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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
LEON DAVID RANSOM,                          :
                                            :
                          Appellant         :     No. 1495 MDA 2016

             Appeal from the Judgment of Sentence August 2, 2016
               In the Court of Common Pleas of Columbia County
               Criminal Division at No.: CP-19-CR-0000913-2015

BEFORE: BOWES, J., DUBOW, J., and FITZGERALD, J.*

MEMORANDUM BY DUBOW, J.:                                 FILED MAY 15, 2017

        Appellant, Leon David Ransom, appeals from the Judgment of

Sentence entered August 2, 2016, in the Court of Common Pleas of

Columbia County. After careful review, we affirm.

        The relevant facts and procedural history of this case are as follows.

On August 2, 2016, Appellant entered an open guilty plea to one count of

Robbery, a felony of the second degree.1          The charges stemmed from

Appellant’s participation in a September 3, 2015 armed robbery of

Sneidman’s Jewelry Store in Bloomsburg, PA.              During the robbery,

Appellant’s codefendant pointed a firearm at an employee’s head and held it

against her head while Appellant took items from the display cases.      Both

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3701(a)(1)(iv).
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Appellant and his codefendant wore masks and hoods, and they were both

caught on video surveillance fleeing the scene in a white 2003 Volvo sedan.

Police in Maryland stopped and arrested Appellant and his codefendant in the

same vehicle on unrelated charges a few days later, and police recovered

the proceeds of the Robbery and two firearms.

      The trial court sentenced Appellant to a term of two to five years’

incarceration.    Appellant filed a timely Post-Sentence Motion to Modify

Sentence, which the trial court denied on September 6, 2016.

      On September 12, 2016, Appellant filed a timely Notice of Appeal.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following issue for our review:

      Whether the [t]rial [c]ourt can sentence a defendant in the
      aggravated range when the sentence is already enhanced by the
      weapon enhancement provision of the sentencing code?

Appellant’s Brief at 6.

      Appellant challenges the discretionary aspects of his sentence and, as

such, must properly invoke this Court’s jurisdiction in order to seek review

on the merits.    See Commonwealth v. Rhoades, 8 A.3d 912, 915 (Pa.

Super. 2010) (clarifying that a challenge to the application of a deadly

weapon enhancement is a challenge to the discretionary aspects of a

sentence rather than its legality). “Challenges to the discretionary aspects

of   sentencing   do   not   entitle   an   appellant   to   review   as   of   right.”

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (citation



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omitted).   Rather, Appellant must first meet his burden of satisfying the

following four elements before we will review the discretionary aspect of a

sentence:

     (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.[] § 9781(b).

Id. (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)).

     Here, Appellant met the first three elements by filing a timely Notice of

Appeal, properly preserving the issue, and including in his Brief a Statement

of Reasons Relied Upon for Allowance of Appeal pursuant to Pa.R.A.P.

2119(f) (“Rule 2119(f) Statement”).

     Accordingly, we next determine whether Appellant’s claims present a

“substantial question” for review.      An appellant raises 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. Crump, 995 A.2d

1280, 1282 (Pa. Super. 2010) (citation omitted).         This Court has no

jurisdiction where an appellant’s Rule 2119(f) Statement fails to raise “a

substantial question as to whether the trial judge, in imposing sentence,

violated a specific provision of the Sentencing Code or contravened a



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‘fundamental norm’ of the sentencing process.”              Commonwealth v.

Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011) (citations omitted).

      In the instant case, Appellant avers that the trial court’s decision to

impose a sentence in the aggravated range, while at the same time applying

the deadly weapon enhancement (“DWE”), was “unjust.” Appellant’s Brief at

5. Appellant’s Rule 2119(f) Statement essentially challenges the application

of the DWE, which presents a substantial question. See Commonwealth v.

Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014) (en banc) (holding that

defendant presented a substantial question by challenging the application of

the DWE where the deadly weapon was a truck); Commonwealth v.

Smith, 151 A.3d 1100, 1103 (Pa. Super. 2016) (holding that the

Commonwealth presented a substantial question by challenging trial court’s

refusal to apply DWE where defendant caused injuries with a motor vehicle).

      Appellant also alleges that the trial court failed to explain adequately

the basis for aggravating the sentence. Appellant claims that the trial court

failed to “state any additional reasons to aggravate this sentence” because

the factors the trial court listed during Appellant’s sentencing hearing “were

incorporated in the guidelines and the [A]ppellant’s offense gravity score.”

Appellant’s Brief at 8.      This also presents a substantial question.         See

Commonwealth v. McNabb, 819 A.2d 54, 56-57 (Pa. Super. 2003)

(finding   a   substantial   question   where   defendant   “alleg[ed]   that   the




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sentencing court did not sufficiently state its reasons for the sentence” and

relied on “impermissible factors.”).

