J-A09016-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   : IN THE SUPERIOR COURT OF
                                                :      PENNSYLVANIA
                       Appellee                 :
                                                :
               v.                               :
                                                :
RAHMIR VENABLE,                                 :
                                                :
                       Appellant                : No. 1069 EDA 2014

          Appeal from the Judgment of Sentence November 19, 2013,
                 Court of Common Pleas, Philadelphia County,
              Criminal Division at No. CP-51-CR-0002534-2013

BEFORE: BOWES, DONOHUE and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.:                                       FILED MAY 05, 2015

       Appellant, Rahmir Venable (“Venable”), appeals from the judgment of

sentence entered on November 19, 2013 by the Court of Common Pleas of

Philadelphia        County,   Criminal   Division,   following    his   guilty   plea   to

aggravated assault,1 robbery,2 criminal conspiracy,3 use or possession of

electric or electronic incapacitation device,4 and use or possession of an

offensive weapon.5 For the reasons that follow, we affirm in part and vacate

in part, Venable’s judgment of sentence.



1
    18 Pa.C.S.A. § 2702(a).
2
    18 Pa.C.S.A. § 3701(a)(1)(i).
3
    18 Pa.C.S.A. § 903(c).
4
    18 Pa.C.S.A. § 908.1(a)(1).
5
    18 Pa.C.S.A. § 908(a).
J-A09016-15


      This case stems from a heinous attack on Dr. Allison Walsh (“Dr.

Walsh”) in which Venable took part.           The relevant facts that the

Commonwealth would have proven had this case gone to trial and to which

Venable pled guilty are as follows:

            [O]n the morning of August 25th, 2012, at
            approximately 5:45 in the morning[,] which was day
            break[,] the complainant, [Dr. Walsh], was walking
            to work at Jefferson Hospital. When she got to about
            the area of 11th and Lombard Streets in the city and
            county of Philadelphia, five males were walking
            towards her. One looked at her and said, [g]ood
            morning. She said good morning back as she looked
            at him. He then -- that would be the codefendant,
            Marquise Bullock [(“Bullock”)], grabbed her purse,
            put a taser to her neck and shocked her.

            At that point[,] she yelled for him to get off of her.
            She struggled with him.        He yelled, [g]et her.
            Another codefendant, Sulan Jones [(“Jones”)],
            grabbed her by the arm. Bullock then tries to tase
            her again. She is able to break away but she runs
            into [Jones]. Jones starts hitting her, punching her
            with his fists on her right side. [Bullock] grabs her
            arm, tases her again. She’s also kicked in her knee
            and pushed to the ground.

            At that point[,] while the males were walking
            towards her, they slightly walk past her. These two
            males were slightly ahead with another codefendant,
            Anthony McKim. They come back and at that point
            they come back and Dr. Walsh is on the ground face
            up as all five of them punch and kick her repeatedly
            about her body. She’s punched in the side of her
            head. She’s kicked all over her body. She’s kicked
            in her face which results in her having a broken
            nose. She’s [tased] at least four times. First time
            being on her neck. She’s tased on her inner arm.
            She’s tased on the palm of her hand. She’s tased on
            her forehead.



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          They continuously try to get her purse from her.
          While she struggles with them, they drag her on the
          ground[,] pulling at her purse. Your Honor, to this
          day she still has two scars, bad scars on her back
          from being dragged on the ground.           They do
          eventually get her purse away from her and they all
          run off together going northbound, I believe, on 11th
          street.

          Taken in her bag was her wallet with her
          identification, credit cards and debit cards, her
          physician’s license, $250 VISA gift card, her pagers
          for Jefferson Hospital, her medications, her iPhone
          and $40 of United States currency.

                              *     *     *

          [Dr. Walsh’s] brother-in-law tried to track her iPhone
          using an app.      At that point[,] her iPhone was
          originally labeled Allison’s iPhone. It came up as
          Lamar’s iPhone.     Then[,] through      her Facebook
          account, all of her friends were notified that an
          Instagram account had been opened linked to her
          Facebook.      That name was under the name
          Rahh_Bangga … . A picture of [Venable] popped up
          with the account.

