Com. v. Micucci, J.

J-S30039-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH A. MICUCCI, :
:
Appellant : No. 1268 EDA 2018
Appeal from the Judgment of Sentence April 11, 2018
in the Court of Common Pleas of Montgomery
County Criminal Division at No(s): CP-46-CR-0002527-2017
BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JULY 30, 2019
Joseph A. Micucci (“Micucci”) appeals from the judgment of sentence
imposed following his conviction of simple assault and recklessly endangering
another person (“REAP”).1 We affirm.
In its Opinion, the trial court set forth the relevant factual and procedural
history underlying this appeal, which we incorporate as though fully stated
herein. See Trial Court Opinion, 8/9/18, at 1-6.
Micucci now raises the following issues for our review:
1. Whether the trial court committed an error of law and abuse of
discretion in finding [Micucci] guilty of [REAP] because the
Commonwealth failed to present sufficient evidence[,] beyond a
reasonable doubt[,] to prove the element of reckless conduct by
[Micucci,] which placed or may have placed another person in
danger of death or serious bodily injury: to wit[, Micucci] simply
pointing a lawfully owned and possessed gun in his home at Tracy
____________________________________________
1 18 Pa.C.S.A. §§ 2701(a)(1), 2705.
J-S30039-19
Thomson [(“Thomson”)] did not amount to reckless conduct that
placed someone in danger of death or serious bodily injury[?]
2. Whether the trial court committed an error of law and abuse of
discretion in prohibiting [Micucci] from cross[-]examining the
complaining witness[, ] Thom[]son[,] regarding her past mental
health history and drug use, as it was relevant to show motive
and bias against [Micucci?]
3. The trial court committed an error of law and abuse of discretion
in imposing the deadly weapon [] sentencing guidelines for the
charge of [REAP], when the actual weapon being used was the
basis for the guilty verdict of the crime[?]
Brief for Appellant at 4-5 (some capitalization omitted).
In his first claim, Micucci argues that the evidence was insufficient to
sustain his REAP conviction. Id. at 11. Micucci acknowledges that he briefly
pointed his gun at Thomson’s head, but states that “the brandishing of the
weapon was fleeting in nature….” Id. at 13. According to Micucci, there is no
evidence that he threatened to kill Thomson, and the two never struggled over
the gun. Id. Micucci also claims that pointing a loaded firearm at Thomson,
without more, does not support a finding that he consciously disregarded a
known risk. Id. at 14-15; see also id. (wherein Micucci states his apparent
belief that his knowledge of how to operate a firearm precludes the possibility
of an accidental discharge).
In its Opinion, the trial court set forth the relevant law, addressed
Micucci’s first claim, and concluded that it lacks merit. See Trial Court
Opinion, 8/9/18, at 7-10. The trial court highlighted the “highly charged and
emotionally unstable atmosphere in which the underlying episode occurred.”
-2-
J-S30039-19
Id. at 9. The trial court further noted that Micucci had pointed his gun at
Thomson’s head while she was kneeling on the floor, defenseless. Id. at 10.
We agree with the trial court’s analysis, and conclude that the evidence,
viewed in the light most favorable to the Commonwealth as the verdict winner,
was sufficient to sustain Micucci’s REAP conviction. See id. at 7-10. We
therefore affirm on the basis of the trial court’s analysis as to Micucci’s first
claim. See id.
In his second claim, Micucci challenges the trial court’s preclusion of
testimony, during cross-examination, regarding Thomson’s mental health
history and drug use. Brief for Appellant at 16. Micucci argues that such
evidence would have impeached Thomson’s credibility. Id. at 17-18.
According to Micucci, Thomson’s mental health had a major impact on the
parties’ custody proceedings, and Micucci’s proposed “impeachable line of
questioning” would explain Thomson’s motive to exaggerate or fabricate
information in an attempt to gain custody of their daughter, as well as her
bias against Micucci. Id. at 18-19.
