J-S63018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

JASON B. OLSEN

                            Appellant              No. 1861 WDA 2016


       Appeal from the Judgment of Sentence Dated October 24, 2016
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0000424-2016

BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SOLANO, J.:                      FILED DECEMBER 21, 2017

       Appellant Jason B. Olsen appeals from the judgment of sentence

imposed after he was convicted by a jury of recklessly endangering another

person (“REAP”), simple assault, and possessing an instrument of crime

(“PIC”).1 We affirm.

       The facts of this case are derived mainly from the testimony of James

Beerbower, who the trial court described as “the primary witness for the

Commonwealth.” Trial Ct. Op. at 2. Beerbower “was driving in the City of

Erie near 10th Street in front of the local YMCA,” when “he was cut off by a
____________________________________________
1
  18 Pa.C.S. §§ 2705, 2701(a)(3), and 907(a), respectively. These charges
were counts two, three, and six in Appellant’s criminal information,
respectively. Appellant was also found not guilty of count one, terroristic
threats with intent to terrorize another, 18 Pa.C.S. § 2706, and count seven,
driving without a license, 75 Pa.C.S. § 1501(a). Count four, disorderly
conduct – creating a hazardous or physically offensive condition, 18 Pa.C.S.
§ 5503(a)(4), and count five, harassment – course of conduct with no
legitimate purpose, 18 Pa.C.S. § 2709(a)(3), were dismissed.
J-S63018-17


vehicle which was weaving back and forth between driving and parking

lanes.”   Trial Ct. Op. at 2 (citing N.T., 9/16/16, at 13).       “Beerbower

described the vehicle as a BMW.       Beerbower identified Appellant as the

driver of the vehicle. After both vehicles had turned and the two vehicles

were next to each other on French Street, Beerbower rolled down his

window and told the Appellant ‘hey, you almost killed us.’” Id. at 2-3 (citing

N.T., 9/16/16, at 13, 15, 17, 27).

      According to Beerbower, Appellant “then . . . started getting mouthy

and saying stuff.” N.T., 9/16/16, at 13; see also id. at 14 (Appellant “gets

mouthy”).   Appellant “started yelling.”   Id. at 15.   When Beerbower said,

“Watch how you drive,” Appellant responded, “Well, I don’t know what

you’re talking about[.]” Id. Beerbower testified that Appellant then “put up

his gun” and “pulled up the gun.” Id. at 15. Beerbower described the gun

as a “blackish/silver” handgun. Id. at 16. When asked what direction the

gun was pointed, Beerbower responded, “Right at me.” Id.; see id. at 29.

As a result, Beerbower said he was both mad and scared.        Id. at 16-17.

Beerbower proceeded to follow the Appellant for several blocks while calling

911 and attempting to read the car’s license plate number. Trial Ct. Op. at 3

(citing N.T., 9/16/16, at 17-20). The “number given by Beerbower was JMB-

3034[.]” Id.

      The trial court said Beerbower’s testimony was corroborated by the

police officers who testified and by tapes of 911 calls that were made by



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both Beerbower and Appellant at the time of the incident. Trial Ct. Op. at 3.

According to the trial court:

      Officer Shawn McGill testified that upon approaching Appellant at
      the location Appellant called 911 from, he found a loaded silver
      and black handgun in Appellant’s waistband . . . , which notably
      was loaded.

      Officer Arthur Roades testified that he came upon a darker blue
      BMW vehicle with the license plate number JMD-3034. . . .
      Appellant told Officer Roades that he was not a driver of the
      vehicle but was sitting in the driver’s side while parked waiting
      for his boss to return when the events transpired.

      The 911 calls of Beerbower and Appellant were played for the
      jury.

Id. (citing N.T., 9/16/16, at 44-47, 54-55, 59-60, 69).

      During the jury charge, the trial court instructed the jury on the

elements of simple assault as follows:

      The first is that the defendant attempted to put Mr. Beerbower in
      fear of imminent serious bodily injury.

