J-S51040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MICHELLE WHITE                             :
                                               :
                      Appellant                :   No. 3767 EDA 2016

             Appeal from the Judgment of Sentence August 1, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005484-2013


BEFORE:      BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                        FILED OCTOBER 13, 2017

        Appellant Michelle White appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County after Appellant

pled guilty to third-degree murder and conspiracy to commit third-degree

murder. We vacate the judgment of sentence and remand for resentencing.

        Appellant was charged with the aforementioned offenses in connection

with the February 6, 2013 shooting death of Kiree Harris (“the victim”). On

that particular day, Appellant’s father began to argue with Omar Simmons

and several of his friends over a $20 debt. Upon seeing the fight, Appellant

contacted Edwin and Evan Davis, who were the brothers of her children’s

father. When the Davis brothers arrived at Appellant’s residence, they took


____________________________________________


*   Former Justice specially assigned to the Superior Court.
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out handguns, placed them on Appellant’s table, polished their bullets, and

loaded the guns in Appellant’s presence. Appellant told the Davis brothers

to “take care of some business” and directed them to the apartment complex

where Simmons lived. N.T. 12/23/13, at 14-15.

      The Davis brothers asked Richard Boyle to accompany them to

Simmons’ apartment. Boyle knocked on Simmons’ door as Simmons would

not have recognized him.      When no one answered the door, the Davis

brothers fired multiple gunshots through the door, striking the victim, who

had no involvement in the fight between Appellant’s father and Simmons.

The victim died as a result of two gunshot wounds to the torso.

      The record contains evidence that Appellant observed the shooting

occur as Appellant gave the following statement to police:

         [M]e and Evan was standing in the doorway to the second
         floor. Paul had Richie knock on the door on B floor. As Richie
         was knocking, me and Evan was walking to the apartment. I
         walked past the apartment and everyone else stayed at the
         apartment. From where I was standing I could still see them.
         One of them kicked the door. Then I heard another bang like
         somebody else kicked the door. Then I saw Edwin and Evan
         shooting at the door.

Exhibit C-1, Appellant’s statement, 2/7/13, at 3.

      On December 23, 2013, Appellant entered an open plea agreement to

third-degree murder and conspiracy to commit third-degree murder.

Appellant cooperated with the prosecution and testified against her three co-

defendants and at the retrial of one of these defendants.     On August 1,

2016, the lower court sentenced Appellant to eight to sixteen years’


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imprisonment for the murder charge and a consecutive one to two year

imprisonment term for the conspiracy charge. On August 3, 2016, Appellant

filed a motion for reconsideration of her sentence, which was subsequently

denied. This timely appeal followed.

      Appellant raises the following issues for our review:

      1. Did not the sentencing court err as a matter of law by
         misapplying the deadly weapons “used” sentencing
         enhancement guidelines when imposing Appellant’s sentence,
         where the record is clear that someone other than [A]ppellant
         used a weapon during the commission of the crime?

      2. Did not the sentencing court err as a matter of law, abuse its
         discretion and violate general sentencing principles when,
         following Appellant’s guilty plea and substantial and
         significant cooperation throughout two trials for the co-
         defendants, the sentencing court imposed a manifestly
         excessive and unreasonable sentence of 9 to 18 years of
         incarceration, where the court failed to appropriately consider
         the relevant sentencing factors, failed to impose an
         individualized sentence and focused solely on the gravity of
         the offense?

Appellant’s Brief, at 4.

      In her first issue, Appellant challenges the trial court’s application of

the deadly weapons enhancement guidelines as she did not use a firearm in

the commission of the offense.       Appellant’s challenge to the application of

the deadly weapons enhancement matrix implicates the discretionary

aspects of sentence.        Commonwealth v. Phillips, 946 A.2d 103, 111

(Pa.Super. 2008).          It is well-established that “[a] challenge to the

discretionary aspects of sentencing does not entitle an appellant to review as

of right.”   Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184


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(Pa.Super. 2016).     In order to invoke this Court’s jurisdiction to address

such a challenge, the appellant must satisfy the following four-part test: the

appellant must (1) file a timely notice of appeal pursuant to Pa.R.A.P. 902,

903; (2) preserve the issues at sentencing or in a timely post-sentence

motion pursuant to Pa.R.Crim.P. 720; (3) ensure that the appellant’s brief

does not have a fatal defect as set forth in Pa.R.A.P. 2119(f); and (4) set

forth a substantial question that the sentence appealed from is not

appropriate under the Sentencing Code under 42 Pa.C.S. § 9781(b).            Id.

Appellant filed a timely notice of appeal, preserved her sentencing claim

before the trial court at sentencing, and submitted a Rule 2119(f) statement

in her appellate brief.

