J-S50034-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

HANNAH MATOS

Appellee No. 1608 MDA 2015

Appeal from the Judgment of Sentence August 6, 2015

In the Court of Common Pleas of Centre County

Criminal Division at No(s): CP-14-CR-0001140-2014

BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED JULY 06, 2016

Appellant, the Commonwealth of Pennsylvania, appeals from the 

August 6, 2015 aggregate judgment of sentence of 111⁄2 to 231⁄2 months’ 

incarceration, imposed by the trial court after a jury convicted Appellee, 

Hannah Matos, of two counts of aggravated assault, and one count of simple 

assault.1 After careful review, we affirm.

Our review of the certified record reveals that the victim, Lafone 

Brown, testified to dating Appellee, but ultimately ending the relationship. 

N.T., 6/25/15, at 45-49. On June 12, 2014, the victim agreed to meet 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2702(a)(1) and (4), 2701(a)(1), and 2709(a).
J-S50034-16

- 2 -

Appellee at her home to exchange some vacation photographs. Id. at 51-

52. When the victim clarified that he wanted the relationship to end, 

Appellee became upset and began threatening suicide, and ultimately left 

the victim at the home overnight with her 10 year-old son. Id. at 52-55. 

Appellee returned the next morning and confronted the victim when he 

attempted to leave. Id. at 56-58. Appellee followed the victim and hit him

with a belt. Id. at 62-63. Then Appellee “pulled a hammer from behind her 

back” and “swung it at [the victim] multiple times ... hitting [him] once in 

the arm.” Id. at 63-64. The victim “was able ... to [get] the hammer” from 

Appellee. Id. at 65. He then “started jogging away.” Id. The victim 

“thought [he] was clear” when he saw Appellee in her vehicle driving toward 

him. Id. at 68. The victim resumed jogging away from Appellee. Id. at 70. 

The victim noticed Appellee had a second hammer. Id. at 72.2 Appellee 

began driving after the victim, who jumped over a fence. Id. at 75. The 

victim then saw a sign that said “leasing office,” and he entered the building 

and called the police. Id. at 79. 

____________________________________________

2 The victim said it was not the same hammer, and he “remembered 

thinking, like, who has two hammers[?]” Id. at 72.
J-S50034-16

- 3 -

Relative to the June 13, 2014 incident, Appellee was charged with the 

aforementioned offenses and appeared for a jury trial on June 25, 2015.3 

After the verdicts were rendered, the trial court deferred sentencing to 

August 6, 2015, when it sentenced Appellee to 111⁄2 to 231⁄2 months’ 

incarceration at Count 1, aggravated assault; 5 years’ consecutive probation 

at Count 2, aggravated assault; with Counts 5 and 6, simple assault and 

harassment, merging. N.T., 8/6/15, at 5-8. On August 7, 2015, the 

Commonwealth filed a motion to modify sentence, and, after hearing 

argument, the trial court entered an order on September 3, 2015, denying 

the motion. The Commonwealth filed a timely notice of appeal on 

September 16, 2015.4 

On appeal, the Commonwealth presents two sentencing issues for our 

review.

1. Did the Sentencing Court err by refusing to apply 

the Deadly Weapons Enhancement even though 

the jury made a specific finding that [Matos] 

utilized a deadly weapon in the commission of her 

crimes?

2. Did the Sentencing Court impose an unreasonably 

lenient sentence?

____________________________________________

3 Appellee was also charged with terroristic threats, stalking and 

harassment. The jury acquitted Appellee of terroristic threats and stalking, 

while the trial court found Appellee guilty of harassment.

4 The Commonwealth and the trial court have complied with Pennsylvania 

Rule of Appellate Procedure 1925.
J-S50034-16

- 4 -

Commonwealth’s Brief at 5. 

At the outset, we note that both of the Commonwealth’s issues pertain 

to the discretionary aspects of Appellee’s sentence. “There is no absolute 

right to appeal when challenging the discretionary aspect of a sentence.” 

