J-S76008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

YASIN EL AMAN SHAKIR,

Appellant No. 198 WDA 2018

Appeal from the Judgment of Sentence Entered April 26, 2016

In the Court of Common Pleas of Beaver County

Criminal Division at No(s): CP-04-CR-0001882-2011

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 22, 2019

Appellant, Yasin El Aman Shakir, appeals nunc pro tunc from the 

judgment of sentence of an aggregate term of 131⁄2 to 27 years’ incarceration, 

imposed after he was convicted of, inter alia, attempted murder and 

aggravated assault. We affirm.

Briefly, in this appeal, Appellant contends that the trial court abused its 

discretion by resentencing him to the same term of incarceration that it had 

originally imposed for his attempted murder conviction, despite that the court 

had considered an incorrect Sentencing Guideline range in fashioning his initial 

term of incarceration for that offense. Appellant also argues that the court’s 

application of the deadly weapon sentencing enhancement was illegal under 

Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New 

Jersey, 530 U.S. 466 (2000). In assessing these claims, we have reviewed 
J-S76008-18

- 2 -

the certified record, the briefs of the parties, and the applicable law. 

Additionally, we have examined the thorough opinion of the Honorable John 

P. Dohanich, a Senior Judge on the Court of Common Pleas of Beaver County. 

We conclude that Judge Dohanich’s well-reasoned opinion accurately disposes 

of the issues presented by Appellant. Accordingly, we adopt his opinion as 

our own and affirm Appellant’s judgment of sentence for the reasons set forth 

therein.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/22/2019

 
. . 

IN THE COURT OF COMMON PLEAS OF BEA VER COUNTY, 

PENNSYLVANIA 

CRIMINAL DIVISION 

• I COMMONWEALTH OF 

i . � . 

PENNSYLVANIA 

No. 1882 of 2011 

v. 

YASIN EL AMAN SHAKIR 

MEMORANDUM OPINION 

rDOHANICH, S.J. May 10, 2018 

The petitioner/ Yasin· El Aman Shakir, has appealed the judgment of 

J 

. 1 

· sentence entered on December 20, 2017, in which the court: ( 1) granted his postlentence motion of July 17," 2017, in part, correcting the sentencing guidelines 

ltilized for the court'� original sentence order of October 15, 2012 for the offense l . . 

of attempted murder; (2) refused his request to not apply the deadly weapon used 

enhancement on the charge of attempted murder; and, (3) denied his request for· a 

Lodification of the sentence on the charge of attempted murder in the sentence 

lrders of October ·, s, 2012 and April 26, 2016, using sentencing guidelines 

Lthout consideration of the deadly weapon used enhancement. Shakir 

, · 

Lbsequently 

med a post-sentence motion on December 29, 

2017, 

alleging that the 

I lourt abused its discretion in imposing an identical sentence on the charge of 

l 

I l App. C 

I 
attempted murder thus displaying vindictiveness toward him, and incorrectly 

utilized the deadly weapon used enhancement for the offense of attempted murder. 

The 'court denied Shakir's post-sentence motion on ·January 23, 2018. Timely 

notice of appeal was filed by Shakir on February I, 2018. By order entered 

February 13, 2018, Shakir was directed to file a concise statement of matters 

complained of on appeal to which he complied on February 20, 2018. 

In his concise statement, Shakir sets forth the following two complaints on 

appeal: 

1. The Court abused its discretion at the time of resentencing by 

imposing the 'exact same sentence previously imposed, with the 

intention of maintaining the integrity of the original sentence from 

April 26, 2016, which was later vacated because that sentence was 

imposed using 'the wrong sentencing guidelines. By reimposing the 

same sentence, the Court has indicated a lack of willingness to base 

Shakir's sentence on the appropriate guidelines, and instead displayed 

a vindictiveness against Shakir by imposing a sentence without clear 

reference to the appropriate guidelines, which is an abuse of the 

Court's discretion. Commonwealth v Barnes, 167 A.3d 110, 122-123 

(Pa. Super. 2017). 

