Com. v. Shakir, Y.

J-S76008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

YASIN EL AMAN SHAKIR,

Appellant No. 198 WDA 2018

Appeal from the Judgment of Sentence Entered April 26, 2016 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0001882-2011

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J. MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 22, 2019

Appellant, Yasin El Aman Shakir, appeals nunc pro tunc from the judgment of sentence of an aggregate term of 13½ to 27 years’ incarceration, imposed after he was convicted of, inter alia, attempted murder and aggravated assault. We affirm.

Briefly, in this appeal, Appellant contends that the trial court abused its discretion by resentencing him to the same term of incarceration that it had originally imposed for his attempted murder conviction, despite that the court had considered an incorrect Sentencing Guideline range in fashioning his initial term of incarceration for that offense. Appellant also argues that the court’s application of the deadly weapon sentencing enhancement was illegal under Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New Jersey, 530 U.S. 466 (2000). In assessing these claims, we have reviewed

J-S76008-18

the certified record, the briefs of the parties, and the applicable law. Additionally, we have examined the thorough opinion of the Honorable John P. Dohanich, a Senior Judge on the Court of Common Pleas of Beaver County. We conclude that Judge Dohanich’s well-reasoned opinion accurately disposes of the issues presented by Appellant. Accordingly, we adopt his opinion as our own and affirm Appellant’s judgment of sentence for the reasons set forth therein.

Judgment of sentence affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/22/2019

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. . IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY, PENNSYLVANIA CRIMINAL DIVISION

• i I COMMONWEALTH . � . OF PENNSYLVANIA No. 1882 of 2011 v.

YASIN EL AMAN SHAKIR

MEMORANDUM OPINION

rDOHANICH, S.J. May 10, 2018

The petitioner/ Yasin· El Aman Shakir, has appealed the judgment of J . 1 · sentence entered on December 20, 2017, in which the court: ( 1) granted his post-

lentence motion of July 17," 2017, in part, correcting the sentencing guidelines

ltilized for the court'� original sentence order of October 15, 2012 for the offense . lof attempted . murder; (2) refused his request to not apply the deadly weapon used

enhancement on the charge of attempted murder; and, (3) denied his request for· a

Lodification of the sentence on the charge of attempted murder in the sentence

lrders of October ·, s, 2012 and April 26, 2016, using sentencing guidelines

Lthout consideration of the deadly weapon used enhancement. Shakir Lbsequently ,· med a post-sentence motion on December 29, 2017, alleging that the I lourt abused its discretion in imposing an identical sentence on the charge of

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attempted murder thus displaying vindictiveness toward him, and incorrectly utilized the deadly weapon used enhancement for the offense of attempted murder. The 'court denied Shakir's post-sentence motion on ·January 23, 2018. Timely notice of appeal was filed by Shakir on February I, 2018. By order entered February 13, 2018, Shakir was directed to file a concise statement of matters complained of on appeal to which he complied on February 20, 2018.

In his concise statement, Shakir sets forth the following two complaints on appeal:

1. The Court abused its discretion at the time of resentencing by imposing the 'exact same sentence previously imposed, with the intention of maintaining the integrity of the original sentence from April 26, 2016, which was later vacated because that sentence was imposed using 'the wrong sentencing guidelines. By reimposing the same sentence, the Court has indicated a lack of willingness to base Shakir's sentence on the appropriate guidelines, and instead displayed a vindictiveness against Shakir by imposing a sentence without clear reference to the appropriate guidelines, which is an abuse of the Court's discretion. Commonwealth v Barnes, 167 A.3d 110, 122-123 (Pa. Super. 2017).

2. The sentencing court incorrectly imposed a sentence using the guidelines including the deadly weapons enhancement (DWE), where the jury did not find as a fact that a deadly weapon was used, and where the application of that fact triggered enhanced guidelines, resulting in a sentence which violated Shakir's fundamental right to due process arid the protections afforded by the Sixth Amendment, and which sentence was illegal. Alleyne v, United States, 133 S.Ct. 2151 (2013), and Apprendi v New Jersey, 530 U.S. 466 (2000);

_I l ' . ..

The court submits this opinion in support of its denial of Shakir's post-

J sentence motion pursuant to Rule l 925(a) of the Pennsylvania Rules of Appellate I Procedure, 42 Pa. C.S.

