J-S55035-14

2015 PA Super 58

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NICOLE DOLORES DEVRIES

Appellant No. 326 EDA 2014 

Appeal from the Judgment of Sentence December 20, 2013

In the Court of Common Pleas of Pike County

Criminal Division at No(s): CP-52-CR-0000054-2013

BEFORE: BOWES, J., SHOGAN, J., and OTT, J.

OPINION BY OTT, J.: FILED MARCH 20, 2015

Nicole Dolores Devries appeals from the judgment of sentence entered 

on December 20, 2013, in the Court of Common Pleas of Pike County. 

Devries was tried by a jury and convicted on charges of escape, resisting 

arrest, two counts of reckless endangerment, driving under the influence 

(DUI), and possession of drug paraphernalia.1 She received an aggregate 

sentence of 25–60 months’ incarceration. Relevant to this timely appeal, 

the deadly weapon enhancement was applied to her escape sentence. 

Devries raises three issues; she claims the trial court erred in: (1) denying 

her motion for change of venue, (2) denying her motion for acquittal on the 

charge of escape, and (3) improperly applying the deadly weapon 

____________________________________________

1 18 Pa.C.S. §§ 5121(a), 5104, 2705; 75 Pa.C.S. § 3802(d)(1), and 35 P.S. 

§ 780-113(a)(32), respectively.
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enhancement. After a thorough review of the submissions by the parties, 

relevant law, and the certified record, we affirm in part, vacate in part, and 

remand for resentencing in accordance with this decision.

We relate the factual history as stated in the trial court’s Pa.R.A.P. 

1925(a) opinion.

The criminal information was filed for this case on March 4, 2013 

alleging that [Devries], on November 9, 2012, unlawfully 

removed herself from official detention by fleeing from two Pike 

County Probation Officers, Jennifer Tamblyn and Jeffrey Baker, 

after she had been told numerous times that she was under 

arrest. As testimony at trial established, the Parole and 

Probation Officers had gone to [Devries’] home in order to do a 

drug test as part of [Devries’] probation supervision.

During this drug testing, [Devries] tested positive for some drug 

use which she maintained was a Vicodin pill she had taken for a 

toothache. After the two officers informed her that she would be 

placed under arrest and taken to jail for the violation, [Devries] 

bolted for her car outside her home and tried to flee. The 

officers followed her to her vehicle, where a brief struggle 

ensued that resulted with Officer Baker being dragged a short 

distance by the car before managing to free himself.

Trial Court Opinion, 3/27/2014, at 1-2.

In Devries’ first issue, she argues the trial court erred in failing to 

grant her motion for change of venue based on the fact the alleged victims 

were employees of Pike County. “The standard of review for a denial of a 

motion for change of venue is whether there has been an abuse of discretion 

on the part of the trial judge.” Commonwealth v. Johnson, 612 A.2d 

1382, 1384-85 (Pa. Super. 1992) (citation omitted). Pursuant to the rules 

of criminal procedure, “Venue or venire may be changed by that court when 
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it is determined after hearing that a fair and impartial trial cannot otherwise 

be had in the county where the case is currently pending.” Pa.R.Crim.P. 

584(A). Further, pursuant to Rule 584(B), when a change of venue is 

granted, unless otherwise ordered by our Supreme Court, a trial judge from 

the original venue will preside over the trial. This provision of the rules 

reinforces the fact that a change of venue addresses a problem with the 

location, while recusal addresses an issue with a specific judge or judges. 

Here, Devries’ challenge to venue was based upon the suggestion that 

because the complaining witnesses were employees of the county court, the 

unrealized possibility of prejudice was sufficient to warrant the change. 

However, the motion for change of venue provided only vague allegations of 

prejudice, noting the work relationship between the complaining witnesses 

and the county court. The motion did not allege that the trial judge would 

be unfair in any way and there is no indication of how or why jurors would 

be unable to be fair and impartial. 

Devries cites Com. ex rel Armor v. Armor, 398 A.2d 173 (Pa. Super. 

1978) to support her position. However, that case provides no aid to 

Devries. In Armor, one of a divorced couple remarried a Montgomery 

County trial judge. The other ex-spouse filed a petition to modify child 

support in Montgomery County, which had been the proper venue. A 

counter petition was filed seeking to increase child support. A panel of our 

Court determined the appearance of conflict was too great, having a 

Montgomery County trial judge ruling on a matter that directly affected a 
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fellow Montgomery County trial judge. The problem in Armor was not with 

venue, it was with the trial judges and the appearance of impropriety, not 

with the Montgomery County location itself. 

