                                      [J-6-2018]
                       IN THE SUPREME COURT OF PENNSYLVANIA
                                   MIDDLE DISTRICT

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


COMMONWEALTH OF PENNSYLVANIA,                   :    No. 36 MAP 2017
                                                :
                                                :    Appeal from the Order of the Superior
                       Appellant                :    Court at No. 211 MDA 2016 dated
                                                :    11/29/16, reargument denied 2/2/17,
                                                :    affirming the judgment of sentence of
                                                :    the York County Court of Common
                  v.                            :    Pleas, Criminal Division, at CP-67-CR-
                                                :    0001126-2015 dated 1/4/16
JONATHAN NELSON SMITH,                          :
                                                :
                       Appellee                 :    ARGUED: March 6, 2018




                                          OPINION


CHIEF JUSTICE SAYLOR                                               DECIDED: June 1, 2018


       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


1 Although Appellee’s conduct in leaving the scene of the accident may have been
intentional, that is not material to the issue before this Court.

2 This appeal only involves the sentence for the aggravated assault charge.            That
offense is defined, in relevant part, as follows:

       A person is guilty of aggravated assault if he: . . . causes [serious bodily]
       injury [to another] intentionally, knowingly or recklessly under
       circumstances manifesting extreme indifference to the value of human
       life[.]

18 Pa.C.S. §2702(a)(1). As noted, Appellee’s conduct is admitted by the parties to
have been reckless rather than knowing or intentional. Under the Crimes Code, a
person “acts recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that the material element
exists or will result from his conduct.” Id. §302(b)(3). “The risk must be of such a nature
and degree that, considering the nature and intent of the actor’s conduct and the
circumstances known to him, its disregard involves a gross deviation from the standard
of conduct that a reasonable person would observe in the actor’s situation.” Id.


                                      [J-6-2018] - 2
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


3 The court sentenced Appellee to six-and-one-half to fifteen years’ incarceration for
aggravated assault. It imposed a concurrent sentence of 30 days to six months’
imprisonment on the DUI charge. Appellee was also ordered to pay costs, a fine, and
restitution in an amount exceeding $700,000.


                                      [J-6-2018] - 3
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

4 There is also a deadly-weapon-possessed enhancement (the “DWPE”) which, unlike
the DWUE, includes an express intent qualifier:

       When the court determines that the offender possessed a deadly weapon
       during the commission of the current conviction offense, the court shall
       consider the DWE/Possessed Matrix . . .. An offender has possessed a
       deadly weapon if any of the following were on the offender’s person or
       within his immediate physical control: (i) Any firearm, . . . , or (ii) Any
       dangerous weapon (as defined in 18 Pa.C.S. §913), or (iii) 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 or injure another
       individual.

204 Pa. Code §303.10(a)(1) (emphasis added).


                                      [J-6-2018] - 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


5 Briefly speaking, general-intent offenses are those in which the actor intends only to
take the proscribed action, whereas specific-intent offenses are those in which the actor
intends to cause the harm to which the criminal statute is addressed. See 22 C.J.S.
Criminal Law: Substantive Principles §36; see also Carter v. United States, 530 U.S.
255, 268, 120 S. Ct. 2159, 2168 (2000) (providing an illustration). The United States
Supreme Court has noted that, due to the ambiguities inherent to this distinction –
particularly insofar as the term “general intent” is concerned – there has been a
movement away from the dichotomy and toward a hierarchy of culpable mental states.
See United States v. Bailey, 444 U.S. 394, 403-04, 100 S. Ct. 624, 631 (1980); cf.
Liparota v. United States, 471 U.S. 419, 433 n.16, 105 S. Ct. 2084, 2092 n.16 (1985)
(indicating jury instructions referring to specific mental states are preferable to those
which use “difficult legal concepts like ‘specific intent’ and ‘general intent’”). See
generally People v. Hood, 462 P.2d 370, 377-78 (Cal. 1969) (providing an overview of
the evolution of the distinction between general and specific intent crimes, and noting
the problematic nature of that distinction).


                                      [J-6-2018] - 5
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.



6 The Commonwealth also portrays the Superior Court’s analysis in this case as
inconsistent with that of the en banc panel in Buterbaugh. Whether or not that
characterization is accurate, any purported failure on the part of the Superior Court in
the present case to follow its own precedent is immaterial to our de novo resolution of
the legal issue presented. See McGrath v. Bureau of Prof’l & Occupational Affairs, ___
Pa. ___, ___ n.7, 173 A.3d 656, 661 n.7 (2017).