The facts established by the record in the trial of this case are set forth in this

court's memorandum opinion entered March 16, 2013, as follows:

In the early evening hours of July 13, 2011, Tomara Scott, her friend Robin Reddix, 'and .three males-Jiwan Bai1ey, Razaun King and the defendant, Yasin El Aman "Moosie" Shakir-engaged in i conversation outside of Scott's residence on Chaske Street in Penn .1 Hi11s, Allegheny County, "to go to hit a lick'' (meaning to take l · property belonging to someone else). A plan was developed for the l robbery of a bar in Aliquippa, Beaver County. Scott, who had I I previously resided in Aliquippa for a number of years and was the . l only person familiar with the area, suggested that the establishment known as "The Outkast Bar" would be an easy target. Later in the evening, Scott, accompanied by Reddix, Bailey, King and the defendant, drove her automobile from. Penn Hil Is to Aliquippa. During the trip, the five occupants further discussed the planned robbery. Upon' entering Aliquippa, Scott parked her vehicle outside The Outkast B'1r, and Scott and Reddix entered the bar to have a couple drinks i.n order to determine the feasibility of implementing their plan. While the women were in the bar, the three men walked around the neighborhood and later returned to the vehicle to await the females. Near to closing time, Scott and Reddix exited the bar and reconvened with the three men at the car where they spoke of whether to proceed with the robbery of the bartender. The women observed that the owner of the bar had been present and possessed a weapon. Upon further discussion, the plot to rob the bartender was abandoned, causing Bailey 'to become agitated at having come to Aliquippa for naught. They all entered Scott's vehicle intending to return to Penn Hills.

' l While driving from the. area of the bar at approximately l :40 ·! A.M. on July IA, 20 I 1, the occupants of the automobile observed two men-Lucien 'Roberts and Brian Elmore, Jr.-walking up Fifth Avenue hill. Scott proceeded to the bottom of the hill, stopped the vehicle, turned: to Bailey and said, "Jiwan, there you go." Bailey exited the vehicle and the defendant fol1owed. King remained inside the vehicle to complete a text message and exited a short time later. I

Bailey, King find the defendant approached Roberts and Elmore. King observed .the defendant retrieve a silver handgun from his waist. The defendant told Roberts and Elmore to "take it off" or "throw it off' (meaning "give me whatever you got"), Elmore responded, "beat it, get out of here". Roberts initially observed the defendant point his I gun at Elmore: In response, Roberts retrieved his .45 caliber semi- I automatic pistol from his waist as Bailey directed his weapon at I Roberts. Nearly simultaneously, shots were fired by both the defendant and Roberts, King ran and hid behind a telephone pole and .I I did not observe the shooting, although he heard gun fire and saw flashes from the firing of the weapons. Roberts, who possessed a . II license to carry a firearm and whose weapon was properly registered II to him as the owner, fired three or four rounds before he was tackled I by Bailey, wh� attempted to take the pistol from Roberts. In the struggle that ensued between Roberts and Bailey, Roberts fired approximately five more shots, three of which struck Bailey. Elmore, who had been drinking that night and was somewhat intoxicated, fled across the street behind a nearby garage; however, he was struck by a total 'of six bullets +two in the right leg, one in the· right thigh, one in the left 'buttocks and two in the left hand. Elmore indicated that he was hit with the first shot as he stepped off the curb into the street. He was subsequently transported to UPMC Presbyterian Hospital for treatment. Elmore remained in the hospital for two or three days during which he underwent surgery on his left hand, including the insertion of a rod. As of the date of trial, he was unable to completely bend a finger on his left hand. None of the bullets were surgically removed from Elmore' s body. Although not struck by any gun fire, Roberts found two bullet holes in the basketball shorts he was wearing. Upon extricating himself from Bailey's grasp, Roberts returned to his· feet, fled to the top of the hill and called the police.

.. ' )

Roberts testified that the entire incident fasted approximately six minutes. · The defendant returned to Scott's waiting vehicle. King, being . unfamiliar with: the area, left the scene and came upon two individuals from whomhe.borrowed a cellular telephone which he utilized to call his own cellular telephone located in Scott's 'vehicle. Reddix answered the. call, Scott, along with the defendant and Reddix, · proceeded to King's location, at which time he entered the car. King inquired as to Bailey's absence and condition. The defendant replied that. he thought Bailey had tackled Roberts and ran from the scene. While in the vehicle, King again observed the silver firearm in the left hip area of the defendant. King testified that none of the other occupants of the' vehicle possessed a firearm. Roberts described the :l defendant's weapon as being a revolver. Scott drove her vehicle to her residence i� Penn Hills with Reddix, King arid thedefendant as .I : occupants. Later that morning the participants learned of Bailey's i death . . I : I Detective Sergeant Steven Roberts of the Ali_quippa Police .I Department testified that a total of four spent" .45 caliber casings were located at the· scene arid fragments from other bullets of an unknown I f t caliber were loc.ated in the roadway. He explained that Lucien I I Roberts' .45 caliber pistol was a semi-automatic weapon which ; I I ejected spent casings. No casings of any other caliber were found at ! the'scene, Detective Sergeant Roberts explained that since the silver handgun , in the- possession of the defendant was a 'revolver, which does "not automatically-eject its spent casings, hedid not expect to find any spent casings from the revolver. Detective Sergeant Roberts · 1 furtherindicatedthat upon a check with the Pennsylvania State Police, a· certification was received 'that the defendant did not possess a license to carryafirearm nor was he eligible to do so due to his age of 19 years: The;three bullets in the body of Bailey were determined to be AS caliber ammunition. Officer Brandon Yourke of the Wilkinsburg Police Department · testified that he arrested the defendant on an unre1ated outstanding warrant on July 21, 2011, eight days after the shooting, and· upon searching· the defendant found six live .38 caliber bullets in his left front trouser pocket.

