Com. v. Shakir, Y.

J-S76008-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
YASIN EL AMAN SHAKIR,
Appellant No. 198 WDA 2018
Appeal from the Judgment of Sentence Entered April 26, 2016
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0001882-2011
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 22, 2019
Appellant, Yasin El Aman Shakir, appeals nunc pro tunc from the
judgment of sentence of an aggregate term of 13½ to 27 years’ incarceration,
imposed after he was convicted of, inter alia, attempted murder and
aggravated assault. We affirm.
Briefly, in this appeal, Appellant contends that the trial court abused its
discretion by resentencing him to the same term of incarceration that it had
originally imposed for his attempted murder conviction, despite that the court
had considered an incorrect Sentencing Guideline range in fashioning his initial
term of incarceration for that offense. Appellant also argues that the court’s
application of the deadly weapon sentencing enhancement was illegal under
Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New
Jersey, 530 U.S. 466 (2000). In assessing these claims, we have reviewed
J-S76008-18
the certified record, the briefs of the parties, and the applicable law.
Additionally, we have examined the thorough opinion of the Honorable John
P. Dohanich, a Senior Judge on the Court of Common Pleas of Beaver County.
We conclude that Judge Dohanich’s well-reasoned opinion accurately disposes
of the issues presented by Appellant. Accordingly, we adopt his opinion as
our own and affirm Appellant’s judgment of sentence for the reasons set forth
therein.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2019
-2-
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IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
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I COMMONWEALTH
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OF
PENNSYLVANIA
No. 1882 of 2011
v.
YASIN EL AMAN SHAKIR
MEMORANDUM OPINION
rDOHANICH, S.J. May 10, 2018
The petitioner/ Yasin· El Aman Shakir, has appealed the judgment of
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· sentence entered on December 20, 2017, in which the court: ( 1) granted his post-
lentence motion of July 17," 2017, in part, correcting the sentencing guidelines
ltilized for the court'� original sentence order of October 15, 2012 for the offense
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lof attempted .
murder; (2) refused his request to not apply the deadly weapon used
enhancement on the charge of attempted murder; and, (3) denied his request for· a
Lodification of the sentence on the charge of attempted murder in the sentence
lrders of October ·, s, 2012 and April 26, 2016, using sentencing guidelines
Lthout consideration of the deadly weapon used enhancement. Shakir
Lbsequently
,· med a post-sentence motion on December 29, 2017, alleging that the
I lourt abused its discretion in imposing an identical sentence on the charge of
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App. C
attempted murder thus displaying vindictiveness toward him, and incorrectly
utilized the deadly weapon used enhancement for the offense of attempted murder.
The 'court denied Shakir's post-sentence motion on ·January 23, 2018. Timely
notice of appeal was filed by Shakir on February I, 2018. By order entered
February 13, 2018, Shakir was directed to file a concise statement of matters
complained of on appeal to which he complied on February 20, 2018.
In his concise statement, Shakir sets forth the following two complaints on
appeal:
1. The Court abused its discretion at the time of resentencing by
imposing the 'exact same sentence previously imposed, with the
intention of maintaining the integrity of the original sentence from
April 26, 2016, which was later vacated because that sentence was
imposed using 'the wrong sentencing guidelines. By reimposing the
same sentence, the Court has indicated a lack of willingness to base
Shakir's sentence on the appropriate guidelines, and instead displayed
a vindictiveness against Shakir by imposing a sentence without clear
reference to the appropriate guidelines, which is an abuse of the
Court's discretion. Commonwealth v Barnes, 167 A.3d 110, 122-123
(Pa. Super. 2017).
2. The sentencing court incorrectly imposed a sentence using the
guidelines including the deadly weapons enhancement (DWE), where
the jury did not find as a fact that a deadly weapon was used, and
where the application of that fact triggered enhanced guidelines,
resulting in a sentence which violated Shakir's fundamental right to
due process arid the protections afforded by the Sixth Amendment,
and which sentence was illegal. Alleyne v, United States, 133 S.Ct.
2151 (2013), and Apprendi v New Jersey, 530 U.S. 466 (2000);
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The court submits this opinion in support of its denial of Shakir's post-
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sentence motion pursuant to Rule l 925(a) of the Pennsylvania Rules of Appellate
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Procedure, 42 Pa. C.S.
