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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
VICTOR MARTINEZ-HERRERA
Appellant No. 1433 MDA 2016
Appeal from the Judgment of Sentence July 25, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0001295-2016
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED JULY 25, 2017
Victor Martinez-Herrera appeals from the judgment of sentence
entered on July 25, 2016, in the Berks County Court of Common Pleas. On
that same day, pursuant to a charge agreement, Martinez-Herrera pled
guilty to one count of robbery.1 The court sentenced Lee to a term of five to
ten years’ incarceration. On appeal, Martinez-Herrera raises the following
issues: (1) whether the trial court erred by failing to consider all appropriate
sentencing guideline factors when imposing his sentence; and (2) whether
the trial court erred by applying the deadly weapon (used) enhancement
(“DWE”) absent evidence that Martinez-Herrera used a “deadly weapon” as
defined by the Pennsylvania Sentencing Code. See Martinez-Herrera’s Brief
____________________________________________
1
18 Pa.C.S. § 3701(a)(1)(ii).
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at 4. After a thorough review of the submissions by the parties, the certified
record, and relevant law, we affirm the judgment of sentence.
The facts were summarized by the Commonwealth at Martinez-
Herrera’s guilty plea hearing and are as follows. On March 7, 2016, in the
city of Reading, Pennsylvania, while riding in a taxi being driven by the
victim, Ralph Valletta, Martinez-Herrera threatened Valletta by pointing what
appeared to be a black handgun, but was subsequently determined to be a
BB gun, at his head and saying, “Give me the money.” N.T., 7/25/2016, at
6. Martinez-Herrera pulled the hood of his sweatshirt down and tightened it
around his head. Id. at 5. He also wore a mask so only his eyes were
visible. Id. Valletta handed him $11.00 in one-dollar bills. Id. at 6.
Martinez-Herrera said, “I don’t want to shoot you, but I will. Give me all the
money.” Id. The victim informed Martinez-Herrera that he had no more
money. Id. Martinez-Herrera then asked the victim to give him his cell
phone but the act was interrupted by a responding deputy sheriff. Id.
Martinez-Herrera was charged with four counts of robbery, and one
count each of prohibited offensive weapons, possessing instruments of
crime, simple assault, theft by unlawful taking or disposition, and
harassment. As noted above, on July 25, 2016, Martinez-Herrera pled
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guilty, pursuant to a charge agreement, to one count of robbery. That same
day, the court sentenced him to a term of five to ten years’ incarceration.2
On August 4, 2016, Martinez-Herrera filed a post-sentence motion for
modification of sentence.3 The court denied the motion on August 9, 2016.
This appeal followed.4
In his first claim, Martinez-Herrera asserts the trial court failed to
adequately consider his rehabilitative needs when fashioning his sentence.
Martinez-Herrera’s Brief at 11. Specifically, Martinez-Herrera states that
while the court did consider his young age, his lack of a prior record, and
that he was in high school at the time of the incident, it neglected to
consider his rehabilitative needs. Id. at 11-12. Moreover, he states that he
“is young and appears to be amenable to therapeutic programs.” Id. at 13.
____________________________________________
2
The court gave him a credit of 140 days for time served.
3
Several days earlier, on July 29, 2016, Martinez-Herrera filed a pro se
post-sentence motion requesting a modification of the sentence. He also
filed a pro se amended petition for reconsideration and/or modification of
sentence filed nunc pro tunc. However, both filings were considered legal
nullities because Martinez-Herrera was represented by counsel. See Trial
Court Opinion, 10/17/2016, at 2; see also Commonwealth v. Ali, 10 A.3d
282, 293 (Pa. 2010) (explaining that a pro se filing presented by an
appellant represented by counsel is a “legal nullity”).
4
On September 1, 2016, the trial court ordered Martinez-Herrera to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Martinez-Herrera filed a concise statement on September 21,
2016. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
October 17, 2016.
