J-S37022-17

                                  2017 PA Super 343



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

CHEYENE TAVAREZ

                            Appellant                   No. 1859 MDA 2016


            Appeal from the Judgment of Sentence October 7, 2016
                In the Court of Common Pleas of Berks County
             Criminal Division at No(s): CP-06-CR-0006124-2015


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

OPINION BY MOULTON, J.:                               FILED OCTOBER 31, 2017

       Cheyene Tavarez appeals from the October 7, 2016 judgment of

sentence entered in the Berks County Court of Common Pleas following his

entry of a guilty plea to one count each of aggravated assault, burglary,

robbery, impersonating a public servant, and conspiracy.1       We vacate the

judgment of sentence and remand for resentencing.

       At his guilty plea proceeding on October 7, 2016, Tavarez admitted to

the following facts:
           [O]n or about November 17th, 2015, shortly after 1:00 in
           the morning at 49 Mill Road in Oley Township, Berks
           County, Pennsylvania, you along with your accomplices
           and co-conspirators Edward Martinez, Brandon Smith, and
           Erick Green went to that residence; the plan even before
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       18 Pa.C.S. §§ 2702(a)(1), 3502(a)(1)(ii), 3701(a)(1)(ii), 4912, and
       1

903(a)(1), respectively.
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        you arrived at the residence was to rob the people there;
        you believed that there were illegal drugs and money[]
        there to be gained; all four of you agreed to do that.
        When you got there, as was your intention all along, you
        and Edward Martinez entered the residence, there were
        people present. This was a residence. It was not open to
        the public at that time. You had no license or privilege to
        be there.

           Once inside, you were yelling, [“]Police. Freeze[.”] in
        [an] attempt to compel the homeowners to do what you
        wanted them to do, thereby impersonating a public
        servant. Although you attempted to commit a robbery and
        you did so with firearms, nothing was actually taken.

            When you confronted the homeowner, Eric Wegman, in
        the upstairs bedroom, he pulled his own handgun and
        fired, hitting both you and Mr. Martinez. Eric Wegman was
        also shot in the leg at that point.

N.T., 10/7/16, at 5-6.

     The trial court summarized the ensuing procedural history of this

matter as follows:
           [Tavarez] was sentenced to a term of incarceration of
        10½ to 30 years in a state correctional facility. To reach
        this term of incarceration, the Court sentenced [Tavarez]
        consecutively on three of the charges. The first period of
        incarceration, lasting from 66 to 132 months, was received
        for the aggravated assault, robbery and the accompanying
        conspiracy charges. The second period of incarceration,
        lasting 48 to 96 months, was received for the burglary
        charge. The third period of incarceration, lasting 12 to 24
        months, was received for the impersonating a public
        servant charge. Though the sentence in aggregate is
        considerable, [Tavarez] was sentenced on each charge
        within the standard range.

           Following sentencing, by and through counsel,
        [Tavarez] filed a post-sentence motion to reconsider and
        modify sentence, on October 17, 2016. We denied this
        motion that day. On November 14, 2016, [Tavarez], now
        represented by the public defender, filed a notice of
        appeal. Due to a service error by the Court, Counsel did
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         not receive notice requiring a [Pennsylvania Rule of
         Appellate Procedure 1925(b)] statement until, at the
         latest, November 28, 2016. Once Counsel received notice,
         [Tavarez] filed a timely [Rule 1925(b)] statement on
         December 12, 2016.

1925(a) Opinion, 1/30/17, at 1 (unpaginated) (“1925(a) Op.”).

      On appeal, Tavarez raises three issues:
         1. Whether the trial court erred and abused its discretion
            by failing to utilize the correct offense gravity score for
            the crime of impersonating a public servant.

         2. Whether the trial court erred and abused its discretion
            by applying the deadly weapon (used) enhancement
            absent evidence that [Tavarez] used a deadly weapon
            as defined by the Sentencing Code in the commission of
            the burglary.

         3. Whether the trial court erred and abused its discretion
            by failing to consider [Tavarez’s] rehabilitative needs
            when imposing the sentence of 10½ to 30 years of
            incarceration.

Tavarez’s Br. at 11 (full capitalization and trial court answers omitted).

      We will address Tavarez’s second issue first because it is dispositive of

this appeal.   Tavarez asserts that the trial court abused its discretion in

applying the deadly weapon “used” enhancement to his burglary conviction.

This claim raises a challenge to the discretionary aspects of sentencing.

