J-S35007-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ROY MICHAEL HOGAN, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 5 MDA 2023

Appeal from the Judgment of Sentence Entered September 21, 2022

In the Court of Common Pleas of Schuylkill County 

Criminal Division at No(s): CP-54-CR-0000616-2018, 

CP-54-CR-0000617-2018

BEFORE: PANELLA, P.J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.: FILED: NOVEMBER 30, 2023

Roy Hogan appeals the judgment of sentence imposed by the Schuylkill 

County Court of Common Pleas after a jury convicted him of two counts of 

attempted murder, burglary, and related offenses at Criminal Docket CP-54-

CR-0616-2018 and criminal trespass at Criminal Docket CP-54-CR-0617-

2018. Hogan argues on appeal that the sentencing court erred by applying the 

deadly weapon-used sentencing enhancement, as opposed to the deadly 

weapon-possessed sentencing enhancement, to his burglary conviction at 

docket number 0616. Both the sentencing court and the Commonwealth agree 

with Hogan, as do we. We therefore vacate the judgment of sentence for the 

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* Retired Senior Judge assigned to the Superior Court.
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burglary conviction and remand for resentencing consistent with this 

memorandum.

The trial court provided a detailed recitation of the factual background 

of this matter, but for purposes of this appeal, we recount only a general 

summary of the relevant facts. On March 18, 2018, Hogan entered the 

residence of his former girlfriend, Brook Ditzler, though Ditzler was not home. 

When Ditzler arrived home later with her boyfriend, Michael Seltzer, and her 

friends Andrew Matlock and Mallory Grieger, Ditzler found Hogan upstairs on 

her bed with a knife. Ditzler called 911, but Hogan left the residence before 

the police arrived.

Ditzler, Seltzer, Matlock and Grieger went to sleep in Ditzler’s living 

room. They awoke to find Hogan in the living room. An altercation ensued 

between Matlock and Hogan, and Matlock was cut from his ear to his chin with 

a knife and stabbed in the shoulder. Seltzer was also stabbed eight times. 

After police once again arrived at the residence, Hogan ran out. He was 

ultimately arrested and charged with a slew of offenses related to the incident, 

including two counts of attempted murder, burglary, and possession of an 

instrument of crime (“PIC”) at docket number 0616 and criminal trespass at 

docket number 0617.

The matters proceeded to a jury trial. Ditzler, Matlock, Seltzer and 

Geiger all testified for the Commonwealth. Hogan testified in his own defense. 

He stated that on March 18, 2018, he first went to Ditzler’s house and, without 
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her permission, entered through her basement door, thinking she would be 

home alone. See N.T., 2/11/2019, at 308-309. According to Hogan, he went 

upstairs and fell asleep on Ditzler’s bed with a knife in his pocket. See id. at 

309-310. He stated he knew Ditzler would call the police, and that he planned 

to pull the knife out in the presence of the police and have the police shoot 

him. See id. at 321.

Hogan maintained that when Ditzler came home and woke him up, he 

left the house. He testified he then entered Ditzler’s residence a second time 

through an unlocked back door. See id. at 323. He recounted he still had the 

knife in his pocket, but he essentially maintained that he used that knife in 

self-defense. See id. at 324-328. 

The jury nonetheless found Hogan guilty of two counts of attempted 

murder, burglary, and PIC, among other offenses, at docket number 0616. It 

also found him guilty of criminal trespass at docket number 0617. 

The trial court sentenced Hogan to an aggregate term of 35 to 70 years’ 

imprisonment. Hogan ultimately filed a PCRA petition, arguing that his 

sentence was illegal. The PCRA court agreed and ordered a new sentencing 

hearing. 

The matter was reassigned to a different sentencing court due to the 

trial judge’s retirement, and a new sentencing hearing was held on September 

16, 2022. At the hearing, defense counsel essentially argued that the deadly 

weapon-used enhancement provision was not applicable to either the burglary 
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conviction at docket number 0616 or the criminal trespass conviction at docket 

number 0617. The sentencing court agreed that only the deadly weaponpossessed enhancement provision applied to the trespass conviction, and 

sentenced Hogan to the standard range of three to six months for that 

conviction. However, the court applied the deadly weapon-used enhancement 

provision to Hogan’s burglary conviction, which prescribed a standard 

sentencing guideline range of 40 to 54 months’ imprisonment. The court 

sentenced Hogan to 54 to 108 months’ imprisonment for the burglary 

conviction. 

