J-A26016-16

2016 PA Super 259

COMMONWEALTH OF PENNSYLVANIA

v.

MELVIN TAYLOR SOLOMON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1209 WDA 2015

Appeal from the Judgment of Sentence October 13, 2013

in the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0016014-2012

BEFORE: BENDER, P.J.E., RANSOM, J., MUSMANNO, J.

OPINION BY RANSOM, J.: FILED NOVEMBER 22, 2016

Melvin Taylor Solomon (Appellant) appeals from the judgment of 

sentence of seven and one-half to fifteen years of imprisonment. This 

sentence was imposed after Appellant entered a guilty plea to aggravated 

assault, attempting to elude a police officer, reckless endangerment, driving 

without a license, and driving at an unsafe speed.1 We affirm.

The trial court outlined the relevant factual history as follows:

[In September of 2012, Appellant] was driving [an SUV] 

recklessly in the Homewood Section of the City of Pittsburgh. 

City of Pittsburgh Police Officer Baker[, who was in a marked 

police vehicle with his partner Police Officer Schutz,] decided to 

initiate a traffic stop. Instead of stopping, however, [Appellant] 

fled. The pursuit went from the City of Pittsburgh through the 

Boroughs of Wilkinsburg, Churchill, Penn Hills and, ultimately, 

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1 Respectively, see 18 Pa.C.S. §§ 2702(a)(1), 3733(a), 2705; 75 Pa.C.S. §§ 

1501(a), and 3361.
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into Verona, Pennsylvania. At this time, [Appellant] brought the 

vehicle to an abrupt stop in an alleyway in Verona. [Appellant] 

traveled in excess of eighty miles per hour during this pursuit. 

Once [Appellant] brought the vehicle to a stop in this alley both 

Officer Baker and []Officer Schutz[] exited [their] vehicle[, which 

was stopped approximately fifteen feet behind Appellant]. 

Rather than comply with the Officers’ warnings, [Appellant] put 

the vehicle in reverse and drove in reverse toward the police 

vehicle. [Appellant] missed Officer Baker by approximately one 

foot and continued on toward Officer Schutz. The summary of 

the evidence described an eight-foot separation between the 

police car and a parked van in the alleyway. [Appellant] drove 

the vehicle directly at Officer Schutz who, fearing for his life, 

fired at the rear of the vehicle. Officer Schutz was somehow 

able to jump behind the police vehicle and avoid being run over. 

Officer Baker, believing that his partner had been run over, fired 

additional shots at the vehicle as it exited the alley in reverse. 

[Appellant] was later identified as the driver of this vehicle and 

charged with these crimes. At the sentencing proceeding 

videotape was played reflecting [Appellant’s] driving in the 

relevant time period.

Trial Court Opinion, 10/28/15, at 3-4.

Following a hearing with the trial court in July of 2013, Appellant 

entered a guilty plea to the aforementioned crimes. A pre-sentence report 

was ordered. At Appellant’s sentencing hearing in October of 2013, defense 

counsel argued that the Deadly Weapon Enhancement should not apply to 

the Appellant; however, the court was not persuaded. Appellant was 

sentenced to seven and one-half to fifteen years of imprisonment for the 

aggravated assault, plus seven years of probation to be served consecutively 

for the fleeing and eluding charge, and two years’ probation to be served 

concurrently with the preceding probation sentence for recklessly 

endangering another. No further penalty was assessed on the remaining 
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charges. Appellant filed post-sentence motions, which were denied. No 

appeal was filed.2 

Thereafter, Appellant timely filed a petition for collateral relief 

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. 

Appellant’s PCRA petition was granted, and his appellate rights were 

reinstated nunc pro tunc. Appellant timely appealed and filed a courtordered Pa.R.A.P. 1925(b) statement. The trial court issued a responsive 

opinion.

Appellant presents the following question for our review:

1. Did the sentencing court err when it applied the 204 

Pa.Code § 304.10(a) Deadly Weapon Enhancement in Appellant’s 

case (given that the Commonwealth failed to prove at 

[s]entencing that he, during his crimes, used or possessed a 

firearm, a dangerous weapon, or an object that was used or 

intended to be used to [produce] death or serious injury), with 

the remedy for that error being vacation of the sentences 

imposed and remand for a resentencing hearing?

Appellant’s Brief at 3 (footnotes omitted).

In the sole issue before this Court, Appellant argues that the trial court 

erred in reaching the conclusion that he drove the vehicle in a manner that 

made the Deadly Weapon Enhancement applicable. Appellant’s Brief at 17. 

Appellant asserts that, in reversing, he was using his car to (1) continue his 

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2 Appellant did not take issue with his probation sentences. See Appellant’s 

Brief at 28.
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flight after entering a dead end, and (2) prevent himself from being shot.3 

Id. 

Appellant’s challenge is to the discretionary aspects of his sentence. 

See, e.g., Commonwealth v. Kneller, 999 A.2d 608, 613 (Pa. Super. 

2010) (en banc) (stating a challenge to the application of the deadly weapon 

enhancement implicates the discretionary aspects of sentencing), appeal 

denied, 20 A.3d 485 (Pa. 2011). Challenges to the discretionary aspects of 

sentencing do not entitle an appellant to an appeal as of right. 

Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). Prior to 

reaching the merits of a discretionary sentencing issue: 

[W]e conduct a four-part analysis to determine: (1) 

whether appellant has filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was 

properly preserved at sentencing or in a motion to 

reconsider and modify sentence, see Pa.R.Crim.P. 720; 

(3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 

2119(f); and (4) whether there is a substantial question 

that the sentence appealed from is not appropriate under 

the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (most 

citations omitted), appeal denied, 909 A.2d 303 (Pa. 2006). 

