Com. v. Matos, H. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
HANNAH MATOS
Appellee No. 1608 MDA 2015
Appeal from the Judgment of Sentence August 6, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001140-2014
BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JULY 06, 2016
Appellant, the Commonwealth of Pennsylvania, appeals from the
August 6, 2015 aggregate judgment of sentence of 11½ to 23½ months’
incarceration, imposed by the trial court after a jury convicted Appellee,
Hannah Matos, of two counts of aggravated assault, and one count of simple
assault.1 After careful review, we affirm.
Our review of the certified record reveals that the victim, Lafone
Brown, testified to dating Appellee, but ultimately ending the relationship.
N.T., 6/25/15, at 45-49. On June 12, 2014, the victim agreed to meet
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*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2702(a)(1) and (4), 2701(a)(1), and 2709(a).
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Appellee at her home to exchange some vacation photographs. Id. at 51-
52. When the victim clarified that he wanted the relationship to end,
Appellee became upset and began threatening suicide, and ultimately left
the victim at the home overnight with her 10 year-old son. Id. at 52-55.
Appellee returned the next morning and confronted the victim when he
attempted to leave. Id. at 56-58. Appellee followed the victim and hit him
with a belt. Id. at 62-63. Then Appellee “pulled a hammer from behind her
back” and “swung it at [the victim] multiple times … hitting [him] once in
the arm.” Id. at 63-64. The victim “was able … to [get] the hammer” from
Appellee. Id. at 65. He then “started jogging away.” Id. The victim
“thought [he] was clear” when he saw Appellee in her vehicle driving toward
him. Id. at 68. The victim resumed jogging away from Appellee. Id. at 70.
The victim noticed Appellee had a second hammer. Id. at 72.2 Appellee
began driving after the victim, who jumped over a fence. Id. at 75. The
victim then saw a sign that said “leasing office,” and he entered the building
and called the police. Id. at 79.
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2
The victim said it was not the same hammer, and he “remembered
thinking, like, who has two hammers[?]” Id. at 72.
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Relative to the June 13, 2014 incident, Appellee was charged with the
aforementioned offenses and appeared for a jury trial on June 25, 2015.3
After the verdicts were rendered, the trial court deferred sentencing to
August 6, 2015, when it sentenced Appellee to 11½ to 23½ months’
incarceration at Count 1, aggravated assault; 5 years’ consecutive probation
at Count 2, aggravated assault; with Counts 5 and 6, simple assault and
harassment, merging. N.T., 8/6/15, at 5-8. On August 7, 2015, the
Commonwealth filed a motion to modify sentence, and, after hearing
argument, the trial court entered an order on September 3, 2015, denying
the motion. The Commonwealth filed a timely notice of appeal on
September 16, 2015.4
On appeal, the Commonwealth presents two sentencing issues for our
review.
1. Did the Sentencing Court err by refusing to apply
the Deadly Weapons Enhancement even though
the jury made a specific finding that [Matos]
utilized a deadly weapon in the commission of her
crimes?
2. Did the Sentencing Court impose an unreasonably
lenient sentence?
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3
Appellee was also charged with terroristic threats, stalking and
harassment. The jury acquitted Appellee of terroristic threats and stalking,
while the trial court found Appellee guilty of harassment.
4
The Commonwealth and the trial court have complied with Pennsylvania
Rule of Appellate Procedure 1925.
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Commonwealth’s Brief at 5.
At the outset, we note that both of the Commonwealth’s issues pertain
to the discretionary aspects of Appellee’s sentence. “There is no absolute
right to appeal when challenging the discretionary aspect of a sentence.”
Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation
omitted). When an appellant forwards an argument pertaining to the
discretionary aspects of the sentence, this Court considers such an argument
to be a petition for permission to appeal. Commonwealth v. Buterbaugh,
91 A.3d 1247, 1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal
denied, 104 A.3d 1 (Pa. 2014). “[A]n [a]ppeal is permitted only after this
Court determines that there is a substantial question that the sentence was
not appropriate under the sentencing code.” Commonwealth v. Cartrette,
83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (internal quotation marks
and citation omitted).
Prior to reaching the merits of a discretionary aspects of sentencing
issue, this Court is required to conduct a four-part analysis to determine
whether a petition for permission to appeal should be granted.
Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)
(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we
must determine the following.
(1) [W]hether appellant has filed a timely notice of
appeal, Pa.R.A.P. 902, 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, Pa.R.Crim.P.
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[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).
Id.
Instantly, the Commonwealth filed a timely motion for modification of
sentence and notice of appeal. Also, the Commonwealth has included a Rule
2119(f) statement in its brief. Commonwealth’s Brief at 17. We therefore
proceed to determine whether the Commonwealth has raised a substantial
question for our review.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d
323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75
(Pa. 2013). “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.” Id.
