J-S55035-14


                                   2015 PA Super 58

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

NICOLE DOLORES DEVRIES

                            Appellant                   No. 326 EDA 2014


          Appeal from the Judgment of Sentence December 20, 2013
                 In the Court of Common Pleas of Pike County
             Criminal Division at No(s): CP-52-CR-0000054-2013


BEFORE: BOWES, J., SHOGAN, J., and OTT, J.

OPINION BY OTT, J.:                                    FILED MARCH 20, 2015

       Nicole Dolores Devries appeals from the judgment of sentence entered

on December 20, 2013, in the Court of Common Pleas of Pike County.

Devries was tried by a jury and convicted on charges of escape, resisting

arrest, two counts of reckless endangerment, driving under the influence

(DUI), and possession of drug paraphernalia.1         She received an aggregate

sentence of 25–60 months’ incarceration.        Relevant to this timely appeal,

the deadly weapon enhancement was applied to her escape sentence.

Devries raises three issues; she claims the trial court erred in: (1) denying

her motion for change of venue, (2) denying her motion for acquittal on the

charge of escape, and (3) improperly applying the deadly weapon
____________________________________________


1
 18 Pa.C.S. §§ 5121(a), 5104, 2705; 75 Pa.C.S. § 3802(d)(1), and 35 P.S.
§ 780-113(a)(32), respectively.
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enhancement.    After a thorough review of the submissions by the parties,

relevant law, and the certified record, we affirm in part, vacate in part, and

remand for resentencing in accordance with this decision.

      We relate the factual history as stated in the trial court’s Pa.R.A.P.

1925(a) opinion.

      The criminal information was filed for this case on March 4, 2013
      alleging that [Devries], on November 9, 2012, unlawfully
      removed herself from official detention by fleeing from two Pike
      County Probation Officers, Jennifer Tamblyn and Jeffrey Baker,
      after she had been told numerous times that she was under
      arrest.   As testimony at trial established, the Parole and
      Probation Officers had gone to [Devries’] home in order to do a
      drug test as part of [Devries’] probation supervision.

      During this drug testing, [Devries] tested positive for some drug
      use which she maintained was a Vicodin pill she had taken for a
      toothache. After the two officers informed her that she would be
      placed under arrest and taken to jail for the violation, [Devries]
      bolted for her car outside her home and tried to flee. The
      officers followed her to her vehicle, where a brief struggle
      ensued that resulted with Officer Baker being dragged a short
      distance by the car before managing to free himself.

Trial Court Opinion, 3/27/2014, at 1-2.

      In Devries’ first issue, she argues the trial court erred in failing to

grant her motion for change of venue based on the fact the alleged victims

were employees of Pike County. “The standard of review for a denial of a

motion for change of venue is whether there has been an abuse of discretion

on the part of the trial judge.”   Commonwealth v. Johnson, 612 A.2d

1382, 1384-85 (Pa. Super. 1992) (citation omitted). Pursuant to the rules

of criminal procedure, “Venue or venire may be changed by that court when



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it is determined after hearing that a fair and impartial trial cannot otherwise

be had in the county where the case is currently pending.”        Pa.R.Crim.P.

584(A).    Further, pursuant to Rule 584(B), when a change of venue is

granted, unless otherwise ordered by our Supreme Court, a trial judge from

the original venue will preside over the trial.   This provision of the rules

reinforces the fact that a change of venue addresses a problem with the

location, while recusal addresses an issue with a specific judge or judges.

      Here, Devries’ challenge to venue was based upon the suggestion that

because the complaining witnesses were employees of the county court, the

unrealized possibility of prejudice was sufficient to warrant the change.

However, the motion for change of venue provided only vague allegations of

prejudice, noting the work relationship between the complaining witnesses

and the county court. The motion did not allege that the trial judge would

be unfair in any way and there is no indication of how or why jurors would

be unable to be fair and impartial.

      Devries cites Com. ex rel Armor v. Armor, 398 A.2d 173 (Pa. Super.

1978) to support her position.        However, that case provides no aid to

Devries.   In Armor, one of a divorced couple remarried a Montgomery

County trial judge.   The other ex-spouse filed a petition to modify child

support in Montgomery County, which had been the proper venue.                A

counter petition was filed seeking to increase child support. A panel of our

Court determined the appearance of conflict was too great, having a

Montgomery County trial judge ruling on a matter that directly affected a

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fellow Montgomery County trial judge. The problem in Armor was not with

venue, it was with the trial judges and the appearance of impropriety, not

with the Montgomery County location itself.