      Now, fear of imminent serious bodily injury means fear of an
      impairment of physical condition that would create a substantial
      risk of death or could cause serious, permanent disfigurement or
      protracted loss or impairment of the function of any bodily
      organ. So that’s the first element, whether he attempted to put
      Mr. Beerbower in fear of imminent serious bodily injury.

      Now, the other element is the attempt to put the person in fear.
      . . . The act is the defendant had a firearm and intended to put
      the victim in fear of imminent serious bodily injury, and that can
      be a substantial step, and no other steps would have to be taken
      before the crime could actually be carried out.

      So again, part of the first element is whether the defendant
      attempted, which means he took a substantial step toward
      putting Mr. Beerbower in fear of imminent serious bodily injury.



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      The second element is he did the step by use of physical
      menace, meaning that he must have done something, some
      physical act that was menacing or threatening.

      Third, that his conduct was such that it was his conscious object
      or purpose to cause fear of imminent serious bodily injury.

      So to review that, the three elements are whether the defendant
      attempted to put Mr. Beerbower in fear of imminent serious
      bodily injury. Whether he did so by use of physical menace, and
      whether his conduct was intentional.

N.T., 9/16/16, at 95-97.

      The trial court also instructed the jury on the elements of PIC as

follows:

      There are these elements: Whether he possessed, and in this
      case, the Commonwealth is alleging the gun, essentially whether
      the gun is an instrument of crime.

      And he possessed it with the intent to employ it criminally, that
      is with an attempt to commit a crime with it. . . .

      So to summarize, for possessing instrument of crime, it’s a
      question of whether the defendant possessed an item, in this
      case a gun. Secondly, whether the gun is an instrument of
      crime. And third, whether he possessed the item with the intent
      to employ it criminally, that is with the intent to attempt to
      commit a crime with it.

N.T., 9/16/16, at 98-99.

      During a sidebar conference, Appellant requested a self-defense

instruction, which the trial court denied. Trial Ct. Op. at 4 n.2 (citing N.T.,

9/16/16, at 104-05).

      After his conviction on September 16, 2016, Appellant “was sentenced

on October 24, 2016 to 6 to 23.5 months at the Erie County Prison [for

REAP] with a probation period of 36 months consecutive to his incarceration

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[for PIC].”    Trial Ct. Op. at 1.      He received no further penalty for simple

assault.     The sentencing guideline forms were included in the certified

record. According to the form for REAP, Appellant received an enhancement

of his sentence for “HandGun/Pistol/Revolver Used.”2

         On November 3, 2016, Appellant filed Post-Sentence Motions in which

he asked for entry of a judgment of acquittal, a new trial, or amendment or

modification of his sentence. Trial Ct. Op. at 1. With respect to modification

of his sentence, Appellant argued that “the designation of sentencing

guidelines under Deadly Weapon Used and/or Deadly Weapon Possessed do

not count as the jury did not make a distinct finding that [Appellant] used

and/or possessed a deadly weapon as promulgated by Apprendi v. New

Jersey, 530 U.S. 466 (2000).”            Post Sentencing Motion(s), 11/3/16, at 9

¶ 39. The trial court denied the motions, and Appellant timely appealed. 3

         Appellant now raises the following issues on appeal, as stated in his

brief:

         A.    Whether the verdict of the jury goes against the sufficiency
         of the evidence because (a) . . . the Commonwealth cannot meet
         the “beyond a reasonable doubt” burden of proof for the
         crime(s) of [REAP] (Count Two), of Simple Assault (Count
____________________________________________
2
  There is no indication in either the notes of testimony from the sentencing
hearing or the written sentencing order that the trial court employed the
deadly weapon enhancement. Nevertheless, the trial court does not dispute
that it considered the deadly weapon enhancement in fashioning Appellant’s
sentence. Trial Ct. Op. at 5-6.
3
  The thirtieth day after Appellant’s post-sentence motions were denied was
Sunday, December 4, 2016. See Pa.R.A.P. 903(a). Monday, December 5,
2016, was the first business day thereafter, and Appellant’s notice of appeal
thus was timely. See 1 Pa.C.S. § 1908.