Initially, we observe that Micucci has provided only a cursory citation to
the Rules of Evidence, and points to only one specific portion of Thomson’s
testimony, which, he believes, was an exaggeration or fabrication of
information. Micucci fails to support his claim with citation to, and discussion
of, relevant case law. See Pa.R.A.P. 2119(a) (stating that the argument shall
include “such discussion and citation of authorities as are deemed pertinent.”).
-3-
J-S30039-19
Therefore, this claim is waived. Commonwealth v. Johnson, 985 A.2d 915,
924 (Pa. 2009) (stating that “where an appellate brief fails to provide any
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
waived.”).2
In his third claim, Micucci challenges the trial court’s imposition of the
deadly weapon enhancement. Brief for Appellant at 20. Micucci asserts that
because his conviction was based on the use of a firearm, “imposition of the
deadly weapon [] enhancement amounts to a double penalty….” Id. at 20;
see also id. at 21-22 (asserting that the limited exception set forth at 204
____________________________________________
2 In its Opinion, the trial court determined that Micucci’s evidentiary claim was
likewise waived because he failed to adequately preserve it at trial. See Trial
Court Opinion, 8/9/18, at 10-12; see also id. at 12 (indicating that, during
trial, Micucci intended to question Thomson regarding her mental health
history and the impact of taking—or not taking—medications in order to attack
her credibility; however, Micucci did not raise an argument concerning
Thomson’s motive or bias at any time during trial). The trial court
nevertheless addressed the merits of Micucci’s claim, and concluded that it
lacks merit because (1) Micucci did not adequately develop the record with
expert testimony, reports, or any other evidence to substantiate a claim that
Thomson’s mental health affected her credibility; and (2) even without such
testimony, the record contains ample evidence concerning the parties’
potential biases and motivations, i.e., undisputed testimony by both Micucci
and Thomson regarding the volatile nature of their relationship and their
custody battle. See id. 13-14. Even if Micucci had not waived this claim, we
would conclude that it lacks merit for the reasons stated by the trial court in
its Opinion. See id.
-4-
J-S30039-19
Pa. Code § 303.10(a)(3)(xi)3 should extend to the instant case, because his
possession of a deadly weapon, although not an element of REAP, was the
basis for his conviction).
Micucci’s claim raises a challenge to the discretionary aspects of his
sentence. See Commonwealth v. Tavarez, 174 A.3d 7, 9-10 (Pa. Super.
2017). “It is well-settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal.” Commonwealth v.
Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010).
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether the
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 the 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).
Here, Micucci filed a timely Notice of Appeal, preserved his sentencing
claim in a timely post-sentence Motion, and included a Rule 2119(f) Statement
____________________________________________
3 Section 303.10(a)(3)(xi) of the Sentencing Guidelines provides that the
deadly weapon enhancement shall not be applied to “[a]ny other offense [i.e.,
other than those otherwise enumerated under Section 303.10] for which
possession of a deadly weapon is an element of the statutory definition.” 204
Pa. Code § 303.10(a)(3)(xi).
-5-
J-S30039-19
in his brief.4 Additionally, Micucci’s claim raises a substantial question for our
review. Tavarez, 174 A.3d at 10 (stating that “a substantial question is raised
where an appellant alleges his sentence is excessive due to the sentencing
court’s error in applying the deadly weapon enhancement.” (citation,
quotation marks and brackets omitted)).
While Micucci has raised a substantial question, he fails to adequately
develop his argument, or provide citation to or discussion of any relevant case
law in support of his claim. See Pa.R.A.P. 2119(a). Because Micucci’s final
claim is not properly developed for our review, it is waived. See Johnson,
supra.5
Judgment of sentence affirmed.
____________________________________________
4 We note that Micucci combines his Rule 2119(f) Statement with the
Argument, rather than including a separate section in his brief. See Pa.R.A.P.
2119(f) (providing that an appellant challenging the discretionary aspects of
his sentence must include a separate section setting forth a concise statement
of the reasons relied upon for allowance of appeal).