2. The sentencing court incorrectly imposed a sentence using the 

guidelines including the deadly weapons enhancement (DWE), where 

the jury did not find as a fact that a deadly weapon was used, and 

where the application of that fact triggered enhanced guidelines, 

resulting in a sentence which violated Shakir's fundamental right to 

due process arid the protections afforded by the Sixth Amendment, 

and which sentence was illegal. Alleyne v, United States, 133 S.Ct. 

2151 (2013), and Apprendi v New Jersey, 530 U.S. 466 (2000); 

2 
J 

I 

i 

.1 

l 

l 

I I 

l 

_I 

l . ' . 

The court submits this opinion in support of its denial of Shakir's postsentence motion pursuant to Rule l 925(a) of the Pennsylvania Rules of Appellate 

Procedure, 42 Pa. C.S. 

The facts established by the record in the trial of this case are set forth in this 

court's memorandum opinion entered March 16, 2013, as follows: 

In the early evening hours of July 13, 2011, Tomara Scott, her 

friend Robin Reddix, 'and .three males-Jiwan Bai1ey, Razaun King 

and the defendant, Yasin El Aman "Moosie" Shakir-engaged in 

conversation outside of Scott's residence on Chaske Street in Penn 

Hi11s, Allegheny County, "to go to hit a lick'' (meaning to take 

· property belonging to someone else). A plan was developed for the 

robbery of a bar in Aliquippa, Beaver County. Scott, who had 

previously resided in Aliquippa for a number of years and was the . 

only person familiar with the area, suggested that the establishment 

known as "The Outkast Bar" would be an easy target. Later in the 

evening, Scott, accompanied by Reddix, Bailey, King and the 

defendant, drove her automobile from. Penn Hil Is to Aliquippa. 

During the trip, the five occupants further discussed the planned 

robbery. Upon' entering Aliquippa, Scott parked her vehicle outside 

The Outkast B'1r, and Scott and Reddix entered the bar to have a 

couple drinks i.n order to determine the feasibility of implementing 

their plan. While the women were in the bar, the three men walked 

around the neighborhood and later returned to the vehicle to await the 

females. Near to closing time, Scott and Reddix exited the bar and 

reconvened with the three men at the car where they spoke of whether 

to proceed with the robbery of the bartender. The women observed 

that the owner of the bar had been present and possessed a weapon. 

Upon further discussion, the plot to rob the bartender was abandoned, 

causing Bailey 'to become agitated at having come to Aliquippa for 

naught. They all entered Scott's vehicle intending to return to Penn 

Hills. 

3 
' l 

·! 

I 

I 

I 

. I 

I 

I 

. I 

I 

I 

I 

While driving from the. area of the bar at approximately l :40 

A.M. on July IA, 20 I 1, the occupants of the automobile observed two 

men-Lucien 'Roberts and Brian Elmore, Jr.-walking up Fifth 

Avenue hill. Scott proceeded to the bottom of the hill, stopped the 

vehicle, turned: to Bailey and said, "Jiwan, there you go." Bailey 

exited the vehicle and the defendant fol1owed. King remained inside 

the vehicle to complete a text message and exited a short time later. 

I 

Bailey, King find the defendant approached Roberts and Elmore. 

King observed .the defendant retrieve a silver handgun from his waist. 

The defendant told Roberts and Elmore to "take it off" or "throw it 

off' (meaning "give me whatever you got"), Elmore responded, "beat 

it, get out of here". Roberts initially observed the defendant point his 

gun at Elmore: In response, Roberts retrieved his .45 caliber semiautomatic pistol from his waist as Bailey directed his weapon at 

