J-S77026-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

BRANDON DONALD TAYLOR

Appellee No. 626 MDA 2016

Appeal from the Judgment of Sentence April 14, 2016

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0003587-2015

BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED JANUARY 06, 2017

Appellant, the Commonwealth of Pennsylvania (the Commonwealth), 

appeals from the judgment of sentence entered against Appellee, Brandon 

Donald Taylor, after he pled guilty to homicide by vehicle, aggravated 

assault by vehicle, driving a vehicle at a safe speed and recklessly 

endangering another person.1 On appeal, the Commonwealth challenges the 

trial court’s refusal to apply the deadly weapon enhancement (DWE) to 

Appellee’s sentence. Upon review, we affirm Appellee’s judgment of 

sentence.

We briefly summarize the facts and procedural history of this case as 

follows. On September 22, 2014, Appellee accelerated on Delta Road in 

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1 75 Pa.C.S.A. §§ 3732, 3732.1, and 3361; 18 Pa.C.S.A. § 2705.
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York County, Pennsylvania in order to pass another vehicle, despite driving 

in a no-pass zone. An oncoming truck, in the opposing lane, forced Appellee 

back into his lane of travel. Appellee struck the vehicle he was trying to 

pass, causing it to spin off the roadway, travel up an embankment and roll 

onto its roof, before striking a utility pole. The driver of the other vehicle 

struck by Appellee was pronounced dead at the scene, the front-seat 

passenger sustained severe spinal injuries, and a two-year old child, 

strapped in a child safety seat in the rear, was unharmed. An accident 

reconstruction expert estimated that Appellee was travelling at a speed of 

between 83 and 96 mph at the time of the collision; the posted speed limit 

was 45 mph. The Commonwealth charged Appellee with aggravated assault 

by vehicle, homicide by vehicle, two counts of recklessly endangering 

another person, and ten traffic violations.

On February 29, 2016, Appellee entered an open guilty plea to 

homicide by vehicle, aggravated assault by vehicle, driving a vehicle at a 

safe speed, and recklessly endangering another person. The Commonwealth 

agreed to withdraw the remaining charges. The trial court deferred 

sentencing, ordered a pre-sentence investigation report, and allowed both 

parties to submit legal authority regarding sentencing prior to April 1, 2016. 

Both parties complied and submitted memoranda of law regarding the 
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application of the DWE under 204 Pa.Code. § 303.10.2 On April 14, 2016, 

the trial court held a sentencing hearing wherein it concluded that the DWE 

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2 The DWE provides, in part:

(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.A. § 9712) 

whether loaded or unloaded, or

(ii) Any dangerous weapon (as defined in 18 

Pa.C.S.A. § 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 threated or injured another 

individual:

(i) Any firearm, (as defined by 42 Pa.C.S.A. § 9712) 

whether loaded or unloaded,

(ii) Any dangerous weapon (as defined in 18 

Pa.C.S.A. § 913), or

(Footnote Continued Next Page)
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enhancement was inapplicable to Appellee’s sentence. The trial court 

sentenced Appellee to seven years of probation for aggravated assault by 

vehicle, with concurrent terms of incarceration of one year minus a day to 

two years minus two days for homicide by vehicle and six to 12 months for 

recklessly endangering another person, and a fine for his summary motor 

vehicle code violation. This timely appeal resulted.3 

On appeal, the Commonwealth presents the following issue for our 

review:

I. Whether the trial court erred in failing to apply the 

deadly weapon enhancement at sentencing?

Commonwealth’s Brief at 4 (complete capitalization omitted). 

In sum, the Commonwealth argues:

The trial court misapplied the requirements of the DWE 

where it erroneously concluded that, because [Appellee] did 

not intend to use his automobile as a deadly weapon, the 

DWE did not apply. This is erroneous, as case and statutory 

[law] specifically hold that the intent to use a device as a 

(Footnote Continued) _______________________

(iii) Any device, implement, or instrumentality 

capable of producing death or serious bodily injury.

204 Pa. Code § 303.10(a)(1)–(2).

3

 On April 18, 2016, the Commonwealth filed a notice of appeal. On April 

22, 2016, the trial court ordered the Commonwealth to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). 

The Commonwealth complied timely on May 11, 2016. On May 12, 2016, 

the trial court filed an opinion pursuant to Pa.R.A.P. 1925(a), directing this 

Court to “pages 13-14” from the sentencing hearing for the reasons for its 

decision. See Trial Court Opinion, 5/12/2016, at 1.
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deadly weapon is not a required predicate finding for 

application of the deadly weapon used enhancement. 

Accordingly, because the trial court misapplied the law, the 

trial court abused its discretion in failing to apply the deadly 

weapon used enhancement[.]