The court also sentenced Hogan to 96 to 192 months’ imprisonment on 

each of the two attempted murder convictions, to be served consecutively. 

The court ordered the sentence on the burglary conviction to be served 

concurrently to Hogan’s sentence for the second attempted murder conviction. 

In total, the court sentenced Hogan to an aggregate term of imprisonment of 

253 to 506 months. 

Hogan filed a post-sentence motion, which the court denied in an order 

entered on December 9, 2022. Hogan then filed a single notice of appeal listing 

both criminal docket numbers in the caption. The court ordered Hogan to file 

a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. In the 

statement, Hogan raised five alleged errors, including a claim that the 

sentencing court erred in applying the deadly weapon enhancement to both 
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the burglary conviction at docket number 0616 and the criminal trespass 

conviction at docket number 0617. 

In its responsive opinion, the court disagreed with Hogan that it had 

improperly applied the deadly weapon-possessed enhancement to the criminal 

trespass conviction at docket number 0617. However, it agreed with Hogan 

that it had erred by applying the deadly weapon-used enhancement to the 

burglary conviction at docket number 0616. The sentencing court found that, 

pursuant to this Court’s decision in Commonwealth v. Tavarez, 174 A.3d 7 

(Pa. Super. 2017), the court should only have applied the deadly weaponpossessed enhancement to the burglary conviction. 

On appeal, Hogan abandons his claim regarding the deadly weapon 

enhancement as applied to his criminal trespass conviction at criminal docket 

0617. He raises only one issue, namely, that the sentencing court erred by 

applying the deadly weapon-used enhancement to the burglary conviction at 

docket number 0616. 

Before we are able to reach the merits of Hogan’s sole issue on appeal, 

we acknowledge, as an initial matter, that Hogan’s filing of a single notice of 

appeal from an order involving two separate docket numbers implicates 

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), reversed in part by 

Commonwealth v. Young, 265 A.3d 462 (Pa. 2021). In Walker, our 

Supreme Court held that appellants are required to file separate notices of 

appeal when a single order resolves issues arising on more than one lower 
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court docket. See Walker, 185 A.3d at 976. Walker announced a prospective 

bright-line rule that a failure to file separate notices of appeal in these 

circumstances would result in the quashal of the appeal. See id. at 977.

However, this Court carved out several exceptions to the rule announced 

in Walker, one of which applies to this case. In Commonwealth v. Larkin, 

this Court held that we would overlook the requirements of Walker and 

decline to quash a single notice of appeal from an order resolving multiple 

lower court docket matters where a breakdown occurs in the court system, 

and a defendant is misinformed or misled regarding his appellate rights. See 

Larkin, 235 A.3d 350, 354 (Pa. Super. 2020) (en banc). 

Here, the December 9, 2022 order denying Hogan’s post-sentence 

motion failed to provide notice to Hogan of his appellate rights in 

contravention of Pa.R.Crim.P. 720 (B)(4). As we conclude this constitutes a 

breakdown in the court system, we can proceed to the substance of Hogan’s 

appeal pursuant to Larkin.

Hogan maintains on appeal that the sentencing court properly applied 

Tavarez and determined that it had erred by applying the deadly weaponused enhancement, rather than the deadly weapon-possessed enhancement, 

to Hogan’s sentence for the burglary conviction. The Commonwealth concedes 

Tavarez controls and mandates the conclusion advocated by Hogan. We 

agree. 
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Under the deadly weapon enhancement provisions of the Sentencing 

Guidelines, an enhancement “shall apply to each conviction offense for which 

a deadly weapon is possessed or used.” 204 Pa. Code § 303.10(a)(4). The 

sentencing court may not disregard an applicable enhancement when 

determining the appropriate sentencing ranges. See Tavarez, 174 A.3d at 

10. Moreover, a sentencing court must always determine the correct starting 

point for the sentencing range under the guidelines, and if it errs in doing so, 

this Court will vacate the judgment of sentence and remand for resentencing. 

See id. at 11. 

