Com. v. Tavarez, C.

J-S37022-17
2017 PA Super 343COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHEYENE TAVAREZ
Appellant No. 1859 MDA 2016
Appeal from the Judgment of Sentence October 7, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0006124-2015
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
OPINION BY MOULTON, J.: FILED OCTOBER 31, 2017
Cheyene Tavarez appeals from the October 7, 2016 judgment of
sentence entered in the Berks County Court of Common Pleas following his
entry of a guilty plea to one count each of aggravated assault, burglary,
robbery, impersonating a public servant, and conspiracy.1 We vacate the
judgment of sentence and remand for resentencing.
At his guilty plea proceeding on October 7, 2016, Tavarez admitted to
the following facts:
[O]n or about November 17th, 2015, shortly after 1:00 in
the morning at 49 Mill Road in Oley Township, Berks
County, Pennsylvania, you along with your accomplices
and co-conspirators Edward Martinez, Brandon Smith, and
Erick Green went to that residence; the plan even before
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18 Pa.C.S. §§ 2702(a)(1), 3502(a)(1)(ii), 3701(a)(1)(ii), 4912, and
1
903(a)(1), respectively.
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you arrived at the residence was to rob the people there;
you believed that there were illegal drugs and money[]
there to be gained; all four of you agreed to do that.
When you got there, as was your intention all along, you
and Edward Martinez entered the residence, there were
people present. This was a residence. It was not open to
the public at that time. You had no license or privilege to
be there.
Once inside, you were yelling, [“]Police. Freeze[.”] in
[an] attempt to compel the homeowners to do what you
wanted them to do, thereby impersonating a public
servant. Although you attempted to commit a robbery and
you did so with firearms, nothing was actually taken.
When you confronted the homeowner, Eric Wegman, in
the upstairs bedroom, he pulled his own handgun and
fired, hitting both you and Mr. Martinez. Eric Wegman was
also shot in the leg at that point.
N.T., 10/7/16, at 5-6.
The trial court summarized the ensuing procedural history of this
matter as follows:
[Tavarez] was sentenced to a term of incarceration of
10½ to 30 years in a state correctional facility. To reach
this term of incarceration, the Court sentenced [Tavarez]
consecutively on three of the charges. The first period of
incarceration, lasting from 66 to 132 months, was received
for the aggravated assault, robbery and the accompanying
conspiracy charges. The second period of incarceration,
lasting 48 to 96 months, was received for the burglary
charge. The third period of incarceration, lasting 12 to 24
months, was received for the impersonating a public
servant charge. Though the sentence in aggregate is
considerable, [Tavarez] was sentenced on each charge
within the standard range.
Following sentencing, by and through counsel,
[Tavarez] filed a post-sentence motion to reconsider and
modify sentence, on October 17, 2016. We denied this
motion that day. On November 14, 2016, [Tavarez], now
represented by the public defender, filed a notice of
appeal. Due to a service error by the Court, Counsel did
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not receive notice requiring a [Pennsylvania Rule of
Appellate Procedure 1925(b)] statement until, at the
latest, November 28, 2016. Once Counsel received notice,
[Tavarez] filed a timely [Rule 1925(b)] statement on
December 12, 2016.
1925(a) Opinion, 1/30/17, at 1 (unpaginated) (“1925(a) Op.”).
On appeal, Tavarez raises three issues:
1. Whether the trial court erred and abused its discretion
by failing to utilize the correct offense gravity score for
the crime of impersonating a public servant.
2. Whether the trial court erred and abused its discretion
by applying the deadly weapon (used) enhancement
absent evidence that [Tavarez] used a deadly weapon
as defined by the Sentencing Code in the commission of
the burglary.
3. Whether the trial court erred and abused its discretion
by failing to consider [Tavarez’s] rehabilitative needs
when imposing the sentence of 10½ to 30 years of
incarceration.
Tavarez’s Br. at 11 (full capitalization and trial court answers omitted).
We will address Tavarez’s second issue first because it is dispositive of
this appeal. Tavarez asserts that the trial court abused its discretion in
applying the deadly weapon “used” enhancement to his burglary conviction.
This claim raises a challenge to the discretionary aspects of sentencing.
An appeal from the discretionary aspects of sentencing is not
guaranteed as a matter of right. Commonwealth v. Mastromarino, 2
A.3d 581, 585 (Pa.Super. 2010). Before addressing such a challenge, we
must first determine:
(1) whether the appeal is timely; (2) whether [the]
[a]ppellant preserved his [or her] issue; (3) whether [the]
[a]ppellant’s brief includes a concise statement of the
reasons relied upon for allowance of appeal with respect to
the discretionary aspects of sentence; and (4) whether the
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concise statement raises a substantial question that the
sentence is appropriate under the [S]entencing [C]ode.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006));
see Pa.R.A.P. 2119(f).
