Com. v. Scullin

• Decision Date: 02 June 1992
• Citation: 607 A.2d 750,414 Pa.Super. 442
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Frank SCULLIN, Appellee.
• Court: Pennsylvania Superior Court

Page 750

607 A.2d 750

414 Pa.Super. 442

COMMONWEALTH of Pennsylvania, Appellant, v. Frank SCULLIN, Appellee.

Superior Court of Pennsylvania.

Argued Oct. 8, 1991.

Filed April 3, 1992.

Reargument Denied June 2, 1992.

Hugh Burns, Jr., Asst. Dist. Atty., Philadelphia, for Com., appellant.

F. Emmett Fitzpatrick, Jr., Philadelphia, for appellee.

Before CAVANAUGH, McEWEN, and OLSZEWSKI, JJ.

OLSZEWSKI, Judge:

This is an appeal by the Commonwealth challenging the discretionary aspects of the sentence imposed upon appellee Frank Scullin by the Court of Common Pleas of Philadelphia County. Upon evidence received at a non-jury trial, appellee was convicted of involuntary manslaughter and sentenced to five years of probation. The Commonwealth filed a timely motion for reconsideration of sentence and it was denied. This appeal of sentence followed. Because we believe that the sentencing court erred in not applying the deadly weapons enhancement of the Sentencing Code and in not providing a contemporaneous statement of reasons for deviating from the sentencing guidelines, we vacate the judgment of sentence and remand for resentencing.

Although various narratives of the events of the night of July 4, 1989 were offered at trial, the facts of the case, as determined by the fact finder, are as follows. On that night, appellee and a companion chased and confronted fifteen-year-old Steven Crespo and a cousin of Crespo. Appellee believed that the boys were attempting to steal a car. Appellee tried to grab Crespo and punched him. Crespo ran into the street and threw a tire iron at appellee. The tire iron did not strike appellee, but he picked it up, threw it at Crespo, and struck him in the back of his head. Crespo fell to the ground and subsequently died. The cause of the victim's death was a blunt force injury to the back of his head. Trial court opinion at 2-3.

After a non-jury trial, appellee was found guilty of involuntary manslaughter and subsequently sentenced to five (5) years of strict reporting probation.

On appeal, the Commonwealth asks us to examine what is essentially one issue: whether the sentencing court abused its discretion under the Sentencing Code when it imposed a sentence of five years' probation upon appellee. This question challenges the discretionary aspects of the sentence rather than its legality. Objections to the legality of a sentence charge that the sentence is defective in itself--for instance, where offenses have not been merged for sentencing, or where the sentence exceeds the permissible maximum. Commonwealth v. Mathis, 317 Pa.Super. 362, 371, 464 A.2d 362, 367 (1983). Claims like the Commonwealth's, however, which charge that a sentence is too lenient under the Sentencing Code, have been treated as discretionary challenges. See e.g., Commonwealth v. Cleveland, 364 Pa.Super. 402, 528 A.2d 219 (1987); Commonwealth v. Cornish, 403 Pa.Super. 492, 589 A.2d 718 (1991). The discretionary sentencing issue can further be broken into the following three sub-issues:

(1) Whether the sentencing court should have applied the deadly weapon enhancement of the sentencing code.

(2) Whether the sentencing court erred by not placing its reasons for not applying the deadly weapon enhancement on the record.

(3) Whether the sentencing court should have considered appellant's threats to New Jersey police officers who arrested him for a subsequent, unrelated offense when the court imposed the sentence.

In order to preserve an appeal from the discretionary aspects of a sentence, certain procedures must be followed. First, the sentencing issues must be properly preserved in a timely motion for reconsideration of sentence. Pa.R.Crim.P. 1410. Commonwealth v. Penrod, 396 Pa.Super. 221, 229, 578 A.2d 486, 490 (1990). As stated above, appellant filed a timely petition for reconsideration of sentence and it properly preserved the issues. Next, as part of its brief, appellant must set forth any discretionary sentencing issues in its statement of questions presented. Pa.R.A.P. 2116(b); Commonwealth v. Tuladziecki, 513 Pa. 508, 512, 522 A.2d 17, 19 (1987). Appellant must also provide a Pa.R.A.P. 2119(f) statement which includes a concise prefatory statement of reasons for allowance of appeal. Id., 513 Pa. at 512, 522 A.2d at 19. The Commonwealth's brief meets both of these procedural requirements.

