J-S37022-17

2017 PA Super 343

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CHEYENE TAVAREZ

Appellant No. 1859 MDA 2016

Appeal from the Judgment of Sentence October 7, 2016

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0006124-2015

BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

OPINION BY MOULTON, J.: FILED OCTOBER 31, 2017

Cheyene Tavarez appeals from the October 7, 2016 judgment of 

sentence entered in the Berks County Court of Common Pleas following his 

entry of a guilty plea to one count each of aggravated assault, burglary, 

robbery, impersonating a public servant, and conspiracy.1 We vacate the 

judgment of sentence and remand for resentencing.

At his guilty plea proceeding on October 7, 2016, Tavarez admitted to 

the following facts:

[O]n or about November 17th, 2015, shortly after 1:00 in 

the morning at 49 Mill Road in Oley Township, Berks 

County, Pennsylvania, you along with your accomplices 

and co-conspirators Edward Martinez, Brandon Smith, and 

Erick Green went to that residence; the plan even before 

____________________________________________

1

 18 Pa.C.S. §§ 2702(a)(1), 3502(a)(1)(ii), 3701(a)(1)(ii), 4912, and 

903(a)(1), respectively.
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you arrived at the residence was to rob the people there; 

you believed that there were illegal drugs and money[] 

there to be gained; all four of you agreed to do that. 

When you got there, as was your intention all along, you 

and Edward Martinez entered the residence, there were 

people present. This was a residence. It was not open to 

the public at that time. You had no license or privilege to 

be there.

Once inside, you were yelling, [“]Police. Freeze[.”] in 

[an] attempt to compel the homeowners to do what you 

wanted them to do, thereby impersonating a public 

servant. Although you attempted to commit a robbery and 

you did so with firearms, nothing was actually taken.

When you confronted the homeowner, Eric Wegman, in 

the upstairs bedroom, he pulled his own handgun and 

fired, hitting both you and Mr. Martinez. Eric Wegman was 

also shot in the leg at that point. 

N.T., 10/7/16, at 5-6. 

The trial court summarized the ensuing procedural history of this 

matter as follows:

[Tavarez] was sentenced to a term of incarceration of 

101⁄2 to 30 years in a state correctional facility. To reach 

this term of incarceration, the Court sentenced [Tavarez] 

consecutively on three of the charges. The first period of 

incarceration, lasting from 66 to 132 months, was received 

for the aggravated assault, robbery and the accompanying 

conspiracy charges. The second period of incarceration, 

lasting 48 to 96 months, was received for the burglary 

charge. The third period of incarceration, lasting 12 to 24 

months, was received for the impersonating a public 

servant charge. Though the sentence in aggregate is 

considerable, [Tavarez] was sentenced on each charge 

within the standard range.

Following sentencing, by and through counsel, 

[Tavarez] filed a post-sentence motion to reconsider and 

modify sentence, on October 17, 2016. We denied this 

motion that day. On November 14, 2016, [Tavarez], now 

represented by the public defender, filed a notice of 

appeal. Due to a service error by the Court, Counsel did 
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not receive notice requiring a [Pennsylvania Rule of 

Appellate Procedure 1925(b)] statement until, at the 

latest, November 28, 2016. Once Counsel received notice, 

[Tavarez] filed a timely [Rule 1925(b)] statement on 

December 12, 2016.

1925(a) Opinion, 1/30/17, at 1 (unpaginated) (“1925(a) Op.”). 

On appeal, Tavarez raises three issues:

1. Whether the trial court erred and abused its discretion 

by failing to utilize the correct offense gravity score for 

the crime of impersonating a public servant.

2. Whether the trial court erred and abused its discretion 

by applying the deadly weapon (used) enhancement 

absent evidence that [Tavarez] used a deadly weapon 

as defined by the Sentencing Code in the commission of 

the burglary.

3. Whether the trial court erred and abused its discretion 

by failing to consider [Tavarez’s] rehabilitative needs 

when imposing the sentence of 101⁄2 to 30 years of 

incarceration. 

Tavarez’s Br. at 11 (full capitalization and trial court answers omitted).

We will address Tavarez’s second issue first because it is dispositive of 

this appeal. Tavarez asserts that the trial court abused its discretion in 

applying the deadly weapon “used” enhancement to his burglary conviction. 

This claim raises a challenge to the discretionary aspects of sentencing. 

An appeal from the discretionary aspects of sentencing is not 

guaranteed as a matter of right. Commonwealth v. Mastromarino, 2 

A.3d 581, 585 (Pa.Super. 2010). Before addressing such a challenge, we 

must first determine:

(1) whether the appeal is timely; (2) whether [the] 

[a]ppellant preserved his [or her] issue; (3) whether [the] 

[a]ppellant’s brief includes a concise statement of the 

reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of sentence; and (4) whether the 
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concise statement raises a substantial question that the 

sentence is appropriate under the [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting 

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)); 

see Pa.R.A.P. 2119(f).

