J-S43016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA


                       v.

JOHN RASPATELLO

                            Appellant                      No. 1461 WDA 2016

          Appeal from the Judgment of Sentence Dated April 27, 2016
                  In the Court of Common Pleas of Elk County
             Criminal Division at No(s): CP-24-CR-0000128-2014

BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*

MEMORANDUM BY SOLANO, J.:                            FILED DECEMBER 22, 2017

        Appellant John Raspatello appeals from the judgment of sentence

imposed by the trial court following his convictions on two counts of

aggravated assault under 18 Pa.C.S. § 2702(a)(1) (“attempt[ing] to cause

serious bodily injury to another, or caus[ing] such injury intentionally,

knowingly      or   recklessly     under       circumstances   manifesting   extreme

indifference to the value of human life”), two counts of aggravated assault

under 18 Pa.C.S. § 2702(a)(4) (“attempt[ing] to cause or intentionally or

knowingly caus[ing] bodily injury to another with a deadly weapon”), and

various related offenses.1 Appellant challenges the weight and sufficiency of

____________________________________________
*   Former Justice specially assigned to the Superior Court.
1 Appellant was also convicted of two counts of simple assault, two counts of
recklessly endangering another person, one count of failing to stop following
an accident involving death or personal injury, and one count of reckless
driving. See 18 Pa.C.S. §§ 2701(a)(1) and 2705, and 75 Pa.C.S. §§ 3742(a)
and 3736(a), respectively.
J-S43016-17


the evidence and application of the “Deadly Weapon Enhancement” to his

sentences for violating Section 2702(a)(1). Upon review, we affirm the trial

court’s denial of the weight and sufficiency challenges, but vacate the

judgment of sentence and remand for resentencing.

     We incorporate the following facts from the trial court’s opinion:

         The incident which resulted in the filing of the charges against
     [Appellant] occurred at about 7:30 p.m. on December 30, 2013,
     in the parking lot of Nic’s Tobacco at 325 Brusselles Street in St.
     Marys, Elk County, Pennsylvania, when Douglas Brosius of
     Brosius Towing and Amy Cloak . . . were in the process of
     repossessing a 2003 Chevrolet Malibu owned by Suzanne
     Catalone. Brosius and Cloak were acting at the direction of
     Holiday Financial which had lent Catalone $2,720.25 on
     September 25, 2013, and taken title of her 2003 Chevrolet
     Malibu as collateral for the loan. When Catalone did not make a
     single payment on the loan[,] Laurie Udavich Temple of Holiday
     Financial began to inquire about the loan default, but when her
     collection efforts proved fruitless, she contacted Brosius Towing
     to take possession of the car, which was believed to be located
     between and adjacent to Nic’s Tobacco and the residence of
     Suzanne Catalone at 347 Brusselles Street.

        [Appellant] was Catalone’s boyfriend and lived with her at the
     Brusselles Street residence. He was known by Ms. Udavich of
     Holiday Financial as a result of the Catalone loan process and
     had been designated by Catalone to be her point of contact with
     Holiday Financial. It was exclusively with him that Ms. Udavich
     had communications about the loan default. He was therefore
     familiar with the terms of the loan, the loan default, and the fact
     that the Catalone car had been pledged as collateral.

        Brosius and Cloak arrived at the Brusselles Street location on
     December 30, 2013 between 7:00 p.m. and 7:30 p.m., and
     found the car where they were told it would be. Brosius expected
     to receive the vehicle keys and take possession of the Malibu
     without incident. When he called Suzanne Catalone, a man
     answered the phone and Brosius informed the man that he was
     there to pick up Catalone’s car, shortly after which a man exited
     the house next to Nic’s Tobacco and walked to the car with a set
     of keys. The man was ultimately identified as [Appellant] and
     when he approached Brosius and Cloak standing next to the car,
     he asked to be able to retrieve some items of personalty from
     the inside of the car and Brosius agreed to the request.
                                      2
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         [Appellant] got into the car and sat in the driver’s seat with
     Brosius standing next to him in the open driver’s side front door.
     Cloak was standing near the closed driver’s side rear door and
     left rear wheel. After putting the key into the ignition,
     [Appellant] opened the glove box and placed various documents
     and papers on the passenger seat. He then announced that he
     had a gun and instructed Brosius to back up. Brosius was not
     unduly alarmed and told [Appellant] to put the gun in the open
     where he could see it and that he was not backing up since he
     was performing a repossession.

