J-S15013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 DONNIE JAVON SWIFT                       :
                                          :
                    Appellant             :   No. 886 WDA 2018

           Appeal from the Judgment of Sentence July 25, 2017
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                        CP-25-CR-0003235-2016


BEFORE:    GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                            FILED APRIL 24, 2019

      Appellant, Donnie Javon Swift, appeals from the aggregate judgment of

sentence of 8.5 to 17 years of confinement, which was imposed after his jury

trial convictions for: one count each of criminal conspiracy to commit burglary

– overnight accommodation and person is present, burglary – overnight

accommodation and person is present, persons not to possess firearms,

firearms not to be carried without a license, and possessing instrument of

crime with intent to employ it criminally; and two counts each of terroristic

threats with intent to terrorize another, simple assault (“SA”), and recklessly




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S15013-19


endangering another person (“REAP”).1 We affirm Appellant’s convictions, but

we vacate the judgment of sentence and remand for resentencing.

       The facts underlying this appeal are as follows.       On the morning of

July 15, 2016, eight-year-old J.T. and his sister, four-year-old H.J., were alone

in the living room of their apartment on 2nd Street in Erie, Pennsylvania, after

their mother, Ja.T. (“Mother”), had left to buy some groceries for their

breakfast, when two men – whose faces were uncovered – entered the

apartment, one of whom J.T. later identified as Appellant. N.T., 6/15/2017,

at 26-28, 33-35; N.T., 6/16/2017, at 6; see also Trial Court Opinion (“TCO”),

filed August 15, 2018, at 1-2.2                Appellant and his co-conspirator,

____________________________________________


1 18 Pa.C.S. §§ 903, 3502(a)(1), 6105(a)(1), 6106(a)(1), 907(a), 2706(a)(1),
2701(a)(3), and 2705, respectively. Appellant was charged and the jury was
instructed pursuant to the pre-2017 version of the burglary statute, 18 Pa.C.S.
§ 3502(a)(1) (effective Feb. 21, 2014 to Jan. 2, 2017) (“A person commits
the offense of burglary if, with the intent to commit a crime therein, the person
. . . enters a building or occupied structure, or separately secured or occupied
portion thereof that is adapted for overnight accommodations in which at the
time of the offense any person is present”). See Police Criminal Complaint,
8/1/2016, at 2 (Offense #2); Information, 11/28/2016, at 1 (Count Two), 3;
N.T., 6/16/2017, at 239.
2 The trial court opinion states: “When [J.T.] returned to the living room, he
found two men present in the living room, one of whom was brandishing a
gun.” TCO at 2 (emphasis added) (citing N.T., 6/15/2017, at 28). However,
pursuant to our review of the notes of testimony, there is nothing in J.T.’s trial
testimony to suggest that he had ever left the living room in order to have
“returned” to it and then to have “found two men” therein. Id. J.T. testified:

       A.     They came into our house.

       Q.     Where were you when they did that?



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Antonio McGlory, then stole a camera from the living room, N.T., 6/15/2017,

at 27-28, and “ransacked” Mother’s bedroom, taking “a cologne set” and

“other little miscellaneous things.” N.T., 6/16/2017, at 11. “When they were

finished,” Appellant pointed a “gun at the children’s heads” and “threatened

to kill them if they told anyone about what happened.” TCO at 2 (citing N.T.,

6/15/2017, at 24, 29); see also N.T., 6/15/2017, at 28, 31 (J.T. clarified that

“one” of the perpetrators “put guns to our heads”).

       Prior to trial, the trial court held a competency hearing for J.T. TCO at

12-13. At the hearing, J.T. knew his full name, how to spell his first name,

his age, his birthday, his school’s name, his grade, and his teacher’s name.

N.T., 4/6/2017, at 25-26. J.T. further testified that he knew the difference

between the truth and a lie and responded correctly to example questions

____________________________________________


       A.     The living room. . . .

       Q.   What room in the house were you and [H.J.] in when they
       came in?

       A.     The living room.

N.T., 6/15/2017, at 26-27.

