Com. v. Tavarez, C.
174 A.3d 7
| Pa. Super. Ct. | 2017Background
- Defendant Cheyene Tavarez pled guilty to aggravated assault, burglary (18 Pa.C.S. §3502(a)(1)(ii)), robbery, impersonating a public servant, and conspiracy for a November 17, 2015 home invasion where he and co-conspirators intended to rob occupants.
- At plea, Tavarez admitted entering the occupied residence with firearms, shouting "Police. Freeze," and later threatening victims upstairs; nothing was taken; Tavarez and a co-defendant were shot by a homeowner.
- At sentencing the court applied deadly-weapon enhancements to multiple convictions and imposed consecutive terms producing an aggregate sentence of 10½ to 30 years (sentences within guideline ranges for each count).
- Tavarez appealed, challenging (inter alia) the application of the deadly-weapon "used" enhancement to the burglary conviction (arguing "possessed" was the correct enhancement).
- The trial court applied the "used" enhancement to burglary reasoning that the burglary continued through the robbery and the weapon was used during that continuous criminal episode.
- The Superior Court concluded the burglary was completed at the moment of unlawful entry with intent to commit a crime; the record showed only possession at entry and use occurred later during robbery, so the "used" enhancement for burglary was improper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred applying deadly-weapon "used" enhancement to burglary | Commonwealth: robbery was the object crime of the burglary and the weapon was used during the continuous burglary-robbery episode, so "used" applies | Tavarez: weapon was only possessed at entry; use (threatening victims) occurred later during robbery, so only "possessed" applies to burglary | Court vacated sentence and remanded for resentencing because record does not show use of the weapon during the commission of burglary; only possession was shown |
Key Cases Cited
- Mastromarino v. Commonwealth, 2 A.3d 581 (Pa. Super. 2010) (discusses prerequisites for appellate review of discretionary sentencing claims)
- Austin v. Commonwealth, 66 A.3d 798 (Pa. Super. 2013) (outlines procedural requirements for challenging discretionary aspects of sentence)
- Malovich v. Commonwealth, 903 A.2d 1247 (Pa. Super. 2006) (same procedural framework for sentencing challenges)
- Phillips v. Commonwealth, 946 A.2d 103 (Pa. Super. 2008) (application of deadly-weapon enhancement can raise a substantial question)
- Kneller v. Commonwealth, 999 A.2d 608 (Pa. Super. 2010) (en banc) (deadly-weapon enhancement challenges implicate discretionary sentencing review)
- Cornish v. Commonwealth, 589 A.2d 718 (Pa. Super. 1991) (sentencing court must apply applicable guideline enhancements)
- Diamond v. Commonwealth, 945 A.2d 252 (Pa. Super. 2008) (court must correctly apply sentencing guidelines before departing)
- Scullin v. Commonwealth, 607 A.2d 750 (Pa. Super. 1992) (erroneous guideline starting point warrants vacatur and remand)
- Shull v. Commonwealth, 148 A.3d 820 (Pa. Super. 2016) (possession can be treated as use where defendant employs firearm to threaten victim during offense)
- Chapman v. Commonwealth, 528 A.2d 990 (Pa. Super. 1987) (holding "used" enhancement proper where weapon was plainly employed to threaten during robbery)
- Commonwealth ex rel. Moszczynski v. Ashe, 21 A.2d 920 (Pa. 1941) (burglary is complete upon unlawful entry with intent; subsequent felony inside is distinct)
- Wiltrout v. Commonwealth, 457 A.2d 520 (Pa. Super. 1983) (burglary occurs when a person enters without authority with intent to commit a crime therein)