Com. v. Rhoades

• Decision Date: 12 November 2010
• Citation: 8 A.3d 912
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Ross RHOADES Jr., Appellant.
• Court: Pennsylvania Superior Court

8 A.3d 912 COMMONWEALTH of Pennsylvania, Appellee v. Ross RHOADES Jr., Appellant. Superior Court of Pennsylvania. Argued Aug. 25, 2010. Filed Nov. 12, 2010.

Joseph J. Hylan, Norristown, for appellant.

Adrienne Jappe, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: MUSMANNO, PANELLA and SHOGAN, JJ.

OPINION BY PANELLA, J.

Appellant, Ross Rhoades, appeals from the judgment of sentence entered on October 5, 2009, by the Honorable Paul W. Tressler, Court of Common Pleas of Montgomery County. After careful review, we affirm.

The facts of the instant case are as follows. Rhoades and the victim shared an apartment in Lansdale, Pennsylvania. On February 10, 2008, the couple had an argument and the victim stayed at a friend's house that evening. The following afternoon, on February 11, 2008, Rhoades convinced the victim to return to their apartment to discuss their relationship. When the victim arrived at the apartment, Rhoades immediately verbally and physically attacked her. Throughout the course of the horrific assault, Rhoades: beat the victim repeatedly with both fists and a riding crop, threatened to burn her eye with a lit cigarette, choked her with an extension chord and a belt, threatened her with a knife, attempted to drown the victim in a bucket filled with Pine Glo and mop water, doused the victim in lighter fluid and taunted her by holding a lighter to her dress, and anally raped her with a glass beer bottle. The victim ultimately escaped from the apartment and called 911.

Rhoades was subsequently arrested and charged with attempted first degree murder,¹ two counts of rape,² two counts of involuntary deviate sexual intercourse ("IDSI"),³ two counts of aggravated assault, ⁴ two counts of simple assault,⁵ terroristic threats,⁶ unlawful restraint,⁷ recklessly endangering another person ("REAP"), ⁸ and possession of an instrument of crime ("PWID").⁹ On May 26, 2009, Rhoades entered an open guilty plea to one count of IDSI, two counts of aggravated assault, and one count each of terroristic threats, unlawful restraint, REAP, and PWID, in exchange for which all other charges were nol prossed.¹⁰ On October 5, 2009, following a hearing and review of a pre-sentence investigation report, the lower court sentenced Rhoades to an aggregate term of no less than fifteen nor more than 40 years imprisonment. This timely appeal followed.

On appeal, Rhoades raises the following issues for our review:

1. Did the [t]rial [c]ourt err by applying the Deadly Weapon Enhancement, thereby calculating an incorrect sentencing matrix applicable to the offense of Involuntary Deviate Sexual Intercourse in so far as the instrumentality used (that is, a bottle) was not a deadly weapon?

2. Did the [t]rial [c]ourt err by applying the Deadly Weapon Enhancement, thereby calculating an incorrect sentencing matrix applicable to the offense of Involuntary Deviate Sexual Intercourse in so far as the item used (that is, a bottle) was an element of the offense?

3. Did the [t]rial [c]ourt err in failing to merge for purposes of sentencing the two charges of Aggravated Assault as both charges arose out of the same course of criminal conduct?

4. Considering the significant circumstances presented in mitigation, was [sic] the sentences imposed unduly harsh?

Appellant's Brief, at 2.

Rhoades claims that the sentencing court abused its discretion in applying the deadly weapon enhancement to the sentence imposed on the IDSI conviction because the glass bottle employed to anally penetrate the victim is not a deadly weapon. See Appellant's Brief, at 9. We disagree.

Because Rhoades claims that his sentence is excessive, he does not challenge its legality; rather, he challenges its discretionary aspects. "Issues challenging the discretionary aspects of a sentence must be raised in a post-sentence motion or by presenting the claim to the trial court during the sentencing proceedings." Commonwealth v. Shugars, 895 A.2d 1270, 1273-74 (Pa.Super.2006). "Absent such efforts, an objection to a discretionary aspect of a sentence is waived." Id. at 1274.

