J-S58029-16

2016 PA Super 264

* Retired Senior Judge assigned to the Superior Court. 

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

JONATHAN NELSON SMITH

Appellee No. 211 MDA 2016

Appeal from the Judgment of Sentence January 4, 2016

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0001126-2015

BEFORE: GANTMAN, P.J., BOWES AND PLATT,* JJ.

OPINION BY BOWES, J.: FILED NOVEMBER 29, 2016

The Commonwealth appeals from the January 4, 2016 judgment of 

sentence and challenges the trial court’s refusal to impose the deadly 

weapons enhancement. We affirm. 

The underlying facts of this dispute are as follows. During the evening 

of September 17, 2014, Jonathan Nelson Smith, Appellee, frequented a 

number of bars in the Hanover area following a dispute with his girlfriend. 

After consuming five to seven alcoholic beverages, Appellee approached 

another patron in order to buy some crack cocaine. This individual, along 

with two other men, agreed to provide Appellee with the illicit drug, but 

required a ride to York to obtain it. Appellee agreed to transport the 

individuals. 
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While en route to York, Appellee became distracted by one of the 

passengers and struck a pedestrian, Scott Maitland, with his vehicle. At the 

time of the accident, Mr. Maitland was crossing the street in a well-lit 

crosswalk equipped with flashing lights. Mr. Maitland suffered fractures to 

his skull, nasal bones, ribs, tibia, and fibula, requiring extensive medical 

treatment, and resulting in permanent injuries. Following impact, Appellee 

continued along his course, and ultimately, abandoned his vehicle in a 

parking lot. 

That same morning, in an attempt to evade prosecution, Appellee 

reported his car stolen to the State Police. The State Police transferred the 

matter to Hanover Borough Police, who contacted Appellee at his residence. 

After a short discussion in front of his home, Appellee agreed to accompany 

the officer to the police station. An interview ensued wherein Appellee, at 

first, continued to insist that the car had been stolen, but then retracted this 

representation and admitted to his involvement in the hit-and-run accident, 

including his excessive drinking throughout the evening. Appellee’s 

voluntary confession was documented in his own hand-written statement. 

The Commonwealth thereafter charged Appellee with, inter alia, 

aggravated assault and driving under the influence of alcohol (“DUI”). On 

October 30, 2015, Appellee entered an open guilty plea to those charges, 

and the court nolle prossed the remaining counts. Prior to sentencing, the 

Commonwealth recommended that the court impose the deadly weapons 
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enhancement (“DWE”) to Appellee’s sentence pursuant to this Court’s 

holding in Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa.Super. 2014) 

(en banc) (“Buterbaugh”), wherein we determined that the DWE could 

apply to injuries caused by a motor vehicle. The court declined to employ 

the DWE, and instead imposed a sentence of six-and-a-half to fifteen years 

incarceration, plus costs and restitution for aggravated assault, and a 

concurrent thirty days to six months incarceration for the DUI. 

The Commonwealth filed a post-sentence motion challenging the 

discretionary aspects of the sentence, and argued that Buterbaugh

obligated the court to apply the DWE to Appellee’s sentence. The court 

denied this motion, and the Commonwealth filed a timely notice of appeal. 

The court directed the Commonwealth to file a Pa.R.A.P. Rule 1925(b) 

statement of matters complained of on appeal, with which the 

Commonwealth complied, and then authored its Rule 1925(a) opinion. This 

matter is now ready for our review. The Commonwealth raises one question 

for our consideration: “Whether the trial court erred in failing to apply the 

deadly weapon enhancement at sentencing?” Commonwealth’s brief at 4. 

Initially, we note “there is no absolute right to appeal when 

challenging the discretionary aspect of a sentence.” Commonwealth v. 

Dodge, 77 A.3d 1263, 1268 (Pa.Super. 2013) (citations omitted). An 

“appeal is permitted only after this Court determines that there is a 

substantial question that the sentence was not appropriate under the 
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sentencing code.” Id. An appellant presents a substantial question when he 

“sets forth a plausible argument that the sentence violates a provision of the 

sentencing code or is contrary to the fundamental norms of the sentencing 

process.” Id. Furthermore, “in order to properly present a discretionary 

sentencing claim, [an appellant] is required to preserve the issue in either a 

post-sentence motion or at sentencing and in a court-ordered Pa.R.A.P. 