        When [Appellant] repeated that he had a gun and Brosius did
     not react by backing out of the open car door, [Appellant] turned
     the key in the ignition, started the engine, immediately put the
     car in reverse and accelerated. In the process of doing so, the
     330-pound Brosius was struck by the open front door and
     propelled away from the door. The force of the impact with
     Brosius was such that the front door hinges were sprung open.
     With the car continuing rearward, the open front driver’s door hit
     Cloak and knocked her to the pavement . . . Cloak became
     wedged under the car door and was dragged some two car
     lengths across the parking lot pavement until she became
     dislodged and rolled into the yard of the Catalone residence.

        [Appellant] immediately drove away from the Brusselles
     Street location but was later located by Officer Peter Largey of
     the City of St. Marys Police Department a short distance from
     the scene.

                                *    *    *

        Cloak was transported to the Penn Highlands-Elk emergency
     room by ambulance and was first treated by Dr. George
     Castellano for multiple trauma. She presented [among other
     injuries] with a clinical deformity in her chest near her sternum
     and left shoulder and radiological reports confirmed the
     dislocation of her sternum and clavicle. Dr. Castellano indicated
     that had the dislocation been inward, it would potentially have
     been life-threatening because of the compromise of the heart,
     blood vessels, and thorax. Even so, the outward dislocation
     sustained by Cloak presented a threat to life, albeit a somewhat
     less serious threat than an inward dislocation.

                                *    *    *

        As a result of Douglas Brosius having been struck by the open
     front door of the car driven by [Appellant] with enough force to
                                     3
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        spring the door so it would not close, Brosius testified that he
        sustained an injury to his low back including the onset of pain.
        He first received treatment at Penn Highlands-DuBois (DRMC)
        emergency room on January 3, 2014[,] and was prescribed
        medication for the back pain. He followed up with five
        appointments with his family physician to address pre-existing
        cardiac issues which had been exacerbated, but not caused by,
        the December 30, 2013 episode, as well as his back, which he
        described as “very sore.” He also received chiropractic treatment
        for his lower back from Dr. David Gigliotti [beginning in January,
        2014,] after the cardiac issues had been addressed.

            Some twenty-two months after the incident . . . Brosius was
        still experiencing daily low back pain which affected his mobility
        . . . [When Brosius went to Dr. Gigliotti in 2014,] Dr. Gigliotti
        obtained a history from Brosius that he had been struck by a car
        door and “had a pretty significant increase in lower back pain,
        neck pain.” Dr. Gigliotti also reviewed a radiology report of an X-
        ray of Brosius’s back taken in early January 2014 five days after
        the inquiry. The report noted the loss of lumbar lordosis or curve
        in the lower back.

Trial Ct. Op., 8/30/16, at 2-5, 7-8 (citations to the record omitted). On

October 30, 2015, a jury found Appellant guilty of the charged offenses.2

With respect to Appellant’s conviction for aggravated assault under Section

2702(a)(4), the jury made a specific finding that Appellant had used a

deadly weapon in committing his crimes.3




____________________________________________
2 In a bench trial, the court convicted Appellant of the summary offense of
reckless driving. Trial Ct. Op. at 1.
3   The relevant portion of the verdict read by the jury foreperson was:

        Do you find that the [D]efendant used a deadly weapon; yes.

        Aggravated assault, deadly weapon; Douglas Brosius, guilty.

        Aggravated assault, deadly weapon; Amy Cloak, guilty.

N.T., 10/30/15, at 132-33.

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       During the sentencing proceeding on April 21, 2016, Appellant

objected to the trial court’s apparent intention to apply the Deadly Weapon

Enhancement to his sentence. N.T. Sentencing, 4/21/16, at 15. 4 Without

explicitly stating whether it planned to apply the enhancement, the trial

court responded by noting that “the jury made a specific finding that a

deadly weapon was used.” Id. The trial court later stated that under the

Sentencing Guidelines, the standard range minimum sentence for an

aggravated assault under Section 2702(a)(1) of the Crimes Code, 18 Pa.C.S.

§ 2702(a)(1), where, as in Appellant’s case, the offense gravity score is 11

and prior record score is 4, is “78 to 96 months,” and it announced its

intention to impose a sentence within the “minimum standard range.” Id. at

32. The court ultimately sentenced Appellant to serve consecutive minimum

terms of 84 and 96 months’ incarceration for the two Section 2702(a)(1)

offenses involving Brosius and Cloak, respectively. Id. at 34-35.5

       Appellant filed a timely post-sentence motion on May 2, 2016, which

the trial court denied on August 30, 2016. Order, 8/30/16; Trial Ct. Op. at 1.




