J-S77026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

BRANDON DONALD TAYLOR

                            Appellee                 No. 626 MDA 2016


             Appeal from the Judgment of Sentence April 14, 2016
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0003587-2015


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED JANUARY 06, 2017

        Appellant, the Commonwealth of Pennsylvania (the Commonwealth),

appeals from the judgment of sentence entered against Appellee, Brandon

Donald Taylor, after he pled guilty to homicide by vehicle, aggravated

assault by vehicle, driving a vehicle at a safe speed and recklessly

endangering another person.1 On appeal, the Commonwealth challenges the

trial court’s refusal to apply the deadly weapon enhancement (DWE) to

Appellee’s sentence.         Upon review, we affirm Appellee’s judgment of

sentence.

        We briefly summarize the facts and procedural history of this case as

follows.    On September 22, 2014, Appellee accelerated on Delta Road in

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1
    75 Pa.C.S.A. §§ 3732, 3732.1, and 3361; 18 Pa.C.S.A. § 2705.



*Retired Senior Judge assigned to the Superior Court.
J-S77026-16



York County, Pennsylvania in order to pass another vehicle, despite driving

in a no-pass zone. An oncoming truck, in the opposing lane, forced Appellee

back into his lane of travel.   Appellee struck the vehicle he was trying to

pass, causing it to spin off the roadway, travel up an embankment and roll

onto its roof, before striking a utility pole. The driver of the other vehicle

struck by Appellee was pronounced dead at the scene, the front-seat

passenger sustained severe spinal injuries, and a two-year old child,

strapped in a child safety seat in the rear, was unharmed.       An accident

reconstruction expert estimated that Appellee was travelling at a speed of

between 83 and 96 mph at the time of the collision; the posted speed limit

was 45 mph. The Commonwealth charged Appellee with aggravated assault

by vehicle, homicide by vehicle, two counts of recklessly endangering

another person, and ten traffic violations.

      On February 29, 2016, Appellee entered an open guilty plea to

homicide by vehicle, aggravated assault by vehicle, driving a vehicle at a

safe speed, and recklessly endangering another person. The Commonwealth

agreed to withdraw the remaining charges.          The trial court deferred

sentencing, ordered a pre-sentence investigation report, and allowed both

parties to submit legal authority regarding sentencing prior to April 1, 2016.

Both parties complied and submitted memoranda of law regarding the




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application of the DWE under 204 Pa.Code. § 303.10.2 On April 14, 2016,

the trial court held a sentencing hearing wherein it concluded that the DWE
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2
    The DWE provides, in part:


          (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.A. § 9712)
              whether loaded or unloaded, or

              (ii) Any dangerous         weapon   (as   defined   in   18
              Pa.C.S.A. § 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.

          (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 threated or injured another
          individual:

              (i) Any firearm, (as defined by 42 Pa.C.S.A. § 9712)
              whether loaded or unloaded,

              (ii) Any dangerous         weapon   (as   defined   in   18
              Pa.C.S.A. § 913), or

(Footnote Continued Next Page)


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enhancement was inapplicable to Appellee’s sentence.           The trial court

sentenced Appellee to seven years of probation for aggravated assault by

vehicle, with concurrent terms of incarceration of one year minus a day to

two years minus two days for homicide by vehicle and six to 12 months for

recklessly endangering another person, and a fine for his summary motor

vehicle code violation. This timely appeal resulted.3

      On appeal, the Commonwealth presents the following issue for our

review:

          I.     Whether the trial court erred in failing to apply the
                 deadly weapon enhancement at sentencing?


Commonwealth’s Brief at 4 (complete capitalization omitted).

      In sum, the Commonwealth argues:

          The trial court misapplied the requirements of the DWE
          where it erroneously concluded that, because [Appellee] did
          not intend to use his automobile as a deadly weapon, the
          DWE did not apply. This is erroneous, as case and statutory
          [law] specifically hold that the intent to use a device as a
                       _______________________
(Footnote Continued)

               (iii) Any device, implement, or instrumentality
               capable of producing death or serious bodily injury.

204 Pa. Code § 303.10(a)(1)–(2).
3
   On April 18, 2016, the Commonwealth filed a notice of appeal. On April
22, 2016, the trial court ordered the Commonwealth to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Commonwealth complied timely on May 11, 2016. On May 12, 2016,
the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a), directing this
Court to “pages 13-14” from the sentencing hearing for the reasons for its
decision. See Trial Court Opinion, 5/12/2016, at 1.



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         deadly weapon is not a required predicate finding for
         application of the deadly weapon used enhancement.
         Accordingly, because the trial court misapplied the law, the
         trial court abused its discretion in failing to apply the deadly
         weapon used enhancement[.]

Id. at 12. “We analyze the sentencing court's decision under an abuse of

discretion standard.” Commonwealth v. Smith, 2016 WL 6962129, at *2

(Pa. Super. filed November 29, 2016).

