J-S51040-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHELLE WHITE :
:
Appellant : No. 3767 EDA 2016
Appeal from the Judgment of Sentence August 1, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005484-2013
BEFORE: BOWES, SHOGAN, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 13, 2017
Appellant Michelle White appeals from the judgment of sentence
entered in the Court of Common Pleas of Philadelphia County after Appellant
pled guilty to third-degree murder and conspiracy to commit third-degree
murder. We vacate the judgment of sentence and remand for resentencing.
Appellant was charged with the aforementioned offenses in connection
with the February 6, 2013 shooting death of Kiree Harris (“the victim”). On
that particular day, Appellant’s father began to argue with Omar Simmons
and several of his friends over a $20 debt. Upon seeing the fight, Appellant
contacted Edwin and Evan Davis, who were the brothers of her children’s
father. When the Davis brothers arrived at Appellant’s residence, they took
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S51040-17
out handguns, placed them on Appellant’s table, polished their bullets, and
loaded the guns in Appellant’s presence. Appellant told the Davis brothers
to “take care of some business” and directed them to the apartment complex
where Simmons lived. N.T. 12/23/13, at 14-15.
The Davis brothers asked Richard Boyle to accompany them to
Simmons’ apartment. Boyle knocked on Simmons’ door as Simmons would
not have recognized him. When no one answered the door, the Davis
brothers fired multiple gunshots through the door, striking the victim, who
had no involvement in the fight between Appellant’s father and Simmons.
The victim died as a result of two gunshot wounds to the torso.
The record contains evidence that Appellant observed the shooting
occur as Appellant gave the following statement to police:
[M]e and Evan was standing in the doorway to the second
floor. Paul had Richie knock on the door on B floor. As Richie
was knocking, me and Evan was walking to the apartment. I
walked past the apartment and everyone else stayed at the
apartment. From where I was standing I could still see them.
One of them kicked the door. Then I heard another bang like
somebody else kicked the door. Then I saw Edwin and Evan
shooting at the door.
Exhibit C-1, Appellant’s statement, 2/7/13, at 3.
On December 23, 2013, Appellant entered an open plea agreement to
third-degree murder and conspiracy to commit third-degree murder.
Appellant cooperated with the prosecution and testified against her three co-
defendants and at the retrial of one of these defendants. On August 1,
2016, the lower court sentenced Appellant to eight to sixteen years’
-2-
J-S51040-17
imprisonment for the murder charge and a consecutive one to two year
imprisonment term for the conspiracy charge. On August 3, 2016, Appellant
filed a motion for reconsideration of her sentence, which was subsequently
denied. This timely appeal followed.
Appellant raises the following issues for our review:
1. Did not the sentencing court err as a matter of law by
misapplying the deadly weapons “used” sentencing
enhancement guidelines when imposing Appellant’s sentence,
where the record is clear that someone other than [A]ppellant
used a weapon during the commission of the crime?
2. Did not the sentencing court err as a matter of law, abuse its
discretion and violate general sentencing principles when,
following Appellant’s guilty plea and substantial and
significant cooperation throughout two trials for the co-
defendants, the sentencing court imposed a manifestly
excessive and unreasonable sentence of 9 to 18 years of
incarceration, where the court failed to appropriately consider
the relevant sentencing factors, failed to impose an
individualized sentence and focused solely on the gravity of
the offense?
Appellant’s Brief, at 4.
In her first issue, Appellant challenges the trial court’s application of
the deadly weapons enhancement guidelines as she did not use a firearm in
the commission of the offense. Appellant’s challenge to the application of
the deadly weapons enhancement matrix implicates the discretionary
aspects of sentence. Commonwealth v. Phillips, 946 A.2d 103, 111
(Pa.Super. 2008). It is well-established that “[a] challenge to the
discretionary aspects of sentencing does not entitle an appellant to review as
of right.” Commonwealth v. Bynum-Hamilton, 135 A.3d 179, 184
-3-
J-S51040-17
(Pa.Super. 2016). In order to invoke this Court’s jurisdiction to address
such a challenge, the appellant must satisfy the following four-part test: the
appellant must (1) file a timely notice of appeal pursuant to Pa.R.A.P. 902,
903; (2) preserve the issues at sentencing or in a timely post-sentence
motion pursuant to Pa.R.Crim.P. 720; (3) ensure that the appellant’s brief
does not have a fatal defect as set forth in Pa.R.A.P. 2119(f); and (4) set
forth a substantial question that the sentence appealed from is not
appropriate under the Sentencing Code under 42 Pa.C.S. § 9781(b). Id.
