author: TAMILIA, Judge: SPAETH, President Judge, JOHNSON, Judge, WICKERSHAM, Judge,

text:
    500 A.2d 110
    COMMONWEALTH of Pennsylvania, Appellant, v. Gus TAYLOR, III.
    Superior Court of Pennsylvania.
    Argued Dec. 13, 1984.
    Filed Oct. 4, 1985.

      Michael R. Cauley, Assistant District Attorney, Erie, for Com., appellant.
    Robert A. Graci, Harrisburg, for amicus curiae.
    Before SPAETH, President Judge, and CAVANAUGH, WICKERSHAM, ROWLEY, OLSZEWSKI, MONTEMURO, BECK, TAMILIA and JOHNSON, JJ.
   TAMILIA, Judge:

This case was certified to the court en banc on a motion for reargument by the Commonwealth from the decision of a panel of this Court which has not been reported. This appeal arises from the Judgment of Sentence of the Erie County Criminal Court sentencing the defendant to IIV2 to 23 months to the Erie County Jail on the charge of unlawful restraint, four years probation for aggravated assault, to be consecutive to the prison term, and two years probation for theft by unlawful taking to be concurrent with the prison term. The sentence was the result of a guilty plea and plea agreement.

It is alleged by the District Attorney of Erie County that the court erred in sentencing by not providing a deadly weapon enhancement of at least 12 months because the defendant allegedly used a hunting knife during the assault. Section 303.4 of the Pennsylvania Sentencing Guidelines requires that when the current offense is one in which a deadly weapon is possessed, the court must add an additional 12 months to the lower limit of the appropriate guideline sentence range, and 24 months to the upper limit of that range before a sentence is chosen.

There are discrepancies between the initial charges and the information, variations between the guilty plea and the proof at sentencing, and constitutional infirmities relating to the definition of “possession of a deadly weapon” and due process, which require dismissal of the appeal by the District Attorney of Erie County and affirmance of the sentence by the court below.

On January 12, 1983, the defendant tendered a guilty plea to the charges of aggravated assault, theft by unlawful taking, and unlawful restraint, arising from an altercation on September 19, 1982 with Belinda Watson, who had known the defendant for two years. Sentencing occurred on March 4, 1983. During the sentencing procedure, the Commonwealth produced the victim to testify the defendant held a knife to her throat and threatened her with the knife. It is this testimony upon which the Commonwealth bases its appeal and alleges error by the trial court in failing to consider defendant’s possession of a deadly weapon at the time of the offenses, which would provide a basis for a weapon enhancement sentence. The Commonwealth filed motions to reconsider which were denied by the sentencing judge and, thereafter, an appeal was timely filed.

Defense counsel argues the trial court is endowed with broad discretion in sentencing and that the sentencing system in Pennsylvania necessitates this broad discretion in determining, among the sentencing alternatives, the range of permissible penalties and the proper sentence to be imposed. He cites as authority Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977) and Commonwealth v. Martin, 466 Pa. 188, 351 A.2d 650 (1976). The cases cited by appellee are inapposite as the legislature, within its constitutional powers, can define crime and establish sentencing parameters. Although the legislature cannot delegate the power to make a law, it may, when necessary, confer authority and discretion in connection with execution of the law. Commonwealth v. Cherney, 454 Pa. 285, 312 A.2d 38 (1973); Belovsky v. Redevelopment Authority of the City of Philadelphia, 357 Pa. 329, 54 A.2d 277 (1947), 172 A.L.R. 953; Keystone Trucking Corp. v. Workman’s Compensation Appeal Bd., 40 Pa.Commw. 326, 397 A.2d 1256 (1979). The legislature may utilize establishment of administrative agencies as part of the legislative process in the tripartite system of government to regulate and control segments of society which the legislature in its wisdom deems necessary of control. Bortz Coal Co. v. Air Pollution Commission, 2 Pa.Commw. 441, 279 A.2d 388 (1971).

The Legislature may properly impose authority in a Sentencing Commission in establishing sentencing standards. The appellee alleges the Legislature (Commission), in establishing a mandatory enhancement sentence, infringes on the inherent powers of judges to exercise discretion in sentencing. This issue has long been laid to rest in the Commonwealth. The Legislature has the right to classify crimes, to designate the maximum and likewise, can name the minimum. Commonwealth v. Wright, et at, 508 Pa. 25, 494 A.2d 354 (1985). The necessity or wisdom of so doing is a question for its determination. The power of determining the extent of punishment to be inflicted was not, and is not now, the subject of constitutional limitation, and the Legislature could fix the length of imprisonment upon conviction of a particular offense making, if it saw fit, the term rigid and invariable or allowing room for use of good judgment by the judge, made acquainted by the trial with the attending circumstances. Commonwealth v. Sweeney, 281 Pa. 550, 127 A. 226 (1924); Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959). Also, legislation authorizing indeterminate sentences does not violate this section (Pa. Const. Art. 5, § 1) as transforming judicial discretion to a nonjudicial board. Commonwealth v. McKenty, 52 Pa.Super. 332 (1912). Appellee’s arguments are, therefore, without merit. The constitutionality of the creation of the Sentencing Commission, as opposed to the authority of a validly created commission, is not before us, as only the latter was briefed and argued.

It is clear, however, that the sentencing process is subject to the due process clause. Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977), Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). If the sentencing procedure is improper, it involves deprivation of due process. Commonwealth v. Walker, 286 Pa.Super. 239, 428 A.2d 661 (1981). Compare Commonwealth v. Opara, 240 Pa.Super. 511, 362 A.2d 305 (1976). (The due process clause applies to sentencing procedure (Spaeth, J.).) In a case involving juveniles, In the Interest of Tina Jones, et at, 286 Pa.Super. 574, 429 A.2d 671 (1981), in a dispositional proceeding for dependant children, which would be analogous to sentencing in a criminal procedure, this Court, Cavanaugh, J., held that enactments, providing that reports or oral testimony may be relied upon to the extent of their probative value, and that sources of information given in confidence, need not be disclosed, (Juvenile Act — 42 Pa.C.S.A. § 6341(d)) was a denial of the due process right to confrontation of witnesses by the children’s mother.

Having laid the foundation for our consideration, we proceed to consider the matters presented by this appeal. The issues presented in this case are:

(1) Whether or not the Commonwealth, in filing its information, chose to ignore an essential element of this crime thereby changing its character from aggravated assault with a weapon to aggravated assault without a weapon.
(2) Whether, in accepting a guilty plea to charges on a plea agreement to nol pros other counts of the information, the Commonwealth was bound by the defendant’s admissions and statements as to his actions in the purported crimes, none of which implicated his possession of a deadly weapon.
(3) Whether or not the definition of possession of a deadly weapon is so legally vague as to be constitutionally impermissible.