      In support of its argument, the Commonwealth relies primarily upon

this Court’s 2014 en banc decision in Commonwealth v. Buterbaugh, 91

A.3d 1247 (Pa. Super. 2014) (en banc). Commonwealth’s Brief at 3, 8, 15-

18. In Buterbaugh, after an alcohol-fueled altercation in a bar, Buterbaugh

got behind the wheel of his truck while intoxicated and intentionally drove

into a group of pedestrians and killed a man. The trial court in Buterbaugh

applied the DWE to Buterbaugh’s sentence since it found that he used his

automobile as a weapon.       An en banc panel of this Court affirmed that

decision.

      Citing Buterbaugh, the Commonwealth, in Smith, argued that the

DWE applied to Smith who was driving drunk and distracted by a passenger

when he struck and permanently injured a pedestrian.          The Smith panel

clarified:

         Although our decision [to affirm the application of the DWE]
         in Buterbaugh was not expressly premised upon
         [Buterbaugh’s] intent concerning the use of his vehicle,
         [Buterbaugh’s] intent in his particular use of the truck was
         clearly considered as part of those circumstances. In
         rendering our decision, we discussed the “nefarious results”
         necessary to change an innocent object into a deadly


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       weapon. [Buterbaugh,] at 1269. We concluded that failure
       to consider the truck a deadly weapon under the
       circumstances of that case “would result in the untenable
       position that an automobile is different than a litany of other
       everyday objects, which when used with a wicked
       purpose, can cause serious bodily injury or death.” Id.
       (emphasis added). A person's use of an object is informed
       by the ends that person hopes to attain, i.e., his intent with
       regard to the use of that object. Thus, in discussing a
       person's “use” of an object, his intent for that particular use
       is necessarily included in “surrounding circumstances.”

       Contrary to the Commonwealth's assertions, this Court did
       implicitly find that [Buterbaugh] intended to use his truck as
       a deadly weapon.        Buterbaugh intentionally revved his
       engine and accelerated at maximum speed toward the
       victim. This action changed the character of his truck from a
       benign instrument to a deadly weapon since doing so
       evinced Buterbaugh's intention to use the truck as a
       weapon.

                           *         *           *

       [Whereas,] at the time of the accident, [Smith] was using
       his car as a mode of transportation. [Smith] was drunk and
       distracted at the time of the incident, thus his performance
       of this task was reckless. Nevertheless, he had no intention
       to use the automobile as a deadly weapon. In light of the
       surrounding circumstances, there is no indication that
       [Smith] actually used the car for any reason other than
       conveying himself and his passengers to York, even though
       the victim suffered permanent injuries resulting therefrom.

Smith, 2016 WL 6962129, at *5.

     In this case, the trial court determined:

       [The DWE] is not appropriate for this particular case.

       The [DWE] is to be applied when a device, implement or
       instrumentality designed as a weapon or capable of
       producing death of serious bodily injury where the [c]ourt
       determines that the offender intended to use the weapon to
       threaten or injure another individual. In this particular

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         case, it’s pretty clear that the automobile is not a firearm.
         It is not a dangerous weapon. Certainly, it could be a
         device, instrument or instrumentality used to threaten or
         injure another individual intentionally, but [] the facts of
         this case don’t support that [Appellee] intended to use the
         automobile as a weapon in order to do that, and,
         accordingly, since criminal statutes are to be strictly
         construed, [the trial court] conclude[s] again based on the
         facts of this case, that the [DWE] is not appropriate on any
         of the offenses to which [Appellee] pled.

N.T., 4/14/2016, at 13.

       We discern no abuse of discretion. The use of an object is informed by

the ends that person hopes to attain.            Smith, 2016 WL 6962129, at *5.

Here, similar to Smith, Appellee drove recklessly in attempting to pass the

victims. Nevertheless, at all material times, he operated his automobile as a

mode of transportation.        He had no intention to use the automobile as a

deadly weapon, even though one victim died and another suffered

permanent injuries resulting from the accident. Thus, we conclude the DWE

was inapplicable and there was no abuse of discretion in not applying it.4



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4
    Finally, we note that Appellant’s claim does not implicate the legality of
sentence under the United States Supreme Court’s decisions in Alleyne v.
United States, –––U.S. ––––, 133 S.Ct. 2151, (2013) and Apprendi v.
New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). See Buterbaugh, 91
A.3d at 1270, n.10 (“Alleyne and Apprendi dealt with factors that either
increased the mandatory minimum sentence or increased the prescribed
sentencing range beyond the statutory maximum, respectively. […] If the
[DWE] applies, the sentencing court is required to raise the standard
guideline range; however, the court retains the discretion to sentence
outside the guideline range. Therefore, neither of the situations addressed
in Alleyne and Apprendi are implicated.”).



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/6/2017




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