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As presented, Martinez-Herrera’s issue challenges the discretionary
aspects of his sentence. See Commonwealth v. Swope, 123 A.3d 333,
337 (Pa. Super. 2015) (explaining argument that claims court failed to
consider rehabilitative needs challenges discretionary aspects of sentencing).
“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. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007)
(citations and quotation marks omitted). To reach the merits of a
discretionary issue, this Court must determine:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)
(footnotes omitted).
Here, Martinez-Herrera filed a timely notice of appeal and included the
requisite statement pursuant to Pa.R.A.P. 2119(f) in his appellate brief.
Moreover, counsel for Martinez-Herrera preserved the claim by raising it in
the August 4, 2016, post-sentence motion. See Martinez-Herrera’s Post-
Sentence Motion, 8/4/2016, at ¶ 6 (general challenge stating court failed to
adequately consider the Sentencing Code criteria). Therefore, we may
proceed to determine whether Martinez-Herrera has presented a substantial
question that the sentence appealed from is not appropriate under the
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Sentencing Code. Commonwealth v. Edwards, 71 A.3d 323, 330 (Pa.
Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013).
With respect to whether an issue presents a substantial question, we
are guided by the following:
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. See
Commonwealth v. Paul, 2007 PA Super 134, 925 A.2d 825
(Pa. Super. 2007). “A substantial question exits 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. Griffin, 2013 PA Super 70, 65 A.3d 932,
2013 WL 1313089, *2 (Pa. Super. filed 4/2/13) (quotation and
quotation marks omitted).
Edwards, 71 A.3d at 330 (citation omitted).
A claim that the trial court failed to consider a defendant’s
rehabilitative needs does raise a substantial question for our review. See
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)
(en banc) (“[a]rguments that the sentencing court failed to consider the
factors proffered in 42 Pa.C.S. § 9721 . . . present a substantial question”
(quotation marks and citation omitted)), appeal denied, 104 A.3d 1 (Pa.
2014). Hence, we will consider the substantive merits of Martinez-Herrera’s
sentencing claim.
The standard of review for a claim challenging a discretionary aspect
of sentencing is well-established:
Sentencing is a matter vested in the sound discretion of
the judge, and will not be disturbed on appeal absent a manifest
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abuse of discretion. An abuse of discretion is not shown merely
by an error in judgment. Rather, the appellant must establish,
by reference to the record, that the sentencing court ignored or
misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation
omitted), appeal denied, 980 A.2d 607 (Pa. 2009).
Moreover, pursuant to 42 Pa.C.S. § 9721(b), “the court shall follow the
general principle that the sentence imposed should call for confinement that
is consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721(b). Additionally,
“the court shall make as part of the record, and disclose in open court at the
time of sentencing, a statement of the reason or reasons for the sentence
imposed.” Id. The record in toto “must reflect the [trial] court’s
consideration of the facts of the crime and character of the offender.”
Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010), appeal
denied, 13 A.3d 475 (Pa. 2010).5 “In particular, the court should refer to
the defendant’s prior criminal record, his age, personal characteristics and
his potential for rehabilitation.” Commonwealth v. Griffin, 804 A.2d 1, 10
____________________________________________
5
A trial court “need not undertake a lengthy discourse for its reasons for
imposing a sentence or specifically reference the statute in question[.]”
Crump, 995 A.2d at 1283.
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(Pa. Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert denied,
545 U.S. 1148 (2005).
Turning to the present matter, on July 25, 2016, Martinez-Herrera
entered an open guilty plea and the trial court immediately proceeded to
sentencing, where the court imposed a sentence of five to ten years’
incarceration. Prior to the hearing, Martinez-Herrera signed a written plea
colloquy, in which he indicated he is bipolar and takes Seroquel, to treat his
disorder. See Statement Accompanying Defendant’s Request to Enter a
Guilty Plea, 7/25/2016, at 2. He also acknowledged the trial court could
impose a maximum sentence of 20 years’ imprisonment. Id.
