Com. v. Julian, C. ( 2023 )

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NON-PRECEDENTIAL DECSION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER J. JULIAN :
:
Appellant : No. 419 WDA 2022
Appeal from the Judgment of Sentence Entered March 10, 2022
In the Court of Common Pleas of McKean County Criminal Division at
No(s): CP-42-CR-0000234-2020
BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MAY 22, 2023
Christopher J. Julian (Julian) appeals1 from the judgment of sentence
imposed by the Court of Common Pleas of McKean County (trial court) after a
jury convicted him of aggravated cruelty to animals, cruelty to animals and
defiant trespass.2 On appeal, Julian challenges (1) the sufficiency of evidence
for his aggravated cruelty to animals and defiant trespass convictions, (2) the
trial court’s final charge to the jury, and (3) the application of the deadly
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* Retired Senior Judge assigned to the Superior Court.
1Julian purports to appeal from the jury verdict rendered on October 12, 2021.
His appeal, however, properly lies from the March 10, 2022 judgment of
sentence. See Commonwealth v. Pratt, 930 A.2d 561, 562 n.1 (Pa. Super.
2007). We have corrected the caption accordingly.
2 18 Pa.C.S. §§ 5534(a)(2), 5533(a) and 3503(b)(1)(i), respectively.
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weapon used enhancement to his sentence for aggravated cruelty to animals.
After review, we affirm his convictions but vacate his judgment of sentence
and remand for resentencing.
I.
On May 29, 2020, Julian was walking through the property of Thomas
Haberberger (Haberberger) even though Haberberger told him a week earlier
that he was no longer allowed to do so. Around the same time that Julian was
walking through the property, Haberberger returned home from work and let
his four dogs out of the house. The dogs soon found Julian and began barking
at him, and Julian pulled out a handgun and shot one of the dogs, a male
Pitbull Lab mix named Mocha. The gunshot went through Mocha’s back and
exited through his rear leg, just missing his spine. Amazingly, Mocha was not
paralyzed by the gunshot, as he returned to the house and crawled under the
porch, leaving behind a trail of blood.
Upon seeing the blood, Haberberger realized that Mocha had been shot
and had his son take the dog to a local veterinarian. When it was determined
that surgery and x-rays were needed, Mocha was taken to an animal hospital
two hours away near Buffalo. There, the treating veterinarian cleaned and
stapled the entry and exit wounds but could not remove the bullet fragments
that were left. Mocha would go on to make a full recovery but could not walk
normally or jump for two months after being shot.
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At his jury trial, Julian admitted that he shot Mocha but claimed
justification, testifying in his own defense that he shot Mocha only after the
dog attacked and bit him. At the end of trial, the jury found him guilty of the
offenses mentioned above.3 As a part of its verdict, the jury determined that
he both used and possessed a deadly weapon in committing aggravated
cruelty to animals and cruelty to animals. When Julian returned for
sentencing, the trial court applied the deadly weapon used enhancement in
sentencing him to 15 to 36 months’ imprisonment for aggravated cruelty to
animals.4 After his post-sentence motion was denied without hearing,5 Julian
filed this appeal.
On appeal, Julian raises six issues for our review:
1. Whether the trial court erred by not granting an acquittal or a
new trial for Aggravated Cruelty to Animals-Causing SBI/Death
when the Commonwealth did not prove beyond a reasonable
doubt that the dog suffered the alleged serious bodily injury?
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3Julian was acquitted of criminal attempt to commit aggravated cruelty to
animals.
4 The trial court imposed concurrent probationary sentences for defiant
trespass and cruelty to animals.
5 After sentencing on March 10, 2022, the trial court allowed trial counsel to
withdraw and appointed new counsel. On her last day to do so, newly-
appointed counsel filed a motion for an extension of time to file a post-
sentence motion. See Commonwealth v. Horst, 481 A.2d 677, 677-78 (Pa.
Super. 1984) (finding that a defendant may toll the time in which to file an
appeal if within the established ten-day period, the defendant files a request
for extension of time in which to file a post-sentence motion). After the trial
court granted the extension, Julian filed his post-sentence motion on March
30, 2022.