The facts established by the record in the trial of this case are set forth in this
court's memorandum opinion entered March 16, 2013, as follows:
In the early evening hours of July 13, 2011, Tomara Scott, her
friend Robin Reddix, 'and .three males-Jiwan Bai1ey, Razaun King
and the defendant, Yasin El Aman "Moosie" Shakir-engaged in
i conversation outside of Scott's residence on Chaske Street in Penn
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Hi11s, Allegheny County, "to go to hit a lick'' (meaning to take
l · property belonging to someone else). A plan was developed for the
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robbery of a bar in Aliquippa, Beaver County. Scott, who had
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previously resided in Aliquippa for a number of years and was the .
l only person familiar with the area, suggested that the establishment
known as "The Outkast Bar" would be an easy target. Later in the
evening, Scott, accompanied by Reddix, Bailey, King and the
defendant, drove her automobile from. Penn Hil Is to Aliquippa.
During the trip, the five occupants further discussed the planned
robbery. Upon' entering Aliquippa, Scott parked her vehicle outside
The Outkast B'1r, and Scott and Reddix entered the bar to have a
couple drinks i.n order to determine the feasibility of implementing
their plan. While the women were in the bar, the three men walked
around the neighborhood and later returned to the vehicle to await the
females. Near to closing time, Scott and Reddix exited the bar and
reconvened with the three men at the car where they spoke of whether
to proceed with the robbery of the bartender. The women observed
that the owner of the bar had been present and possessed a weapon.
Upon further discussion, the plot to rob the bartender was abandoned,
causing Bailey 'to become agitated at having come to Aliquippa for
naught. They all entered Scott's vehicle intending to return to Penn
Hills.
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l While driving from the. area of the bar at approximately l :40
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A.M. on July IA, 20 I 1, the occupants of the automobile observed two
men-Lucien 'Roberts and Brian Elmore, Jr.-walking up Fifth
Avenue hill. Scott proceeded to the bottom of the hill, stopped the
vehicle, turned: to Bailey and said, "Jiwan, there you go." Bailey
exited the vehicle and the defendant fol1owed. King remained inside
the vehicle to complete a text message and exited a short time later.
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Bailey, King find the defendant approached Roberts and Elmore.
King observed .the defendant retrieve a silver handgun from his waist.
The defendant told Roberts and Elmore to "take it off" or "throw it
off' (meaning "give me whatever you got"), Elmore responded, "beat
it, get out of here". Roberts initially observed the defendant point his
I gun at Elmore: In response, Roberts retrieved his .45 caliber semi-
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automatic pistol from his waist as Bailey directed his weapon at
I Roberts. Nearly simultaneously, shots were fired by both the
defendant and Roberts, King ran and hid behind a telephone pole and
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did not observe the shooting, although he heard gun fire and saw
flashes from the firing of the weapons. Roberts, who possessed a
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II license to carry a firearm and whose weapon was properly registered
II to him as the owner, fired three or four rounds before he was tackled
I by Bailey, wh� attempted to take the pistol from Roberts. In the
struggle that ensued between Roberts and Bailey, Roberts fired
approximately five more shots, three of which struck Bailey. Elmore,
who had been drinking that night and was somewhat intoxicated, fled
across the street behind a nearby garage; however, he was struck by a
total 'of six bullets +two in the right leg, one in the· right thigh, one in
the left 'buttocks and two in the left hand. Elmore indicated that he
was hit with the first shot as he stepped off the curb into the street. He
was subsequently transported to UPMC Presbyterian Hospital for
treatment. Elmore remained in the hospital for two or three days
during which he underwent surgery on his left hand, including the
insertion of a rod. As of the date of trial, he was unable to completely
bend a finger on his left hand. None of the bullets were surgically
removed from Elmore' s body. Although not struck by any gun fire,
Roberts found two bullet holes in the basketball shorts he was
wearing. Upon extricating himself from Bailey's grasp, Roberts
returned to his· feet, fled to the top of the hill and called the police.