Additionally, we find nothing in the notes of testimony specifying that either
perpetrator was “brandishing a gun” when they entered the apartment. TCO
at 2 (citing N.T., 6/15/2017, at 28). J.T. only mentions seeing a firearm after
the perpetrators “stole stuff[.]” N.T., 6/15/2017, at 24 (J.T. testified, “Two
guys came in our house and stole stuff and put guns to our heads and said
we’re going to kill you if you tell anyone”; when asked to repeat what he said
“as loud into the mic as you can[,]” J.T. stated, “Two men came in my house,
stole stuff and put guns to our head[s] and said they were going to kill us if
we tell anyone.”), 28 (“So, they stole stuff?”; “Yes.”; “What else did they do?”;
“Pulled – put guns to our heads.”).


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about colors. Id. at 26-27. He also stated that he understood that the truth

was better than a lie, that the truth is “[g]ood[,]” and that a lie is “[b]ad” and

“[w]rong.” Id. He knew what a “promise” is, that he had to keep a promise,

and that not keeping a promise is “[a] bad thing.” Id. at 27-28. At the end,

he promised to tell the truth. Id. at 28. Defense counsel chose not to cross-

examine J.T. Id. The trial court determined that J.T. had the mental capacity

to testify. Id.; TCO at 12-13.

       Appellant was convicted of the aforementioned crimes on June 16, 2017.

At Appellant’s sentencing hearing on July 25, 2017, the Commonwealth

presented the trial court with three different guideline sentencing forms each

for conspiracy and for burglary:               one with the deadly weapon used

enhancement (“DWE Used”), one with the deadly weapon possessed

enhancement (“DWE Possessed”),3 and one with no sentencing enhancement

listed.4

____________________________________________


3 The Pennsylvania Sentencing Guidelines include two circumstances in which
a deadly weapon enhancement 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). A “deadly weapon” includes any loaded or unloaded
firearm. Id. § 303.10(a)(1)(i), (2)(i). “The Deadly Weapon Enhancement
shall apply to each conviction offense for which a deadly weapon is possessed
or used.” Id. § 303.10(a)(4).
4Neither party argued that no deadly weapon sentencing enhancement was
applicable. See generally N.T., 7/25/2017. Accordingly, we need not



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       The guidelines for conspiracy with DWE Used were a mitigated range of

24 months, a standard range of 33 to 39 months, and an aggravated range of

48 months.       The guidelines for conspiracy with DWE Possessed were a

mitigated range of 18 months, a standard range of 27 to 33 months, and an

aggravated range of 42 months.

       The guidelines for burglary with DWE Used were a mitigated range of

42 months, a standard range of 54 to 66 months, and an aggravated range of

78 months. The guidelines for burglary with DWE Possessed were a mitigated

range of 33 months, a standard range of 45 to 57 months, and an aggravated

range of 69 months.

       Appellant contended that DWE Possessed was proper, instead of DWE

Used, “as no one was injured, and [there were] no allegations of anyone being

injured.” N.T., 7/25/2017, at 3; see also id. at 4, 7-8. The Commonwealth

“strongly disagree[d,]” arguing that DWE Used should be applied. Id. at 10-

11. The trial court agreed with the Commonwealth and applied DWE Used to

both counts. Id. at 21. The court sentenced Appellant to 33 to 66 months

for conspiracy and 54 to 108 months for burglary. Id. at 21-22.

       Also at sentencing, the Commonwealth initially “concede[d]” that SA

merged with REAP for sentencing purposes but then changed its position. Id.

at 12-13. The trial court ordered separate sentences on each count of SA and


____________________________________________


address whether the Commonwealth presented evidence that Appellant
possessed a firearm when he entered the victims’ apartment.

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REAP – 12 to 24 months for each count of SA and 9 to 18 months for each

count of REAP. Id. at 21-22.

       Appellant’s aggregate sentence on all counts was 102 to 204 months or

8.5 to 17 years. Id. at 23. The trial court also entered a written sentencing

order. Sentencing Order, 7/25/2017.

       On August 4, 2017, Appellant filed a motion for reduction of sentence,

which the trial court denied on August 10, 2017.         On October 13, 2017,

Appellant, pro se, filed a petition pursuant to the Post Conviction Relief Act

(“PCRA”).5 On November 13, 2017, the PCRA court ordered that Appellant’s

“rights to file Post-Sentence Motions and a Direct Appeal are reinstated nunc

pro tunc” and that “[a]ny post-sentence motion must be filed within ten (10)

days of the date of this order.” Order, 11/13/2017, at ¶¶ 3-4.

       After the trial court granted multiple extensions of time, Appellant filed

a post-sentence motion on February 26, 2018, which included a motion for

modification of sentence, again maintaining that the trial court should have

applied DWE Possessed, instead of DWE Used, for conspiracy and burglary,

and contending that the sentences for SA and REAP should have merged.