The deadly weapon-possessed enhancement provides that when a court 

determines the offender possessed a deadly weapon during the commission 

of the offense, the court shall consider the Deadly Weapon 

Enhancement/Possessed Matrix in Section 303.17(a). See 204 Pa. Code §

303.10(a)(1). Under Section 303.10(a)(1), an offender possesses a deadly 

weapon if he has any of the listed weapons on his person or within his 

immediate control. See id.

Meanwhile, the deadly weapon-used enhancement provides that when 

a court determines the offender used a deadly weapon during the commission 

of the offense, the court shall consider the Deadly Weapon Enhancement/Used 

Matrix in Section 303.17(b). See 204 Pa. Code § 303.10(a)(2). Under Section 

303.10(a)(2), an offender uses a deadly weapon if the offender employs one 
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of the listed weapons in a way that threatened or injured another individual. 

See id.

In Tavarez, the defendant, like Hogan here, complained that the 

sentencing court erroneously applied the deadly weapon-used enhancement 

to his burglary conviction because he had not used a deadly weapon to enter 

the victims’ residence but rather, had only used the weapon once he 

encountered the victims inside their residence. 

This Court agreed with Tavarez. In doing so, the Court noted that to 

establish the use of a deadly weapon under the language of Section 

303.10(a)(2), the record must show that the defendant used the weapon to 

threaten or injure the victim while committing the particular offense. See 

Tavarez, 174 A.3d at 11. The particular offense at issue in Tavarez was 

burglary, which Tavarez explained is “complete at the moment of entry into 

an occupied structure with the intent to commit a crime therein.” Id. at 12. 

As such, “whatever felony is committed in the building broken into is separate 

and distinct from the offense of breaking and entering into that [structure].” 

Id. (citation omitted). Applying those principals to the facts at hand, the 

Tavarez Court stated:

We conclude that the record did not establish Tavarez’s “use” of a 

[deadly weapon] during the commission of the burglary under 204 

Pa. Code § 303.10(a)(2)... [T]he burglary was complete at the 

moment Tavarez unlawfully entered the residence with the intent 

to commit the crime of robbery therein. The facts placed on the 

record ... established only that Tavarez possessed a [deadly 

weapon] when he entered the residence; there was no showing 

that he used the [deadly weapon] to gain entry into the residence 
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or to threaten the victims while entering the residence. Tavarez 

did not encounter the victims until he and his co-conspirators went 

upstairs to rob them. Thus, ... the record does not support a 

finding that he employed the [deadly weapon] in a way that 

threatened or injured the victims during the commission of the 

burglary.

Id. at 13. 

The Tavarez court therefore determined that the sentencing court erred 

by applying the deadly weapon-used enhancement rather than the deadlyweapon-possessed enhancement and vacated Tavarez’s judgment of 

sentence.

Applying Tavarez to the facts here, the sentencing court stated:

We have a similar factual scenario [to that in Tavarez] where 

Hogan testified that he intended to use the knife to commit suicide 

by cop, but did not actually employ the knife in a way that 

threatened or injured any of the victims during the commission of 

the burglary of Ditzler’s home. This court is of the opinion that we 

should have applied the “possession” enhancement rather than 

the “use” enhancement for the burglary based on the testimony 

and record.

Trial Court Opinion, 2/27/2023, at 19. 

The Commonwealth agrees, as do we, that pursuant to Tavarez, the 

sentencing court erred by applying the deadly weapon-used enhancement 

provision and the matter must once again be remanded for a new sentencing 

hearing. See Commonwealth’s Brief at 3 (Hogan “did not employ the knife to 

make entry into the home ... [as he] encountered no resistance in his efforts 

to enter the home. [The] facts are nearly identical [to] the facts in Tavarez 

and are not distinguishable” and the sentencing court therefore erred in 
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applying the deadly weapon-used enhancement as opposed to the deadly 

weapon-possessed enhancement under Tavarez). 

Finally, we conclude that because the sentence for the burglary 

conviction is entirely subsumed by the consecutive sentences for attempted 

murder, vacation of the burglary sentence does not impact the trial court’s 

sentencing scheme. We therefore vacate only the burglary sentence and 

remand for resentencing consistent with this memorandum. 

Judgment of sentence vacated. Matter remanded for resentencing 

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 11/30/2023