          [Dr. Walsh] alerted the detectives. A picture -- a
          screen shot of her phone was taken at that time and
          [Venable] was put into a photo array. Dr. Walsh
          identified him as one of the males that robbed her on
          August 25th. She had stated that he kicked me
          while I was on the ground. He was pulling on my
          bag and kicking me.

                              *     *     *

          [Dr. Walsh] did have a broken nose as I said as a
          result of the incident. She did have to have surgery.
          She has been -- the past year have been treated for
          post[-]traumatic stress syndrome as a result of this
          incident and she still suffers scars as a result.



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J-A09016-15



N.T., 10/7/13, at 10-14, 16.

      On September 14, 2012, police arrested Venable.         On October 7,

2013, Venable pled guilty to the above-referenced crimes.      On November

19, 2013, the trial court sentenced Venable to five to ten years of

incarceration plus ten years of probation for each of the aggravated assault,

robbery, and use or possession of electric or electronic incapacitation device

charges, two to four years of incarceration plus six years of probation on the

criminal conspiracy charge, and no further penalty on the use or possession

of an offensive weapon charge. The trial court ordered these sentences to

run concurrently to one another for an aggregate period of five to ten years

of incarceration plus ten years of probation. The trial court further ordered

Venable to undergo random urinalysis, complete job and anger management

training, seek and maintain employment, and pay $2500 in restitution, plus

court costs and fees.

      On November 27, 2013, Venable filed a timely post-sentence motion

challenging his sentence, which was denied by operation of law on March 28,

2014. On April 1, 2014, Venable filed a timely notice of appeal. On June 5,

2014, the trial court ordered Venable to file a concise statement of the

errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania

Rules of Appellate Procedure.   On June 26, 2014, Venable filed his timely

Rule 1925(b) statement.




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J-A09016-15


      On appeal, Venable raises the following issues for our review and

determination:

            1.    Did not the sentencing court err in finding that
                  [Dr. Walsh] suffered serious bodily injury for
                  the purpose of applying elevated sentencing
                  guidelines for the offenses of Robbery and
                  Aggravated Assault in imposing its sentence
                  where [Dr. Walsh]’s injuries did not result in
                  permanent impairment, disfigurement, or
                  substantial risk of her death?

            2.    Did not the sentencing court err in relying
                  upon the deadly weapon used sentencing
                  enhancement in imposing sentence because a
                  Taser not a deadly weapon as considered by
                  the [g]uidelines and furthermore when
                  [Venable] never possessed the weapon?

            3.    Was not the sentence imposed manifestly
                  excessive, unreasonable, and an abuse of
                  discretion because the sentencing court failed
                  to consider the Sentencing Code, failed to
                  place the reasons for its sentence on the
                  record in open court, failed to consider the
                  needs of [Venable] and whether the sentence
                  was the least restrictive necessary to protect
                  the community and rehabilitate [Venable]?

Venable’s Brief at 3.

      Each of the issues that Venable raises on appeal challenges the

discretionary aspects of his sentence. “The right to appellate review of the

discretionary aspects of a sentence is not absolute, and must be considered

a petition for permission to appeal.” Commonwealth v. Buterbaugh, 91

A.3d 1247, 1265 (Pa. Super. 2014) (en banc), appeal denied, 104 A.3d 1

(Pa. 2014). “An appellant must satisfy a four-part test to invoke this Court’s



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J-A09016-15


jurisdiction when challenging the discretionary aspects of a sentence.” Id.

We conduct this four-part test to determine whether,

           (1) the appellant preserved the issue either by
           raising it at the time of sentencing or in a post[-
           ]sentence motion; (2) the appellant filed a timely
           notice of appeal; (3) the appellant set forth a concise
           statement of reasons relied upon for the allowance of
           his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the
           appellant raises a substantial question for our
           review.

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation

omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the sentencing code or is contrary to the

fundamental norms of the sentencing process.” Commonwealth v. Dodge,

77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),

appeal denied, 91 A.3d 161 (Pa. 2014).

