provision at apply or the enhancement did consider modify sentencing. During hearing court requested counsel appellant’s November regard the enhance- its to whether position to state court included in the sentence. provision was ment complied, stating: guideline speaks

THE It’s considered. COURT: enhancement. it to the specifically I intend attach

Frankly, don’t Well, remember these impose. sentence that I what Appel- appellant’s We direct attention to Rule 2116 Rules 5. questions in- which mandates that the statement late Procedure page. must one volved never exceed charges being started out when talking we were about attempt criminal homicide kidnapping, things like eighteen-month that. I think period imprisonment circumstances, rather modest under the although we appreciate charges those are not us. They before are the comes, factual contentions out of which this criminality and I mind, think with that in whether or not we had weapons enhancement, I can’t see a period minimum certainly any less than sixteen in any months turn of events. I there,

So rather figure it’s but don’t intend set separately it I any way because think forth not, whether it or my existed sentence would be un- changed. added) (emphasis (S.T. 11/22/83, p. 4). court,

Earlier originally imposing had stated:

THE COURT: That’s All right. right. aggravated charges assault l’s, which I’m reminded are misdemeanor we impose years probation there five on the 13th both Counts, and 14th the both of which shall run concurrent with the I sentences have previously imposed, those five I have and 1 state year probationary the terms. record included within the I impose, sentence the fire- arm enhancement and have done that within the con- text the imposed sentence on Count No.’s 5 and that address the restraint which we’ve im- unlawful posed sentence on. added) (emphasis (S.T. 11/10/83, 23, 24). p.

This latter from excerpt hearing the testimony ig- was nored the majority, which relies on resentencing the hearing 22, 1983, of November the court did to find that not consider the weapons in forming enhancement I sentence. believe grant that while the a of modifica- tion hearing nullified earlier reference may had the prior proceeding to determine whether there has in fact any change been in thinking implementation or By comparison, sentence. this it clearly becomes evident no factor, there was enhancement weapons to the that as wording, in change slight but thinking, in change same consid- with the thing the same did precisely the court At the November hearing. in previous eration arguments and appellant’s considered the hearing, the court of employ- and, probation because two years eliminated considerations, sentence jail ment the minimum reduced the sentence Only months to months. from 18 after concerning there discussion was further fixed enhancement. weapons application of stating In in there but I rather it’s figure “So November set it separately way don’t intend to because any forth not, sentence would be any I it existed or think whether from the difference unchanged,” there no conceivable "I state for the of November court’s statement I impose, the within the sentence record included firearm context of the have done that within the No.’s 5 and that address the imposed on Counts sentence on.” imposed which we have sentence restraint unlawful imposed by of imprisonment term fully explains This fact, 16 to months. As matter the trial court of no in the trial court deter- guidelines permit discretion given should be mine whether or consideration calculating was used deadly weapon fact Johna- In guideline ranges. kin, 432, 436-437, (1985), the court stated: us, trial court found that appellee

In the case before victim, doing she her this caused had stabbed easily that she have injury, might serious and bodily is her N.T. 7/13/84 at 13. The conclusion killed victim. appellee possessed instrumentality an inescapable that produce or to likely she used in a manner calculated the Accordingly, or trial bodily injury. death serious required apply deadly to enhance- court guidelines. of provision ment Drumgoole, supra ^{[468] [1352]} at 1352 [1985]. cannot,

We in the face of the the judge’s law and own statement, declare that he did not apply Deadly Weap- ons of Application weapons Enhancement. enhance- and 6 to points ment counts 5 a further in that illegality for one guidelines provide only weapons single transaction, and the trial court indicated he applied it to two counts of transaction. The Part comments to VI, Enhancement, Deadly of Weapon Sentencing Guide- (1st “Special Situations., Edition) provide: Multiple lines Convictions. Where there are multiple convictions for crimes arising from same transaction the Deadly Weap- is on Enhancement added only one crime or accomplice defendant possessed weapon.”6 conclude, therefore, I the lower court Weap- included the Enhancement Provision in the as inference well directly, and thus the provision properly is before us for review.

