J-S50034-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

HANNAH MATOS

                            Appellee                  No. 1608 MDA 2015


             Appeal from the Judgment of Sentence August 6, 2015
                In the Court of Common Pleas of Centre County
              Criminal Division at No(s): CP-14-CR-0001140-2014


BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                FILED JULY 06, 2016

        Appellant, the Commonwealth of Pennsylvania, appeals from the

August 6, 2015 aggregate judgment of sentence of 11½ to 23½ months’

incarceration, imposed by the trial court after a jury convicted Appellee,

Hannah Matos, of two counts of aggravated assault, and one count of simple

assault.1 After careful review, we affirm.

        Our review of the certified record reveals that the victim, Lafone

Brown, testified to dating Appellee, but ultimately ending the relationship.

N.T., 6/25/15, at 45-49.         On June 12, 2014, the victim agreed to meet

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 2702(a)(1) and (4), 2701(a)(1), and 2709(a).
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Appellee at her home to exchange some vacation photographs. Id. at 51-

52.    When the victim clarified that he wanted the relationship to end,

Appellee became upset and began threatening suicide, and ultimately left

the victim at the home overnight with her 10 year-old son. Id. at 52-55.

Appellee returned the next morning and confronted the victim when he

attempted to leave. Id. at 56-58. Appellee followed the victim and hit him

with a belt. Id. at 62-63. Then Appellee “pulled a hammer from behind her

back” and “swung it at [the victim] multiple times … hitting [him] once in

the arm.” Id. at 63-64. The victim “was able … to [get] the hammer” from

Appellee.    Id. at 65.      He then “started jogging away.”   Id.   The victim

“thought [he] was clear” when he saw Appellee in her vehicle driving toward

him. Id. at 68. The victim resumed jogging away from Appellee. Id. at 70.

The victim noticed Appellee had a second hammer.         Id. at 72.2   Appellee

began driving after the victim, who jumped over a fence. Id. at 75. The

victim then saw a sign that said “leasing office,” and he entered the building

and called the police. Id. at 79.




____________________________________________


2
  The victim said it was not the same hammer, and he “remembered
thinking, like, who has two hammers[?]” Id. at 72.




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       Relative to the June 13, 2014 incident, Appellee was charged with the

aforementioned offenses and appeared for a jury trial on June 25, 2015.3

After the verdicts were rendered, the trial court deferred sentencing to

August 6, 2015, when it sentenced Appellee to 11½ to 23½ months’

incarceration at Count 1, aggravated assault; 5 years’ consecutive probation

at Count 2, aggravated assault; with Counts 5 and 6, simple assault and

harassment, merging.          N.T., 8/6/15, at 5-8.   On August 7, 2015, the

Commonwealth filed a motion to modify sentence, and, after hearing

argument, the trial court entered an order on September 3, 2015, denying

the motion.        The Commonwealth filed a timely notice of appeal on

September 16, 2015.4

       On appeal, the Commonwealth presents two sentencing issues for our

review.

              1. Did the Sentencing Court err by refusing to apply
                 the Deadly Weapons Enhancement even though
                 the jury made a specific finding that [Matos]
                 utilized a deadly weapon in the commission of her
                 crimes?

              2. Did the Sentencing Court impose an unreasonably
                 lenient sentence?
____________________________________________


3
   Appellee was also charged with terroristic threats, stalking and
harassment. The jury acquitted Appellee of terroristic threats and stalking,
while the trial court found Appellee guilty of harassment.
4
 The Commonwealth and the trial court have complied with Pennsylvania
Rule of Appellate Procedure 1925.




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Commonwealth’s Brief at 5.

      At the outset, we note that both of the Commonwealth’s issues pertain

to the discretionary aspects of Appellee’s sentence.          “There is no absolute

right to appeal when challenging the discretionary aspect of a sentence.”

Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation

omitted).       When an appellant forwards an argument pertaining to the

discretionary aspects of the sentence, this Court considers such an argument

to be a petition for permission to appeal. Commonwealth v. Buterbaugh,

91 A.3d 1247, 1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal

denied, 104 A.3d 1 (Pa. 2014). “[A]n [a]ppeal is permitted only after this

Court determines that there is a substantial question that the sentence was

not appropriate under the sentencing code.” Commonwealth v. Cartrette,

83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (internal quotation marks

and citation omitted).