Here, Tavarez filed a timely notice of appeal, preserved his claim in a 

timely post-sentence motion, and included in his brief a concise statement of 

reasons for allowance of appeal under Rule 2119(f). We must now 

determine whether he has raised a substantial question that his sentence is 

inappropriate under the Sentencing Code.

In his Rule 2119(f) statement, Tavarez asserts that the trial court 

abused its discretion in applying the deadly weapon “used” enhancement to 

the burglary conviction. It is well settled that “[a] substantial question is 

raised where an appellant alleges his sentence is excessive due to the 

sentencing court’s error in applying the deadly weapon enhancement.” 

Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa.Super. 2008); see 

also Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa.Super. 2010) (en 

banc) (“[A] challenge to the application of the deadly weapon enhancement 

implicates the discretionary aspects of sentencing.”). Therefore, we will 

review the merits of Tavarez’s claim.

Tavarez asserts that that trial court abused its discretion in applying 

the deadly weapon “used” enhancement rather than the deadly weapon 

“possessed” enhancement to his burglary conviction. For burglary as a firstdegree misdemeanor, Tavarez’s prior record score was 2 and the offense 
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gravity score was 9. See N.T., 10/7/16, at 8. Had the trial court applied 

the deadly weapon “possessed” (rather than “used”) enhancement, the 

standard guideline range for this conviction would have been 33 to 45 

months rather than 42 to 54 months.2 Tavarez does not challenge the trial 

court’s application of the deadly weapon “used” enhancement to his 

remaining convictions.

At the plea proceeding, Tavarez admitted that he possessed a firearm 

during the entire criminal episode and that he used a firearm to threaten the 

victims in the course of the robbery. Tavarez contends, however, that the 

record does not support the trial court’s conclusion that Tavarez used a 

deadly weapon in the commission of the burglary because the victims were 

upstairs at the time of his unlawful entry into the residence. We agree.

The deadly weapon enhancement provisions of the Sentencing 

Guidelines provide that an enhancement “shall apply to each conviction 

offense for which a deadly weapon is possessed or used.” 204 Pa. Code 

§ 303.10(a)(4). The trial court may not disregard an applicable 

enhancement when determining the appropriate sentencing ranges. 

Commonwealth v. Cornish, 589 A.2d 718, 720 (Pa.Super. 1991). 

Further, “[i]t is imperative that the sentencing court determine the correct 

starting point in the [G]uidelines before imposing sentence.” Id.; see 

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2 As discussed above, the trial court sentenced Tavarez to 48 to 96 

months’ incarceration for burglary, consecutive to the 66- to 132-month 

sentence imposed for robbery.
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Commonwealth v. Diamond, 945 A.2d 252, 259 (Pa.Super. 2008) (“[T]he 

sentencing court must correctly apply the [S]entencing [G]uidelines to reach 

the correct point of departure, before exercising its discretion to depart from 

the [G]uidelines in any particular case. These rules apply to the deadly 

weapons enhancement.”) Thus, if “the trial court erroneously calculates the 

starting point under the [G]uidelines,” we will vacate the judgment of 

sentence and remand for resentencing. Commonwealth v. Scullin, 607 

A.2d 750, 754 (Pa.Super. 1992).

Here, the trial court applied the enhancement for “use” of a deadly 

weapon to the burglary conviction. The “used” enhancement provides:

(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

(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.

204 Pa. Code § 303.10(a)(2) (emphasis added). Thus, to establish use of a 

deadly weapon under this provision, the record must show that the 

defendant used the weapon to threaten or injure the victim while committing 

the particular offense. See, e.g., Commonwealth v. Shull, 148 A.3d 820, 

832 (Pa.Super. 2016) (concluding that defendant’s “mere possession of a 
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gun transcended to his use of the gun” when he removed gun from under his 

clothing and pointed it at victim’s face during attempted robbery); 

Commonwealth v. Chapman, 528 A.2d 990, 991-92 (Pa.Super. 1987) 

(holding trial court properly applied deadly weapon “used” enhancement 

where defendant held straight razor in plain view while robbing victim, 

despite claiming he never employed razor as explicit threat).

Tavarez contends that the trial court should have applied the deadly 

weapon “possessed” enhancement, rather than the “used” enhancement, to 

his burglary conviction. The “possessed” enhancement provides:

(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

(ii) Any dangerous weapon (as defined in 18 Pa.C.S. § 

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 offender 

intended to use the weapon to threaten or injure another 

individual.