The certified record reveals that on October 7, 2009, Rhoades filed a Motion for Reconsideration of Sentence, alleging thatthe trial court erred in applying the deadly weapon enhancement to the sentence imposed on the IDSI conviction. As this motion adequately preserved Rhoades's challenge to the discretionary aspects of his sentence, we will proceed to address his arguments on appeal.

We begin our review by noting that, "[a] challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute." Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super.2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004) (citation omitted). When challenging the discretionary aspects of the sentence imposed, an appellant must present a substantial question as to the appropriateness of the sentence. See Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa.Super.2005). "Two requirements must be met before we will review this challenge on its merits." McAfee, 849 A.2d at 274. "First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence." Id. "Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code." Id. That is, "the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process." Tirado, 870 A.2d at 365. We examine an appellant's Rule 2119(f) statement to determine whether a substantial question exists. ¹¹ See id. "Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits." Id.

In the present case, Rhoades's appellate brief contains the requisite Rule 2119(f) concise statement, and, as such, is in technical compliance with the requirements to challenge the discretionary aspects of a sentence. Further, we have found on several occasions that the application of the deadly weapon enhancement presents a substantial question. See, e.g., Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa.Super.2010) (citation omitted); Commonwealth v. Hatcher, 746 A.2d 1142, 1144 (Pa.Super.2000); Commonwealth v. Greene, 702 A.2d 547, 551 (Pa.Super.1997). Therefore, we will address the merits of Rhoades's claim.

To determine whether a deadly weapon enhancement should apply, the Sentencing Code provides as follows:

When the Court determines that the offender used a deadly weapon during the commission of the current conviction offense, the Court shall use the DWE/Used Matrix (§ 303.18). 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 P.S. § 913) or (iii) any device, implement, or Instrumentalitycapable of producing death or serious bodily injury.

204 Pa.Code § 303.10(a)(2).

Pennsylvania law defines a deadly weapon as "any firearm, loaded or unloaded, or any device designed as a weapon and capable of producing death or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury." 18 Pa. Cons.Stat. Ann. § 2301 (emphasis added). Serious bodily injury is defined as "[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." Id.

Items not normally considered deadly weapons can take on such status based upon their use under the circumstances. Commonwealth v. Raybuck, 915 A.2d 125, 128 (Pa.Super.2006) (citing Commonwealth v. Scullin, 414 Pa.Super. 442, 607 A.2d 750, 753 (1992) (finding tire iron thrown at victim was a deadly weapon), appeal denied, 533 Pa. 633, 621 A.2d 579 (1992)); Commonwealth v. Cornish, 403 Pa.Super. 492, 589 A.2d 718, 721 (1991) (fireplace poker used to strike victim constituted a deadly weapon); Commonwealth v. Brown, 402 Pa.Super. 369, 587 A.2d 6, 7 (1991) (saw used to stab victim was a deadly weapon).

As used under the instant circumstances, we do not hesitate to find an intact glass bottle constituted a deadly weapon. As previously noted, the victim testified at sentencing that Rhoades anally raped her with a beer bottle. N.T., Sentencing, 10/5/09, at 27. Clearly, a glass bottle forcibly inserted into a body cavity, here, the rectum, is calculated or likely to produce "serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." 18 Pa. Cons.Stat. Ann. § 2301; 204 Pa.Code § 303.10(a)(2). Accordingly, we find no error in the trial court's determination that a glass bottle constituted a deadly weapon under the circumstances of the instant case.

Rhoades alternatively argues that the trial court erred when it applied the deadly weapon enhancement to his IDSI conviction. The Sentencing Code provides that there shall be no deadly weapon enhancement for "[a]ny offense for which possession of a Deadly Weapon is an element of the statutory definition." 204 Pa.Code § 303.10(a)(3)(ix). Rhoades contends that the glass bottle was an element of the IDSI offense and therefore, "the instrumentality cannot then trigger an application of the Deadly Weapon Enhancement." Appellant's Brief, at 10.

We cannot agree with Rhoades's interpretation of the statutory elements of involuntary deviate sexual intercourse. A person commits IDSI when the person "engages in deviate sexual intercourse with a complainant: (1) by...