     Here, Venable preserved his discretionary aspects of sentencing claims

by raising them in a post-sentence motion.       See Post-Sentence Motion,

11/27/13, at 1-8. Venable also filed a timely notice of appeal. Furthermore,

Venable set forth a concise statement of the reasons relied upon for the

allowance of his appeal pursuant to Rule 2119(f) of the Pennsylvania Rules

of Appellate Procedure. See Venable’s Brief at 4-6.

     Thus, we must determine whether Venable’s discretionary aspects of

sentencing claims raise substantial questions for our review. We begin with




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J-A09016-15


the first two issues Venable raises on appeal, as they are dispositive of the

entire case.   First, Venable claims that the trial court misapplied the

Sentencing Guidelines by sentencing him in accordance with the finding that

Dr. Walsh suffered serious bodily injury. Id. at 10-13. A claim that the trial

court misapplied the Sentencing Guidelines raises a substantial question for

our review. Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

Second, Venable contends that the trial court abused its discretion when it

applied the deadly weapon enhancement to his sentences for his aggravated

assault and robbery convictions. Venable’s Brief at 13-15. This Court has

“found on several occasions that the application of the deadly weapon

enhancement presents a substantial        question.”    Commonwealth v.

Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010).            Because Venable has

complied with the technical requirements for consideration of a challenge to

the discretionary aspects of a sentence for his first two issues, we will

consider these claims on their merits.

      Our standard of review when considering discretionary aspects of

sentencing claims is as follows:

            Sentencing is a matter vested in the sound discretion
            of the sentencing judge. Commonwealth v. Paul,
            925 A.2d 825 (Pa. Super. 2007). The standard
            employed when reviewing the discretionary aspects
            of sentencing is very narrow. [Commonwealth v.
            Marts, 889 A.2d 608, 613 (Pa. Super. 2005)]. We
            may reverse only if the sentencing court abused its
            discretion or committed an error of law. Id. “A
            sentence will not be disturbed on appeal absent a



                                    -7-
J-A09016-15


             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, 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. Littlehales, 915
             A.2d 662, 665 (Pa. Super. 2007). We must accord
             the sentencing court’s decision great weight because
             it was in the best position to review the defendant’s
             character, defiance or indifference, and the overall
             effect and nature of the crime. Marts, 889 A.2d at
             613.

Cook, 941 A.2d at 11-12.

      For his first issue, Venable claims that the trial court erred in applying

the sentencing guidelines by sentencing him in accordance with the trial

court’s   determination   that   Dr.   Walsh   suffered   serious   bodily   injury.

Venable’s Brief at 10-13.        Venable argues that the injuries Dr. Walsh

suffered in this case were insufficient to support a finding that she sustained

serious bodily injury. Id.

      We conclude that the trial court did not abuse its discretion by

sentencing Venable in accordance with the finding that Dr. Walsh suffered

serious bodily injury. The certified record on appeal indicates that Venable

pled guilty to a crime that contained the element of serious bodily injury.

Specifically, the record reflects that in pleading guilty to robbery, Venable

pled guilty to section 3701(a)(1)(i) of the Crimes Code.             See Docket,

7/2/14, at 5; Trial Disposition and Dismissal Form, 10/7/13, at 2. Section




                                       -8-
J-A09016-15


3701(a)(1)(i) reads as follows:    “A person is guilty of robbery if, in the

course of committing a theft, he … inflicts serious bodily injury upon

another.”   18 Pa.C.S.A. § 3701(a)(1)(i).   Because Venable pled guilty to

inflicting serious bodily injury upon Dr. Walsh in the course of committing a

theft, the trial court did not abuse its discretion in sentencing him

accordingly.

      For his second issue, Venable claims that the trial court abused its

discretion when it applied the deadly weapon enhancement to his sentences

for aggravated assault and robbery. Venable’s Brief at 13-15. First, Venable

argues that a taser is not a deadly weapon. Id. at 13-14. Second, Venable

contends that the trial court should not have applied the deadly weapon

enhancement to his aggravated assault and robbery sentences because he

never used the taser on Dr. Walsh or otherwise possessed it during the

attack.   Id. at 14-15.   This issue requires us to decide whether the taser

here constituted a deadly weapon.     We have found no published opinions

discussing a taser within the context of the deadly weapon sentencing

enhancement.