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Roberts testified that the entire incident fasted approximately six
minutes. ·
The defendant returned to Scott's waiting vehicle. King, being
. unfamiliar with: the area, left the scene and came upon two individuals
from whomhe.borrowed a cellular telephone which he utilized to call
his own cellular telephone located in Scott's 'vehicle. Reddix
answered the. call, Scott, along with the defendant and Reddix,
· proceeded to King's location, at which time he entered the car. King
inquired as to Bailey's absence and condition. The defendant replied
that. he thought Bailey had tackled Roberts and ran from the scene.
While in the vehicle, King again observed the silver firearm in the left
hip area of the defendant. King testified that none of the other
occupants of the' vehicle possessed a firearm. Roberts described the
:l defendant's weapon as being a revolver. Scott drove her vehicle to
her residence i� Penn Hills with Reddix, King arid thedefendant as
.I : occupants. Later that morning the participants learned of Bailey's
i death .
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: I Detective Sergeant Steven Roberts of the Ali_quippa Police
.I Department testified that a total of four spent" .45 caliber casings were
located at the· scene arid fragments from other bullets of an unknown
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caliber were loc.ated in the roadway. He explained that Lucien
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Roberts' .45 caliber pistol was a semi-automatic weapon which
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I ejected spent casings. No casings of any other caliber were found at
! the'scene, Detective Sergeant Roberts explained that since the silver
handgun , in the- possession of the defendant was a 'revolver, which
does "not automatically-eject its spent casings, hedid not expect to find
any spent casings from the revolver. Detective Sergeant Roberts
· 1 furtherindicatedthat upon a check with the Pennsylvania State Police,
a· certification was received 'that the defendant did not possess a
license to carryafirearm nor was he eligible to do so due to his age of
19 years: The;three bullets in the body of Bailey were determined to
be AS caliber ammunition.
Officer Brandon Yourke of the Wilkinsburg Police Department
· testified that he arrested the defendant on an unre1ated outstanding
warrant on July 21, 2011, eight days after the shooting, and· upon
searching· the defendant found six live .38 caliber bullets in his left
front trouser pocket.
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. . The Commonwealth called William Best as a ballistics expert.
· · _ .-�fr. Best is employed as a forensic scientist specializing in firearms
. · and tool marks.in the Allegheny County Medical. Examiner's Office,
where he -has been employed for approximately four years. Mr. Best
earned a bachelor's degree in biology from Duquesne University in
. 2007, a master's degree in forensic science from Duquesne· University
. in May, 2008,- and completed a laboratory. training program for
. firearms and tool marks, He took part in additional fraining provided
._ by _the FederalBureau of Investigation andthe Bureau of Alcohol,
\ Tobacco and firearms. Mr. Best previously was qualified as a
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. ballistics expert in the Court of Common Pleas of Allegheny County
and the District Court' for the Western District of Pennsylvania; Mr.
Best was requested to and did take measurements.of a bullet depicted
on an x-ray of Elmore's body using a digital micrometer, and
excluded the bullet. .in Elmore's body as being a .45 caliberbullet .
based on its size. He further indicated that he could not exclude the
bullet as beingeither a .38 caliber or .a .32 caliber bullet. Mr. Best
.indicated that he had never taken measurements of an x-ray image
previously but was aware that the procedure had, in· fact, been utilized.
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'I }ie also related that he had not received any training in 'radiology.
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Shakir was convicted by a jury on September 11, 2012, of criminal attempt
to commit criminal homicide, 18 Pa.C.S. §90 I (a); 4 counts of aggravated· assault,
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118 Pa.C.S. §2702(a)(l) (2 counts), and §2702(a)(4) (2 counts), respectively;
. , firearms not to be carried without a license, 18 Pa.C.S. §6106(a)(l);·and, recklessly
lndan!iering
! another person, 18 Pa.C.S. §2705. On October 15, 2012, the court
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l i�posed sentences of not less than eight and one-half years nor more than
reventeen
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years on count l charging attempted murder of the victim, Brian Elmore;
not Iess than five years nor more than ten years on count 2 charging aggravated
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Iattempted murder; and not less than- one and one-half years nor more than three
!assault · of the victim, Lucian Roberts, to run consecutive to the sentence for
!years
on count 6 charging firearms not to be carried 'without a li�ense to run
:consecutive
to the sentence for aggravated assault, for an aggregate term of not less
ran fifteen years nor more than thirty years. No further penalties were imposed on
the three remaining -counts of aggravated assault and· recklessly endangering
lanother
; person by. reason of merger. The imposition of the sentence of not less
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:! (han five years nor more than ten years for the aggravated assault count was
I pursuant to the mandatory sentence provisions of 42 Pa. C.S. §9712, after the
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i ICommOnwealth's req�ired notice of intention to proceed under said section .
