Commonwealth v. Smith

186 A.3d 397

COMMONWEALTH of Pennsylvania, Appellant

v.Jonathan Nelson SMITH, Appellee

No. 36 MAP 2017

Supreme Court of Pennsylvania.

Argued: March 6, 2018

Decided: June 1, 2018

Timothy Jon Barker, Esq., Renee Elizabeth Franchi, Esq., Stephanie Elizabeth Lombardo, Esq., David Winslow Sunday Jr., Esq., James Edward Zamkotowicz, Esq., York County District Attorney's Office, for Appellant.

Bruce Piersoll Blocher, Esq., York County Public Defender's Office, Brian McNeil, Esq., for Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

CHIEF JUSTICE SAYLOR

We allowed the Commonwealth's appeal in this matter to address whether the deadly-weapon-used sentencing enhancement applies to a defendant who is convicted of aggravated assault based on a motor vehicle accident, where the defendant acted recklessly but did not specifically intend to injure the victim.

On the evening in question, Appellee drove to several bars and consumed alcohol. At the last of these establishments, he spoke with three individuals and expressed an interest in obtaining drugs. The four men left the bar and got into Appellee's car, with Appellee driving. While en route to purchase drugs, Appellee approached an area where pedestrians were intermittently crossing the street in a lighted crosswalk equipped with flashing warning lights. Appellee did not slow down as his vehicle approached. He struck a pedestrian in the crosswalk, causing severe injuries, and then fled the scene without getting out of his car to check on the victim. At the time of the incident, Appellee was intoxicated and distracted by his passengers. There is no suggestion Appellee meant to strike the victim or even that he saw him until immediately before the collision. Thus, it is undisputed that his conduct in injuring the victim was criminally reckless but not knowing or intentional.¹

Appellee was charged with numerous offenses, including aggravated assault, see 18 Pa.C.S. § 2702(a)(1), and driving under the influence. See 75 Pa.C.S. § 3802(a)(1). He entered open guilty pleas to those two charges, and the Commonwealth nolle prossed the others.²

Prior to sentencing, the Commonwealth argued that, under Commonwealth v. Buterbaugh , 91 A.3d 1247 (Pa. Super. 2014) (en banc ) (holding that an automobile can constitute a deadly weapon for purposes of the deadly-weapon-used sentencing enhancement), the court should apply the deadly-weapon-used enhancement (the "DWUE") because it is implicated whenever a vehicle is involved in the underlying offense. Appellee opposed the Commonwealth's position, contending that Buterbaugh had held that application of the DWUE is circumstance-dependent. More particularly, Appellee maintained that under Buterbaugh , the DWUE only applies when the driver specifically intends to use the vehicle to injure or threaten the victim, which is what had occurred in that matter.

The common pleas court agreed with Appellee's reading of Buterbaugh and concluded that the DWUE was not presently implicated because Appellee only intended to use his vehicle as a means of transportation—and not as a weapon—at the time of the incident. See N.T., Jan. 4, 2016, at 17 (sentencing hearing). Accordingly, the court sentenced Appellee within the standard range for aggravated assault without the DWUE, albeit at the "top end" of that range. Id. at 18.³

The Superior Court affirmed on the same grounds, namely, that there was no indication Appellee sought to use his car as a deadly weapon. See Commonwealth v. Smith , 151 A.3d 1100, 1107 (Pa. Super. 2016). We granted further review to address whether the common pleas court should have applied the DWUE under the facts of this case. See Commonwealth v. Smith , ––– Pa. ––––, 169 A.3d 1067 (2017) (per curiam ).

The DWUE is set forth in Pennsylvania's Sentencing Guidelines, which are promulgated by the Pennsylvania Commission on Sentencing (the "Commission"), a legislative agency created by the General Assembly. The Guidelines were "designed to bring greater rationality and consistency to sentences and to eliminate unwarranted disparity in sentencing." Commonwealth v. Walls , 592 Pa. 557, 565 n.3, 926 A.2d 957, 961 n.3 (2007) (citations omitted). As such, they serve to inform the sentencing decision rather than restrict the court's discretion. See id. at 565, 926 A.2d at 962 (citation omitted). Still, if the DWUE applies, the sentencing court is required to consider the DWE/Used matrix. See 204 Pa. Code §§ 303.9(b), 303.10(a)(2), (4).

Because the Sentencing Guidelines are quasi-legislative in nature, see 42 Pa.C.S. § 2155 ; Commonwealth v. Sessoms , 516 Pa. 365, 375–76, 532 A.2d 775, 780 (1987) ; Commonwealth v. Hackenberger , 575 Pa. 197, 201 & n.9, 836 A.2d 2, 4 & n.9 (2003), delineating the scope of the DWUE entails resolving an issue of law over which we exercise de novo review. The DWUE states:

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 .... 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: (i) Any firearm, ..., or (ii) Any dangerous weapon (as defined in 18 Pa.C.S. § 913 ), or (iii) Any device, implement, or instrumentality capable of producing death or serious bodily injury.