      Prior to reaching the merits of a discretionary aspects of sentencing

issue, this Court is required to conduct a four-part analysis to determine

whether     a     petition   for   permission   to   appeal   should   be   granted.

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we

must determine the following.

                (1) [W]hether appellant has filed a timely notice of
                appeal, Pa.R.A.P. 902, 903; (2) whether the issue
                was properly preserved at sentencing or in a motion
                to reconsider and modify sentence, Pa.R.Crim.P.

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            [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).

Id.

      Instantly, the Commonwealth filed a timely motion for modification of

sentence and notice of appeal. Also, the Commonwealth has included a Rule

2119(f) statement in its brief. Commonwealth’s Brief at 17. We therefore

proceed to determine whether the Commonwealth 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. Edwards, 71 A.3d
323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75

(Pa. 2013). “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.”           Id.

(citations omitted). “Additionally, we cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.”    Commonwealth v. Provenzano,

50 A.3d 148, 154 (Pa. Super. 2012).

      In this case, the Commonwealth advances two sentencing issues:

first, that the trial court abused its discretion when it “ignored the [d]eadly


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[w]eapon [e]nhancement,” and second, that the trial court sentenced

Appellee to “an excessively lenient sentence.” Pa.R.A.P. 2119(f) Statement,

Commonwealth’s Brief at 18.           Relative to the Commonwealth’s first issue

asserting the trial court’s failure to apply the deadly weapon enhancement at

sentencing, “our case law has established that application of the deadly

weapons enhancement presents a substantial question.”          Commonwealth

v. Raybuck, 915 A.2d 125, 127 (Pa. Super. 2006) (internal citations

omitted). Likewise, with regard to the Commonwealth’s second issue that

the trial court imposed an “unreasonably lenient” sentence, such claim raises

a substantial question. Commonwealth v. Childs, 664 A.2d 994, 996 (Pa.

Super. 1995) (stating that the Commonwealth’s claim that the sentence

imposed was excessively lenient presented a substantial question), appeal

denied, 674 A.2d 1066 (Pa. 1996). Based on the foregoing, we will address

the merits of the Commonwealth’s two issues.

       The Commonwealth first contends that the trial court erred when it

“ignore[d] the jury’s specific finding”5 and failed to apply the deadly weapon

enhancement to Appellee’s sentence.              Commonwealth’s Brief at 25.
____________________________________________


5
  The Commonwealth states that “the jury decided that [Appellee] had used
a weapon capable of causing death or serious bodily injury when the jury
found her guilty of [aggravated assault pursuant to 18 Pa.C.S.A.
§ 2702(a)(4)].”   Commonwealth’s Brief at 23.         The Commonwealth
concedes, however, that “the jury did not indicate whether the SUV or the
hammer was the deadly weapon.” Id. at n.4. Significantly, as noted below,
the sentencing code precludes the application of the deadly weapon
enhancement to a conviction under § 2702(a)(4).



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Preliminary, we note that the United States Supreme Court decision of

Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013), holding that

“facts that increase mandatory minimum sentences must be submitted to

the jury … and found beyond a reasonable doubt,” does not apply to this

case.    In Commonwealth v. Ali, we observed that Alleyne “has no

application to [] sentencing enhancements [because] [t]he parameters of

Alleyne are limited to the imposition of mandatory minimum sentences.”

Commonwealth v. Ali, 112 A.3d 1210, 1225-1226 (Pa. Super. 2015),

appeal granted in part, 127 A.3d 1286 (Pa. 2015).     We further recognize

that the sentencing code prohibits application of the deadly weapon

enhancement to an aggravated assault conviction under 18 Pa.C.S. §

2702(a)(4) (“[t]here shall be no Deadly Weapon Enhancement for … (vi)

Aggravated Assault (18 Pa.C.S. § 2702(a)(4)”), such that the trial court

could not have applied the deadly weapon enhancement to Appellee’s

conviction at Count 2. 204 Pa. Code § 303.10.