Roberts. Nearly simultaneously, shots were fired by both the 

defendant and Roberts, King ran and hid behind a telephone pole and 

did not observe the shooting, although he heard gun fire and saw 

flashes from the firing of the weapons. Roberts, who possessed a 

license to carry a firearm and whose weapon was properly registered 

to him as the owner, fired three or four rounds before he was tackled 

by Bailey, wh� attempted to take the pistol from Roberts. In the 

struggle that ensued between Roberts and Bailey, Roberts fired 

approximately five more shots, three of which struck Bailey. Elmore, 

who had been drinking that night and was somewhat intoxicated, fled 

across the street behind a nearby garage; however, he was struck by a 

total 'of six bullets +two in the right leg, one in the· right thigh, one in 

the left 'buttocks and two in the left hand. Elmore indicated that he 

was hit with the first shot as he stepped off the curb into the street. He 

was subsequently transported to UPMC Presbyterian Hospital for 

treatment. Elmore remained in the hospital for two or three days 

during which he underwent surgery on his left hand, including the 

insertion of a rod. As of the date of trial, he was unable to completely 

bend a finger on his left hand. None of the bullets were surgically 

removed from Elmore' s body. Although not struck by any gun fire, 

Roberts found two bullet holes in the basketball shorts he was 

wearing. Upon extricating himself from Bailey's grasp, Roberts 

returned to his· feet, fled to the top of the hill and called the police. 

4 
.. 

' ) 

:l 

. I 

i 

. I 

: I 

. I 

I 

f 

t 

I 

I 

; I 

I 

! 

· 1 

Roberts testified that the entire incident fasted approximately six 

minutes. · 

The defendant returned to Scott's waiting vehicle. King, being 

. unfamiliar with: the area, left the scene and came upon two individuals 

from whomhe.borrowed a cellular telephone which he utilized to call 

his own cellular telephone located in Scott's 'vehicle. Reddix 

answered the. call, Scott, along with the defendant and Reddix, 

· proceeded to King's location, at which time he entered the car. King 

inquired as to Bailey's absence and condition. The defendant replied 

that. he thought Bailey had tackled Roberts and ran from the scene. 

While in the vehicle, King again observed the silver firearm in the left 

hip area of the defendant. King testified that none of the other 

occupants of the' vehicle possessed a firearm. Roberts described the 

defendant's weapon as being a revolver. Scott drove her vehicle to 

her residence i� Penn Hills with Reddix, King arid thedefendant as 

: occupants. Later that morning the participants learned of Bailey's 

death . 

Detective Sergeant Steven Roberts of the Ali_quippa Police 

Department testified that a total of four spent" .45 caliber casings were 

located at the· scene arid fragments from other bullets of an unknown 

caliber were loc.ated in the roadway. He explained that Lucien 

Roberts' .45 caliber pistol was a semi-automatic weapon which 

ejected spent casings. No casings of any other caliber were found at 

the'scene, Detective Sergeant Roberts explained that since the silver 

handgun , in the- possession of the defendant was a 'revolver, which 

does "not automatically-eject its spent casings, hedid not expect to find 

any spent casings from the revolver. Detective Sergeant Roberts 

furtherindicatedthat upon a check with the Pennsylvania State Police, 

a· certification was received 'that the defendant did not possess a 

license to carryafirearm nor was he eligible to do so due to his age of 

19 years: The;three bullets in the body of Bailey were determined to 

be AS caliber ammunition. 

Officer Brandon Yourke of the Wilkinsburg Police Department 

· testified that he arrested the defendant on an unre1ated outstanding 

warrant on July 21, 2011, eight days after the shooting, and· upon 

searching· the defendant found six live .38 caliber bullets in his left 

front trouser pocket. 

5 
� . . , 

·, 

J f 

.l 

\ 

'j 

' I 

. I 

I 

I 

I 

I 

I 

' 

. . The Commonwealth called William Best as a ballistics expert. 

· · _ .-�fr. Best is employed as a forensic scientist specializing in firearms 

. · and tool marks.in the Allegheny County Medical. Examiner's Office, 

where he -has been employed for approximately four years. Mr. Best 

earned a bachelor's degree in biology from Duquesne University in 

. 2007, a master's degree in forensic science from Duquesne· University 

. in May, 2008,- and completed a laboratory. training program for 

. firearms and tool marks, He took part in additional fraining provided 

._ by _the FederalBureau of Investigation andthe Bureau of Alcohol, 

·I Tobacco and firearms. Mr. Best previously was qualified as a 

. ballistics expert in the Court of Common Pleas of Allegheny County 

and the District Court' for the Western District of Pennsylvania; Mr. 