       Armor might be relevant to provide support for Devries had she

claimed the judges of Pike County could not be fair because the complaining

witnesses were employees of the court.              Such a claim of judicial bias was

specifically denied by Devries. The trial court quoted defense counsel at the

hearing on the motion:

       This motion is styled as a Motion to Change Venue rather than a
       request for recusal for a very specific reason. It has nothing to
       do with a conflict that I believe you or Judge Chelak have in this
       case as individuals.

Trial Court Opinion, 3/27/2014, at 5, quoting N.T. Hearing, 6/4/2013, at 2.2

       The vast majority of case law regarding change of venue addresses

the issue of pre-trial publicity. “[I]n reviewing a trial court's decision [as to

a change of venue] the only legitimate inquiry is whether any juror formed a

fixed opinion of [the defendant's] guilt or innocence as a result of pre-trial

publicity.”   Commonwealth v. Boring, 684 A.2d 561, 566 (Pa. Super.

1996) (citation omitted).        We see no reason why this line of inquiry does

not apply in the current situation.            Devries has provided no evidence that

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2
  The notes of testimony from the hearing on the Omnibus Pre-Trial Motion
were not included in the certified record. Reviewing the claim as presented
in Devries’ appellant’s brief, we do not believe review of those notes was
necessary.



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any juror formed a fixed opinion of her guilt because of the complaining

witnesses being employees of Court of Common Pleas of Pike County.

Accordingly, she is not entitled to relief on this issue.

      In her second claim, Devries argues the trial court erred in denying her

motion for acquittal because there was insufficient evidence to support her

conviction of escape in that the evidence failed to demonstrate she was

under “official detention” at the time she fled. In relevant part, the statutory

definition of escape is:

      A person commits an offense if he unlawfully removes himself
      from official detention or fails to return to official detention
      following temporary leave granted for a specific purpose or
      limited period.

18 Pa.C.S. § 5121(a).

      Additionally, relevant to our inquiry:

      A motion for judgment of acquittal challenges the sufficiency of
      the evidence to sustain a conviction on a particular charge, and
      is granted only in cases in which the Commonwealth has failed
      to carry its burden regarding that charge.

Commonwealth v. Emanuel, 86 A.3d 892, 894 (Pa. Super. 2014) (citation

omitted).

      The standard of review for claims of insufficient evidence is well-
      settled. With respect to such claims, we consider the evidence in
      the light most favorable to the Commonwealth as verdict winner.
      Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa. Super.
      2005). In that light, we decide if the evidence and all reasonable
      inferences from that evidence are sufficient to establish the
      elements of the offense beyond a reasonable doubt. Id. We keep
      in mind that it was for the trier of fact to determine the weight of
      the evidence and the credibility of witnesses. Id. The jury was
      free to believe all, part or none of the evidence. Id. This Court

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     may not weigh the evidence or substitute its judgment or that of
     the factfinder. Id.

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006).

     Official detention is defined as:

     Arrest, detention in any facility for custody of persons under
     charge of conviction of crime or alleged or found to be
     delinquent, detention for extradition or deportation, or any other
     detention for law enforcement purposes; but the phrase does not
     include supervision of probation or parole.

18 Pa.C.S. § 5121(e).

     The relevant aspect of this definition is “any other detention for law

enforcement purposes.” Here, the evidence demonstrated that Devries was

under supervision of probation. Her probation officer and a co-worker went

to Devries’ residence to conduct a routine home visit. As part of such

supervision, Devries would be required to supply a urine sample to

demonstrate she was drug free. Devries was informed if she failed her drug

test, she could be taken before a judge and her supervision might be

terminated.   See N.T. Trial, 11/7/2013, at 39.       Further, while in the

bathroom, immediately after she supplied the specimen and there was a

preliminary indication of opiate use, Devries was told “due to her violation

and testing positive that my supervisor had already predetermined if she

was to test positive, she would be arrested and taken to jail.”   Id. at 46.

Subsequent to this, Devries repeatedly asked not to be taken to jail because

she did not want to leave her daughter. Probation Officer Tamblyn testified

she repeatedly told Devries she was going to be placed under arrest or was



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under arrest. Id. at 48. Officer Tamblyn testified she did not place Devries

in handcuffs while in the residence because she did not want the daughter to

see her mother in handcuffs.        Id. at 49-50.     Finally, Officer Tamblyn told

Devries, “[L]et’s go, it’s time to go, we have to get out of here.” Id. at 50.

She allowed Devries to retrieve her wallet, but at the same time, Devries

grabbed her car keys and fled. Id. at 50-51.

      Our    review   of   the   certified   record   supports   the   trial   court’s

determination that Devries was under official detention at the time she fled.