____________________________________________
4 As we discuss further below, when a court determines that a defendant
possessed or used a deadly weapon in the commission of the offense for
which he or she is being sentenced, the Sentencing Guidelines call for
application of a “Deadly Weapon Enhancement,” which increases the
minimum sentence set by the Guidelines. See 204 Pa. Code §§ 303.2(a)(3),
303.10, 303.17(a) (Deadly Weapon Enhancement/Possessed Matrix),
303.17(b) (Deadly Weapon Enhancement/Used Matrix).
5 Appellant received lesser concurrent sentences for his convictions for
aggravated assault under Section 2702(a)(4), not stopping at the scene of
the accident, and reckless driving, and received no further penalty for his
convictions for simple assault and recklessly endangering another person.

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On September 28, 2016, Appellant filed a timely notice of appeal, and he

now raises the following issues:

       I.   Whether the [trial] court erred in entering verdicts against
       the weight of the evidence where [Appellant] acted in lawful
       defense of property.

       II.   Whether the [trial] court erred in entering verdicts based
       on insufficient evidence to show serious bodily [injury] regarding
       victim Douglas Bro[s]ious.

       III. Whether the [trial] court erred in applying the deadly
       weapon enhancement in sentencing Appellant.

Appellant’s Brief at 5 (capitalization omitted).

                            Sufficiency of the Evidence

       We begin with Appellant’s second issue, which challenges the

sufficiency of the evidence to convict him of aggravated assault of Brosius

under Section 2702(a)(1) of the Crimes Code, which provides —

       A person is guilty of aggravated assault if he:

          (1) Attempts to cause serious bodily injury to another, or
          causes such injury intentionally, knowingly or recklessly
          under circumstances manifesting extreme indifference to the
          value of human life[.]

18 Pa.C.S. § 2702(a)(1).6 Appellant argues that the record contained

insufficient evidence to allow the jury to find that Brosius suffered serious

bodily injury. Appellant’s Brief at 17.

       When reviewing a challenge to the sufficiency of the evidence, we view

all “evidence admitted at trial in the light most favorable to the verdict

winner,” asking whether —
____________________________________________
6 Appellant does not challenge the sufficiency of the evidence to convict him
of aggravated assault with respect to Cloak and does not challenge the
sufficiency of the evidence to convict him of any of the other offenses.

                                               6
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      there is sufficient evidence to enable the fact-finder to find every
      element of the crime beyond a reasonable doubt. In applying the
      above test, we may not weigh the evidence and substitute our
      judgment for [that of] the fact-finder . . . . [F]acts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances . . . . In applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder of fact . . . is free to believe all,
      part or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014) (citation

omitted).

      The Crimes Code defines “serious bodily injury” as “[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. Appellant contends that Brosius’

injuries do not meet that definition because they are “similar or the same as

injuries . . . he had suffered for a substantial period of time prior to the

incident.” Appellant’s Brief at 17-18. The Commonwealth disagrees, pointing

to Brosius’ testimony of daily lower back pain that prevents him from

bending     or   stooping   and   requires   regular   chiropractic   treatment.

Commonwealth’s Brief at 3-4. It also argues that Brosius’ loss of lower

lumbar lordosis was a “protracted loss or impairment of the function of any

bodily member or organ,” meeting the statutory definition of a serious bodily

injury. Id. at 5.

      In denying Appellant’s post-trial challenge on this issue, the trial court

reiterated Dr. Gigliotti’s testimony that Brosius had a significant increase in

                                       7
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lower back and neck pain, as well as a decrease in lower lumbar lordosis.

The trial court noted that Brosius exhibited symptoms after the incident

which he had never previously presented. Trial Ct. Op. at 8; N.T., 10/29/15,

at 112, 181-82.

      We agree with the trial court that the record contained sufficient

evidence to allow a jury to find that Brosius suffered serious bodily injury.

Appellant relies on one argument: that Brosius’ injuries were “similar or the

same” as injuries he suffered prior to the incident. He ignores the trial

court’s finding that Appellant presented new symptoms following the incident

and never acknowledges Brosius’ loss of lower spine curvature. Viewed in a

light most favorable to the Commonwealth, the record substantiates the

jury’s finding that Brosius suffered a “protracted impairment or loss of

function” of a bodily member. N.T. 10/29/15, at 180-81; 18 Pa.C.S. § 2301.

We therefore affirm the trial court’s finding that Brosius’ “serious bodily

injury” is sufficiently supported by the evidence.

                                Weight Claim

      Appellant challenges the weight of the evidence supporting his

convictions. He argues that the weight of the evidence supports the view

that the use of force for which he was convicted was justified because he

was trying to prevent Brosius and Cloak from unlawfully repossessing

Catalone’s vehicle. Appellant’s Brief at 15.