I.

As to the first issue, it is apparent upon a close review of the record that the charges, as they emanated from the magistrate’s office, were substantially different from those finally presented to the court in the form of an information. On September 20, 1982, the criminal complaint was prepared and alleged as follows:

The defendant did intentionally, knowingly or recklessly cause serious bodily injury to Miss Belinda Watson, B/F, D.O.B. 1/18/61, who resides at 4122 Maxwell Avenue, in that he did come to the home of Belinda Watson, and against Belinda’s own will, did take Belinda from her home by threatening her with a knife that he put up to her neck, putting her life in danger and verbally threatening to kill her____

The charge was aggravated assault and the magistrate indicated the applicable section was § 2702 of the Pennsylvania Crimes Code, without designating whether it was aggravated assault with intent to cause or causes serious bodily injury to another which is § 2702(a)(1), a felony of the second degree, or an attempt to cause or knowingly causes bodily injury to another with a deadly weapon which is § 2702(a)(4), a misdemeanor of the first degree. A fair reading of the complaint impels the conclusion that the defendant was charged with § 2702(a)(4), attempt to cause bodily injury to another with a deadly weapon.

The information filed by the District Attorney of Erie County on or about October 28, 1982, alleges that on or about September 19, 1982 in Erie County, the defendant at Count 4:

... did attempt to cause serious bodily injury to another, or caused such injury intentionally, knowingly, recklessly under circumstances manifesting extreme indifference to the value of human life, to-wit: BELINDA WATSON, and that the said GUS TAYLOR, III did beat BELINDA WATSON with his fists numerous times about the face and body causing serious bodily injury, contusions, abrasions and a broken nose this occurring at an unknown location; thereby the said GUS TAYLOR, III did commit the crime of AGGRAVATED ASSAULT, a felony of the second degree.

The statute citation section of the information refers to 18 Pa.C.S.A. 2702, without designating the subsection number which would differentiate between aggravated assault by attempt to cause, or causes serious bodily injury and aggravated assault with a deadly weapon. The wording of Count 4 clearly alleges § 2702(a)(1), aggravated assault, an attempt to cause or causes serious bodily injury to another, a felony.

Since the District Attorney’s office has the power to modify the information as it relates to the complaint (so long as the offense is substantially the same or cognate to the offense alleged in the complaint) to conform to what it perceives to be its proof or its determination of prosecutorial merit, it would appear the district attorney concluded that assault with attempt to cause serious bodily injury, without a weapon, was the proper charge in this case. See Pa.R.Crim.P. 225(b)(5) and Commonwealth v. Wilkinson, 278 Pa.Super. 490, 420 A.2d 647 (1980), Commonwealth v. El, 273 Pa.Super. 1, 416 A.2d 1058 (1979), Commonwealth v. Epps, 260 Pa.Super. 57, 393 A.2d 1010 (1978). This was also the charge of which the defendant had notice to defend, and this was the charge presented to the court. Since the proof required for subsection (a)(1) and subsection (a)(4) is substantially different and the penalties involved, likewise, are substantially different, the defendant cannot be charged with one subsection and be presented with proof or allegations of a different subsection at trial without amendment approved by the defendant. Commonwealth v. Hertzog, 492 Pa. 632, 425 A.2d 329 (1981). Aggravated assault, § 2702(a)(4) is not a lesser included offense of aggravated assault, § 2702(a)(1). Commonwealth v. Ritchey, 313 Pa. Super. 238, 459 A.2d 828 (1983). If, upon a conviction or a plea, the court imposed a sentence relating to one subsection of the Crimes Code, when a different subsection carrying a different penalty was proved, this in effect would be an illegal sentence.

This Court concludes on the basis of the charge in the information, the Commonwealth, by limiting the proof to causing or attempting to cause serious bodily injury to another, knowingly or recklessly, under circumstances manifesting extreme indifference to the value of human life, is bound by its charge and cannot go beyond the allegation in the information and proceed to offer proof of the use of a deadly weapon at sentencing.

II.

The second area in which the Commonwealth’s procedure is defective in seeking enhancement of the sentence pertains to the defendant’s plea to Counts 2, 3 and 4.

As to Count 2, theft by unlawful taking, the following colloquy ensued between Mr. Cauley, the assistant district attorney, and the defendant:

MR. CAULEY: The reason you are charged with that offense is because on or about September 19, 1982, here in Erie County, Pennsylvania, you, Gus Taylor, III, unlawfully took or exercised unlawful control over movable property of another person.
That would be the sum of $120 in currency. You took it from the vehicle belonging to Belinda Watson, this occurring at 4122 Maxwell Avenue in Erie, Pennsylvania, and you took it with the intent to deprive her of that property; thereby, you committed the crime of Theft by Unlawful Taking or Disposition. That’s the reason why you did or why you were charged with that offense; do you understand that?
MR. TAYLOR: Yes.
MR. CAULEY: Okay, when you plead guilty to that, you are admitting that that’s in fact what you did, correct? MR. TAYLOR: Correct.
MR. CAULEY: You did that?
MR. TAYLOR: Right.

(P.T. 8) Next, Mr. Cauley carried Mr. Taylor through an exposition of the facts constituting the crime of unlawful restraint, as follows:

MR. CAULEY: When you plead guilty to that, sir, you admit that on or about the same day and year, which would be September 19, 1982, here in Erie County, you, Gus Taylor, III, did knowingly restrain another person— that would be Belinda Watson — unlawfully in circumstances which placed her in danger of serious bodily injury as I’ve explained it to you in that you kept her against her will in her vehicle, you took her to a certain location which is unknown to the Commonwealth here in the City of Erie, and during the time that you had her in that location you beat her, as you will admit later in the Aggravated Assault charge. By doing all of these things under those circumstances, you exposed her to this risk of serious bodily injury that would be the basis of the charge to which you would be pleading guilty; do you understand that?
MR. TAYLOR: Right.
MR. CAULEY: Okay, and is that what you are telling the Court you did?
MR. TAYLOR: Right.

(P.T. 10-11) Likewise, these admissions contained no reference to a knife.