Post-sentence Motion, 2/26/2018, at ¶¶ 1-2. The modification motion also

noted a clerical error in the written sentencing order, compared to the

sentences imposed during the sentencing hearing. Id. at ¶ 3. Additionally,


____________________________________________


5   42 Pa.C.S. §§ 9541–9546.


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the post-sentence motion included a motion for a new trial and a motion for

judgment of acquittal. Id. at ¶¶ 4-6.

       On May 17, 2018, the trial court entered orders correcting the clerical

error in the original written sentencing order but otherwise denying the post-

sentence motion. On June 15, 2018, Appellant filed a timely notice of appeal.6

       Appellant presents the following issues for our review:

       1.   Did the Commonwealth present insufficient evidence on
       both counts of [REAP] where the Commonwealth failed to
       demonstrate that Appellant had an actual present ability to inflict
       harm?

       2.    Did the trial court commit an abuse of discretion and/or
       error of law when it determined that the minor child was
       competent to testify at trial?

       3.    Did the trial court abuse its discretion and/or err when it
       applied [DWE Used], rather than [DWE Possessed], for the
       offense[s] of conspiracy to commit burglary and burglary where
       the record revealed that the . . . elements of those offenses were
       committed prior to the use of any firearm?

       4.    Did the trial court err by imposing a separate sentence for
       the [SA] of the minors, J.T. and H.J. (Counts 8 and 9,
       respectively), where the Commonwealth appeared to concede
       th[at] those convictions merged with the convictions for [REAP] of
       the same minors (Counts 10 and 11)?

Appellant’s Brief at 11 (trial court’s answers and Appellant’s suggested

answers omitted).




____________________________________________


6Appellant filed a statement of errors complained of on appeal on July 9,
2018. The trial court entered its opinion on August 15, 2018.


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                     Challenges to Appellant’s Convictions

         Appellant first challenges the sufficiency of the evidence to establish his

convictions for REAP. Id. at 33-36.

         This Court’s standard for reviewing sufficiency of the evidence
         claims is as follows:

            We must determine whether the evidence admitted at trial,
            and all reasonable inferences drawn therefrom, when
            viewed in a light most favorable to the Commonwealth as
            verdict winner, support the conviction beyond a reasonable
            doubt. Where there is sufficient evidence to enable the trier
            of fact to find every element of the crime has been
            established beyond a reasonable doubt, the sufficiency of
            the evidence claim must fail.

            The evidence established at trial need not preclude every
            possibility of innocence and the fact-finder is free to believe
            all, part, or none of the evidence presented.

Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017) (citations

and internal brackets omitted).

         REAP “requires the creation of danger, so the Commonwealth must

prove the existence of an actual present ability to inflict harm to another.”

Commonwealth v. Shaw, 2019 PA Super 21, *5 (filed January 30, 2019).

         Appellant specifically urges us to conclude that “[t]he Commonwealth

cannot establish that Appellant recklessly placed the children in actual danger

or that Appellant had the actual present ability to inflict harm upon them,

where the Commonwealth failed to introduce any evidence that the gun was

loaded or that other circumstances created actual danger.” Appellant’s Brief

at 33.




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      The facts of the current case are analogous to those of Commonwealth

v. Rivera, 503 A.2d 11 (Pa. Super. 1985) (en banc). In both the current

matter and Rivera, the appellant broke into the victims’ home, stole from

them, and threatened them with death by shooting. Compare TCO at 1-2

with 503 A.2d at 12-13. The appellant in Rivera made an argument similar

to Appellant’s contention that, “because the evidence failed to disclose that

the gun had been loaded, the evidence was insufficient to sustain his

conviction for [REAP].” 503 A.2d at 12; compare id. with Appellant’s Brief

at 33. This Court rejected that argument, finding “[i]t was not necessary for

the Commonwealth to show by direct evidence that a projectile was in the

chamber of the gun.”     Rivera, 503 A.2d at 13.     Thus, under Rivera, the

Commonwealth did not need to establish that Appellant’s firearm was loaded

in order to prove REAP, and Appellant’s first challenge is meritless.

      Next, Appellant contends that the trial court should not have found J.T.

competent to testify, because J.T.’s testimony was contradictory. Appellant’s

Brief at 36, 41.

      “We review the trial court’s competency finding for abuse of discretion.”