Best was requested to and did take measurements.of a bullet depicted 

on an x-ray of Elmore's body using a digital micrometer, and 

excluded the bullet .in Elmore's body as being a .45 caliberbullet 

. . 

based on its size. He further indicated that he could not exclude the 

bullet as beingeither a .38 caliber or .a .32 caliber bullet. Mr. Best 

.indicated that he had never taken measurements of an x-ray image 

previously but was aware that the procedure had, in· fact, been utilized. 

}ie also related that he had not received any training in 'radiology. 

Shakir was convicted by a jury on September 11, 2012, of criminal attempt 

to commit criminal homicide, 18 Pa.C.S. §90 I (a); 4 counts of aggravated· assault, 

• I I . . 

118 Pa.C.S. §2702(a)(l) (2 counts), and §2702(a)(4) (2 counts), respectively; 

. , firearms not to be carried without a license, 18 Pa.C.S. §6106(a)(l);·and, recklessly 

! 

lndan!iering 

another person, 18 Pa.C.S. §2705. On October 15, 2012, the court 

I . l i�posed sentences of not less than eight and one-half years nor more than 

'j; 

reventeen 

years on count l charging attempted murder of the victim, Brian Elmore; 

}1 

not Iess than five years nor more than ten years on count 2 charging aggravated 

-l 

1 

J 

6 
( - 

l . �

The Superior Court, in its non-precedential decision filed on December 1 7, 

Shakir timely filed his .first pro-se petition pursuant to the Post Conviction 

. 

•2013 at No. 517 WDA 2013, affirmed the judgment of sentence. On May 15, 

!201"4, 

the Supreme Court denied Shakir's petition for allowance of appeal at No. 

i 139 WAL.2014 . 

I 

I 

I 

I 

, 

l 

!assault · of the victim, Lucian Roberts, to run consecutive to the sentence for I - 

attempted murder; and not less than one and one-half years nor more than three 

!years 

on count 6 charging firearms not to be carried 'without a li�ense to run 

:consecutive 

to the sentence for aggravated assault, for an aggregate term of not less 

ran fifteen years nor more than thirty years. No further penalties were imposed on 

the three remaining -counts of aggravated assault and· recklessly endangering 

'. ; 

lanother 

person by. reason of merger. The imposition of the sentence of not less 

: ! (han five years nor more than ten years for the aggravated assault count was 

I pursuant to the mandatory sentence provisions of 42 Pa. C.S. §9712, after the 

i ICommOnwealth's req�ired notice of intention to proceed under said section . 

. i 

I 

l 

I 

' 

. : 1Relie( Act (PCRA), 42 Pa. C.S. Sections 9541-9546, inclusive, on March 18, 2015, 

i !in which he alleged several claims of ineffective assistance of counsel and the 

, 

!illegality 

of the mandatory minimum sentence for aggravated assault. The Beaver 

· : 

!County 

Public Defe�der' s Office was appointed on April 8, 2015 to represent 

l 

7 
Shakir and granted 60 days to amend or enlarge upon Shakir's pro-se petition. 

j I ., 

!William Braslawsce, Esquire entered his appearance on behalf of Shakir on· April 

· 2.4, 2015 and filed a counseled PCRA petition on June 5, 2015, simply I . 

incorporating Shakir's pro-se petition. Due to the· unavailability of this writer, the 

I 

Honorable Harry E. Knafelc scheduled and conducted the PCRA hearing on July 

: I 

i Q3, 2015, after which Judge Knafelc entered an order on July 28, 2015, granting, in 

i bart, the relief requested in Shakir's PCRA petition and directing that Shakir be 

! �esentenced taking into account the decision of the United States Supreme Court in 

�lleyne 

v. United States, 510 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) 

�holding 

that any fact that increases. the mandatory minimum sentence for a crime I . 

is an element of the crime and not a sentencing factor, and thus must be proven I . beyond a reasonable doubt after submission to the jury). All other claims in 

�hakir's petition ;ere denied. Pursuant to Judge Knafelc's order, this court 

lscheciuled and held a hearing on August 26, 2015, following which resentencing 

Las denied. on the basis of the Superior Court'sdecision in Commonwealth v. 