      When analyzing a weight of the evidence challenge, we apply the

following standard of review:

      Appellate review of a weight claim is a review of the exercise of
      discretion, not the underlying question of whether the verdict is
                                       8
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       against the weight of the evidence. Because the trial judge has
       had the opportunity to hear and see the evidence presented, an
       appellate court will give the gravest consideration to the findings
       and reasons advanced by the trial judge when reviewing a trial
       court’s determination that the verdict is against the weight of the
       evidence. One of the least assailable reasons for granting or
       denying a new trial is the lower court’s conviction that the
       verdict was or was not against the weight of the evidence and
       that a new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and

citations omitted). To prevail on a weight of the evidence challenge, “the

evidence must be so tenuous, vague, and uncertain that the verdict shocks

the conscience of the court.” Commonwealth v. Talbert, 129 A.3d 536,

546 (Pa. Super. 2015) (internal quotation marks and citation omitted),

appeal denied, 138 A.3d 4 (Pa. 2016).

       Appellant argues that his use of force was a justifiable defense of

property because the victims unlawfully attempted to repossess Catalone’s

vehicle. Appellant’s Brief at 5. Reasoning that use of force is justifiable when

“necessary to prevent the unlawful carrying away of property,” he argues

that his victims’ repossession “became unlawful when the peace was

breached,” citing 13 Pa.C.S. § 9609. Id. at 14.7 Appellant asserts: “After

Appellant [entered and refused to leave the] vehicle, things got heated.

Although testimony differed between witnesses, reference was made to a

gun, with voices raised. Appellant contends that the peace was now

breached.” Id. The Commonwealth responds that the jury “was at liberty to

____________________________________________
7 The cited statute is a provision of the Uniform Commercial Code that states
that, after a default, a secured party may take possession of collateral
“without judicial process if it proceeds without breach of the peace.” 13
Pa.C.S. § 9609(b)(2).

                                               9
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weigh” the testimony of all parties involved, “including due consideration of

the justification defense of property instruction given to the jury,” and that

Appellant’s weight of the evidence claim is “without merit as a matter of

law.” Commonwealth’s Brief at 2.8

        In rejecting Appellant’s argument, the trial court concluded that

Appellant’s use of deadly force was not justifiable and “the jury could assess

the evidence regarding the force used by [Appellant] to thwart possession

and determine that the operation of the Impala in reverse in such close

proximity to Brosius and Cloak constituted deadly force.” Trial Ct. Op. at 10-

11.9

        Section 507 of the Crimes Code provides that a person may use force

to protect or defend property when he believes that force is “immediately

necessary” to “prevent . . . the unlawful carrying away of tangible movable

property, if such . . . movable property is, or is believed by the actor to be,

in his possession or in the possession of another person for whose protection

he acts.” 18 Pa.C.S. § 507(a)(1). However, the Code permits use of deadly

force in defense of property only if the person seeking the property has

entered the actor’s dwelling. See id. § 507(c)(4).10 In this context, “deadly

____________________________________________
8   The jury charge was not included in the certified record.
9  The court added that (1) Appellant admitted that he was aware that
Brosius was repossessing the vehicle and the jury received evidence allowing
it to determine that the victims had a claim of right to the vehicle, and (2)
Appellant “did not remotely establish” that he was acting with the authority
of his girlfriend to prevent the car’s repossession.
10   Section 507(c)(4) provides:

(Footnote Continued Next Page)
                                               10
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force” is “[f]orce which, under the circumstances in which it is used, is

readily capable of causing death or serious bodily injury.” Id. § 501.

      We agree with the trial court that Appellant is not entitled to relief on

this claim. Appellant argued his justification defense to the jury, which

rejected it.11 As the trial court concluded, the evidence presented to the jury

on this issue was more than sufficient to enable the jury to reach that result.

In particular, the jury received sufficient evidence to conclude that Appellant

used deadly force even though there had been no entry into his dwelling.12


(Footnote Continued) _______________________
      (i)    The use of deadly force is justifiable under this section if:

             (A)    there has been an entry into the actor’s dwelling;

             (B)    the actor neither believes nor has reason to believe
                    that the entry is lawful; and

             (C)    the actor neither believes nor has reason to believe
                    that force less than deadly force would be adequate
                    to terminate the entry.

      (ii)   If the conditions of justification provided in subparagraph
             (i) have not been met, the use of deadly force is not
             justifiable under this section unless the actor believes that:

             (A)    the person against whom the force is used is
                    attempting to dispossess him of his dwelling
                    otherwise than under a claim of right to its
                    possession; or

             (B)    such force is necessary to prevent the commission of
                    a felony in the dwelling.