      A taser is a non-lethal electronic incapacitation device.      See 18

Pa.C.S.A. § 908.1; Commonwealth v. Landis, 48 A.3d 432, 439 (Pa.

Super. 2012) (en banc). An electronic incapacitation device is “a portable

device which is designed or intended by the manufacturer to be used,

offensively or defensively, to temporarily immobilize or incapacitate persons



                                     -9-
J-A09016-15


by means of electric pulse or current.” 18 Pa.C.S.A. § 908.1(f); see also

Ickes v. Borough of Bedford, 807 F. Supp. 2d 306, 321-22 (W.D. Pa.

2011) (classifying a taser as an intermediate or medium quantum of force

that causes an individual to lose control of his or her muscles and does not

ordinarily cause death or serious bodily injury).

      The trial court sentenced Venable according to the deadly weapon

used matrix of the Sentencing Guidelines. See 204 Pa. Code § 303.17(b);

N.T., 11/19/13, at 49.     To determine whether the deadly weapon used

matrix should apply, the Sentencing Code provides, in pertinent part, as

follows:

            (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).




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J-A09016-15


       For our purposes, a taser is not a firearm as defined by 42 Pa.C.S.A.

§ 9712,6 nor is it one of the dangerous weapons defined in 18 Pa.C.S.A.

§ 913.7 See 204 Pa. Code § 303.10(a)(2)(i), (ii). Therefore, our analysis

will focus on determining the meaning and scope of the terms set forth in

section 303.10(a)(2)(iii). Under section 303.10(a)(2)(iii), a deadly weapon

is (1) “[a]ny device, implement, or instrumentality”; (2) that is “employed

by the offender in a way that threatened or injured another individual”; and

(3) is “capable of producing death or serious bodily injury.” 204 Pa. Code

§ 303.10(a)(2)(iii)

       Applying section 303.10(a)(2)(iii), an en banc panel of this Court

explained:



6
    A firearm is “[a]ny weapon, including a starter gun, which will or is
designed to or may readily be converted to expel a projectile by the action of
an explosive or the expansion of gas therein.” 42 Pa.C.S.A. § 9712(e). The
trial court did not find and the Commonwealth does not contend that a taser
falls within the definition of a firearm.
7
    Section 913 defines dangerous weapons as:

             A bomb, any explosive or incendiary device or
             material when possessed with intent to use or to
             provide such material to commit any offense, graded
             as a misdemeanor of the third degree or higher,
             grenade, blackjack, sandbag, metal knuckles,
             dagger, knife (the blade of which is exposed in an
             automatic way by switch, push-button, spring
             mechanism or otherwise) or other implement for the
             infliction of serious bodily injury which serves no
             common lawful purpose.

18 Pa.C.S.A. § 913(f).


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J-A09016-15


          The Sentencing Guidelines do not define the terms
          “device, implement, or instrumentality.” Only one of
          those terms, “instrumentality,” has been defined by
          our Court for purposes of the DWE. Our Court,
          quoting Black’s Law Dictionary, determined an
          instrumentality is a “thing used to achieve an end or
          purpose.” Commonwealth v. Raybuck, 915 A.2d
          125, 129 (Pa. Super. 2006) (quoting Black’s Law
          Dictionary (8th ed. 2004)).

          Without statutory or decisional authority defining the
          terms defining the terms “device” or “implement,”
          we thus turn to the dictionary meanings of these
          words.

          Merriam-Webster defines a “device” as “an object,
          machine, or piece of equipment that has been made
          for some special purpose.”         Merriam-Webster,
          http://www.merriam-webster.com/dictionary/device
          (last visited March 4, 2014). “Implement” is defined
          as “an object used to do work.” Merriam-Webster,
          http://www.merriam-webster.com/dictionary/implem
          ent (last visited March 4, 2014).         These two
          definitions appear to limit the scope of a deadly
          weapon as something specifically designed to
          achieve an end result, which in this case is to cause
          death or serious bodily injury.        However, the
          Sentencing Commission’s use of the word “capable”
          in the qualifying phrase “capable of producing death
          or serious bodily injury” expands the scope of such
          an interpretation.