Commonwealth v. Tyrrell, 177 A.3d 947, 954 (Pa. Super. 2018).

      (a) General Rule.      Every person is competent to be a witness
      except as otherwise provided by statute or in these rules.

      (b) Disqualification for Specific Defects.       A    person    is
      incompetent to testify if the court finds that because of a mental
      condition or immaturity the person:




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         (1) is, or was, at any relevant time, incapable of perceiving
         accurately;

         (2) is unable to express himself or herself so as to be
         understood either directly or through an interpreter;

         (3) has an impaired memory; or

         (4) does not sufficiently understand the duty to tell the
         truth.

Pa.R.E. 601. “[S]ince competency is the presumption, the moving party must

carry the burden of overcoming that presumption.”           Commonwealth v.

Delbridge, 855 A.2d 27, 40 (Pa. 2003).

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

applicable   law,   and   the   well-reasoned    analysis   of   the   Honorable

Daniel J. Brabender, Jr., we conclude Appellant’s second issue merits no relief.

The trial court opinion comprehensively discusses and properly disposes of

that question:

      At the competency hearing, the child witness, [J.T.], was eight
      years old at the time of the offenses and nine years old at the time
      of Appellant’s . . . trial. The Commonwealth established the
      following . . . :

         1. The child knew his first and last name, his age and date
         of birth, the name of his teacher and the school he attends
         and that he is third grade. [N.T., 4/6/2017, at 25-26.]

         2. The child testified he knew the difference between the
         truth and a lie and that it is bad to lie and it would be wrong
         to lie. [Id. at 26-27.]

         3. The child testified he understood what a promise is and
         that he promised to tell the truth at the trial. [Id. at 27-
         28.]

      Defense counsel declined to conduct voir dire of the child. . . .



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      Defense counsel extensively cross-examined the child and his
      mother about possible taint of his identification testimony and his
      testimony regarding the events given at the Preliminary Hearing,
      the first trial and the second trial. The inconsistencies in the
      child’s testimony and the inference of tainted identification
      testimony proffered by Appellant did not render the child
      incompetent to testify. The testimony elicited went to the child’s
      credibility and was for the jury to determine as fact finders.

      There was no error and/or abuse of discretion in finding the child,
      [J.T.], competent to testify.

TCO at 13-14. The trial court concluded that “[t]here was no indication [J.T.]

lacked the mental capacity to perceive the nature of events he was called to

testify about[,]” id. at 13, and, consequently, was not “incapable of perceiving

accurately” pursuant to Pa.R.E. 601(b)(1). The trial court additionally found

that J.T. could “communicate appropriate answers[,]” TCO at 13, and, ergo,

was not “unable to express himself . . . as to be understood . . . directly” under

Pa.R.E. 601(b)(2). The trial court’s finding that J.T. knew his full name, age,

date of birth, and grade and his teacher’s and school’s names, TCO at 13

(citing N.T., 4/6/2017, at 25-26), established that J.T. did not “ha[ve] an

impaired memory.” Pa.R.E. 601(b)(3). Lastly, the trial court held that J.T.

“demonstrated an ability to understand the questions posed[,]” “an ability to

distinguish fact from fantasy[,] an ability to tell the truth[,] and the

importance of telling the truth[,]” TCO at 13; all of these findings show that

J.T. did “sufficiently understand the duty to tell the truth[.]”          Pa.R.E.

601(b)(4).

      Accordingly, we find no abuse of discretion in the trial court’s decision

that J.T. was competent to testify and that Appellant had not met the burden

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to overcome the presumption of competency.              See Pa.R.E. 601(b);

Delbridge, 855 A.2d at 40; Tyrrell, 177 A.3d at 954; TCO at 12-14. Thus,

we affirm Appellant’s second claim on the basis of the trial court’s opinion.

                   Challenges to Appellant’s Sentence

      Appellant’s third challenge is that the trial court abused its discretion

when it applied DWE Used instead of DWE Possessed when sentencing

Appellant for burglary and conspiracy to commit burglary. Appellant’s Brief at

43-48.

      “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).

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to an appeal as of right. Prior to reaching the
      merits of a discretionary sentencing issue[, w]e conduct a four-
      part analysis to determine: (1) whether appellant has filed a
      timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
      the issue was properly preserved at sentencing or in a motion to
      reconsider and modify sentence, see Pa.R.Crim.P. 720;
      (3) whether appellant’s brief has a fatal defect, 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, 42
      Pa.C.S.A. § 9781(b).