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2. Whether the trial court erred by not granting an acquittal or a
new trial for Defiant Trespass, when the Commonwealth did not
prove beyond a reasonable doubt that actual communication was
given by the dog owner to Julian, not to come onto his land/right
of way, when the testimony showed that [Julian] was using the
right of way with the dog owner’s knowledge and permission for
the past seven years?
3. Whether the trial court abused its discretion by not granting a
new trial when the jury instruction proposed by the
Commonwealth regarding willful trespass was not appropriate
under the circumstances of this case?
4. Whether the trial court abused its discretion and a new trial
shall be granted when, as per Commonwealth’s request, the court
gave to the jury an instruction regarding a specific intent to kill?
5. Whether the trial court abused its discretion when asked the
jury to make a finding regarding the DWE/Used enhancement?
6. Whether the trial court abused its discretion when sentenced
Mr. Julian to a sentence with a DWE/Used enhancement, when the
victim in the case was a dog and when the appropriate
enhancement would have been DWE/Possessed?
Julian’s Brief at 4-7 (cleaned up).
II.
A.
Julian first argues that the Commonwealth failed to present sufficient
evidence to convict him of aggravated cruelty to animals. While admitting
that he shot Mocha and caused bodily injury, Julian contends that his actions
did not cause serious bodily injury because Mocha did not suffer “serious,
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permanent disfigurement or protracted loss or impairment of the function of
a bodily member or organ.”6
The offense of aggravated cruelty to animals is defined, in relevant part,
as follows: “A person commits an offense if the person intentionally or
knowingly … [v]iolates section 5532 (relating to neglect of animal) or 5533
(relating to cruelty to animal) causing serious bodily injury to the animal or
the death of the animal.” 18 Pa.C.S. § 5534(a) (emphasis added). Serious
bodily injury is defined as “[b]odily injury that creates a substantial risk of
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6 Our standard of review for a sufficiency challenge is well-settled:
A claim challenging the sufficiency of the evidence is a question of
law. In determining whether the evidence was sufficient to
support a defendant’s conviction, we must review the evidence
admitted during the trial along with any reasonable inferences that
may be drawn from that evidence in the light most favorable to
the Commonwealth as the verdict winner. If we find, based on
that review, that the jury could have found every element of the
crime beyond a reasonable doubt, we must sustain the
defendant’s conviction. Further, a conviction may be sustained
wholly on circumstantial evidence, and the trier of fact—while
passing on the credibility of the witnesses and the weight of the
evidence—is free to believe all, part, or none of the evidence. In
conducting this review, the appellate court may not weigh the
evidence and substitute its judgment for the fact-finder.
Commonwealth v. Hummel, 283 A.3d 839, 846 (Pa. Super. 2022) (citations
omitted).
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death or causes serious, permanent disfigurement or protracted loss or
impairment of the function of a bodily member or organ.” 18 Pa.C.S. § 5531.7
Viewing the evidence in the light most favorable to the Commonwealth
as verdict winner, we find that there was sufficient evidence for the jury to
conclude that Mocha suffered “serious bodily injury.” First, the
Commonwealth presented photographs showing that Mocha’s entrance wound
continued to swell even two weeks after being shot. See N.T., 10/12/21, at
19. Haberberger testified that the swelling was caused by fluid that had built
up on the top of the spine. Id. Second, Haberberger testified that it took
Mocha two months before he could walk normally, telling the jury that Mocha
“was really tender, you know, like he didn’t want to jump or anything and
after about two months he finally was able to jump.” Id. at 25. Third, the
treating veterinarian at the animal hospital testified that he cleaned up and
closed the entry and exit wounds from the gunshot, with the entry wound
requiring four to five staples while the exit wound required four. Id. at 62-
63. Fourth, he testified that x-rays showed that Mocha had shrapnel from the
bullet that could not be removed and could require surgery in the future if it
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7 This differs from aggravated assault under 18 Pa.C.S. § 2702, which does
not require proof that serious bodily injury was inflicted but only that an
attempt was made to cause such injury. Commonwealth v. Rosado, 684
A.2d 605, 608 (Pa. Super. 1996). Where the victim does not sustain serious
bodily injury, the Commonwealth must prove that the appellant acted with
specific intent to cause serious bodily injury. Commonwealth v. Dailey, 828
A.2d 356, 359 (Pa. Super. 2003).