At the plea hearing, he again agreed that he understood the maximum
sentence permissible by law for robbery. N.T., 7/25/2016, at 5. The record
is unclear whether a pre-sentence investigation was ordered. Nevertheless,
the applicable sentencing guidelines, including the deadly weapon
enhancement, as well as Martinez-Herrera’s prior criminal history were
placed on the record. Id. at 7-8. The court heard testimony from both the
victim and Martinez-Herrera. Id. at 8-14. At the conclusion of the hearing,
the court stated: “The Court has taken into consideration [Martinez-
Herrera]’s age, that he’s 19 years old, that he was a senior in high school,
that he has no adult record. I have taken into account Mr. Valletta’s
statement here. I’m going to go along with the recommendation of the
Commonwealth.” Id. at 14-15.
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In its Rule 1925(a) opinion, the trial court further explained its
rationale for imposing Martinez-Herrera’s sentence as follows:
[A]t the time of [Martinez-Herrera]’s sentencing on Robbery, a
felony of the first degree, he was subject to a maximum
permissible sentence of no more than twenty (20) years of
imprisonment. 18 Pa.C.S.A. § 1103. This Court, in fashioning
the sentence as it did, took into consideration multiple factors
including the nature of the offense, protection of the public, the
rehabilitative needs of [Martinez-Herrera], the impact on the
victim and community, and the sentencing guidelines.
[Martinez-Herrera] had no prior adult criminal record ([Martinez-
Herrera] was adjudicated delinquent as a juvenile for statutory
sexual assault) and was a 19 year old senior attending high
school when he committed this armed robbery. This Court heard
testimony from the victim, Ralph F. Valletta, and considered his
statements during sentencing. Mr. Valletta informed this Court
that “having a gun pointed at [his] head was the most
terrorizing, terrifying experience [he] had in [his] life.”
[Martinez-Herrera] admitted he was under the influence of drugs
(specifically, K2[, a synthetic marijuana]) and alcohol at the time
he committed the offense and had been using drugs for six (6)
months. He also stated that any money he would obtain was
being used to purchase drugs. This Court also observed
[Martinez-Herrera] during the guilty plea hearing and considered
his apologies to his mother and Mr. Valletta. This Court found
that [Martinez-Herrera] has a drug problem which resulted in the
commission of this violent and traumatic offense. In
consideration of the above factors, this Court determined that an
extended period of incarceration was necessary to protect the
community and victim as well as to protect [Martinez-Herrera]
from doing further harm to himself through his drug use.
As placed on the record by the Assistant District Attorney,
this Court considered [Martinez-Herrera]’s prior record score of 2
and the standard sentencing ranges for [Martinez-Herrera]
based on an offense gravity score of 10. In accordance with the
Pennsylvania Sentencing Code, the standard range on [Martinez-
Herrera]’s Robbery charge was 36 to 48 months but, when
applying the deadly weapon enhancement/used matrix, the
standard sentencing range increased to 54 to 66 months.
Therefore, the sentence imposed by this Court of 5 years (60
months) to 10 years (120 months) was within the standard
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sentencing range when applying the deadly weapon
enhancement. [Martinez-Herrera]’s sentence was well within the
twenty (20) year maximum permissible sentence and was not
manifestly excessive or unreasonable, or the result of partiality,
prejudice, bias, or ill-will.
Trial Court Opinion, 10/17/2016, at 6-7 (citations and record citations
omitted).
Based upon our standard of review, we conclude the trial court did not
abuse its discretion with regard to Martinez-Herrera’s sentence. Contrary to
Martinez-Herrera’s argument, it is evident from the sentencing hearing and
the Rule 1925(a) opinion that the court did indeed consider the required
factors under Section 9721(b), including Martinez-Herrera’s rehabilitative
needs. Moreover, the court acknowledged its understanding of the
sentencing guidelines, and articulated a sufficient statement of reasons for
sentencing as it did. Therefore, Martinez-Herrera’s discretionary sentencing
claim fails.