18 Pa.C.S. § 507(c)(4).
11 We note that Appellant does not argue that the trial court’s instructions
regarding justified use of force were lacking in any way.
12 As we have already discussed, the evidence was sufficient to establish

that Appellant used force that was sufficient to cause Brosius to suffer
serious bodily injury. Similarly, the evidence established that Cloak suffered
(Footnote Continued Next Page)
                                           11
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His impermissible use of force deadly force negated Appellant’s justification

defense.

      Upon reviewing the record, we conclude that the trial court did not

abuse its discretion in denying Appellant’s weight claim.

                         Deadly Weapon Enhancement

      The Sentencing Guidelines, 204 Pa. Code § 303.10(a)(2), provide:

“When the court determines that the offender used a deadly weapon during

the commission of the current conviction offense, the court shall consider

the [Sentencing Guideline matrix in Section 303.17(b)],” which sets forth

higher guidelines due to use of the weapon. Appellant contends that the trial

court erred in applying this Deadly Weapon Enhancement when imposing its

sentences for the two aggravated assault charges under 18 Pa.C.S.

§ 2702(a)(1). Appellant’s Brief at 12.13 He argues that the standard

sentencing range was 60 to 78 months, but the trial court’s improper use of

the Deadly Weapon Enhancement caused it incorrectly to view the standard


(Footnote Continued) _______________________
serious bodily injury; Dr. Castellano testified that her injury could have been
life-threatening, particularly if the dislocation of her sternum had been
inward.
13 The enhancement was not applied and was not applicable to Appellant’s
convictions of aggravated assault under Section 2702(a)(4), which makes it
a crime to “attempt[] to cause or intentionally or knowingly cause[] bodily
injury to another with a deadly weapon” 18 Pa.C.S. § 2702(a)(4), because
the use of a deadly weapon is already an element of that offense and is
therefore factored into its offense gravity score. See 204 Pa. Code
§ 303.10(a)(3)(vi), (4); Commonwealth v. Childs, 664 A.2d 994, 997 n.2
(Pa. Super. 1995), appeal denied, 674 A.2d 1066 (Pa. 1996). There is no
similar impediment to applying the enhancement to aggravated assault
under Section 2702(a)(1), which does not require use of a deadly weapon as
an element of the crime. See Commonwealth v. Solomon, 151 A.3d 672,
678 (Pa. Super. 2016), appeal denied, 168 A.3d 1265 (Pa. 2017).

                                           12
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minimum range as 78 to 96 months and to impose actual minimum

sentences of 84 and 96 months, respectively. Id. The Commonwealth

responds that the Deadly Weapon Enhancement was properly applied.

Commonwealth’s Brief at 1, 5.

      The trial court insists that it did not apply the Deadly Weapon

Enhancement. Trial Ct. Op. at 12. The court reiterates its statement from the

sentencing hearing that Appellant’s prior record score of 4 and offense

gravity score of 11 led it to apply a standard minimum sentencing range of

78 to 96 months, and that it sentenced Appellant within that range. Id. at

13. The court continues:

      The record of the April 21, 2016 sentencing proceeding is devoid
      of any discussion of any deadly weapon enhancement by counsel
      . . . or of the Court applying any such enhancement in its
      sentences. [Appellant’s] conflating the deadly weapon used
      finding by the jury and deadly weapon sentencing enhancement
      results i[s] no basis for reconsideration of sentence.

Id.   The court adds that “the way [Appellant] drove the [vehicle]

transformed [it] into a deadly weapon, but this is of no moment in terms of

sentencing [him] in this case.” Id. at 12.

      After   careful   consideration,   we   conclude   that   the   trial   court’s

sentencing calculations do reflect application of the Deadly Weapon

Enhancement.     We also conclude that the enhancement did apply to the

facts of this case. In light of the trial court’s apparent belief that the

sentence it imposed did not reflect the enhancement, we remand so that the

court may have an opportunity to ensure that the sentences it imposed

accurately reflect its intended sentencing scheme.


                                         13
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      Appellant’s   argument     regarding   application   of   the   Sentencing

Guidelines’ Deadly Weapon Enhancement relates to a discretionary aspect of

his sentence, and he therefore must pass a four-part test when invoking this

Court’s jurisdiction to hear this issue:

      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal; (2) whether the
      issue was properly preserved at sentencing or in a motion to
      reconsider and modify sentence; (3) whether appellant’s brief
      has a fatal defect [under 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.

Buterbaugh, 91 A.3d at 1265-66 (citation omitted) (alteration in original).

To avoid the “fatal defect” referenced under this test, the appellant’s brief

must include a separate concise statement demonstrating that there is a

substantial question regarding the appropriateness of the sentence under

the Sentencing Code. Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa.

