Com. v. Brougher, 954 MDA 2008.

• Decision Date: 13 July 2009
• Docket Number: No. 954 MDA 2008.,954 MDA 2008.
• Citation: 978 A.2d 373,2009 PA Super 131
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Eli Garrett BROUGHER, Appellant.
• Court: Pennsylvania Superior Court

978 A.2d 373

2009 PA Super 131

COMMONWEALTH of Pennsylvania, Appellee v. Eli Garrett BROUGHER, Appellant.

No. 954 MDA 2008.

Superior Court of Pennsylvania.

Submitted February 23, 2009.

Filed July 13, 2009.

Barbara L. Wevodau, New Bloomfield, for appellant.

Daniel W. Stern, Asst. Dist. Atty., New Bloomfield, for the Com., appellee.

BEFORE: PANELLA, SHOGAN and KELLY, JJ.

OPINION BY KELLY, J.:

¶ 1 Appellant, Eli Garrett Brougher, appeals from the judgment of sentence entered in the Perry County Court of Common Pleas. The issue presented on appeal is whether an unloaded toy pistol, designed to shoot small plastic pellets, constitutes a deadly weapon for purposes of the deadly weapons enhancement. We affirm.

¶ 2 On September 20, 2007, Appellant, then seventeen years of age, entered a Uni-Mart in New Bloomfield, Perry County wearing a Halloween mask with a black pointed hood. He approached a clerk displaying what appeared to be a handgun, pointed the weapon at the clerk's face, and demanded that she open the cash register. Appellant then reached over the counter, took $269 and fled from the store on foot. It was later determined that the weapon used during the course of the robbery was an air-soft pistol, which looks like a real pistol, but shoots small plastic pellets by either spring or air action similar to a BB gun. (N.T. Plea, 3/20/08, at 4).

¶ 3 Appellant pleaded guilty to robbery with the threat of immediate serious injury.¹ On May 1, 2008, Appellant was sentenced to five to ten years' imprisonment for robbery while in possession of a firearm pursuant to the deadly weapons enhancement, 204 Pa.Code § 303.10, and was ordered to pay restitution to the store in the amount of $269. (N.T. Sentencing, 5/1/08, at 9). The trial court denied Appellant's motion to modify sentence. On May 28, 2008, Appellant filed a timely notice of appeal and timely complied with the court's order to file a statement of errors complained of on appeal.

¶ 4 Appellant's sole claim on appeal is that the sentencing court erred in applying the deadly weapons enhancement. Appellant argues that the instrument used in the robbery was a toy, and that the Commonwealth failed to offer any evidence at sentencing to indicate that the toy was loaded and had the potential to discharge. Thus, he claims that it was not capable of producing serious bodily injury to the clerk, and that it was not a deadly weapon for purposes of the deadly weapons enhancement.² We disagree.

¶ 5 Preliminarily, we note that Appellant has substantially failed to comply with the requirements of Pa.R.A.P. 2111. Specifically, Appellant has failed to include with his brief a statement of jurisdiction, an order or other determination in question, a statement of the scope of review and the standard of review, a summary of argument, the opinion of the trial court, the transcripts of the guilty plea and sentencing hearing, or a copy of the statement of errors complained of on appeal. Nevertheless, our review is not impeded because Appellant has identified the applicability of the deadly weapons enhancement as the issue presented.

¶ 6 Additionally, claims relating to the discretionary aspects of a sentence are waived if an appellant does not include a Pa.R.A.P. 2119(f) statement in his brief and the opposing party objects to the statement's absence.³ Commonwealth v. Foster, 960 A.2d 160, 163 (Pa.Super.2008), appeal granted, (Pa. 2009). Appellant has failed to comply with the requirement of 2119(f); however, the Commonwealth did not object to the statement's absence. Therefore, we will not find it waived. See id.