5 Even if Micucci had not waived this claim, we would conclude that it lacks
merit. The Sentencing Code provides that the deadly weapon enhancement
“shall apply to each conviction offense for which a deadly weapon is possessed
or used.” 204 Pa. Code § 303.10(a)(4). “The trial court may not disregard
an applicable enhancement when determining the appropriate sentencing
ranges.” Tavarez, 174 A.3d at 10. Further, as the trial court stated in its
Opinion, “[t]he record in this case amply reflects the violence, requisite
recklessness, and tremendous potential for serious injury, if not death[,]”
which would merit the enhanced penalties. See Trial Court Opinion, 8/9/18,
at 16-17.
-6-
J-S30039-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/30/19
-7-
Circulated 07/03/2019 03:09 PM
IN THE COURT OF COMI\ION PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION �
,-..,;, .
=
OD
COYJ.MONWEAL TH OF PENNSYLVANIA : NO. 2527-17
1268 EDA 2018�
937 A.2d 516, 521 (Pa. Super. Ct. 2007). In evaluating a trial court's decision, 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. Greer, 951
A.2d 346, 355 (Pa. 2008) (internal quotation omitted).
A. The Commonwealth's Evidence Is Sufficient To Sustain Defendant's Conviction For
Recklessly Endangering Another Person.
Preliminarily, Defendant claims that the Commonwealth failed to set forth sufficient
evidence to sustain Defendant's conviction for Recklessly Endangering Another Pcrson.6 As
discussed below, the Commonwealth's evidence, including the victim's testimony, corroborated by
her medical records as well as the testimony of first responders, sufficiently support the Court's
finding that Defendant engaged in reckless conduct which placed or might have placed Ms.
Thomson in danger or serious bodily injury or death.
The standard of review for sufficiency of the evidence claims is as follows:
A claim challenging the sufficiency of the evidence is a question of law. Evidence
will be deemed sufficient to support the verdict when it establishes each material
clement of the crime charged and the commission thereof by the accused, beyond
a reasonable doubt. Where the evidence offcred to support the verdict is in ·
contradiction to. the physical facts, in contravention to human experience and the
laws of nature, then the evidence is insufficient as a matter oflaw. When
6
In accordance with Pa. R. Crim. P. 720, Defendant preserved his underlying claim by filing a Post-Sentence
Motion, which included therein a Motion for Judgment of Acquittal. [Def.'s Post-Sentence Mot. (4/l 7/18)).
7
reviewing a sufficiency claim[,] the court is required to view the evidence in the
light most favorable to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.
Commonwealth v. Stahl, 175 AJd 301, 303-304 (Pa. Super. Ct.2017) (internal citation omitted).
Moreover, the Commonwealth "may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial evidence." Commonwealth v.
Dellavecchia, 725 A.2d I 86, 188 (Pa. Super. Ct. 1998) (en bane). More specifically:
(t]he facts and circumstances established by the Commonwealth need not be
absolutely incompatible with the defendant's innocence, but the question of any
doubt is for the fact finder unless the evidence is so weak and inconclusive that, as
a matter oflaw, no probability of fact can be drawn from the combined
circumstances.
The proper application of this standard requires us to evaluate the entire trial
record, and all evidence actually received, in the aggregate and not as fragments
isolated from the totality of the evidence.
Commonwealth v. Hopkins, 74 7 A.2d 910, 913-14 (Pa. Super. Ct. 2000) (internal citations
omitted). Finally, the trier of fact is free to believe all, some, or none of the testimony presented
and the appellate court is precluded from reweighing the evidence and substituting its own
judgment for that of the finder of fact. Commonwealth v. Martuscelli, 54 A.3d 940,947 (Pa.
Super. Ct.2012). "If the factfinder reasonably could have determined from the evidence
adduced that all of the necessary elements of the crime were established, then that evidence will
be deemed sufficient to support the verdict." Commonwealth v. Hopkins, 747 A.2d 910, 914 (Pa.
