J-S12028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

VICTOR MARTINEZ-HERRERA

                            Appellant                  No. 1433 MDA 2016


             Appeal from the Judgment of Sentence July 25, 2016
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0001295-2016


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                   FILED JULY 25, 2017

       Victor Martinez-Herrera appeals from the judgment of sentence

entered on July 25, 2016, in the Berks County Court of Common Pleas. On

that same day, pursuant to a charge agreement, Martinez-Herrera pled

guilty to one count of robbery.1 The court sentenced Lee to a term of five to

ten years’ incarceration.       On appeal, Martinez-Herrera raises the following

issues: (1) whether the trial court erred by failing to consider all appropriate

sentencing guideline factors when imposing his sentence; and (2) whether

the trial court erred by applying the deadly weapon (used) enhancement

(“DWE”) absent evidence that Martinez-Herrera used a “deadly weapon” as

defined by the Pennsylvania Sentencing Code. See Martinez-Herrera’s Brief
____________________________________________


1
    18 Pa.C.S. § 3701(a)(1)(ii).
J-S12028-17


at 4. After a thorough review of the submissions by the parties, the certified

record, and relevant law, we affirm the judgment of sentence.

      The facts were summarized by the Commonwealth at Martinez-

Herrera’s guilty plea hearing and are as follows. On March 7, 2016, in the

city of Reading, Pennsylvania, while riding in a taxi being driven by the

victim, Ralph Valletta, Martinez-Herrera threatened Valletta by pointing what

appeared to be a black handgun, but was subsequently determined to be a

BB gun, at his head and saying, “Give me the money.” N.T., 7/25/2016, at

6. Martinez-Herrera pulled the hood of his sweatshirt down and tightened it

around his head.        Id. at 5.   He also wore a mask so only his eyes were

visible.    Id.     Valletta handed him $11.00 in one-dollar bills.          Id. at 6.

Martinez-Herrera said, “I don’t want to shoot you, but I will. Give me all the

money.”      Id.    The victim informed Martinez-Herrera that he had no more

money.      Id.     Martinez-Herrera then asked the victim to give him his cell

phone but the act was interrupted by a responding deputy sheriff. Id.

      Martinez-Herrera was charged with four counts of robbery, and one

count each of prohibited offensive weapons, possessing instruments of

crime,     simple    assault,   theft   by   unlawful   taking   or   disposition,   and

harassment.         As noted above, on July 25, 2016, Martinez-Herrera pled




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guilty, pursuant to a charge agreement, to one count of robbery. That same

day, the court sentenced him to a term of five to ten years’ incarceration.2

       On August 4, 2016, Martinez-Herrera filed a post-sentence motion for

modification of sentence.3 The court denied the motion on August 9, 2016.

This appeal followed.4

       In his first claim, Martinez-Herrera asserts the trial court failed to

adequately consider his rehabilitative needs when fashioning his sentence.

Martinez-Herrera’s Brief at 11.          Specifically, Martinez-Herrera states that

while the court did consider his young age, his lack of a prior record, and

that he was in high school at the time of the incident, it neglected to

consider his rehabilitative needs. Id. at 11-12. Moreover, he states that he

“is young and appears to be amenable to therapeutic programs.” Id. at 13.


____________________________________________


2
    The court gave him a credit of 140 days for time served.
3
    Several days earlier, on July 29, 2016, Martinez-Herrera filed a pro se
post-sentence motion requesting a modification of the sentence. He also
filed a pro se amended petition for reconsideration and/or modification of
sentence filed nunc pro tunc. However, both filings were considered legal
nullities because Martinez-Herrera was represented by counsel. See Trial
Court Opinion, 10/17/2016, at 2; see also Commonwealth v. Ali, 10 A.3d
282, 293 (Pa. 2010) (explaining that a pro se filing presented by an
appellant represented by counsel is a “legal nullity”).
4
  On September 1, 2016, the trial court ordered Martinez-Herrera to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Martinez-Herrera filed a concise statement on September 21,
2016. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
October 17, 2016.