¶ 7 Although Appellant's claim is not waived for failure to comply with Rules 2111 or 2119(f), we are constrained to find waiver for his failure to sufficiently develop his issue pursuant to Pa.R.A.P. 2119(a)(b). As a general rule, an appellant "shall have at the head of each part [of his argument] — in distinctive type or in type distinctively displayed — the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent." Pa.R.A.P. 2119(a). "Citations of authorities must set forth the principle for which they are cited.... Quotations from authorities or statutes shall also set forth the pages from which they are taken." Pa.R.A.P. 2119(b); see also Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa.Super.2006) ("Arguments not appropriately developed are waived."). Here, Appellant failed to state at the beginning of his argument the particular point treated therein. Additionally, Appellant does not support any of his claims with pertinent case law. Appellant cites to only one case, without providing a pinpoint reference:

In [sic] Commonwealth v. Chapman, 528 A.2[d] 99[0] ([Pa.Super.] 1987), held that "while there is no requirement that the victim actually be immediate danger [sic] of serious injury, the device or instrumentality must be used in a manner, that could cause serious bodily injury." In the instant case, the Commonwealth offered no facts at sentencing that the toy was loaded and was capable of producing serious bodily injury.

(Appellant's Brief, at 5). Although Chapman uses similar language, the quotation from Appellant's brief does not appear anywhere in that case. Rather, Chapman provides:

The definition [of a "deadly weapon"] clearly states the device or instrumentality must be "calculated or likely to produce death or serious bodily injury;" there is no requirement in the definition that the victim actually be in immediate danger of serious bodily injury.

Chapman, supra at 991 (quoting 18 Pa. C.S.A. § 2301). Because Appellant did not properly form the heading of his argument or cite to relevant authority, his claim is waived. See Pa.R.A.P. 2119(a)-(b).

¶ 8 Moreover, even if the issue were not waived, no relief would be due.

[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.... 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 as to be clearly erroneous."

Diamond, supra at 258 (citation omitted).

[A] sentencing court is not obligated to sentence within the sentencing guidelines[;] ... however, this Court has repeatedly instructed that the sentencing court must correctly apply the sentencing guidelines to reach the correct point of departure, before exercising its discretion to depart from the guidelines in any particular case.

These rules apply to the deadly weapons enhancement. [Although] "[t]he trial court lacks the discretion to refuse to apply the deadly weapon sentencing enhancement[,][t]he court's discretion comes into play when it is time to impose a sentence, once the court determines the adjusted sentencing guideline range."

Id. at 259 (citation omitted).

¶ 9 In Pennsylvania, a person is guilty of robbery in the first degree if, in the course of committing a theft he:

(i) inflicts serious bodily injury upon another;

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury; [or]

(iii) commits or threatens immediately to commit any felony of the first or second degree[.]

18 Pa.C.S.A. § 3701(a)(1)(i)-(iii). Under the sentencing guidelines,

[w]hen the court determines that the offender possessed a deadly weapon during the commission of the current conviction offense, the court shall consider the [deadly weapon enhancement]/Possessed Matrix (§ 303.17). 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.[A.] § 9712) whether loaded or unloaded, or

(ii) Any dangerous weapon (as defined in 18 Pa.C.S.[A.] § 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 defendant intended to use the weapon to threaten or injure another individual.

204 Pa.Code § 303.10(a)(1)(i)-(iii).

¶ 10 The sentencing code requires a mandatory minimum sentence be imposed on anyone convicted of a violent crime who visibly possessed a firearm, or firearm replica, during the commission of the crime.

Generally, a challenge to the application of a mandatory minimum sentence is a non-waiveable challenge to the legality of the sentence. Issues relating to the legality of a sentence are questions of law, as are claims raising a court's interpretation of a statute. Our standard of review over such questions is de novo and our scope of review is plenary.

Diamond, supra at 256 (citations omitted). The mandatory minimum sentence statute holds that

any person who is convicted in any court of this Commonwealth of a crime of violence as defined in section 9714(g) (relating to sentences for second and subsequent offenses), shall, if the person visibly possessed a firearm or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or serious bodily injury, during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.

42 Pa.C.S.A. § 9712(a) (emphasis added). Robbery, as defined in 18 Pa.C.S.A. § 3701(a)(1)(i), (ii), or (iii), is considered a crime of violence. See 42 Pa.C.S.A. § 9714(g). A firearm includes any weapon that "will or is designed to or may readily be converted to expel a...