Appellant’s first constitutional challenge that the man- datory nature of the deadly weapon enhancement violates V, 10(c) article 1 and of the Pennsylvania Constitution § § by permitting infringement legislative on the inherent pow- judges ers of to exercise discretion in sentencing.7 This issue was addressed Taylor, supra, where this Court stated,

This issue long has been laid rest in the Common legislature wealth. The the right crimes, has classify Manual, Sentencing Implementation 6. The Guidelines Second Edition 1, 1986) (September has language added similar to the Code section 303.4(c). See itself. section System. 7. Unified § Judicial judicial power of the Commonwealth be shall vested in a judicial Court, system unified consisting Supreme of Superi- Court, Court, or the Commonwealth pleas, courts of common com- courts, munity municipal city and traffic courts in the of Philadel- phia, may provided such other courts as justices be law and peace. justices peace All jurisdiction courts and their shall judicial system. in this unified 10(c) Supreme power rules, Court shall prescribe general have the governing practice, procedure courts, and the justices conduct of all peace process orders, serving enforcing all officers or judg- any or justice ments peace,____ decrees court or

303 can, fit, if maximum, it sees and likewise designate al., Wright, v. et the minimum. Commonwealth name (1985). or wisdom necessity A.2d Pa. 494 354 is a for its determination. doing question of so punishment to be determining the extent power of now, not, constitu subject and is not inflicted was length fix the limitation, could legislature and the tional offense, particular conviction of a imprisonment upon invariable, fit, or rigid if the term making, it saw good judgment by judge, for use of allowing room attending circum the trial with acquainted by made Sweeney, 550, 127 A. Commonwealth 281 Pa. stances. Glover, (1924); (1959).... Id. Accordingly, at 500 A.2d at 113. merit.8 argument is without appellant’s the Commonwealth Appellant argues also because seeking notice in the information that it was provide did not deadly weapon of a enhancement application of due of law. This process there has been violation plea no entered a of nolo argument Appellant has merit. all counts included counts 13 and contendere to assault). counts of both were (aggravated Specifically, Thus, counts 13 aggravated deadly weapon. assault with a crime, included, specific and 14 as elements of the recognize use of allegation deadly weapon.9 We for weapons provision provides exceptions an inherent application to its those crimes which have as charge, weapon, including element to the the use of a 2702(a)(4), assault, aggravated Pa.C.S.A. stated § However, we the information filed above.10 believe taking must read in its into totality be charged. consideration the interrelated nature of the crimes validity Sentencing 8. For the constitutional Guidelines from inception their as to whether their met the enactment constitutional presentment, Kuphal, see Commonwealth v. test (1985). 500 A.2d 1205 Pa.C.S.A., 2702(a)(4). 9. 18 § Guidelines, 9721; 303.4(b). Sentencing

10. Pa.C.S.A. § tried All of the same incident and arose out were prepare together thereby placing appellant on notice respect deadly weapon implicated a defense with the Bell, Pa. the crimes. See (visible firearm, of under Man- possession Act, 9712(b), Minimum Pa.C.S. does datory Sentencing § possession of a firearm as an element of the require requires application only crime and notice of of the section factor). sentencing at when it a this becomes We conclude notice adequate give appellant possible weapons of a enhancement at The record does not sentencing. here given plea, disclose such notice was the whether before although concerning there was abundant discussion en- during sentencing procedure. hancement the Because the informations contained of use dangerous averments of a instant weapon, distinguished case can be from the Taylor, situation in supra, where Commonwealth at- go tempted beyond in the and allegations information proceeded proof to offer use of weapon the first time at sentencing.