'Riggle, 119 A.3d 1058 (Pa. Super. 2015), holding that Alleyne did not apply 

letro_actively 

on post-conviction review. Counsel for Shakir filed an appeal to the 

/Superior 

Court from this court's order on September 24, 2015 at No. 1469 WDA 

bot5, and Shakir filed a pro-se notice of appeal on October 2, 2015. The Superior 

8 
' . 

. i 

, f ourt dismissed the appeal on November 23, 2015 for failure to file a docketing 

statement, however, the appeal was reinstated on December 14, 2015 after the I . . 

filing of the docketing statement. Upon the Superior Court's subsequent decision I . 

' in Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015) on December 30, 2015, 

ketennining 

that Alleyne may be applied retroactively when a defendant's case is 

I bending on direct appeal, .Judge Knafelc, by correspondence of January 13, 2016, 

Lquested 

the Superior Court to remand the case for resentencing, which request 

: ras 

gran'.ed by the 

.S�perior Court on Fe��ary 11, 20 16. Shakir' s dir�t appeal 

r was pending at the time ofthe'Alleyne decision on June 27, 2013. 

Shakir, apparently unaware that the appeal had been reinstated, filed a 

second pro-se PCRA petition on February 2, 2016, alleging ineffective assistance 

lr counsel for permitting the appeal to be dismissed. By reason of the 

ieinsiatement of the. appeal and remand for sentencing, no action was taken on the 

l�nd pro-se PCRA petition. 

Pursuant to the Superior Court's remand and its decision in Commonwealth 

v. Valentine, IOI A.3d 801 (Pa. Super. 2014) (declaring 42 Pa. C.S. §9712 

lnconstitutional in its entirety), this court, after hearing, entered an amended 

lenience order on April 26, 2016, solely on count 2, charging aggravated assault 

lausing 

serious bodily injury, by modifying the. original sentence order from the 

9 
mandatory sentence of not less than five years nor more than ten years to a 

rentcnce 

within the standard range of the sentencing guidelines of not less than 

three and one-half years nor more than seven years, despite the Commonwealth's 

!argument 

for a sentence in the aggravated range. The sentencing guidelines for 

laggnivated 

assault attempting serious bodily injury as a felony of the first degree 

:carries 

an offense gravity score often, and with Shakir's prior record score of one, 

I provided a mitigated sentence of 18 months, standard range of between 30 months 

I land 42 months and an aggravated sentence of 54 months. Sentencing Guidelines, 

i ls1x1h Edition Revised December 5, 2008, 204 Pa. Code §303.15, Offense Listing, 

! land 

§ 303.16, Basic S�ntencing Matrix. The balance of the original sentence order 

I of October 15, 2012 was maintained. No appeal was filed from this judgment of 

sentence. 

Shakir, on August 1, 2016, filed his third pro-se PCRA petition alleging 

ineffective assistance of counsel for failure to file a post-sentence motion and/or 

appeal from the court's April 26, 2016 judgment of sentence. Steven Valsamidis, 

Esquire was appointee! by the court as counsel for Shakir on August 30, 2016 and 

granted 60 days to amend/enlarge Shakir's pro-se petition. After an additional 

extension of 45 days, an amended, counseled PCRA petition was filed on 

December 14, 2016. Following a hearing held on July 5, 2017, the court 

10 
determined that counsel's failure to perfect an appeal after requested to do so 

constituted ineffective of assistance of counsel, granted Shakir's PCRA petition 

and reinstated his appeal rights. Rather than file an appea], Shakir filed a postsentence motion on July l 7, 2017, in which he claimed that the court, in imposing 

the sentence for attempted murder, utilized the incorrect sentencing guidelines for 

attempted murder with serious bodily injury, when the defendant was charged 

solely with attempted murder generally, and the jury was not instructed on the 

offense of attempted murder with serious bodily injury but only with attempted 

murder generally. The court directed the filing of briefs and scheduled a 

hearing/argument for December 20, 2017 to determine whether Shakir should be 

resentenced, and if so, the appropriate sentence to be imposed. 