(citations omitted). “Additionally, we cannot look beyond the statement of
questions presented and the prefatory 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Provenzano,
50 A.3d 148, 154 (Pa. Super. 2012).
In this case, the Commonwealth advances two sentencing issues:
first, that the trial court abused its discretion when it “ignored the [d]eadly
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[w]eapon [e]nhancement,” and second, that the trial court sentenced
Appellee to “an excessively lenient sentence.” Pa.R.A.P. 2119(f) Statement,
Commonwealth’s Brief at 18. Relative to the Commonwealth’s first issue
asserting the trial court’s failure to apply the deadly weapon enhancement at
sentencing, “our case law has established that application of the deadly
weapons enhancement presents a substantial question.” Commonwealth
v. Raybuck, 915 A.2d 125, 127 (Pa. Super. 2006) (internal citations
omitted). Likewise, with regard to the Commonwealth’s second issue that
the trial court imposed an “unreasonably lenient” sentence, such claim raises
a substantial question. Commonwealth v. Childs, 664 A.2d 994, 996 (Pa.
Super. 1995) (stating that the Commonwealth’s claim that the sentence
imposed was excessively lenient presented a substantial question), appeal
denied, 674 A.2d 1066 (Pa. 1996). Based on the foregoing, we will address
the merits of the Commonwealth’s two issues.
The Commonwealth first contends that the trial court erred when it
“ignore[d] the jury’s specific finding”5 and failed to apply the deadly weapon
enhancement to Appellee’s sentence. Commonwealth’s Brief at 25.
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5
The Commonwealth states that “the jury decided that [Appellee] had used
a weapon capable of causing death or serious bodily injury when the jury
found her guilty of [aggravated assault pursuant to 18 Pa.C.S.A.
§ 2702(a)(4)].” Commonwealth’s Brief at 23. The Commonwealth
concedes, however, that “the jury did not indicate whether the SUV or the
hammer was the deadly weapon.” Id. at n.4. Significantly, as noted below,
the sentencing code precludes the application of the deadly weapon
enhancement to a conviction under § 2702(a)(4).
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Preliminary, we note that the United States Supreme Court decision of
Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013), holding that
“facts that increase mandatory minimum sentences must be submitted to
the jury … and found beyond a reasonable doubt,” does not apply to this
case. In Commonwealth v. Ali, we observed that Alleyne “has no
application to [] sentencing enhancements [because] [t]he parameters of
Alleyne are limited to the imposition of mandatory minimum sentences.”
Commonwealth v. Ali, 112 A.3d 1210, 1225-1226 (Pa. Super. 2015),
appeal granted in part, 127 A.3d 1286 (Pa. 2015). We further recognize
that the sentencing code prohibits application of the deadly weapon
enhancement to an aggravated assault conviction under 18 Pa.C.S. §
2702(a)(4) (“[t]here shall be no Deadly Weapon Enhancement for … (vi)
Aggravated Assault (18 Pa.C.S. § 2702(a)(4)”), such that the trial court
could not have applied the deadly weapon enhancement to Appellee’s
conviction at Count 2. 204 Pa. Code § 303.10.
In support of its argument that the enhancement should apply, the
Commonwealth cites Buterbaugh, supra, as “analogous to the case at
hand.” Commonwealth’s Brief at 21. We recognize, as did our en banc
Court in Buterbaugh, the relevant statutory provision as follows.
(a) Deadly Weapon Enhancement.
(1) When the court determines that the
offender possessed a deadly weapon during
the commission of the current conviction
offense, the court shall consider the
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DWE/Possessed Matrix (§ 303.17(a)). 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, (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 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.
(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 (emphasis added).
In Buterbaugh, we affirmed the trial court’s application of the deadly
weapon enhancement to the appellant/defendant’s sentence, where the trial
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court “determined that Appellant’s truck was a deadly weapon for purposes
of the [deadly weapon enhancement].” Id. at 1267. The foregoing
statutory language is critical to our review. As quoted above, the deadly
weapon enhancement statute states clearly that “the court determines”
whether a deadly weapon was possessed or used. 204 Pa. Code
§ 303.10(a). In the present case, the trial court expressly determined that
the deadly weapon enhancement did not apply. The trial court explained as
follows.
The deadly weapon enhancement provision of
the sentencing guidelines provides that when the
[trial] court determines that the defendant
possessed a deadly weapon during the commission
of a criminal offense, the court must add at least 12
months and up to 24 months to the guideline
sentence that would otherwise have been applicable.
See 204 Pa. Code § 303.4. … Devices, implements,
and instrumentalities not designed to inflict harm can
become deadly weapons by the manner in which
they are used. Commonwealth v. Rhoades, 8
A.3d 912, 917 (Pa. Super. 2010). For a deadly
weapon finding to apply, such an item must be
“capable of producing death or serious bodily injury.”
204 Pa. Code § 303.10(a)(2)(iii).
…
[T]he [trial c]ourt properly found that [Appellee’s]
use of a hammer to hit the victim once in the arm
did not cause the hammer to be used in a way
capable of producing serious bodily injury and
[Appellee’s] use of her motor vehicle did not rise to
the level of using a deadly weapon.