Commonwealth v. Tobin, 89 A.3d 663, 666 (Pa. Super. 2014) (citation 

omitted). When an appellant forwards an argument pertaining to the 

discretionary aspects of the sentence, this Court considers such an argument 

to be a petition for permission to appeal. Commonwealth v. Buterbaugh, 

91 A.3d 1247, 1265 (Pa. Super. 2014) (en banc) (citation omitted), appeal 

denied, 104 A.3d 1 (Pa. 2014). “[A]n [a]ppeal is permitted only after this 

Court determines that there is a substantial question that the sentence was 

not appropriate under the sentencing code.” Commonwealth v. Cartrette, 

83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc) (internal quotation marks 

and citation omitted).

Prior to reaching the merits of a discretionary aspects of sentencing 

issue, this Court is required to conduct a four-part analysis to determine 

whether a petition for permission to appeal should be granted. 

Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014) 

(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). Specifically, we 

must determine the following.

(1) [W]hether appellant has filed a timely notice of 

appeal, Pa.R.A.P. 902, 903; (2) whether the issue 

was properly preserved at sentencing or in a motion 

to reconsider and modify sentence, Pa.R.Crim.P. 
J-S50034-16

- 5 -

[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).

Id.

Instantly, the Commonwealth filed a timely motion for modification of 

sentence and notice of appeal. Also, the Commonwealth has included a Rule 

2119(f) statement in its brief. Commonwealth’s Brief at 17. We therefore 

proceed to determine whether the Commonwealth has raised a substantial 

question for our review.

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d 

323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75 

(Pa. 2013). “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.” Id. 

(citations omitted). “Additionally, we cannot look beyond the statement of 

questions presented and the prefatory 2119(f) statement to determine 

whether a substantial question exists.” Commonwealth v. Provenzano, 

50 A.3d 148, 154 (Pa. Super. 2012).

In this case, the Commonwealth advances two sentencing issues: 

first, that the trial court abused its discretion when it “ignored the [d]eadly 
J-S50034-16

- 6 -

[w]eapon [e]nhancement,” and second, that the trial court sentenced 

Appellee to “an excessively lenient sentence.” Pa.R.A.P. 2119(f) Statement, 

Commonwealth’s Brief at 18. Relative to the Commonwealth’s first issue 

asserting the trial court’s failure to apply the deadly weapon enhancement at 

sentencing, “our case law has established that application of the deadly 

weapons enhancement presents a substantial question.” Commonwealth 

v. Raybuck, 915 A.2d 125, 127 (Pa. Super. 2006) (internal citations 

omitted). Likewise, with regard to the Commonwealth’s second issue that 

the trial court imposed an “unreasonably lenient” sentence, such claim raises 

a substantial question. Commonwealth v. Childs, 664 A.2d 994, 996 (Pa. 

Super. 1995) (stating that the Commonwealth’s claim that the sentence 

imposed was excessively lenient presented a substantial question), appeal 

denied, 674 A.2d 1066 (Pa. 1996). Based on the foregoing, we will address 

the merits of the Commonwealth’s two issues.

The Commonwealth first contends that the trial court erred when it 

“ignore[d] the jury’s specific finding”5and failed to apply the deadly weapon 

enhancement to Appellee’s sentence. Commonwealth’s Brief at 25. 

____________________________________________

5 The Commonwealth states that “the jury decided that [Appellee] had used 

a weapon capable of causing death or serious bodily injury when the jury 

found her guilty of [aggravated assault pursuant to 18 Pa.C.S.A. 

§ 2702(a)(4)].” Commonwealth’s Brief at 23. The Commonwealth 

concedes, however, that “the jury did not indicate whether the SUV or the 

hammer was the deadly weapon.” Id. at n.4. Significantly, as noted below, 

the sentencing code precludes the application of the deadly weapon 

enhancement to a conviction under § 2702(a)(4).
J-S50034-16

- 7 -

Preliminary, we note that the United States Supreme Court decision of 

Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013), holding that 

“facts that increase mandatory minimum sentences must be submitted to 

the jury ... and found beyond a reasonable doubt,” does not apply to this 

case. In Commonwealth v. Ali, we observed that Alleyne “has no 

application to [] sentencing enhancements [because] [t]he parameters of 

Alleyne are limited to the imposition of mandatory minimum sentences.” 