1925(b) concise statement.” Id. Moreover, on appeal, the appellant “must 

provide a separate statement specifying where the sentence falls in the 

sentencing guidelines, what provision of the sentencing code has been 

violated, what fundamental norm the sentence violates, and the manner in 

which it violates the norm.” Id.

The Commonwealth, Appellant herein, preserved this issue in its postsentence motion, Pa.R.A.P. 1925(b) concise statement, and in its Pa.R.A.P. 

Rule 2199(f) concise statement of reasons relied upon for allowance of 

appeal.1 Upon review, we conclude that the application of the DWE presents 

a substantial question for review. See Buterbaugh, supra at 1266. 

Having determined that the Commonwealth has presented a 

substantial question for our review, we turn to the merits of its sentencing 

claim. “We analyze the sentencing court’s decision under an abuse of 

____________________________________________

1

In its brief, the Commonwealth erroneously stylized its Rule 2119(f) 

statement as a Rule 2119(b) statement. 
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discretion standard.” Commonwealth v. Zeigler, 112 A.3d 656, 661 

(Pa.Super. 2015) (citation omitted). In addition, “this Court’s review of the 

discretionary aspects of a sentence is confined by the statutory mandates of 

42 Pa.C.S. § 9781(c) and (d).” Id. Section 9781(c) provides that this Court 

shall vacate a sentence and remand under three circumstances: 

(1) the sentencing court purported to sentence within the 

sentencing guidelines but applied the guidelines 

erroneously;

(2) the sentencing court sentenced within the sentencing 

guidelines but the case involves circumstances where the 

application of the guidelines would be clearly 

unreasonable; or

(3) the sentencing court sentenced outside the sentencing 

guidelines and the sentence is unreasonable.

42 Pa.C.S. § 9781(c). In addition, we consider: 

(1) The nature and circumstances of the offense and the 

history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation. 

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission. 

42 Pa.C.S. § 9781(d). 

As the language of the DWE is discussed at length in this matter, we 

set it forth at the outset. The DWE provides, in part: 

(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 
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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.

(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 threated or injured another individual: 

(i) Any firearm, (as defined by 42 Pa.C.S. § 9712) 

whether loaded or unloaded,

(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)(1)-(2). Thus, according to the respective 

subparagraphs, the DWE sentence matrices apply to offenders who either 

possessed or used a deadly weapon during the commission of a crime. 

The trial court reasoned that the DWE for use of a deadly weapon 

pursuant to § 303.10(a)(2) did not apply to Appellee’s sentence. It 
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reviewed our decision in Buterbaugh, supra, wherein we interpreted the 

term “instrumentality” in 204 Pa. Code § 303.10(a)(2)(iii) to include motor 

vehicles. Relying on Buterbaugh, the court determined that the DWE only 

applied to motor vehicles when there was an indication that the defendant 

“intended to hit or menace the victim.” Trial Court Opinion, 4/4/16, at 5. 

The court emphasized that it is “the intent of the operator and/or the actual 

manner of use of the motor vehicle” which “may convert it from merely a 

means of transportation to a deadly weapon.” Id. It concluded that 

Appellee did not intend to use the vehicle as a deadly weapon, and, 

therefore, the DWE did not apply. Id. 

The Commonwealth contends that the trial court erred in failing to 

apply the DWE to Appellee’s sentence as required by 204 Pa. Code § 

303.10(a)(2)(iii). It characterizes our decision in Buterbaugh as 

compelling the application of the DWE in any situation where an automobile 

is used in a manner capable of causing death or serious injury, 

notwithstanding the person’s intent to use the automobile as a weapon.2 

____________________________________________

2 The Commonwealth presents this as a challenge to the discretionary 

aspects of the sentence, in that the trial judge was obligated to apply the 

DWE in determining the applicable guideline range. See Commonwealth 

v. Bowen, 612 A.2d 512, 517 (Pa.Super. 1993) (while sentencing code 

confers discretion to fashion sentence, trial judge must apply DWE “where it 

is applicable.”) In this regard, the Commonwealth’s position is that 

Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa.Super. 2014) (en banc) 

requires a finding that the DWE is applicable herein, thereby removing the 

(Footnote Continued Next Page)
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The Commonwealth notes that the defendant in Buterbaugh was convicted 

of third-degree murder. It asserts that, since the mens rea for third-degree 

murder requires only a finding of recklessness, the Buterbaugh Court did 

not impute a finding of intent in order to apply the DWE, as such a holding 

would contradict the requisite culpability. Similarly, it continues, since 

aggravated assault requires a finding of recklessness, Appellee’s intent to 

use the vehicle as a weapon is irrelevant so long as the crime causes death 

or serious bodily injury. 