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      As presented, Martinez-Herrera’s issue challenges the discretionary

aspects of his sentence.   See Commonwealth v. Swope, 123 A.3d 333,

337 (Pa. Super. 2015) (explaining argument that claims court failed to

consider rehabilitative needs challenges discretionary aspects of sentencing).

“A challenge to the discretionary aspects of a sentence must be considered a

petition for permission to appeal, as the right to pursue such a claim is not

absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007)

(citations and quotation marks omitted).          To reach the merits of a

discretionary issue, this Court must 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; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)

(footnotes omitted).

      Here, Martinez-Herrera filed a timely notice of appeal and included the

requisite statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief.

Moreover, counsel for Martinez-Herrera preserved the claim by raising it in

the August 4, 2016, post-sentence motion.         See Martinez-Herrera’s Post-

Sentence Motion, 8/4/2016, at ¶ 6 (general challenge stating court failed to

adequately consider the Sentencing Code criteria).         Therefore, we may

proceed to determine whether Martinez-Herrera has presented a substantial

question that the sentence appealed from is not appropriate under the

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Sentencing Code.     Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa.

Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013).

      With respect to whether an issue presents a substantial question, we

are guided by the following:

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.                See
      Commonwealth v. Paul, 2007 PA Super 134, 925 A.2d 825
      (Pa. Super. 2007). “A substantial question exits only when the
      appellant advances a colorable argument that the sentencing
      judge’s actions were either: (1) inconsistent with a specific
      provision of the Sentencing Code; or (2) contrary to the
      fundamental norms which underlie the sentencing process.”
      Commonwealth v. Griffin, 2013 PA Super 70, 65 A.3d 932,
      2013 WL 1313089, *2 (Pa. Super. filed 4/2/13) (quotation and
      quotation marks omitted).

Edwards, 71 A.3d at 330 (citation omitted).

      A   claim   that   the   trial   court   failed   to   consider   a   defendant’s

rehabilitative needs does raise a substantial question for our review.             See

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)

(en banc) (“[a]rguments that the sentencing court failed to consider the

factors proffered in 42 Pa.C.S. § 9721 . . . present a substantial question”

(quotation marks and citation omitted)), appeal denied, 104 A.3d 1 (Pa.

2014). Hence, we will consider the substantive merits of Martinez-Herrera’s

sentencing claim.

      The standard of review for a claim challenging a discretionary aspect

of sentencing is well-established:

            Sentencing is a matter vested in the sound discretion of
      the judge, and will not be disturbed on appeal absent a manifest

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       abuse of discretion. 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. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

       Moreover, pursuant to 42 Pa.C.S. § 9721(b), “the court shall follow the

general principle that the sentence imposed should call for confinement that

is consistent with the protection of the public, the gravity of the offense as it

relates to the impact on the life of the victim and on the community, and the

rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). Additionally,

“the court shall make as part of the record, and disclose in open court at the

time of sentencing, a statement of the reason or reasons for the sentence

imposed.”      Id.     The record in toto “must reflect the [trial] court’s

consideration of the facts of the crime and character of the offender.”

Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010), appeal

denied, 13 A.3d 475 (Pa. 2010).5           “In particular, the court should refer to

the defendant’s prior criminal record, his age, personal characteristics and

his potential for rehabilitation.” Commonwealth v. Griffin, 804 A.2d 1, 10


____________________________________________


5
  A trial court “need not undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the statute in question[.]”
Crump, 995 A.2d at 1283.



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(Pa. Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert denied,

545 U.S. 1148 (2005).

      Turning to the present matter, on July 25, 2016, Martinez-Herrera

entered an open guilty plea and the trial court immediately proceeded to

sentencing, where the court imposed a sentence of five to ten years’

incarceration. Prior to the hearing, Martinez-Herrera signed a written plea

colloquy, in which he indicated he is bipolar and takes Seroquel, to treat his

disorder.   See Statement Accompanying Defendant’s Request to Enter a

Guilty Plea, 7/25/2016, at 2.    He also acknowledged the trial court could

impose a maximum sentence of 20 years’ imprisonment. Id.