Commonwealth v. Ali, 112 A.3d 1210, 1225-1226 (Pa. Super. 2015), 

appeal granted in part, 127 A.3d 1286 (Pa. 2015). We further recognize 

that the sentencing code prohibits application of the deadly weapon 

enhancement to an aggravated assault conviction under 18 Pa.C.S. § 

2702(a)(4) (“[t]here shall be no Deadly Weapon Enhancement for ... (vi) 

Aggravated Assault (18 Pa.C.S. § 2702(a)(4)”), such that the trial court 

could not have applied the deadly weapon enhancement to Appellee’s 

conviction at Count 2. 204 Pa. Code § 303.10.

In support of its argument that the enhancement should apply, the 

Commonwealth cites Buterbaugh, supra, as “analogous to the case at 

hand.” Commonwealth’s Brief at 21. We recognize, as did our en banc

Court in Buterbaugh, the relevant statutory provision as follows.

(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 
J-S50034-16

- 8 -

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

(iii) Any device, implement, or 

instrumentality capable of producing 

death or serious bodily injury.

204 Pa. Code § 303.10 (emphasis added).

In Buterbaugh, we affirmed the trial court’s application of the deadly 

weapon enhancement to the appellant/defendant’s sentence, where the trial 
J-S50034-16

- 9 -

court “determined that Appellant’s truck was a deadly weapon for purposes 

of the [deadly weapon enhancement].” Id. at 1267. The foregoing 

statutory language is critical to our review. As quoted above, the deadly 

weapon enhancement statute states clearly that “the court determines” 

whether a deadly weapon was possessed or used. 204 Pa. Code 

§ 303.10(a). In the present case, the trial court expressly determined that 

the deadly weapon enhancement did not apply. The trial court explained as 

follows.

The deadly weapon enhancement provision of 

the sentencing guidelines provides that when the 

[trial] court determines that the defendant 

possessed a deadly weapon during the commission 

of a criminal offense, the court must add at least 12 

months and up to 24 months to the guideline 

sentence that would otherwise have been applicable. 

See 204 Pa. Code § 303.4. ... Devices, implements, 

and instrumentalities not designed to inflict harm can 

become deadly weapons by the manner in which 

they are used. Commonwealth v. Rhoades, 8 

A.3d 912, 917 (Pa. Super. 2010). For a deadly 

weapon finding to apply, such an item must be 

“capable of producing death or serious bodily injury.” 

204 Pa. Code § 303.10(a)(2)(iii).

...

[T]he [trial c]ourt properly found that [Appellee’s] 

use of a hammer to hit the victim once in the arm 

did not cause the hammer to be used in a way 

capable of producing serious bodily injury and 

[Appellee’s] use of her motor vehicle did not rise to 

the level of using a deadly weapon.

Trial Court Opinion, 9/3/15, at 2-3 (emphasis added).
J-S50034-16

- 10 -

Given the trial court’s reasoning and statutory role as the determiner 

pursuant to 204 Pa. Code § 303, we are not persuaded by the 

Commonwealth’s argument that the trial court erred by failing to apply the 

deadly weapon enhancement in sentencing Appellee.

In its second issue, the Commonwealth argues that the trial court 

erred in sentencing Appellee “to an unreasonably lenient sentence for her 

crimes by sentencing her to the low end of the standard-range sentence on 

Count One and to a mitigated sentence on Count Two.” Commonwealth’s 

Brief at 31. In reviewing this claim, we recognize that we may vacate a 

sentence only when “the sentencing court sentenced outside the guidelines 

and the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3). There are 

four statutory factors we must consider in reviewing the certified record. 

They are: (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, and (4) the guidelines 

promulgated by the commission. Id. § 9871(d)(1)-(4). Further, our 

Supreme Court has explained as follows.

