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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


 KYLE RICHARD ADAMS

                    Appellant              :     No. 1903 MDA 2018
       Appeal from the Judgment of Sentence Entered March 12, 2018
     In the Court of Common Pleas of Berks County Criminal Division at
                      No(s): CP-06-CR-0001673-2017

BEFORE: PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                  FILED: JULY 23, 2019

      Kyle Richard Adams (Adams) appeals from the judgment of sentence of

20 to 40 years' incarceration and five years of probation imposed by the Court

of Common Pleas of Berks County (trial court) following his jury trial conviction

for third-degree homicide and related crimes.           Adams challenges the

application of the deadly weapon enhancement (DWE) to his sentence and the

subject matter jurisdiction of the trial court. We affirm.

      We adopt the trial court's recitation of the facts as set forth in its
Pa.R.A.P. 1925(a) opinion.

      On December 6, 2016, in the early morning hours, Joseph White
      was at his residence with [Adams] and Skyler Kerns. Mr. White
      received a Facebook message from Paul Cook stating that Donavin
      Yenser was at the Pagoda and that Mr. Cook was going to go up
      there. Mr. White and his friends had been looking for Mr. Yenser
      because they believed that he robbed and injured a friend of theirs
      named Nick Bintliff. Mr. White testified that he and [Adams], who
      were armed at the time with a baseball bat and a jack handle, had

   Retired Senior Judge assigned to the Superior Court.
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      previously gone looking for Mr. Yenser, but that they were unable
      to find him.

      Mr. White, Mr. Kerns, and [Adams] drove to the Pagoda in
      [Adams]'s silver, Volkswagen GTI. They again took along a
      baseball bat and a jack handle. After arriving at the Pagoda, they
      met up with Mr. Cook. [Adams] was carrying the baseball bat,
      and Mr. Kerns was carrying the jack handle. Mr. Cook took the
      jack handle from Mr. Kerns and ran toward a white GMC Yukon.
      [Adams] closely followed Mr. Cook and Mr. White and Mr. Kerns
      followed shortly thereafter.

      Mr. Cook saw Mr. Yenser sitting behind the driver of the SUV. Mr.
      Cook broke the window of the vehicle by hitting it twice with the
      jack handle. As Mr. Yenser scooted over to the other side of the
      vehicle, Mr. Cook reached in and hit him in the arm with the jack
      handle. Mr. Yenser got out of the SUV, which then began to move.
      Mr. Cook pursued Mr. Yenser, who was running next to the SUV.
      At some point, Mr. Cook threw the jack handle at the rear of the
      Yukon.

      Mr. Yenser attempted to get back into the moving vehicle, but Mr.
      Cook prevented him from doing so. Mr. Cook eventually grabbed
      Mr. Yenser from behind, and they both fell over a guardrail and
      down an embankment. After they got to their feet, Mr. Cook
      punched Mr. Yenser twice, knocking him to the ground. Mr. Cook
      then kicked Mr. Yenser in the face. Mr. Yenser was lying on the
      ground with his head tilted slightly to the left when [Adams]
      approached and hit him in the back of the head with the baseball
      bat.

Trial Court Opinion, 2/11/19, at 1-2.

      Mr. Yenser died and Adams was convicted of Homicide in the third

degree, Aggravated Assault, Conspiracy (Aggravated Assault), Possession of

an Instrument of Crime, Simple Assault, and Conspiracy (Simple Assault). The

trial court imposed a sentence of 20 to 40 years' incarceration at third-degree




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homicide and five years of probation at Possession of an Instrument of Crime.'

Adams now appeals, claiming that:            the DWE sentencing procedure     is

unconstitutional under Alleyne v. United States, 570 U.S. 99 (2013);
application of the DWE is illogical as a matter of common sense; and that the

trial court lacked subject matter jurisdiction.

                                        I.
      Adams raises two challenges to his sentence, both of which concern the

application of the DWE. The starting point for sentencing is calculation of the

applicable guideline ranges. Normally, 204 Pa. Code. § 303.16(a), the Basic

Sentencing Matrix, supplies the recommended sentence based on the

offender's prior record score and the gravity score of the particular crime. The

Sentencing Code contains various enhancements including, as found by the

trial court here, the "Deadly Weapon Enhancement/Used Matrix." See 204

Pa.Code 303.17(b). For third-degree homicide, the recommended minimum

sentence is increased by 18 months where the DWE applies.2



1- Adams received a concurrent sentence of 72 to 144 months' incarceration at
Conspiracy (Aggravated Assault).