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became a problem. Id. at 63. He also testified that the x-rays were taken to
look for signs of internal damage because Mocha was limping. Id. at 64.
Taken together, we find that the Commonwealth presented sufficient
evidence establishing that Mocha suffered “serious, permanent disfigurement
or protracted loss or impairment of the function of a bodily member or organ.”
While not paralyzed by the gunshot, Mocha was still unable to walk or jump
normally for two months, as he continued to suffer swelling near his spine
because of the buildup of fluid. In addition, the Commonwealth presented
evidence that the bullet shattered inside Mocha while it traveled through him,
leaving behind metallic fragments that the veterinarian could not remove.
While those fragments did not appear to be a concern at the time, the
veterinarian testified that they could require surgery in the future if they
became a problem.
Again, under our standard of review for a sufficiency challenge, we are
obligated to view the evidence in the light most favorable to the
Commonwealth as verdict winner. Applying that standard, while Mocha did
not suffer permanent injuries, the Commonwealth still presented enough
evidence to establish that the gunshot caused the dog to suffer “serious,
permanent disfigurement or protracted loss or impairment of the function of
a bodily member or organ.” Accordingly, we find there was sufficient evidence
to convict Julian of aggravated cruelty to animals.
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B. Defiant Trespass
Julian next asserts that the Commonwealth did not present sufficient
evidence to convict him of defiant trespass. The crime of defiant trespass is
set forth in 18 Pa.C.S. § 3503(b)(1), which provides, in relevant part: “[a]
person commits an offense if, knowing that he is not licensed or privileged to
do so, he enters or remains in any place as to which notice against trespass
is given by: (i) actual communication to the actor[.]” Defiant trespass
contains an element of intent or mens rea; thus, a person committing that
offense must know he is not privileged to enter the premises.
Commonwealth v. White, 174 A.3d 61 n.1 (Pa. Super. 2017) (observing
that defiant trespass under 18 Pa.C.S.A. § 3503(b)(1) includes an element of
intent or mens rea, similar to the crime of criminal trespass under
§ 3503(a)(1)). To establish a violation under subsection 3503(b)(1)(i), it is
necessary to prove that the defendant: (1) entered or remained upon
property without a right to do so; (2) while knowing that he had no license or
privilege to be on the property; and (3) after receiving direct or indirect notice
against trespass. Commonwealth v. Wanner, 158 A.3d 714, 718 (Pa.
Super. 2017).
At trial, Haberberger testified about telling Julian that he was no longer
allowed on the property because of an incident that happened a week before
Mocha was shot. According to Haberberger, he heard a commotion on the
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property with his dogs and found Julian with a friend who was waving a stick
at the dogs.
Q. And did you tell him you’re not allowed on my property, or
how would he know that?
A. I did. My wife and I went down. We heard the dogs’
commotion again and there was a gentleman waving a big stick,
like a walking stick at the dogs, and we said that he’s no longer
welcome on our property.
Q. Did he argue with you?
A. No, not at all.
N.T., 10/12/21, at 21.
When asked about the incident again, Haberberger reiterated that he
told both Julian and his friend they were not allowed on his property.
Q. … Who did you speak to when you said they weren’t permitted
to be there anymore?
A. Basically both of them. I just said, look, you guys, this is it,
don’t come out here anymore.
Q. And so both of these men would have heard that?
A. Um-hmm.
Id. at 36-37.
After review, we find that there was sufficient evidence for the jury to
conclude that Julian knew he was no longer allowed on the property. While it
is true that Julian walked on the property for several years with no incident,
Haberberger testified unequivocally that Julian’s permission to be on the
property was revoked after Julian’s friend waved a stick at the dogs. Indeed,
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as shown by the above testimony, Haberberger told Julian he was not allowed
on the property and Julian did not argue with him. Then, when defense
counsel tried to suggest that maybe Haberberger’s comment was directed only
at Julian’s friend, Haberberger clarified that it was directed to both. The jury
was free to credit this testimony without any need for corroboration from
another witness. Thus, Julian’s sufficiency challenge to defiant trespass fails.
III.
Julian next contends that the trial court committed two errors in its final
charge to the jury. First, he argues that the court erred in instructing the jury
on the definition of willful trespass in connection with its justification
instruction. Second, he asserts that the court erred in instructing the jury
that firing a firearm in the general area of vital organs is enough to prove a
specific intent to kill.