As stated above, the Commonwealth elected to charge in the information a substantially different allegation than contained in the complaint, charging defendant with § 2702(a)(1), rather than § 2702(a)(4). In conformity with the charge, defendant entered into a plea agreement with the district attorney’s office in which he pled guilty to Count 4 as it was stated in the information. At Page 11 of the plqa testimony, Mr. Cauley, the assistant district attorney, addressed the defendant as follows:

MR. CAULEY: Okay, the Aggravated Assault charge at Count 4, Mr. Taylor, would be somewhat similar. Aggravated Assault requires that you attempt to cause serious bodily injury to another person; that is, that you tried to do that as I’ve defined serious bodily injury or you actually do cause that injury intentionally, knowingly, or recklessly, which means basically knowing what you were doing on purpose under circumstances by which it can be shown that you have a serious disregard for the value of human life of that person. That would be aggravated assault in this case; do you understand that?
MR. TAYLOR: Right.
MR. CAULEY: The specific basis of the charge would be that on or about the same day and year in Erie County, Pa., you attempted to cause serious bodily injury to another, or you did cause that injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life; that being the life of Belinda Watson, in that you beat her with your fists numerous times about the face and body causing serious bodily injury to her: contusions, abrasions, and a broken nose occurring at an unknown location somewhere in the City of Erie and thereby you committed the crime of aggravated assault, a felony of the second degree. That’s the factual basis behind this charge, the reason why you were charged with the offense; do you understand that?
MR. TAYLOR: Right.
MR. CAULEY: Okay, when you come in here and plead guilty to that charge, that’s what you tell the court that you, in fact, did do to Belinda Watson; do you understand that?
MR. TAYLOR: Right.
MR. CAULEY: And is that what happened?
MR. TAYLOR: Yeah.

(Emphasis added throughout.) Thus, while it appears on the record that Mr. Taylor pled guilty to three offenses, he did not admit, nor was it ever averred or alleged by the Commonwealth that a weapon was involved. The colloquy also established the parameters which bound the court when imposing sentence. Mr. Taylor agreed with the Commonwealth that in exchange for the Commonwealth’s dismissal of the charges of robbery and terroristic threats, Mr. Taylor would plead guilty to counts of receiving stolen property, unlawful restraint and aggravated assault. This conclusively, in addition to the colloquy, • limited the Commonwealth’s use of weapons evidence in sentencing. It is fundamental to due process that an accused may not be convicted on the basis of anything not admitted in the evidence. Commonwealth v. Sojourner, 268 Pa.Super. 472, 408 A.2d 1100 (1978), aff'd as modified on rehearing, 268 Pa.Super. 488, 408 A.2d 1108 (1979). Also see Com monwealth ex rel. Valentine v. Strongel, 246 Pa.Super. 466, 371 A.2d 931 (1977).

Subsequently, on Friday, March 4, 1983, a sentence hearing was held during which the assistant district attorney presented the victim, Belinda Watson. She testified to the effect that when Mr. Taylor removed her from the house, he threatened her with a weapon. The testimony of Belinda Watson at page 11 of the sentencing transcript is as follows:

MR. CAULEY: Belinda, was there a knife involved in this incident?
BELINDA WATSON: There was.
MR. CAULEY: Would you tell the judge about the knife, please?
BELINDA WATSON: It’s a hunting knife. He’s had it before, pulled it out any time he wanted to.
MR. CAULEY: Were you threatened with that knife? BELINDA WATSON: Yes, I was. He told me he was going to cut my throat with a knife that night.
MR. CAULEY: Thank you, Belinda.

This testimony was introduced by the assistant district attorney to substantiate his position that a weapon enhancement sentence should be imposed on the defendant. The difficulty with this testimony is that it comes after a plea agreement in which the admissions by the defendant and the allegations made by the Commonwealth did not comprehend the use of a weapon during those offenses.

The limited testimony by the victim at the sentence hearing was not sufficient to establish that the weapon was used at the time of the activities alleged in the counts upon which the plea was taken, or that at that time a weapon was in fact possessed. Section 303.4(a) makes clear that the time frame which circumscribes the operation of the weapon enhancement sentence is that of the triggering offense, that is, “during the commission of the current conviction offense”, this becomes important as it relates to the crimes charged in the information as opposed to those charges dismissed as part of the plea agreement. From the victim’s statement it is conceivable the knife was used to terrorize Belinda to have her move out of the house. As such, possession of the knife would have been the basis for the count of terroristic threats, which was dismissed by the district attorney as a condition of the plea agreement. One might also speculate that it was inherent in the robbery count, which likewise was dropped. It does not appear from the transcripts of the plea and sentence hearings, either by admissions of the defendant or the testimony of the victim, that a knife was possessed, used or threatened during the course of the crimes charged. Only by referring to the complaint and hearsay statement of the victim in the pre-sentence report can we reach a different conclusion.

This Court believes the Commonwealth is bound by the record on the plea as to what the defendant admitted in exchange for the plea of guilty. Thus, the record neither establishes there was a weapon involved in the assault and battery, nor that one was possessed by the defendant at the time of the other offenses to which he tendered a plea of guilty. See Commonwealth v. Sojourner, supra.

At the sentencing, the trial judge considered the sentencing guidelines and entered a sentence in the extreme range of the minimum sentence and within one-half month of the lowest range of the aggravated sentence. He also entered a concurrent sentence of probation for two years and a consecutive period of probation for four years. In all respects it appears fair and within the guidelines, and since the defendant is not requesting withdrawal of his guilty plea and is accepting of his sentence, there is no basis for reviewing it except to the extent alleged by the Commonwealth; that is, the impropriety of the court in failing to add a deadly weapon enhancement.

III.

As to the third matter which this Court considers relevant to this issue, we feel bound to comment as to whether or not the weapon enhancement provision can in fact stand when it provides merely for the possession of a deadly weapon during the occasion of the crime charged rather than establishing some nexus between the possession, the weapon and the crime, and provides for the likelihood, in some cases, of an addition to the sentence which would take it beyond the permissible minimum of incarceration.

A serious question exists concerning the constitutionality of this provision. In applying this section, it is provided at 42 Pa.C.S.A. § 9721, Sentencing Guidelines, § 303.4:

Deadly weapon enhancement:
(a) When the court determines that the defendant or an accomplice possessed a deadly weapon as defined in 18 Pa.C.S.A. § 2301 (relating to definitions), during the commission of the current conviction offense; at least 12 months and up to 24 months confinement shall be added to the guideline sentence which would otherwise have been imposed.

Section (b) provides for exceptions for those crimes which have as an inherent element to the charge, the use of a weapon, including 18 Pa.C.S.A. § 2702(a)(4), aggravated assault, as discussed above. In reading the requirements of this section, the operative term becomes “possessed a deadly weapon.”

At the outset, there is nothing in the enhancement section which clarifies the meaning of possession. To ascertain the statutory meaning of “possession” we must look to 18 Pa.C.S.A. § 301, having to do with culpability. Section 301(c) provides:

Possession as an act. — Possession is an act, within the meaning of this section, if the possesser knowingly procured or received the thing possessed or was aware of its control thereof for a sufficient period to have been able to terminate his possession.