The Commonwealth further supports its position by distinguishing the 

possession and use provisions of the DWE. It observes that a finding of 

intent is required for applying the DWE to crimes where the individual is 

merely in possession of a deadly weapon during the commission of a crime. 

See 204 Pa. Code § 303.10(a)(1)(iii). That provision requires the court to 

determine whether an individual intended to use a device, implement, or 

instrumentality as a deadly weapon before applying the DWE for possession. 

The Commonwealth contends that, since the legislature did not require the 

courts to make this same determination when applying the DWE for use of a 

deadly weapon pursuant to 204 Pa. Code § 303.10(a)(2)(iii), such a finding 

is not necessary here. Thus, the trial court erred in denying application of 

(Footnote Continued) _______________________

trial judge’s discretion. In this respect, the claim could alternatively be 

viewed as implicating the legality of the sentence. 
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the DWE to Appellee’s judgment of sentence since Appellee used his vehicle 

in a manner causing serious injury. 

We commence our analysis by reviewing our decision in Buterbaugh, 

supra. In Buterbaugh, this Court considered whether an automobile 

constituted a deadly weapon for the purposes of the DWE following the 

death of an individual struck by a pick-up truck. In the wake of an extended 

interval of drinking alcoholic beverages, the friends of defendant Gerald 

Buterbaugh, became embroiled in a scuffle at a local bar. Buterbaugh, 

supra at 1250-51. After the bartender ejected both sides of the dispute 

from the bar, including Buterbaugh, the altercation continued outside. Id. 

at 1251. As the incident continued, Buterbaugh entered his truck and 

started the engine. Id. His friends joined him there, and all three 

individuals attempted to flee from the altercation. Id. 

As Buterbaugh backed into the street, the truck stalled. Upon 

restarting the vehicle, he revved the engine, spun his tires, and accelerated 

the vehicle towards a member of the mob who was standing on the fog line 

of the road. Id. at 1252. Buterbaugh neither braked nor swerved, but 

rather struck the victim at the truck’s highest possible speed given the 

distance of acceleration. Id. Buterbaugh and his friends fled the scene, and 

the victim died of his injuries shortly thereafter. Id. at 1253. During a 

subsequent investigation, Buterbaugh stated that he intended to scare the 

victim, and push him off the road. Id. at 1252. 
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Following a trial, Buterbaugh was convicted of third-degree murder. 

Id. at 1253. The trial court applied the DWE and sentenced Buterbuagh to 

fifteen to forty years of incarceration. Id. The court denied Buterbaugh’s 

post-sentence motions, and an appeal ensued wherein he argued, inter alia, 

that the pick-up truck did not qualify as an “instrumentality” for the 

purposes of the DWE. 

Upon review, this Court determined that Buterbaugh’s truck was a 

deadly weapon under the DWE.3 In so finding, we reviewed the plain 

meaning of the DWE and looked to Black’s Law Dictionary and MerriamWebster, and concluded that a vehicle is a “device, implement, or 

instrumentality” under the DWE. Id. at 1268. We noted that the 

Sentencing Commission’s use of the qualifying term “capable,” indicated that 

it intended to include not just things designed to produce serious injury or 

death, but also objects which may be “utilized in a different manner to 

achieve a more nefarious result,” i.e. objects that are “capable” of such 

results. Id. 1269. Hence, we established that a “device, implement, or 

instrumentality is an object, whether simple or complex, that is utilized in a 

fashion to produce death or serious bodily injury, which need not be 

____________________________________________

3

In Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa.Super. 2014) (en 

banc), we overruled our holding from Commonwealth v. Burns, 568 A.2d 

974 (Pa.Super. 1990). In Burns, we determined motor vehicles were not 

weapons for the purpose of the deadly weapon enhancement. 
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consistent with the original purpose of the object.” Id. (emphasis in 

original). We found this interpretation consistent with the purposes of the 

DWE. Id. citing Commonwealth v. Rhoades, 8 A.3d 912, 917 (Pa.Super. 