Id. at 12. “We analyze the sentencing court's decision under an abuse of 

discretion standard.” Commonwealth v. Smith, 2016 WL 6962129, at *2 

(Pa. Super. filed November 29, 2016).

In support of its argument, the Commonwealth relies primarily upon 

this Court’s 2014 en banc decision in Commonwealth v. Buterbaugh, 91 

A.3d 1247 (Pa. Super. 2014) (en banc). Commonwealth’s Brief at 3, 8, 15-

18. In Buterbaugh, after an alcohol-fueled altercation in a bar, Buterbaugh 

got behind the wheel of his truck while intoxicated and intentionally drove 

into a group of pedestrians and killed a man. The trial court in Buterbaugh

applied the DWE to Buterbaugh’s sentence since it found that he used his 

automobile as a weapon. An en banc panel of this Court affirmed that 

decision. 

Citing Buterbaugh, the Commonwealth, in Smith, argued that the 

DWE applied to Smith who was driving drunk and distracted by a passenger 

when he struck and permanently injured a pedestrian. The Smith panel 

clarified:

Although our decision [to affirm the application of the DWE] 

in Buterbaugh was not expressly premised upon 

[Buterbaugh’s] intent concerning the use of his vehicle, 

[Buterbaugh’s] intent in his particular use of the truck was 

clearly considered as part of those circumstances. In 

rendering our decision, we discussed the “nefarious results” 

necessary to change an innocent object into a deadly 
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weapon. [Buterbaugh,] at 1269. We concluded that failure 

to consider the truck a deadly weapon under the 

circumstances of that case “would result in the untenable 

position that an automobile is different than a litany of other 

everyday objects, which when used with a wicked 

purpose, can cause serious bodily injury or death.” Id. 

(emphasis added). A person's use of an object is informed 

by the ends that person hopes to attain, i.e., his intent with 

regard to the use of that object. Thus, in discussing a 

person's “use” of an object, his intent for that particular use 

is necessarily included in “surrounding circumstances.”

Contrary to the Commonwealth's assertions, this Court did 

implicitly find that [Buterbaugh] intended to use his truck as 

a deadly weapon. Buterbaugh intentionally revved his 

engine and accelerated at maximum speed toward the 

victim. This action changed the character of his truck from a 

benign instrument to a deadly weapon since doing so 

evinced Buterbaugh's intention to use the truck as a 

weapon.

* * *

[Whereas,] at the time of the accident, [Smith] was using 

his car as a mode of transportation. [Smith] was drunk and 

distracted at the time of the incident, thus his performance 

of this task was reckless. Nevertheless, he had no intention 

to use the automobile as a deadly weapon. In light of the 

surrounding circumstances, there is no indication that 

[Smith] actually used the car for any reason other than 

conveying himself and his passengers to York, even though 

the victim suffered permanent injuries resulting therefrom.

Smith, 2016 WL 6962129, at *5.

In this case, the trial court determined:

[The DWE] is not appropriate for this particular case.

The [DWE] is to be applied when a device, implement or 

instrumentality designed as a weapon or capable of 

producing death of serious bodily injury where the [c]ourt 

determines that the offender intended to use the weapon to 

threaten or injure another individual. In this particular 
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case, it’s pretty clear that the automobile is not a firearm. 

It is not a dangerous weapon. Certainly, it could be a 

device, instrument or instrumentality used to threaten or 

injure another individual intentionally, but [] the facts of 

this case don’t support that [Appellee] intended to use the 

automobile as a weapon in order to do that, and, 

accordingly, since criminal statutes are to be strictly 

construed, [the trial court] conclude[s] again based on the 

facts of this case, that the [DWE] is not appropriate on any 

of the offenses to which [Appellee] pled.

N.T., 4/14/2016, at 13.

We discern no abuse of discretion. The use of an object is informed by 

the ends that person hopes to attain. Smith, 2016 WL 6962129, at *5. 

Here, similar to Smith, Appellee drove recklessly in attempting to pass the 

victims. Nevertheless, at all material times, he operated his automobile as a 

mode of transportation. He had no intention to use the automobile as a 

deadly weapon, even though one victim died and another suffered 

permanent injuries resulting from the accident. Thus, we conclude the DWE 

was inapplicable and there was no abuse of discretion in not applying it.4 

 

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4

 Finally, we note that Appellant’s claim does not implicate the legality of 

sentence under the United States Supreme Court’s decisions in Alleyne v. 

United States, –––U.S. ––––, 133 S.Ct. 2151, (2013) and Apprendi v. 

New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). See Buterbaugh, 91 

A.3d at 1270, n.10 (“Alleyne and Apprendi dealt with factors that either 

increased the mandatory minimum sentence or increased the prescribed 

sentencing range beyond the statutory maximum, respectively. [...] If the 

[DWE] 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.”).
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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/6/2017