Appellant alleges further Weapons Enhancement Pro- vision, in failing to indicate burden of proof to be utilized sentencing, at is an unconstitutional violation of due process. quantum issue of of proof timing presentation its importance of crucial in this matter. procedure to the Contrary established for mandatory sen- tencing, 9712(b), 42 Pa.C.S.A. 9713(c), 9714(c), and § § § 9715(b),11no mention is made whether not posses- § or sion of a required should be to be at proven trial beyond a reasonable doubt as additional element of the crime or charged,' at least to be during established 11. 9712 Sentences for offenses committed with firearms. (b) sentencing. Proof § 9713 Sentences for public transportation. offenses committed on (c) sentencing. Proof at § 9714 Sentence for subsequent second and offenses. (c) sentencing. Proof at imprisonment § 9715 Life for homicide. (b) sentencing. Proof at of proof, standard recognizable aby

sentencing proceeding (as in the of the evidence preponderance it be whether sections, a reason- beyond or supra) mandatory doubt. able visible require proof immediately above

The sections behavior, possession of during prohibited firearm term, possession, delineates precisely more (See discussion below proof. capable easily renders it remains whether question weapon.) possession sentencing and at trial or at established proof should be requires these issues To determine applies. standard what factors can consti- ascertaining whether “A crime or public themselves. tute crimes in and of in violation of a law committed or omitted offense is an act annexed, it, upon and to is commanding or which forbidding either, punishments; of or a combination ... conviction Dictionary, ed., Black’s Law (5th 334 (enumerated)____” Dillworth, 431 Pa. 479, 246 A.2d 1979); Law, 4, 22 C.J.S. Criminal 1, 2; (1968). p. p. § Smith, Commonwealth v. See 1983). (5th reprint Shimpeno, 511, 516, (1920); 109 A. 786 or 104, 114, (1946). If it is a crime 50 A.2d 39 crime, a reasonable proven beyond it must element of a be 1068, In re Winship, 358, 364, 90 S.Ct. 397 U.S. doubt. Commonwealth v. (1970); 25 L.Ed.2d Stof- (1974).12 fan, in plays The reasonable doubt standard a vital role procedure. prime American scheme of criminal It is a reducing resting for the risk of convictions instrument a requirement proof beyond factual error. The reason- procedure able doubt has this vital role our criminal Stoffan, citing: Winship. 12. Commonwealth v. In re "The Due Process protects against Clause the United States the accused [of Constitution] except upon proof beyond every conviction a reasonable doubt of fact necessary charged.” with which he is to constitute the crime See also Stoffan, supra, Pa.Superior Ct. at 140-41 n. 323 A.2d at 323 n. 10; I, Pa. Const. art. 9.§ prosecu- accused, during a criminal cogent reasons. both importance, immense tion, stake interests has at upon liberty lose his may he possibility of the because he would be certainty and because conviction supra. Winship, In re his conviction. stigmatized “that, a 12 hold, where on to Winship went Court stealing act of charged with old child year as six long years, for as him to confinement renders liable (even it was though process due then, matter of as a him matter) against the case ... a civil characterized as In re Win doubt.” a reasonable beyond proved must be at 25 L.Ed.2d S.Ct. at ship, supra, 397 U.S. omitted). (Citation could be convicted Here, that a defendant it is conceivable a reason- beyond by proof the court charges on the before then proof, on that but doubt, probation sentenced able prison a sentence only because receive requirement no it with required section Thus, the process. due comply with proof that would Winship detailed importance” of extreme “matters doubt, may above, a reasonable requiring proof beyond summarily, sentencing guidelines, disposed under does proof. This of the standard no consideration Even when justice. standard of comport with our crime, if result consequences designated is not charge crime, requires process due procedural as a treatment a crime. proven it as would Pennsyl- Court of Supreme result conforms with the This al., et Pa. Wright, decision in vania’s the (1985). The considered whether A.2d 354 Court sentence Pa.C.S.A. provisions, minimum mandatory (Act. 1982) process by due No. 54 of violated 9712-9718 proof. Finding the minimum standard of for a providing mini- satisfied the of the evidence standard preponderance legis- in the employed due requirements process mum scheme, the Court stated: mandatory sentencing latures the discre- merely limit 9712 is of section The effect of minimum a court in the selection sentencing tion of the visibly defendant the determined that it is sentence where of the crime. during the commission a firearm possessed remains imprisonment term of permissible maximum right to cognizable no has The defendant unaffected. this although finding particular a leniency. Thus conse- have serious may present factor is that a defendant, do believe the we quences for in a proceeding is a section subject defendant from that of other distinguishable position significantly sentencing phase. during defendants the convicted 40-41, 494 A.2d at 362. Wright, supra, However, the herein lies the crucial distinction between us; the provision Wright provision in before a sen- mandatory provision requires sentence minimum by legislation, set imprisonment tence within the term Weapon Enhancement section adds whereas Guidelines guideline may to the exceed the and therefore legislature. Taylor, term of mandated imprisonment instances, guidelines, go in some supra. The fact that maximum, 303.1(i) pro- and section beyond statutory exceed maximum imposed vides the sentence should not cases, no relief. permitted time statute those offers below, added As indicated the enhancement is to the sen- tence, and, cases, which have been imposed many would this maxi- beyond statutory will result a sentence mum, period. if is to the range statutory even limited could consequences ensue from severity re- weapons constitutionally what precisely quires proof presents a reasonable doubt beyond issue of due process. enhancement, Deadly provides:

Section 303.4 weapon a.) When the court that the defendant or an determines accomplice possessed during ... offenses; current commission conviction at least to months shall up months and confinement would otherwise sentence which guideline added to the imposed, have been added)13 (emphasis scores, gravity In to crimes and offense specific relation range and in some mini- higher aggravated at least mitigated ranges, analysis guidelines mum and that in numerous cases the enhancement will cause a shows mínimums and máximums beyond statutory sentence amendments, Commission, changed Sentencing in its has 13. The here, Guidelines, 303.4(a) applicable provision. § this In the 1982 up 24 months confinement shall reads at least 12 months and to “... guideline otherwise have been be added to the sentence which would added) (emphasis imposed, January 1986 amendment reads "... at least 12 months and up guideline to 24 months confinement shall be added to the added) range applicable, (emphasis which would otherwise have been Commission, page in its comments 303.4 Pa.C.Sent.2d 1, 1986), recognized (September attempted the distinction and problem presented eliminate the in the 1982 version. There it stated: original guidelines clarify This subsection of the was amended to language provide logical process applying and to a more Previously, interpretation weapon enhancement. a strict sentence, language require judge to decide on a and then to range finally to 24 add a of 12 months to that range from the which resulted. The choose a sentence amended language requires range to be added this, directly ranges range doing to the in the sentence chart. After ranges appropriate the court considers the modified and chooses the sentence. seriously It is doubted that this amendment will cure the inherent cases, illegal problem guidelines sentences in those unless the specifically application state that whenever the of the enhancement statutory would result in a combined sentence in excess of the sen- limit, tence, statutory the sentence would be the I am aware that in 303.1(i), Sentencing attempts its comments to section Commission clarify problem, adopting position this of Commonwealth v. 166-68, McKeithan, belatedly applying sentencing cap weapons to the enhancement. language The fact remains that with the of the enhancement section in case, present subject cap. it is not to a It must be remembered provided by legislature.14 provide that when guidelines while the instructions of the limit, statutory call for more than the guidelines ranges no limita- imposed. maximum is There is only statutory enhancement, that, so application tion on the instructions, guidelines accordance the enhance- with though the maximum imposed ment sentence must be even given. If this is the statutory already sentence has been case, separate the enhancement takes on the effect of a a producing crime or the elements of crime (improperly), a requiring proof beyond additional reasonable Winship, above. See expressed the reasons doubt and Wright, supra.15 Stoffan “A", following point,