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)

(quotation marks and some citations omitted), reargument denied (July 7,

2018).

      In the current case, Appellant filed a timely notice of appeal and

preserved the issue both at sentencing and in a post-sentence motion.



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Appellant’s brief includes a concise statement pursuant to Pa.R.A.P. 2119(f),

challenging the application of DWE Used, and thus does not contain a fatal

defect. Appellant’s Brief at 31-32. This Court has found that the application

of the deadly weapon enhancement presents a substantial question for review.

See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)

(en banc) (appellant presented a substantial question where he asserted that

his vehicle was not a deadly weapon pursuant to the deadly weapon

enhancement). Since Appellant’s Pa.R.A.P. 2119(f) statement challenges the

application of the deadly weapon enhancement, Appellant, like the appellant

in Buterbaugh, has presented a substantial question.       We therefore have

jurisdiction to hear Appellant’s challenge to the discretionary aspects of his

sentence.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

Commonwealth v. Conte, 198 A.3d 1169, 1176 (Pa. Super. 2018) (citation

omitted).   “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, in relevant part:




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       (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
          ...

       (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.

42 Pa.C.S. § 9781(c)(1), (d).

       This Court considered the appropriate application of DWE Used versus

DWE Possessed to the sentence for a burglary conviction in Commonwealth

v. Tavarez, 174 A.3d 7 (Pa. Super. 2017), reargument denied (Jan. 4, 2018),

appeal denied, 189 A.3d 385 (Pa. 2018).7 In Tavarez, id. at 10, 13, the

appellant, who pleaded guilty to burglary, “admitted that he possessed a

firearm during the entire criminal episode[,]” including that he had a firearm

on his person when he entered a residence with the intent to commit a crime

therein. He did not encounter anyone at the moment he entered the building,

but, as he moved though the home, he came across a resident, at which point


____________________________________________


7The trial court in the current case did not address Tavarez in its opinion.
See TCO at 6-8.

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he “attempted to commit a robbery” and “used a firearm to threaten the

victims[.]”   Id. at 9-10.   During sentencing, “the trial court applied the

enhancement for ‘use’ of a deadly weapon to the burglary conviction.” Id. at

11. On appeal, the appellant “contend[ed] that the trial court should have

applied the deadly weapon ‘possessed’ enhancement, rather than the ‘used’

enhancement, to his burglary conviction.” Id.

      This Court agreed, id. at 10, explaining: “to establish use of a deadly

weapon under this provision, the record must show that the defendant used

the weapon to threaten or injure the victim while committing the

particular offense.” Id. at 11. This Court then considered the question of

when the perpetrator commits the particular offense of burglary:

      Our Supreme Court has explained that the offense of burglary is
      complete at the moment of entry into an occupied structure with
      the intent to commit a crime therein:

         The crime of wilfully and maliciously breaking and entering
         any building with intent to commit any felony therein is
         completed when the felon breaks into the building either
         actually, or constructively by fraud, conspiracy or threats,
         with the intent above named. . . . Whatever felony is
         committed in the building broken into is separate and
         distinct from the offense of breaking and entering into that
         building.

      Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21
      A.2d 920, 921–22 (1941)[.]

Id. at 12 (bolded emphasis added; italicized emphasis in original) (internal

brackets and some additional internal emphasis omitted).           See also

Commonwealth v. Garrett, 323 A.2d 314, 315 n.2 (Pa. Super. 1974) (“the

consummation or execution of the intent to commit the felony is not necessary

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to complete the crime of burglary”); Commonwealth v. Procopio, 188 A.2d

773, 775 (Pa. Super. 1963) (crime that appellant intends to commit within a

building is separate from the burglary and does not need to be completed in

order to fulfill the elements of burglary; “[c]onsummation or execution of the

intent to steal or to commit some other felony is not necessary to complete

the offense” of burglary).

      Applying this definition of burglary to the facts of Tavarez, this Court

concluded that “Tavarez satisfied the elements of burglary before he ‘used’ a

weapon” and that “the record [thus] did not establish Tavarez’s ‘use’ of a

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

§ 303.10(a)(2).” 174 A.3d at 12-13. This Court continued:

      [T]he burglary was complete at the moment Tavarez unlawfully
      entered the residence with the intent to commit the crime of
      robbery therein. The facts placed on the record . . . established
      only that Tavarez possessed a firearm when he entered the
      residence; there was no showing that he used the firearm to gain
      entry into the residence or to threaten the victims while entering
      the residence.