Super. Ct. 2000) (internal citations omitted).
Pursuant to Title 18, Section 2705, "[a] person commits a misdemeanor of the
second degree if he recklessly engages in conduct which places or may place another person in
danger of death or serious bodily injury." 'Serious bodily injury' is defined as "bodily 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." Commonwealth
8
v. Hopkins, 747 A.2d at 915 (citing 18 Pa. C.S. § 2301). It is well settled thatto sustain a
conviction for recklessly endangering another person, the Commonwealth is required to prove
that the defendant had an actual present ability to inflict harm. Id. at 916. The mens rea for
recklessly endangering another person requires "a conscious disregard of a known risk of death
or great bodily harm to another person." Commonwealth v. Peer, 684 A.2d 1077, 1080 (Pa.
Super. Ct. 1996). Defendant's claim that "simply pointing a lawfully owned and possessed gun
in his home at Tracy Thomson did not amount to reckless conduct that placed someone in danger
of death or serious bodily injury," is factually and legally inconsistent. Factually, Defendant
fails to accurately characterize the highly charged and emotionally unstable atmosphere in which
the underlying episode occurred. More specifically, he neglects to clarify that his weapon was
loaded; he was acting in the midst of a frustration-fueled fit which had begun some time earlier
that evening when he violently physically assaulted the mother of his child by dragging her down
the stairs by her hair; and he had been drinking alcohol while brandishing his loaded weapon.
With
·,
those complete facts, Defendant's legal assertion clearly fails.
In Commonwealth v. Hopkins, the Court held that the fact that defendant was visibly in
possession of a gun which was loaded and operable throughout the underlying incident supported
the trial court's verdict against him for recklessly endangering another person. Id. at 916. In
Commonwealth v. Peer, the Court held that brandishing a loaded firearm during the commission
of a crime, after consuming alcohol, set forth a sufficient basis on which a fact-finder could find
both that a defendant proceeded with conscious disregard for the safety of other, and that he had
the present ability to inflict great bodily harm or death. Id. at I 080-81. Similarly, in
Commonwealth v. Rivera, the Court held that "knowingly pointing a loaded weapon at another
person may be sufficient to convict a defendant for reckless endangerment." Id. 597 A.2d 690,
695 (Pa. Super. Ct. 1991).
9
Likewise, in this case, Ms. Thomson's testimony that Defendant, on whom she detected
the smell of alcohol, recklessly pointed his loaded handgun to her head as she knelt, defenseless,
on the floor of her daughter's bedroom, rushing to throw a handful of her clothing into her
backpack adequately demonstrated he had the requisite present ability to inflict serious bodily
harm upon her, as well as, the conscious disregard that his weapon could discharge, seriously
injuring or killing Ms. Thomson.
Moreover, similar to the Court in Peer, where defendant asserted that his firearm safety
training essentially rendered his loaded weapon harmless, this Court cannot countenance
Defendant's instant justification that his lawful possession of his loaded weapon in his home
negated the recklessness of his conduct in pointing it inches from Ms. Thomson's head. See
Peer, at l 080-81.
In light of the ample credible testimony and evidence set forth by the Commonwealth, the
Court appropriately determined that Defendant recklessly endangered Ms. Thomson when he
pointed a loaded firearm inches from her head while verbally threatening her. As such,
Defendant's sufficiently claim is meritless .
.B. The Court Properly Precluded Defendant From Cross Examining Ms. Thomson
Regarding Her Alleged Past Mental Health History And Medical Treatment
Without Any Properly Articulated Basis.
Next, Defendant claims that the Court erred when it denied him the ability to cross
examine Ms. Thomson "regarding both her past mental health history and drug use," for
depression and/or bipolar disorder.7 Defendant further contends that such cross-examination was
relevant to reveal Ms. Thomson's alleged motive and bias against Defendant. Having failed,
however, to adequately develop the record, this claim is waived. In the alternative, the Court
1
[See Def.'s 1925(b), at12; N.T. 1/18/18, at 174].