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       Three), and [PIC] (Count Six) and/or (b) the evidence does not
       substantiate the findings of “guilty” by the jury on the
       aforementioned criminal charges.

       B.     Whether the trial court erred when it determined that a
       “self-defense” instruction was unnecessary based on the facts
       and circumstances for this case.

       C.    Whether the trial court erred at time of sentencing when
       the trial court used “weapons enhancement” guidelines when
       sentencing Appellant for the [REAP] (Count Two) charge and for
       the Simple Assault (Count Three) charge.[4]

Appellant’s Brief at 3 (suggested answers omitted).5

                                      Sufficiency
                                       (Issue A)

       Appellant first “avers and believes that the trial court erred when the

jury convicted him for the charges of [REAP] (Count Two), Simple Assault

(Count Three) and [PIC] (Count Six).” Appellant’s Brief at 7.

       A claim challenging the sufficiency of the evidence is a question
       of law. Evidence will be deemed sufficient to support the verdict
       when it establishes each material element of the crime charged
       and the commission thereof by the accused, beyond a
       reasonable doubt. . . . When reviewing a sufficiency claim the
       court is required to view the evidence in the light most favorable
       to the verdict winner giving the prosecution the benefit of all
       reasonable inferences to be drawn from the evidence.

Commonwealth v. Sullivan, 820 A.2d 795, 805 (Pa. Super.) (citation

omitted), appeal denied, 833 A.2d 143 (Pa. 2003). As a reviewing court,

we may not weigh the evidence or substitute our judgment for that of the
____________________________________________
4
 We note that Appellant received no penalty for simple assault.             N.T.,
10/24/16, at 11.
5
 On July 11, 2017, the Commonwealth filed an application to this Court for
an extension of time to file its brief. Later that same day, this Court granted
an extension until August 16, 2017. The Commonwealth never filed a brief.

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fact-finder, who is free to believe all, part, or none of the evidence.

Commonwealth v. Haughwout, 837 A.2d 480, 484 (Pa. Super. 2003).

      The trial court’s opinion did not address the sufficiency of the evidence

for each of the charges individually.      Instead, it consolidated its analysis,

stating that:   the jury, as fact-finder, found the Commonwealth’s primary

witness,   Beerbower,      to   be   credible;    Beerbower’s   testimony        was

“corroborated by the police officers who testified”; Officer McGill’s testimony

corroborated Beerbower’s “observation of Appellant with a silver and black

handgun”; the license plate number given by Beerbower and the plate

number of Appellant’s BMW were “only one letter off”; Beerbower’s and

Appellant’s 911 calls were played for the jury, meaning that “the jury heard

their contemporaneous statements and could square those statements with

the trial evidence and their common sense”; “[b]ased on Beerbower’s

testimony and the corroboration thereof, there [was] sufficient evidence for

each element of the crimes beyond a reasonable doubt.” Trial Ct. Op. at 2-

3. We will address Appellant’s specific challenges to the sufficiency of the

evidence for each charge individually.

                                 Simple Assault

      Appellant was convicted of simple assault pursuant to 18 Pa.C.S.

§ 2701(a)(3):    “Except   as   provided   under    section   2702   (relating    to

aggravated assault), a person is guilty of assault if he attempts by physical

menace to put another in fear of imminent serious bodily injury[.]”

Appellant argues that he “did not act in any ‘menacing’ or dangerous manner

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with the . . . firearm. Mr. Beerbower testified that he saw the firearm for a

couple of seconds (at the longest).” Appellant’s Brief at 10-11. Appellant

continues that “Mr. Beerbower [did] not testify that during the pursuit that

Appellant ever threatened him, pointed the firearm at him, and/or fired the

firearm at him[.]” Id. at 11.