      We may now determine whether Appellant has raised a substantial

question for our review.         “The determination of what constitutes a

substantial   question    must   be   evaluated   on   a   case-by-case   basis.”

Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015). This

Court has provided as follows:

      A substantial question exists only when the appellant advances a
      colorable argument that the sentencing judge's actions were
      either: (1) inconsistent with a specific provision of the
      Sentencing Code; or (2) contrary to the fundamental norms
      which underlie the sentencing process.

      When imposing a sentence, the sentencing court must consider
      the factors set out in 42 Pa.C.S. § 9721(b), that is, the
      protection of the public, gravity of offense in relation to impact
      on victim and community, and rehabilitative needs of the
      defendant. And, of course, the court must consider the
      sentencing guidelines.


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Id. (internal citations omitted).   This Court has found that a substantial

question is raised where an appellant argues that the sentencing court erred

in applying the deadly weapons enhancement. Phillips, 946 A.2d at 112.

Thus, Appellant has raised a substantial question for our review.

      In reviewing a challenge to the discretionary aspects of sentence, we

emphasize that:

      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. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)

(quotation omitted).

      The sentencing code sets forth the following guidelines for the

application of the deadly weapon enhancement, which depends on whether

the offender “possessed” or “used” a deadly weapon in the commission of

the target offense:

      (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

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                                     ***

      (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
                                    ***

204 Pa. Code § 303.10 (emphasis added).

      Specifically, Appellant claims the trial court erred in employing the

deadly weapons (used) enhancement. Appellant asserts that the record is

clear that she never used a deadly weapon and contends this enhancement

cannot be applied to her sentence based on her co-defendants’ use of

firearms in the murder.   The Commonwealth concedes that the trial court

improperly applied the deadly weapons (used) enhancement, but suggests

that it would have been appropriate for the trial court to consider the deadly

weapons (possessed) enhancement.

      In a similar case, Phillips, the appellant argued that he should not

have been subject to the deadly weapons (used) enhancement as the

evidence demonstrated that, although the appellant conspired with his co-

defendant to rob the victim, the weapon used in the robbery was possessed

and brandished by his co-defendant.         This Court concluded that the

sentencing court had erred in applying the deadly weapons (used)




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enhancement to the appellant’s sentence as the appellant had not “used” the

firearm to threaten or injure another individual.

      However, the Phillips court found that the sentencing court should

have utilized the deadly weapon (possessed) enhancement matrix, as the

appellant’s conduct fell within the broader ambit of Section 303.10(a)(1),

which applies when the offender had a deadly weapon “on the offender’s

person or within his immediate control.” 204 Pa.Code § 303.10(a)(1). As

the appellant was in the immediate vicinity of his co-conspirator when the

gun was used to threaten the victim and “could easily have been given or

taken the gun at any moment during the robbery,” this Court found that it

was proper for the lower court to apply the deadly weapon (possessed)

enhancement.    See also Commonwealth v. Pennington, 751 A.2d 212

(Pa.Super.    2000)   (finding   the   application   of   the   deadly   weapons

enhancement for possession was proper as appellant and his co-conspirators

all had knowledge of the existence of a weapon and had ready access to it

during the commission of the robbery).          But see Commonwealth v.

Greene, 702 A.2d 547 (Pa.Super. 1997) (concluding the lower court erred

in imposing the weapons enhancement to an appellant who had served as a

getaway driver for a co-conspirator committing a robbery of a jewelry store

as the gun was not on the appellant’s person nor within his immediate

control during the robbery).

      In light of this precedent, we find that the lower court erred in utilizing

the deadly weapons (used) enhancement in fashioning Appellant’s sentence

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as there is no evidence that Appellant used a deadly weapon in a way that

threatened or injured another individual.     However, we agree with the

Commonwealth that the lower court should have used the deadly weapons

(possessed) enhancement.     In this case, Appellant had knowledge of the

existence of the firearms used in the murder as she had directed her co-

conspirators to come “take care of some business” and watched as they

sanitized their guns and bullets on Appellant’s kitchen table in preparation

for the confrontation. N.T. 12/23/13, at 14-15.     Appellant accompanied her

co-conspirators and watched as they fired multiple shots into the door of a

neighboring apartment.    At any point, Appellant could have been given or

taken one of the firearms during the commission of the crime. As Appellant

did not “use” the deadly weapon, but merely “possessed” it, we conclude the

trial court used the incorrect deadly weapons enhancement guideline ranges.

      Accordingly, we vacate the judgment of sentence in this case and

remand for resentencing consistent with this decision.     Although Appellant

raises another challenge to the excessiveness of her sentence, we need not

review it as Appellant will receive a new sentencing hearing.

      Judgment    of   sentence   vacated.   Case     remanded   for   further

proceedings. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




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