2 Calculation of the guidelines is considered a challenge to the discretionary
aspects of sentence and such challenges are not appealable as of right.
Commonwealth v. Ali, 112 A.3d 1210, 1226 (Pa. Super. 2015), vacated on
other grounds, 149 A.3d 29 (Pa. 2016) (examining identical Alleyne claim as
constituting challenge to discretionary aspects of sentencing). However, the
discrete claim that the legislative procedure involving the DWE is an
unconstitutional process is arguably a challenge to the legality of sentence,
which would be appealable as of right and is subject to de novo review. See


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      The Sentencing Code contains the following definition for use of a deadly

weapon. "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:   .   .   Any device, implement, or instrumentality capable of
producing death or serious bodily injury."      204 Pa.Code 303.10(a)(2)(iii).

Adams does not dispute that his use of the baseball bat qualifies as using a

deadly weapon. Instead, his issues attack the process by which the DWE is

applied.

                                           A.

      The trial judge determines whether the DWE applies by a preponderance

of the evidence standard. See Commonwealth v. Ellis, 700 A.2d 948, 959

(Pa. Super. 1997). And if the DWE applies, its enhanced range is mandatory

in the sense the trial judge cannot ignore its applicability.3 "The sentencing



e.g. Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa. Super. 2014)
(noting that we have viewed challenges under the Apprendi line of cases,
which includes Alleyne, as involving the legality of sentence when the
legislative process is involved). As developed in the text infra, Adams'
argument simply disagrees with Ali.

3 This point largely becomes relevant only when the trial judge imposes a
sentence below the guideline ranges and the Commonwealth appeals.

      To the extent that the application of the enhanced range is
      mandatory, the Commonwealth is correct. The trial court,
      however, maintains that the imposition of a sentence within the
      enhanced range is not mandatory because the guidelines are not
      mandatory. The trial court proposes that it retains the discretion
      to sentence outside the enhanced range, where the circumstances


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court may not disregard [enhancements] in determining the appropriate
guideline sentencing ranges." Commonwealth v. Cornish, 589 A.2d 718,

720 (Pa. Super. 1991).

        Adams argues that both aspects are constitutionally invalid in light of

Alleyne, which held that all facts which increase the mandatory minimum

sentence must be submitted to the fact -finder and proved beyond a
reasonable doubt. Adams asserts that Alleyne applies to the DWE because

(1) its application is mandatory where it applies and (2) its application is
decided by a judge beyond a reasonable doubt and was not submitted to the

jury.

        The trial court disagreed, citing and quoting Commonwealth v. Ali,
112 A.3d 1210 (Pa. Super. 2015), vacated on other grounds, 149 A.3d 29 (Pa.

2016) in rejecting that argument. Ali states, in relevant part:

        Alleyne has no application to the sentencing enhancements at
        issue in this case. The parameters of Alleyne are limited to the
        imposition of mandatory minimum sentences, i.e., where a
        legislature has prescribed a mandatory baseline sentence that a
        trial court must apply if certain conditions are met.        The
        sentencing enhancements at issue impose no such floor. Rather,
        the enhancements only direct a sentencing court to consider a
        different range of potential minimum sentences, while preserving
        a trial court's discretion to fashion an individual sentence. By their
        very character, sentencing enhancements do not share the
        attributes of a mandatory minimum sentence that the Supreme


        compel a different sentence; and the sentence which is imposed
        is subject to review only as to whether that sentence is
        reasonable. We agree.

Commonwealth v. Jones, 640 A.2d 914,917-18 (Pa. Super. 1994).
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      Court held to be elements of the offense that must be submitted
      to a jury. The enhancements do not bind a trial court to any
      particular sentencing floor, nor do they compel a trial court in any
      given case to impose a sentence higher than the court believes is
      warranted. They require only that a court consider a higher range
      of possible minimum sentences. Even then, the trial court need
      not sentence within that range; the court only must consider it.
      Thus, even though the triggering facts must be found by the judge
      and not the jury-which is one of the elements of an Apprendi or
      Alleyne analysis-the enhancements that the trial court applied
      in this case are not unconstitutional under Alleyne.