Id. at 13. In other words, there was no evidence that the defendant utilized

the firearm in any way until after he completed the burglary. See id. This

Court concluded:

      [T]he record does not support a finding that he employed the
      firearm “in a way that threatened or injured” the victims “during
      the commission of the [burglary].”                  204 Pa. Code
      § 303.10(a)(2) (emphasis added). Accordingly, we conclude that
      the trial court abused its discretion in applying the deadly weapon
      “used” enhancement rather than the “possessed” enhancement to
      Tavarez’s burglary conviction.



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Id. This Court hence vacated the judgment of sentence and remanded for

resentencing. Id. at 11, 13 (“Thus, if ‘the trial court erroneously calculates

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

sentence and remand for resentencing.” (quoting Commonwealth v.

Scullin, 607 A.2d 750, 754 (Pa. Super. 1992)).

       The facts of the current action are analogous to those of Tavarez. Like

the appellant in Tavarez, Appellant had a firearm on his person when he

entered an occupied building with the intent to commit a crime 8 therein.

____________________________________________


8 Although Appellant’s criminal information identified the crime that Appellant
intended to commit in the building as “theft,” Information, 11/28/2016, at 1,
the jury was instructed that Appellant had to have “the intent to commit
certain crimes[,]” without specifying the intended crime(s). N.T., 6/16/2017,
at 239 (trial court initially instructed that Appellant “entered that location with
intent to commit the crime of burglary” but immediately remedied its error by
stating, “entered that location with the intent to commit certain crimes”; the
court then promptly confirmed with counsel that they found the burglary
instruction acceptable). Cf. Commonwealth v. Wiltrout, 457 A.2d 520, 525
(Pa. Super. 1983) (“two separate forms of intent are implicit in this statutory
definition” of burglary: “there must be the intent to enter the building without
authority” and “the intent to commit a crime”; “where the prosecution
specifies the crime that the accused intended to commit at entry, then it must
prove the intent for the specific crime”). Albeit that there was testimony that
objects were taken from the victims’ home, N.T., 6/15/2017, at 27-28; N.T.,
6/16/2017, at 11, Appellant was never charged with theft, robbery, or any
related offenses.      See generally Police Criminal Complaint, 8/1/2016;
Information, 11/28/2016.

There was no direct evidence as to whether the crime that Appellant intended
to commit after entering the building involved his deadly weapon. Arguably,
a jury could infer that, by simply bringing the firearm, Appellant intended to
use it as part of his planned crime inside the home. However, alternatively,
a jury could infer that, since Appellant and McGlory did not conceal their faces
and may have witnessed the adult in the house, Mother, leave to buy



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Compare id. at 13 with TCO at 1-2. In both appeals, there was no evidence

that the defendant displayed or otherwise utilized a firearm at the moment he

entered the home, even though he later committed additional crimes with his

firearm after being inside the residence for a brief period. Compare Tavarez,

174 A.3d at 9, with N.T., 6/15/2017, at 24, 27-28 and TCO at 2 (citing N.T.,

6/15/2017, at 24, 29) (“[w]hen they were finished, Appellant put the gun to

the children’s heads” (emphasis added)).

       Furthermore, in both, the trial court applied DWE Used instead of DWE

Possessed to the sentence for burglary. Compare Tavarez, 174 A.3d at 11,

with N.T., 7/25/2017, at 21-22. Appellant, like the defendant in Tavarez,

argued that the trial court erred and should have applied DWE Possessed in

lieu of DWE Used to his sentence for burglary. Compare 174 A.3d at 11 with

N.T., 7/25/2017, at 3-4, 7-8.

       Given the clear parallels between the current appeal and Tavarez, we

must apply the same analysis as we did in Tavarez, 174 A.3d at 12-13, and,

accordingly, we are compelled to find that Appellant satisfied the elements of




____________________________________________


groceries, they only burglarized the residence once they believed that it was
empty and therefore had no intention of using Appellant’s firearm on anyone
as part of the crime that they intended to commit within the victims’ home.
See N.T., 6/15/2017, at 26 (Mother at store), 33 (Appellant and McGlory were
not wearing hats, head gear, masks, scarves, or “anything on their faces”);
N.T., 6/16/2017, at 6 (Mother at store).