Here, Tavarez filed a timely notice of appeal, preserved his claim in a
timely post-sentence motion, and included in his brief a concise statement of
reasons for allowance of appeal under Rule 2119(f). We must now
determine whether he has raised a substantial question that his sentence is
inappropriate under the Sentencing Code.
In his Rule 2119(f) statement, Tavarez asserts that the trial court
abused its discretion in applying the deadly weapon “used” enhancement to
the burglary conviction. It is well settled 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.”
Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa.Super. 2008); see
also Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa.Super. 2010) (en
banc) (“[A] challenge to the application of the deadly weapon enhancement
implicates the discretionary aspects of sentencing.”). Therefore, we will
review the merits of Tavarez’s claim.
Tavarez asserts that that trial court abused its discretion in applying
the deadly weapon “used” enhancement rather than the deadly weapon
“possessed” enhancement to his burglary conviction. For burglary as a first-
degree misdemeanor, Tavarez’s prior record score was 2 and the offense
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gravity score was 9. See N.T., 10/7/16, at 8. Had the trial court applied
the deadly weapon “possessed” (rather than “used”) enhancement, the
standard guideline range for this conviction would have been 33 to 45
months rather than 42 to 54 months.2 Tavarez does not challenge the trial
court’s application of the deadly weapon “used” enhancement to his
remaining convictions.
At the plea proceeding, Tavarez admitted that he possessed a firearm
during the entire criminal episode and that he used a firearm to threaten the
victims in the course of the robbery. Tavarez contends, however, that the
record does not support the trial court’s conclusion that Tavarez used a
deadly weapon in the commission of the burglary because the victims were
upstairs at the time of his unlawful entry into the residence. We agree.
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 trial court may not disregard an applicable
enhancement when determining the appropriate sentencing ranges.
Commonwealth v. Cornish, 589 A.2d 718, 720 (Pa.Super. 1991).
Further, “[i]t is imperative that the sentencing court determine the correct
starting point in the [G]uidelines before imposing sentence.” Id.; see
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As discussed above, the trial court sentenced Tavarez to 48 to 96
2
months’ incarceration for burglary, consecutive to the 66- to 132-month
sentence imposed for robbery.
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Commonwealth v. Diamond, 945 A.2d 252, 259 (Pa.Super. 2008) (“[T]he
sentencing court must correctly apply the [S]entencing [G]uidelines to reach
the correct point of departure, before exercising its discretion to depart from
the [G]uidelines in any particular case. These rules apply to the deadly
weapons enhancement.”) Thus, if “the trial court erroneously calculates the
starting point under the [G]uidelines,” we will vacate the judgment of
sentence and remand for resentencing. Commonwealth v. Scullin, 607
A.2d 750, 754 (Pa.Super. 1992).
Here, the trial court applied the enhancement for “use” of a deadly
weapon to the burglary conviction. 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
(iii) Any device, implement, or instrumentality capable of
producing death or serious bodily injury.
204 Pa. Code § 303.10(a)(2) (emphasis added). Thus, to establish use of a
deadly weapon under this provision, the record must show that the
defendant used the weapon to threaten or injure the victim while committing
the particular offense. See, e.g., Commonwealth v. Shull, 148 A.3d 820,
832 (Pa.Super. 2016) (concluding that defendant’s “mere possession of a
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gun transcended to his use of the gun” when he removed gun from under his
clothing and pointed it at victim’s face during attempted robbery);
Commonwealth v. Chapman, 528 A.2d 990, 991-92 (Pa.Super. 1987)
(holding trial court properly applied deadly weapon “used” enhancement
where defendant held straight razor in plain view while robbing victim,
despite claiming he never employed razor as explicit threat).
Tavarez contends that the trial court should have applied the deadly
weapon “possessed” enhancement, rather than the “used” enhancement, to
his burglary conviction. The “possessed” enhancement provides:
(1) When the court determines that the offender possessed
a deadly weapon during the commission of the current
conviction offense, the court shall consider the
DWE/Possessed Matrix (§ 303.17(a)). An offender has
possessed a deadly weapon if any of the following
were on the offender’s person or within his
immediate physical control:
(i) Any firearm, (as defined in 42 Pa.C.S. § 9712) whether
loaded or unloaded, or
(ii) Any dangerous weapon (as defined in 18 Pa.C.S. §
913), or
(iii) Any device, implement, or instrumentality designed as
a weapon or capable of producing death or serious bodily
injury where the court determines that the offender
intended to use the weapon to threaten or injure another
individual.