      A defendant need not point or shoot a firearm in order to be found

guilty of simple assault by physical menace. In Commonwealth v. Little,

614 A.2d 1146, 1148 (Pa. Super.), appeal denied, 618 A.2d 399 (Pa.

1992), this Court affirmed a conviction for simple assault by physical

menace where the appellant simply emerged from her home shouting and

carrying a shotgun “‘in the cradle,’ or in one arm, visible to onlookers,” even

though she “never pointed the gun” or “verbally threatened to shoot”

anyone.   Id. at 1148 n.2 & 1154.      This Court found that the appellant’s

“actions certainly constituted an implied threat, which was every bit as

menacing and frightening” to the victims as a verbal threat, and that “her

overall demeanor and actions were designed to, and did in fact, put the

[victims] in fear of imminent serious bodily injury.” Id. at 1148 n.2 & 1154-

55.

      In the current action, Appellant similarly displayed a firearm and yelled

at Beerbower.    N.T., 9/16/16, at 13-15.    In addition, however, Appellant

pointed the firearm “[r]ight at” Beerbower.     Id. at 16.   Here, even more

than in Little, Appellant’s actions were threatening, menacing, and

frightening. They “were designed to, and did in fact, put [Beerbower] in fear

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of imminent serious bodily injury.”     See Little, 614 A.2d at 1148 n.2 &

1154-55; see also N.T., 9/16/16, at 17 (Beerbower’s description of himself

as “scared” – i.e., in fear).   Accordingly, we find that the evidence clearly

supports the jury’s verdict that Appellant was guilty of simple assault.

                                     REAP

      Appellant was convicted of REAP pursuant to 18 Pa.C.S. § 2705: “A

person commits a misdemeanor of the second degree if he recklessly

engages in conduct which places or may place another person in danger of

death or serious bodily injury.”

      Our law defines “serious bodily injury” as “bodily injury which
      creates a substantial risk of death or which causes serious,
      permanent disfigurement or protracted loss or impairment of the
      function of any bodily member or organ.”              To sustain a
      conviction under section 2705, the Commonwealth must prove
      that the defendant had an actual present ability to inflict harm
      and not merely the apparent ability to do so. Danger, not
      merely the apprehension of danger, must be created. The mens
      rea for recklessly endangering another person is “a conscious
      disregard of a known risk of death or great bodily harm to
      another person.”        Brandishing a loaded firearm during the
      commission of a crime provides a sufficient basis on which a
      factfinder may conclude that a defendant proceeded with
      conscious disregard for the safety of others, and that he had the
      present ability to inflict great bodily harm or death.

Commonwealth v. Hopkins, 747 A.2d 910, 915-16 (Pa. Super. 2000)

(citations omitted).

      Appellant contends that he “did not act in any ‘reckless’ or dangerous

manner with the . . . firearm.”     Appellant’s Brief at 8.   He observes that

“Beerbower never said that Appellant verbally threatened to shoot or to kill

him, never stated that the Appellant waved the firearm in his direction in a

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menacing manner, never stated that the Appellant fired the firearm in his

direction or otherwise.”        Id.   In fact, however, Beerbower specifically

testified that Appellant pointed the gun at him and that he was scared as a

result.   N.T., 9/16/16, at 16-17.     We must view the evidence in the light

most favorable to the Commonwealth, as verdict-winner, see Sullivan, 820

A.2d at 805, and thus conclude that aiming a loaded firearm at Beerbower,

under these facts, was a reckless act that showed a conscious disregard of a

known risk of serious bodily injury. See Hopkins, 747 A.2d at 915-16.