This definition is broad and relates to knowledge as well as custody and control. In terms of the breadth of that definition as applied to the deadly weapon enhancement factor, it is far too broad to make the section viable. By virtue of this definition, it is possible to have possession of a deadly weapon when that weapon is in the back seat of a car, in the glove compartment, under the seat of a car, in one’s trousers, concealed in a briefcase, or even in a room miles away from the place where a defendant is arrested. The definition is so broad that it could comprehend numerous situations where the weapon was not in hand and was not, in fact, contemplated to be used during the course of the criminal activity, and yet would subject the defendant to the enhancement penalty. This section, therefore, does not meet the constitutional test of preciseness required of a criminal statute and its vagueness is fatal. “A statute (guideline) which either forbids or requires the doing of an act in terms so vague that men of reasonable intelligence must necessarily guess [as to] its meaning and differ as to its application [lacks] the first essential of due process of law.” (Citations omitted) Commonwealth v. Baggs, 258 Pa.Super. 133, 139, 392 A.2d 720, 723 (1978). The Pennsylvania Constitution, Article I, § 9, provides that “... the accused hath a right ... to demand the nature and cause of the accusations against him____”, notice of which is lacking here. See Commonwealth v. Broughton, 257 Pa.Super. 369, 390 A.2d 1282 (1978).

It would appear that a rational weapon enhancement provision would require that the possession be one of immediate physical possession where, in fact, the weapon was being used or threatened in the commission of a crime which did not intrinsically involve the use of a weapon.

[W]hen a criminal statute calls for construction, it is not a construction that is supported by the greater reason that is to prevail but that one which, if reasonable, operates in favor of life and liberty.

Commonwealth v. Exler, 243 Pa. 155, 162, 89 A. 968, 971 (1914); as quoted in Glover, supra, 397 Pa. at 546, 156 A.2d at 116.

As an example of how specificity is required in relating possession to criminal behavior, § 907(b) of the Crimes Code, Possessing instruments of crime, provides:

Possession of weapon.- — A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally.

Possession is specified in terms of both its location and the intent, and thus provides the type of specificity that every criminal statute requires. Similarly, the Uniform Firearms Act at § 6105 of the Crimes Code, provides:

Former convict not to own a firearm, etc. — No person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm, or have one in his possession or under his control.

In order to avoid any possible confusion, the statute speaks of owning a firearm as well as possessing and controlling, giving three alternative possibilities which make it clear that under no circumstances can a convict have any dominion over a weapon. The definition of owning, possessing or controlling is specific enough to cover every apparent eventuality relating to dominion by a convict over a weapon, thereby eliminating any confusion or question concerning the defendant’s rights or lack of them relating to a weapon. Even with a definition so specific, there is a problem of establishing possession or control. Commonwealth v. Boatwright, 808 Pa.Super. 41, 453 A.2d 1058 (1982) and Commonwealth v. Townsend, 428 Pa. 281, 237 A.2d 192 (1968) held that the mere presence of a defendant in an automobile was insufficient to prove a violation when there was a weapon found in the vehicle. The Commonwealth must prove the defendant had both power to control the firearm and intent to exercise that control.

Thus, if the weapon enhancement provision were to be construed to define possession as physical control for the purpose of immediate use, it would meet the test of constitutionality more clearly than the broader concept of possession, which could mean control even in a remote place, with neither intent nor capability of use at the time the crime charged was being committed.

In further analogy, § 6103 of the Uniform Firearms Act provides:

Crimes committed with firearms: If any person shall commit or attempt to commit a crime of violence when armed with a firearm contrary to the provisions of this subchapter, he may, in addition to the punishment provided for the crime, be punished also as provided by this subchapter.

This appears closer to the intended purpose of the weapon enhancement provision of the Sentencing Code. However, as can be seen, the provision in § 6103 is much more specific and capable of reasonable interpretation than § 303.4 of the Sentencing Guidelines. To further clarify the intent of § 6103, Evidence of intent, § 6104 provides:

In the trial of a person for committing or attempting to commit a crime of violence, the fact that he was armed with a firearm, used or attempted to be used, and had no license to carry the same, shall be evidence of his intention to commit said crime of violence.

These sections do not constitute separate offenses but simply provide that a violation of the weapons offense does not merge with the crime of violence for purpose of sentencing. Commonwealth v. Flynn, 314 Pa.Super. 162, 460 A.2d 816 (1983), Commonwealth v. Simpson, 302 Pa.Super. 287, 448 A.2d 640 (1982). To give them legal effect, it is necessary to relate them to the crimes charged. Thus, they provide an almost identical purpose to that designed by the sentencing commission for the weapon enhancement sections, except they contain the specificity lacking in the guidelines.

The most recent pronouncement by the Legislature in this regard is the scheme of mandatory minimum sentence provisions relative to certain Crimes Code violations, 42 Pa.C. S.A. §§ 9712-9718 (Act No. 54 of 1982). Section 9712, Sentence for offenses committed with firearms, provides:

(a) Mandatory sentence. — Any person ... shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.

The Supreme Court of Pennsylvania has recently passed on the constitutionality of the mandatory sentence provision above, and ruled it to be constitutional. Wright, supra. The mandatory sentence provision differs from the Guideline Weapons Enhancement section in the following respects.

1) The mandatory sentence applies only to firearms, the guidelines apply to deadly weapons.
2) The mandatory sentence requires “visible possession”, the guidelines “possession”.
3) The mandatory sentence requires a minimum sentence within the maximum term of imprisonment set by legislation, whereas the guidelines enhancement section adds to the guideline sentence and therefore may exceed the maximum term of imprisonment mandated by the legislature.
4) The mandatory sentence section provides for a minimum standard of proof, preponderance of the evidence, whereas the guidelines provide none.

In Wright, supra, the Supreme Court, speaking through Justice Nix, held:

The effect of section 9712 is merely to limit the discretion of the sentencing court in the selection of a minimum sentence where it is determined that the defendant visibly possessed a firearm during the commission of the crime. The maximum permissible term of imprisonment remains unaffected.
In the context of a section 9712 proceeding, moreover, the risk of error is slight. Visible possession of a firearm is a simple, straightforward issue susceptible of objective proof. There is scant potential that suspicion and conjecture will enter into the factfinder’s decision. In addition, evidence of visible possession is amenable to meaningful appellate review.

508 Pa. at —, 494 A.2d at 362.

It is submitted that if the weapon enhancement provision is to meet the test of constitutionality, it must have language to delineate the specific intent of the guidelines and its application, similar to that stated in the Crimes Code for weapons offenses.