Id. at 1126 (emphasis in original).

      Against this authority, Adams argues: "But the Lower Court's opinion

and the Ali Court's holding are not really true." Adams' Brief at 12.        He

continues:

      The Lower Court indicates that the deadly weapon used
      enhancement is not mandatory, but many cases, including those
      sited [sic] by the Lower Court indicate that the sentencing
      enhancement is MANDATORY. For example, a sentencing
      court does not have the discretion to refuse to apply a deadly
      weapon enhancement. Commonwealth v. Peer, 684 A.2d 1077,
      1084 (Pa.Super. 1996). And, the DWE provision of the Sentencing
      Guidelines provides that when the court determines that the
      defendant possessed a deadly weapon during the commission of
      a criminal offense, the court MUST add at least 12 months and up
      to 24 months to the guideline sentence that would otherwise have
      been applicable. See 204 Pa.Code §§ 303.10(a); 303.17(b);
      Commonwealth v. Buterfklaugh, 91 A.3d 1247 (Pa. Super.
      2014).

      Appellant further asserts that, because the sentencing guideline
      ranges are intended to, and usually do, exert a controlling
      influence on the sentence that the court will impose, a statutorily
      mandated increase in the guidelines where a particular fact is
      alleged creates a significant risk that a defendant will receive a
      higher sentence and therefore implicates the consideration of
      Alleyne v. U.S., 133 S.Ct. 2151 (2013).

Adams' Brief at 13 (emphases and capitalization in original).

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      The above simply disagrees with Alfs analysis of Alleyne and this Court

has   no   authority to overrule another decision of this Court.          See

Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006). Moreover,

Alleyne itself rejects his premise. "Our ruling today does not mean that any

fact that influences judicial discretion must be found by a jury. We have long

recognized that broad sentencing discretion, informed by judicial factfinding,

does not violate the Sixth Amendment." Alleyne, 570 U.S. at 116. See also

United States v. Booker, 543 U.S. 220, 233 (2005) ("For when a trial judge

exercises his discretion to select a specific sentence within a defined range,

the defendant has no right to a jury determination of the facts that the judge

deems relevant.").

      The only other argument against Ali is a citation to Peugh v. United
States, 569 U.S. 530 (2013), a case decided one week prior to Alleyne.
Peugh holds only that the Ex Post Facto Clause of the United States
Constitution is violated when a sentencing judge applies sentencing guidelines

in effect at the time of sentencing instead of when the crime occurred. "A

retrospective increase in the Guidelines range applicable to a defendant
creates a sufficient risk of a higher sentence to constitute an ex post facto

violation." Id. at 544. Adams does not explain how this Ex Post Facto Clause

analysis pertains to the Sixth Amendment challenge at issue here.

      The applicability of the DWE guidelines is mandatory and it doubtlessly

creates the risk of a higher sentence. But its application is not mandatory


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as the trial judge retains the ability to depart from it. That distinction removes

the DWE from the Sixth Amendment right to a jury trial analyzed in Alleyne

and this claim fails.

                                       B.

      Adams' second challenge to the DWE is that it should not apply to
homicides.

      The Lower Court cites Commonwealth v. Brown, 609 A.2d
      1352, 1357 (Pa.Super.) which explains that the purpose of the
      deadly weapon enhancement is to deter the dangerous and
      intimidating use of deadly weapons by person in the perpetration
      of crimes and to lengthen the periods of incarceration for those
      who use such weapons. But the whole reason for deterring the
      "dangerous...use of deadly weapons" is because of one thing:
      THE DANGER. The danger that people could be seriously hurt or
      even killed. In a murder case a person is killed. Death is the
      ultimate danger. Not death by use of an instrumentality.

      To apply the Brown reasoning literally to a homicide case is
      absurd. What makes the use of a deadly weapon aggravating in
      other types of cases is the increased risk of the ultimate harm:
      death. In Murder of the Third Degree death itself is an element,
      and the offense is not one whit more serious because a deadly
      weapon was used. The hold otherwise is to hold that murders
      which make no use of a weapon are somehow less serious than
      murders which do. That is a stupid idea.