Next, we must determine whether the 2119(f) statement demonstrates a substantial question that the sentencing court imposed a sentence that was inappropriate under the Sentencing Code. Id. We note that in deciding whether a substantial question exists, we may not look beyond the statement of questions presented and the concise prefatory 2119(f) statement. Commonwealth v. Felix, 372 Pa.Super. 145, 155, 539 A.2d 371, 376 (1988), allocatur denied 525 Pa. 642, 581 A.2d 568 (1990). A substantial question exists where "appellant advances a colorable argument that the trial judge's actions were either inconsistent with the specific provisions of the Sentencing Code, or contrary to the norms which underlie the sentencing process." Commonwealth v. Zelinski, 392 Pa.Super. 489, 499, 573 A.2d 569, 574 (1990). Appellant does not have an appeal as of right from the discretionary aspects of a sentence. Id. It is only where a party sets forth reasons why a particular sentence has compromised the sentencing scheme as a whole that the appellate court will review the manner in which the trial court exercised its discretion. Tuladziecki, 513 Pa. at 516, 522 A.2d at 21. As a result, the Rule 2119(f) statement must enable the reviewing court to decide whether the case should be reviewed without considering appellant's argument on the merits. Zelinski, 392 Pa.Super. at 499, 573 A.2d at 574.

We find that the Commonwealth's assertion that the sentencing court erroneously refused to apply the deadly weapon enhancement raises a substantial question for review. See Commonwealth v. Pokorny, 360 Pa.Super. 384, 386, 520 A.2d 511, 512 (1987); Cornish, 403 Pa. Superior Ct. at 494, 589 A.2d at 720 (allegation that sentencing court refused to apply deadly weapon enhancement provision of Sentencing Code is a substantial question). ¹

Once it is determined that a substantial question exists, the merits are assessed using abuse of discretion as the standard of review. Commonwealth v. Minott, 395 Pa.Super. 552, 577 A.2d 928 (1990). We now move to the merits of this claim to determine whether an abuse can be found.

The Commonwealth charges that the trial court erred when it imposed a sentence within the mitigated range of the guidelines rather than a sentence within the enhanced guidelines. The Commonwealth concedes that the sentence imposed under the mitigated range would have been a proper sentence for involuntary manslaughter if the deadly weapon enhancement was not required. Brief for appellant [414 Pa.Super. 448] at 6, n. 3. The Commonwealth believes, however, that an enhanced guideline sentence was required because appellee used a lug wrench to strike the victim. We must, therefore, decide whether the tire iron, as it was used in the circumstances of this case, constituted a deadly weapon. We believe that it did.

The Pennsylvania legislature has provided the courts with a statutory definition of "deadly weapon." It provides, in pertinent part,

"Deadly weapon." Any firearm, whether 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.C.S.A. § 2301 (emphasis added).

Although deadly weapons are commonly items which one would traditionally think of as dangerous (e.g., guns, knives, etc.), there are instances when items which normally are not considered to be weapons can take on deadly status. See e.g., Commonwealth v. Prenni, 357 Pa. 572, 55 A.2d 532 (1947) (broom handle); Commonwealth v. Cornish, 403 Pa.Super. 492, 589 A.2d 718 (1991) (fireplace poker); Commonwealth v. Brown, 402 Pa.Super. 369, 587 A.2d 6 (1991) (dry-wall saw). The definition of deadly weapon does not demand that the person in control of the object intended to injure or kill the victim. Instead, it gives objects deadly weapon status on the basis of their use under the circumstances. See Commonwealth v. Burns, 390 Pa.Super. 426, 429, 568 A.2d 974, 976 (1990), allocator denied 525 Pa. 616, 577 A.2d 888 (1990). It does not matter, for the purpose of determining the status of the tire iron, whether or not appellee intended for it to trip the victim or to do more serious injury. Thus, we fail to see why it matters, as it does to the trial court, that the tire iron belonged to the victim or that appellee may have believed he was justified in throwing it at Crespo after Crespo threw it at him. ²

Although a tire iron is not traditionally deemed a deadly weapon, it is an instrument which is likely to produce death or serious bodily injury if used in a manner such as that used by appellee against Steven Crespo. If one throws a tire iron, a heavy object made of a heavy metal, at another person, there is a high probability that the victim will be seriously hurt or killed. Thus, the tire iron used by appellee to strike the victim became a deadly weapon at the moment appellee threw it in the direction of the ultimate victim.

This Court has decided that in the context of calculating the recommended guidelines' sentence, a sentencing court has no discretion to refuse to apply 204 Pa.Code § 303.4, the deadly weapons enhancement. Cornish, 403 Pa.Super. at 494, 589 A.2d at 720; Commonwealth v. Septak, 359 Pa.Super. 375, 380, 518 A.2d 1284, 1286 (1986); Commonwealth v. Drumgoole, 341 Pa.Super. 468, 474, 491 A.2d 1352, 1355 (1985). Thus, by refusing to consider the deadly weapons enhancement in calculating the appropriate range under the guidelines, the sentencing ...