J-S58029-16

                             2016 PA Super 264

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellant

                   v.

JONATHAN NELSON SMITH

                        Appellee                    No. 211 MDA 2016


           Appeal from the Judgment of Sentence January 4, 2016
               In the Court of Common Pleas of York County
            Criminal Division at No(s): CP-67-CR-0001126-2015



BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.

OPINION BY BOWES, J.:                         FILED NOVEMBER 29, 2016

      The Commonwealth appeals from the January 4, 2016 judgment of

sentence and challenges the trial court’s refusal to impose the deadly

weapons enhancement.     We affirm.

      The underlying facts of this dispute are as follows. During the evening

of September 17, 2014, Jonathan Nelson Smith, Appellee, frequented a

number of bars in the Hanover area following a dispute with his girlfriend.

After consuming five to seven alcoholic beverages, Appellee approached

another patron in order to buy some crack cocaine. This individual, along

with two other men, agreed to provide Appellee with the illicit drug, but

required a ride to York to obtain it.     Appellee agreed to transport the

individuals.



* Retired Senior Judge assigned to the Superior Court.
J-S58029-16



      While en route to York, Appellee became distracted by one of the

passengers and struck a pedestrian, Scott Maitland, with his vehicle. At the

time of the accident, Mr. Maitland was crossing the street in a well-lit

crosswalk equipped with flashing lights. Mr. Maitland suffered fractures to

his skull, nasal bones, ribs, tibia, and fibula, requiring extensive medical

treatment, and resulting in permanent injuries.     Following impact, Appellee

continued along his course, and ultimately, abandoned his vehicle in a

parking lot.

      That same morning, in an attempt to evade prosecution, Appellee

reported his car stolen to the State Police. The State Police transferred the

matter to Hanover Borough Police, who contacted Appellee at his residence.

After a short discussion in front of his home, Appellee agreed to accompany

the officer to the police station. An interview ensued wherein Appellee, at

first, continued to insist that the car had been stolen, but then retracted this

representation and admitted to his involvement in the hit-and-run accident,

including his excessive drinking throughout the evening.             Appellee’s

voluntary confession was documented in his own hand-written statement.

      The Commonwealth thereafter charged Appellee with, inter alia,

aggravated assault and driving under the influence of alcohol (“DUI”). On

October 30, 2015, Appellee entered an open guilty plea to those charges,

and the court nolle prossed the remaining counts. Prior to sentencing, the

Commonwealth recommended that the court impose the deadly weapons

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enhancement (“DWE”) to Appellee’s sentence pursuant to this Court’s

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

(en banc) (“Buterbaugh”), wherein we determined that the DWE could

apply to injuries caused by a motor vehicle. The court declined to employ

the DWE, and instead imposed a sentence of six-and-a-half to fifteen years

incarceration, plus costs and restitution for aggravated assault, and a

concurrent thirty days to six months incarceration for the DUI.

     The Commonwealth filed a post-sentence motion challenging the

discretionary aspects of the sentence, and argued that Buterbaugh

obligated the court to apply the DWE to Appellee’s sentence.        The court

denied this motion, and the Commonwealth filed a timely notice of appeal.

The court directed the Commonwealth to file a Pa.R.A.P. Rule 1925(b)

statement   of   matters   complained   of   on   appeal,   with   which   the

Commonwealth complied, and then authored its Rule 1925(a) opinion. This

matter is now ready for our review. The Commonwealth raises one question

for our consideration: “Whether the trial court erred in failing to apply the

deadly weapon enhancement at sentencing?” Commonwealth’s brief at 4.

     Initially, we note “there is no absolute right to appeal when

challenging the discretionary aspect of a sentence.”     Commonwealth v.

Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (citations omitted).            An

“appeal is permitted only after this Court determines that there is a

substantial question that the sentence was not appropriate under the

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sentencing code.” Id. An appellant 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.”    Id.    Furthermore, “in order to properly present a discretionary

sentencing claim, [an appellant] is required to preserve the issue in either a

post-sentence motion or at sentencing and in a court-ordered Pa.R.A.P.