          “Capable” is defined as “able to do something[,]
          having the qualities or abilities that are needed to do
          something.” Merriam-Webster, http://www.merriam
          -webster.com/dictionary/capable (last visited March
          4, 2014). Utilization of this word promotes the idea
          that the device, implement, or instrumentality need
          not originally be designed to produce death or
          serious bodily injury. Instead, it may be utilized in a
          different manner to achieve a more nefarious result.
          From a review of these definitions, we discern that
          collectively,    a     “device,       implement,     or



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J-A09016-15


            instrumentality” is an object, whether simple or
            complex, that is utilized in a fashion to produce
            death or serious bodily injury, which need not be
            consistent with the original purpose of the object.

            Our case law supports such an interpretation by
            stating that, for purposes of the DWE, “[i]tems not
            normally classified as deadly weapons can become
            so based upon their use under particular
            circumstances.”      Commonwealth v. Rhoades,
            8 A.3d 912, 917 (Pa. Super. 2010) (intact glass
            bottle qualified as a deadly weapon). We found
            many examples in our cases: [Raybuck], 915 A.2d
            125    []    (commercial   mouse   poison    is  an
            “instrumentality” for purposes of the DWE);
            Commonwealth v. Scullin, [] 607 A.2d 750 ([Pa.
            Super.] 1992) (tire iron thrown at victim was a
            deadly weapon); Commonwealth v. Cornish, []
            589 A.2d 718, 721 ([Pa. Super.] 1991) (fireplace
            poker used to strike victim constitutes a deadly
            weapon); Commonwealth v. Brown, [] 587 A.2d
            6, 7 ([Pa. Super.] 1991) (saw used to stab victim
            was a deadly weapon); Commonwealth v.
            Chapman, [] 528 A.2d 990 ([Pa. Super.] 1987)
            (straightedge razor placed at the face of an
            individual is a deadly weapon).

Buterbaugh, 91 A.3d at 1286-69 (emphasis in original).

      Additionally, in deciding cases under section 303.10(a)(2), this Court

has applied the definition of serious bodily injury from section 2301 of the

Crimes Code. See Rhoades, 8 A.3d at 917 (citing 18 Pa.C.S.A. § 2301).

Section 2301 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




                                    - 13 -
J-A09016-15


organ.”   18 Pa.C.S.A. § 2301.     With this framework in mind, we turn our

attention to the facts of this case.

      Here, the certified record on appeal reveals the following regarding the

use of the taser. The assailants tased Dr. Walsh at least twice prior to her

falling to the ground. N.T., 10/7/13, at 11. The assailants continued to tase

Dr. Walsh after she fell to the ground. Id. In total, the assailants tased Dr.

Walsh at least four times – on her neck, on her forehead, on her inner arm,

and on her hand. Id. at 11-12. We now apply these facts to the three-part

framework set forth above.

      First, a taser undoubtedly constitutes a device. A taser is a machine,

or piece of equipment, made for some special purpose, namely, the

temporary immobilization or incapacitation of persons.     See 18 Pa.C.S.A.

§ 908.1(f); Buterbaugh, 91 A.3d 1247 at 1268. Second, there is no doubt

that the assailants employed the taser here in a way that threatened Dr.

Walsh. See N.T., 10/7/13, at 11-12.

      Therefore, the sole question that remains is whether the taser, as the

assailants used it in this case, was “capable of producing death or serious

bodily injury.” See 204 Pa. Code § 303.10(a)(2)(iii). In Buterbaugh, our

Court defined “capable” as “able to do something” or “having the qualities or

abilities that are needed to do something,” namely, causing death or serious

bodily injury.   Buterbaugh, 91 A.3d at 1269.       Under the Buterbaugh




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J-A09016-15


definition of “capable,” a device, implement, or instrumentality, can become

a deadly weapon based on its use under the circumstances. Id.