I The Superior Court, in its non-precedential decision filed on December 1 7,
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'' •2013 at No. 517 WDA 2013, affirmed the judgment of sentence. On May 15,
!201"4,
the Supreme Court denied Shakir's petition for allowance of appeal at No.
i 139 WAL.2014 ..
II
Shakir timely filed
. his .first pro-se petition pursuant to the Post Conviction
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. : 1Relie( Act (PCRA), 42 Pa. C.S. Sections 9541-9546, inclusive, on March 18, 2015,
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!in which he alleged several claims of ineffective assistance of counsel and the
!illegality
, of the mandatory minimum sentence for aggravated assault. The Beaver
!County
·: Public Defe�der' s Office was appointed on April 8, 2015 to represent
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Shakir and granted 60 days to amend or enlarge upon Shakir's pro-se petition.
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!William Braslawsce, Esquire entered his appearance on behalf of Shakir on· April
· 2.4, 2015 and filed a counseled PCRA petition on June 5, 2015, simply
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incorporating Shakir's pro-se petition. Due to the· unavailability of this writer, the
IHonorable Harry E. Knafelc scheduled and conducted the PCRA hearing on July
:i IQ3, 2015, after which Judge Knafelc entered an order on July 28, 2015, granting, in
i bart, the relief requested in Shakir's PCRA petition and directing that Shakir be
! �esentenced taking into account the decision of the United States Supreme Court in
�lleyne
v. United States, 510 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013)
�holding
that any fact that increases. the mandatory minimum sentence for a crime
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is an element of the crime and not a sentencing factor, and thus must be proven
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beyond a reasonable doubt after submission to the jury). All other claims in
�hakir's petition ;ere denied. Pursuant to Judge Knafelc's order, this court
lscheciuled and held a hearing on August 26, 2015, following which resentencing
Las denied. on the basis of the Superior Court'sdecision in Commonwealth v.
'Riggle, 119 A.3d 1058 (Pa. Super. 2015), holding that Alleyne did not apply
letro_actively
on post-conviction review. Counsel for Shakir filed an appeal to the
/Superior
Court from this court's order on September 24, 2015 at No. 1469 WDA
bot5, and Shakir filed a pro-se notice of appeal on October 2, 2015. The Superior
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ourt dismissed the appeal on November 23, 2015 for failure to file a docketing
statement, however, the appeal was reinstated on December 14, 2015 after the
Ifiling. of the docketing statement. .
Upon the Superior Court's subsequent decision
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' in Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015) on December 30, 2015,
ketennining
that Alleyne may be applied retroactively when a defendant's case is
bending on direct appeal, .Judge Knafelc, by correspondence of January 13, 2016,
I Lquested
the Superior Court to remand the case for resentencing, which request
: ras
gran'.ed by the .S�perior Court on Fe��ary 11, 20 16. Shakir' s dir�t appeal
r was pending at the time ofthe'Alleyne decision on June 27, 2013.
Shakir, apparently unaware that the appeal had been reinstated, filed a
second pro-se PCRA petition on February 2, 2016, alleging ineffective assistance
lr counsel for permitting the appeal to be dismissed. By reason of the
ieinsiatement of the. appeal and remand for sentencing, no action was taken on the
l�nd pro-se PCRA petition.
Pursuant to the Superior Court's remand and its decision in Commonwealth
v. Valentine, IOI A.3d 801 (Pa. Super. 2014) (declaring 42 Pa. C.S. §9712
lnconstitutional in its entirety), this court, after hearing, entered an amended
lenience order on April 26, 2016, solely on count 2, charging aggravated assault
lausing
serious bodily injury, by modifying the. original sentence order from the
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mandatory sentence of not less than five years nor more than ten years to a
rentcnce
within the standard range of the sentencing guidelines of not less than
three and one-half years nor more than seven years, despite the Commonwealth's
!argument
for a sentence in the aggravated range. The sentencing guidelines for
laggnivated
assault attempting serious bodily injury as a felony of the first degree
:carries
an offense gravity score often, and with Shakir's prior record score of one,
I provided a mitigated sentence of 18 months, standard range of between 30 months
I land 42 months and an aggravated sentence of 54 months. Sentencing Guidelines,
i ls1x1h Edition Revised December 5,
land
2008, 204 Pa. Code §303.15, Offense Listing,
! § 303.16, Basic S�ntencing Matrix. The balance of the original sentence order
I of October 15, 2012 was maintained. No appeal was filed from this judgment of
sentence.
