J-S50043-15


                                    2015 PA Super 211

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

TRAVIS ALAN HANNA

                            Appellant                   No. 3130 EDA 2014


            Appeal from the Judgment of Sentence October 22, 2014
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0003267-2014


BEFORE: PANELLA, J., MUNDY, J., and JENKINS, J.

OPINION BY JENKINS, J.:                             FILED OCTOBER 02, 2015

        Appellant Travis Alan Hanna appeals from the judgment of sentence

entered in the Montgomery County Court of Common Pleas following his

open guilty plea to dealing in proceeds of unlawful activities, corruption of

minors, and theft by unlawful taking.1 We affirm.

        On March 24, 2013, in Limerick Township, Pennsylvania, Appellant

stole a handgun from an unlocked car.          N.T., 8/1/14, at 7.   At least one

juvenile accompanied Appellant at the time of the theft.        Id. at 8.   After

learning that the gun belonged to a member of law enforcement, Appellant

sold the firearm to Austin Lee Turner, who Appellant knew by the name of

“Lova”. Id. at 7-8.

____________________________________________


1
    18 Pa.C.S. §§ 5111(a)(1), 6301(a)(1)(i), and 3921(a), respectively.
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       On August 1, 2014, Appellant pled guilty to the aforementioned

crimes.2     On October 22, 2014, the trial court sentenced Appellant to

eighteen (18) months to seven (7) years of incarceration for theft and an

identical, concurrent sentence for dealing in proceeds of unlawful activities.

The court also sentenced Appellant to five (5) years of probation for

corruption of minors, to commence at sentencing. The court found Appellant

was not eligible for the recidivism risk reduction incentive program

(“RRRI”).3

       On October 23, 2014, Appellant filed a timely post-sentence motion,

which the trial court denied on October 31, 2014. On November 7, 2014,

Appellant filed a timely notice of appeal. On November 10, 2014, the trial

court ordered Appellant to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P. 1925(b), and he timely complied on

November 26, 2014.

       Appellant raises the following issue for our review:

           [WHETHER] THE TRIAL COURT ERRED IN FINDING
           APPELLANT INELIGIBLE FOR [RRRI] BECAUSE THE CRIME
____________________________________________


2
  The court nolle prossed the remaining charges of theft from a motor
vehicle, conspiracy to commit theft by unlawful taking, receiving stolen
property, loitering and prowling at nighttime, sale of firearms, firearms not
to be carried without a license, and additional charges of corruption of
minors.
3
  RRRI is a sentencing program that allows qualified, non-violent offenders
to become eligible for parole before they have completed their sentence of
incarceration if they complete requisite classes and tasks.



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         HE WAS CONVICTED OF [INVOLVED] THE THEFT OF A
         GUN[?]

Appellant’s Brief at 9.

      Appellant argues that his felony was not an offense “involving a deadly

weapon” under 61 Pa.C.S. § 4503, and the Commonwealth did not establish

the firearm he stole was a deadly weapon. He suggests the handgun was

not a deadly weapon because he did not use it to facilitate the crime and had

no intention of using it for its inherent purpose. Further, he claims that he

does not have a history of violent behavior, and that the offense of theft by

unlawful taking does not support a finding of ineligibility in the RRRI statute.

Appellant concludes the trial court erred in refusing to find him eligible for

RRRI. We disagree.

      Primarily, we note that “[i]t is legal error to fail to impose a RRRI

minimum on an eligible offender.” Commonwealth v. Tobin, 89 A.3d 663,

670 (Pa.Super.2014).      A challenge to a court’s failure to impose an RRRI

sentence implicates the legality of the sentence.       Id.     In this context,

Appellant challenges the court’s interpretation of a statute.

      “[B]ecause statutory interpretation implicates a question of law, our

scope of review is plenary and our standard of review is de novo.”

Commonwealth v. Gerald, 47 A.3d 858, 859 (Pa.Super.2012), appeal

denied, 55 A.3d 522 (Pa.2012) (quoting Commonwealth v. Arroyo, 991

A.2d 951, 955 (Pa.Super.2010)).

      When interpreting a statute:

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           Our task is guided by the sound and settled principles set
           forth in the Statutory Construction Act, including the
           primary maxim that the object of statutory construction is
           to ascertain and effectuate legislative intent. 1 Pa.C.S. §
           1921(a). In pursuing that end, we are mindful that
           “[w]hen the words of a statute are clear and free from all
           ambiguity, the letter of it is not to be disregarded under
           the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b).
           Indeed, “[a]s a general rule, the best indication of
           legislative intent is the plain language of a statute.” In
           reading the plain language, “[w]ords and phrases shall be
           construed according to rules of grammar and according to
           their common and approved usage,” while any words or
           phrases that have acquired a “peculiar and appropriate
           meaning” must be construed according to that meaning. 1
           Pa.C.S. [§] 1903(a). However, when interpreting non-
           explicit statutory text, legislative intent may be gleaned
           from a variety of factors, including, inter alia: the occasion
           and necessity for the statute; the mischief to be remedied;
           the object to be attained; the consequences of a particular
           interpretation; and the contemporaneous legislative
           history. 1 Pa.C.S. § 1921(c). Moreover, while statutes
           generally should be construed liberally, penal statutes are
           always to be construed strictly, 1 Pa.C.S. § 1928(b)(1),
           and any ambiguity in a penal statute should be interpreted
           in favor of the defendant.

