J-S13008-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

DAJON ANTHONY SMITH

                        Appellant                   No. 375 WDA 2014


    Appeal from the Judgment of Sentence entered November 21, 2013
            In the Court of Common Pleas of Allegheny County
             Criminal Division at No: CP-02-CR-0016741-2012


BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.

CONCURRING MEMORANDUM BY STABILE, J.:                FILED APRIL 1, 2015

     I concur in the Majority’s decision.   I write only to express my view

that the trial court did not err in failing to consider Appellant’s non-

commission of another crime with the firearm as a mitigating factor.     The

possessory offense of carrying a firearm without a license, 18 Pa.C.S.A.

§ 6106(a), does not require the commission of an attendant crime.

Commission of another crime using the illegally possessed firearm (for

example aggravated assault or terroristic threats) is an “aggravating factor”

only in the sense that an offender could receive a separate, consecutive

sentence for committing that other crime.        Moreover, the sentencing

guidelines would account for use of the firearm to commit that other crime.

Compare 204 Pa. Code § 303.16(a) (Basic Sentencing Matrix), with id.

§ 303.17(b) (Deadly Weapon Used Enhancement Sentencing Matrix); see,
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e.g., Commonwealth v. Kneller, 999 A.2d 608, 615 (Pa. Super. 2010) (en

banc) (applying the deadly weapon used enhancement to cruelty to animals

conviction where defendant used firearm in furtherance of offense). Merely

because use of the firearm to commit another offense may result in greater

sentencing liability does not, therefore, require a sentencing judge to

consider non-use of the firearm to commit another crime as a mitigating

factor.

      Consequently, I do not believe trial court “likely erred” in refusing to

consider Appellant’s non-commission of another crime as mitigating.

Moreover, it is debatable whether this claim constitutes a substantial

question. “That the court refused to weigh the proposed mitigating factors

as [a]ppellant wished, absent more, does not raise a substantial question.”

Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super. 2010). To the

extent Appellant raises a substantial question, as the Majority holds, the trial

court did not abuse its discretion. See id. at 170 (“An abuse of discretion

may not be found merely because an appellate court might have reached a

different conclusion . . . .”).

      Accordingly, I concur in the result reached by the Majority.




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