10
properly excluded the alleged proffered evidence where Defendant failed to demonstrate its
relevance.
To preserve a claim. of error in a ruling to exclude evidence, such as that claimed here, a
party must assert either assert a timely objection, specifying its ground or provide the Court with
an offer of proof .... " Pa. R.E. 103(a)(l)-(2). With regard to challenges to the admissibility of
evidence, our Courts have applied the following rubric:
Questions concerning the admissibility of evidence lie within the sound discretion
of the trial court, and a reviewing court will not reverse the trial court's decision
absent a clear abuse of discretion. Abuse of discretion is not merely an error of
judgment, but rather where the judgment is manifestly unreasonable or where the
law is not applied or where the record shows that the action is a result of
partiality, prejudice, bias or ill will.
Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. Ct. 20 I 0). "Relevance is the threshold
for admissibility of evidence." Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. Ct.
2015); see also Pa. R.E. 402. "Evidence is relevant if: (a) it has any tendency to make a fact
more or less probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action." Pa. R.E. 401; see Tyson, 119 A.3d at 3 58 ( "Evidence is relevant if it
logically tends to establish a material fact in the case, tends to make a fact at issue more or less
probable or supports a reasonableinference or presumption regarding a material fact.").
Pursuant to Pa. R.E. 403, "[tjhe Court may exclude relevant evidence if its probative value is
outweighed by the danger of one or more of the following: unfair prejudice, confusing the issues,
'
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence."
Before the Commonwealth's case-in-chief, the parties brought certain evidentiary issues
to the Court's attention. At the parties' request, the Court conducted an off-the-record
conference to address the parties' concerns, and when proceedings were reconvened, the
following was made part of the record:
11
THE COURT: All right. Let's see if we can summarize the argument that l heard off the
record in conference .
.So there are two issues that were raised. One had to do with the victim's
taking a medication and mental health treatment. l guess to summarize the
argument by Mr. DiPippo, he proposes to question the victim on her - on
the medications that she takes and her mental health treatment, for
purposes of attacking her credibility. The evidence in that regard that he
proposed was strictly to elicit evidence, based on cross-examination of the
victim. And effectively ask the Court to take recognition of the impact of
those medications, taking them or not taking them, without any other
medical supporting evidence of any kind, or expert testimony of any kind,
or any reports of any kind. And I've indicated I will grant the
Commonwealth's motion to exclude that line of questioning in that regard.
Certainly, as with anything else, should something open up and you want
to address that, Mr. DiPippo, that somehow that's been opened up by the
Commonwealth in some way, I will address it at that point.
Did that adequately summarize that argument?
THE COMMONWEALTH: Yes, Your Honor.
DEFENSE COUNSEL: Yes, Your Honor.
(N.T. 1118/18, at 6-7].
Preliminarily, Defendant frames the instant issue as one involving Ms. Thomson's
alleged bias and motive, contrary to his prior characterization at trial as one involving her
credibility. 8 Commonwealth v. Tomasso, 457 A.2d 514, 515 (Pa. Super. Ct. 1983), affd, 485
A.2d 395 (Pa. 1984) ("Failure to so preserve the distinct grounds for an issue deprives the trial
court of the opportunity to make a fully informed evaluation of the issue.") Thus, in the first
instance, Defendant failed to assert his instant bias and/or motive rationale at trial, thereby,
failing to preserve the same for appellate review.9
8
[See e.g., Pa. R.E. 60l(b) (Addressing competency to testify and mental health), compare, Pa. R.E. 607
(Addressing impeachment and credibility)].