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J f .l . . The Commonwealth called William Best as a ballistics expert. · · _ .-�fr. Best is employed as a forensic scientist specializing in firearms . · and tool marks.in the Allegheny County Medical. Examiner's Office, where he -has been employed for approximately four years. Mr. Best earned a bachelor's degree in biology from Duquesne University in . 2007, a master's degree in forensic science from Duquesne· University . in May, 2008,- and completed a laboratory. training program for . firearms and tool marks, He took part in additional fraining provided ._ by _the FederalBureau of Investigation andthe Bureau of Alcohol, \ Tobacco and firearms. Mr. Best previously was qualified as a 'j ·I

. ballistics expert in the Court of Common Pleas of Allegheny County and the District Court' for the Western District of Pennsylvania; Mr. Best was requested to and did take measurements.of a bullet depicted on an x-ray of Elmore's body using a digital micrometer, and excluded the bullet. .in Elmore's body as being a .45 caliberbullet . based on its size. He further indicated that he could not exclude the bullet as beingeither a .38 caliber or .a .32 caliber bullet. Mr. Best .indicated that he had never taken measurements of an x-ray image previously but was aware that the procedure had, in· fact, been utilized. . I 'I }ie also related that he had not received any training in 'radiology. I I I I I ' Shakir was convicted by a jury on September 11, 2012, of criminal attempt

to commit criminal homicide, 18 Pa.C.S. §90 I (a); 4 counts of aggravated· assault, • I I . . 118 Pa.C.S. §2702(a)(l) (2 counts), and §2702(a)(4) (2 counts), respectively;

. , firearms not to be carried without a license, 18 Pa.C.S. §6106(a)(l);·and, recklessly lndan!iering ! another person, 18 Pa.C.S. §2705. On October 15, 2012, the court I . l i�posed sentences of not less than eight and one-half years nor more than reventeen

'j; }1 years on count l charging attempted murder of the victim, Brian Elmore;

not Iess than five years nor more than ten years on count 2 charging aggravated

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Iattempted murder; and not less than- one and one-half years nor more than three !assault · of the victim, Lucian Roberts, to run consecutive to the sentence for

!years on count 6 charging firearms not to be carried 'without a li�ense to run :consecutive to the sentence for aggravated assault, for an aggregate term of not less

ran fifteen years nor more than thirty years. No further penalties were imposed on

the three remaining -counts of aggravated assault and· recklessly endangering lanother ; person by. reason of merger. The imposition of the sentence of not less '.

:! (han five years nor more than ten years for the aggravated assault count was

I pursuant to the mandatory sentence provisions of 42 Pa. C.S. §9712, after the

. i i ICommOnwealth's req�ired notice of intention to proceed under said section .

I The Superior Court, in its non-precedential decision filed on December 1 7, l I '' •2013 at No. 517 WDA 2013, affirmed the judgment of sentence. On May 15, !201"4, the Supreme Court denied Shakir's petition for allowance of appeal at No.

i 139 WAL.2014 .. II Shakir timely filed . his .first pro-se petition pursuant to the Post Conviction , I

I l . : 1Relie( Act (PCRA), 42 Pa. C.S. Sections 9541-9546, inclusive, on March 18, 2015,

i !in which he alleged several claims of ineffective assistance of counsel and the !illegality , of the mandatory minimum sentence for aggravated assault. The Beaver !County ·: Public Defe�der' s Office was appointed on April 8, 2015 to represent l

Shakir and granted 60 days to amend or enlarge upon Shakir's pro-se petition. .,j I !William Braslawsce, Esquire entered his appearance on behalf of Shakir on· April

· 2.4, 2015 and filed a counseled PCRA petition on June 5, 2015, simply I . incorporating Shakir's pro-se petition. Due to the· unavailability of this writer, the IHonorable Harry E. Knafelc scheduled and conducted the PCRA hearing on July :i IQ3, 2015, after which Judge Knafelc entered an order on July 28, 2015, granting, in i bart, the relief requested in Shakir's PCRA petition and directing that Shakir be

! �esentenced taking into account the decision of the United States Supreme Court in �lleyne v. United States, 510 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013) �holding that any fact that increases. the mandatory minimum sentence for a crime I . is an element of the crime and not a sentencing factor, and thus must be proven I . beyond a reasonable doubt after submission to the jury). All other claims in

�hakir's petition ;ere denied. Pursuant to Judge Knafelc's order, this court

lscheciuled and held a hearing on August 26, 2015, following which resentencing

Las denied. on the basis of the Superior Court'sdecision in Commonwealth v.