Armor might be relevant to provide support for Devries had she 

claimed the judges of Pike County could not be fair because the complaining 

witnesses were employees of the court. Such a claim of judicial bias was 

specifically denied by Devries. The trial court quoted defense counsel at the 

hearing on the motion:

This motion is styled as a Motion to Change Venue rather than a 

request for recusal for a very specific reason. It has nothing to 

do with a conflict that I believe you or Judge Chelak have in this 

case as individuals.

Trial Court Opinion, 3/27/2014, at 5, quoting N.T. Hearing, 6/4/2013, at 2.2

The vast majority of case law regarding change of venue addresses 

the issue of pre-trial publicity. “[I]n reviewing a trial court's decision [as to 

a change of venue] the only legitimate inquiry is whether any juror formed a 

fixed opinion of [the defendant's] guilt or innocence as a result of pre-trial 

publicity.” Commonwealth v. Boring, 684 A.2d 561, 566 (Pa. Super. 

1996) (citation omitted). We see no reason why this line of inquiry does 

not apply in the current situation. Devries has provided no evidence that 

____________________________________________

2 The notes of testimony from the hearing on the Omnibus Pre-Trial Motion 

were not included in the certified record. Reviewing the claim as presented 

in Devries’ appellant’s brief, we do not believe review of those notes was 

necessary. 
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any juror formed a fixed opinion of her guilt because of the complaining 

witnesses being employees of Court of Common Pleas of Pike County. 

Accordingly, she is not entitled to relief on this issue.

In her second claim, Devries argues the trial court erred in denying her 

motion for acquittal because there was insufficient evidence to support her 

conviction of escape in that the evidence failed to demonstrate she was 

under “official detention” at the time she fled. In relevant part, the statutory 

definition of escape is:

A person commits an offense if he unlawfully removes himself 

from official detention or fails to return to official detention 

following temporary leave granted for a specific purpose or 

limited period.

18 Pa.C.S. § 5121(a).

Additionally, relevant to our inquiry:

A motion for judgment of acquittal challenges the sufficiency of 

the evidence to sustain a conviction on a particular charge, and 

is granted only in cases in which the Commonwealth has failed 

to carry its burden regarding that charge.

Commonwealth v. Emanuel, 86 A.3d 892, 894 (Pa. Super. 2014) (citation 

omitted).

The standard of review for claims of insufficient evidence is wellsettled. With respect to such claims, we consider the evidence in 

the light most favorable to the Commonwealth as verdict winner. 

Commonwealth v. Barnes, 871 A.2d 812, 819 (Pa. Super. 

2005). In that light, we decide if the evidence and all reasonable 

inferences from that evidence are sufficient to establish the 

elements of the offense beyond a reasonable doubt. Id. We keep 

in mind that it was for the trier of fact to determine the weight of 

the evidence and the credibility of witnesses. Id. The jury was 

free to believe all, part or none of the evidence. Id. This Court 
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may not weigh the evidence or substitute its judgment or that of 

the factfinder. Id.

Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006).

Official detention is defined as:

Arrest, detention in any facility for custody of persons under 

charge of conviction of crime or alleged or found to be 

delinquent, detention for extradition or deportation, or any other 

detention for law enforcement purposes; but the phrase does not 

include supervision of probation or parole.

18 Pa.C.S. § 5121(e).

The relevant aspect of this definition is “any other detention for law 

enforcement purposes.” Here, the evidence demonstrated that Devries was 

under supervision of probation. Her probation officer and a co-worker went 

to Devries’ residence to conduct a routine home visit. As part of such 

supervision, Devries would be required to supply a urine sample to 

demonstrate she was drug free. Devries was informed if she failed her drug 

test, she could be taken before a judge and her supervision might be 

terminated. See N.T. Trial, 11/7/2013, at 39. Further, while in the 

bathroom, immediately after she supplied the specimen and there was a 

preliminary indication of opiate use, Devries was told “due to her violation 

and testing positive that my supervisor had already predetermined if she 

was to test positive, she would be arrested and taken to jail.” Id. at 46. 

Subsequent to this, Devries repeatedly asked not to be taken to jail because 

she did not want to leave her daughter. Probation Officer Tamblyn testified 

she repeatedly told Devries she was going to be placed under arrest or was 
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under arrest. Id. at 48. Officer Tamblyn testified she did not place Devries 

in handcuffs while in the residence because she did not want the daughter to 

see her mother in handcuffs. Id. at 49-50. Finally, Officer Tamblyn told 

Devries, “[L]et’s go, it’s time to go, we have to get out of here.” Id. at 50. 

She allowed Devries to retrieve her wallet, but at the same time, Devries 

grabbed her car keys and fled. Id. at 50-51.

Our review of the certified record supports the trial court’s 

determination that Devries was under official detention at the time she fled. 