2002) (citing Pa.R.A.P. § 2119(f)). This Court has found that the application

of the Deadly Weapon Enhancement presents a substantial question under

the Code. See Buterbaugh, 91 A.3d at 1266 (holding that appellant

presented a substantial question where he asserted that his vehicle was not

a deadly weapon pursuant to the Deadly Weapon Enhancement).

      Appellant filed a timely notice of appeal and preserved his objection

during the sentencing proceeding. His brief includes a concise statement

pursuant to Rule 2119(f) and thus does not contain a fatal defect.

Appellant’s Brief at 12. Since he challenges the application of the Deadly

Weapon Enhancement, he has presented a substantial question under

Buterbaugh. We therefore have jurisdiction to hear his challenge.

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        We “analyze the sentencing court’s decision under an abuse of

discretion standard.” Commonwealth v. Smith, 151 A.3d 1100, 1104 (Pa.

Super. 2016) (citation and internal quotation marks omitted), appeal

granted, 169 A.3d 1067 (Pa. 2017). Our review of the discretionary aspects

of a sentence is confined to the statutory mandates of 42 Pa.C.S. § 9781(c)

and (d). Id. Section 9781(c) provides that this Court “shall vacate the

sentence and remand the case to the sentencing court” under three

circumstances:

        (1) the sentencing court purported to sentence within the
        sentencing guidelines but applied the guidelines erroneously;

        (2) the sentencing court sentenced within the sentencing
        guidelines but the case involves circumstances where the
        application of the guidelines would be clearly unreasonable; or

        (3) the sentencing court sentenced outside the guidelines and
        the sentence is unreasonable.

42 Pa.C.S. § 9781(c).14 Appellant contends that his case meets the first of

these    circumstances because          the     trial   court applied   the   Sentencing

Guidelines erroneously.

        The applicable Sentencing Guidelines are those that were in effect on

the date of Appellant’s offenses, December 30, 2013. See 204 Pa. Code

§ 303.1(c).15 The version of the guidelines in effect at that time became


____________________________________________
14 Section 9781(d) states that an appellate court reviewing a sentence shall
consider, among other things, “[t]he guidelines promulgated by the
commission.” 42 Pa. C.S. § 9781(d).
15 Section 303.1(c) states, in relevant part:


        The sentencing guidelines shall apply to all offenses committed
        on or after the effective date of the guidelines. Amendments to
(Footnote Continued Next Page)
                                               15
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effective on September 27, 2013. Id. § 303.1(c)(2); see Pa. Comm. on

Sentencing, “Adoption of Amendment to the 7th Edition Sentencing

Guidelines,” 43 Pa. Bull. 3655 (June 29, 2013); id. at 3658 (effective

date).16 A review of those 2013 guidelines discloses that the trial court erred

in stating that the standard minimum range for an offense with an offense

gravity score of 11 and a prior record score of 4 was “78 to 96 months.” See

Trial Ct. Op. at 13. The correct standard minimum range for such an offense

under the 2013 guidelines was 60 to 78 months. See 43 Pa. Bull. at 3730

(2013 version of Section 303.16(a) of Guidelines). The 78 to 96 month

range recited by the trial court actually was the range if the Deadly Weapon

Enhancement were applied. See 43 Pa. Bull. at 3733 (2013 version of

Section    303.17(b)    of   Guidelines).      Therefore,   Appellant   is   correct   in

contending that the 84 and 96 month minimum sentences imposed by the

trial court were above the standard range in the Guidelines (60-78 months)

and instead were within the range for application of the enhancement (78-96

months).

      When a sentencing court “fails to begin its calculation of sentence from

the correct starting point” in the Sentencing Guidelines, “this Court will

remand for reconsideration of sentence.” Solomon, 151 A.3d at 676

(citation omitted). Because the trial court has made clear that it intended to
(Footnote Continued) _______________________
      the guidelines shall apply to all offenses committed on or after
      the date the amendment becomes part of the guidelines.
16The relevant guideline sentences under the 2013 version of the Guidelines
are the same as those in the current version of the Guidelines, which was
promulgated effective September 25, 2015. See 204 Pa. Code §§ 303.16(a),
303.17(b).

                                            16
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apply the Sentencing Guidelines without the Deadly Weapon Enhancement,

we therefore might remand this case for resentencing. But before doing so,

we need to determine whether the trial court was correct in its intention not

to apply the Deadly Weapon Enhancement. The Commonwealth contends

that the enhancement applies here, and a sentencing court “has no

discretion to refuse to apply . . . the deadly weapons enhancement” where a

deadly weapon has been used to commit the crime. Commonwealth v.