If the broader interpretation of possession was, in fact, intended, then it was obviously unconstitutional; to relate a totally irrelevant activity such as possession of a weapon, which may or may not be a crime, to the criminal activity, requires a nexus that rationally necessitates enhancement of the sentence for the crime committed.

The very definition of deadly weapon, requiring conditions, circumstances, and instrumentalities that are capable of varying interpretations under different circumstances, would cause this statute to be unconstitutionally vague because of the inability to relate culpability to the acts charged.

By analogy, § 2301 of the Crimes Code, Title 18, defines “deadly weapon” as follows:

Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury.

This definition relates to a deadly weapon and its capacity. It is a definition that has a utilitarian application subject to precise interpretation under the facts of each case as it refers to use or intended use. No such interpretive provision is contained in § 303.4, which renders any interpretation subject to uncertainty and speculation.

In Commonwealth v. Stancil, 233 Pa.Super. 15, 334 A.2d 675 (1975), in addition to finding that a foot is a sufficient weapon to make the assault an aggravated assault in construing 18 Pa.C.S.A. § 2702(a)(1), (4), this Court held it is virtually impossible to make a prophylactic rule to cover the problem of what constitutes a dangerous weapon. Some weapons are such as a matter of law, and others must be construed by a jury as a matter of fact, in accordance with the evidence and intent of the actor. See Commonwealth v. Conner, 445 Pa. 36, 282 A.2d 23 (1971).

This Court has struggled on numerous occasions with the definition of weapons, be they firearms, instruments of crime or offensive weapons. We have already detailed § 907, Possessing instruments of crime, in relation to possession. That section further defines “weapon” as:

Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have.

The term includes a firearm which is not loaded or lacks a clip or other component to render it immediately operable and components which can readily be assembled into a weapon.

In Commonwealth v. Adams, 245 Pa.Super. 431, 369 A.2d 479 (1976), this Court held that a nonchaku (nun chuck) stick was not an offensive weapon. The Crimes Code states at § 912(a), Possession of weapon on school property:

Definition. — Notwithstanding the definition of “weapon” in Section 907 (relating to possessing instruments of crime), “weapon” for purposes of this section shall include but not be limited to any knife, cutting instrument, cutting tool, nun chuck stick, (emphasis added), firearm, shotgun, rifle and any other tool, instrument or implement capable of inflicting serious bodily injury.

In cases construing § 908, Prohibited offensive weapons, despite enumeration of a variety of objects designated as offensive weapons, the court’s inquiry always turned on the operative term, “which serves no common lawful purpose’.” Commonwealth v. Adams, supra; “[A] revolver can serve a common lawful purpose...” Commonwealth v. Smith, 253 Pa.Super. 279, 384 A.2d 1343 (1978); a knife that had a blade which was manually exposed (as opposed to automatic exposure) can serve a lawful purpose. Commonwealth v. Ashford, 263 Pa.Super. 100, 397 A.2d 420 (1979); “[A] small gun ... may also be carried by any citizen for defensive purposes.” Commonwealth v. Rose, 265 Pa.Super. 159, 401 A.2d 1148 (1979). Thus, it is seen that in all weapon offenses, the construction is very precise and technical with the language of the statute being explicit and capable of reasonable interpretation, as to possession, use or intent.

In this regard, combining the term “possession,” capable of broad interpretation, and “deadly weapon” which must be construed in relation to use and circumstances, the sentencing commission has succeeded in creating a term incapable of specific definition and much too broad for constitutional certainty. Since the Guidelines do not include the limiting term “control” in defining possession, under those circumstances our appellate courts have required the proof of a “knowledge” or “awareness” element; i.e. the “exercise of conscious dominion or control,” (emphasis added). Thus, proof of (physical) possession is not required pursuant to § 301(c), supra. See, e.g., Commonwealth v. Rambo, 488 Pa. 334, 337, 412 A.2d 535 (1980). Commonwealth v. Watts, 319 Pa.Super. 137, 465 A.2d 1267, 1269 (1983). C.f Commonwealth v. Burkley, 297 Pa.Super. 400, 443 A.2d 1182 (1982). Also, in every crime delineated in the Crimes Code related to weapons and possession, there is a reasonable and logical nexus between the two and the behavior sought to be prevented. Here, we believe the sentencing guidelines fail to provide the certainty and the reasonable nexus to make this provision enforceable.

It is settled that, as a matter of due process, a criminal statute (guideline) that “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute (guidelines)” (citations omitted), or is so indefinite that “it encourages arbitrary and erratic arrests and convictions,” (citations omitted) is void for vagueness.

Colautti v. Franklin, 439 U.S. 379, 390, 99 S.Ct. 675, 683, 58 L.Ed.2d 596, 606 (1979). Likewise, as stated above, a provision in the guidelines, which has the effect of extending the permissible term of imprisonment provided by statute, cannot stand. See Wright, supra.

For these reasons, we affirm the judgment of sentence of the court below and dismiss the appeal of the District Attorney of Erie County.

ROWLEY, J., joins in the Court’s affirmation of the Judgment of Sentence and in Part II of the Majority Opinion.

SPAETH, President Judge, concurs with opinion, joined by BECK, J.

JOHNSON, J., concurs, joined by CAVANAUGH, J.

WICKERSHAM, J., dissents with opinion.

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 got 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.

JOHNSON, Judge,

concurring:

I join in Parts I and II of the majority opinion. I agree that the judgment of sentence should be affirmed and that the single issue raised by the Commonwealth on this appeal is without merit.

I take no position with respect to Part III of the majority opinion, which deals with the constitutionality of Section 303.4(a) of the Sentencing Guidelines, since this issue was not included as part of the question to be decided on the original appeal and its resolution, in my view, is better postponed to await an appropriate future case. Cf. Sladkin v. Greene, 359 Pa. 528, 59 A.2d 105 (1948); Burns v. Unemployment Compensation Board of Review, 164 Pa. Super. 470, 65 A.2d 445 (1949).

CAVANAUGH, J., joins.

WICKERSHAM, Judge,

dissenting:

The majority has determined that because the information did not accuse appellee of possessing a deadly weapon, and because appellee did not admit in his guilty plea that he possessed a deadly weapon, the Commonwealth may not present evidence at the sentencing hearing to establish that appellee possessed a weapon during the commission of the crimes charged. Because I would hold that the Commonwealth may present such evidence for sentencing purposes, I dissent.