Commonwealth          v.   Wilson,   111   A.3d   747,   751    (Pa.Super.2015),

reargument denied, Apr. 17, 2015 (quoting Commonwealth v. Shiffler,

879 A.2d 185, 189–190 (Pa.2005)).

      61 Pa.C.S. § 4503 defines an “eligible offender” for RRRI purposes as

follows:

           “Eligible offender.” A defendant or inmate convicted of a
           criminal offense who will be committed to the custody of
           the department and who meets all of the following
           eligibility requirements:

              (1) Does not demonstrate a history of present or past
              violent behavior.

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          (2) Has not been subject to a sentence the calculation
          of which includes an enhancement for the use of a
          deadly weapon as defined under law or the sentencing
          guidelines   promulgated      by     the     Pennsylvania
          Commission on Sentencing or the attorney for the
          Commonwealth has not demonstrated that the
          defendant has been found guilty of or was convicted of
          an offense involving a deadly weapon or offense
          under 18 Pa.C.S. Ch. 61 (relating to firearms and other
          dangerous articles) or the equivalent offense under the
          laws of the United States or one of its territories or
          possessions, another state, the District of Columbia, the
          Commonwealth of Puerto Rico or a foreign nation.

          (3) Has not been found guilty of or previously convicted
          of or adjudicated delinquent for or an attempt or
          conspiracy to commit a personal injury crime as defined
          under section 103 of the act of November 24, 1998 (P.
          L. 882, No. 111), known as the Crime Victims Act,
          except for an offense under 18 Pa.C.S. § 2701 (relating
          to simple assault) when the offense is a misdemeanor
          of the third degree, or an equivalent offense under the
          laws of the United States or one of its territories or
          possessions, another state, the District of Columbia, the
          Commonwealth of Puerto Rico or a foreign nation.

          (4) Has not been found guilty or previously convicted or
          adjudicated delinquent for violating any of the following
          provisions or an equivalent offense under the laws of
          the United States or one of its territories or
          possessions, another state, the District of Columbia, the
          Commonwealth of Puerto Rico or a foreign nation:

              18 Pa.C.S. § 4302(a) (relating to incest).

              18 Pa.C.S. § 5901 (relating to open lewdness).

              18 Pa.C.S. Ch. 76 Subch. C (relating to Internet child
              pornography).

              Received a criminal sentence pursuant to 42 Pa.C.S.
              § 9712.1 (relating to sentences for certain drug
              offenses committed with firearms).

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               Any offense for which registration is required under
               42 Pa.C.S. Ch. 97 Subch. H (relating to registration
               of sexual offenders).

                                      *     *    *

            (6) Has not been found guilty or previously convicted of
            violating section 13(a)(14), (30) or (37) of the act of
            April 14, 1972 (P.L. 233, No. 64), known as The
            Controlled Substance, Drug, Device and Cosmetic Act,
            where the sentence was imposed pursuant to 18
            Pa.C.S. § 7508(a)(1)(iii), (2)(iii), (3)(iii), (4)(iii), (7)(iii)
            or (8)(iii) (relating to drug trafficking sentencing and
            penalties).

61 Pa.C.S. § 4503 (emphasis added).

      The trial court found Appellant RRRI-ineligible because he was

convicted of an offense “involving a deadly weapon” under Section 4503(2).

N.T., 10/22/14, at 10 (“There’s no doubt that a state trooper’s service

revolver, pistol is a deadly weapon. And he’s convicted of stealing it. So

he’s not RRRI-eligible.”). This decision was correct under the plain meaning

of the statute, which excludes offenders from RRRI who are “convicted of an

offense involving a deadly weapon.” 61 Pa.C.S. § 4503(2). Notably, this

provision does not say that a defendant must use the deadly weapon in any

way; it requires only that the offense “involve” a deadly weapon. Appellant’s

crimes clearly did.

      Appellant suggests we view the gun as we would view any item that

Appellant may have stolen and resold, because he did not use the gun as

one would use a deadly weapon.              Appellant directs our attention to


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

appeal denied, 104 A.3d 1 (Pa.2014), wherein this Court found an

automobile to be a deadly weapon for purposes of the deadly weapon

enhancement of the sentencing guidelines.       Specifically, he quotes, “the

character of the vehicle changed to a deadly weapon the instant Appellant

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. at 1269]”.    Appellant’s Brief at 13.   Appellant correctly

notes that Buterbaugh stands for the proposition that an object that is

normally not a deadly weapon can be considered as such depending on the

circumstances.   Unfortunately for Appellant, the contrapositive –- that a

deadly weapon not used as such can lose its identity as a deadly weapon --

is not true. In Buterbaugh, this Court conducted the analysis to find the

automobile was a deadly weapon because “an automobile is clearly not a

firearm, nor is it one of the dangerous weapons defined in 18 Pa[.C.S]. §

913.” Id. at 1268.

     The fact remains that a pistol is a deadly weapon that Appellant could

have intentionally or accidentally, used to injure or kill another person, as

could Turner, the person that purchased the weapon from Appellant.

Appellant could not have caused such grievous harm with stolen, but non-

deadly items, such as bicycles or candy bars.




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          Thus, we agree with the trial court that Appellant’s issue merits no

relief.

          Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2015




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