Devries was informed of the specific consequences of a failed urine test,

specifically that she would be arrested, taken to jail, and brought before a

judge.   Devries knew, having failed the drug test, that she was in the

custody of her probation officer.      She knew she was going to jail and pled

not to be taken from her daughter.           This evidences her knowledge of the

situation.   Viewed in the light most favorable to the Commonwealth as

verdict winner, there was sufficient evidence to prove Devries was under

official detention at the time she fled. See Commonwealth v. Fountain,

811 A.2d 24 (Pa. Super. 2002) (defendant under official detention prior to

official arrest where officer told defendant not to run, and indicated she was

attempting to serve an arrest warrant).

      Devries’ final claim is that the trial court improperly applied the deadly

weapon enhancement to her conviction of escape. In relevant portion of the

escape statute quoted above, we note:




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        (1) An offense under this section is a felony of the third
        degree where:

          (ii) the actor employs force, threat, deadly weapon or
          other dangerous instrumentality to effect the escape

18 Pa.C.S. § 5121(d)(1)(ii).

     Additionally, the deadly weapon enhancement is found at 204 Pa.Code

§ 303 and states in relevant part:

      (a) Deadly Weapon Enhancement.

       (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.

       (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


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

      (3) There shall be no Deadly Weapon Enhancement for the
      following offenses:

          (ix) Any other offense for which possession of a deadly
          weapon is an element of the crime.

204 Pa.Code 303(a)(1)-(3).

      At sentencing, the Commonwealth argued that pursuant to the jury’s

verdict, Devries had employed a dangerous instrumentality to aid her

escape, not a deadly weapon.        Therefore, the Commonwealth argued, the

Deadly Weapon Enhancement was applicable to the crime and did not violate

the prohibition against double-counting sentencing factors.               Counsel for

Devries   disagreed,    claiming    the   prohibition    in   Section   303(a)(3)(ix)

controlled because possession of a deadly weapon was an element of the

crime of which Devries had been convicted. The trial court agreed with the

Commonwealth and imposed the enhancement, thereby raising the standard

range minimum sentence from 1-12 months to 13-24 months.                       The trial

court imposed a 13-month minimum sentence for escape.                   This sentence

would have represented an aggravated range sentence without the

enhancement.

      Before we conduct a statutory and regulatory analysis, we examine the

trial court’s reasoning.   Both the Commonwealth and trial court maintain

that because the jury specifically determined Devries used a dangerous

instrument,   not   a   deadly     weapon,      the   exception   found   at    section

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303(a)(3)(ix) is not applicable.    We find this position unpersuasive based

upon our review of the certified record.

      Specifically, during closing argument, the Commonwealth stated:

      …but there’s a third consideration then after you decide those
      first two elements of the crime…. [T]he third consideration is did
      she employ, let me make sure I get this right, force[,] threat,
      deadly weapon, or dangerous instrumentality to affect [her]
      escape? So, did she use one of those methods to cause her
      escape, to aid her escape?

N.T. Trial, 11/7/2013, at 104-105.

      The trial court then charged the jury, in relevant part:

      Third, if you do find the first two elements have been proven
      beyond a reasonable doubt, then you must indicate on the
      verdict form whether you find the following element has also
      been proven and that element is that the defendant employed
      force, threat, a deadly weapon or a dangerous instrumentality to
      affect the escape.

Id. at 114-115.

      Finally, in relevant part, the trial court explained the verdict form:

      Then you go to the second question and it says if you have
      marked the defendant as guilty to the above offense, please
      indicate whether you also find the defendant employed force,
      threat, a deadly weapon or other dangerous instrumentality to
      affect he escape and under that we have two choices[,] the first
      defendant did employ a dangerous instrumentality, the second
      defendant did not employ a dangerous instrumentality. You
      must place an X in one of those areas indicating what your
      decision is.

Id. at 117-118.

      The verdict slip reiterates what the trial court explained. It read:

      If you have marked the Defendant as guilty to the above
      offense, please indicate whether you also find that the Defendant

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       employed force, threat, a deadly weapon or other dangerous
       instrumentality to affect her escape.

       ___ Defendant Did Employ a Dangerous Instrumentality

       ___ Defendant Did Not Employ a Dangerous Instrumentality

Jury Verdict Form, 11/7/2013.

       The jury was not asked to differentiate between the four statutory

elements; the jurors were asked to determine if any of the four elements

applied. If the jury determined that ANY of the four elements applied, the

form was to be marked as indicated.            Because the jury was not asked or

instructed to differentiate between the statutory elements and the verdict

form did not allow for a determination of such differentiation, we cannot

agree that the jury specifically determined Devries had used a dangerous

instrumentality and not a deadly weapon. Rather, the finding as marked on

the verdict form was an acknowledgement that Devries had employed at

least one of the four required elements.