204 Pa. Code § 303.10(a)(2).⁴

An automobile is clearly not a firearm, nor is it a dangerous weapon as defined in Section 913. See 18 Pa.C.S. § 913(f) (defining a "dangerous weapon" as a bomb, explosive or incendiary device, grenade, sandbag, blackjack, metal knuckles, switchblade, or any similar item designed to inflict serious bodily injury which "serves no common lawful purpose"). An automobile is, however, an "instrumentality capable of producing death or serious bodily injury." 204 Pa. Code § 303.10(a)(2)(iii).

The Commonwealth argues that the DWUE, by its plain text, applies whenever the use of a vehicle causes serious injury or death regardless of the driver's specific intent. It proffers that the DWUE only requires general intent, which is derived from the mens rea of the underlying crime.⁵ The Commonwealth posits that the omission of any textual reference to the defendant's mens rea in subparagraph (iii) of the DWUE is noteworthy because in the counterpart aspect of the DWPE the defendant's specific intent is expressly made a prerequisite to an enhanced sentence. See supra note 4; see also In re Vencil , 638 Pa. 1, 16, 152 A.3d 235, 244 (2017) (indicating that, where language is included in one statutory section, its omission from a similar section is significant); Commonwealth v. Fields , 630 Pa. 625, 634, 107 A.3d 738, 743 (2014). Accordingly, the Commonwealth states that the malice inherent to aggravated assault, see Commonwealth v. Packer , ––– Pa. ––––, ––––, 168 A.3d 161, 168 (2017), satisfies the DWUE's general-intent prerequisite. The Commonwealth continues that under the Superior Court's interpretation, the DWUE would never apply to a general-intent crime. See Brief for Commonwealth at 34.⁶

Appellee disputes these points. He maintains that, although the DWUE does not include the word "intent," that concept is implicit in the predicate that the defendant must have "employed" a device to threaten or injure. Appellee advances that the actor's use in this regard cannot logically be separated from his underlying intention. Along these lines, he stresses that "everyday items" such as automobiles are rarely used as weapons, and hence, "it is the manner in which the instrumentality is employed ... that matters." Brief for Appellee at 13. As for the different wording of subparagraph (iii) of the DWPE, Appellee indicates that intent-type language is needed in that context to screen out scenarios where a non-weapon item is merely possessed but it does not, and is not intended to, contribute to the offense or to the harm caused. Appellee additionally emphasizes that the focus of the DWUE is on the use of a weapon in carrying out a crime, whereas the scienter required for the underlying offense is not controlling as to that consideration. To the extent there is uncertainty, Appellee invokes the rule of lenity to support his position.

"The object of any judicial exercise in statutory interpretation is to ascertain and effectuate legislative intent." Commonwealth v. Cullen–Doyle , 640 Pa. 783, 787, 164 A.3d 1239, 1242 (2017) (citing 1 Pa.C.S. § 1921(a) ). Due to the Guidelines' legislative character, we interpret their substantive provisions as we would those of a statutory enactment. See Hackenberger , 575 Pa. at 201 n.9, 836 A.2d at 4 n.9. As such, our goal is to ascertain and effectuate legislative intent. See id . at 201, 836 A.2d at 4 (citing 1 Pa.C.S. § 1921(a) ).⁷ Statutory words and phrases are "construed according to the rules of grammar and according to their common and approved usage[.]" 1 Pa.C.S. § 1903(a). Further, we do not read words in isolation, but with reference to the context in which they appear. See Rendell v. Pa. State Ethics Comm'n , 603 Pa. 292, 303–04, 983 A.2d 708, 715 (2009) (quoting O'Rourke v. Commonwealth , 566 Pa. 161, 173, 778 A.2d 1194, 1201 (2001) ).

Our present inquiry centers on what it means, in the context of the DWUE as a whole, for a device, implement, or instrumentality to be "employed by the offender in a way that threatened or injured another individual[.]" 204 Pa. Code § 303.10(a)(2). As noted, the Commonwealth contends that, to give effect to the DWUE in its full context, it should be read together with the DWPE, which, unlike the DWUE, contains an express reference to the defendant's intent. See supra note 4. In this respect, the Commonwealth highlights that, where language appears in one section but is omitted from a substantively related provision, a different legislative intent can often be assumed. See Vencil , 638 Pa. at 16, 152 A.3d at 244 (quoting Bd. of Revision of Taxes v....