COMMONWEALTH оf Pennsylvania, Appellant v. Jonathan Nelson SMITH, Appellee
No. 211 MDA 2016
Superior Court of Pennsylvania
Submitted July 5, 2016 Filed November 29, 2016
Reargument Denied February 2, 2017
181 A.3d 1102
Indeed, the bar itself actually arose out of a public demand for the exclusion of those who assume to practice law without adequate qualifications therefor. To practice law a person must demonstrate a rеasonable mastery of legal skills and principles, be a person of high moral character and maintain a continuing allegiance to a strict code of professional conduct. These stringent requirements are intended to protect and secure the public‘s interest in competent legal representation. It is to guard against the impairment of this interest that the practice of law by persons who are not authorized to do so is forbidden.
Dauphin County Bar Ass‘n v. Mazzacaro, 465 Pa. 545, 351 A.2d 229, 232-233 (1976) (internal citations and quotation marks omitted) (emphases added).
Thus, it is apparent that the intent behind this statutory provision is protection of the public. Protection of the public is accomplished by preventing those who are not attorneys from practicing law. Harkness, 920 A.2d at 167. Accordingly, one who is not an attorney yet practices law violates this provision. There is no additional requirement that the individual do so “in such a manner as to convey the impression that he is a practitioner of law” in order to be convicted under the statute.
Consequently, we conclude that the trial court erred by holding that in order for Pilchesky to be convicted of the unauthorized practice of law, the Commonwealth is required to establish that Pilchesky practiced law and that he did so “in such a manner as to convey the impression that he is a practitioner of the law.” Should the Commonwealth establish beyond a reasonable doubt that Pilchesky practiced law and was not an attorney, such evidence would be sufficient to convict Pilchesky of the unauthorized practice of law under
Order reversed. Matter remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.
Lee Mandarino, Camp Hill, for appellee.
BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.
OPINION BY BOWES, J.:
The Commonwealth appeals from the January 4, 2016 judgment of sentence and challenges the trial court‘s refusal to impose the deadly weapons enhanсement. We affirm.
The underlying facts of this dispute are as follows. During the evening of September 17, 2014, Jonathan Nelson Smith, Appellee, frequented a number of bars in the Hanover area following a dispute with his girlfriend. After consuming five to seven alcoholic beverages, Appellee approached another patron in order to buy some crack cocaine. This individual, along with two other men, agreed to provide Appellee with the illicit drug, but required a ride to York to obtain it. Appellee agreed to transport the individuals.
While en route to York, Appellee became distracted by one of the passengers and struck a pedestrian, Scott Maitland, with his vehicle. At the time of the accident, Mr. Maitland was crossing the street in a well-lit crosswalk equipped with flashing lights. Mr. Maitland suffered fractures to his skull, nasal bones, ribs, tibia, and fibula, requiring extensive medical treatment, and resulting in permanent injuries. Following impact, Appellee continued along his course, and ultimately, abandoned his vehicle in a parking lot.
That same morning, in an attempt to evade prosecution, Appellee reported his car stolen to the State Police. The State Police transferred the mattеr to Hanover Borough Police, who contacted Appellee at his residence. After a short discussion in front of his home, Appellee agreed to accompany the officer to the police station. An interview ensued wherein Appellee, at
The Commonwealth thereafter charged Appellee with, inter alia, aggravated assault and driving under the influence of alcohol (“DUI“). On October 30, 2015, Appellee entered an open guilty plea to those charges, and the court nolle prossed the remaining сounts. Prior to sentencing, the Commonwealth recommended that the court impose the deadly weapons enhancement (“DWE“) to Appellee‘s sentence pursuant to this Court‘s holding in Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa.Super. 2014) (en banc) (”Buterbaugh“), wherein we determined that the DWE could apply to injuries caused by a motor vehicle. The court declined to employ the DWE, and instead imposed a sentence of six-and-a-half to fifteen years incarceration, plus costs and restitution for aggravated assault, and a concurrent thirty days to six months incarceration for the DUI.