14. The is an illustration of this see Attachment (all months): computed time is Permitted Offense Prior Record Score Permitted Sentence Excess Over Statutory Aggrav. Classification Min. Guideline Plus Gravity Statutory Range Range Sentence Score Sentence Enhancement Limits Min/Max (Months)__(Months) (Months)_(Months) 12-24 Fl-120-240_10 0-6_0-6 120_132-144 5-6 Fl-120-240_9_ 112_124-136_4-16 4-16 Fl-120-240_8_-_6_ 112_124-136 F2- 60-120_8 1-6_0-6_54_66-78_6-18 F2- 60-120_7 4-6_3-6_49_61-73_1-13 F2- 61-73 1-13 60-120_6 5-6_5-6_49 F3- 42-84 4-6_3-6_34 46-58_4-16 F3- 46-58 4-16 42-84_5 6_4-6_34 F3- 42-84_4 _5-6_34 _46-58_4-16 Ml- 9-21 30-60_5 4-6_4-6__27_39-51 Ml- 9-21 30-60_4 5-6_5-6_27__39-51 0-6 12-24 *MIl-12-24_6-3-2 0-6_12_24-48 0-6 0-6 12-24 *MIII-6-12_Any 6_18-30 * underlying The misdemeanors have a enhancement ratio to the sentence and disproportionate greater, much, in most cases the enhancement sentence will be as if not than the statutory focusing danger resulting maximum. This is explained the Commission as on the fear and during being crime, from the of a on the victim the same in a possession weapon impact as in assault simple robbery. Sentencing 15. The Commission has not dealt with this issue. In the amendment, 1, 1986) (September p. Pa.C.Sent.2d Commenta- ry, it states: considered, rejected, specifying The commission and the standard proof deadly weapon for the enhancement and for all other guideline specify elements. The commission chose not to a stan- authority dard it because doubted that it had the to do so. The has to do unconstitutionality claim of with The final deadly weapon define adequately specifically failure process due law. comport its so as to possession Taylor, grounds court on other In affirmed the lower we appli- As its issue in considerable detail. analyzed this but herein, raised properly to this case and appropriate cation is Taylor, and incor- and conclusions of I the rationale adopt as follows. porate them

“A serious concerning exists the constitutionali- question section, it provided In this provision. applying of this ty Guidelines, 303.4: Sentencing at 42 Pa.C.S.A. § enhancement: Deadly that the defendant or an (a) the court determines When defined in 18 deadly weapon as accomplice possessed definitions), the com- (relating during Pa.C.S.A. § offense; least of the current conviction mission added to 24 months confinement shall be up months and would otherwise have guideline to the imposed. been crimes which (b) exceptions for those provides

Section the use of a charge, an inherent element to the have as 2702(a)(4), aggravated as- including 18 Pa.C.S.A. weapon, § sault, as discussed above. section, operative reading requirements

‘In of this deadly weapon.” “possessed term becomes outset, nothing is in the enhancement “At there To ascer- meaning possession. of section which clarifies must look to meaning ‘possession’ we statutory tain 301, having culpability. to do with Section 18 Pa.C.S.A. § 301(c) provides: act, act.—Possession is an within the

Possession as an section, pro- if meaning possesser knowingly of this or of its thing possessed was aware cured or received period for a sufficient to have been able control thereof possession. his terminate aspects for this and other

commission concluded that the standard evidence, although preponderance of the in was a explicitly held this. it could find no case which as well knowledge and relates to is broad This definition of that of the breadth In terms control. custody weapon enhancement to the applied definition as By the section viable. to make factor, is far too broad it of a definition, possession to have possible it is of this virtue of a in seat is the back weapon when deadly weapon car, in of a under the seat car, glove compartment, in the room case, even in a or trousers, a brief concealed one’s arrested. a defendant is place from the where away miles numer- comprehend it could is so broad The definition in hand and was situations where ous during the course to be used not, fact, contemplated the defendant subject would activity, yet the criminal section, therefore, does not This penalty. the enhancement of a preciseness required test the constitutional meet fatal. ‘A statute vagueness and its statute criminal doing of an requires or either forbids (guideline) which intelligence that men of reasonable vague so act terms as to meaning and differ its necessarily guess must [as to] process of due the first essential application its [lacks] Baggs, omitted) (Citations law.’ (1978). Pennsyl- Constitution, I, 9, provides that ‘... Article vania cause of the nature and to demand right accused hath a ... lacking him____’, notice of which is against the accusations Broughton, here. See Commonwealth (1978). A.2d 1282 enhancement weapon that a rational appear “It would imme- one of possession that the require would provision fact, where, weapon in physical possession diate crime in the commission of a or threatened being used weapon. the use of a intrinsically not involve did which construction, it is not a calls for a criminal statute [W]hen that greater reason supported by is construction reasonable, in which, operates if that one prevail is to but liberty. of life and favor Exler,