Scullin, 607 A.2d 750, 753-54 (Pa. Super.), appeal denied, 621 A.2d 579

(Pa. 1992); accord Solomon, 151 A.3d at 676; Commonwealth v.

Magnum, 654 A.2d 1146, 1149-50 (Pa. Super. 1995). If the trial court had

failed to apply the enhancement when such application was required, we

would have to remand for resentencing using the enhancement. Solomon,

151 A.3d at 678. We therefore need to determine whether the Deadly

Weapon Enhancement was applicable here.

     Appellant contends that the enhancement does not apply because

Catalone’s vehicle did not constitute a deadly weapon “based on the manner

in which it was used.” Appellant’s Brief at 12. To support this claim,

Appellant distinguishes the facts in his case with those in Buterbaugh, a

leading case on whether a vehicle may be considered a deadly weapon for

purposes of the enhancement. In Buterbaugh, the defendant fatally struck

a victim with his truck after an altercation in a bar. 91 A.3d at 1251-52. We

held that the defendant’s use of the vehicle made it a deadly weapon. We

reasoned that “the character of an automobile changes based on the

particular circumstances surrounding its use,” and that the truck “changed to

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a deadly weapon the instant [the defendant] backed his vehicle out of the

bar’s parking lot, accelerated forward at its maximum rate of acceleration,

and struck the victim with sufficient force to cause death.” Id. at 1269.

       In seeking to distinguish Buterbaugh, Appellant asserts that the

defendant in that case drove his truck forward at a high speed, “pointed

directly at the victim . . . [and] clearly intend[ed] to hit the victim.”

Appellant’s Brief at 18. By contrast, Appellant asserts that the victims here

were “struck by the open door of the vehicle,” which “was moving

backwards” and only struck the victims at the “initiation of . . . movement.”

Id. at 19. Appellant also cites Smith to argue that “the actor’s intent is

important when determining whether an object is a ‘deadly weapon,’” and

that here, “[a]s indicated by Appellant, his intentions were to keep the

victims from unlawfully taking possession of the vehicle.” Id. at 18-19. In

response, the Commonwealth argues that Appellant used his vehicle as a

deadly weapon, making application of the enhancement appropriate.

Appellee’s Brief at 5.17

____________________________________________
17 In support of its argument, the Commonwealth points out that the jury
made a “specific factual finding” that Appellant used a deadly weapon.
Appellee’s Brief at 5. The trial court observed, however, that the jury’s
finding that Appellant used a deadly weapon related only to whether the
Commonwealth proved use of a deadly weapon as a necessary element of
aggravated assault under 18 Pa.C.S. § 2702(a)(4) (“person is guilty . . . if
he . . . attempts to cause or intentionally or knowingly causes bodily injury
to another with a deadly weapon”), but that it was not a “finding of an
element which increased a penalty.” Tr. Ct. Op. at 13. Under the Crimes
Code, a “deadly weapon” is —

       [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
(Footnote Continued Next Page)
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      The Sentencing Guidelines contain the following definition of a “deadly

weapon”:

      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). Under this definition, devices, implements,

and instrumentalities not designed to inflict harm can take on “deadly

weapon”     status    based    on    the   manner   in   which   they   are   used.

Commonwealth v. Rhoades, 8 A.3d 912, 917 (Pa. Super. 2010), appeal

denied, 25 A.3d 328 (Pa. 2011), cert. denied, 565 U.S. 1263 (2012).18

      Buterbaugh establishes that a vehicle may constitute a deadly

weapon for purposes of the Deadly Weapon Enhancement. See 91 A.3d at


(Footnote Continued) _______________________
      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. The definition in the Sentencing Guidelines, which we
quote in the text, is slightly different. It is the province of the court, and not
the jury, to determine the applicability of the Deadly Weapon Enhancement
on the facts of each case. 204 Pa. Code § 303.10(a)(2).
18 See Scullin, 607 A.2d at 753 (finding that a tire iron became a deadly
weapon when thrown at victim); Commonwealth v. Cornish, 589 A.2d
718, 721 (Pa. Super. 1991) (characterizing a fireplace poker used to strike a
victim as a deadly weapon); Commonwealth v. Brown, 587 A.2d 6, 7 (Pa.
Super. 1991) (holding that a saw used to stab a victim was a deadly
weapon).


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1270. Our case law further establishes that a “deadly weapon” determination

is not barred by the fact that a vehicle moves in reverse and the victims are

so close that a high velocity cannot be reached. See Solomon, 151 A.3d at

678. In Solomon, police pulled the defendant over in an alleyway. Id. at

675. The defendant then drove his vehicle in reverse toward the officers who

were standing eight feet away, and he barely missed hitting them. Id. at

678. This Court upheld application of the Deadly Weapon Enhancement to

the defendant’s aggravated assault sentence, reasoning that the vehicle —

       became a deadly weapon when [the defendant] drove it in
       reverse through an eight-foot-wide opening directly at a person
       who was standing less than fifteen feet behind him. Here, [the
       defendant’s] motivation for reversing the vehicle is of no
       moment. If a person drives a vehicle at another person, there is
       a high probability that the victim will be seriously hurt or killed.