The Commonwealth filed a post-sentence motion challenging the discretionary aspects of the sentence, and argued that Buterbaugh obligated the court to apply the DWE to Appellee‘s sentence. The court denied this motion, and the Commonwealth filed a timely nоtice of appeal. The court directed the Commonwealth to file a
Initially, we note “there is no absolute right to appeal when challenging the discretionary aspect of a sentence.” Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (citations omitted). An “appeal is permitted only after this Court determines that there is a substantial question that the sentence was not appropriate under the sentencing code.” Id. An appellant presents a substantial question when he “sets forth a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing process.” Id. Furthermore, “in order to properly present a discretionary sentencing claim, [an appellant] is required to preserve the issue in either a post-sentence motion or at sentencing and in a court-ordered
The Commonwealth, Appellant herein, presеrved this issue in its post-sentence motion,
* Retired Senior Judge assigned to the Superior Court.
- the sentencing court purported to sentence within the sentencing guidelines but applied the guidelines erroneously;
- the sentencing court sentenced within the sentencing guidelines but the case involves circumstances where the application of the guidelines would be clearly unreasonable; or
- the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable.
- The nature and circumstances of the offense and the history and characteristics of the defendant.
- The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
- The findings upon which the sentence was based.
- The guidelines promulgated by the commission.
As the language of the DWE is discussed at length in this matter, we set it forth at the outset. The DWE provides, in part:
(1) When the court determines that the offender possessed a deadly weapon during the commission of the current conviction offense, the court shall сonsider the DWE/Possessed Matrix (§ 303.17(a)). An offender has possessed a deadly weapon if any of the following were on the offender‘s person or within his immediate physical control
- Any firearm, (as defined in
42 Pa.C.S. § 9712 ) whether loaded or unloaded, or- Any dangerous weapon (as defined in
18 Pa.C.S. § 913 ), or- Any device, implement, or instrumentality designed as a weapon or capable of producing death or serious bodily injury where the court determines that the offender intended to use the weapon to threaten оr injure another individual.
(2) When the court determines that the offender used a deadly weapon during the commission of the current conviction offense, the court shall consider the DWE/Used matrix (§ 303.17(b)). An offender has used a deadly weapon if any of the following were employed by the offender in a way that threatened or injured another individual:
- Any firearm, (as defined by
42 Pa.C.S. § 9712 ) whether loaded or unloaded,- Any dangerous weapon (as defined in
18 Pa.C.S. § 913 ), or- Any device, implement, or instrumentality capable of produсing death or serious bodily injury.
The trial court reasoned that the DWE for use of a deadly weapon pursuant to § 303.10(a)(2) did not apply to Appellee‘s sentence. It reviewed our decision in Buterbaugh, supra, wherein we interpreted the term “instrumentality” in
The Commonwealth contends that the trial court erred in failing to apply the DWE to Appellee‘s sentence as required by
The Commonwealth further supports its position by distinguishing the possession and use provisions of the DWE. It observes that a finding of intent is required for applying the DWE to crimes where the individual is merely in possession of a deadly weapon during the commission of a crime. See
We commence our analysis by reviewing our decision in Buterbaugh, supra. In Buterbaugh, this Court considered whether an automobile constituted a deadly weapon for the purposes of the DWE following the
As Buterbaugh backed into the street, the truck stalled. Upon restarting thе vehicle, he revved the engine, spun his tires, and accelerated the vehicle towards a member of the mob who was standing on the fog line of the road. Id. at 1252. Buterbaugh neither braked nor swerved, but rather struck the victim at the truck‘s highest possible speed given the distance of acceleration. Id. Buterbaugh and his friends fled the scene, and the victim died of his injuries shortly thereafter. Id. at 1253. During a subsequent investigation, Buterbaugh stated that he intended to scare the victim, and push him off the road. Id. at 1252.
Following a trial, Buterbaugh was convicted of third-degree murder. Id. at 1253. The trial court applied the DWE and sentenced Buterbaugh to fifteen to forty years of incarceration. Id. The court denied Buterbaugh‘s post-sentence motions, and an appeal ensued wherein he argued, inter alia, that the pick-up truck did not qualify as an “instrumentality” for the purposes of the DWE.