      At the plea hearing, he again agreed that he understood the maximum

sentence permissible by law for robbery. N.T., 7/25/2016, at 5. The record

is unclear whether a pre-sentence investigation was ordered. Nevertheless,

the   applicable   sentencing   guidelines,   including   the   deadly   weapon

enhancement, as well as Martinez-Herrera’s prior criminal history were

placed on the record. Id. at 7-8. The court heard testimony from both the

victim and Martinez-Herrera. Id. at 8-14. At the conclusion of the hearing,

the court stated:     “The Court has taken into consideration [Martinez-

Herrera]’s age, that he’s 19 years old, that he was a senior in high school,

that he has no adult record.       I have taken into account Mr. Valletta’s

statement here.     I’m going to go along with the recommendation of the

Commonwealth.” Id. at 14-15.


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     In its Rule 1925(a) opinion, the trial court further explained its

rationale for imposing Martinez-Herrera’s sentence as follows:

     [A]t the time of [Martinez-Herrera]’s sentencing on Robbery, a
     felony of the first degree, he was subject to a maximum
     permissible sentence of no more than twenty (20) years of
     imprisonment. 18 Pa.C.S.A. § 1103. This Court, in fashioning
     the sentence as it did, took into consideration multiple factors
     including the nature of the offense, protection of the public, the
     rehabilitative needs of [Martinez-Herrera], the impact on the
     victim and community, and the sentencing guidelines.
     [Martinez-Herrera] had no prior adult criminal record ([Martinez-
     Herrera] was adjudicated delinquent as a juvenile for statutory
     sexual assault) and was a 19 year old senior attending high
     school when he committed this armed robbery. This Court heard
     testimony from the victim, Ralph F. Valletta, and considered his
     statements during sentencing. Mr. Valletta informed this Court
     that “having a gun pointed at [his] head was the most
     terrorizing, terrifying experience [he] had in [his] life.”
     [Martinez-Herrera] admitted he was under the influence of drugs
     (specifically, K2[, a synthetic marijuana]) and alcohol at the time
     he committed the offense and had been using drugs for six (6)
     months. He also stated that any money he would obtain was
     being used to purchase drugs.          This Court also observed
     [Martinez-Herrera] during the guilty plea hearing and considered
     his apologies to his mother and Mr. Valletta. This Court found
     that [Martinez-Herrera] has a drug problem which resulted in the
     commission of this violent and traumatic offense.                 In
     consideration of the above factors, this Court determined that an
     extended period of incarceration was necessary to protect the
     community and victim as well as to protect [Martinez-Herrera]
     from doing further harm to himself through his drug use.

           As placed on the record by the Assistant District Attorney,
     this Court considered [Martinez-Herrera]’s prior record score of 2
     and the standard sentencing ranges for [Martinez-Herrera]
     based on an offense gravity score of 10. In accordance with the
     Pennsylvania Sentencing Code, the standard range on [Martinez-
     Herrera]’s Robbery charge was 36 to 48 months but, when
     applying the deadly weapon enhancement/used matrix, the
     standard sentencing range increased to 54 to 66 months.
     Therefore, the sentence imposed by this Court of 5 years (60
     months) to 10 years (120 months) was within the standard

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      sentencing range         when applying the deadly weapon
      enhancement. [Martinez-Herrera]’s sentence was well within the
      twenty (20) year maximum permissible sentence and was not
      manifestly excessive or unreasonable, or the result of partiality,
      prejudice, bias, or ill-will.

Trial Court Opinion, 10/17/2016, at 6-7 (citations and record citations

omitted).

      Based upon our standard of review, we conclude the trial court did not

abuse its discretion with regard to Martinez-Herrera’s sentence. Contrary to

Martinez-Herrera’s argument, it is evident from the sentencing hearing and

the Rule 1925(a) opinion that the court did indeed consider the required

factors under Section 9721(b), including Martinez-Herrera’s rehabilitative

needs.      Moreover, the court acknowledged its understanding of the

sentencing guidelines, and articulated a sufficient statement of reasons for

sentencing as it did. Therefore, Martinez-Herrera’s discretionary sentencing

claim fails.