At the hearing/argument Shakir argued, and the Commonwealth conceded, 

based upon the decision in Commonwealth v. Barnes, 167 A.3d 110 (Pa.Super. 

20 l 7), that incorrect sentencing guidelines were utilized for the offense of 

attempted murder, since Shakir was sentenced for attempted murder with serious 

bodily injury when he had been charged and the jury had been instructed solely on 

attempted murder generally. The facts in Barnes are indistinguishable from those 

in the instant case. In Barnes, the defendant was not charged with attempted 

murder resulting in serious bodi1y injury, the information did not allege serious 

1 1 
bodily injury and the jury was not instructed on the charge of attempted murder 

causing serious bodily injury. The trial court applied Section l 102(c) of the 

Crimes Code, 18 Pa. C.S. § 1102( c ), in imposing a maximum term of imprisonment 

of 40 years. The Superior Court held that in the absence of a jury finding of 

serious bodily injury, the sentence violated the holding in Apprendi. Barnes is thus 

also controlJing as to the use of the incorrect sentencing guidelines. Therefore, the 

court utilized the correct sentencing guidelines for attempted murder generally 

without consideration for serious bodily injury. Secondly, Shakir asserted that the 

court's application of the deadly weapon used enhancement without a specific and 

separate factual finding by the jury of the use of a deadly weapon violated the 

holding in Alleyne. The court rejected Shakir' s position on the deadly weapon 

used enhancement and ordered that the original sentence for attempted murder 

remain in full force and effect. 

In his concise statement, Shakir first claims, citing to Commonwealth v. 

Barnes, supra, that the court abused its discretion and displayed vindictiveness 

toward him by imposing a sentence on the offense of attempted murder identical to 

the sentence imposed for said offense in the sentence orders of October 15, 2012 

and Apri I 26, 2016, without reference to the sentence guidelines and in order to 

preserve the integrity of the original sentencing scheme. In Barnes, the defendant 

12 
., 

(· 

; } 

.• l 

I 

. 1 

ifter being 'convicted by a jury,. was sentenced to terms of incarceration for 

attempted murder of 20 years to 40 years, for aggravated assault to two and a half 

�ears· 

to five years, and for kidnapping of two and a half years to five years, with 

:i 

Ian 

. sentenc�S running consecutively. On appeal, the . Superior Court determined 

(hat the conviction for aggravated assault and attempted homicide should have 

,merged and remanded for resentencing. Upon remand, the trial court resentenced 

/the defendant to 20. 

year� to 40 years for attempted murder followed by a . 

:J; consecutive term of five years to ten years for kidnapping. The defendant again 

I l 

! appealed claiming the trial court abused its discretion when imposing a more 

I .• 

severe sentence for kidnapping on remand thus demonstrating a presumption of 

! vindictiveness. The court in Barnes referred to North Carolina v. Pearce, 395 U.S. 

I ' . " I 

'i 

· ! 711, 89. S.Ct. 2072, 23 L. Ed. 2d. 656 (1969), which held that whenever a judge 

. I 

. ! 

J imposes a more.severe sentence on a defendant after a new trial, the reasons for his 

: r doing· so must· affirmatively appear and be based upon objective information 

concerning identifiable conduct upon the part of the defendant occurring after the 

: i time of the original sentencing proceeding. Pearce's rational for providing reasons 

on the record also applies when the original sentence is vacated and a second 

. . 

sentence is imposed without an additional trial. Commonwealth v. Greer, 3�2 Pa. 

Super. 127, 554 A.2d 980, 987 n. 7 (1983 ). Absent evidence that a sentence 

13 

·•. 
. 

' i . 

increase is justified due to objective information concerning a defendant's case, the 

lresumplion 

of vindictiveness cannot be rebutted. Commonwealth v. Serrano, 727 

�.2d 1168, 1170 (Pa: Super. 1999). The Barnes trial court explained that by 

j 

. increasing the kidnapping sentence, the original sentencing structure was merely 

I · · ed p · h · · r · · h · l · · 

: 

ratntatn . reservmg t e integnty O a pnor sentencing SC eme IS a egitirnate 

; sentencing concern, Commonwealth v. Walker, 390 Pa. Super. 76, 568 A.2d 201, 

I I 

. I 205 ( 1989), disapproved on other grounds by Commonwealth v. Robinson, 931 

) 

l.2d 15, 20-22 (Pa. · Super. 2007). A trial court may property resentence a 

I iefendant to the same aggregate sentence to preserve its original sentencing 

, I . 