Upon review, this Court determined that Buterbaugh‘s truck was a deadly weapon under the DWE.3 In so finding, we reviewed the plain meaning of the DWE and looked to Black‘s Law Dictionary and Merriam-Webster, and concluded that a vehicle is a “device, implement, or instrumentality” under the DWE. Id. at 1268. We noted that the Sentencing Commission‘s use of the qualifying term “capable,” indicated that it intended to include not just things designed to produce serious injury or death, but also objects which may be “utilized in a different manner to achieve a more nefarious result,” i.e. objects that are “capable” of such results. Id. at 1269. Hence, we established that a “device, implement, or instrumentality is an object, whether simple or complex, that is utilized in a fashion to produce death or serious bodily injury, which nеed not be consistent with the original purpose of the object.” Id. (emphasis in original). We found this interpretation consistent with the purposes of the DWE. Id. citing Commonwealth v. Rhoades, 8 A.3d 912, 917 (Pa.Super. 2010) (“Items not normally classified as deadly weapons can become so based upon their use under particular circumstances.“).
Employing the above analysis, we reviewed the circumstances surrounding Buterbaugh‘s use of his pick-up truck in causing the viсtim‘s injuries. We observed that “an automobile is not specifically designed to cause death or serious bodily injury... However, like many [other objects], the character of an automobile changes based on the particular circumstances surrounding its use.” Id. (emphasis added). We concluded that the character of the defendant‘s truck changed to a deadly weapon “the instant [the defеndant] backed his vehicle out of the bar‘s parking lot, accelerated forward at its maximum
Although our decision in Buterbaugh was not expressly premised upon the defendant‘s intent concerning the usе of his vehicle, the defendant‘s intent in his particular use of the truck was clearly considered as part of those circumstances. In rendering our decision, we discussed the “nefarious results” necessary to change an innocent object into a deadly weapon. Id. at 1269. We concluded that failure to consider the truck a deadly weapon under the circumstances of that case “wоuld result in the untenable position that an automobile is different than a litany of other everyday objects, which when used with a wicked purpose, can cause serious bodily injury or death.” Id. (emphasis added). A person‘s use of an object is informed by the ends that person hopes to attain, i.e., his intent with regard to the use of that object. Thus, in discussing a person‘s “use” of an object, his intent for that particular usе is necessarily included in “surrounding circumstances.”
Contrary to the Commonwealth‘s assertions, this Court did implicitly find that the defendant in Buterbaugh intended to use his truck as a deadly weapon. Buterbaugh intentionally revved his engine and accelerated at maximum speed toward the victim. This action changed the character of his truck from a benign instrument to a deadly weapon since doing so evinced Buterbaugh‘s intention tо use the truck as a weapon.
The Commonwealth‘s contention that application of the use provision of the DWE does not require consideration of a person‘s intent is unpersuasive. Our acceptance of the Commonwealth‘s position would lead to the untenable result that the DWE could be applied to every motor vehicle accident resulting in death or serious bodily injury, mаny of which involve a criminal violation of some nature. As discussed above, an analysis of a person‘s use of an object necessarily requires consideration of his intent in order to determine whether it was, in fact, utilized as a deadly weapon.
Moreover, unlike the DWE for use of a deadly weapon, when a person merely possesses a device, implement, or instrumentality during the commissiоn of a crime, pursuant to
Here, at the time of the accident, Appellee was using his car as a mode of transportation. Appellee was drunk and distracted at the time of the incident, thus his performance of this task was reckless. Nevertheless, he had no intention to use the automobile as a deadly weapon. In light of the surrounding circumstances, there is no indication that Appellee actually used the car for any reason other than conveying himself and his passengers to York, even though the victim suffered permanent injuries resulting therefrom.
We agree with the trial court‘s analysis, and thus we discern no abuse of discretion
Judgment of sentence affirmed.
Judge Platt joins the opinion.
President Judge Gantman concurs in the result.