Appellee pleaded guilty to charges of unlawful restraint, aggravated assault, and theft by unlawful taking. Appellee admitted every element of each offense; thus, each element was proved beyond a reasonable doubt. Possession of a deadly weapon is not an element of any of these crimes. It was not incumbent upon the Commonwealth, therefore, to include this factor in the information filed against appellee. Compare Commonwealth v. Allen, 508 Pa. 114, 494 A.2d 1067 (1985), a prior conviction of a specified violent crime, is not an element of the offense. Furthermore, it was not necessary for appellee to admit that he possessed a deadly weapon in order to be found guilty of the crimes charged. As the Attorney General points out, when the Commonwealth proved beyond a reasonable doubt that appellant committed the instant offenses, it concurrently established its right to impose punishment upon appellee. See Brief for Attorney General at 17-18.

It is at this point that the Sentencing Guidelines in general, and the deadly weapon enhancement provision specifically, come into play. The guidelines do not play a role in the guilt determining process; rather, they are a tool to be used, together with a consideration of the circumstances of the case, by the sentencing judge in choosing the appropriate punishment to be meted out to the defendant. In imposing sentence,

[t]he court must consider the character of the defendant and the particular circumstances of the offense in light of the legislative guidelines for sentencing, and must impose a sentence that is the minimum sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant.

Commonwealth v. Doyle, 275 Pa.Super. 373, 380, 418 A.2d 1336, 1340 (1979) (emphasis added). Surely the possession of a deadly weapon during the commission of a crime is a circumstance of the case which the sentencing judge should consider in imposing sentence; the deadly weapon enhancement provision ensures such consideration. See Commonwealth v. Wright, 508 Pa. 25,---494 A.2d 354, 357-358 (1985).

I believe that section 9712 of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712, supports my position. Section 9712 essentially provides that a defendant who visibly possessed a firearm during the commission of certain enumerated felonies shall be sentenced to a minimum of five years imprisonment. Particularly pertinent to the present problem is subpart (b) of that statute:

(b) Proof at sentencing. — Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

In Commonwealth v. Wright, supra, the Pennsylvania Supreme Court held that section 9712 is constitutional.

Admittedly, the case at bar is concerned with the deadly weapon enhancement provision of the Sentencing Guidelines rather than the Mandatory Minimum Sentencing Act; therefore, section 9712 is not controlling. Nevertheless, I believe that the procedure and language set forth in section 9712 are equally relevant to this and other cases dealing with the deadly weapon enhancement provision of the Sentencing Guidelines. The deadly weapon enhancement provision, like section 9712, “applies only in the event the defendant is convicted ... and thus relates solely to the sentencing proceedings.” Commonwealth v. Wright, supra, 508 Pa. at —, 494 A.2d at 357. Thus, possession of a weapon is not an element of the crimes charged and need not be asserted prior to conviction. Applying section 9712 to the case at bar, it is clear that the Commonwealth was not required to give appellant notice of the applicability of the deadly weapon enhancement provision, or otherwise present evidence of appellant’s possession and use of the hunting knife, prior to the entry of appellant’s guilty plea.

Section 9712 further provides that the applicability of the section should be determined by the court at sentencing by a preponderance of the evidence. In Wright, supra, our supreme court held that this standard of proof does not violate due process.

[W]e conclude that it is reasonable for the defendant and the Commonwealth to share equally in any risk of error which may be present in the factfinding process. In the context of a section 9712 proceeding, moreover, the risk of error is slight. Visible possession of a firearm is a simple, straightforward issue susceptible of objective proof. There is scant potential that suspicion and conjecture will enter into the factfinder’s decision. In addition, evidence of visible possession is amenable to meaningful appellate review. Thus we are convinced that the preponderance standard satisfies the minimum requirements of due process as employed in the legislature’s mandatory sentencing scheme.

Id., 508 Pa. at —, 494 A.2d at 362.

[I]t is important to keep in mind that the defendant has already been found guilty of criminal conduct calling for some form of punishment. By his conviction the defendant has forfeited his right to remain free in society and is subject to incarceration. Proof of visible possession of a firearm by a preponderance of the evidence at the time of sentence based upon that conviction is a fair standard and is the process due in these circumstances.

Id., Concurring Opinion by Larsen, J., 508 Pa. at —, 494 A.2d at 357. I would hold that a preponderance of the evidence standard is also appropriate in cases applying the deadly weapon enhancement provision of the Sentencing Guidelines.

I believe that the Commonwealth met this burden of proof in the case at bar. Both the statement of the victim as contained in the presentence report and the testimony of the victim at the time of sentencing indicated that Taylor possessed and used a deadly weapon during commission of the crimes charged. Appellee neither objected to nor contradicted this evidence. In the absence of objection by the appellee, the sentencing judge was free to consider the presentence report and the victim’s testimony. Commonwealth v. Doyle, supra, 275 Pa.Super. at 382, 418 A.2d at 1341. Thus, the Commonwealth proved by a preponderance of the evidence that appellee possessed a deadly weapon during the commission of the current conviction offense.

Despite my belief that the Commonwealth proved by a preponderance of the evidence that appellee possessed and used a weapon during commission of the current conviction offense, I feel nevertheless that a new sentencing hearing is required. Section 9712(b) of the Mandatory Minimum Sentencing Act requires that “reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing.” I agree that such notice should also be required under the deadly weapon enhancement provision in order to insure that a convicted defendant’s due process rights are not violated. Instantly, it is not clear whether appellee was provided with such notice. Perhaps appellee’s failure to present contradictory evidence at the sentencing hearing was caused by a lack of notice. Thus, I would remand for a new sentencing hearing at which both the Commonwealth and appellee could present evidence as to the issue of whether appellee possessed a deadly weapon during commission of the current conviction offense. After hearing such evidence, the sentencing court should then determine, by a preponderance of the evidence, whether the deadly weapon enhancement provision of the Sentencing Guidelines is applicable.

Although I do not deny that it would be better practice for the Commonwealth to indicate its belief that the defendant possessed a deadly weapon during the commission of the crimes charged sometime prior to the entry of a guilty plea, I do not agree that its failure to do so in the instant case was fatal to its request for application of the deadly weapon enhancement provision of the sentencing guidelines. Thus, I disagree with Parts I and II of the majority opinion; I would remand for a new sentencing hearing and resentencing.

With respect to Part III of the majority opinion, I agree with the Concurring Statement by Johnson, J. that the constitutionality issue was not raised by the parties to this appeal and should not be raised sua sponte by this court.

      . 18 Pa.C.S.A. § 2902

      . 18 Pa.C.S.A. § 2702

      . 18 Pa.C.S.A. § 3921

      . 42 Pa.C.S.A. § 9721(b) incorporating Sentencing Guidelines, 204 Pa.Code Ch. 303, adopted May 14, 1982, effective July 22, 1982; promulgated by the Pennsylvania Commission on Sentencing, pursuant to authority granted by 42 Pa.C.S.A. § 2154 (1980, Oct. 5, P.L. 693, No. 142, § 218(a), effective in 60 days).