Julian, however, never objected to the instructions. To preserve a
challenge to the adequacy or omission of a particular jury instruction, the
defendant must make a specific and timely objection to the instruction at trial
before the jury deliberates. Commonwealth v. Smith, 206 A.3d 551, 564
(Pa. Super. 2019); Pa.R.A.P. 302(b) (“A general exception to the charge to
the jury will not preserve an issue for appeal. Specific exception shall be taken
to the language or omission complained of.”); Pa.R.Crim.P. 647(C) (“No
portions of the charge nor omissions from the charge may be assigned as
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error, unless specific objections are made thereto before the jury retires to
deliberate.”).
“[I]n the criminal trial context, the mere submission and subsequent
denial of proposed points for charge that are inconsistent with or omitted from
the instructions actually given will not suffice to preserve an issue, absent a
specific objection or exception to the charge or the trial court’s ruling
respecting the points.” Commonwealth v. Hitcho, 123 A.3d 731, 756 (Pa.
2015) (internal quotation marks and citation omitted). Furthermore, “a
defendant waives subsequent challenges to the propriety of the jury charge
on appeal if he responds in the negative when the court asks whether additions
or corrections to a jury charge are necessary.” Commonwealth v. Moury,
992 A.2d 162, 178 (Pa. Super. 2010).
First, concerning the willful trespass instruction, Julian asked that the
jury be instructed that a person may kill or attempt to kill a dangerous dog
that is attacking them. In response, the Commonwealth requested that the
jury be instructed that such a defense was inapplicable if Julian was a “willful
trespasser.” When asked if he objected to this, Julian stated he had “no
reason to dispute that the law is the law and you’re entitled to instruct the
jury on that.” N.T., 10/12/21, at 175. When asked again if he objected to
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the definition being given, he responded he did not. Id. at 180. Thus, his
claim is waived.8
The same holds true for his claim that the jury should not have been
instructed about intent to kill in connection with cruelty to animals. Again,
when the trial court stated that it would instruct the jury in such a manner,
Julian answered that he had no issues with the instructions. Id. at 184.
Additionally, after the trial court gave its instructions, Julian again voiced no
objection. Id. at 196. Accordingly, his claim is waived. See Moury, 992
A.2d at 178-79 (finding defendant waived his challenge to the jury’s
instructions because he did not object when the court charged the jury and
defense counsel responded in the negative when the court asked if the defense
wished to add anything to the jury instructions).
IV.
Finally, Julian alleges that the trial court erred in having the jury
determine whether he used a deadly weapon in committing aggravated cruelty
to animals and, after the jury determined that he did, applying the
enhancement at sentencing.
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8Even if preserved, no relief would be due. Julian’s request for the instruction
was based on the dangerous dog section of the Dog Law, 3 P.S. § 459-502-A.
That section, however, “shall not apply if the threat, injury or damage was
sustained by a person who, at the time, was committing a willful trespass
or other tort upon the premises occupied by the owner of the dog[.]” 3 P.S.
§ 459-507-A (emphasis added).
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Application of the deadly weapon enhancement implicates the
discretionary aspects of sentence. See Commonwealth v. Rhoades, 8 A.3d
912, 915-16 (Pa. Super. 2010). “A challenge to the discretionary aspects of
a sentence must be considered a petition for permission to appeal, as the right
to pursue such a claim is not absolute.” Commonwealth v. McAfee, 849
A.2d 270, 274 (Pa. Super. 2004) (citation omitted). An appellant challenging
the discretionary aspects of his sentence must invoke this Court’s jurisdiction
by satisfying a four-part test:
[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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
omitted; brackets in original).
Julian satisfied the two first two requirements by filing a timely notice
of appeal and post-sentence motion. As for the third requirement, he fails to
include a Pa.R.A.P. 2119(f) statement in his brief. Failure to do so, however,
does not automatically waive an appellant’s argument unless the
Commonwealth lodges an objection to the omission. See Commonwealth
v. Roser, 914 A.2d 447, 457 (Pa. Super. 2006). As a result, because the
Commonwealth raises no objection to Julian’s failure to include a Pa.R.A.P.