· scheme. Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super. 1999), 

ippeal 

denied, 56 J Pa. 651, 747 A.2d 896 (l 999). The Barnes court determined 

!hat the defendant was not the victim of a vindictive sentence on the part of the 

!rial court, as his aggregate sentence after remand remained the same. 

In the instant case, the court has not increased the sentence for attempted 

murder, but specificaJly referred to and used the proper sentencing guidelines. In 

l 

its original sentence, the court sentenced the defendant using the guidelines for 

luempted 

murder with serious bodily injury and the deadly weapon used 

lnhancement, 

which considering Shakir's prior record score of one, converted to 

ln offense gravity score of 14 with a mitigated sentence at 90 months and the 

14 
' , 

·, 

standard range of sentence at between 102 months and 240 months. (See 204 Pa. J I ·. . 

l !Code §§303.15, O�e:nse Listing; 303.3(c)(4), Offense Gravity Score, Inchoate 

j 

!Offenses; 303.9(b), Deadly Weapon Enhancement Sentence Recommendations; 

· �03.16, Basic Sentencing Matrix; and 303.18, Deadly Weapon Enhancement/Used 

: I . . 

. Matrix). When utilizing the correct sentencing guidelines for attempted murder · 

! 

rith 

no serious 

bod;ly 

injury and the deadly weapon used enhancement, the 

: 

. sentencing guidelines provided for an offense gravity score of 13, with the 

. 

: !mitigated 

sentence of 72 months, the standard range of 84 months to I 02 months 

I ! and the aggravated sentence of 114 months. Id. Shakir argued that the court should . 

use sentencing guidelines for attempted murder with no serious bodily injury and 

. I 

I no deadly weapon used enhancement making the offense gravity score 13, with the 

, mitigated .sentence of 54 months, the standard range of 66 months to 84 months 

. 

r 

months for attempted murder with serious bodily injury .was within the standard 

range. Using the corrected sentencing guidelines, l 02 months is also within the 

standard range. The court explained that the reasons for the sentence for attempted 

murder remained the.same as outlined at the time of the original sentence hearing, 

and the aggravated sentence of 96 months. Id. The court's original sentence of 102 

. I 

t 

' ' 

. I 

I 

and thus, the sentence would remain identica] in order to maintain the sentencing 

15 
I 

scheme. Shakir has thus failed to demonstrate either actual or presumptive 

Lndictiveness or an abuse of discretion on the part of the court. 

Shakir next asserts that Alleyne and Apprendi v, New Jersey, 530 U.S. 466, 

120 S. Ct. 2348, 147-L.Ed. 2d 435 (2000), prohibit the application of the deadly 

reapon used enhancement to the charge of attempted murder, unless the jury 

specifically finds as a-fact that a deadly weapon was used. Apprendi held that any 

lfact 

that increases the penalty for a crime beyond the prescribed statutory 

'maximum must be submitted to the jury and proven beyond a reasonable doubt. 

JThe defendant's. argument fails for two· reasons. The Commonwealth's 

information in count 1 charging criminal attempt to commit criminal homicide 

specifically alleges that Shakir did "with the intent to commit a specific crime, do 

any act which constitutes a substantial step towards the commission of that crime, 

jury as follows: 

three elements required to be proven beyond a reasonable doubt, charged to the 

(Emphasis supplied). Further, in the charge to the jury, the court, as one of the 

That the defendant did a certain act. In this case, the 

Commonwealth alleges that the act which the defendant 

committed was fire a handgun at the victim, Brian Elmore, which 

caused him to.be struck several times. (Emphasis supplied). 

16 

to-wit: actor did fire-a handgun at the victim, Brian Elmore, which caused hlm 

l I to be struck several times, in an attempt to commit the crime of homicide." 