                                           PIC

      Under the heading “Argument Regarding Possession of Instruments of

Crime (Count Six),” Appellant contends that he “did not act in any ‘reckless’

or dangerous manner” with the firearm. Appellant’s Brief at 14. Appellant

was   convicted   under    18    Pa.C.S.    § 907(a):   “A   person   commits   a

misdemeanor of the first degree if he possesses any instrument of crime

with intent to employ it criminally.” The statutory language does not require

that a defendant use the instrument of crime in a “reckless” or “dangerous”

manner. See id. Thus, whether or not Appellant “act[ed] in any ‘reckless’

or dangerous manner” while in possession of the firearm is irrelevant, see

Appellant’s Brief at 14, and his specific challenge to the sufficiency of the

evidence for PIC is meritless.

                       Self-Defense Jury Instruction
                                 (Issue B)

      Next, Appellant argues that “the trial court erred when it determined


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that a ‘self-defense’ jury instruction was unnecessary based on the facts and

circumstances for this case.” Appellant’s Brief at 16.

       “[O]ur standard of review when considering the denial of jury

instructions is one of deference — an appellate court will reverse a court’s

decision only when it abused its discretion or committed an error of law.”

Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) (citation

omitted), aff’d, 78 A.3d 1044 (Pa. 2013).

       “Before the issue of self-defense may be submitted to a jury for

consideration, a valid claim of self-defense must be made out as a matter of

law,   and   this    determination   must   be   made    by   the   trial   judge.”

Commonwealth v. Mayfield, 585 A.2d 1069, 1070 (Pa. Super. 1991).

“[I]t clear that the charge of self-defense must be given upon request if

there is evidence presented, from any source, that the defendant acted in

self-defense.”      Commonwealth v. Gonzales, 483 A.2d 902, 903 (Pa.

Super. 1984). “It is clear that if there is evidence from any source that a

defendant acted in self-defense, that the defendant . . . is entitled to a

charge that the burden is upon the Commonwealth to prove beyond a

reasonable doubt that the defendant was not acting in self-defense.”

Commonwealth v. Rittle, 428 A.2d 168, 168 (Pa. Super. 1981). “A faulty

jury charge will require the grant of a new trial only where the charge

permitted a finding of guilt without requiring the Commonwealth to establish

the critical elements of the crimes charged beyond a reasonable doubt.”



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Commonwealth v. Wayne, 720 A.2d 456, 465 (Pa. 1998), cert. denied,

528 U.S. 834 (1999).

      A claim of self-defense is available only pursuant to Section 505(a) of

the Crimes Code:          “The use of force upon or toward another person is

justifiable when the actor believes that such force is immediately necessary

for the purpose of protecting himself against the use of unlawful force by

such other person on the present occasion.” 18 Pa.C.S. § 505(a).

      Appellant maintains that the evidence “proves that [his] actions were

justified   under   the    circumstances,”   because   Beerbower,   rather   than

Appellant, provoked the situation. Appellant’s Brief at 16. Appellant claims

he then believed he was in imminent danger that required him to use force,

and he did not violate any duty to retreat. Id. He argues:

      [T]he jury heard the Appellant’s version of events through two
      (2) mediums: 1) through the statements of Officer Roades as
      Appellant provided a statement about the aforementioned series
      of events; and 2) through the Appellant’s 911 call to Dispatch as
      Appellant felt threatened by Mr. Beerbower’s actions.

             ...

      Mr. Beerbower initiated the conduct by shouting at Appellant as
      soon as their respective motor vehicles were next to one another
      at the traffic light[.] . . . [Appellant]’s reaction [was] to either
      point and/or pull the firearm back for a period of mere seconds
      . . . [and then] to call 911 for assistance[.] . . . [N]ot only does
      Appellant not point and/or pull the firearm back for a period of
      mere seconds[,] the Appellant leaves the area to get away from
      Mr. Beerbower and his motor vehicle (i.e., even during the next
      four (4) and a half (1/2) minutes as Mr. Beerbower pursues
      Appellant and shouts threatening statements to Appellant[)].