2119(f) statement, we need not find waiver. Finally, this Court has found that
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application of the deadly weapon enhancement raises a substantial question.
See Commonwealth v. Rhodes, 8 A.3d 912, 916 (Pa. Super. 2010). Thus,
we address the merits of his sentencing claim.9
The deadly weapon enhancement provisions of the Sentencing
Guidelines provide that an enhancement “shall apply to each conviction
offense for which a deadly weapon is possessed or used.” 204 Pa. Code
§ 303.10(a)(4). The “used” enhancement provides:
(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
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9Our standard of review of a discretionary aspect of sentence challenge is
well-settled:
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. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014) (citation omitted).
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(iii) Any device, implement, or instrumentality capable of
producing death or serious bodily injury.
204 Pa. Code § 303.10(a) (emphasis added). To establish use of a deadly
weapon under this provision, the record must show that the defendant used
a weapon to threaten or injure the victim while committing the particular
offense. See, e.g., Commonwealth v. Shull, 148 A.3d 820, 831 (Pa. Super.
2016).
As noted, the deadly weapon used enhancement under § 303.10(a)(2)
applies only when the offender employs the deadly weapon in a way that
“threatened or injured another individual.” Julian focuses his sentencing claim
on the use of the word “individual,” arguing that given its common usage, the
word refers only to human victims and does not apply to animals such as dogs.
Julian contrasts this with the deadly weapon possessed enhancement under
§ 303.10(a)(1), which applies when the deadly weapon is “on the offender’s
person or within his immediate physical control.” 204 Pa. Code
§ 303.10(a)(1). As result, Julian asserts that the trial court should have
applied the deadly weapon possessed enhancement, which is not limited to a
human victim, rather the deadly weapon used enhancement, which applies
only when the victim is an “another individual.” We agree.
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To resolve Julian’s claim, we apply the rules of statutory construction.10
As this Court has explained:
In interpreting a statute, we are guided by the Statutory
Construction Act, 1 Pa.C.S. §§ 1501-1991. “The object of all
interpretation and construction of statutes is to ascertain and
effectuate the intention of the General Assembly.” 1 Pa.C.S.
§ 1921(a). “The plain language of the statute is the best indicator
of the legislature’s intent. To ascertain the plain meaning, we
consider the operative statutory language in context and give
words and phrases their common and approved usage.”
Commonwealth v. Chesapeake Energy Corp., 247 A.3d 934,
942 (2021). “When the words of a statute are clear and free from
all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). This Court
must give effect and ascribe meaning to each word and provision
chosen by our legislature, assuming none is mere surplusage.
See, e.g., Commonwealth v. McClelland, 660 Pa. 81, 233 A.3d
717, 734 (2020) (“Some meaning must be ascribed to every word
in a statute ... and there is a presumption that disfavors
interpreting language as mere surplusage.”); 1 Pa.C.S. § 1921(a)
(“Every statute shall be construed, if possible, to give effect to all
its provisions.”).
Commonwealth v. Ruffin, 282 A.3d 796, 802 (Pa. Super. 2022).
Furthermore, in discerning the legislative meaning of words and phrases, we
may consult dictionary definitions. See Commonwealth v. Gamby, 283
A.3d 298, 307 (Pa. 2022). See also THW Group, LLC v. Zoning Board of
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10“[A]lthough the Pennsylvania Commission on Sentencing, rather than the
General Assembly itself, directly adopts the sentencing guidelines and thus
they are not statutes per se, the guidelines nevertheless retain a legislative
character, as the General Assembly may reject them in their entirety prior to
their taking effect, subject, of course, to gubernatorial review.”
Commonwealth v. Bonner, 135 A.3d 592, 597 (Pa. Super. 2016) (cleaned
up).
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Adjustment, 86 A.3d 330, 336 (Pa. Cmwlth. 2014) (“[W]here a court needs
to define an undefined term, it may consult dictionary definitions for
guidance.”).