        In support of its argument that the enhancement should apply, the

Commonwealth cites Buterbaugh, supra, as “analogous to the case at

hand.”    Commonwealth’s Brief at 21.    We recognize, as did our en banc

Court in Buterbaugh, the relevant statutory provision as follows.

             (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

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                 DWE/Possessed Matrix (§ 303.17(a)). An
                 offender has possessed a deadly weapon if any
                 of the following were on the offender’s person
                 or within his immediate physical control:

                 (i)     Any firearm, (as defined in 42 Pa.C.S.
                         § 9712) whether loaded or unloaded, or

                 (ii)    Any dangerous weapon (as defined in 18
                         Pa.C.S. § 913), or

                 (iii)   Any       device,     implement,      or
                         instrumentality designed as a weapon or
                         capable of producing death or serious
                         bodily injury where the court determines
                         that the offender intended to use the
                         weapon to threaten or injure another
                         individual.

           (2)   When the court determines that the
                 offender used a deadly weapon during the
                 commission of the current conviction offense,
                 the court shall consider the DWE/Used Matrix
                 (§ 303.17(b)). An offender has used a deadly
                 weapon if any of the following were employed
                 by the offender in a way that threatened or
                 injured another individual:

                 (i)     Any firearm, (as defined in 42 Pa.C.S.
                         § 9712) whether loaded or unloaded, or

                 (ii)    Any dangerous weapon (as defined in 18
                         Pa.C.S. § 913), or

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

204 Pa. Code § 303.10 (emphasis added).

     In Buterbaugh, we affirmed the trial court’s application of the deadly

weapon enhancement to the appellant/defendant’s sentence, where the trial



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court “determined that Appellant’s truck was a deadly weapon for purposes

of the [deadly weapon enhancement].”            Id. at 1267.   The foregoing

statutory language is critical to our review.    As quoted above, the deadly

weapon enhancement statute states clearly that “the court determines”

whether a deadly weapon was possessed or used.                 204 Pa. Code

§ 303.10(a). In the present case, the trial court expressly determined that

the deadly weapon enhancement did not apply. The trial court explained as

follows.

                  The deadly weapon enhancement provision of
           the sentencing guidelines provides that when the
           [trial] court determines that the defendant
           possessed a deadly weapon during the commission
           of a criminal offense, the court must add at least 12
           months and up to 24 months to the guideline
           sentence that would otherwise have been applicable.
           See 204 Pa. Code § 303.4. … Devices, implements,
           and instrumentalities not designed to inflict harm can
           become deadly weapons by the manner in which
           they are used. Commonwealth v. Rhoades, 8
A.3d 912, 917 (Pa. Super. 2010). For a deadly
           weapon finding to apply, such an item must be
           “capable of producing death or serious bodily injury.”
           204 Pa. Code § 303.10(a)(2)(iii).

                                     …

           [T]he [trial c]ourt properly found that [Appellee’s]
           use of a hammer to hit the victim once in the arm
           did not cause the hammer to be used in a way
           capable of producing serious bodily injury and
           [Appellee’s] use of her motor vehicle did not rise to
           the level of using a deadly weapon.

Trial Court Opinion, 9/3/15, at 2-3 (emphasis added).



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     Given the trial court’s reasoning and statutory role as the determiner

pursuant to 204 Pa. Code § 303, we are not persuaded by the

Commonwealth’s argument that the trial court erred by failing to apply the

deadly weapon enhancement in sentencing Appellee.

     In its second issue, the Commonwealth argues that the trial court

erred in sentencing Appellee “to an unreasonably lenient sentence for her

crimes by sentencing her to the low end of the standard-range sentence on

Count One and to a mitigated sentence on Count Two.”           Commonwealth’s

Brief at 31.   In reviewing this claim, we recognize that we may vacate a

sentence only when “the sentencing court sentenced outside the guidelines

and the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). There are

four statutory factors we must consider in reviewing the certified record.

They are: (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, and (4) the guidelines

promulgated by the commission.         Id. § 9871(d)(1)-(4).       Further, our

Supreme Court has explained as follows.

