J-S71019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JASON BRADLEY                              :
                                               :
                       Appellant               :   No. 2729 EDA 2017

              Appeal from the Judgment of Sentence July 24, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0009366-2016

BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY DUBOW, J.:                                FILED MARCH 27, 2019

        Appellant, Jason Bradley, appeals from the July 24, 2017 Judgment of

Sentence entered in the Philadelphia County Court of Common Pleas following

his convictions of Robbery, Conspiracy, Theft by Unlawful Taking, Theft by

Receiving Stolen Property, Possession of an Instrument of Crime (“PIC”), and

Simple Assault.1 On appeal, Appellant challenges the discretionary aspects of

his sentence.        After careful review, we vacate Appellant’s Judgment of

Sentence and remand for further proceedings.

        The facts and procedural history are, briefly, as follows. On June 14,

2016, Appellant and another             entered Walnut Food    Market in West

Philadelphia, and asked if the store accepted food stamps. Appellant and the

other man then wandered throughout the store as if searching for items to

purchase. The men then returned to the front counter, whereupon Appellant
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1   18 Pa.C.S. §§ 3701(a)(1)(ii); 903; 3921(a); 3925(a); 907(a); and 2701(a).
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went behind the counter and took money from the cash register and a cigar

box, while the other man pointed a firearm at the cashier. Still images from

the store’s security camera showed Appellant and the other man within arms’

length of each other throughout the commission of the robbery.

      Appellant matched the physical description given by the cashier and his

tattoos matched those on the suspect recorded by the store’s video

surveillance system. Appellant’s fingerprint also matched one found on the

cigar box.

      Following a March 16, 2017 waiver trial, the court found Appellant guilty

of the above crimes.

      On July 24, 2017, the court held a sentencing hearing. At the hearing,

Appellant’s counsel argued that, because Appellant did not possess any

weapon during the commission of the crime, the court should apply the deadly

weapon enhancement “possessed” matrix when sentencing him.                N.T.

Sentencing, 7/24/17, at 6-7.    Instead, the court applied the deadly weapon

enhancement “used” matrix when sentencing Appellant on the Robbery

conviction. The court concluded that, notwithstanding that Appellant did not

wield a weapon during the commission of the crime, the deadly weapon

enhancement applied because Appellant “had the ability, through his

conspiracy with his co-defendant, to control and operate the firearm.” Id. at




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14. The court imposed an aggregate sentence of 5 to 10 years’ incarceration

followed by 3 years of reporting probation.2

       On August 10, 2017, Appellant filed a pro se Notice of Appeal.3 Both

Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant raises the following issue on appeal:

       Did not the sentencing court err as a matter of law and abuse its
       discretion by misapplying the deadly weapon “used” sentencing
       enhancement guidelines when imposing [A]ppellant’s sentence on
       the [R]obbery charge, where it is undisputed that someone other
       than [A]ppellant used a weapon during the commission of the
       crime?

Appellant’s Brief at 3.

       Appellant’s claim that the trial court misapplied the deadly weapons

enhancement       challenges     the    discretionary   aspects   of   his   sentence.

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008).

       A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue:

       We conduct a four[-]part analysis to determine: (1) whether
       appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
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2 In particular, the court sentenced Appellant to a term of 5 to 10 years’
incarceration for his Robbery conviction, and concurrent sentences of 5 to 10
years for his Conspiracy conviction, 2 to 4 years for each of his Theft and PIC
convictions, and 1 to 2 years’ for his Simple Assault conviction.

3 On August 16, 2017, Appellant filed a pro se Motion to Modify Sentence. The
trial court docket does not reflect that the court disposed of this untimely
Motion.

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     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.[] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (citations

omitted).

     In the instant case, Appellant met the first three elements by filing a

timely Notice of Appeal, properly preserving the issue at sentencing, and

including a Statement of Reasons Relied Upon for Allowance of Appeal

pursuant to Pa.R.A.P. 2119(f).

     As to whether Appellant has presented a substantial question, we note:

     The determination of what constitutes a substantial question must
     be evaluated on a case-by-case basis. 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.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and quotation omitted).

     Appellant’s claim regarding the erroneous application of the deadly

weapon enhancement raises a substantial question.       Commonwealth v.