In his second argument, Martinez-Herrera claims the trial court erred
in applying the DWE for a myriad of reasons. See Martinez-Herrera’s Brief
at 13. First, Martinez-Herrera states the court did not make a determination
that he used a deadly weapon during the robbery. He alleges:
Although the court discussed the application of the Deadly
Weapons Enhancement with the attorneys and despite the fact
that [the] trial court agreed that the enhancement would be
applicable, the court never made a specific determination that
[Martinez-Herrera] had “used a deadly weapon during the
commission of the current conviction offense.” 204 Pa. Code §
303.10(a)(2). Absent such a determination, application of the
Deadly Weapon enhancement was improper.
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Id. at 14-15. Second, Martinez-Herrera complains there was insufficient
evidence to make a determination that he used a deadly weapon. Id. at 15.
This is a continuation of his earlier argument, in which he states the facts
placed on the record did not establish use of a deadly weapon; rather, “[t]he
only details relating to the true nature of the object produced by [Martinez-
Herrera] emerged from discussions between counsel and the court.” Id. at
15-16. Martinez-Herrera continues:
Just as defendants are strictly held to their sworn statements
made during a guilty plea, statements and comments of
attorneys or other third parties should not be attributable to a
defendant. To hold otherwise undermines the purposes and the
integrity of the statement made under oath during the course of
entering a guilty plea upon which the plea is based. Accordingly,
the statements by counsel, such as comments by the prosecutor
that the object used during the robbery was a “BB gun …
stamped and equipped to look like a real firearm”, should not be
considered as evidence.
Id. at 16 (record citation omitted). Additionally, Martinez-Herrera attempts
to distinguish the facts of his case by stating that no evidence was presented
to show he used the “gun;” instead, the facts demonstrated he merely
pointed the “gun” at the victim. Id. at 16.
Third, Martinez-Herrera argues that according to his sworn statement,
“he ‘produced what appeared to be a black handgun’ during the commission
of the robbery” and this evidence only met one of the three alternative
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definitions under 204 Pa. Code § 303.10(a)(2)(i)-(iii).6 With respect to this
allegation, he states, “The first, and most applicable, of the three possible
definitions of a deadly weapon refers to a now-unconstitutional statute,”
citing 42 Pa.C.S. § 9712 and Alleyne v. United States, 133 U.S. 2151
(2013).7 Martinez-Herrera’s Brief at 17. Moreover, he claims no evidence
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6
Section 303.10(a)(2) of the Sentencing Guidelines provides:
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 where the court
determines that the offender intended to use the weapon
to threaten or injure another individual.
204 Pa. Code § 303.10(a)(2)(i)-(iii).
7
In Alleyne, the United States Supreme Court held “[a]ny fact that, by
law, increases the penalty for a crime is an ‘element’ that must be submitted
to the jury and found beyond a reasonable doubt.” Alleyne, supra, 133
S.Ct. at 2155. In interpreting that decision, the courts of this
Commonwealth have determined that most of our mandatory minimum
sentencing statutes, including Section 9712, are unconstitutional because
the language of those statutes “permits the trial court, as opposed to the
jury, to increase a defendant’s minimum sentence based upon a
preponderance of the evidence” standard. Commonwealth v. Newman,
(Footnote Continued Next Page)
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was presented at the sentencing hearing with regard to the other two
definitions. Id. at 18-19. He states: (1) as to Section 303.10(a)(2)(ii),
“[t]here was no evidence presented at the sentencing hearing relating to the
object produced by [Martinez-Herrera], and certainly none that would meet
this definition of a ‘dangerous weapon’ set forth in Section 913;” and (2) as
to Section 303.10(a)(2)(iii), “[t]here was no evidence regarding the object’s
identity, much less its capacity for causing death or injury.” Id.8 Lastly,
Martinez-Herrera asserts Alleyne alters the analysis in his case in two ways:
(1) “Alleyne stands for the general proposition that any fact that increases
the penalty for a crime is an ‘element’ to be decided by a jury, beyond a
reasonable doubt;” and (2) “Alleyne has rendered Section 9712 invalid, as
discussed above.” Id. at 21.
