Commonwealth v. Solomon , 2016 Pa. Super. 259 ( 2016 )

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2016 PA Super 259COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MELVIN TAYLOR SOLOMON :
:
Appellant : No. 1209 WDA 2015
Appeal from the Judgment of Sentence October 13, 2013
in the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0016014-2012
BEFORE: BENDER, P.J.E., RANSOM, J., MUSMANNO, J.
OPINION BY RANSOM, J.: FILED NOVEMBER 22, 2016
Melvin Taylor Solomon (Appellant) appeals from the judgment of
sentence of seven and one-half to fifteen years of imprisonment. This
sentence was imposed after Appellant entered a guilty plea to aggravated
assault, attempting to elude a police officer, reckless endangerment, driving
without a license, and driving at an unsafe speed.1 We affirm.
The trial court outlined the relevant factual history as follows:
[In September of 2012, Appellant] was driving [an SUV]
recklessly in the Homewood Section of the City of Pittsburgh.
City of Pittsburgh Police Officer Baker[, who was in a marked
police vehicle with his partner Police Officer Schutz,] decided to
initiate a traffic stop. Instead of stopping, however, [Appellant]
fled. The pursuit went from the City of Pittsburgh through the
Boroughs of Wilkinsburg, Churchill, Penn Hills and, ultimately,
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1
Respectively, see 18 Pa.C.S. §§ 2702(a)(1), 3733(a), 2705; 75 Pa.C.S. §§
1501(a), and 3361.
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into Verona, Pennsylvania. At this time, [Appellant] brought the
vehicle to an abrupt stop in an alleyway in Verona. [Appellant]
traveled in excess of eighty miles per hour during this pursuit.
Once [Appellant] brought the vehicle to a stop in this alley both
Officer Baker and []Officer Schutz[] exited [their] vehicle[, which
was stopped approximately fifteen feet behind Appellant].
Rather than comply with the Officers’ warnings, [Appellant] put
the vehicle in reverse and drove in reverse toward the police
vehicle. [Appellant] missed Officer Baker by approximately one
foot and continued on toward Officer Schutz. The summary of
the evidence described an eight-foot separation between the
police car and a parked van in the alleyway. [Appellant] drove
the vehicle directly at Officer Schutz who, fearing for his life,
fired at the rear of the vehicle. Officer Schutz was somehow
able to jump behind the police vehicle and avoid being run over.
Officer Baker, believing that his partner had been run over, fired
additional shots at the vehicle as it exited the alley in reverse.
[Appellant] was later identified as the driver of this vehicle and
charged with these crimes. At the sentencing proceeding
videotape was played reflecting [Appellant’s] driving in the
relevant time period.
Trial Court Opinion, 10/28/15, at 3-4.
Following a hearing with the trial court in July of 2013, Appellant
entered a guilty plea to the aforementioned crimes. A pre-sentence report
was ordered. At Appellant’s sentencing hearing in October of 2013, defense
counsel argued that the Deadly Weapon Enhancement should not apply to
the Appellant; however, the court was not persuaded. Appellant was
sentenced to seven and one-half to fifteen years of imprisonment for the
aggravated assault, plus seven years of probation to be served consecutively
for the fleeing and eluding charge, and two years’ probation to be served
concurrently with the preceding probation sentence for recklessly
endangering another. No further penalty was assessed on the remaining
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charges. Appellant filed post-sentence motions, which were denied. No
appeal was filed.2
Thereafter, Appellant timely filed a petition for collateral relief
pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Appellant’s PCRA petition was granted, and his appellate rights were
reinstated nunc pro tunc. Appellant timely appealed and filed a court-
ordered Pa.R.A.P. 1925(b) statement. The trial court issued a responsive
opinion.
Appellant presents the following question for our review:
1. Did the sentencing court err when it applied the 204
Pa.Code § 304.10(a) Deadly Weapon Enhancement in Appellant’s
case (given that the Commonwealth failed to prove at
[s]entencing that he, during his crimes, used or possessed a
firearm, a dangerous weapon, or an object that was used or
intended to be used to [produce] death or serious injury), with
the remedy for that error being vacation of the sentences
imposed and remand for a resentencing hearing?
Appellant’s Brief at 3 (footnotes omitted).
In the sole issue before this Court, Appellant argues that the trial court
erred in reaching the conclusion that he drove the vehicle in a manner that
made the Deadly Weapon Enhancement applicable. Appellant’s Brief at 17.
Appellant asserts that, in reversing, he was using his car to (1) continue his
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2
Appellant did not take issue with his probation sentences. See Appellant’s
Brief at 28.
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flight after entering a dead end, and (2) prevent himself from being shot.3
Id.
Appellant’s challenge is to the discretionary aspects of his sentence.
See, e.g., Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa. Super.
2010) (en banc) (stating a challenge to the application of the deadly weapon
enhancement implicates the discretionary aspects of sentencing), appeal
denied, 20 A.3d 485 (Pa. 2011). Challenges to the discretionary aspects of
sentencing do not entitle an appellant to an appeal as of right.