      An appeal from the discretionary aspects of sentencing is not

guaranteed as a matter of right.      Commonwealth v. Mastromarino, 2

A.3d 581, 585 (Pa.Super. 2010).      Before addressing such a challenge, we

must first determine:
         (1) whether the appeal is timely; (2) whether [the]
         [a]ppellant preserved his [or her] issue; (3) whether [the]
         [a]ppellant’s brief includes a concise statement of the
         reasons relied upon for allowance of appeal with respect to
         the discretionary aspects of sentence; and (4) whether the
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J-S37022-17


        concise statement raises a substantial question that the
        sentence is appropriate under the [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006));

see Pa.R.A.P. 2119(f).

     Here, Tavarez filed a timely notice of appeal, preserved his claim in a

timely post-sentence motion, and included in his brief a concise statement of

reasons for allowance of appeal under Rule 2119(f).            We must now

determine whether he has raised a substantial question that his sentence is

inappropriate under the Sentencing Code.

     In his Rule 2119(f) statement, Tavarez asserts that the trial court

abused its discretion in applying the deadly weapon “used” enhancement to

the burglary conviction.   It is well settled that “[a] substantial question is

raised where an appellant alleges his sentence is excessive due to the

sentencing court’s error in applying the deadly weapon enhancement.”

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa.Super. 2008); see

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

banc) (“[A] challenge to the application of the deadly weapon enhancement

implicates the discretionary aspects of sentencing.”).     Therefore, we will

review the merits of Tavarez’s claim.

     Tavarez asserts that that trial court abused its discretion in applying

the deadly weapon “used” enhancement rather than the deadly weapon

“possessed” enhancement to his burglary conviction. For burglary as a first-

degree misdemeanor, Tavarez’s prior record score was 2 and the offense


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J-S37022-17


gravity score was 9. See N.T., 10/7/16, at 8. Had the trial court applied

the deadly weapon “possessed” (rather than “used”) enhancement, the

standard guideline range for this conviction would have been 33 to 45

months rather than 42 to 54 months.2 Tavarez does not challenge the trial

court’s application of the deadly weapon “used” enhancement to his

remaining convictions.

       At the plea proceeding, Tavarez admitted that he possessed a firearm

during the entire criminal episode and that he used a firearm to threaten the

victims in the course of the robbery. Tavarez contends, however, that the

record does not support the trial court’s conclusion that Tavarez used a

deadly weapon in the commission of the burglary because the victims were

upstairs at the time of his unlawful entry into the residence. We agree.

       The deadly weapon enhancement provisions of the                         Sentencing

Guidelines provide that an enhancement “shall apply to each conviction

offense for which a deadly weapon is possessed or used.”                  204 Pa. Code

§   303.10(a)(4).        The   trial   court     may    not   disregard   an    applicable

enhancement       when     determining         the   appropriate   sentencing     ranges.

Commonwealth v. Cornish, 589 A.2d 718, 720 (Pa.Super. 1991).

Further, “[i]t is imperative that the sentencing court determine the correct

starting point in the [G]uidelines before imposing sentence.”                   Id.; see

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       As discussed above, the trial court sentenced Tavarez to 48 to 96
       2

months’ incarceration for burglary, consecutive to the 66- to 132-month
sentence imposed for robbery.


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J-S37022-17


Commonwealth v. Diamond, 945 A.2d 252, 259 (Pa.Super. 2008) (“[T]he

sentencing court must correctly apply the [S]entencing [G]uidelines to reach

the correct point of departure, before exercising its discretion to depart from

the [G]uidelines in any particular case.    These rules apply to the deadly

weapons enhancement.”) Thus, if “the trial court erroneously calculates the

starting point under the [G]uidelines,” we will vacate the judgment of

sentence and remand for resentencing.      Commonwealth v. Scullin, 607

A.2d 750, 754 (Pa.Super. 1992).

      Here, the trial court applied the enhancement for “use” of a deadly

weapon to the burglary conviction. The “used” enhancement provides:
         (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) (emphasis added). Thus, to establish use of a

deadly weapon under this provision, the record must show that the

defendant used the weapon to threaten or injure the victim while committing

the particular offense. See, e.g., Commonwealth v. Shull, 148 A.3d 820,

832 (Pa.Super. 2016) (concluding that defendant’s “mere possession of a


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J-S37022-17


gun transcended to his use of the gun” when he removed gun from under his

clothing and pointed it at victim’s face during attempted robbery);

Commonwealth v. Chapman, 528 A.2d 990, 991-92 (Pa.Super. 1987)

(holding trial court properly applied deadly weapon “used” enhancement

where defendant held straight razor in plain view while robbing victim,

despite claiming he never employed razor as explicit threat).

       Tavarez contends that the trial court should have applied the deadly

weapon “possessed” enhancement, rather than the “used” enhancement, to

his burglary conviction. The “possessed” enhancement provides:

           (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) (emphasis added).3
____________________________________________


       At sentencing, Tavarez’s counsel did not object to the application of
       3

the deadly weapon enhancement, but requested that the trial court apply
the “possessed” enhancement rather than the “used” enhancement to the
burglary conviction. See N.T., 10/7/16, at 12-13.