Commonwealth 89 A. Glover, supra 546, 156 (1914); quoted as [397 Pa.] at 116. relating is specificity required of how example As an 907(b) the Crimes behavior, of to criminal possession crime, provides: of Code, instruments Possessing a misdemeanor of commits weapon.—A person Possession or a firearm other if he degree possesses of the first intent to employ his with upon person concealed weapon criminally. it of its location and specified is terms both

Possession specificity every intent, type thus provides and Firearms Similarly, statute Uniform requires. criminal Code, provides: Act 6105 of the Crimes at § firearm, person etc.—No to own a Former convict or else- convicted in this Commonwealth has been who firearm, or own have of a crime of violence shall a where or his possession in his under control. one confusion, speaks statute possible In any order avoid controlling, possessing a as well as owning firearm it make clear possibilities three alternative giving any no have domin- that under circumstances can convict or weapon. owning, possessing The definition of ion over a specific enough every apparent to cover even- controlling relating weapon, to dominion a convict over tuality by' question concerning or any confusion thereby eliminating to a relating weapon. or lack of them rights defendant’s problem a definition so there is a specific, Even with or control. establishing possession Boatwright, 453 A.2d 1058 Townsend, Commonwealth v. Pa. 237 A.2d 192 presence mere of a defendant in an (1968) held that a violation when there prove was insufficient automobile in the weapon was a found vehicle. power had to control prove

must defendant both intent to exercise that control. firearm and “Thus, provision if the were to be physical control for the possession construed define use, it meet would the test consti- purpose of immediate posses- concept more than the broader tutionality clearly in a sion, place, mean control remote which could even the crime the time of use at capability nor neither intent committed. being charged was Firearms Act 6103 of the Uniform analogy, “In further § provides: shall any person If with firearms: committed

Crimes when a crime of violence attempt to commit commit or of this provisions to the contrary a firearm armed with punishment provid- in to the he addition subchapter, may, this crime, provided by also as punished be ed for the subchapter. weapon purpose intended of closer to the appears

This However, Sentencing Code. of provision enhancement 6103 is much more seen, provision can be § interpretation than capable of reasonable specific Sentencing clarify To further 303.4 of the Guidelines.5 § intent, provides: Evidence the intent § committing attempting or person In of a for the trial violence, the that he armed crime of fact commit a used, and no firearm, attempted or to be had used same, inten- shall evidence his carry license to crime of violence. tion to commit said offenses but sim- separate These sections do not constitute offense does not weapons that a ply provide violation sentencing. merge purpose with the crime violence 162, 460 A.2d 816 Flynn, Simpson, (1983), effect, (1982). give legal necessary To them it is Thus, charged. they provide relate them to the crimes designed the sentenc- purpose an almost identical sections, ex- commission for the ing lacking guidelines. cept they specificity contain the pronouncement by Legislature “The most recent minimum sentence regard mandatory this is the scheme of violations, 42 relative to certain Crimes Code provisions 1982). (Act 9712-9718 No. 54 of Section Pa.C.S.A. §§ firearms, provides: for offenses committed with Sentence shall, if (a) person ... Mandatory sentence.—Any during a firearm the commission person visibly possessed of at minimum sentence offense, to a sentenced the be of notwithstanding any total confinement of years least five the con- statute to or other of this title provision other trary. recently passed has Pennsylvania of Supreme

“The Court provision sentence mandatory of the constitutionality on the supra. Wright, constitutional. above, ruled it and from the Guide- differs provision sentence mandatory The following re- in the section Enhancement Weapons line spects. firearms, the only to applies mandatory sentence