9
The record reflects that Defense Counsel agreed unequivocally with the Court's characterization of his evidentiary
argument which related only to Ms. Thomson's credibility; as opposed to the bias and motive contentions asserted
for the first time on appeal. See PA. R.A.P. 903
12
Putting aside Defendant's objective waiver, and post facto revisionist characterization of
the claim, he failed to adequately develop the record in terms of substantiating his legal
reasoning and evidentiary basis for seeking to cross examine Ms. Thomson regarding her alleged
mental health, and/or her prescribed medication to address such issues. The only statement of
record that Defendant even sought to introduce the proffered evidence is set forth in its entirety
above. Defense counsel's sole proffer was to cross examine Ms. Thomson based on information
from Defendant that Ms. Thomson suffered from mental health issues for which she was treated.
As the Court noted on the record, Defendant had no reports, expert testimony, or any other
evidence to lend credence, let alone substantiate, a finding that Ms. Thomson's "mental health
condition" and/or medication, affected her credibility in any respect whatsoever. But see
Commonwealth v. Davis, 674 A.2d 214, 216 (Pa. 1996) (Therapist's diagnosis of victim as a
"pathological liar" was relevant and admissible to impeach victim's credibility.) As presented by
defense at trial, his attempt to cross examine the victim in this case was nothing more than a
fishing expedition intended to create impermissible bias as to Ms. Thomson, while
simultaneously subjecting her to embarrassment. Moreover, Defendant failed both to make an
offer of proof, beyond proposing to cross examine Ms. Thomson in this regard, or clarify the
issue for the Court and/or appellate review. Without offering some supporting contextual
evidence, the fact that Ms. Thomson had a past mental health history and/or corresponding
medical treatment is meaningless. Having baldy claimed, without any ratiocination, that his line
of inquiry was intended to undermine Ms. Thomson's credibility, Defendant neglected to
adequately develop the record.
Defendant's implicit bald assertion that Ms. Thomson was either not credible, and/or
biased, and/or had ulterior motives, is simply not substantiated by his allegation that she received
mental health treatment and/or took medications prescribed as part of that treatment. Contrary to
13
Defendant's claim, such evidence does not, in and of itself, logically tend to establish that Ms.·
Thomson was not credible, biased, and/or had ulterior motives. See Pa. R.E. 403. Given
Defendant's failure to establish the relevance of the proffered evidence, the Court properly
precluded Defendant from cross-examining Ms. Thomson on these issues. Moreover, even if
Defendant had met his relevance burden, the Court had discretion to exclude that evidence on the
basis that it would unfairly prejudice the victim, confuse the issues, create undue delay, and/or
waste time. See Pa. R.E. 403.
Finally, even without delving into Ms. Thomson's alleged mental health history and
related medical treatment, therecord in this case contained ample evidence of each party's
potential ulterior motives and biases. Given the ample, undisputed testimony presented by both
parties regar�ing the acrimonious and volatile nature of the parties' relationship and lengthy
custody battle over their daughter, the Court was well aware of the parties' biases and
motivations. Much, if not all, of the Commonwealth's case-in-chief focused on the parties'
tenuous relationship and the ripple effects on the custody status of their daughter. The evidence
at trial revealed that each parent's priority was primary custody and contact with their daughter.
In addition, the Commonwealth introduced and admitted evidence that Ms. Thomson's desire to
spend time with her daughter had even, at times, apparently clouded her judgment, resulting in
her being held in contempt for kidnapping her daughter.'? As such, the record already aptly
reflected each party's potential underlying biases and motivations in this case even without
Defendant's alleged impeachment evidence.
Based on Defendant's failure to meet his burden to establish Ms. Thomson's alleged
mental health history was relevant, the Court properly precluded his cross-examination on the
issue.
10
fN.T. 1/18/18, at 181).
14
C. The Court Properly Applied The Deadly Weapon Enhancement.
Finally, Defendant asserts that the Court's improperly imposed the DWE (used)
sentencing enhancement on the charge of Recklessly Endangering Another Person, "when the
actual weapon being �sed was the basis for the guilty verdict of the crime."11 Contrary to
Defendant's assertion, however, the Court's imposition of the DWE (used) was not only proper,
but required statutorily. As such, Defendant's final claim fails.