Trial Court Opinion, 9/3/15, at 2-3 (emphasis added).
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Given the trial court’s reasoning and statutory role as the determiner
pursuant to 204 Pa. Code § 303, we are not persuaded by the
Commonwealth’s argument that the trial court erred by failing to apply the
deadly weapon enhancement in sentencing Appellee.
In its second issue, the Commonwealth argues that the trial court
erred in sentencing Appellee “to an unreasonably lenient sentence for her
crimes by sentencing her to the low end of the standard-range sentence on
Count One and to a mitigated sentence on Count Two.” Commonwealth’s
Brief at 31. In reviewing this claim, we recognize that we may vacate a
sentence only when “the sentencing court sentenced outside the guidelines
and the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). There are
four statutory factors we must consider in reviewing the certified record.
They are: (1) the nature and circumstances of the offense and the history
and characteristics of the defendant, (2) the opportunity of the sentencing
court to observe the defendant, including any presentence investigation, (3)
the findings upon which the sentence was based, and (4) the guidelines
promulgated by the commission. Id. § 9871(d)(1)-(4). Further, our
Supreme Court has explained as follows.
[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. [A]n abuse
of discretion is more than a mere error of judgment;
thus, a sentencing court will not have abused its
discretion unless “the record discloses that the
judgment exercised was manifestly unreasonable, or
the result of partiality, prejudice, bias or ill-will.” In
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more expansive terms, … “An abuse of discretion
may not be found merely because an appellate court
might have reached a different conclusion, but
requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.”
Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (citations and
footnote omitted). “[W]hat makes a sentence ‘unreasonable’ is not defined
in the statute. Generally speaking, ‘unreasonable’ commonly connotes a
decision that is ‘irrational’ or ‘not guided by sound judgment.’” Id. at 963.
Further, the sentencing court is permitted to deviate from the sentencing
guidelines so long as the court places on the record its reasons for the
deviation. 42 Pa.C.S.A. § 9721(b). “Although the sentencing court is
required to consider and consult the Sentencing Guidelines when imposing a
sentence, it retains the discretion to sentence below the mitigated range as
long as it clearly explains the reasons for doing so. If the sentence imposed
is outside of the recommended guidelines, the trial court must provide a
contemporaneous written statement of the reason or reasons for the
deviation or it must state on the record in the presence of the defendant the
reasons for the sentence.” Commonwealth v. Childs, 664 A.2d 994, 996
(Pa. Super. 1995).
Instantly, upon review, we do not find that the trial court’s sentence
was an abuse of discretion or unreasonable. The trial court rendered its
sentence, on the record, as follows.
The [trial c]ourt will base the following sentence on
the minimum amount of confinement imposed
consistent with the protection of the public, the
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gravity of the offense, [and] the rehabilitative needs
of [Appellee]. The [trial c]ourt has relied on the
presentence report, incorporates [it] into the record
[in the] reasons for the sentence, as well as
additional submitted material [including letters
supporting Appellee]. The [trial c]ourt had a chance
to review statements by both counsel. And the [trial
c]ourt did review the sentencing memorandum
provided by the Commonwealth.
The [trial c]ourt has considered the
circumstances of the offense[s], it did sit through the
trial, and also [Appellee’s] circumstances, character,
education, the fact that she is a mother of a small,
younger child, and has looked to the sentencing code
and guidelines. The [trial c]ourt having sat through
the trial and having heard everything, and, having
learned about [Appellee] finds that … she obviously,
under the sentencing guidelines, needs the
incarceration, but the [trial c]ourt will go into the
mitigated range and sentence [her at Count One,
aggravated assault, to 11½ to 23½ months’
incarceration].
…
[At Count Two, aggravated assault, to a consecutive
five years’ probation. Count Five, simple assault,
and Count Six, harassment, merge.]
N.T., 8/6/15, at 4-6, 8.
The trial court further commented as follows.
[Appellee], I sat through your trial. Your
charges are serious. I have made a decision that,
you know, with what you have going on in life, that
you have the possibility that state prison wasn’t
going to be the right place for you, that you should
have a chance to be with your family. You have
issues that you need to work on, and I’m hoping that
you have a chance to do that during this time period
and that you can get out and get on with your life
and get back to your son and move on from there.
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And that was one of the main reasons for this
sentence.
Id. at 9.
In addition to being familiar with the facts of the case, the trial court
was well-aware of the Commonwealth’s position regarding sentencing. After
hearing from the Commonwealth on August 6, 2015 and imposing Appellee’s
sentence, and then reviewing the Commonwealth’s subsequent motion to
modify sentence, the trial court convened oral argument on August 31,
2015, and at the conclusion of argument stated, “All right. I’ll take a look at
it and I will have a decision. Thank you.” N.T., 8/31/15, at 13. The trial
court thereafter denied the Commonwealth’s motion to modify sentence.
Given the record before us as detailed above, we find no abuse of the
trial court’s discretion in rendering Appellee’s sentence. Accordingly, we
affirm the August 6, 2015 judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/6/2016
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