Appellant filed a timely notice of appeal, preserved her sentencing claim
before the trial court at sentencing, and submitted a Rule 2119(f) statement
in her appellate brief.
We may now determine whether Appellant 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. Caldwell, 117 A.3d 763, 768 (Pa.Super. 2015). This
Court has provided as follows:
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.
When imposing a sentence, the sentencing court must consider
the factors set out in 42 Pa.C.S. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of the
defendant. And, of course, the court must consider the
sentencing guidelines.
-4-
J-S51040-17
Id. (internal citations omitted). This Court has found that a substantial
question is raised where an appellant argues that the sentencing court erred
in applying the deadly weapons enhancement. Phillips, 946 A.2d at 112.
Thus, Appellant has raised a substantial question for our review.
In reviewing a challenge to the discretionary aspects of sentence, we
emphasize that:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, 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. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)
(quotation omitted).
The sentencing code sets forth the following guidelines for the
application of the deadly weapon enhancement, which depends on whether
the offender “possessed” or “used” a deadly weapon in the commission of
the target offense:
(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 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
-5-
J-S51040-17
***
(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
***
204 Pa. Code § 303.10 (emphasis added).
Specifically, Appellant claims the trial court erred in employing the
deadly weapons (used) enhancement. Appellant asserts that the record is
clear that she never used a deadly weapon and contends this enhancement
cannot be applied to her sentence based on her co-defendants’ use of
firearms in the murder. The Commonwealth concedes that the trial court
improperly applied the deadly weapons (used) enhancement, but suggests
that it would have been appropriate for the trial court to consider the deadly
weapons (possessed) enhancement.
In a similar case, Phillips, the appellant argued that he should not
have been subject to the deadly weapons (used) enhancement as the
evidence demonstrated that, although the appellant conspired with his co-
defendant to rob the victim, the weapon used in the robbery was possessed
and brandished by his co-defendant. This Court concluded that the
sentencing court had erred in applying the deadly weapons (used)
-6-
J-S51040-17
enhancement to the appellant’s sentence as the appellant had not “used” the
firearm to threaten or injure another individual.
However, the Phillips court found that the sentencing court should
have utilized the deadly weapon (possessed) enhancement matrix, as the
appellant’s conduct fell within the broader ambit of Section 303.10(a)(1),
which applies when the offender had a deadly weapon “on the offender’s
person or within his immediate control.” 204 Pa.Code § 303.10(a)(1). As
the appellant was in the immediate vicinity of his co-conspirator when the
gun was used to threaten the victim and “could easily have been given or
taken the gun at any moment during the robbery,” this Court found that it
was proper for the lower court to apply the deadly weapon (possessed)
enhancement. See also Commonwealth v. Pennington, 751 A.2d 212
(Pa.Super. 2000) (finding the application of the deadly weapons
enhancement for possession was proper as appellant and his co-conspirators
all had knowledge of the existence of a weapon and had ready access to it
during the commission of the robbery). But see Commonwealth v.
Greene, 702 A.2d 547 (Pa.Super. 1997) (concluding the lower court erred
in imposing the weapons enhancement to an appellant who had served as a
getaway driver for a co-conspirator committing a robbery of a jewelry store
as the gun was not on the appellant’s person nor within his immediate
control during the robbery).
In light of this precedent, we find that the lower court erred in utilizing
the deadly weapons (used) enhancement in fashioning Appellant’s sentence
-7-
J-S51040-17
as there is no evidence that Appellant used a deadly weapon in a way that
threatened or injured another individual. However, we agree with the
Commonwealth that the lower court should have used the deadly weapons
(possessed) enhancement. In this case, Appellant had knowledge of the
existence of the firearms used in the murder as she had directed her co-
conspirators to come “take care of some business” and watched as they
sanitized their guns and bullets on Appellant’s kitchen table in preparation
for the confrontation. N.T. 12/23/13, at 14-15. Appellant accompanied her
co-conspirators and watched as they fired multiple shots into the door of a
neighboring apartment. At any point, Appellant could have been given or
taken one of the firearms during the commission of the crime. As Appellant
did not “use” the deadly weapon, but merely “possessed” it, we conclude the
trial court used the incorrect deadly weapons enhancement guideline ranges.
Accordingly, we vacate the judgment of sentence in this case and
remand for resentencing consistent with this decision. Although Appellant
raises another challenge to the excessiveness of her sentence, we need not
review it as Appellant will receive a new sentencing hearing.
Judgment of sentence vacated. Case remanded for further
proceedings. Jurisdiction relinquished.
-8-
J-S51040-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2017
-9-
Com. v. White, M.
Combined Opinion