2010) (“Items not normally classified as deadly weapons can become so 

based upon their use under particular circumstances.”). 

Employing the above analysis, we reviewed the circumstances 

surrounding Buterbaugh’s use of his pick-up truck in causing the victim’s 

injuries. We observed that “an automobile is not specifically designed to 

cause death or serious bodily injury . . . However, like many [other objects], 

the character of an automobile changes based on the particular 

circumstances surrounding its use.” Id. (emphasis added). We 

concluded that the character of the defendant’s truck changed to a deadly 

weapon “the instant [the defendant] backed his vehicle out of the bar’s 

parking lot, accelerated forward at its maximum rate of acceleration, and 

struck the victim with sufficient force to cause death.” Id. Thus, based on 

the particular circumstances surrounding the defendant’s use of his vehicle, 

we found the DWE applicable to his sentence. Id. at 1269-70. 

Although our decision in Buterbaugh was not expressly premised 

upon the defendant’s intent concerning the use of his vehicle, the 

defendant’s intent in his particular use of the truck was clearly considered as 

part of those circumstances. In rendering our decision, we discussed the 

“nefarious results” necessary to change an innocent object into a deadly 
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weapon. Id. at 1269. We concluded that failure to consider the truck a 

deadly weapon under the circumstances of that case “would result in the 

untenable position that an automobile is different than a litany of other

everyday objects, which when used with a wicked purpose, can cause 

serious bodily injury or death.” Id. (emphasis added). A person’s use of an 

object is informed by the ends that person hopes to attain, i.e., his intent 

with regard to the use of that object. Thus, in discussing a person’s “use” of 

an object, his intent for that particular use is necessarily included in 

“surrounding circumstances.” 

Contrary to the Commonwealth’s assertions, this Court did implicitly 

find that the defendant in Buterbaugh intended to use his truck as a deadly 

weapon. Buterbaugh intentionally revved his engine and accelerated at 

maximum speed toward the victim. This action changed the character of his 

truck from a benign instrument to a deadly weapon since doing so evinced 

Buterbaugh’s intention to use the truck as a weapon. 

The Commonwealth’s contention that application of the use provision 

of the DWE does not require consideration of a person’s intent is 

unpersuasive. Our acceptance of the Commonwealth’s position would lead 

to the untenable result that the DWE could be applied to every motor vehicle 

accident resulting in death or serious bodily injury, many of which involve a 

criminal violation of some nature. As discussed above, an analysis of a 
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person’s use of an object necessarily requires consideration of his intent in 

order to determine whether it was, in fact, utilized as a deadly weapon. 

Moreover, unlike the DWE for use of a deadly weapon, when a person 

merely possesses a device, implement, or instrumentality during the 

commission of a crime, pursuant to § 303.10(a)(1)(iii), we must consider 

the person’s intent separately from his possession. After all, mere 

possession of that object might not be unlawful, and the DWE would never 

apply to everyday objects, even if they were capable of causing serious 

bodily harm or death, unless that person’s intentions were scrutinized. 

Thus, in applying the DWE for possession under § 303.10(a)(1), the person’s 

intentions with regard to that object are determinative. However, for the 

sake of applying the DWE for use under § 303.10(a)(2), the person’s actual 

use is determinative, and this use is informed by his intentions. 

Here, at the time of the accident, Appellee was using his car as a 

mode of transportation. Appellee was drunk and distracted at the time of 

the incident, thus his performance of this task was reckless. Nevertheless, 

he had no intention to use the automobile as a deadly weapon. In light of 

the surrounding circumstances, there is no indication that Appellee actually 

used the car for any reason other than conveying himself and his passengers 

to York, even though the victim suffered permanent injuries resulting 

therefrom. 
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We agree with the trial court’s analysis, and thus we discern no abuse 

of discretion in its determination that the DWE is not applicable to Appellee’s 

judgment of sentence. 

Judgment of sentence affirmed. 

Judge Platt Joins the opinion.

President Judge Gantman concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2016