           [T]he proper standard of review when considering
           whether     to    affirm    the    sentencing      court’s
           determination is an abuse of discretion. [A]n abuse
           of discretion is more than a mere error of judgment;
           thus, a sentencing court will not have abused its
           discretion unless “the record discloses that the
           judgment exercised was manifestly unreasonable, or
           the result of partiality, prejudice, bias or ill-will.” In

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            more expansive terms, … “An abuse of discretion
            may not be found merely because an appellate court
            might have reached a different conclusion, but
            requires a result of manifest unreasonableness, or
            partiality, prejudice, bias, or ill-will, or such lack of
            support so as to be clearly erroneous.”

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (citations and

footnote omitted). “[W]hat makes a sentence ‘unreasonable’ is not defined

in the statute.   Generally speaking, ‘unreasonable’ commonly connotes a

decision that is ‘irrational’ or ‘not guided by sound judgment.’” Id. at 963.

Further, the sentencing court is permitted to deviate from the sentencing

guidelines so long as the court places on the record its reasons for the

deviation. 42 Pa.C.S.A. § 9721(b).          “Although the sentencing court is

required to consider and consult the Sentencing Guidelines when imposing a

sentence, it retains the discretion to sentence below the mitigated range as

long as it clearly explains the reasons for doing so. If the sentence imposed

is outside of the recommended guidelines, the trial court must provide a

contemporaneous written statement of the reason or reasons for the

deviation or it must state on the record in the presence of the defendant the

reasons for the sentence.” Commonwealth v. Childs, 664 A.2d 994, 996

(Pa. Super. 1995).

      Instantly, upon review, we do not find that the trial court’s sentence

was an abuse of discretion or unreasonable.        The trial court rendered its

sentence, on the record, as follows.

            The [trial c]ourt will base the following sentence on
            the minimum amount of confinement imposed
            consistent with the protection of the public, the

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            gravity of the offense, [and] the rehabilitative needs
            of [Appellee]. The [trial c]ourt has relied on the
            presentence report, incorporates [it] into the record
            [in the] reasons for the sentence, as well as
            additional submitted material [including letters
            supporting Appellee]. The [trial c]ourt had a chance
            to review statements by both counsel. And the [trial
            c]ourt did review the sentencing memorandum
            provided by the Commonwealth.

                   The    [trial c]ourt     has  considered     the
            circumstances of the offense[s], it did sit through the
            trial, and also [Appellee’s] circumstances, character,
            education, the fact that she is a mother of a small,
            younger child, and has looked to the sentencing code
            and guidelines. The [trial c]ourt having sat through
            the trial and having heard everything, and, having
            learned about [Appellee] finds that … she obviously,
            under the sentencing guidelines, needs the
            incarceration, but the [trial c]ourt will go into the
            mitigated range and sentence [her at Count One,
            aggravated assault, to 11½ to 23½ months’
            incarceration].
                                       …

            [At Count Two, aggravated assault, to a consecutive
            five years’ probation. Count Five, simple assault,
            and Count Six, harassment, merge.]

N.T., 8/6/15, at 4-6, 8.

      The trial court further commented as follows.

                  [Appellee], I sat through your trial.     Your
            charges are serious. I have made a decision that,
            you know, with what you have going on in life, that
            you have the possibility that state prison wasn’t
            going to be the right place for you, that you should
            have a chance to be with your family. You have
            issues that you need to work on, and I’m hoping that
            you have a chance to do that during this time period
            and that you can get out and get on with your life
            and get back to your son and move on from there.



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            And that was one of the main reasons for this
            sentence.
Id. at 9.

      In addition to being familiar with the facts of the case, the trial court

was well-aware of the Commonwealth’s position regarding sentencing. After

hearing from the Commonwealth on August 6, 2015 and imposing Appellee’s

sentence, and then reviewing the Commonwealth’s subsequent motion to

modify sentence, the trial court convened oral argument on August 31,

2015, and at the conclusion of argument stated, “All right. I’ll take a look at

it and I will have a decision. Thank you.” N.T., 8/31/15, at 13. The trial

court thereafter denied the Commonwealth’s motion to modify sentence.

      Given the record before us as detailed above, we find no abuse of the

trial court’s discretion in rendering Appellee’s sentence.    Accordingly, we

affirm the August 6, 2015 judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2016




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