J-A26016-16


                                  2016 PA Super 259

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MELVIN TAYLOR SOLOMON                      :
                                               :
                      Appellant                :   No. 1209 WDA 2015

           Appeal from the Judgment of Sentence October 13, 2013
              in the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0016014-2012


BEFORE: BENDER, P.J.E., RANSOM, J., MUSMANNO, J.

OPINION BY RANSOM, J.:                              FILED NOVEMBER 22, 2016

       Melvin Taylor Solomon (Appellant) appeals from the judgment of

sentence of seven and one-half to fifteen years of imprisonment.            This

sentence was imposed after Appellant entered a guilty plea to aggravated

assault, attempting to elude a police officer, reckless endangerment, driving

without a license, and driving at an unsafe speed.1 We affirm.

       The trial court outlined the relevant factual history as follows:

              [In September of 2012, Appellant] was driving [an SUV]
       recklessly in the Homewood Section of the City of Pittsburgh.
       City of Pittsburgh Police Officer Baker[, who was in a marked
       police vehicle with his partner Police Officer Schutz,] decided to
       initiate a traffic stop. Instead of stopping, however, [Appellant]
       fled. The pursuit went from the City of Pittsburgh through the
       Boroughs of Wilkinsburg, Churchill, Penn Hills and, ultimately,
____________________________________________


1
 Respectively, see 18 Pa.C.S. §§ 2702(a)(1), 3733(a), 2705; 75 Pa.C.S. §§
1501(a), and 3361.
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     into Verona, Pennsylvania. At this time, [Appellant] brought the
     vehicle to an abrupt stop in an alleyway in Verona. [Appellant]
     traveled in excess of eighty miles per hour during this pursuit.
     Once [Appellant] brought the vehicle to a stop in this alley both
     Officer Baker and []Officer Schutz[] exited [their] vehicle[, which
     was stopped approximately fifteen feet behind Appellant].
     Rather than comply with the Officers’ warnings, [Appellant] put
     the vehicle in reverse and drove in reverse toward the police
     vehicle. [Appellant] missed Officer Baker by approximately one
     foot and continued on toward Officer Schutz. The summary of
     the evidence described an eight-foot separation between the
     police car and a parked van in the alleyway. [Appellant] drove
     the vehicle directly at Officer Schutz who, fearing for his life,
     fired at the rear of the vehicle. Officer Schutz was somehow
     able to jump behind the police vehicle and avoid being run over.
     Officer Baker, believing that his partner had been run over, fired
     additional shots at the vehicle as it exited the alley in reverse.
     [Appellant] was later identified as the driver of this vehicle and
     charged with these crimes.         At the sentencing proceeding
     videotape was played reflecting [Appellant’s] driving in the
     relevant time period.

Trial Court Opinion, 10/28/15, at 3-4.

     Following a hearing with the trial court in July of 2013, Appellant

entered a guilty plea to the aforementioned crimes. A pre-sentence report

was ordered. At Appellant’s sentencing hearing in October of 2013, defense

counsel argued that the Deadly Weapon Enhancement should not apply to

the Appellant; however, the court was not persuaded.            Appellant was

sentenced to seven and one-half to fifteen years of imprisonment for the

aggravated assault, plus seven years of probation to be served consecutively

for the fleeing and eluding charge, and two years’ probation to be served

concurrently   with   the   preceding    probation   sentence   for   recklessly

endangering another.    No further penalty was assessed on the remaining




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charges.    Appellant filed post-sentence motions, which were denied.            No

appeal was filed.2

       Thereafter, Appellant timely filed a petition for collateral relief

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.

Appellant’s PCRA petition was granted, and his appellate rights were

reinstated nunc pro tunc.          Appellant timely appealed and filed a court-

ordered Pa.R.A.P. 1925(b) statement.             The trial court issued a responsive

opinion.

       Appellant presents the following question for our review:

       1.    Did the sentencing court err when it applied the 204
       Pa.Code § 304.10(a) Deadly Weapon Enhancement in Appellant’s
       case (given that the Commonwealth failed to prove at
       [s]entencing that he, during his crimes, used or possessed a
       firearm, a dangerous weapon, or an object that was used or
       intended to be used to [produce] death or serious injury), with
       the remedy for that error being vacation of the sentences
       imposed and remand for a resentencing hearing?

Appellant’s Brief at 3 (footnotes omitted).

       In the sole issue before this Court, Appellant argues that the trial court

erred in reaching the conclusion that he drove the vehicle in a manner that

made the Deadly Weapon Enhancement applicable. Appellant’s Brief at 17.

Appellant asserts that, in reversing, he was using his car to (1) continue his




____________________________________________


2
 Appellant did not take issue with his probation sentences. See Appellant’s
Brief at 28.



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flight after entering a dead end, and (2) prevent himself from being shot.3

Id.

       Appellant’s challenge is to the discretionary aspects of his sentence.

See, e.g., Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa. Super.

2010) (en banc) (stating a challenge to the application of the deadly weapon

enhancement implicates the discretionary aspects of sentencing), appeal

denied, 20 A.3d 485 (Pa. 2011). Challenges to the discretionary aspects of

sentencing     do   not   entitle   an    appellant   to   an   appeal   as   of   right.

