537 A.2d 1390 | Pa. Super. Ct. | 1988
This case comes to us on appeal from the Court of Common Pleas of Schuylkill County and involves defendant-appellant’s contentions that the offenses of aggravated assault and attempted murder should have been merged by the trial court, and that the court erred when it applied the weapons enhancement provisions of the Crimes Code to the defendant’s sentence.
On July 27, 1986, the appellant shot his girlfriend in the back after she refused to continue seeing him. Appellant was charged with Criminal Attempt to Commit Murder, Aggravated Assault, Recklessly Endangering Another Person, and Simple Assault as a result of the incident. On December 30, 1986, appellant signed a written plea agreement which expressly contained a twelve to twenty-four month additional prison sentence for Weapons Enhancement. The trial court refused to accept the plea agreement and deferred sentence pending a pre-sentence investigation. Appellant pled guilty and on June 1, 1987, the court sentenced him to $40,000.00 restitution (the victim was partially
In Commonwealth v. Lee, 278 Pa.Superior Ct. 609, 420 A.2d 708 (1980), we held that the filing of a motion requesting sentence modification and the fixing of hearing date thereon do not toll the time for filing an appeal from a judgment of sentence to our court. In the instant case the trial court not only fixed a date for hearing the modification motion, but also actually conducted the hearing thereon prior to the expiration of the thirty (30) day appeal period. Nevertheless, the sentence was not modified within the thirty-day appeal period. As such the thirty-day appeal period was not tolled and the appellant was correct in taking the appeal when he did. See Pa.Rule Criminal Procedure ÍJ^IO. As such, jurisdiction over this issue is properly before this Court.
Appellant’s first argument is that the offense of aggravated assault merges with the offense of attempted murder for sentencing purposes. The trial court so found in its November 20, 1987, order (which was entered subse
Appellant’s next contention is that the sentence should not have been subject to the Weapons Enhancement provisions of 204 Pa. Code Section 303.4. Appellant argues that since the wording of the criminal information contains an allegation of the fact that appellant shot the victim with a .9 mm pistol that the use of the weapon was an essential element of the crime of attempted murder and that, therefore, the Weapons Enhancement provisions of the law do not apply to this case. In 204 Pa. Code Section 303.4(b) the act provides that there shall be no weapons enhancement for convictions of aggravated assault, the Pennsylvania Uniform Firearms Act, violations of the crimes codes relating to possession of instruments of crime or prohibited offensive weapons or of any other offense for which possession of a deadly weapon is an element of the statutory definition. We do not agree with appellant’s contention regarding this issue. A person commits homicide if he intentionally, knowingly or negligently causes the death of another human being. 18 Pa.C.S.A. § 2501. A person commits criminal attempt when he does any act which constitutes a substantial step toward the commission of a specific crime with the intent to commit that specific crime. 18 Pa.C.S.A. § 901(a). Thus, while the shooting of another person may indeed constitute the means by which a person attempts to cause the death of another person the use of
Finally, we find that the plea agreement form itself contained notice to the defendant that his sentence was to be increased by the Weapons Enhancement provisions of 204 Pa- Code Section 303.4(b). Appellant signed this agreement. He was provided adequate notice of the Commonwealth’s intention to seek an additional sentence pursuant to its terms.
Judgment of sentence is vacated; the case is remanded to the trial court for re-sentencing consistent with this opinion. Jurisdiction relinquished.