[T]he proper standard of review when considering 

whether to affirm the sentencing court’s 

determination is an abuse of discretion. [A]n abuse 

of discretion is more than a mere error of judgment; 

thus, a sentencing court will not have abused its 

discretion unless “the record discloses that the 

judgment exercised was manifestly unreasonable, or 

the result of partiality, prejudice, bias or ill-will.” In 
J-S50034-16

- 11 -

more expansive terms, ... “An abuse of discretion 

may not be found merely because an appellate court 

might have reached a different conclusion, but 

requires a result of manifest unreasonableness, or 

partiality, prejudice, bias, or ill-will, or such lack of 

support so as to be clearly erroneous.” 

Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007) (citations and 

footnote omitted). “[W]hat makes a sentence ‘unreasonable’ is not defined 

in the statute. Generally speaking, ‘unreasonable’ commonly connotes a 

decision that is ‘irrational’ or ‘not guided by sound judgment.’” Id. at 963. 

Further, the sentencing court is permitted to deviate from the sentencing 

guidelines so long as the court places on the record its reasons for the 

deviation. 42 Pa.C.S.A. § 9721(b). “Although the sentencing court is 

required to consider and consult the Sentencing Guidelines when imposing a 

sentence, it retains the discretion to sentence below the mitigated range as 

long as it clearly explains the reasons for doing so. If the sentence imposed 

is outside of the recommended guidelines, the trial court must provide a 

contemporaneous written statement of the reason or reasons for the 

deviation or it must state on the record in the presence of the defendant the 

reasons for the sentence.” Commonwealth v. Childs, 664 A.2d 994, 996 

(Pa. Super. 1995).

Instantly, upon review, we do not find that the trial court’s sentence 

was an abuse of discretion or unreasonable. The trial court rendered its 

sentence, on the record, as follows.

The [trial c]ourt will base the following sentence on 

the minimum amount of confinement imposed 

consistent with the protection of the public, the 
J-S50034-16

- 12 -

gravity of the offense, [and] the rehabilitative needs 

of [Appellee]. The [trial c]ourt has relied on the 

presentence report, incorporates [it] into the record 

[in the] reasons for the sentence, as well as 

additional submitted material [including letters 

supporting Appellee]. The [trial c]ourt had a chance 

to review statements by both counsel. And the [trial 

c]ourt did review the sentencing memorandum 

provided by the Commonwealth.

The [trial c]ourt has considered the 

circumstances of the offense[s], it did sit through the 

trial, and also [Appellee’s] circumstances, character, 

education, the fact that she is a mother of a small, 

younger child, and has looked to the sentencing code 

and guidelines. The [trial c]ourt having sat through 

the trial and having heard everything, and, having 

learned about [Appellee] finds that ... she obviously, 

under the sentencing guidelines, needs the 

incarceration, but the [trial c]ourt will go into the 

mitigated range and sentence [her at Count One, 

aggravated assault, to 111⁄2 to 231⁄2 months’ 

incarceration]. 

...

[At Count Two, aggravated assault, to a consecutive 

five years’ probation. Count Five, simple assault, 

and Count Six, harassment, merge.]

N.T., 8/6/15, at 4-6, 8.

The trial court further commented as follows.

[Appellee], I sat through your trial. Your 

charges are serious. I have made a decision that, 

you know, with what you have going on in life, that 

you have the possibility that state prison wasn’t 

going to be the right place for you, that you should 

have a chance to be with your family. You have 

issues that you need to work on, and I’m hoping that 

you have a chance to do that during this time period 

and that you can get out and get on with your life 

and get back to your son and move on from there. 
J-S50034-16

- 13 -

And that was one of the main reasons for this 

sentence.

Id. at 9.

In addition to being familiar with the facts of the case, the trial court 

was well-aware of the Commonwealth’s position regarding sentencing. After 

hearing from the Commonwealth on August 6, 2015 and imposing Appellee’s 

sentence, and then reviewing the Commonwealth’s subsequent motion to 

modify sentence, the trial court convened oral argument on August 31, 

2015, and at the conclusion of argument stated, “All right. I’ll take a look at 

it and I will have a decision. Thank you.” N.T., 8/31/15, at 13. The trial 

court thereafter denied the Commonwealth’s motion to modify sentence. 

Given the record before us as detailed above, we find no abuse of the 

trial court’s discretion in rendering Appellee’s sentence. Accordingly, we 

affirm the August 6, 2015 judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/6/2016