Devries was informed of the specific consequences of a failed urine test, 

specifically that she would be arrested, taken to jail, and brought before a 

judge. Devries knew, having failed the drug test, that she was in the 

custody of her probation officer. She knew she was going to jail and pled 

not to be taken from her daughter. This evidences her knowledge of the 

situation. Viewed in the light most favorable to the Commonwealth as 

verdict winner, there was sufficient evidence to prove Devries was under 

official detention at the time she fled. See Commonwealth v. Fountain, 

811 A.2d 24 (Pa. Super. 2002) (defendant under official detention prior to 

official arrest where officer told defendant not to run, and indicated she was 

attempting to serve an arrest warrant).

Devries’ final claim is that the trial court improperly applied the deadly 

weapon enhancement to her conviction of escape. In relevant portion of the 

escape statute quoted above, we note:
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(1) An offense under this section is a felony of the third 

degree where:

(ii) the actor employs force, threat, deadly weapon or 

other dangerous instrumentality to effect the escape

18 Pa.C.S. § 5121(d)(1)(ii).

Additionally, the deadly weapon enhancement is found at 204 Pa.Code 

§ 303 and states in relevant part:

(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 

(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 

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 
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(iii) Any device, implement, or instrumentality capable of 

producing death or serious bodily injury.

(3) There shall be no Deadly Weapon Enhancement for the 

following offenses:

(ix) Any other offense for which possession of a deadly

weapon is an element of the crime.

204 Pa.Code 303(a)(1)-(3).

At sentencing, the Commonwealth argued that pursuant to the jury’s 

verdict, Devries had employed a dangerous instrumentality to aid her 

escape, not a deadly weapon. Therefore, the Commonwealth argued, the 

Deadly Weapon Enhancement was applicable to the crime and did not violate 

the prohibition against double-counting sentencing factors. Counsel for 

Devries disagreed, claiming the prohibition in Section 303(a)(3)(ix) 

controlled because possession of a deadly weapon was an element of the 

crime of which Devries had been convicted. The trial court agreed with the 

Commonwealth and imposed the enhancement, thereby raising the standard 

range minimum sentence from 1-12 months to 13-24 months. The trial 

court imposed a 13-month minimum sentence for escape. This sentence 

would have represented an aggravated range sentence without the 

enhancement.

Before we conduct a statutory and regulatory analysis, we examine the 

trial court’s reasoning. Both the Commonwealth and trial court maintain 

that because the jury specifically determined Devries used a dangerous 

instrument, not a deadly weapon, the exception found at section 
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303(a)(3)(ix) is not applicable. We find this position unpersuasive based 

upon our review of the certified record. 

Specifically, during closing argument, the Commonwealth stated: 

...but there’s a third consideration then after you decide those 

first two elements of the crime.... [T]he third consideration is did 

she employ, let me make sure I get this right, force[,] threat, 

deadly weapon, or dangerous instrumentality to affect [her] 

escape? So, did she use one of those methods to cause her 

escape, to aid her escape?

N.T. Trial, 11/7/2013, at 104-105.

The trial court then charged the jury, in relevant part:

Third, if you do find the first two elements have been proven 

beyond a reasonable doubt, then you must indicate on the 

verdict form whether you find the following element has also 

been proven and that element is that the defendant employed 

force, threat, a deadly weapon or a dangerous instrumentality to 

affect the escape.

Id. at 114-115.

Finally, in relevant part, the trial court explained the verdict form:

Then you go to the second question and it says if you have 

marked the defendant as guilty to the above offense, please 

indicate whether you also find the defendant employed force, 

threat, a deadly weapon or other dangerous instrumentality to 

affect he escape and under that we have two choices[,] the first 

defendant did employ a dangerous instrumentality, the second 

defendant did not employ a dangerous instrumentality. You 

must place an X in one of those areas indicating what your 

decision is.

Id. at 117-118.

The verdict slip reiterates what the trial court explained. It read:

If you have marked the Defendant as guilty to the above 

offense, please indicate whether you also find that the Defendant 
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employed force, threat, a deadly weapon or other dangerous 

instrumentality to affect her escape.

___ Defendant Did Employ a Dangerous Instrumentality

___ Defendant Did Not Employ a Dangerous Instrumentality

Jury Verdict Form, 11/7/2013.

The jury was not asked to differentiate between the four statutory 

elements; the jurors were asked to determine if any of the four elements 

applied. If the jury determined that ANY of the four elements applied, the 

form was to be marked as indicated. Because the jury was not asked or 

instructed to differentiate between the statutory elements and the verdict 

form did not allow for a determination of such differentiation, we cannot 

agree that the jury specifically determined Devries had used a dangerous 

instrumentality and not a deadly weapon. Rather, the finding as marked on 

the verdict form was an acknowledgement that Devries had employed at 

least one of the four required elements. 