      . In Section 6102, Definitions, “Firearm” and "Crime of Violence” are also clearly defined.

      . See abo Annot., 33 A.L.R.3d 922, kicking as assault with deadly weapon; Annot., 100 A.L.R.3d 287, pocket or clasp knife as a deadly weapon; 89 A.L.R.3d 1026, automobile as a deadly weapon; Annot., 7 A.L.R.4th 607, dogs as a deadly weapon; Annot., 8 A.L.R.4th 843, walking cane as deadly weapon.


source: Caselaw Access Project

author: JOHNSON, Judge:

license: Public Domain

text:
    500 A.2d 125
    Bonita M. OLSON v. Edward J. DIETZ, Appellant.
    Superior Court of Pennsylvania.
    Submitted July 17, 1985.
    Filed Oct. 18, 1985.

      Samuel E. Teeter, Gettysburg, for appellant.
    Roy Alan Keefer, Assistant District Attorney, Gettysburg, for appellee.
    Before TAMILIA, JOHNSON and HOFFMAN, JJ.
   JOHNSON, Judge:

This appeal asks us to review the validity of a jury charge on the evidentiary value of red cell and Human Leukocyte Antigen (HLA) test results in determining paternity. Appellant also invites us to reconsider our holding in Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983) which found such test results to be admissible to prove the likelihood of paternity. Finding no error in the charge as submitted to the jury, and being unpersuaded by Appellant’s arguments to reconsider Turek v. Hardy, we affirm.

On June 6, 1983 Appellee, Bonita M. Olson, filed a complaint for child support naming Appellant, Edward J. Dietz, as the father of Scott A. Olson who was born on June 30, 1982. At a support conference held on June 16, 1983, however, Appellant denied paternity of the child, and requested a jury trial on that issue. Appellant agreed, at this support conference, to submit to cell and HLA typing tests for the purpose of determining whether he could be excluded as the father of the child.

On July 7,1983 blood samples of Appellant, Olson and the child, drawn the previous day, were subjected to red blood cell and HLA blood testing at the Baltimore RH Typing Laboratory in Baltimore, Maryland. A letter from the laboratory to the Domestic Relations Office indicated that, based upon those tests, Appellant could not be excluded as the father of the child. The letter also included two other formulations: a “paternity index” of 110 to 1 and a “plausibility of paternity” of 99.10%.

One commentator has described the exclusion and inclusion procedures thus:

... The exclusion procedure comprises the identification of certain genetic markers in the blood of the mother, child, and putative father; followed by the application of “Mendelian rules of inheritance” to determine whether it would be genetically impossible for the accused to be the biological father. An exclusion may occur in two ways. First, the child may possess a genetic characteristic which had to have come from someone other than the defendant. Second, the child may lack a genetic marker that he would have to possess if the accused were the father. In either of these situations, the defendant is conclusively proved innocent without any statistical estimations. In many cases, the possibility of exclusion may approach 99% when several genetic marker systems are used. The credibility of the exclusion method is beyond reproach in the scientific community, and most courts will accept results indicating non-paternity as conclusive proof.
... Basically, the inclusion procedure commences where the exclusion procedure terminates. In other words, when the typing stage (the method described above as the “exclusion method”) fails to exclude the accused, a statistical estimation of his “likelihood of paternity” is calculated. This calculation entails the use of a probability formula known as the “Essen-Moller” version of the “Bayes’ Theorem.” A simplified version of this formula may be summarized as follows: The ratio of the likelihood that the accused contributed certain genetic characteristics identified in the child, to the likelihood that one other “random man” contributed them. The “random man” variable is derived from the estimated frequencies of the particular characteristics in the relevant population. The ratio yielded by the Bayes’ formula, called the “paternity index,” is converted into a percentage value, “the likelihood of paternity,” which is then presented to the trier of facts.

Case Comment, Human Leukocyte Antigen Test Results Are Admissible in Paternity Cases to Show the Likelihood of Paternity. Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983), 88 DICK.L.REV. 565, 567-69 (1984) (footnotes omitted).

Before the trial was scheduled to commence, Appellant filed a Motion to Exclude Red Cell and HLA Test Results as Affirmative Evidence of Paternity, which motion the trial court denied; and, at trial, two technologists from the laboratory were permitted to introduce testimony concerning the “paternity index” and “plausibility of paternity.” Appellant’s motion for non-suit, his subsequent request for a directed verdict, and certain points for charge were refused by the trial court as well.

Appellant timely filed post-trial motions which were dismissed by the trial court, and the Domestic Relations Officer was thereby directed to schedule the case for a hearing. An order for weekly child support was subsequently issued on February 6, 1985. This appeal followed.

Appellant first questions whether the trial court erred when it denied his motion to exclude the red cell and HLA test results as affirmative evidence of paternity. In Turek v. Hardy, 312 Pa.Super. 158, 458 A.2d 562 (1983) this Court held that blood test results which show that a defendant is likely to be the father are admissible as some proof of paternity. We there said that, before the results of such testing are admissible, a proper foundation must be laid. Appellant does not attack the foundation upon which the evidence was presented, but argues that the test results should have been excluded since their probative value was substantially outweighed by the danger of confusion or unfair prejudice to Appellant. Since this Court has already determined that such test results are admissible, and since our review of the record on this appeal does not disclose any support for Appellant’s assertion regarding unfair prejudice or confusion, we conclude that this first issue is without merit.

Appellant next challenges the refusal of the trial court to give two of his requested points for charge. In evaluating a claim of erroneous instructions to the jury, we must analyze the court’s charge in its entirety. Bohner v. Stine, 316 Pa.Super. 426, 463 A.2d 438 (1983); Crotty v. Reading Industries, Inc., 237 Pa.Super. 1, 345 A.2d 259 (1975). If a legally valid requested point for charge is sufficiently and adequately covered in the trial court’s instructions to the jury, it is appropriate to deny the request. Bohner v. Stine, supra. See also Donaldson v. Sepesy, 415 Pa. 194, 202 A.2d 823 (1964); Morris v. Moss, 290 Pa.Super. 587, 435 A.2d 184 (1981).

