Com. v. Smith, S.
Com. v. Smith, S. No. 3702 EDA 2015
| Pa. Super. Ct. | May 17, 2017Background
- On June 23, 2013, Jasmine Rone was robbed: Lamar held her at gunpoint while Stanley Smith searched her pockets, took $90 and car keys, and fled in her car. Both men were within two feet of Rone.
- Police arrested Smith and Lamar shortly after; Rone identified them. While the case was pending, Smith contacted Rone and asked her not to testify and sent apologetic communications.
- Smith was tried in a June 3, 2015 bench trial and convicted of robbery, conspiracy, multiple firearms offenses, theft offenses, terroristic threats, assault, recklessly endangering another person, and unauthorized use of an automobile.
- At sentencing (Nov. 20, 2015) the trial court applied the Deadly Weapon Enhancement (DWE) for possession (possession = on person or within immediate control) and imposed aggregate sentence of 7–15 years imprisonment plus five years probation; minimum 84 months fell within the aggravated guideline range with the DWE.
- Smith filed a post-sentence motion and timely appeal raising (1) that the DWE was improperly applied because Lamar, not Smith, held the gun, and (2) that the sentence was manifestly excessive and the court ignored mitigating factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the DWE (possession) applies where a co-conspirator held the gun | Commonwealth: DWE applies because a co-conspirator’s gun can be within defendant’s immediate control when in close proximity | Smith: DWE improper because Lamar, not Smith, possessed the firearm and it was never in Smith’s control | Court: DWE properly applied—Smith was in close physical proximity (within ~2 feet) so weapon deemed within his immediate control |
| Whether the sentence was excessive and court ignored mitigating factors | Commonwealth: sentence within aggravated guideline range supported by facts and PSR; court considered mitigation | Smith: sentence manifestly excessive; court focused on aggravation and failed to place contemporaneous reasons weighing mitigation on record | Court: no abuse of discretion; court reviewed PSR, heard mitigation, gave reasons; 84-month minimum within aggravated guideline range was not clearly unreasonable |
Key Cases Cited
- Commonwealth v. Bowen, 612 A.2d 512 (Pa. Super. 1992) (co-conspirator’s gun within immediate control when defendant was inches away)
- Commonwealth v. Hatcher, 746 A.2d 1142 (Pa. Super. 2000) (close physical proximity to armed co-conspirator supports DWE possession)
- Commonwealth v. Pennington, 751 A.2d 212 (Pa. Super. 2000) (DWE proper where co-conspirator held gun while others participated in robbery)
- Commonwealth v. Greene, 702 A.2d 547 (Pa. Super. 1997) (DWE not applied where defendant waited in getaway car blocks away)
- Commonwealth v. Solomon, 151 A.3d 672 (Pa. Super. 2016) (discretionary aspects of sentence review standard)
- Commonwealth v. Boyer, 856 A.2d 149 (Pa. Super. 2004) (sentencing court presumed to consider PSR and must state reasons on record)