I 

I 

I 

I 

j 

I 

I 

( 
The jury was specifica1Iy required to find that Shakir fired a handgun at the victim 

and struck him several times in order to be convicted of attempted murder, and 

thus, Shakir's argument is rejected. 

Secondly, the deadly weapon used enhancement is contained in 

§303. l O of the Sentencing Guidelines, 204 Pa. Code §303.10, and 

provides in relevant part as follows: 

a. Deadly Weapon Enhancement. 

(2) When the court determines that the offender used 

a deadly weapon during the commission of the 

current conviction offense, the court sha11 consider 

the DWFJUsed 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. 

The sentencing court has no discretion to refuse to apply the deadly weapon 

enhancement when it is appropriate. Commonwealth v. Solomon, 151 A. 3d 672, 

677 (Pa. Super. 2016), citing Commonwealth v. Magnum, 439 Pa. Super. 616, 654 

A.2d 1146, 1149-50 (1995). The court must begin its calculation of a sentence 

from the correct starting range, including when appropriate, the deadly weapon 

enhancement, Magnum at 1150 and Solomon at 677. As to the specific issue raised 

by Shakir, the Superior Court, in Commonwealth v. Shull, 148 A.3d 820 (Pa. 

17 
; i 

i 

I' .· .. 

1 ·_. �

i . 

r . . . 

$upt:fr.·2016) n.6 and� Commonwealth 'v, · Buterbaugh, 91. A.3d 1247 (Pa. Super. I . : . 

,, 1014) n.10, appeal denied, 628 Pa. 627, 104 A.3dl. (2014), explained that the 

/imposition of the deadly weapon sentencing enhancement does not implicate the 

j holdings of Alleyne nqr Apprendi, as follows: 

. . 

• 1 

I 

· I 

I I 

I 

. 

I 

: i 

. 

: I 

I 

I 

. ! 

. I 

. / 

I 

; 

. • . 

. i 

In both [Alleyne and Apprendii, the Supreme Court determined 

that certain sentencing factors were considered elements of the 

underlying crime, and thus, to comply with the dictates of the Sixth 

' Amendment, must be submitted to the jury and proven beyond a 

.. reasonable doubt instead of being determined by the sentencing judge. 

However, this inquiry is not relevant to our case because of the nature 

oftheDWE. 

Alleyne and Apprendi dealt with factors that either increased the 

. mandatory .minimum sentence or increased the prescribed 'sentencing 

range beyond 'the statutory maximum, respectively; Our case doesnot 

involve either. 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 outside the guideline range. 

· Therefore, neither of the situations addressed in Alleyne and Apprendi 

are implicated. 

In the present case.: the jury specifically determined beyond a .reasonable doubt that 

Shakir· fired. a handgun at the victim, Brian Elmore, which caused him to be struck 

.. ' . 

several times as an element in convicting him of attempted ·murder, which required 

the· court to apply 'the deadly weapon used enhancement in accordance with 

§3QJ: 10(a)(2)(i) of the sentencing guidelines. The court, utilizing the correct 

se�tericing guidelines for the offense of attempted murder generally, 'applying the 

deadly weapon used-enhancement, and following the dictates of Commonwealth V . 

18 
Serrano, 150 AJd 470, 473 (Pa. Super. 2016), to review the entire case file anew, 

chose to properly maintain its original sentence, which was within the standard 

range, in order to preserve the integrity of the sentencing scheme. 

Based on the foregoing, the court entered its order of January 23, 2018 

denying Shakir's post-sentence motion. 

BY THE COURT 

C) 

G 

0 

c: 

... 

S.J. 

C) 

)> 

§ 

C) 

s: 

-- . - ,') 

. "': 

7- 

• • ..J - ... ;: ... - 

•. >- - 

g · .. ....... 

:.� :.::. == �- ; ,: C4' • .. 

·-·�

. ......, , .. .. , 

- J 

,.-..J 

........ 0 .::::o 

>-� >- oa:: 

::::,W < 

-,--J x: 

(.,) Cl:) 

19