It is well-settled that "[sjentencing 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." Commonwealth v. Raybuck, 915 A.2d 125, 128 (Pa. Super. Ct. 2006)(intemal
quotation omitted). Title 18 Section 2301 defines "deadly weapon' as "[ajny firearm, whether
loaded or unloaded, or any device designed as a weapon and capable of producing death or
serious bodily injury, or any other device or instrumentality which, in the manner in which it is
used or intended to be used, is calculated or likely to produce death or serious bodily injury."
Pursuant to 204 Pa. Code§ 303.10(a)(2)(i):
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. l 7(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
While Defendant failed to articulate upon what legal and/or statutory authority he relies
in asserting this particular allegation of error, the case law interpreting the Legislature's DWE
(used) sentencing guidelines deny the Court any discretion, whatsoever, in applying the
enhancement in the present context, where the fact finder determined Defendant used a deadly
11
[SeeDef's J925(b), atf3].
15
weapon during the commission ofan underlying offense. See 204 Pa. Code§ 303.JO(a)(2)
(referencing 204 Pa. Code§ 303.17(b)). The sentencing court has no discretion to refuse to
apply the deadly weapons enhancement when it is appropriate." Raybuck, 915 A.2d at 129(internal quotation omitted). Guided by the precepts set forth above, the Court correctly
determined that Defendant's actions in pointing his loaded handgun to Ms. Thomson's head
triggered imposition of the OWE (used) sentencing enhancement.
While not clear, Defendant seems to argue that he has been unfairly and/or doubly
penalized for pointing a loaded gun at the victim's head in a menacing and raged-fueled fit. The
instant circumstances, however, are no doubt the type contemplated and for which the OWE
(used) enhancements were drafted, as Defendant's use of a loaded gun here drastically raised the
mortal stakes for both he and his victim in this case. .Moreover, while not explicitly referenced,
if Defendant is attempting to argue that the use of the deadly weapon, was an element of the
crime at issue, he is misguided. Glaringly absent from the elemental enumeration of the crime of
Recklessly Endangering Another Person, is any mention of "possession of a deadly weapon."
204 Pa. Code§ 303.10(a)(3)(ix). (Title 18, Section 2705, "[aJ person commits a misdemeanor of
the second degree if he recklessly engages in conduct which places or may place another person
in danger of death or serious bodily injury." ) As such, the Jimited exception, set forth in 204 Pa.
Code§ 303.10(a)(3)(ix), which prohibits imposition of the D\VE for any offense "for which
possession of a deadly weapon is an element of the statutory definition," has no application to
the case subjudice.
Defendant's rationale for contesting the OWE enhancement, at least as articulated at his
Sentencing Hearing, relied upon his subjective perspective that the underlying circumstances did
16
,
not rise to the level of violence to merit enhanced penalties.12 Defendant's characterization,
however, wherein he claimed that his weapon was "only very remotely involved," is belied by
the record and no doubt vigorously contested by his victim who found herself on her knees
looking up the barrel of a loaded gun. 13. The record in this case amply reflects the violence,
requisite recklessness, and tremendous potential for serious injury, if not death. As such, the
Court's imposition of the DWE (used) was entirely appropriate. As such, Defendant's third issue
on appeal is deemed meritless.
IV. CONCLUSION
Accordingly, the trial court requests that the judgment of sentence imposed on Defendant,
Joseph A. Micucci, on April 11, 2018, be AFFIRMED.
13Y THE COURT:
�HOMASC.B�b�
Copies of the above Opinion
, Mailed on: 8/ c.111 s
By First Class Mail:
Gregory P. DiPippo, Esquire
By Interoffice Mail:
Montgomery County District Attorney - Appellate Division
Deputy Court Administrator-Criminal
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Secretary \.
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[N.T.4/11/18, at 21-22].
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(N.T. 4/l 1/l 8, at 21 ].
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