_______________________
(Footnote Continued)
99 A.3d 86, 98 (Pa. Super. 2014) (en banc), appeal denied, 121 A.3d 496
(Pa. 2015); see also Commonwealth v. Valentine, 101 A.3d 801, 811-
812 (Pa. Super. 2014) (invalidating 18 Pa.C.S. § 9712), appeal denied, 124
A.3d 309 (Pa. 2015). Further, our courts have held that the unconstitutional
provisions of the mandatory minimum statutes are not severable from the
statute as a whole. Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa.
2015); Newman, supra, 99 A.3d at 101.
8
Martinez-Herrera also states:
Because the object produced by [him] only arguably qualifies as
a “deadly weapon” under the definition of a firearm provided in
42 Pa.C.S.A. § 9712, which has been deemed unconstitutional
under Alleyne, [Martinez-Herrera] suggests that the
Commonwealth did not present a permissible basis to determine
a “deadly weapon” was used in the robbery.
Martinez-Herrera’s Brief at 20.
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A challenge to the application of the DWE is a discretionary aspects of
sentencing claim, which raises a substantial question for our review. See
Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa. Super. 2010), appeal
denied, 20 A.3d 485 (Pa. 2011); Commonwealth v. Shull, 148 A.3d 820,
831 (Pa. Super. 2016).
However, before we may address the merits, we must determine
whether Martinez-Herrera has properly preserved this argument. To the
extent that Martinez-Herrera challenges the applicability of the DWE to his
sentence, we find that he has failed to do so. A review of the record reveals
that he did not raise these specific objections regarding the DWE at
sentencing and he did not include these claims in his post-sentence motion.9
See N.T., 7/25/2016; Post-Sentence Motion, 8/4/2016. See also
Commonwealth v. Malovich, 903 A.2d 1247, 1251 (Pa. Super. 2006) (“To
preserve an attack on the discretionary aspects of sentence, an appellant
must raise his issues at sentencing or in a post-sentence motion. Issues not
presented to the sentencing court are waived and cannot be raised for the
first time on appeal.”) (citations omitted); Commonwealth v. Cartrette,
83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (“Absent [a timely post-
sentence motion or claim raised during sentencing], an objection to a
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9
We note all Martinez-Herrera did was request the court not impose the
DWE. See N.T., 7/25/2016, at 9-10. His counsel agreed the DWE was
“absolutely applicable” to the matter. Id. at 10.
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discretionary aspect of a sentence is waived.”); Pa.R.A.P. 302(a).
Consequently, Martinez-Herrera has waived this claim.
Nevertheless, even if Martinez-Herrera did not waive this claim, we
would conclude the trial court did not abuse its discretion in applying the
DWE to his sentence as the court’s statement of reasons adequately
explained its decision to impose the DWE:
In Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa.
Super. 2009), the appellant, while wearing a Halloween mask,
entered a Uni-Mart and approached the store clerk displaying
what appeared to be a handgun. The appellant pointed the
weapon at the clerk’s face and demanded that she open the cash
register. Id. Appellant then reached over the counter, took the
money and fled on foot. Id. It was determined that the
handgun displayed by the appellant was an air-soft pistol, which
looks like a real pistol, but shoots small plastic pellets similar to
a BB gun. Id. Appellant pleaded guilty to robbery with the
threat of immediate serious injury, 18 Pa.C.S.A. [§]
3701(a)(1)(ii), and was sentenced to 5 to 10 years of
imprisonment based on his possession of a firearm during the
crime and application of the deadly weapon enhancement. Id.
During his guilty plea, the appellant, through his counsel,
admitted that the deadly weapon enhancement was applicable.
Id. at 378. On appeal, the Pennsylvania Superior Court held
that, based on appellant’s admission, the record supported the
trial court’s finding that the deadly weapon enhancement was
applied properly. Id. The Pennsylvania Superior Court went on
to state that, regardless of counsel’s admission, the deadly
weapon enhancement was appropriate in this case. Id.