      In his second argument, Martinez-Herrera claims the trial court erred

in applying the DWE for a myriad of reasons. See Martinez-Herrera’s Brief

at 13. First, Martinez-Herrera states the court did not make a determination

that he used a deadly weapon during the robbery. He alleges:

      Although the court discussed the application of the Deadly
      Weapons Enhancement with the attorneys and despite the fact
      that [the] trial court agreed that the enhancement would be
      applicable, the court never made a specific determination that
      [Martinez-Herrera] had “used a deadly weapon during the
      commission of the current conviction offense.” 204 Pa. Code §
      303.10(a)(2). Absent such a determination, application of the
      Deadly Weapon enhancement was improper.

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J-S12028-17



Id. at 14-15.   Second, Martinez-Herrera complains there was insufficient

evidence to make a determination that he used a deadly weapon. Id. at 15.

This is a continuation of his earlier argument, in which he states the facts

placed on the record did not establish use of a deadly weapon; rather, “[t]he

only details relating to the true nature of the object produced by [Martinez-

Herrera] emerged from discussions between counsel and the court.” Id. at

15-16. Martinez-Herrera continues:

      Just as defendants are strictly held to their sworn statements
      made during a guilty plea, statements and comments of
      attorneys or other third parties should not be attributable to a
      defendant. To hold otherwise undermines the purposes and the
      integrity of the statement made under oath during the course of
      entering a guilty plea upon which the plea is based. Accordingly,
      the statements by counsel, such as comments by the prosecutor
      that the object used during the robbery was a “BB gun …
      stamped and equipped to look like a real firearm”, should not be
      considered as evidence.

Id. at 16 (record citation omitted). Additionally, Martinez-Herrera attempts

to distinguish the facts of his case by stating that no evidence was presented

to show he used the “gun;” instead, the facts demonstrated he merely

pointed the “gun” at the victim. Id. at 16.

      Third, Martinez-Herrera argues that according to his sworn statement,

“he ‘produced what appeared to be a black handgun’ during the commission

of the robbery” and this evidence only met one of the three alternative




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definitions under 204 Pa. Code § 303.10(a)(2)(i)-(iii).6 With respect to this

allegation, he states, “The first, and most applicable, of the three possible

definitions of a deadly weapon refers to a now-unconstitutional statute,”

citing 42 Pa.C.S. § 9712 and Alleyne v. United States, 133 U.S. 2151

(2013).7 Martinez-Herrera’s Brief at 17. Moreover, he claims no evidence

____________________________________________


6
    Section 303.10(a)(2) of the Sentencing Guidelines provides:

       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 where the court
          determines that the offender intended to use the weapon
          to threaten or injure another individual.

204 Pa. Code § 303.10(a)(2)(i)-(iii).
7
   In Alleyne, the United States Supreme Court held “[a]ny fact that, by
law, increases the penalty for a crime is an ‘element’ that must be submitted
to the jury and found beyond a reasonable doubt.” Alleyne, supra, 133
S.Ct. at 2155.       In interpreting that decision, the courts of this
Commonwealth have determined that most of our mandatory minimum
sentencing statutes, including Section 9712, are unconstitutional because
the language of those statutes “permits the trial court, as opposed to the
jury, to increase a defendant’s minimum sentence based upon a
preponderance of the evidence” standard. Commonwealth v. Newman,
(Footnote Continued Next Page)


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J-S12028-17


was presented at the sentencing hearing with regard to the other two

definitions.   Id. at 18-19.       He states:       (1) as to Section 303.10(a)(2)(ii),

“[t]here was no evidence presented at the sentencing hearing relating to the

object produced by [Martinez-Herrera], and certainly none that would meet

this definition of a ‘dangerous weapon’ set forth in Section 913;” and (2) as

to Section 303.10(a)(2)(iii), “[t]here was no evidence regarding the object’s

identity, much less its capacity for causing death or injury.”            Id.8   Lastly,

Martinez-Herrera asserts Alleyne alters the analysis in his case in two ways:

(1) “Alleyne stands for the general proposition that any fact that increases

the penalty for a crime is an ‘element’ to be decided by a jury, beyond a

reasonable doubt;” and (2) “Alleyne has rendered Section 9712 invalid, as

discussed above.” Id. at 21.
                       _______________________
(Footnote Continued)