                                           -7-
J-S37022-17


     The   trial   court   explained   its   reasons   for   applying   the   “used”

enhancement to the burglary conviction as follows:
        Because the use of weapons occurred during robbery, ipso
        facto it must occur during the burglary. We have found no
        precedent to suggest that a burglary ends immediately
        after the breaking and entering premises.            Instead,
        common sense dictates that a burglary continues until, at
        least, the perpetrator leaves the premises; an additional
        crime committed during this time is not a superseding
        intervening cause. Therefore, any acts committed during
        this time are considered to still be in the commission of the
        burglary.

           In the instant matter, [Tavarez] made a threat with a
        deadly weapon during the robbery. By necessity, this
        threat with a deadly weapon was also occurring during the
        burglary, since [Tavarez] was still in the midst of the
        burglary during the robbery.

1925(a) Op. at 6 (unpaginated). We conclude that the trial court erred.

     Tavarez pled guilty to the offense of burglary set forth in section

3502(a)(1)(ii) of the Crimes Code, which states:
        A person commits the offense of burglary if, with the intent
        to commit a crime therein, the person . . . enters a
        building or occupied structure, or separately secured or
        occupied portion thereof that is adapted for overnight
        accommodations in which at the time of the offense any
        person is present.

18 Pa.C.S. § 3502(a)(1)(ii).     Our Supreme Court has explained that the

offense of burglary is complete at the moment of entry into an occupied

structure with the intent to commit a crime therein:
           The crime of wi[l]fully and maliciously breaking and
        entering any building with intent to commit any felony
        ther[e]in is completed when the felon breaks into the
        building either actually, or constructively by fraud,
        conspiracy or threats, with the intent above named.
        Consummation or execution of the intent to steal or

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J-S37022-17


         to commit some other felony is not necessary to
         complete the crime of burglary . . . . Whatever felony
         is committed in the building broken into is separate and
         distinct from the offense of breaking and entering into that
         building.

Commonwealth ex rel. Moszczynski v. Ashe, 21 A.2d 920, 921-22 (Pa.

1941) (emphases added); see also Commonwealth v. Wiltrout, 457 A.2d

520, 524 (Pa.Super. 1983) (“Burglary is committed when a person enters a

building without authority with the specific intent to commit a crime

therein.”).

      While the facts and the case law make clear that Tavarez satisfied the

elements of burglary before he “used” a weapon, the trial court nevertheless

concluded that for the purpose of the sentencing enhancement:           (1) “a

burglary continues until, at least, the perpetrator leaves the premises,” and

(2) because “[Tavarez] made a threat with a deadly weapon during the

robbery, . . . this threat with a deadly weapon was also occurring during the

burglary, since [Tavarez] was still in the midst of the burglary during the

robbery.”     1925(a) Op. at 6.   The Commonwealth likewise argues that

“[g]iven that the robbery was the object crime of the burglary, and the

robbery was to take place using firearms to threaten the occupants of the

home, it follows logically that the burglary also necessarily involved the use

of firearms to threaten violence.” Cmwlth.’s Br. at 10. We disagree.

      We conclude that the record did not establish Tavarez’s “use” of a

firearm during the commission of the burglary under 204 Pa. Code

§ 303.10(a)(2).    As discussed above, the burglary was complete at the

moment Tavarez unlawfully entered the residence with the intent to commit
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the crime of robbery therein.         The facts placed on the record at the plea

proceeding, as well as those outlined in the affidavit of probable cause,

established only that Tavarez possessed a firearm when he entered the

residence; there was no showing that he used the firearm to gain entry into

the residence or to threaten the victims while entering the residence.

Tavarez did not encounter the victims until he and his co-conspirators went

upstairs to rob them.        See Aff. of Prob. Cause, 12/23/15, at 1-4.      Thus,

while Tavarez plainly used a firearm during the commission of the robbery,

and properly received a “use” enhancement for that offense, the record does

not support a finding that he employed the firearm “in a way that threatened

or injured” the victims “during the commission of the [burglary].” 204

Pa. Code § 303.10(a)(2) (emphasis added). Accordingly, we conclude that

the trial court abused its discretion in applying the deadly weapon “used”

enhancement rather than the “possessed” enhancement to Tavarez’s

burglary conviction.

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.4




____________________________________________


       4  In light of our disposition, we need not address Tavarez’s two
remaining issues. We note, however, that in its opinion, the trial court
acknowledged that it applied an incorrect offense gravity score to Tavarez’s
conviction for impersonating a public servant. See 1925(a) Op. at 3 n.7
(unpaginated).


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J-S37022-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2017




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