1925(b) concise statement.” Id. Moreover, on appeal, the appellant “must

provide a separate statement specifying where the sentence falls in the

sentencing guidelines, what provision of the sentencing code has been

violated, what fundamental norm the sentence violates, and the manner in

which it violates the norm.” Id.

       The Commonwealth, Appellant herein, preserved this issue in its post-

sentence motion, Pa.R.A.P. 1925(b) concise statement, and in its Pa.R.A.P.

Rule 2199(f) concise statement of reasons relied upon for allowance of

appeal.1 Upon review, we conclude that the application of the DWE presents

a substantial question for review. See Buterbaugh, supra at 1266.

       Having      determined     that   the   Commonwealth   has   presented   a

substantial question for our review, we turn to the merits of its sentencing

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

____________________________________________


1
  In its brief, the Commonwealth erroneously stylized its Rule 2119(f)
statement as a Rule 2119(b) statement.



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discretion standard.”   Commonwealth v. Zeigler, 112 A.3d 656, 661

(Pa.Super. 2015) (citation omitted). In addition, “this Court’s review of the

discretionary aspects of a sentence is confined by the statutory mandates of

42 Pa.C.S. § 9781(c) and (d).” Id. Section 9781(c) provides that this Court

shall vacate a sentence and remand 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 sentencing
            guidelines and the sentence is unreasonable.

42 Pa.C.S. § 9781(c). In addition, we consider:

      (1)   The nature and circumstances of the offense and the
            history and characteristics of the defendant.

      (2)   The opportunity of the sentencing court to observe the
            defendant, including any presentence investigation.

      (3)   The findings upon which the sentence was based.

      (4)   The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

      As the language of the DWE is discussed at length in this matter, we

set it forth at the outset. The DWE provides, in part:

      (1)   When the court determines that the offender possessed a
            deadly weapon during the commission of the current
            conviction offense, the court shall consider the

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             DWE/Possessed Matrix (§ 303.17(a)). An offender has
             possessed a deadly weapon if any of the following were on
             the offender’s person or within his immediate physical
             control

            (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 designed as
                   a weapon or 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.

     (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 threated or injured another individual:

            (i)    Any firearm, (as defined by 42 Pa.C.S. § 9712)
                   whether loaded or unloaded,

           (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)(1)-(2).          Thus, according to the respective

subparagraphs, the DWE sentence matrices apply to offenders who either

possessed or used a deadly weapon during the commission of a crime.

     The trial court reasoned that the DWE for use of a deadly weapon

pursuant to § 303.10(a)(2) did not apply to Appellee’s sentence.           It



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reviewed our decision in Buterbaugh, supra, wherein we interpreted the

term “instrumentality” in 204 Pa. Code § 303.10(a)(2)(iii) to include motor

vehicles. Relying on Buterbaugh, the court determined that the DWE only

applied to motor vehicles when there was an indication that the defendant

“intended to hit or menace the victim.” Trial Court Opinion, 4/4/16, at 5.

The court emphasized that it is “the intent of the operator and/or the actual

manner of use of the motor vehicle” which “may convert it from merely a

means of transportation to a deadly weapon.”                 Id.       It concluded that

Appellee did not intend to use the vehicle as a deadly weapon, and,

therefore, the DWE did not apply. Id.

       The Commonwealth contends that the trial court erred in failing to

apply the DWE to Appellee’s sentence as required by 204 Pa. Code §

303.10(a)(2)(iii).       It   characterizes     our   decision    in    Buterbaugh     as

compelling the application of the DWE in any situation where an automobile

is   used   in   a   manner      capable   of   causing   death    or    serious   injury,

notwithstanding the person’s intent to use the automobile as a weapon.2

____________________________________________


2
  The Commonwealth presents this as a challenge to the discretionary
aspects of the sentence, in that the trial judge was obligated to apply the
DWE in determining the applicable guideline range. See Commonwealth
v. Bowen, 612 A.2d 512, 517 (Pa.Super. 1993) (while sentencing code
confers discretion to fashion sentence, trial judge must apply DWE “where it
is applicable.”)    In this regard, the Commonwealth’s position is that
Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa.Super. 2014) (en banc)
requires a finding that the DWE is applicable herein, thereby removing the
(Footnote Continued Next Page)