     A prior case from this Court has held that a device, implement, or

instrumentality was capable of producing death or serious bodily because it

was designed to kill. In Raybuck, this Court held that mouse poison was a

deadly weapon when used on a person, no matter how much poison was

used, because it was by its very nature, toxic, dangerous and designed to

kill. Raybuck, 915 A.2d at 129. In other cases, this Court has held that

certain devices, implements, and instrumentalities, though not designed to

kill, were capable of producing death or serious bodily injury.           See

Buterbaugh, 91 A.3d at 1269 (automobile); Rhoades, 8 A.3d at 917

(intact glass bottle); Scullin, 607 A.2d at 753 (tire iron); Cornish, 589 A.2d

at 721 (fireplace poker); Brown, 587 A.2d at 7 (saw).        The evidence to

support those findings was readily apparent in those cases. In each of those

cases, the victims therein actually suffered death or serious bodily as a

direct consequence of the manner in which those devices, implements, and

instrumentalities were used.   See id.   For example, in Buterbaugh, this

Court held that an automobile was a deadly weapon where the appellant

intentionally struck and killed the victim while driving at the maximum rate

of acceleration. Buterbaugh, 91 A.3d at 1268-69.

     In contrast, a taser does not fit within either of these two categories of

cases.   Unlike the poison in Raybuck, a taser is not designed to kill.     As



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J-A09016-15


mentioned above, a taser does not ordinarily cause death or serious bodily

injury. A taser, rather, temporarily immobilizes or incapacitates persons by

means of an electric pulse or current. See 18 Pa.C.S.A. § 908.1(f). Thus, a

taser is designed to be a non-lethal device that uses an electric current to

incapacitate persons. See 18 Pa.C.S.A. § 908.1(f); Landis, 48 A.3d at 439.

Additionally, unlike Buterbaugh, Rhoades, Scullin, Cornish, and Brown,

there is no evidence here that Dr. Walsh died or suffered serious bodily

injury specifically from the taser, as the assailants employed it in this case.

See N.T., 10/7/13, at 10-16. Indeed, the facts to which Venable pled guilty

do not even indicate that Dr. Walsh suffered any injury due to the tasing.8

See id.

      Moreover, there is no independent proof in the certified record on

appeal regarding a taser’s capability to produce death or serious bodily

injury as used here.   There is no evidence of record that repeated shocks

from a taser are capable of producing death or serious bodily injury. The

record does not reflect what voltage the taser used in this case emitted. The

record likewise does not reflect whether that voltage, if inflicted repeatedly,



8
   The trial court contends that Dr. Walsh experienced tachycardia and burn
marks following the tasing. Trial Court Opinion, 6/30/14, at 7. Tachycardia
refers to an abnormally rapid heart rate, greater than 100 beats per minute.
TABER’S CYCLOPEDIC MEDICAL DICTIONARY 2137 (20th ed. 2005). However, the
Commonwealth did not reference these injuries in the facts to which Venable
pled guilty. See N.T., 10/7/13, at 10-14, 16. Moreover, there is no
evidence of record that ties Dr. Walsh’s elevated heart rate following the
attack to the tasing. See id.


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is likely to create a substantial risk of death or cause serious, permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.       The record further does not reflect whether a taser, if

used upon the head, neck, arm, or hand, as it was in this case, is capable of

causing   death   or   serious    bodily   injury.   While   not    required,   the

Commonwealth introduced no expert testimony or other evidence indicating

the level of injury caused by repeated tasing.

      Therefore, there is no evidence, given the limited record before us, to

support the trial court’s decision to apply the deadly weapon enhancement in

this case because there is no evidence of record indicating that the

assailants’ use of the taser in this case was capable of producing death or

serious bodily injury. Accordingly, we must conclude, in the absence of any

evidence of whether a taser is capable of producing death or serious bodily

injury, that the trial court abused its discretion in applying the deadly

weapon    enhancement      to    Venable’s   aggravated   assault   and   robbery

convictions.

      Because we conclude that a taser was not a deadly weapon under the

facts and circumstances of this case, and that the trial court erred in

applying the deadly weapon enhancement to Venable’s aggravated assault

and robbery convictions, we must remand this case to the trial court for re-

sentencing. Accordingly, we need not consider the remaining argument of

Venable’s second issue or the entirety of his third issue.



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J-A09016-15


     Judgment of sentence affirmed in part and vacated in part.   Case

remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/5/2015




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