Shakir, on August 1, 2016, filed his third pro-se PCRA petition alleging
ineffective assistance of counsel for failure to file a post-sentence motion and/or
appeal from the court's April 26, 2016 judgment of sentence. Steven Valsamidis,
Esquire was appointee! by the court as counsel for Shakir on August 30, 2016 and
granted 60 days to amend/enlarge Shakir's pro-se petition. After an additional
extension of 45 days, an amended, counseled PCRA petition was filed on
December 14, 2016. Following a hearing held on July 5, 2017, the court
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determined that counsel's failure to perfect an appeal after requested to do so
constituted ineffective of assistance of counsel, granted Shakir's PCRA petition
and reinstated his appeal rights. Rather than file an appea], Shakir filed a post-
sentence motion on July l 7, 2017, in which he claimed that the court, in imposing
the sentence for attempted murder, utilized the incorrect sentencing guidelines for
attempted murder with serious bodily injury, when the defendant was charged
solely with attempted murder generally, and the jury was not instructed on the
offense of attempted murder with serious bodily injury but only with attempted
murder generally. The court directed the filing of briefs and scheduled a
hearing/argument for December 20, 2017 to determine whether Shakir should be
resentenced, and if so, the appropriate sentence to be imposed.
At the hearing/argument Shakir argued, and the Commonwealth conceded,
based upon the decision in Commonwealth v. Barnes, 167 A.3d 110 (Pa.Super.
20 l 7), that incorrect sentencing guidelines were utilized for the offense of
attempted murder, since Shakir was sentenced for attempted murder with serious
bodily injury when he had been charged and the jury had been instructed solely on
attempted murder generally. The facts in Barnes are indistinguishable from those
in the instant case. In Barnes, the defendant was not charged with attempted
murder resulting in serious bodi1y injury, the information did not allege serious
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bodily injury and the jury was not instructed on the charge of attempted murder
causing serious bodily injury. The trial court applied Section l 102(c) of the
Crimes Code, 18 Pa. C.S. § 1102( c), in imposing a maximum term of imprisonment
of 40 years. The Superior Court held that in the absence of a jury finding of
serious bodily injury, the sentence violated the holding in Apprendi. Barnes is thus
also controlJing as to the use of the incorrect sentencing guidelines. Therefore, the
court utilized the correct sentencing guidelines for attempted murder generally
without consideration for serious bodily injury. Secondly, Shakir asserted that the
court's application of the deadly weapon used enhancement without a specific and
separate factual finding by the jury of the use of a deadly weapon violated the
holding in Alleyne. The court rejected Shakir' s position on the deadly weapon
used enhancement and ordered that the original sentence for attempted murder
remain in full force and effect.
In his concise statement, Shakir first claims, citing to Commonwealth v.
Barnes, supra, that the court abused its discretion and displayed vindictiveness
toward him by imposing a sentence on the offense of attempted murder identical to
the sentence imposed for said offense in the sentence orders of October 15, 2012
and Apri I 26, 2016, without reference to the sentence guidelines and in order to
preserve the integrity of the original sentencing scheme. In Barnes, the defendant
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ifter being 'convicted by a jury,. was sentenced to terms of incarceration for
attempted murder of 20 years to 40 years, for aggravated assault to two and a half
�ears·
to five years, and for kidnapping of two and a half years to five years, with
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. sentenc�S running consecutively. On appeal, the . Superior Court determined
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., (hat the conviction for aggravated assault and attempted homicide should have
,merged and remanded for resentencing. Upon remand, the trial court resentenced
year�
/the defendant to 20. to 40 years for attempted murder followed by a .