When appealing the discretionary aspects of a sentence, an appellant 

must invoke the appellate court’s jurisdiction by including in his brief a 

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3 Appellant supplements this argument regarding his intent in his PostSubmission Communication. See Appellant’s Post-Submission 

Communication, 10/4/16.
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separate concise statement demonstrating that there is a substantial 

question as to the appropriateness of the sentence under the Sentencing 

Code. Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002); 

Pa.R.A.P. 2119(f). “The requirement that an appellant separately set forth 

the reasons relied upon for allowance of appeal furthers the purpose evident 

in the Sentencing Code as a whole of limiting any challenges to the trial 

court’s evaluation of the multitude of factors impinging on the sentencing 

decision to exceptional cases.” Commonwealth v. Phillips, 946 A.2d 

103, 112 (Pa. Super. 2008) (emphasis in original) (internal quotation marks 

omitted), appeal denied, 954 A.2d 895 (Pa. 2008), cert. denied, 129 S. Ct. 

2450 (2009). 

The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis. See Commonwealth v. Anderson, 

830 A.2d 1013, 1018 (Pa. Super. 2003). 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.” Sierra, 752 A.2d at 912-13. 

As an initial matter, we note that Appellant timely filed a notice of 

appeal, preserved the instant issue at sentencing and in a post-sentence 

motion, and included a Pa.R.A.P. 2119(f) statement in his brief. Therefore, 

our analysis turns on whether there is a substantial question that the 

sentence imposed is inappropriate under the Sentencing Code. See 42 
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Pa.C.S.A. § 9781(b). This Court has “found on several occasions that the 

application of the deadly weapon enhancement presents a substantial 

question.” Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 

2010). Appellant has complied with the requirements for consideration of a 

challenge to the discretionary aspects of a sentence, as such, we will 

consider the claim on its merits.

When reviewing a challenge to the discretionary aspects of sentencing, 

we adhere to the following standard:

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. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citing 

Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)), 

reargument denied (Feb. 17, 2015), appeal denied, 117 A.3d 297 (Pa. 

2015). 

The trial court sentenced Appellant according to the Deadly Weapon 

Enhancement Used Matrix of the Sentencing Guidelines. See 204 Pa.Code § 

303.17(b); Notes of Testimony (N.T.), 10/10/13, at 8. To determine 

whether the Deadly Weapon Enhancement Used Matrix should apply, the 

Sentencing Code provides, in pertinent part, as follows:
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(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).

Pennsylvania law defines a deadly weapon as “any firearm, loaded or 

unloaded, or any device designed as a weapon and capable of producing 

death or serious bodily injury, or any other device or instrumentality which, 

in the manner in which it is used or intended to be used, is calculated or 

likely to produce death or serious bodily injury.” 18 Pa.C.S.A. § 2301. 

Serious bodily injury is defined as “[b]odily injury which creates a substantial 

risk of death or which causes serious, permanent disfigurement, or 

protracted loss or impairment of the function of any bodily member or 

organ.” Id.

Items not normally considered deadly weapons can take on such 

status based upon their use under the circumstances. Commonwealth v. 

Raybuck, 915 A.2d 125, 128 (Pa. Super. 2006) (concluding commercial 

mouse poison placed in sandwich was a deadly weapon) (citing 

Commonwealth v. Scullin, 607 A.2d 750, 753 (Pa. Super. 1992) (finding 

tire iron thrown at victim was a deadly weapon), appeal denied, 621 A.2d 

579 (Pa. 1992)); Commonwealth v. Cornish, 589 A.2d 718, 721 (Pa. 
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Super. 1991) (recognizing fireplace poker used to strike victim constituted a 

deadly weapon). “The definition of deadly weapon does not demand that 

the person in control of the object intended to injure or kill the victim.” 

Scullin, 607 A.2d 753. 

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

weapons enhancement when it is appropriate. Commonwealth v. 

Magnum, 654 A.2d 1146, 1149–50 (Pa. Super. 1995). The court must 

begin its calculation of a sentence from the correct starting range, including, 

when appropriate, the Deadly Weapons Enhancement. Id. at 1150. When a 

sentencing court fails to begin its calculation of sentence from the correct 

starting point, this Court will vacate the sentence and remand for 

reconsideration of sentence. Id. (citing Scullin, 607 A.2d at 754); 42 

Pa.C.S. § 9781(c)(1).

As used under the instant circumstances, we conclude that the SUV 

was an instrument likely to produce death or serious bodily injury to Officer 

Schutz and thus constituted a deadly weapon. The SUV became a deadly 

weapon when Appellant drove it in reverse through an eight-foot-wide 

opening directly at a person who was standing less than fifteen feet behind 

him. N.T., 7/12/13, at 7-11. 

Here, Appellant’s motivation for reversing the vehicle is of no moment. 

If one drives a vehicle at another person, there is a high probability that the 

victim will be seriously hurt or killed. Appellant pleaded guilty to aggravated 

assault, a crime eligible for deadly weapon enhancement. See 204 Pa. Code 
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§ 303.10(a)(2), 18 Pa.C.S. §2702(a)(1). Thus, the sentencing court had no 

discretion to refuse to apply the Deadly Weapon Enhancement, as it was 

appropriate. Magnum, 654 A.2d 1149–50.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016