Id. at 16-17.


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      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable William R.

Cunningham, we conclude that Appellant’s second issue merits no relief. We

agree with the trial court’s analysis, as follows:

      Appellant provoked the difficulty when he drove recklessly,
      endangering others including Mr. Beerbower.            Appellant
      escalated the situation when he pulled a gun when the
      circumstances did not warrant such action. Appellant had no
      reason to believe he was in imminent danger of [unlawful force]
      when someone was simply yelling at him from a window in the
      next lane over. The Appellant could have easily avoided any
      danger by simply driving away rather than pulling his weapon.

      Separately, it must be noted that Appellant’s request for a
      justification instruction was inconsistent with his statement to
      Officer Roades that he was not driving the vehicle, instead was
      simply in the vehicle while it was parked waiting for his boss.
      This statement does not even create any inference of
      justification since there were no acts of self-defense by
      Appellant.

Trial Ct. Op. at 4-5; see also N.T., 9/16/16, at 13-15, 17, 27, 59-60

(testimony of Beerbower and Officer Roades).         In sum, a claim of self-

defense was not available to Appellant because he failed to establish that he

“believe[d] that such forced was immediately necessary for the purpose

of protecting himself against the use of unlawful force by such other

person,” 18 Pa. C.S. § 505(a) (emphasis added). See Trial Ct. Op. at 4-5;

N.T., 9/16/16, at 13-15, 17, 27, 59-60.

      Accordingly, we hold that the trial court did not abuse its discretion nor

commit an error of law when it denied Appellant’s request for a “self-

defense” jury instruction. See Baker, 24 A.3d at 1022.


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                                      Sentencing
                                       (Issue C)

       Finally, Appellant insists that “the trial court erred at time of

sentencing when the trial court used ‘weapons enhancement’ guidelines

when sentencing Appellant for [REAP] and for the Simple Assault (Count

Three) charge.” Appellant’s Brief at 18.6 He argues:

       Appellant avers and believes that the designation of sentencing
       guidelines under Deadly Weapon Used and/or Deadly Weapon
       Possessed do not count as the jury did not make a distinct
       finding that Appellant either used and/or possessed a deadly
       weapon as promulgated by Apprendi v. New Jersey, 530 U.S.
       466 (2000) and/or its progeny as adopted and/or ruled upon the
       Supreme Court of Pennsylvania.

       . . . [T]he jury did not make a specific finding “beyond a
       reasonable doubt” that Appellant either used and/or possessed a
       firearm and in fact found Appellant “not guilty” of Terroristic
       Threats and the trial court dismissed two other counts which
       included   allegations  with   the    aforementioned    set  of
       circumstances and with the aforementioned firearm, which was
       based on the same set of circumstances as the [REAP] and/or
       Simple Assault charges.

       . . . [T]he standard range guidelines for the [REAP] (M2) and
       Simple Assault (M2) charges were “6 or 7” based on the Deadly
       Weapon Used enhancement and the standard range guidelines
       for the [PIC] (M1) charge was “RS to 3.” But for the Weapons
       Enhancement[,] . . . the sentencing guidel[ine]s would have
       been of “RS to RS” or “RS to 1” or “RS to 2” instead of “6 or 7.”

       The sentencing guidelines impact how a trial court sentences any
       defendant, including Appellant, and a set of guidelines that
       recommends incarceration as “6 or 7” will lead to a period of
       incarceration even for a set of circumstances such as Appellant’s
       where a few seconds of time (as described above) may lead to
       incarceration even though no one was afraid or hurt or injured or

____________________________________________
6
  Appellant’s argument overlooks that the court did not impose any sentence
for his simple assault conviction.

