Commonwealth v. Taylor

SPAETH, President Judge,

concurring:

I concur in the majority’s conclusion that the judgment of sentence should be affirmed, but I reach that conclusion by reasoning different from the majority’s.

Appellee pleaded guilty to three offenses, all of which are described as occurring after he entered the victim’s car. If for the sake of argument we put aside the majority’s criticism of the sentencing procedure and accept the victim’s testimony and her statements to the police as included in the presentence report, still, the record does not show that appellee possessed a deadly weapon “during the commission of the current conviction offense.” 204 Pa.Code. § 303.4. Specifically, the record does not show what happened to the knife after appellee and the victim got into the car. The victim told the police that “[she] never did think about that knife too much. He never really pulled it out again after he *623got in the car.” R. 41-A. Accordingly, the trial court did not err in applying the sentencing guidelines, 204 Pa.Code §§ 303.2, 303.4, and the judgment of sentence should be affirmed.

Given the state of the record, taking it as the Commonwealth would have us read it, it is unnecessary to consider, and I do not consider, either whether the Commonwealth is bound by the description of the offense in the information so as to exclude proof of the use of a deadly weapon at sentencing (Part I of the majority’s opinion), or whether the definition of possession of a deadly weapon is so vague as to be unconstitutional (Part III of the majority’s opinion).

BECK, J., joins.