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). Prior to
reaching the merits of a discretionary sentencing issue:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P. 720;
(3) whether appellant’s brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial question
that the sentence appealed from is not appropriate under
the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (most
citations omitted), appeal denied, 909 A.2d 303 (Pa. 2006).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
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3
Appellant supplements this argument regarding his intent in his Post-
Submission Communication. See Appellant’s Post-Submission
Communication, 10/4/16.
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separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002);
Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth
the reasons relied upon for allowance of appeal furthers the purpose evident
in the Sentencing Code as a whole of limiting any challenges to the trial
court’s evaluation of the multitude of factors impinging on the sentencing
decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa. Super. 2008) (emphasis in original) (internal quotation marks
omitted), appeal denied, 954 A.2d 895 (Pa. 2008), cert. denied, 129 S. Ct.
2450 (2009).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. See Commonwealth v. Anderson,
830 A.2d 1013, 1018 (Pa. Super. 2003). A substantial question exists “only
when the appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process.” Sierra, 752 A.2d at 912-13.
As an initial matter, we note that Appellant timely filed a notice of
appeal, preserved the instant issue at sentencing and in a post-sentence
motion, and included a Pa.R.A.P. 2119(f) statement in his brief. Therefore,
our analysis turns on whether there is a substantial question that the
sentence imposed is inappropriate under the Sentencing Code. See 42
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Pa.C.S.A. § 9781(b). This Court has “found on several occasions that the
application of the deadly weapon enhancement presents a substantial
question.” Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super.
2010). Appellant has complied with the requirements for consideration of a
challenge to the discretionary aspects of a sentence, as such, we will
consider the claim on its merits.
When reviewing a challenge to the discretionary aspects of sentencing,
we adhere to the following standard:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citing
Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)),
reargument denied (Feb. 17, 2015), appeal denied, 117 A.3d 297 (Pa.
2015).
The trial court sentenced Appellant according to the Deadly Weapon
Enhancement Used Matrix of the Sentencing Guidelines. See 204 Pa.Code §
303.17(b); Notes of Testimony (N.T.), 10/10/13, at 8. To determine
whether the Deadly Weapon Enhancement Used Matrix should apply, the
Sentencing Code provides, in pertinent part, as follows:
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(2) 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 (§ 303.17(b)). 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, (as defined in 42 Pa.C.S. §
9712) whether loaded or unloaded, 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).
Pennsylvania law defines a deadly weapon as “any firearm, 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.” 18 Pa.C.S.A. § 2301.
Serious bodily injury is defined as “[b]odily injury which creates a substantial
risk of death or which causes serious, permanent disfigurement, or
protracted loss or impairment of the function of any bodily member or
organ.” Id.
Items not normally considered deadly weapons can take on such
status based upon their use under the circumstances. Commonwealth v.
Raybuck, 915 A.2d 125, 128 (Pa. Super. 2006) (concluding commercial
mouse poison placed in sandwich was a deadly weapon) (citing
Commonwealth v. Scullin, 607 A.2d 750, 753 (Pa. Super. 1992) (finding
tire iron thrown at victim was a deadly weapon), appeal denied, 621 A.2d
579 (Pa. 1992)); Commonwealth v. Cornish, 589 A.2d 718, 721 (Pa.
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Super. 1991) (recognizing fireplace poker used to strike victim constituted a
deadly weapon). “The definition of deadly weapon does not demand that
the person in control of the object intended to injure or kill the victim.”
Scullin, 607 A.2d 753.
The sentencing court has no discretion to refuse to apply the deadly
weapons enhancement when it is appropriate. Commonwealth v.
Magnum, 654 A.2d 1146, 1149–50 (Pa. Super. 1995). The court must
begin its calculation of a sentence from the correct starting range, including,
when appropriate, the Deadly Weapons Enhancement. Id. at 1150. When a
sentencing court fails to begin its calculation of sentence from the correct
starting point, this Court will vacate the sentence and remand for
reconsideration of sentence. Id. (citing Scullin, 607 A.2d at 754); 42
Pa.C.S. § 9781(c)(1).
As used under the instant circumstances, we conclude that the SUV
was an instrument likely to produce death or serious bodily injury to Officer
Schutz and thus constituted a deadly weapon. The SUV became a deadly
weapon when Appellant drove it in reverse through an eight-foot-wide
opening directly at a person who was standing less than fifteen feet behind
him. N.T., 7/12/13, at 7-11.
Here, Appellant’s motivation for reversing the vehicle is of no moment.
If one drives a vehicle at another person, there is a high probability that the
victim will be seriously hurt or killed. Appellant pleaded guilty to aggravated
assault, a crime eligible for deadly weapon enhancement. See 204 Pa. Code
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§ 303.10(a)(2), 18 Pa.C.S. §2702(a)(1). Thus, the sentencing court had no
discretion to refuse to apply the Deadly Weapon Enhancement, as it was
appropriate. Magnum, 654 A.2d 1149–50.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
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