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The Commonwealth notes that the defendant in Buterbaugh was convicted

of third-degree murder. It asserts that, since the mens rea for third-degree

murder requires only a finding of recklessness, the Buterbaugh Court did

not impute a finding of intent in order to apply the DWE, as such a holding

would contradict the requisite culpability.       Similarly, it continues, since

aggravated assault requires a finding of recklessness, Appellee’s intent to

use the vehicle as a weapon is irrelevant so long as the crime causes death

or serious bodily injury.

      The Commonwealth further supports its position by distinguishing the

possession and use provisions of the DWE.         It observes that a finding of

intent is required for applying the DWE to crimes where the individual is

merely in possession of a deadly weapon during the commission of a crime.

See 204 Pa. Code § 303.10(a)(1)(iii). That provision requires the court to

determine whether an individual intended to use a device, implement, or

instrumentality as a deadly weapon before applying the DWE for possession.

The Commonwealth contends that, since the legislature did not require the

courts to make this same determination when applying the DWE for use of a

deadly weapon pursuant to 204 Pa. Code § 303.10(a)(2)(iii), such a finding

is not necessary here. Thus, the trial court erred in denying application of

                       _______________________
(Footnote Continued)

trial judge’s discretion. In this respect, the claim could alternatively be
viewed as implicating the legality of the sentence.



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J-S58029-16



the DWE to Appellee’s judgment of sentence since Appellee used his vehicle

in a manner causing serious injury.

      We commence our analysis by reviewing our decision in Buterbaugh,

supra.     In Buterbaugh, this Court considered whether an automobile

constituted a deadly weapon for the purposes of the DWE following the

death of an individual struck by a pick-up truck. In the wake of an extended

interval of drinking alcoholic beverages, the friends of defendant Gerald

Buterbaugh, became embroiled in a scuffle at a local bar.      Buterbaugh,

supra at 1250-51.     After the bartender ejected both sides of the dispute

from the bar, including Buterbaugh, the altercation continued outside. Id.

at 1251.    As the incident continued, Buterbaugh entered his truck and

started the engine.    Id.    His friends joined him there, and all three

individuals attempted to flee from the altercation. Id.

      As Buterbaugh backed into the street, the truck stalled.          Upon

restarting the vehicle, he revved the engine, spun his tires, and accelerated

the vehicle towards a member of the mob who was standing on the fog line

of the road.   Id. at 1252.   Buterbaugh neither braked nor swerved, but

rather struck the victim at the truck’s highest possible speed given the

distance of acceleration. Id. Buterbaugh and his friends fled the scene, and

the victim died of his injuries shortly thereafter.   Id. at 1253.   During a

subsequent investigation, Buterbaugh stated that he intended to scare the

victim, and push him off the road. Id. at 1252.

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       Following a trial, Buterbaugh was convicted of third-degree murder.

Id. at 1253. The trial court applied the DWE and sentenced Buterbuagh to

fifteen to forty years of incarceration. Id. The court denied Buterbaugh’s

post-sentence motions, and an appeal ensued wherein he argued, inter alia,

that the pick-up truck did not qualify as an “instrumentality” for the

purposes of the DWE.

       Upon review, this Court determined that Buterbaugh’s truck was a

deadly weapon under the DWE.3                  In so finding, we reviewed the plain

meaning of the DWE and looked to Black’s Law Dictionary and Merriam-

Webster, and concluded that a vehicle is a “device, implement, or

instrumentality” under the DWE.                Id.   at 1268.   We noted that the

Sentencing Commission’s use of the qualifying term “capable,” indicated that

it intended to include not just things designed to produce serious injury or

death, but also objects which may be “utilized in a different manner to

achieve a more nefarious result,” i.e. objects that are “capable” of such

results.   Id. 1269.      Hence, we established that a “device, implement, or

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
____________________________________________



3
 In Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa.Super. 2014) (en
banc), we overruled our holding from Commonwealth v. Burns, 568 A.2d
974 (Pa.Super. 1990). In Burns, we determined motor vehicles were not
weapons for the purpose of the deadly weapon enhancement.