204 Pa. Code § 303.10(a)(1) (emphasis added).3
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At sentencing, Tavarez’s counsel did not object to the application of
3
the deadly weapon enhancement, but requested that the trial court apply
the “possessed” enhancement rather than the “used” enhancement to the
burglary conviction. See N.T., 10/7/16, at 12-13.
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The trial court explained its reasons for applying the “used”
enhancement to the burglary conviction as follows:
Because the use of weapons occurred during robbery, ipso
facto it must occur during the burglary. We have found no
precedent to suggest that a burglary ends immediately
after the breaking and entering premises. Instead,
common sense dictates that a burglary continues until, at
least, the perpetrator leaves the premises; an additional
crime committed during this time is not a superseding
intervening cause. Therefore, any acts committed during
this time are considered to still be in the commission of the
burglary.
In the instant matter, [Tavarez] made a threat with a
deadly weapon during the robbery. By necessity, this
threat with a deadly weapon was also occurring during the
burglary, since [Tavarez] was still in the midst of the
burglary during the robbery.
1925(a) Op. at 6 (unpaginated). We conclude that the trial court erred.
Tavarez pled guilty to the offense of burglary set forth in section
3502(a)(1)(ii) of the Crimes Code, which states:
A person commits the offense of burglary if, with the intent
to commit a crime therein, the person . . . enters a
building or occupied structure, or separately secured or
occupied portion thereof that is adapted for overnight
accommodations in which at the time of the offense any
person is present.
18 Pa.C.S. § 3502(a)(1)(ii). Our Supreme Court has explained that the
offense of burglary is complete at the moment of entry into an occupied
structure with the intent to commit a crime therein:
The crime of wi[l]fully and maliciously breaking and
entering any building with intent to commit any felony
ther[e]in is completed when the felon breaks into the
building either actually, or constructively by fraud,
conspiracy or threats, with the intent above named.
Consummation or execution of the intent to steal or
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to commit some other felony is not necessary to
complete the crime of burglary . . . . Whatever felony
is committed in the building broken into is separate and
distinct from the offense of breaking and entering into that
building.
Commonwealth ex rel. Moszczynski v. Ashe, 21 A.2d 920, 921-22 (Pa.
1941) (emphases added); see also Commonwealth v. Wiltrout, 457 A.2d
520, 524 (Pa.Super. 1983) (“Burglary is committed when a person enters a
building without authority with the specific intent to commit a crime
therein.”).
While the facts and the case law make clear that Tavarez satisfied the
elements of burglary before he “used” a weapon, the trial court nevertheless
concluded that for the purpose of the sentencing enhancement: (1) “a
burglary continues until, at least, the perpetrator leaves the premises,” and
(2) because “[Tavarez] made a threat with a deadly weapon during the
robbery, . . . this threat with a deadly weapon was also occurring during the
burglary, since [Tavarez] was still in the midst of the burglary during the
robbery.” 1925(a) Op. at 6. The Commonwealth likewise argues that
“[g]iven that the robbery was the object crime of the burglary, and the
robbery was to take place using firearms to threaten the occupants of the
home, it follows logically that the burglary also necessarily involved the use
of firearms to threaten violence.” Cmwlth.’s Br. at 10. We disagree.
We conclude that the record did not establish Tavarez’s “use” of a
firearm during the commission of the burglary under 204 Pa. Code
§ 303.10(a)(2). As discussed above, the burglary was complete at the
moment Tavarez unlawfully entered the residence with the intent to commit
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the crime of robbery therein. The facts placed on the record at the plea
proceeding, as well as those outlined in the affidavit of probable cause,
established only that Tavarez possessed a firearm when he entered the
residence; there was no showing that he used the firearm to gain entry into
the residence or to threaten the victims while entering the residence.
Tavarez did not encounter the victims until he and his co-conspirators went
upstairs to rob them. See Aff. of Prob. Cause, 12/23/15, at 1-4. Thus,
while Tavarez plainly used a firearm during the commission of the robbery,
and properly received a “use” enhancement for that offense, the record does
not support a finding that he employed the firearm “in a way that threatened
or injured” the victims “during the commission of the [burglary].” 204
Pa. Code § 303.10(a)(2) (emphasis added). Accordingly, we conclude that
the trial court abused its discretion in applying the deadly weapon “used”
enhancement rather than the “possessed” enhancement to Tavarez’s
burglary conviction.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.4
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4 In light of our disposition, we need not address Tavarez’s two
remaining issues. We note, however, that in its opinion, the trial court
acknowledged that it applied an incorrect offense gravity score to Tavarez’s
conviction for impersonating a public servant. See 1925(a) Op. at 3 n.7
(unpaginated).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2017
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