1) The weapons. apply guidelines possession’, requires ‘visible sentence 2) mandatory The ‘possession’. guidelines a minimum sentence requires sentence 3) mandatory The by legisla- set imprisonment of term the maximum within adds enhancement section tion, guidelines whereas exceed may therefore sentence guideline legisla- mandated imprisonment of maximum term ture. mini- for a provides sentence section

4) mandatory evidence, of the preponderance proof, mum standard none. provide guidelines whereas supra, Court, through In Wright, speaking Supreme Nix, held: Justice to limit the discre- merely is section 9712

The effect of a minimum in the selection of sentencing court tion visibly that the defendant it is determined where the crime. commission of during firearm possessed remains imprisonment term permissible maximum unaffected. moreover, proceeding, of a section

In the context is a of a firearm possession slight. is Visible risk of error objective susceptible issue straightforward simple, suspicion conjec- potential There is scant proof. addition, In decision. into the factfinder’s enter ture will possession meaningful evidence visible amenable to review____ appellate

Id., 40-41, Pa. 362. A.2d at if provi-

“It is submitted that sion is to meet the test of it must constitutionality, have language specific to delineate the intent of the guidelines application, and its similar to that stated in the Crimes Code for weapons offenses.

“If interpretation possession was, fact, the broader intended, then it was obviously unconstitutional because to relate a totally activity possession irrelevant such as of a weapon, crime, or may may not be a to the criminal activity, requires a nexus that rationally necessitates en- hancement of the sentence for the crime committed. 6102, Definitions, "5In Section ‘Firearm’ and ‘Crime of Violence’ clearly

are also defined.” After detailing numerous findings, wherein the courts have determined everything dogs from to women’s shoes to deadly weapons, we went on to say,

“In this regard, combining ‘possession,’ the term capable interpretation, of broad and ‘deadly weapon’ which must be construed in circumstances, relation to use and the sentenc ing commission has in creating succeeded a incapable term specific of definition and much too broad for constitutional certainty. Since the Guidelines do not include the limiting term ‘control’ in defining possession, under those circum stances appellate our required courts have proof of a or i.e. the ‘exercise of ‘knowledge’ element; ‘awareness’ conscious dominion control,’ added). or (emphasis Thus, proof possession (physical) required is not pursuant 301(c), See, supra. e.g., Rambo, § 334, 337, (1980). Pa. 412 A.2d 535 Commonwealth v. Watts, 137, 139-140, 319 (1983). Commonwealth v. Burkley, 297 Pa.Super. Cf. (1982). Also, 443 A.2d 1182 in every crime in delineated Crimes Code related to weapons possession, and there is a logical reasonable and nexus between the two and the Here, believe sought prevented. to be we behavior and the provide certainty sentencing guidelines fail provision nexus this enforceable. reasonable to make due a criminal that, matter of process, It is settled as a give ordinary ‘fails to (guideline) person that statute is his conduct contemplated fair notice that intelligence omitted), (citations (guidelines)’ by statute forbidden encourages and erratic arbitrary indefinite ‘it or is so convictions,’ (citations omitted) void arrests and vagueness. Franklin, 379, 390,