:J; consecutive term of five years to ten years for kidnapping. The defendant again
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appealed claiming the trial court abused its discretion when imposing a more
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severe sentence for kidnapping on remand thus demonstrating a presumption of
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vindictiveness. The court in Barnes referred to North Carolina v. Pearce, 395 U.S.
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· ! 711, 89. S.Ct. 2072, 23 L. Ed. 2d. 656 (1969), which held that whenever a judge
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J imposes a more.severe sentence on a defendant after a new trial, the reasons for his
: r doing· so must· affirmatively appear and be based upon objective information
concerning identifiable conduct upon the part of the defendant occurring after the
:i time of the original sentencing proceeding. Pearce's rational for providing reasons
on the record also applies
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when the original sentence is vacated
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and a second
sentence is imposed without an additional trial. Commonwealth v. Greer, 3�2 Pa.
Super. 127, 554 A.2d 980, 987 n. 7 (1983 ). Absent evidence that a sentence
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increase is justified due to objective information concerning a defendant's case, the
lresumplion
of vindictiveness cannot be rebutted. Commonwealth v. Serrano, 727
�.2d 1168, 1170 (Pa: Super. 1999). The Barnes trial court explained that by
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. increasing the kidnapping sentence, the original sentencing structure was merely
I · · ed . p reservmg
ratntatn · th e ·integnty
· O r a pnor
· sentencing
· SCh eme IS· a l egitirnate
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; sentencing concern, Commonwealth v. Walker, 390 Pa. Super. 76, 568 A.2d 201,
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.I 205 ( 1989), disapproved on other grounds by Commonwealth v. Robinson, 931
)
l.2d 15, 20-22 (Pa. · Super. 2007). A trial court may property resentence a
I iefendant to the same aggregate sentence to preserve its original sentencing
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· scheme. Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super. 1999),
ippeal
denied, 56 J Pa. 651, 747 A.2d 896 (l 999). The Barnes court determined
!hat the defendant was not the victim of a vindictive sentence on the part of the
!rial court, as his aggregate sentence after remand remained the same.
In the instant case, the court has not increased the sentence for attempted
murder, but specificaJly referred to and used the proper sentencing guidelines. In
lits original sentence, the court sentenced the defendant using the guidelines for
luempted
murder with serious bodily injury and the deadly weapon used
lnhancement,
which considering Shakir's prior record score of one, converted to
ln offense gravity score of 14 with a mitigated sentence at 90 months and the
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standard range of sentence at between 102 months and 240 months. (See 204 Pa.
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l !Code §§303.15, O�e:nse Listing; 303.3(c)(4), Offense Gravity Score, Inchoate
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!Offenses; 303.9(b), Deadly Weapon Enhancement Sentence Recommendations;
· �03.16, Basic Sentencing Matrix; and 303.18, Deadly Weapon Enhancement/Used
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. Matrix). When utilizing the correct sentencing guidelines for attempted murder ·
rith
bod;ly
! no serious injury and the deadly weapon used enhancement, the
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. sentencing guidelines provided for an offense gravity score of 13, with the
: !mitigated
. sentence of 72 months, the standard range of 84 months to I 02 months
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and the aggravated sentence of 114 months. Id. Shakir argued that the court should .
use sentencing guidelines for attempted murder with no serious bodily injury and
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I no deadly weapon used enhancement making the offense gravity score 13, with the
, mitigated .sentence of 54 months, the standard range of 66 months to 84 months
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and the aggravated sentence of 96 months. Id. The court's original sentence of 102
months for attempted murder with serious bodily injury .was within the standard
range. Using the corrected sentencing guidelines, l 02 months is also within the
standard range. The court explained that the reasons for the sentence for attempted
murder remained the.same as outlined at the time of the original sentence hearing,
' and thus, the sentence would remain identica] in order to maintain the sentencing
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scheme. Shakir has thus failed to demonstrate either actual or presumptive
Lndictiveness or an abuse of discretion on the part of the court.
Shakir next asserts that Alleyne and Apprendi v, New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147-L.Ed. 2d 435 (2000), prohibit the application of the deadly
reapon used enhancement to the charge of attempted murder, unless the jury
specifically finds as a-fact that a deadly weapon was used. Apprendi held that any
lfact
that increases the penalty for a crime beyond the prescribed statutory
'maximum must be submitted to the jury and proven beyond a reasonable doubt.