                                        [J-6-2018] - 6
       “The object of any judicial exercise in statutory interpretation is to ascertain and

effectuate legislative intent.” Commonwealth v. Cullen-Doyle, ___ Pa. ___, ___, 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




7 Although the Guidelines are initially adopted by the Commission, this Court refers to
the underlying intent as “legislative intent” for convenience and because the General
Assembly retains authority to disapprove their terms subject to gubernatorial review.
See 42 Pa.C.S. §2155; Hackenberger, 575 Pa. at 201 n.9, 836 A.2d at 4 n.9.


                                       [J-6-2018] - 7
v. City of Phila., 607 Pa. 104, 125, 4 A.3d 610, 622 (2010); Fletcher v. Pa. Prop. & Cas.

Ins. Guar. Ass’n, 603 Pa. 452, 462, 985 A.2d 678, 684 (2009)).

       The force of such principle is diminished where, as here, an alternate explanation

for the textual difference is evident. By its terms, the DWPE applies when a weapon or

instrumentality capable of producing death or serious injury was on the offender’s

person or within his immediate control during commission of the offense. See generally

BLACK’S LAW DICTIONARY 919 (10th ed. 2014) (defining “instrumentality” as any “thing

used to achieve an end or purpose”). Notably, a wide range of otherwise benign objects

are capable of producing serious injury or death if misused. See, e.g., Commonwealth

v. Pepperman, 353 Pa. 373, 45 A.2d 35 (1946) (bedroom slipper); Commonwealth v.

Rhoades, 8 A.3d 912 (Pa. Super. 2010) (glass bottle); Commonwealth v. Roman, 714

A.2d 440 (Pa. Super. 1998) (egg); Grass v. People, 471 P.2d 602, 605 (Colo. 1970)

(shoe); Cummings v. State, 384 N.E.2d 605 (Ind. 1979) (stapler); Sharpe v. State, 340

So. 2d 885 (Ala. Crim. App. 1976) (chair). Thus, absent the “intent” qualifier, the DWPE

could become unduly expansive as it pertains to non-weapon items, because it could be

applied whenever the defendant possesses anything, however innocuous, that could in

other circumstances be used to cause injury or death.           Predicating an enhanced

sentence on the offender’s intent to use a non-weapon object in a harmful way avoids

such overbreadth.

       By contrast, the DWUE is inherently focused on the way an object was used

during the offense; as a consequence, any similar concern that it might be applied in an

overly-broad manner is lessened. Thus, the absence of an express reference to the

actor’s intent in the DWUE does not necessarily reflect a difference in legislative intent.

       Nor can the Commonwealth prevail on its argument that the scienter associated

with the underlying offense satisfies the DWUE’s mandate. The mens rea threshold for


                                       [J-6-2018] - 8
guilt as to the offense in question is contained in its definition or imported from the

Crimes Code’s default provision. See 18 Pa.C.S. §302(c). It must be proved to a

factfinder at trial or established by a guilty plea. By contrast, the DWUE is implicated

when “the [sentencing] court determines” that the enhancement’s statutory prerequisites

are satisfied. 204 Pa. Code §303.10(a)(2). Those prerequisites are enumerated in the

DWUE separate and apart from the definition of the underlying offense. As such, they

must be independently analyzed by the sentencing court on their own terms.8              In

resolving the legal issue before us, therefore, our present inquiry is directed to whether

criminally reckless use of an automobile satisfies the statutory prerequisites of the

DWUE as they are specifically set forth in its text.

       In reading the DWUE as it applies to a motor vehicle per subparagraph (iii), we

ultimately conclude that criminally reckless use of such a vehicle for its ordinary purpose

of transportation does not trigger an enhanced sentence notwithstanding that such

recklessness results in serious bodily injury. We reach this conclusion based on the

operative language of the DWUE when read in its immediate context.

       First, all categories of deadly weapon in the DWUE are subject to the limitation

that the defendant can only be deemed to have “used a deadly weapon if any of the

following were employed by the offender in a way that threatened or injured another

individual[.]” 204 Pa. Code §303.10(a)(2). Notably, “injured” appears directly alongside

“threatened.” This juxtaposition suggests that, like the act of threatening, the injuring

contemplated by the DWUE must be accomplished according to purpose or design.