       Analysis of the relevant statutory and regulatory provisions is subject

to the Statutory Construction Act (S.C.A.), 1 Pa.C.S. § 1501 et seq.3

Relevant to our discussion:

       Because statutory interpretation is a matter of law, our standard
       of review is de novo, and our scope of review is plenary.
____________________________________________


3
 The S.C.A. also applies to Pennsylvania Code provisions. See 1 Pa.C.S. §
1502(a)(1)(ii); Keffer v. Bob Nolan’s Auto Service, Inc., 59 A.3d 621,
647 n.5 (Pa. Super. 2012); Commonwealth v. Mohamud, 15 A.3d 80, 86
n.7 (Pa. Super. 2010).



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     Commonwealth v. McClintic, 589 Pa. 465, 472, 909 A.2d
     1241, 1245 (2006). Consequently, we are not bound by the
     lower court's conclusions regarding the proper meaning of the
     applicable provisions of this statute. See Commonwealth v.
     Kyle, 582 Pa. 624, 632, 874 A.2d 12, 17 (2005) (holding that
     our Court owes no duty of deference to the legal conclusions of
     lower courts regarding an issue of statutory construction).

       Our review is further governed by the Statutory
       Construction Act, 1 Pa.C.S.A. § 1501 et seq., under which
       our paramount interpretative task is to give effect to the
       intent of our General Assembly in enacting the particular
       legislation under review. See 1 Pa.C.S.A. § 1921 (a) (“The
       object of all interpretation and construction of statutes is
       to ascertain and effectuate the intention of the General
       Assembly. Every statute shall be construed, if possible, to
       give effect to all its provisions.”); Nationwide Ins. Co. v.
       Schneider, 599 Pa. 131, 143, 960 A.2d 442, 448 (2008).
       Generally, the best indication of the General Assembly's
       intent may be found in the plain language of the statute.
       Martin v. Commonwealth, Dep’t of Transp., Bureau of
       Driver Licensing, 588 Pa. 429, 438, 905 A.2d 438, 443
       (2006). In this regard, “it is not for the courts to add, by
       interpretation, to a statute, a requirement which the
       legislature did not see fit to include.” Commonwealth v.
       Rieck Investment Corp., 419 Pa. 52, 59-60, 213 A.2d
       277, 282 (1965). Consequently, “[a]s a matter of statutory
       interpretation, although one is admonished to listen
       attentively to what a statute says[;][o]ne must also listen
       attentively to what it does not say.” Kmonk-Sullivan v.
       State Farm Mut. Auto Ins. Co., 567 Pa. 514, 525, 788
       A.2d 955, 962 (2001) (internal quotations omitted).

     Commonwealth v. Wright, 609 Pa. 22, 14 A.3d 798, 814
     (2011).

     Here, we must construe the meaning of a criminal statute. As
     such, additional principles apply to our interpretation, such as
     the statutory mandate that penal statute “shall be strictly
     construed[.]” 1 Pa.C.S. § 1928(b)(1).

       Of course, the mandate to construe penal statutes
       narrowly does not override the “general principle that the
       words of a statute must be construed according to their

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           common and approved usage,” and does not require this
           Court to give the words of a penal statute their “narrowest
           possible meaning.” Commonwealth v. Booth, 564 Pa.
           228, 766 A.2d 843, 846 (2001). The mandate “does mean,
           however, that where ambiguity exists in the language of a
           penal statute, such language should be interpreted in the
           light most favorable to the accused. More specifically,
           where doubt exists concerning the proper scope of a penal
           statute, it is the accused who should receive the benefit of
           such doubt.” Id. (internal citation omitted)[.]

      Commonwealth v. McCoy, 599 Pa. 599, 962 A.2d 1160, 1168-
      69 (2009).

Commonwealth v. Kelly, 102 A.3d 1025, 1029-30 (Pa. Super. 2014).

      The language of both 204 Pa. Code § 303(a)(3)(ix) and 18 Pa.C.S. §

1521(d)(1)(ii) is clear.   To be convicted of escape as a felony, one must

employ any of the four stated factors, including a deadly weapon.               The

possession of a deadly weapon is, therefore, an element of the crime.

Section    303(a)(3)(ix)   forbids   the   application   of   the   deadly   weapon

enhancement to any crime of which possession of a deadly weapon is an

element.     Accordingly, the deadly weapon enhancement is not instantly

applicable to escape as a felony of the third degree.          Therefore, we must

vacate the sentence and remand this matter for resentencing.

      Judgment of sentence affirmed in part, vacated in part. Remanded for

resentencing in conformance with this decision. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2015




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