Appellant contends that the trial court erred in refusing to. instruct the jury, as requested, on the issue of evidentia-ry value of the red cell and HLA test results. Appellant’s requested points for charge Nos. 4 and 6, and the trial court’s charge regarding them, were as follows:

REQUEST: 4. In any event, you must understand that the red cell, and HLA test results supply no more than statistical or probabilistic proof — indices of estimates of reality, not direct proofs of reality. The red cell and HLA test results are not circumstantial evidence of sexual intercourse between Ms. Olson and Ed Dietz, nor circumstantial evidence of the likelihood of conception by virtue of any such sexual intercourse between Ms. Olson and Ed Dietz. Those statistical results are no substitute for your evaluation and findings as to whether the sexual relations of Ed Dietz with the Plaintiff occurred during the period of time in which Scott Olson could have been conceived, according to the usual laws of nature, and whether that sexual contact was the direct cause of her pregnancy. REQUEST: 6. [If the Court does not exclude the HLA tests as affirmative evidence of paternity] Evidence of the HLA blood test has been introduced and, based on that evidence an opinion has been expressed concerning the degree of probability that Mr. Dietz is the father of the child. You must bear in mind that the probability of paternity results of such tests are in part based upon certain underlying assumptions, including the assumption that there is a 50% chance that Mr. Dietz is the child’s father, and a 50% chance that a random man is the child’s father. You must therefore bear in mind that neither the making of such an assumption, nor the probability of paternity results, constitute any evidence that Mr. Dietz had sexual intercourse with Ms. Olson at or about the time Scott A. Olson was conceived. Therefore, in determining whether Mr. Dietz had sexual intercourse with Ms. Olson at or about the time when, according to the usual laws of nature, the child was conceived, you must disregard the probability of paternity results. If the Plaintiff has failed to prove to your satisfaction by a preponderance of the evidence independently of the probability of paternity results that Mr. Dietz had sexual intercourse with Ms. Olson at or about the time when, according to the usual laws of nature, the child was conceived, then regardless of the HLA probability of paternity results, you must find that Mr. Dietz is not the father of Scott A. Olson.
CHARGE: ... You will have to determine two things basically in determining whether or not the verdict should be is or whether it should be is not. The first thing that you will have to find by a fair weight or preponderance of the evidence is that Bonita Olson and Edward Dietz had sexual intercourse at a time in which conception could have occurred.
The second issue that you would determine would be whether as a result of that act of sexual intercourse a conception occurred whereby the life of Scott A. Olson came into being. With respect to that issue, you’ve heard the testimony of Miss Olson that that’s the time she got pregnant. Dr. Hammett, again his testimony is relevant and the testimony of Margaret Brooks and of Terry Houtz giving you the results of the HLA and red corpuscle blood test results.
I will talk to you in a little more detail about the results of those tests but the issues are somewhat independent, members of the panel, and I would suggest to you that you approach this case from a logical standpoint. Determine whether the act of sexual intercourse occurred. Then determine whether the act of sexual intercourse occurred during the time that pregnancy could have resulted as a result of that. If you find that those answers are yes, then you should go on to consider the result of the HLA and red corpuscle or red cell blood test. The results of those tests do not, of course, prove that intercourse occurred and they do not prove that intercourse occurred at a particular time. So you will have to make an independent finding of those first two issues before you could actually go on to the third one.
... If you find that there was no act of sexual intercourse in this particular case, then you would just disregard the test results because it must be proven there was an act of sexual intercourse between this Plaintiff and this Defendant before the test results may be considered by you.
I’ll repeat again, in order for the probability of paternity indexes or results to be relevant, you must find first that there was sexual intercourse between Miss Olson and Ed Dietz which occurred at a time that conception could have occurred. Your failure to find that sexual intercourse so occurred would render the results of the paternity test irrelevant.

We have reviewed the record in this case and conclude that the trial court did not err by refusing these two points for charge, since the substance of these requested points was amply covered by the court’s charge to the jury. See Bohner v. Stine, supra; Fink v. Commonwealth, 85 Pa.Commw. 290, 482 A.2d 281 (1984).

Appellant asks us to consider, finally, whether the trial court erred in denying his post-verdict motions in the nature of a motion for judgment notwithstanding the verdict, and a new trial. In support of this contention, Appellant relies heavily upon the testimony of Dr. James Hammett concerning his examinations of Appellee Olson, and an ultrasound test which was performed upon her on June 24, 1982.

While, as Appellant alleges, Dr. Hammett did testify that Appellee Olson’s uterus had enlarged to the size of a four month pregnancy by the time of his examination on December 16, 1981, he also stated that that calculation was approximate and that she could have become pregnant during September, or in early October, of 1981. N.T., 6/21/84 at 7. See also N.T., 6/21/84 at 23.

Appellee Olson, herself, testified that her last normal menstrual period had occurred toward the end of September, 1981. Supp.N.T., 6/21/84 at 11. She also testified that she and Appellant had engaged in sexual intercourse once at the end of September and once at the beginning of October, and that Appellant had reached a climax on both occasions. Supp.N.T., 6/21/84 at 7-8. Appellee Olson stated, furthermore, that she was not seeing anyone else on a sexual basis during the months of September and October, 1981. Supp.N.T., 6/21/84 at 9.

A judgment notwithstanding the verdict may be entered only in a clear case, Sperrazza v. Cambridge Mutual Fire Insurance Company, 313 Pa.Super. 60, 459 A.2d 409 (1983), and is proper only where the facts are such that no two reasonable persons could fail to agree that the verdict is improper. Buck v. Scott Township, 325 Pa.Super. 148, 472 A.2d 691 (1984). Judgment n.o.v. should not be entered in cases where evidence is conflicting upon a material fact. Burg v. Aberman, 183 Pa.Super. 1, 128 A.2d 179 (1957). In considering such a motion, a reviewing court is required to consider the evidence, together with all reasonable inferences therefrom, in the light most favorable to the verdict winner. Claytor v. Durham, 273 Pa.Super. 571, 417 A.2d 1196 (1980).

Assuming as true, therefore, Appellee Olson’s testimony that her last normal menstrual period had occurred toward the end of September 1981, and that she had had sexual intercourse with Appellant in late September and-early October 1981, and with no one else during those months, Dr. Hammett’s testimony, by itself, was not sufficient to exclude Appellant as the possible father. The evidence respecting a material fact was, indeed, conflicting and it was, thus, proper for the jury to determine, by a preponderance of the evidence, whether Appellant was the father of Scott Olson. Appellant’s motion for judgment n.o.v. was properly denied.

We note, also, that the grant of a new trial is within the sound discretion of the trial judge, whose exercise thereof will not be reversed in the absence of a palpable abuse of discretion. Yandrich v. Radic, 291 Pa.Super. 75, 435 A.2d 226 (1981). Perceiving no palpable abuse of discretion in the trial court’s refusal to grant Appellant a new trial, such motion for new trial was also properly denied.

Order affirmed.