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J-S15013-19


burglary9 before he “used” a weapon and that the record thereby did not

establish Appellant’s “use” of a firearm during the commission of the burglary

under DWE Used, 204 Pa. Code § 303.10(a)(2). The burglary was complete

____________________________________________


9 As noted above, the jury was instructed pursuant to the pre-2017 version of
the burglary statute, N.T., 6/16/2017, at 239, which stated: “A person
commits the offense of burglary if, with the intent to commit a crime therein,
the person enters a building or occupied structure, or separately secured or
occupied portion thereof that is adapted for overnight accommodations in
which at the time of the offense any person is present[.]” 18 Pa.C.S.
§ 3502(a)(1) (effective Feb. 21, 2014, to Jan. 2, 2017).

The current version of Section 3502(a)(1) has two subsections:

       A person commits the offense of burglary if, with the intent to
       commit a crime therein, the person:

          (1)(i) enters a building or occupied structure, or separately
          secured or occupied portion thereof, that is adapted for
          overnight accommodations in which at the time of the
          offense any person is present and the person commits,
          attempts or threatens to commit a bodily injury crime
          therein;

          (ii) enters a building or occupied structure, or separately
          secured or occupied portion thereof that is adapted for
          overnight accommodations in which at the time of the
          offense any person is present[.]

18 Pa.C.S. § 3502(a)(1) (effective Jan. 3, 2017).

In this instant decision, we have only interpreted the application of the deadly
weapon enhancements to burglary as it was defined pre-2017. We make no
determination as to how the changes to the language of Section 3502(a)(1)
will affect the application of either deadly weapon enhancement to a sentence
for burglary, particularly in light of the additional language in subsection
(a)(1)(i) requiring that “the person commits, attempts or threatens to commit
a bodily injury crime therein[.]” 18 Pa.C.S. § 3502(a)(1)(i) (effective
January 3, 2017) (emphasis added).




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J-S15013-19


at the moment Appellant unlawfully entered the house with the intent to

commit a crime therein. See N.T., 6/15/2017, at 24, 26-28, 31; Tavarez,

174 A.3d at 13. Thus, Appellant possessed a firearm when he entered the

house; the record does not support a finding that Appellant used the firearm

to gain entry into the residence or in a way that threatened or injured the

victims while entering the residence during the commission of the burglary.

See N.T., 6/15/2017, at 24, 26-28, 31; Tavarez, 174 A.3d at 11, 13.

Consequently, we are constrained to hold that the trial court abused its

discretion in applying DWE Used rather than DWE Possessed to Appellant’s

sentence for burglary. See Conte, 198 A.3d at 1176; Tavarez, at 174 A.3d

at 13.

         In the current action, the deadly weapon enhancement was also applied

to Appellant’s sentence for the related conspiracy to commit burglary. 10

“Conspiracy is established when the Commonwealth proves the defendant

entered into an agreement to commit or aid in the commission of an unlawful

act, there was a shared criminal intent, and an overt act was taken in

furtherance of the conspiracy.”         Commonwealth v. McCoy, 69 A.3d 658,

664 (Pa. Super. 2013). The “overt act” taken in furtherance of a conspiracy

to commit burglary can be entering a house without authorization.         See


____________________________________________


10In Tavarez, 174 A.3d at 8, the appellant was convicted of conspiracy to
commit burglary, but no deadly weapon enhancement appears to have been
applied to that defendant’s sentence for conspiracy.


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J-S15013-19


Commonwealth v. Riley, 811 A.2d 610, 614, 616, 618, 621 (Pa. Super.

2002) (information alleged and trial court instructed jury that the overt act for

conspiracy to commit burglary was the act of entering a house without

authorization; evidence presented satisfied elements of conspiracy to commit

burglary).11

       In the current appeal, the conspiracy to commit burglary was

consummated by the agreement between Appellant and McGlory and by their

completion of the overt act of unlawfully entry into the victims’ apartment.

Thus, the record does not support a finding that a firearm was used by

Appellant or McGlory in the commission of the conspiracy to commit burglary.

       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) (citing Commonwealth v. Magnum, 654 A.2d

1146, 1150 (Pa. Super. 1995) (citing Scullin, 607 A.2d at 754; 42 Pa.C.S.

§ 9781(c)(1))).

