Deadly Weapon Used Enhancement, Mens Rea, Need for Specific Intent
Com. v. Smith, 151 A.3d 1100(Pa. Super. 2016), appeal docket 36 MAP 2017
Smith, while driving under the influence at night, struck and severely injured a pedestrian who was crossing the street in a well-lit crosswalk equipped with flashing lights. Smith pled guilty to DUI and aggravated assault. At sentencing the Commonwealth recommended that the court impose the deadly weapons enhancement (“DWE”) to Smith’s sentence pursuant to Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa.Super. 2014) (en banc) (“Buterbaugh”), which held that DWE could apply to injuries caused by a motor vehicle. The trial 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 appealed and Superior Court affirmed, distinguishing Buterbaugh.
Before the Superior Court, the Commonwealth contended that Buterbaugh compells the application of the DWE in any situation where an automobile is used in a manner capable of causing death or serious injury, notwithstanding the person’s intent to use the automobile as a weapon. The Commonwealth noted that the defendant in Buterbaugh was convicted of third-degree murder, asserting that since the mens rea for third-degree murder requires only a finding of recklessness, Buterbaugh did not impute a finding of intent in order to apply the DWE, as such a holding would have contradicted the requisite culpability. Aggravated assault requires a finding of recklessness, the Commonwealth argued, so Smith’s intent to use the vehicle as a weapon was irrelevant so long as his crime caused death or serious bodily injury. The Commonwealth also pointed to the difference between the “possession” and “use” provisions of the DWE, observing 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, 204 Pa. Code § 303.10(a)(1)(iii), but that the legislature did not require the courts to make a finding of intent when the defendant was actually using the deadly weapon during commission of the crime. 204 Pa. Code § 303.10(a)(2)(iii).
Pointing out that the defendant in Buterbaugh used is vehicle to intentionally strike the victim, Superior Court rejected the Commonwealth’s arguments, reasoning:
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, many of which involve a criminal violation of some nature. …[A]n 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 commission of a crime, pursuant to § 303.10(a)(1)(iii), we must consider the person’s intent separately from his possession. After all, mere possession of that object might not be unlawful, and the DWE would never apply to everyday objects, even if they were capable of causing serious bodily harm or death, unless that person’s intentions were scrutinized. Thus, in applying the DWE for possession under § 303.10(a)(1), the person’s intentions with regard to that object are determinative. However, for the sake of applying the DWE for use under § 303.10(a)(2), the person’s actual use is determinative, and this use is informed by his intentions. 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.
Slip op. at 12-13.
The Supreme Court granted the Commonwealth’s allocatur petition. The issues, as stated by the Commonwealth, are:
(1) The Pennsylvania Superior Court’s Opinion misapplies the Deadly Weapon Used enhancement, which leads to a result inconsistent with statutory construction by reading an additional specific intent element into the Deadly Weapon Used statute that does not exist in the plain language[.]
(2) The Pennsylvania Superior Court rendered a decision that is inconsistent with the plain language of Commonwealth v. Buterbaugh, infra, and thereby leads to a misapplication of Buterbaugh and an irreconcilable conflict between Superior Court case law[.]
(3) The Pennsylvania Superior Court’s decision is inconsistent with fundamental notions of mens rea and the applicability of mens rea when no mens rea is specifically stated, improperly creating a default mens rea of specific intent.
For more information, contact Kevin McKeon or Dennis Whitaker.