As expected, after consulting several dictionary definitions for
“individual” when used as a noun, we find the word is consistently defined as
of or relating to humans or persons in some manner.11 That this was the
Sentencing Commission’s intended meaning is confirmed when we look at the
history of the deadly weapon used enhancement and the Sentencing
Commission’s commentary. Until the Sixth Edition of the Sentencing
Guidelines became effective in June 2005, the deadly weapon used
enhancement under § 303.10(a)(2) applied not only to offenders who used a
deadly weapon in a way that “threatened or injured another individual,” but
also “in the furtherance of the crime.” As a result, in 2003, when our Supreme
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11 For instance, Webster’s Third New International Dictionary defines the first
subsense of “individual,” when used as a noun, as a “single human being as
contrasted with a social group or institution.” Webster’s Third New Int’l
Dictionary, 1152 (1993) (emphasis added). Black’s Law Dictionary defines
“individual” as “[o]f or relating to a single person or thing, as opposed to a
group.” Black’s Law Dictionary, 789 (8th Ed. 2004). According to the online
version of the American Heritage Dictionary, the first sense of the noun
“individual” has two possible subsenses: “(a) A single human considered apart
from a society or community,” or “(b) A human regarded as a distinctive or
unique personality.” ttps://ahdictionary.com/word/search.html?q=individual.
The Britannica Dictionary defines the noun “individual” as “a single person,”
“a person who is considered separate from the rest of a group” and “a
particular person.” https://www.britannica.com/dictionary/individual. Thus,
as shown by this survey of definitions, the common and approved usage of
the term “individual” typically refers to a human or person.
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Court considered whether § 303.10(a)(2) can be applied to cruelty to animals,
the Court held that “the clear and unambiguous language of the enhancement
provision for use of a deadly weapon directs the trial court to apply the
enhancement when the defendant has used a deadly weapon ‘in furtherance
of the crime.’ ” Commonwealth v. Hackenberger, 836 A.2d 2, 4 (Pa.
2003).
After Hackenberg, however, the Sentencing Commission amended
§ 303.10(a)(2) by removing the phrase “in the furtherance of the crime” from
the enhancement, limiting the enhancement’s application to where the
offender uses the deadly weapon “in a way that threatened or injured another
individual.” In its commentary, the Sentencing Commission explained that
the deadly weapon possessed enhancement was applicable to cruelty to
animals because no person was threatened or injured:
The intent of the offender and the effect on the victim should be
considered by the court in determining whether an act was
threatening. The DWE/Used enhancement is intended to apply
provision to circumstances in which a person is threatened or
injured. In cases where a weapon is used but no person is
threatened or injured, such as in a case involving cruelty to
animals, the DWE/Possessed enhancement applies.
Sentencing Guidelines Implementation Manual, 158 (6th Ed. 2005) (emphasis
added).12
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12The Sixth Edition of the Sentencing Guidelines remined in effect until the
Seventh Edition became effective December 28, 2012. Under the Seventh
Edition, no amendments were made to § 303.10(a)(2), and the Sentencing
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For all these reasons, we agree with Julian that the deadly weapon used
enhancement should not have been applied to his aggravated cruelty to
animals conviction, since no person was threated or injured by his use of a
deadly weapon. Because the trial court erred in applying the deadly weapon
used enhancement rather than the possessed enhancement to Julian’s
aggravated cruelty to animals conviction, we vacate the judgment of sentence
and remand for resentencing. See Commonwealth v. Tavarez, 174 A.3d
7, 11 (Pa. Super. 2017) (remanding for resentencing where trial court abused
its discretion in applying the deadly weapon used enhancement rather than
possessed enhancement to burglary conviction).13
Convictions affirmed. Judgment of sentence vacated. Case remanded
for resentencing with instructions. The Prothonotary is directed to remand
the certified record to the trial court. Jurisdiction relinquished.
Judge Stabile joins the memorandum.
Judge Sullivan concurs in the result.
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Commission provided the same commentary clarifying that in cases where a
person is not threatened or injured, such as cruelty to animals, only the deadly
weapon possessed enhancement would apply. See Sentencing Guidelines
Implementation Manual, 192 (7th Ed. 2012).
13 On remand, the trial court should also address whether cruelty to animals
(count three) merges with aggravated cruelty to animals (count one) under
Section 9765 of the Judicial Code, which provides that crimes may merge for
sentencing purposes if they “arise from a single criminal act and all of the
statutory elements of one offense are included in the statutory elements of
the other offense.” 42 Pa.C.S. § 9756.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2023
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