204 Pa. Code § 303.10(a)(1) (emphasis added).3

____________________________________________

3 At sentencing, Tavarez’s counsel did not object to the application of 

the deadly weapon enhancement, but requested that the trial court apply 

the “possessed” enhancement rather than the “used” enhancement to the 

burglary conviction. See N.T., 10/7/16, at 12-13.
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The trial court explained its reasons for applying the “used” 

enhancement to the burglary conviction as follows:

Because the use of weapons occurred during robbery, ipso 

facto it must occur during the burglary. We have found no 

precedent to suggest that a burglary ends immediately 

after the breaking and entering premises. Instead, 

common sense dictates that a burglary continues until, at 

least, the perpetrator leaves the premises; an additional 

crime committed during this time is not a superseding 

intervening cause. Therefore, any acts committed during 

this time are considered to still be in the commission of the 

burglary.

In the instant matter, [Tavarez] made a threat with a 

deadly weapon during the robbery. By necessity, this 

threat with a deadly weapon was also occurring during the 

burglary, since [Tavarez] was still in the midst of the 

burglary during the robbery.

1925(a) Op. at 6 (unpaginated). We conclude that the trial court erred.

Tavarez pled guilty to the offense of burglary set forth in section 

3502(a)(1)(ii) of the Crimes Code, which states:

A person commits the offense of burglary if, with the intent 

to commit a crime therein, the person . . . enters a 

building or occupied structure, or separately secured or 

occupied portion thereof that is adapted for overnight 

accommodations in which at the time of the offense any 

person is present.

18 Pa.C.S. § 3502(a)(1)(ii). Our Supreme Court has explained that the 

offense of burglary is complete at the moment of entry into an occupied 

structure with the intent to commit a crime therein:

The crime of wi[l]fully and maliciously breaking and 

entering any building with intent to commit any felony 

ther[e]in is completed when the felon breaks into the 

building either actually, or constructively by fraud, 

conspiracy or threats, with the intent above named. 

Consummation or execution of the intent to steal or 
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to commit some other felony is not necessary to 

complete the crime of burglary . . . . Whatever felony 

is committed in the building broken into is separate and 

distinct from the offense of breaking and entering into that 

building.

Commonwealth ex rel. Moszczynski v. Ashe, 21 A.2d 920, 921-22 (Pa. 

1941) (emphases added); see also Commonwealth v. Wiltrout, 457 A.2d 

520, 524 (Pa.Super. 1983) (“Burglary is committed when a person enters a 

building without authority with the specific intent to commit a crime 

therein.”). 

While the facts and the case law make clear that Tavarez satisfied the 

elements of burglary before he “used” a weapon, the trial court nevertheless 

concluded that for the purpose of the sentencing enhancement: (1) “a 

burglary continues until, at least, the perpetrator leaves the premises,” and 

(2) because “[Tavarez] made a threat with a deadly weapon during the 

robbery, . . . this threat with a deadly weapon was also occurring during the 

burglary, since [Tavarez] was still in the midst of the burglary during the 

robbery.” 1925(a) Op. at 6. The Commonwealth likewise argues that 

“[g]iven that the robbery was the object crime of the burglary, and the 

robbery was to take place using firearms to threaten the occupants of the 

home, it follows logically that the burglary also necessarily involved the use 

of firearms to threaten violence.” Cmwlth.’s Br. at 10. We disagree.

We conclude that the record did not establish Tavarez’s “use” of a 

firearm during the commission of the burglary under 204 Pa. Code 

§ 303.10(a)(2). As discussed above, the burglary was complete at the 

moment Tavarez unlawfully entered the residence with the intent to commit 
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the crime of robbery therein. The facts placed on the record at the plea 

proceeding, as well as those outlined in the affidavit of probable cause, 

established only that Tavarez possessed a firearm when he entered the 

residence; there was no showing that he used the firearm to gain entry into 

the residence or to threaten the victims while entering the residence. 

Tavarez did not encounter the victims until he and his co-conspirators went 

upstairs to rob them. See Aff. of Prob. Cause, 12/23/15, at 1-4. Thus, 

while Tavarez plainly used a firearm during the commission of the robbery, 

and properly received a “use” enhancement for that offense, the record does 

not support a finding that he employed the firearm “in a way that threatened 

or injured” the victims “during the commission of the [burglary].” 204 

Pa. Code § 303.10(a)(2) (emphasis added). Accordingly, we conclude that 

the trial court abused its discretion in applying the deadly weapon “used” 

enhancement rather than the “possessed” enhancement to Tavarez’s 

burglary conviction.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.4

____________________________________________

4

 In light of our disposition, we need not address Tavarez’s two 

remaining issues. We note, however, that in its opinion, the trial court 

acknowledged that it applied an incorrect offense gravity score to Tavarez’s 

conviction for impersonating a public servant. See 1925(a) Op. at 3 n.7 

(unpaginated).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/31/2017