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     scared (i.e., Mr. Beerbower) and Appellant had a prior record
     score of zero “0.”
           ...
     Based on the above, Appellant avers and believes that this
     Honorable Court should grant re-sentenc[ing] under sentencing
     guidelines that do not utilize the Deadly Weapon Used and/or
     Deadly Weapon Possessed language as the jury, the finder of
     fact in the instant case, did not make that particular factual
     finding.

Id. at 18-19.

     “This Court has held that a challenge to the application of the deadly

weapon enhancement implicates the discretionary aspects of sentencing.”

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

banc), appeal denied, 20 A.3d 485 (Pa. 2011).              Appellant must pass a

four-part test when invoking this Court’s jurisdiction to challenge the

discretionary aspects of a sentence:

     (1) whether appellant has filed a timely notice of appeal; (2)
     whether the issue was properly preserved at sentencing or in a
     motion to reconsider and modify sentence; (3) whether
     appellant’s brief has a fatal defect [under Pa.R.A.P. 2119(f)];
     and (4) whether there is a substantial question that the sentence
     appealed from is not appropriate under the Sentencing Code.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-66 (Pa. Super.) (en

banc) (citation omitted) (alteration in original), appeal denied, 104 A.3d 1

(Pa. 2014).     To avoid a “fatal defect,” an appellant’s brief must include a

separate concise statement demonstrating that there is a substantial

question   regarding    the   appropriateness   of   the    sentence   under   the

Sentencing Code.      Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa.

2002) (citing Pa.R.A.P. 2119(f)). This Court has found that the application


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of the deadly weapon enhancement (“DWE”) presents a substantial question

for review.    See Buterbaugh, 91 A.3d at 1266 (holding that appellant

presented a substantial question where he asserted that his vehicle was not

a deadly weapon pursuant to the DWE).

     Appellant filed a timely notice of appeal and preserved his objection

during the sentencing proceeding.     His brief includes a concise statement

pursuant to Section 2119(f) and thus does not contain a fatal defect.

Appellant’s Brief at 12.   Since he challenges the application of the DWE,

Appellant, like the defendant in Buterbaugh, has presented a substantial

question. We therefore have jurisdiction to hear his challenge.

     “When considering the merits of a discretionary aspects of sentencing

claim, we analyze the sentencing court’s decision under an abuse of

discretion standard.     In conducting this review, we are guided by the

statutory requirements of 42 Pa.C.S. § 9781(c) and (d).” Commonwealth

v. Zeigler, 112 A.3d 656, 661 (Pa. Super. 2015) (citation omitted). Those

statutes provide:

     (c) Determination on appeal.—The appellate court shall
     vacate the sentence and remand the case to the sentencing
     court with instructions if it finds:

              (1) the sentencing court purported to sentence within the
              sentencing   guidelines   but   applied  the   guidelines
              erroneously;

              (2) the sentencing court sentenced within the sentencing
              guidelines but the case involves circumstances where the
              application   of  the    guidelines   would  be   clearly
              unreasonable; or


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           (3) the sentencing court sentenced outside the sentencing
           guidelines and the sentence is unreasonable.

     In all other cases the appellate court shall affirm the sentence
     imposed by the sentencing court.

     (d) Review of record.—In reviewing the record the appellate
     court shall have regard for:

           (1) The nature and circumstances of the offense and the
           history and characteristics of the defendant.

           (2) The opportunity of the sentencing court to observe the
           defendant, including any presentence investigation.

           (3) The findings upon which the sentence was based.

           (4) The guidelines promulgated by the commission.

When a sentencing court “fails to begin its calculation of sentence from the

correct starting point” in the sentencing guidelines, “this Court will remand

for reconsideration of sentence.” Commonwealth v. Solomon, 151 A.3d

672, 676 (Pa. Super. 2016) (citation omitted), appeal denied, 168 A.3d

1265 (Pa. 2017).