Appellant pointed the air-soft pistol at the store clerk’s face and,
as a result, it was capable of causing serious bodily injury or
death. Id. at 379. The Court found it was irrelevant whether
the pistol was designed as a weapon or toy and whether it was
loaded or unloaded. Id.
…
Regarding the application of the deadly weapon
enhancement, this Court finds the Brougher case to be
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analogous to the case at bar. [Martinez-Herrera] used a BB gun
to commit this robbery which is similar in nature to the air-soft
gun in the Brougher case. Additionally, as stated during the
guilty plea hearing, [Martinez-Herrera] admitted he was wearing
a mask and produced a black handgun and pointed it at the head
of the victim and demanded that he give him his money, wallet
and phone. In accordance with Brougher, a BB gun is capable of
causing serious bodily injury or death because it was pointed at
the victim’s head, regardless of its design or if it was loaded.
Furthermore, during [Martinez-Herrera]’s plea, [Martinez-
Herrera]’s counsel requested that this Court sentence [him]
without the application of the deadly weapon enhancement but
acknowledged that “it is absolutely applicable even though the
gun was not an actual, physical handgun, that it was a BB gun
….” [Martinez-Herrera] was not required to acknowledge that
the BB gun was a deadly weapon during his plea and, contrary to
[Martinez-Herrera]’s argument, the existence of a deadly
weapon must be established by a preponderance of the
evidence, not beyond a reasonable doubt. This Court found the
existence of a deadly weapon by a preponderance of the
evidence based on [Martinez-Herrera]’s admission to possessing
a gun as well as the criminal information charging [him] with
possessing a pellet gun. Therefore, the deadly weapon
enhancement was properly applied in the case at bar and its
application in this matter is supported by the record.
Trial Court Opinion, 10/17/2016, at 5-8 (record citation omitted).
With regard to Martinez-Herrera’s allegation that the deadly weapon
definition under Section 303.10(a)(1)(i) is most applicable to his case but
relies on the unconstitutional statute, Section 9712, and therefore, the court
cannot apply this definition to his sentence, we find this line of reasoning is
misplaced. Section 303.10(a)(1)(i) is not the only subsection that applies to
the present matter. Under Section 303.10(a)(1)(iii), the current deadly
weapons enhancement can also apply where one possesses a “device . . .
capable of producing death or serious bodily injury where the court
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determines that the defendant intended to use the weapon to threaten or
injure another individual.” 204 Pa. Code § 303.10(a)(1)(iii). Pursuant to
the Pennsylvania Sentencing Guidelines, the trial court was permitted to
determine by a preponderance of the evidence that Martinez-Herrera’s BB
gun was capable of producing death or serious bodily injury where he
intended to use the weapon to threaten or injure the victim. See
Commonwealth v. Rhoades, 8 A.3d 912, 917 (Pa. Super. 2010) (“Items
not normally considered deadly weapons can take on such status based
upon their use under the circumstances.”). As such, we conclude the trial
court did not err in concluding that under the facts of this case, Martinez-
Herrera’s BB gun constituted a deadly weapon.10
Furthermore, we note that in Commonwealth v. Buterbaugh, 91
A.3d 1247, (Pa. Super. 2014), appeal denied, 104 A.3d 1 (Pa. 2014), a
panel of this Court determined that Alleyne, supra, was not implicated in a
challenge to the application of the DWE. See Buterbaugh, 91 A.3d at 1269
n.10 (“Alleyne . . . dealt with factors that either increased the mandatory
minimum sentence . . . . Our case does not involve [such a] situation;
instead, we are dealing with a sentencing enhancement. If the
enhancement applies, the sentencing court is required to raise the standard
guideline range; however, the court retains the discretion to sentence
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10
We reiterate that Martinez-Herrera made no argument at sentencing or in
a post-sentence motion regarding the characteristics of the BB gun.
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outside the guideline range.”). Accordingly, Martinez-Herrera has not
demonstrated the trial court abused its discretion in imposing his sentence.
Therefore, Martinez-Herrera’s DWE claim fails, and we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2017
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