Adams' Brief at 15-16 (capitalization in original).

      This is a policy argument that does not even attempt to incorporate a

legal component.        To the extent this Court could somehow entertain a
challenge that the DWE should not apply, we note that the Legislature
specifically excluded its application to a number of crimes. "There shall be no

Deadly Weapon Enhancement for the following offenses             ". 204 Pa.Code


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§ 303.10(a)(3). Homicide is not among them. We cannot ignore the clear

statutory text simply because Adams thinks the Legislature should have added

Homicide to the list.    Having presented nothing except a complaint, this

argument affords no relief.

                                       II.
      Adams' remaining argument is that the court lacked jurisdiction to
decide this case. Adams asserts that no witness directly testified to the crime

having occurred within Berks County. The Commonwealth responds that all

courts of common pleas have subject matter jurisdiction for crimes committed

in Pennsylvania, and that Adams' argument is actually directed towards
venue.   In any event, the Commonwealth summarizes the testimony of
several eyewitnesses who inferentially established that the murder occurred

within Berks County.

      In Commonwealth v. Bethea, 828 A.2d 1066 (Pa. 2003), Bethea
committed crimes in Cumberland County but was prosecuted, "for some
reason, not openly revealed on this record," in Franklin County. Id. at 1076.

Bethea examined a claim of ineffective assistance of trial counsel for failing to

challenge venue, which this Court then framed as a failure to make a
jurisdictional challenge. Id. at 1070. Our Supreme Court explained:

      As the discussion above reveals, there remains some confusion
      regarding the concepts of venue and subject matter jurisdiction.
      The instant case presents us with another opportunity to explicate
      this confusion. The initial step in this process is to clarify
      and expressly hold that all courts of common pleas have
      statewide subject matter jurisdiction in cases arising under

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      the Crimes Code. Thus, the Franklin County Court of Common
      Pleas does possess subject matter jurisdiction in this matter.
      Therefore, the proper focus of this appeal is upon the question of
      venue. Before addressing the venue issue on the merits, we
      believe it prudent to restate the primary distinctions between
      subject matter jurisdiction and venue.

Id. at 1074 (emphasis added).

      Therefore, the trial court had subject matter jurisdiction to hear this
case and Adams' claim goes to venue, which can be waived as the defendant

must raise the issue. See Commonwealth v. Gross, 101 A.3d 28, 33 (Pa.

2014) ("[T]he Commonwealth should prove venue by a preponderance of the

evidence once the defendant properly raises the issue.") (footnote omitted).

      Finally, we note that the trial court effectively took judicial notice that

Pagoda "is a landmark in the City of Reading." Trial Court Opinion, 2/11/19,

at 6. Relatedly, Adams fails to cite a case in which subject matter jurisdiction

is examined when the Commonwealth failed to present a witness who
explicitly stated that the crime in question occurred within the territorial
bounds of the court. We fail to see why a de novo inquiry with a plenary scope

of review, as urged here by Adams, Adams' Brief at 17, would not include

acknowledgement of the fact that the murder actually occurred in Berks
County.   Pennsylvania Rule of Evidence 201 permits the trial judge to take

judicial notice of Pagoda's location:

      (a) Scope. This rule governs judicial notice of an adjudicative fact
      only, not a legislative fact.




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      (b) Kinds of Facts That May Be Judicially Noticed. The court
      may judicially notice a fact that is not subject to reasonable
      dispute because it:

            (1) is generally known within the trial court's territorial
      jurisdiction;   .   .   .   .




Pa.R.E. 201. Adjudicative facts are defined as "facts about the events, persons

and places relevant to the matter before the court," Comment, Pa.R.E. 201,

and the court may take judicial notice at any stage of the proceedings. Pa.R.E.

201(d). Adams does not claim this fact is incorrect, only that it "does not
appear in the record." Per Rule 201, this fact is of record by virtue of judicial

notice. Hence, the subject matter jurisdiction is meritless in any case.

      Judgment of sentence affirmed.

Judgment Entered.



 f---
Jseph D. Seletyn,
Prothonotary


Date: 7/23/2019