Colautti 99 S.Ct. 439 U.S. above, Likewise, (1979). as stated L.Ed.2d provided permissible imprisonment in the term provision Wright, supra.” cannot stand. See statute, supra, 117- Taylor, 614-22, 500 A.2d at would, therefore, I hold that because the 122. Sentenc- enhancement section Pa.C.S.A. weapons beyond result a sentence 303.4 could ing Guidelines § cases, imposed many and because maximum law “weapon” vagueness “possession” the terms intent, enhance- weapons to use or specificity lack of constitutionality. test fails meet ment section Sentencing cognizant Commission is that the It is evident Guidelines, large been by in the which have and problems clarifications effective, the refinement and remarkably by Weapons amendments. As to the provided by made provision, I section can be Enhancement believe requires proof statement that simply by adding a viable possession visible weapon in the commission of a the enhance- crime, upon application and that providing statutory factors, if total exceeds the ment the combined limit, imposed.16 limit shall be only statutory problems relating posses- legislature responded to has to 16. The supra, repeated by by Taylor, above raised this writer in and sion 1986, Thornburg signed by into law Governor of Act 165 of enactment ' 51, Bulletin, 16, Pennsylvania Vol. No. In the on December 1986. 20, 1986, 4867-4868, pp. is it stated: December deadly weapon of 1986 clarifies issues related to the Act 165 also by judges in their had been raised three of nine enhancement which appellant sentencing contends the court erred in Lastly, to disclose its reasons for failing fully adequately on the in failing fully sentence record also to consider all the circumstances and available alternatives. appellant’s After careful review of motion for reconsidera- tion of sentence and the of the I testimony hearing, am arguments satisfied that both only have been waived since claims may raised the trial court be considered on appeal. Frederick, Commonwealth v. 475 A.2d Commonwealth v. Stufflet, (1984). Pa.Super. 516, remand, appeal (1981); 436 A.2d 235 322 Pa.Super. after (1981). 469 A.2d 240 above, For the reasons stated I the judg- would reverse ment of sentence and remand this case to the court below for resentencing.17,18 plurality opinion Taylor, in Commonwealth v. (1985)____ provides guidelines’ deadly A.2d 110 that the [I]t applies possessed enhancement “for defendants who a con- so, doing application viction offense”. In it removes the accomplices____ “possessed”, term as used [T]he guidelines, in the act and in the is defined as "on the defendant’s person physical or within his immediate control”. point distinguished Judge I

17. would out that our President has concurrence, argued circuitously starting proposition in his with the relating legality that a constitutional claim to the of sentence can appeal, sponte, never be raised on or sua unless raised in the court " jeopardy below but then retreats to accede double cases ‘the jeopardy subject issue of double similar to issue of matter jurisdiction. may any initially appeal. It be raised at time even Constitutionally, jurisdiction try person no court has or sentence a ” twice, Pennsylvania in violation Federal and Constitutions.’ P.J., Cirillo, (Concurring Op., p. citing Commonwealth v. Walk- 323, 336, er, (1976) (Manderino, J. Concur- Cirillo, P.J.). ring) (emphasis precisely point added This is this is, attempted throughout, any writer has to make illegal, subject jurisdiction which is the court below has no matter and, therefore, may any enter such a sentence it be reviewed at time appellate process, in the whether or not raised in the court below. If instance, legality we do not face the issue of of sentence in the first we required will be it in the face second or third instance reason of proceeding. abrogate right illegal a P.C.H.A. We cannot to review denying right Corpus. sentences without to Writ of Habeas J., Concurring Opinion by Kelly, commenting 18. As to the on this guidelines applied writer’s evaluation of the manner in which the are enhancement, including weapons to reach the final provisions guideline Judge Kelly "Such a construction states: pari and construe provisions [sic] materia fails to construe presumption give effect to each ... violates provisions so as to full absurd, impossible or unreasonable yield against results____ constructions J., 1150.) p. That is by Kelly, (Concurring Opinion guidelines are point. mandated precisely The results require Judge Kelly to against law and for when measured absurd plainly consequences of what was turn to avoid that we twist and beyond principle pari goes erroneously provision, written judicial requires no less than a statutory It construction. materia or bring illegal it into conformance plainly section to rewrite of placed in not be The trial courts should principles of the law. stated we, Merlins, and defendants and judicial nor should position of they how at the law to determine be able to look their counsel should question as whether is a particularly where there proceed, should plea. negotiate guilty they go or to trial should SATURDAY, 23,1 JANUARY PENNSYLVANIA VOL. M2 NO.4. BULLETIN. SATURDAY, 23,1M2 JANUARY BULLETIN, 12, NO. PENNSYLVANIA VOL.

Case Details

Case Name: Commonwealth v. Hartz

Court Name: Supreme Court of Pennsylvania

Date Published: Sep 1, 1987

Citation: 532 A.2d 1139

Docket Number: 3274

Court Abbreviation: Pa.