JThe defendant's. argument fails for two· reasons. The Commonwealth's
information in count 1 charging criminal attempt to commit criminal homicide
specifically alleges that Shakir did "with the intent to commit a specific crime, do
any act which constitutes a substantial step towards the commission of that crime,
to-wit: actor did fire-a handgun at the victim, Brian Elmore, which caused hlm
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to be struck several times, in an attempt to commit the crime of homicide."
I (Emphasis supplied). Further, in the charge to the jury, the court, as one of the
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three elements required to be proven beyond a reasonable doubt, charged to the
j jury as follows:
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That the defendant did a certain act. In this case, the
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Commonwealth alleges that the act which the defendant
committed was fire a handgun at the victim, Brian Elmore, which
caused him to.be struck several times. (Emphasis supplied).
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The jury was specifica1Iy required to find that Shakir fired a handgun at the victim
and struck him several times in order to be convicted of attempted murder, and
thus, Shakir's argument is rejected.
Secondly, the deadly weapon used enhancement is contained in
§303. l O of the Sentencing Guidelines, 204 Pa. Code §303.10, and
provides in relevant part as follows:
a. Deadly Weapon Enhancement.
(2) When the court determines that the offender used
a deadly weapon during the commission of the
current conviction offense, the court sha11 consider
the DWFJUsed 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.
The sentencing court has no discretion to refuse to apply the deadly weapon
enhancement when it is appropriate. Commonwealth v. Solomon, 151 A. 3d 672,
677 (Pa. Super. 2016), citing Commonwealth v. Magnum, 439 Pa. Super. 616, 654
A.2d 1146, 1149-50 (1995). The court must begin its calculation of a sentence
from the correct starting range, including when appropriate, the deadly weapon
enhancement, Magnum at 1150 and Solomon at 677. As to the specific issue raised
by Shakir, the Superior Court, in Commonwealth v. Shull, 148 A.3d 820 (Pa.
17
; i
i
I' .·..
1 ·_. �
i ..
r . . .
$upt:fr.·2016) n.6 and� Commonwealth 'v, · Buterbaugh, 91. A.3d 1247 (Pa. Super.
I . : .
,, 1014) n.10, appeal denied, 628 Pa. 627, 104 A.3dl. (2014), explained that the
/imposition of the deadly weapon sentencing enhancement does not implicate the
j holdings of Alleyne nqr Apprendi, as follows:
In both [Alleyne and Apprendii, the Supreme Court determined
that certain sentencing factors were considered elements of the
• 1
.. underlying crime, and thus, to comply with the dictates of the Sixth
I ' Amendment, must be submitted to the jury and proven beyond a
·I . reasonable doubt instead of being determined by the sentencing judge.
I I However, this inquiry is not relevant to our case because of the nature
I oftheDWE.
Alleyne and Apprendi dealt with factors that either increased the
. mandatory .minimum sentence or increased the prescribed 'sentencing
range beyond 'the statutory maximum, respectively; Our case doesnot
involve either. situation; instead, we are dealing with a sentencing
enhancement, : If the enhancement applies, the sentencing court is
required to raise the standard guideline range; however, the 'Court
retains the discretion to sentence outside the guideline range.
. of
· Therefore, neither the situations addressed in Alleyne and Apprendi
I are implicated.
:i
In the present case.: the jury specifically determined beyond a .reasonable doubt that
..
: I
I Shakir· fired. a handgun
. at the victim, Brian Elmore, which caused him to be struck
' .
I
.! several times as an element in convicting him of attempted ·murder, which required
. I
. /
the· court to apply 'the deadly weapon used enhancement in accordance with
I
;
§3QJ: 10(a)(2)(i) of the sentencing guidelines. The court, utilizing the correct
. .• se�tericing guidelines for the offense of attempted murder generally, 'applying the
deadly weapon used-enhancement, and following the dictates of Commonwealth
. i
V.
18
Serrano, 150 AJd 470, 473 (Pa. Super. 2016), to review the entire case file anew,
chose to properly maintain its original sentence, which was within the standard
range, in order to preserve the integrity of the sentencing scheme.
Based on the foregoing, the court entered its order of January 23, 2018
denying Shakir's post-sentence motion.
BY THE COURT
S.J.
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