     The Pennsylvania Sentencing Guidelines include two circumstances in

which the DWE applies:     “[w]hen the court determines that the offender

possessed a deadly weapon during the commission of the current

conviction offense,” 204 Pa. Code § 303.10(a)(1) (emphasis added); or

“[w]hen the court determines that the offender used a deadly weapon

during the commission of the current conviction offense,” id. § 303.10(a)(2)

(emphasis added).     Here, according to the sentencing guidelines form

included in the certified record, Appellant’s sentence for REAP included an


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enhancement       for   “HandGun/Pistol/Revolver        Used”   (emphasis   added).

Accordingly, Section 303.10(a)(2) applies. A “deadly weapon” includes any

loaded or unloaded firearm.          204 Pa. Code § 303.10(a)(2)(i).     “[F]or the

sake of applying the DWE for use under § 303.10(a)(2), the person’s actual

use   is determinative, and this use               is informed by   his intentions.”

Commonwealth v. Smith, 151 A.3d 1100, 1107 (Pa. Super. 2016),

appeal granted, 169 A.3d 1067 (Pa. 2017).7

       Appellant argues that “no one was afraid or hurt or injured or scared”

by Appellant’s use of the firearm, and, consequently, the DWE should not

have “impacted the sentence imposed the by trial court.” Appellant’s Brief

at 19. The trial court addressed this argument as follows:

       Appellant’s argument [that] the jury made no finding on a
       deadly weapon being used is contrary to the actual record.
       Appellant was found guilty of [REAP], simple assault, and [PIC]
       in this case. The jury found Appellant possessed an instrument
       with the intent to use i[t] criminally, to-wit a gun. The jury also
       found Appellant placed the victim in danger of death or serious
       bodily injury for purposes of reckless endangerment and
       intentionally attempted to put the victim in fear of imminent
       serious bodily injury by physical menace when he committed a
       simple assault. Appellant’s convictions for these three charges
       each involved a finding beyond a reasonable doubt that
       Appellant brandished a deadly weapon.

Trial Ct. Op. at 6.

       We agree with the trial court’s analysis.          Appellant used a loaded

firearm to threaten Beerbower, which fulfills the requirements for imposing a
____________________________________________
7
 Our Supreme Court has allowed an appeal in Smith to resolve whether a
deadly weapon enhancement can apply to a conviction involving a motor
vehicle accident and whether the defendant had to intend to use the
automobile as a deadly weapon. See generally 169 A.3d at 1067.

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DWE. Therefore, we discern no abuse of discretion in the trial court’s use of

the DWE under 204 Pa. Code § 303.10(a)(2)(i) when imposing sentence for

Appellant’s REAP conviction.

      Finally, the fact that the jury found that Appellant used a deadly

weapon answers Appellant’s attempt to package his sentencing argument as

a challenge under Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Alleyne v. United States, 570 U.S. 99 (2013). See Appellant’s Brief at 5,

18. Those decisions require all elements of a crime to be proven before a

jury. See Commonwealth v. Wolfe, 140 A.3d 651, 670 n.9 (Pa. 2016);

Commonwealth v. Newman, 99 A.3d 86, 91, 99 (Pa. Super. 2014) (en

banc), appeal denied, 121 A.3d 496 (Pa. 2015); Commonwealth v.

Ciccone, 152 A.3d 1004, 1006, 1008 (Pa. Super. 2016), appeal denied,

169 A.3d 564 (Pa. 2017). Neither case applies to Pennsylvania sentencing

enhancements. See Commonwealth v. Ali, 112 A.3d 1210, 1225-26 (Pa.

Super. 2015), vacated & remanded on other grounds, 149 A.3d 29 (Pa.

2016); see also Buterbaugh, 91 A.3d at 1270 n.10. But if they did, the

fact that the jury found that Appellant used a firearm would dispose of any

Alleyne/Apprendi issue.

      In conclusion, for all three claims raised on appeal, we find no abuse of

discretion or error of law by the trial court. We therefore affirm Appellant’s

judgment of sentence.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2017




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