8 The en banc panel in Buterbaugh observed that, because the sentencing court always
retains discretion to sentence outside the guideline range, use of the DWUE based on
findings by the sentencing court is not constitutionally problematic under Apprendi v.
New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), or Alleyne v. United States, 570
U.S. 99, 133 S. Ct. 2151 (2013). See Buterbaugh, 91 A.3d at 1270 n.10.


                                       [J-6-2018] - 9
       Although such textual proximity may not always reflect a similarity of meaning,

our reading is supported by the predicate verb, “employed” – a term we find to have

particular salience. This Court considered the meaning of “employ” in Appeal of School

District of Hampton Township, 362 Pa. 395, 67 A.2d 376 (1949). In that matter, the

Court reviewed several dictionary definitions and ultimately explained:

       It is clear from these definitions that to ‘employ’ property means not merely
       to use it in a physical or mechanical sense but also to use it as an
       instrument or means of effecting some object or maintaining or aiding an
       enterprise or activity . . ..
Id. at 398, 67 A.2d at 377 (emphasis added). Thus, we conclude that the statutory

language referring to an item being “employed” to “threaten or injure” suggests that the

use made of the item is, as the Superior Court held, “informed by the ends that person

hopes to attain.” Smith, 151 A.3d at 1107.

       Second, the preliminary language discussed above is immediately followed by a

list of three categories:       firearms, deadly weapons, and devices, implements, or

instrumentalities capable of producing death or serious injury. Firearms are, of course,

a type of weapon.      See, e.g., 18 Pa.C.S. §913(f).      The second category likewise

pertains solely to weapons.       Particularly as the title of the provision is the “Deadly

Weapon Enhancement,” we view the third category as encompassing any other item

capable of inflicting serious injury or death when it is used as a weapon to “threaten[] or

injure[] another individual.”    204 Pa. Code §303.10(a)(2).      See generally 1 Pa.C.S.

§1924 (providing that, while titles and headings of statutory provisions are not

controlling, they may be considered as an aid to construction).

       Plainly, motor vehicles are ordinarily used for transportation. However, they can

become weapons when repurposed to threaten or injure others. Thus, in Buterbaugh

the defendant was involved in an altercation which started in a tavern and continued


                                       [J-6-2018] - 10
outside. In an angry state of mind, he got into his pickup truck, revved the engine, and

accelerated toward the victim, striking and killing him. The court explained that his

       vehicle was originally used for its intended purpose: to transport two
       friends and himself to a bar. However, the character of the vehicle
       changed to a deadly weapon the instant Appellant backed his vehicle out
       of the bar’s parking lot, accelerated forward at its maximum rate of
       acceleration, and struck the victim with sufficient force to cause death.
Buterbaugh, 91 A.3d at 1269.       In short, the defendant consciously repurposed his

vehicle as a weapon and used it as such. In this respect, the defendant’s action in

injuring his victim, being intentional, was qualitatively different from, and more culpable

than, the Appellee’s reckless conduct. Cf. People v. Stewart, 55 P.3d 107, 117-18

(Colo. 2002) (differentiating between (a) recklessly driving “a vehicle as a vehicle”

resulting in serious bodily injury, and (b) using a car as a deadly weapon such as in a

“road rage” incident, and concluding that the legislature could rationally prescribe a

harsher punishment for the latter type of conduct).

       The Commonwealth stresses that Buterbaugh was not found to have had a

specific intent to kill, as he was convicted of third-degree murder rather than first-degree

murder. Regardless, upon seeing the victim, Buterbaugh intentionally accelerated his

vehicle toward him. See Buterbaugh, 91 A.3d at 1252. Thus, Buterbaugh’s lack of a

specific intent to kill is not directly relevant to the issue in this appeal.           Cf.

Commonwealth v. Chumley, 482 Pa. 626, 635, 394 A.2d 497, 501-02 (1978) (approving

a description of legal malice, for third-degree murder purposes, which incorporated a

“specific intent to inflict great bodily injury”). Further, the circumstances of Buterbaugh

illustrate that, contrary to the Commonwealth’s assertion, our present interpretation

allows for the DWUE to be applied in the context of a general-intent crime.




                                      [J-6-2018] - 11
The order of the Superior Court is affirmed.



Justices Baer, Todd, Donohue, Dougherty, Wecht and Mundy join the opinion.




                              [J-6-2018] - 12