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). Prior to

reaching the merits of a discretionary sentencing issue:

          [W]e conduct a four-part analysis to determine: (1)
          whether appellant has filed a timely notice of appeal, see
          Pa.R.A.P. 902 and 903; (2) whether the issue was
          properly preserved at sentencing or in a motion to
          reconsider and modify sentence, see Pa.R.Crim.P. 720;
          (3) whether appellant’s brief has a fatal defect, 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, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (most

citations omitted), appeal denied, 909 A.2d 303 (Pa. 2006).

       When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

____________________________________________


3
  Appellant supplements this argument regarding his intent in his Post-
Submission    Communication.      See    Appellant’s   Post-Submission
Communication, 10/4/16.



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J-A26016-16



separate concise statement demonstrating that there is a substantial

question as to the appropriateness of the sentence under the Sentencing

Code.     Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002);

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth

the reasons relied upon for allowance of appeal furthers the purpose evident

in the Sentencing Code as a whole of limiting any challenges to the trial

court’s evaluation of the multitude of factors impinging on the sentencing

decision to exceptional cases.”      Commonwealth v. Phillips, 946 A.2d

103, 112 (Pa. Super. 2008) (emphasis in original) (internal quotation marks

omitted), appeal denied, 954 A.2d 895 (Pa. 2008), cert. denied, 129 S. Ct.

2450 (2009).

        The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.      See Commonwealth v. Anderson,

830 A.2d 1013, 1018 (Pa. Super. 2003). A substantial question exists “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.” Sierra, 752 A.2d at 912-13.

        As an initial matter, we note that Appellant timely filed a notice of

appeal, preserved the instant issue at sentencing and in a post-sentence

motion, and included a Pa.R.A.P. 2119(f) statement in his brief. Therefore,

our analysis turns on whether there is a substantial question that the

sentence imposed is inappropriate under the Sentencing Code.          See 42

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Pa.C.S.A. § 9781(b).    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). Appellant has complied with the requirements for consideration of a

challenge to the discretionary aspects of a sentence, as such, we will

consider the claim on its merits.

      When reviewing a challenge to the discretionary aspects of sentencing,

we adhere to the following standard:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a 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. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citing

Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)),

reargument denied (Feb. 17, 2015), appeal denied, 117 A.3d 297 (Pa.

2015).

      The trial court sentenced Appellant according to the Deadly Weapon

Enhancement Used Matrix of the Sentencing Guidelines. See 204 Pa.Code §

303.17(b); Notes of Testimony (N.T.), 10/10/13, at 8.         To determine

whether the Deadly Weapon Enhancement Used Matrix should apply, the

Sentencing Code provides, in pertinent part, as follows:



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J-A26016-16


      (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).

      Pennsylvania law defines a deadly weapon as “any firearm, 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 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.A. § 2301.

Serious bodily injury is defined 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.” Id.

      Items not normally considered deadly weapons can take on such

status based upon their use under the circumstances. Commonwealth v.

Raybuck, 915 A.2d 125, 128 (Pa. Super. 2006) (concluding commercial

mouse    poison   placed   in   sandwich   was   a   deadly   weapon)    (citing

Commonwealth v. Scullin, 607 A.2d 750, 753 (Pa. Super. 1992) (finding

tire iron thrown at victim was a deadly weapon), appeal denied, 621 A.2d

579 (Pa. 1992)); Commonwealth v. Cornish, 589 A.2d 718, 721 (Pa.



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J-A26016-16



Super. 1991) (recognizing fireplace poker used to strike victim constituted a

deadly weapon).    “The definition of deadly weapon does not demand that

the person in control of the object intended to injure or kill the victim.”

Scullin, 607 A.2d 753.

      The sentencing court has no discretion to refuse to apply the deadly

weapons enhancement when it is appropriate.              Commonwealth v.

Magnum, 654 A.2d 1146, 1149–50 (Pa. Super. 1995).             The court must

begin its calculation of a sentence from the correct starting range, including,

when appropriate, the Deadly Weapons Enhancement. Id. at 1150. When a

sentencing court fails to begin its calculation of sentence from the correct

starting point, this Court will vacate the sentence and remand for

reconsideration of sentence.    Id. (citing Scullin, 607 A.2d at 754); 42

Pa.C.S. § 9781(c)(1).

      As used under the instant circumstances, we conclude that the SUV

was an instrument likely to produce death or serious bodily injury to Officer

Schutz and thus constituted a deadly weapon.       The SUV became a deadly

weapon when Appellant drove it in reverse through an eight-foot-wide

opening directly at a person who was standing less than fifteen feet behind

him. N.T., 7/12/13, at 7-11.

      Here, Appellant’s motivation for reversing the vehicle is of no moment.

If one drives a vehicle at another person, there is a high probability that the

victim will be seriously hurt or killed. Appellant pleaded guilty to aggravated

assault, a crime eligible for deadly weapon enhancement. See 204 Pa. Code

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J-A26016-16



§ 303.10(a)(2), 18 Pa.C.S. §2702(a)(1). Thus, the sentencing court had no

discretion to refuse to apply the Deadly Weapon Enhancement, as it was

appropriate. Magnum, 654 A.2d 1149–50.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2016




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