      Having determined that Appellant has presented two substantial

questions for our review, we turn to the merits of his sentencing claims.

      “[W]e analyze the sentencing court’s decision under an abuse of

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

Super. 2015) (citation omitted).       “An abuse of discretion requires the trial

court to have acted with manifest unreasonableness, or partiality, prejudice,

bias, or ill-will, or such lack of support so as to be clearly erroneous.”

Crump, supra at 1282 (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).”         Commonwealth v. Macias,

968 A.2d 773, 776-77 (Pa. Super. 2009).

      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.


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     (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).

     The DWE provides, in relevant part, as follows:

     (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 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.

204 Pa. Code § 303.10(a)(1). Thus, according to Section 303.10(a)(1), the

DWE sentencing matrix applies to offenders who possessed a deadly weapon

during the commission of a crime.

     The DWE applies to non-armed co-conspirators in robberies where one

co-conspirator holds a weapon and another co-conspirator takes items from

the victim.    See Commonwealth v. Phillips, 946 A.2d 103, 114 (Pa.

Super. 2008) (observing that the unarmed offender had knowledge of the


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existence of a weapon and “could easily have been given or taken the gun at

any moment during the robbery.”).

     “A sentencing court need not undertake a lengthy discourse for its

reasons for imposing a sentence or specifically reference the statute in

question, but the record as a whole must reflect the sentencing court’s

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

Crump, supra at 1283 (citation omitted). Further, “[w]here pre-sentence

reports exist, we shall ... presume that the sentencing judge was aware of

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors.” Commonwealth v.

Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014) (quotation marks and

citation omitted). Additionally, “[w]hen the court imposes an aggravated or

mitigated sentence, it shall state the reasons on the record[.]” 204 Pa.Code

§ 303.13(c).

     Here, the trial court did not abuse its discretion when it sentenced

Appellant.   The parties agreed that the PSI, which stated that Appellant’s

prior record score was zero and the offense gravity score was 7, was

accurate. Appellant offered no corrections to the PSI. See N.T. Sentencing,

8/2/16, at 2. Using the DWE (Possessed) matrix, the standard range of the

guidelines was from 12 to 20 months’ incarceration, with an available

aggravated range of up to 26 months (i.e., six additional months). 204 Pa.

Code § 303.17(a); 204 Pa. Code § 303.13(a)(3).



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     The trial court imposed a minimum sentence of 24 months, which is

within the aggravated range of the applicable sentencing guidelines.     See

N.T. Sentencing, 8/2/16, at 12. After the Commonwealth presented victim

impact testimony from the employee whom Appellant and his codefendant

had held at gunpoint during the robbery, the trial court issued the following

statement when imposing the sentence:

     My reasons, to state the reasons, it is my purpose, my
     obligation, to state the reasons for my sentence.         I have
     considered probation and rejected the same because I believe
     that you knew or you should have known that your actions
     would cause serious harm to the victims. You knew or should
     have known it could cause physical and/or psychological injury.
     There is no provocation for your actions, no grounds tending to
     excuse or justify your crimes.      The victims did nothing to
     facilitate or induce the crimes committed against them. You will
     not be able to compensate the victims for their injuries. I
     considered guilt without penalty and partial confinement,
     rejected both for the above stated reasons. I believe the lesser
     sentence would seriously depreciate the nature of your crimes.

N.T. Sentencing, 8/2/16, at 11.

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

sentencing Appellant. First, the trial court properly applied the DWE. Even

though Appellant did not actually hold the weapon and threaten the

employee, Appellant knew his codefendant had the weapon and Appellant

could have taken the gun at any moment. See Phillips, supra at 114.

     Second, the trial court’s statement of reasons adequately explained its

decision to impose a sentence in the aggravated range of the DWE

guidelines. The trial court relied on several permissible factors to impose a



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sentence in the aggravated range.        Such factors were not duplicative of

factors already taken into consideration by the prior record score, offense

gravity score, or the deadly weapon enhancement.

        Moreover, Appellant’s bald assertion that it is never permissible to

impose an aggravated sentence when applying the “already enhanced” DWE

matrix2 simply ignores the contents of the DWE matrices and the Sentencing

Code.      See, e.g., 204 Pa. Code § 303.17(a)-(b) (including a separate

column listing the aggravated and mitigated ranges for the DWE matrices).

        We discern no abuse of discretion.   Therefore, we affirm Appellant’s

Judgment of Sentence.

        Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/15/2017




2
    Appellant’s Brief at 6.



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