       As the trial court in the current case failed to begin its calculation of

sentence for burglary and for conspiracy to commit burglary from the correct

starting points in the sentencing guidelines, we must vacate Appellant’s


____________________________________________


11 In the current appeal, unlike in Riley, 811 A.2d at 614, 618, neither the
information nor the jury instructions specified what Appellant’s “overt act” was
in furtherance of the conspiracy. Information, 11/28/2016, at 1 (Count One);
N.T., 6/16/2017, at 236-38.

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J-S15013-19


sentences for those counts and remand for resentencing. See Tavarez, at

174 A.3d at 13; Solomon, 151 A.3d at 676.

       Since our vacatur of Appellant’s sentences for burglary and conspiracy

disrupt the trial court’s sentencing scheme, we also vacate the sentences on

all remaining counts and remand for resentencing on the entire judgment of

sentence. See 42 Pa.C.S. § 9781(c)(1); Commonwealth v. Deshong, 850

A.2d 712, 714 (Pa. Super. 2004) (citing Commonwealth v. Goldhammer,

517 A.2d 1280 (Pa. 1986); Commonwealth v. Farone, 808 A.2d 580 (Pa.

Super. 2002)) (when a disposition by an appellate court alters the sentencing

scheme, the entire sentence should be vacated, and the matter remanded for

resentencing).

       Finally, Appellant insists that his “convictions for [SA] merge with the

convictions for [REAP].” Appellant’s Brief at 48.12

       “When reviewing the legality of a sentence, our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Seskey, 170

A.3d 1105, 1107 (Pa. Super. 2017).

       The trial court agrees with Appellant, stating:

       The Commonwealth initially conceded that [SA] merges with
       [REAP] for sentencing purposes[. N.T., 7/25/2017, at 12-13.]

       The Commonwealth then went on to cite Com[monwealth] v.
       Thomas, 879 A.2d 246 (Pa.Super. 2005), for the proposition that
       [SA] does not merge with [REAP]. However, the Commonwealth
____________________________________________


12 Although we vacated all of Appellant’s sentences pursuant to the previous
claim, we still elect to address this remaining issue, in order to aid the trial
court in resentencing Appellant.

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J-S15013-19


      is in error.     The Thomas case does not support the
      Commonwealth’s argument the crimes do not merge.  The
      Superior Court in Thomas stated:

         In Commonwealth v. Cavanaugh, 278 Pa.Super. 542,
         420 A.2d 674, 676 (1980), this Court held that [SA] is a
         lesser included offense of [REAP] and thus the two crimes
         merge for sentencing purposes. See also Commonwealth
         v. Klein, 795 A.2d 424, 430 (Pa.Super. 2002). In the
         present case, apparently on the same facts, the trial court
         sentenced appellant to twelve to twenty-four months
         incarceration for [SA] and to a consecutive term of the same
         duration for [REAP]. Thus, appellant is correct that the trial
         court erred in sentencing him for both [SA] and [REAP]. We
         therefore remand for resentencing.

      . . . Id. at 263.

      Though concurrent sentences were imposed for each[, SA] should
      merge for sentencing purposes with each crime of [REAP].

TCO at 5-6.     The Commonwealth concurs.          Commonwealth’s Brief at 7

(“Separate sentences are permitted for each victim. As to each victim, the

charges of [SA] and [REAP] merge with each other[.]”). We likewise approve

of the trial court’s reasoning, and, thus, even if we had not already vacated

all of Appellant’s sentences pursuant to our holding for Appellant’s third issue,

we still would vacate Appellant’s sentences for SA.

                                  *     *      *

      Based on the foregoing, we affirm Appellant’s convictions, but we vacate

Appellant’s judgment of sentence in its entirety and remand for resentencing.




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A sentencing hearing must be held within 45 days of the return of the official

record.13

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2019




____________________________________________


13 Provided that all sentences are legal and that the trial court properly
calculates and applies the sentencing guidelines, there is nothing in this
decision to preclude the trial court from imposing the same sentencing
scheme. We note that the trial court originally imposed maximum sentences
for conspiracy and burglary that were above the aggravated range of the
sentencing guidelines, irrespective of whether the guidelines with DWE Used
or DWE Possessed were employed. See Commonwealth v. Smith, 186 A.3d
397, 403 n.8 (Pa. 2018) (“sentencing court always retains discretion to
sentence outside the guideline range”); Magnum, 654 A.2d at 1150 (“While
a court may depart from the guidelines, it must first consider a range which
includes the mandatory deadly weapon enhancement.”).

                                          - 24 -