99 A.3d 86, 98 (Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496
(Pa. 2015); see also Commonwealth v. Valentine, 101 A.3d 801, 811-
812 (Pa. Super. 2014) (invalidating 18 Pa.C.S. § 9712), appeal denied, 124
A.3d 309 (Pa. 2015). Further, our courts have held that the unconstitutional
provisions of the mandatory minimum statutes are not severable from the
statute as a whole. Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa.
2015); Newman, supra, 99 A.3d at 101.
8
    Martinez-Herrera also states:

       Because the object produced by [him] only arguably qualifies as
       a “deadly weapon” under the definition of a firearm provided in
       42 Pa.C.S.A. § 9712, which has been deemed unconstitutional
       under    Alleyne,   [Martinez-Herrera]   suggests    that   the
       Commonwealth did not present a permissible basis to determine
       a “deadly weapon” was used in the robbery.

Martinez-Herrera’s Brief at 20.



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       A challenge to the application of the DWE is a discretionary aspects of

sentencing claim, which raises a substantial question for our review.          See

Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa. Super. 2010), appeal

denied, 20 A.3d 485 (Pa. 2011); Commonwealth v. Shull, 148 A.3d 820,

831 (Pa. Super. 2016).

       However, before we may address the merits, we must determine

whether Martinez-Herrera has properly preserved this argument.             To the

extent that Martinez-Herrera challenges the applicability of the DWE to his

sentence, we find that he has failed to do so. A review of the record reveals

that he did not raise these specific objections regarding the DWE at

sentencing and he did not include these claims in his post-sentence motion.9

See    N.T.,   7/25/2016;      Post-Sentence       Motion,   8/4/2016.   See   also

Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006) (“To

preserve an attack on the discretionary aspects of sentence, an appellant

must raise his issues at sentencing or in a post-sentence motion. Issues not

presented to the sentencing court are waived and cannot be raised for the

first time on appeal.”) (citations omitted); Commonwealth v. Cartrette,

83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (“Absent [a timely post-

sentence motion or claim raised during sentencing], an objection to a

____________________________________________


9
   We note all Martinez-Herrera did was request the court not impose the
DWE. See N.T., 7/25/2016, at 9-10. His counsel agreed the DWE was
“absolutely applicable” to the matter. Id. at 10.



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discretionary   aspect   of   a   sentence     is   waived.”);   Pa.R.A.P.   302(a).

Consequently, Martinez-Herrera has waived this claim.

      Nevertheless, even if Martinez-Herrera did not waive this claim, we

would conclude the trial court did not abuse its discretion in applying the

DWE to his sentence as the court’s statement of reasons adequately

explained its decision to impose the DWE:

             In Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa.
      Super. 2009), the appellant, while wearing a Halloween mask,
      entered a Uni-Mart and approached the store clerk displaying
      what appeared to be a handgun. The appellant pointed the
      weapon at the clerk’s face and demanded that she open the cash
      register. Id. Appellant then reached over the counter, took the
      money and fled on foot. Id. It was determined that the
      handgun displayed by the appellant was an air-soft pistol, which
      looks like a real pistol, but shoots small plastic pellets similar to
      a BB gun. Id. Appellant pleaded guilty to robbery with the
      threat of immediate serious injury, 18 Pa.C.S.A. [§]
      3701(a)(1)(ii), and was sentenced to 5 to 10 years of
      imprisonment based on his possession of a firearm during the
      crime and application of the deadly weapon enhancement. Id.
      During his guilty plea, the appellant, through his counsel,
      admitted that the deadly weapon enhancement was applicable.
      Id. at 378. On appeal, the Pennsylvania Superior Court held
      that, based on appellant’s admission, the record supported the
      trial court’s finding that the deadly weapon enhancement was
      applied properly. Id. The Pennsylvania Superior Court went on
      to state that, regardless of counsel’s admission, the deadly
      weapon enhancement was appropriate in this case.                  Id.
      Appellant pointed the air-soft pistol at the store clerk’s face and,
      as a result, it was capable of causing serious bodily injury or
      death. Id. at 379. The Court found it was irrelevant whether
      the pistol was designed as a weapon or toy and whether it was
      loaded or unloaded. Id.