Tavarez, 174 A.3d 7, 10 (Pa. Super. 2017) (citing Phillips, 946 A.2d at 112).

Thus, we proceed to consider the merits of Appellant’s claim.

     “In reviewing a challenge to the discretionary aspects of sentencing, we

evaluate the court’s decision under an abuse of discretion standard.”

Commonwealth v. Dodge, 77 A.3d 1263, 1274 (Pa. Super. 2013) (citation


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omitted). Additionally, “this Court’s review of the discretionary aspects of a

sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and

(d).” Id.

      Section 9781(c) provides:

      (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

      (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.

42 Pa.C.S. § 9781(c).

      Instantly, the trial court applied the deadly weapon “used” enhancement

codified at 204 Pa. Code § 303.10(a)(2). This section provides as follows:

      (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 [], or

         (ii) Any dangerous weapon [], or

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

204 Pa. Code § 303.10(a)(2)(i-iii) (emphasis added).


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      The deadly weapon “possessed” enhancement is applicable as follows:

      (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 [] . . .

204 Pa. Code § 303.10(a)(1)(i) (emphasis added).

      In Phillips, a jury convicted the defendant of Robbery, PIC, and

Conspiracy. Phillips, 946 A.2d at 108. On appeal, the defendant challenged

the court’s application of the deadly weapon “used” enhancement where he

never had actual, physical possession of his co-conspirator’s weapon during

the robbery. Id. at 111-12. In conducting its analysis, this Court noted that

the defendant in Phillips “had knowledge of the existence of the weapon and

he could easily have been given or taken the gun at any moment during the

robbery.”   Id. at 114 (internal citation and quotation marks omitted).

Notwithstanding, this Court held that because the defendant was an unarmed

co-defendant merely in proximity to the gun, and the gun was “not employed

by the offender,” only the deadly weapon “possessed” enhancement was

applicable to the defendant. Id. at 114-15.

      Appellant, analogizing this case to Phillips, argues that the court

abused its discretion in applying the deadly weapon “used” enhancement

where the record is clear that he did not use a weapon during the commission

of the crime. Appellant’s Brief at 10. He notes that application of the deadly



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weapon “used” enhancement provided for a guideline sentencing range of 66

to 78 months’ incarceration, plus or minus 12 months.           Id.   Without the

application of the enhancement, the guideline sentencing range would have

been 48 to 60 months’ incarceration, plus or minus 12 months. Id. Appellant

further claims that “the sentencing court never made a determination that

[A]ppellant used a deadly weapon.” Id. at 11.

       The Commonwealth agrees with Appellant that, because Appellant did

not have actual, physical possession of the weapon, the court erred in applying

the deadly weapon “used” enhancement, and should instead have applied the

deadly weapon “possessed” enhancement. Commonwealth’s Brief at 6-7.

       In its Rule 1925(a) Opinion, the trial court explained its decision to apply

the deadly weapon “used” enhancement.            Relying on Commonwealth v.

Bowen, 612 A.2d 512 (Pa. Super. 1992), and Commonwealth v. Hatcher,

746 A.2d 1142 (Pa. Super. 2000), the court concluded that the “used”

enhancement applied because Appellant was in close proximity to his armed

co-defendant at all times. Trial Ct. Op., 3/13/18, at 3-4 (unpaginated). This

fact rendered the “gun within [Appellant’s] immediate control.” Id. at 4.

       Following our review of the authorities cited by the parties and the trial

court4 and the enhancement statutes themselves, we conclude that the trial
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4 Although both Bowen and Hatcher discuss the applicability of the deadly
weapon enhancement generally, neither of them address when a sentencing
court should apply the “used” enhancement instead of the “possessed”
enhancement. See Bowen, 612 A.2d at 514-517; Hatcher, 746 A.2d at
1144-1146.


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court abused its discretion in applying the deadly weapon “used” enhancement

and not the deadly weapon “possessed” enhancement in the instant case. The

trial court found that Appellant was “in close proximity” to his armed co-

defendant and not that Appellant “used” the deadly weapon.        Thus, the

appropriate deadly weapon enhancement is deadly weapon “possessed”

enhancement and the trial court erred in applying the deadly weapon “used”

enhancement.

      Judgment of Sentence vacated; case remanded for further proceedings.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/19




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