Analysis of the relevant statutory and regulatory provisions is subject 

to the Statutory Construction Act (S.C.A.), 1 Pa.C.S. § 1501 et seq.3 

Relevant to our discussion:

Because statutory interpretation is a matter of law, our standard 

of review is de novo, and our scope of review is plenary. 

____________________________________________

3 The S.C.A. also applies to Pennsylvania Code provisions. See 1 Pa.C.S. § 

1502(a)(1)(ii); Keffer v. Bob Nolan’s Auto Service, Inc., 59 A.3d 621, 

647 n.5 (Pa. Super. 2012); Commonwealth v. Mohamud, 15 A.3d 80, 86 

n.7 (Pa. Super. 2010).
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Commonwealth v. McClintic, 589 Pa. 465, 472, 909 A.2d 

1241, 1245 (2006). Consequently, we are not bound by the 

lower court's conclusions regarding the proper meaning of the 

applicable provisions of this statute. See Commonwealth v. 

Kyle, 582 Pa. 624, 632, 874 A.2d 12, 17 (2005) (holding that 

our Court owes no duty of deference to the legal conclusions of 

lower courts regarding an issue of statutory construction).

Our review is further governed by the Statutory 

Construction Act, 1 Pa.C.S.A. § 1501 et seq., under which 

our paramount interpretative task is to give effect to the 

intent of our General Assembly in enacting the particular 

legislation under review. See 1 Pa.C.S.A. § 1921 (a) (“The 

object of all interpretation and construction of statutes is 

to ascertain and effectuate the intention of the General 

Assembly. Every statute shall be construed, if possible, to 

give effect to all its provisions.”); Nationwide Ins. Co. v. 

Schneider, 599 Pa. 131, 143, 960 A.2d 442, 448 (2008). 

Generally, the best indication of the General Assembly's 

intent may be found in the plain language of the statute. 

Martin v. Commonwealth, Dep’t of Transp., Bureau of 

Driver Licensing, 588 Pa. 429, 438, 905 A.2d 438, 443 

(2006). In this regard, “it is not for the courts to add, by 

interpretation, to a statute, a requirement which the 

legislature did not see fit to include.” Commonwealth v. 

Rieck Investment Corp., 419 Pa. 52, 59-60, 213 A.2d 

277, 282 (1965). Consequently, “[a]s a matter of statutory 

interpretation, although one is admonished to listen 

attentively to what a statute says[;][o]ne must also listen 

attentively to what it does not say.” Kmonk-Sullivan v. 

State Farm Mut. Auto Ins. Co., 567 Pa. 514, 525, 788 

A.2d 955, 962 (2001) (internal quotations omitted).

Commonwealth v. Wright, 609 Pa. 22, 14 A.3d 798, 814 

(2011).

Here, we must construe the meaning of a criminal statute. As 

such, additional principles apply to our interpretation, such as 

the statutory mandate that penal statute “shall be strictly 

construed[.]” 1 Pa.C.S. § 1928(b)(1).

Of course, the mandate to construe penal statutes 

narrowly does not override the “general principle that the 

words of a statute must be construed according to their 
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common and approved usage,” and does not require this 

Court to give the words of a penal statute their “narrowest 

possible meaning.” Commonwealth v. Booth, 564 Pa. 

228, 766 A.2d 843, 846 (2001). The mandate “does mean, 

however, that where ambiguity exists in the language of a 

penal statute, such language should be interpreted in the 

light most favorable to the accused. More specifically, 

where doubt exists concerning the proper scope of a penal 

statute, it is the accused who should receive the benefit of 

such doubt.” Id. (internal citation omitted)[.]

Commonwealth v. McCoy, 599 Pa. 599, 962 A.2d 1160, 1168-

69 (2009).

Commonwealth v. Kelly, 102 A.3d 1025, 1029-30 (Pa. Super. 2014).

The language of both 204 Pa. Code § 303(a)(3)(ix) and 18 Pa.C.S. § 

1521(d)(1)(ii) is clear. To be convicted of escape as a felony, one must 

employ any of the four stated factors, including a deadly weapon. The 

possession of a deadly weapon is, therefore, an element of the crime. 

Section 303(a)(3)(ix) forbids the application of the deadly weapon 

enhancement to any crime of which possession of a deadly weapon is an 

element. Accordingly, the deadly weapon enhancement is not instantly 

applicable to escape as a felony of the third degree. Therefore, we must 

vacate the sentence and remand this matter for resentencing.

Judgment of sentence affirmed in part, vacated in part. Remanded for 

resentencing in conformance with this decision. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/20/2015