J-S08036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MICHAEL KRANENBURG

                            Appellant                No. 2340 EDA 2014


           Appeal from the Judgment of Sentence January 16, 2014
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0000445-1999


BEFORE: DONOHUE, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                         FILED JANUARY 23, 2015

        Michael Kranenburg (“Appellant”)1 appeals the judgment of sentence

entered in the Monroe County Court of Common Pleas following his guilty

plea conviction for simple assault.2 We affirm.

        On March 6, 1999, Appellant engaged in an altercation with Jeffrey

Stumpp (“Victim”), at a residence in Locust Lake Village, Tobyhanna

Township, Monroe County, Pennsylvania.            During the course of the

altercation, Appellant struck Victim in the head 3-4 times with an aluminum

ski pole with enough force to break the ski pole in two. The beating resulted

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1
  We acknowledge that many documents in the certified record refer to
Appellant alternatively as “Michael Krenenburg”.
2
    18 Pa.C.S. § 2701(a)(1).
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in protracted blindness and permanent disability to Victim’s left eye.

Appellant fled the scene on foot after administering the beating, but police

apprehended him later that day.

        On March 7, 1999, police filed a criminal complaint charging Appellant

with one count of aggravated assault3 and two counts of simple assault. On

February 9, 2000, Appellant entered a guilty plea, and the trial court set

sentencing for February 22, 2000. Appellant, having fled to Colorado, failed

to appear for sentencing, and the trial court issued a bench warrant.

        Appellant turned himself in nearly 14 years later, on January 6, 2014.

Thereafter, on January 16, 2014, the trial court sentenced Appellant to one

year of intermediate punishment, two weeks of which would be spent in the

intermediate punishment program at the Monroe County Correctional

Facility.

        On February 27, 2014, the Monroe County District Attorney’s Office

filed a Petition for Violation of Intermediate Punishment,4 on which the trial

court held a hearing on March 28, 2014.          Finding Appellant violated the

terms of his intermediate punishment sentence, the trial court re-sentenced

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3
    18 Pa.C.S. § 2702(a)(4).
4
   The violation petition alleged Appellant violated his intermediate
punishment by (1) failing to report on February 25, 2014, (2) being arrested
in New York State on February 11, 2014, and (3) failing to inform his
probation officer of a change of address within 72 hours.




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Appellant to 7 to 24 months’ incarceration.        Appellant filed a motion for

reconsideration on April 1, 2014, which the trial court denied on April 2,

2014. Appellant did not file a direct appeal.

        On May 9, 2014, Appellant filed a PCRA petition seeking reinstatement

of his direct appeal rights on his original, January 16, 2014, judgment of

sentence.      The PCRA court reinstated Appellant’s direct appeal rights by

agreement of the parties, and Appellant filed a notice of appeal on July 30,

2014.      Appellant filed a Pa.R.A.P. 1925(b) statement on August 29, 2014,

and the PCRA court filed its Pa.R.A.P. 1925(a) opinion on September 29,

2014.

        Appellant presents the following issues for our review:

        [I.] Whether Appellant was unlawfully sentenced pursuant to
        Pennsylvania Rule of Criminal Procedure 704 since Appellant was
        not sentenced within 90 days of the date of his conviction[?]

        [II.] Whether the trial court abused its discretion by imposing a
        deadly weapons enhancement to Appellant’s sentence as there
        was no evidence presented to support a finding that a ski pole is
        a deadly weapon[?]

Appellant’s Brief, p. 6.

        Appellant first argues his sentence is illegal because the trial court did

not sentence him within 90 days of the entry of his guilty plea.             See

Appellant’s Brief, pp. 15-21. We disagree.

        Our scope and standard of review for illegal sentence claims is as

follows:




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        The scope and standard of review applied to determine the
        legality of a sentence are well established. If no statutory
        authorization exists for a particular sentence, that sentence is
        illegal and subject to correction. An illegal sentence must be
        vacated. In evaluating a trial court’s application of a statute, our
        standard of review is plenary and is limited to determining
        whether the trial court committed an error of law.

Commonwealth v. Leverette, 911 A.2d 998, 1001-1002 (Pa.Super.2006)

(internal citations omitted).

        The Pennsylvania Rules of Criminal Procedure provide, in pertinent

part:

        [S]entence in a court case shall ordinarily be imposed within 90
        days of conviction or the entry of a plea of guilty or nolo
        contendere.

Pa.R.Crim.P. 704(A)(1). Our Supreme Court has explained that courts

should analyze sentencing delay claims under the same standard as alleged

speedy trial violations. See Commonwealth v. Glass, 586 A.2d 369, 371-

72 (Pa.1991). The Supreme Court described the factors to be considered in

such an analysis as follows:

        In determining whether a defendant’s constitutional speedy trial
        right has been violated, it must first be determined whether the
        delay itself is sufficient to trigger further inquiry. If the delay is
        sufficient to trigger further inquiry, the reviewing court must
        balance the length of the delay with the reason for the delay, the
        defendant’s timely assertion of his right to a speedy trial, and
        any resulting prejudice to the interests protected by the right to
        a speedy trial.

Glass, 586 A.2d at 371-72 (quoting Commonwealth v. Glover, 458 A.2d

935, 937 (Pa.1983)) (internal citations omitted); see also Commonwealth



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v. Diaz, 51 A.3d 884, 887 (Pa.Super.2012) (quoting Commonwealth v.