Id. Solomon thus undermines Appellant’s proposed means of distinguishing

his conduct from prior deadly weapons cases.

       In addition, Appellant’s reliance on our decision in Smith is misplaced.

We held in Smith that when applying the Deadly Weapon Enhancement a

person’s actual use of an object is determinative; the actor’s intentions

count only as part of the surrounding circumstances informing actual use.

Smith, 151 A.3d at 1107.19 The defendant in Smith pled guilty to

aggravated assault after he drove drunk and hit a pedestrian who was

crossing the street. Id. at 1102-03. In upholding the trial court’s choice not

to apply the Deadly Weapon Enhancement, this Court distinguished between
____________________________________________
19While an appeal in Smith has been allowed by the Supreme Court, see
Commonwealth v. Smith, 169 A.3d 1067 (Pa. 2017), we are tasked to
decide this case under the current state of the law, which includes our
decision in Smith.

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the weight a defendant’s intent carries when applying an enhancement for

use of a deadly weapon, and its weight when the defendant merely

possesses the weapon:

      [U]nlike the DWE [Deadly Weapon Enhancement] for use of a
      deadly weapon, when a person merely possesses a [deadly
      weapon] during the commission of a crime, pursuant to
      § 303.10(a)(1)(iii), . . . the person’s intentions with regard to
      that object are determinative. However, for the sake of applying
      the DWE for use under § 303.10(a)(2), the person’s actual use
      is determinative, and this use is informed by his intentions.

Id. at 1107 (emphasis added). We reasoned that the defendant intended

only to use his car as a mode of transportation, and that “[i]n light of the

surrounding circumstances, there is no indication [he] actually used the car

for any reason other than conveying himself and his passengers” to their

destination. Id.

      Here, unlike in Smith, Appellant drove a vehicle at the nearby victims,

using it in such a way as would result in a high probability of serious injury

or death, thus transforming it into a deadly weapon. See Solomon, 151

A.3d at 678; Buterbaugh, 91 A.3d at 1270. Unlike the defendant in Smith,

who was employing the vehicle as a mode of transportation, Appellant has

not suggested a similarly innocuous intent. Rather, Appellant attempts to

characterize his operation of the vehicle as a justified use of force to

prevent seizure of Catalone’s vehicle, thereby acknowledging his intention to

use the vehicle in an aggressive manner. Moreover, as was noted in Smith,

in a “deadly weapon used” inquiry, actual use is determinative, and

Appellant’s intentions are relevant only insofar as they inform that use. As

the Court in Solomon stated, an actor’s motivation (such as evasion)

                                     21
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matters not in determining whether a motor vehicle is a deadly weapon

when he aims that vehicle at another person. 151 A.3d at 678. We therefore

conclude that the trial court would have abused its discretion if it had failed

to apply the Deadly Weapon Enhancement on the facts of the case before it.

      We recognize, of course, that the trial court said it did not intend to

apply the enhancement. Given this erroneous view of the applicable

sentencing requirements, it may be that the trial court’s sentencing scheme

would have been different in this case if it had recognized that the Deadly

Weapon Enhancement applied. For this reason, we will remand to the trial

court for reconsideration of its sentence, though we instruct that its

sentencing must begin with application of a sentencing guideline that

includes the Deadly Weapon Enhancement. See Commonwealth v.

Sutton, 583 A.2d 500, 502 (Pa. Super. 1990) (remanding for resentencing

so as not to “clearly upset the trial court’s ability to effectuate its original

sentencing scheme”), appeal denied, 596 A.2d 156 (Pa. 1991); see also

Commonwealth v. Serrano, 61 A.3d 279, 291 (Pa. Super. 2013)

(remanding sentencing for all counts “because our vacating the judgment for

delivery of cocaine may upset the sentencing scheme”).

      In conclusion, we affirm the trial court’s denial of Appellant’s post-

conviction motions challenging the weight and sufficiency of the evidence.

We vacate Appellant’s judgment of sentence and remand for resentencing.

      Judgment of sentence vacated and case remanded for resentencing.

Judgment affirmed as to Appellant’s weight and sufficiency challenges.

Jurisdiction relinquished.

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     Judge Stabile joins the memorandum.

     Justice Fitzgerald concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2017




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