                                        …

           Regarding the application of the deadly weapon
      enhancement, this Court finds the Brougher case to be

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      analogous to the case at bar. [Martinez-Herrera] used a BB gun
      to commit this robbery which is similar in nature to the air-soft
      gun in the Brougher case. Additionally, as stated during the
      guilty plea hearing, [Martinez-Herrera] admitted he was wearing
      a mask and produced a black handgun and pointed it at the head
      of the victim and demanded that he give him his money, wallet
      and phone. In accordance with Brougher, a BB gun is capable of
      causing serious bodily injury or death because it was pointed at
      the victim’s head, regardless of its design or if it was loaded.
      Furthermore, during [Martinez-Herrera]’s plea, [Martinez-
      Herrera]’s counsel requested that this Court sentence [him]
      without the application of the deadly weapon enhancement but
      acknowledged that “it is absolutely applicable even though the
      gun was not an actual, physical handgun, that it was a BB gun
      ….” [Martinez-Herrera] was not required to acknowledge that
      the BB gun was a deadly weapon during his plea and, contrary to
      [Martinez-Herrera]’s argument, the existence of a deadly
      weapon must be established by a preponderance of the
      evidence, not beyond a reasonable doubt. This Court found the
      existence of a deadly weapon by a preponderance of the
      evidence based on [Martinez-Herrera]’s admission to possessing
      a gun as well as the criminal information charging [him] with
      possessing a pellet gun.         Therefore, the deadly weapon
      enhancement was properly applied in the case at bar and its
      application in this matter is supported by the record.

Trial Court Opinion, 10/17/2016, at 5-8 (record citation omitted).

      With regard to Martinez-Herrera’s allegation that the deadly weapon

definition under Section 303.10(a)(1)(i) is most applicable to his case but

relies on the unconstitutional statute, Section 9712, and therefore, the court

cannot apply this definition to his sentence, we find this line of reasoning is

misplaced. Section 303.10(a)(1)(i) is not the only subsection that applies to

the present matter.    Under Section 303.10(a)(1)(iii), the current deadly

weapons enhancement can also apply where one possesses a “device . . .

capable of producing death or serious bodily injury where the court


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J-S12028-17


determines that the defendant intended to use the weapon to threaten or

injure another individual.”       204 Pa. Code § 303.10(a)(1)(iii).    Pursuant to

the Pennsylvania Sentencing Guidelines, the trial court was permitted to

determine by a preponderance of the evidence that Martinez-Herrera’s BB

gun was capable of producing death or serious bodily injury where he

intended to use the weapon to threaten or injure the victim.                    See

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

not normally considered deadly weapons can take on such status based

upon their use under the circumstances.”). As such, we conclude the trial

court did not err in concluding that under the facts of this case, Martinez-

Herrera’s BB gun constituted a deadly weapon.10

       Furthermore, we note that in Commonwealth v. Buterbaugh, 91

A.3d 1247, (Pa. Super. 2014), appeal denied, 104 A.3d 1 (Pa. 2014), a

panel of this Court determined that Alleyne, supra, was not implicated in a

challenge to the application of the DWE. See Buterbaugh, 91 A.3d at 1269

n.10 (“Alleyne . . . dealt with factors that either increased the mandatory

minimum sentence . . . .          Our case does not involve [such a] situation;

instead,   we    are    dealing    with   a    sentencing   enhancement.   If   the

enhancement applies, the sentencing court is required to raise the standard

guideline range; however, the court retains the discretion to sentence
____________________________________________


10
   We reiterate that Martinez-Herrera made no argument at sentencing or in
a post-sentence motion regarding the characteristics of the BB gun.



                                          - 16 -
J-S12028-17


outside the guideline range.”).    Accordingly, Martinez-Herrera has not

demonstrated the trial court abused its discretion in imposing his sentence.

Therefore, Martinez-Herrera’s DWE claim fails, and we affirm the judgment

of sentence.

     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2017




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