Anders, 725 A.2d 170, 172-173 (Pa.1999)) (“[A] defendant who is

sentenced in violation of Pa.R.Crim.P. 1405 [now Pa.R.Crim.P. 704], is

entitled to a discharge only where the defendant can demonstrate that the

delay in sentencing prejudiced him or her. . . . [T]o determine whether

discharge is appropriate, the trial court should consider: (1) the length of

the delay falling outside of [the Pa.R.Crim.P. [90–day–and–good–cause

provisions]; (2) the reason for the improper delay; (3) the defendant’s

timely or untimely assertion of his rights; and (4) any resulting prejudice to

the interests protected by his speedy trial and due process rights.”).

“Prejudice should not be presumed by the mere fact of an untimely

sentence. Our approach has always been to determine whether there has in

fact been prejudice, rather than to presume that prejudice exists. The court

should examine the totality of the circumstances, as no one factor is

necessary, dispositive, or of sufficient importance to prove a violation.”

Diaz, 51 A.3d at 887.       Additionally, this Court has long held that a

defendant who absconds or otherwise fails to appear when his case is called

cannot then complain of delays exceeding statutory periods and is not

entitled to discharge based on a failure to timely sentence him.         See

Commonwealth v. Vorhauer, 331             A.2d 815, 817 (Pa.Super.1974)

(defendant not entitled to relief where he absconded and failed to appear for

scheduled trial).




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       Here, Appellant’s own actions caused the nearly 14-year delay.

Appellant pleaded guilty on February 9, 2000, and the trial court scheduled

sentencing to occur 13 days later, on February 22, 2000.                    Appellant

absconded until January 6, 2014.               The trial court sentenced Appellant 10

days after his surrender, on January 16, 2014. Excluding the period of delay

caused by Appellant’s flight from justice, only 23 days elapsed between

Appellant’s conviction and sentencing.            This is well within the 90-day limit

mandated by Pa.R.Crim.P. 704.            Therefore, Appellant’s claim that the trial

court illegally sentenced him in violation of Pa.R.Crim.P. 704 fails.5

       Appellant next argues that the trial court abused its discretion in

imposing a deadly weapon enhancement to his sentence because no

evidence supported a finding that the ski pole used in the assault was a

deadly weapon. See Appellant’s Brief, pp. 21-24. Again, we disagree.

       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,
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5
    To the extent Appellant suggests that the Commonwealth needed to
illustrate, as in a Pa.R.Crim.P. 600 claim, its due diligence regarding
attempts to extradite him following his multiple arrests in Colorado, he is
incorrect. See Appellant’s Brief, pp. 17-18. The Commonwealth’s obligation
to illustrate due diligence does not arise in reference to periods where a
defendant voluntarily absconds. See Commonwealth v. Williams, 445
A.2d 537, 539 (holding the Commonwealth need not illustrate due diligence
to exclude periods where a defendant on bail absconds or otherwise
voluntarily fails to appear at a court proceeding of which he has been
properly notified).



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      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. Raven, 97 A.3d 1244, 1253 (Pa.Super.2014).

      When a trial court determines that a defendant possessed and/or used

a deadly weapon during the commission of a crime, the court must consider

the deadly weapon sentence guideline enhancement.              204 Pa.Code §

303.10.   The Crimes Code defines a “deadly weapon” as “[a]ny 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.”     18

Pa.C.S. § 2301; see also 204 Pa.Code § 303.10.            Therefore, a “deadly

weapon” need not be a gun or a knife, but instead can be anything

calculated or likely to produce serious bodily injury. See Commonwealth

v. Scullin, 607 A.2d 750, 753 (Pa.Super.1992) (tire iron); Commonwealth

v. Brown, 587 A.2d 6, 7 (Pa.Super.1991) (drywall saw); Commonwealth

v. Cornish, 589 A.2d 718, 719 (1991) (fireplace poker); Commonwealth

v. Prenni, 55 A.2d 532, 532 (Pa.1947) (stick similar to a broom handle).

Further, “the definition of deadly weapon does not demand that the person

in control of the object intended to injure or kill the victim. Instead, it gives

objects deadly weapon status on the basis of their use under the

circumstances.” Scullin, 607 A.2d at 753.




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      Additionally, the Crimes Code defines “serious bodily injury” as a

“[b]odily 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.”      18 Pa.C.S. § 2301 (emphasis

provided).

      In determining that the ski pole in this incident was a “deadly

weapon,” the trial court observed:

             A ski pole is definitely an instrumentality, the broad
      definition of which is a “thing used to achieve an end or
      purpose.” Black’s Law Dictionary, 8th ed., 2004. The ski pole is
      also likely to produce serious bodily injury. . . . [Appellant]
      struck the victim, in the head, with an aluminum ski pole 3-4
      times with enough force it caused the pole to break in two. This
      use of the ski pole was clearly likely to cause serious bodily
      injury if not death. In fact, the use of the ski pole did bring
      about serious bodily injury causing the victim to suffer
      protracted blindness and permanent disability to his eye.

Trial Court Pa.R.A.P. 1925(a) Opinion, September 29, 2014, p. 4. We agree

that an aluminum ski pole is a deadly weapon where it is employed to strike

the head of another with such force that the ski pole is broken and results in

the victim suffering protracted blindness and permanent disability to an eye.

Therefore, Appellant’s claim that the trial court improperly applied the

deadly weapons enhancement fails.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2015




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