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J-S58029-16



consistent with the original purpose of the object.”           Id. (emphasis in

original). We found this interpretation consistent with the purposes of the

DWE. Id. citing Commonwealth v. Rhoades, 8 A.3d 912, 917 (Pa.Super.

2010) (“Items not normally classified as deadly weapons can become so

based upon their use under particular circumstances.”).

      Employing    the   above   analysis,    we   reviewed   the   circumstances

surrounding Buterbaugh’s use of his pick-up truck in causing the victim’s

injuries.   We observed that “an automobile is not specifically designed to

cause death or serious bodily injury . . . However, like many [other objects],

the character of an automobile changes based on the particular

circumstances surrounding its use.”                Id. (emphasis added).      We

concluded that the character of the defendant’s truck changed to 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. Thus, based on

the particular circumstances surrounding the defendant’s use of his vehicle,

we found the DWE applicable to his sentence. Id. at 1269-70.

      Although our decision in Buterbaugh was not expressly premised

upon the defendant’s intent concerning the use of his vehicle, the

defendant’s intent in his particular use of the truck was clearly considered as

part of those circumstances.     In rendering our decision, we discussed the

“nefarious results” necessary to change an innocent object into a deadly

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weapon.   Id. at 1269.   We concluded that failure to consider the truck a

deadly weapon under the circumstances of that case “would result in the

untenable position that an automobile is different than a litany of other

everyday objects, which when used with a wicked purpose, can cause

serious bodily injury or death.” Id. (emphasis added). A person’s use of an

object is informed by the ends that person hopes to attain, i.e., his intent

with regard to the use of that object. Thus, in discussing a person’s “use” of

an object, his intent for that particular use is necessarily included in

“surrounding circumstances.”

     Contrary to the Commonwealth’s assertions, this Court did implicitly

find that the defendant in Buterbaugh intended to use his truck as a deadly

weapon.    Buterbaugh intentionally revved his engine and accelerated at

maximum speed toward the victim. This action changed the character of his

truck from a benign instrument to a deadly weapon since doing so evinced

Buterbaugh’s intention to use the truck as a weapon.

     The Commonwealth’s contention that application of the use provision

of the DWE does not require consideration of a person’s intent is

unpersuasive. Our acceptance of the Commonwealth’s position would lead

to the untenable result that the DWE could be applied to every motor vehicle

accident resulting in death or serious bodily injury, many of which involve a

criminal violation of some nature.     As discussed above, an analysis of a




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J-S58029-16



person’s use of an object necessarily requires consideration of his intent in

order to determine whether it was, in fact, utilized as a deadly weapon.

      Moreover, unlike the DWE for use of a deadly weapon, when a person

merely possesses a device, implement, or instrumentality during the

commission of a crime, pursuant to § 303.10(a)(1)(iii), we must consider

the person’s intent separately from his possession.           After all, mere

possession of that object might not be unlawful, and the DWE would never

apply to everyday objects, even if they were capable of causing serious

bodily harm or death, unless that person’s intentions were scrutinized.

Thus, in applying the DWE for possession under § 303.10(a)(1), 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.

      Here, at the time of the accident, Appellee was using his car as a

mode of transportation. Appellee was drunk and distracted at the time of

the incident, thus his performance of this task was reckless. Nevertheless,

he had no intention to use the automobile as a deadly weapon. In light of

the surrounding circumstances, there is no indication that Appellee actually

used the car for any reason other than conveying himself and his passengers

to York, even though the victim suffered permanent injuries resulting

therefrom.




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J-S58029-16



      We agree with the trial court’s analysis, and thus we discern no abuse

of discretion in its determination that the DWE is not applicable to Appellee’s

judgment of sentence.

      Judgment of sentence affirmed.

      Judge Platt Joins the opinion.

      President Judge Gantman concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/29/2016




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