'Riggle, 119 A.3d 1058 (Pa. Super. 2015), holding that Alleyne did not apply letro_actively on post-conviction review. Counsel for Shakir filed an appeal to the /Superior Court from this court's order on September 24, 2015 at No. 1469 WDA

bot5, and Shakir filed a pro-se notice of appeal on October 2, 2015. The Superior

,f . ' . i ourt dismissed the appeal on November 23, 2015 for failure to file a docketing

statement, however, the appeal was reinstated on December 14, 2015 after the Ifiling. of the docketing statement. . Upon the Superior Court's subsequent decision I . ' in Commonwealth v. Ruiz, 131 A.3d 54 (Pa. Super. 2015) on December 30, 2015, ketennining that Alleyne may be applied retroactively when a defendant's case is

bending on direct appeal, .Judge Knafelc, by correspondence of January 13, 2016, I Lquested the Superior Court to remand the case for resentencing, which request : ras gran'.ed by the .S�perior Court on Fe��ary 11, 20 16. Shakir' s dir�t appeal

r was pending at the time ofthe'Alleyne decision on June 27, 2013.

Shakir, apparently unaware that the appeal had been reinstated, filed a

second pro-se PCRA petition on February 2, 2016, alleging ineffective assistance

lr counsel for permitting the appeal to be dismissed. By reason of the

ieinsiatement of the. appeal and remand for sentencing, no action was taken on the

l�nd pro-se PCRA petition.

Pursuant to the Superior Court's remand and its decision in Commonwealth

v. Valentine, IOI A.3d 801 (Pa. Super. 2014) (declaring 42 Pa. C.S. §9712

lnconstitutional in its entirety), this court, after hearing, entered an amended

lenience order on April 26, 2016, solely on count 2, charging aggravated assault lausing serious bodily injury, by modifying the. original sentence order from the

mandatory sentence of not less than five years nor more than ten years to a rentcnce within the standard range of the sentencing guidelines of not less than

three and one-half years nor more than seven years, despite the Commonwealth's !argument for a sentence in the aggravated range. The sentencing guidelines for laggnivated assault attempting serious bodily injury as a felony of the first degree :carries an offense gravity score often, and with Shakir's prior record score of one,

I provided a mitigated sentence of 18 months, standard range of between 30 months I land 42 months and an aggravated sentence of 54 months. Sentencing Guidelines,

i ls1x1h Edition Revised December 5, land 2008, 204 Pa. Code §303.15, Offense Listing,

! § 303.16, Basic S�ntencing Matrix. The balance of the original sentence order I of October 15, 2012 was maintained. No appeal was filed from this judgment of

sentence.

Shakir, on August 1, 2016, filed his third pro-se PCRA petition alleging

ineffective assistance of counsel for failure to file a post-sentence motion and/or

appeal from the court's April 26, 2016 judgment of sentence. Steven Valsamidis,

Esquire was appointee! by the court as counsel for Shakir on August 30, 2016 and

granted 60 days to amend/enlarge Shakir's pro-se petition. After an additional

extension of 45 days, an amended, counseled PCRA petition was filed on

December 14, 2016. Following a hearing held on July 5, 2017, the court *11 determined that counsel's failure to perfect an appeal after requested to do so constituted ineffective of assistance of counsel, granted Shakir's PCRA petition and reinstated his appeal rights. Rather than file an appea], Shakir filed a post-sentence motion on July l 7, 2017, in which he claimed that the court, in imposing the sentence for attempted murder, utilized the incorrect sentencing guidelines for attempted murder with serious bodily injury, when the defendant was charged solely with attempted murder generally, and the jury was not instructed on the offense of attempted murder with serious bodily injury but only with attempted murder generally. The court directed the filing of briefs and scheduled a hearing/argument for December 20, 2017 to determine whether Shakir should be resentenced, and if so, the appropriate sentence to be imposed.

At the hearing/argument Shakir argued, and the Commonwealth conceded, based upon the decision in Commonwealth v. Barnes, 167 A.3d 110 (Pa.Super. 20 l 7), that incorrect sentencing guidelines were utilized for the offense of attempted murder, since Shakir was sentenced for attempted murder with serious bodily injury when he had been charged and the jury had been instructed solely on attempted murder generally. The facts in Barnes are indistinguishable from those in the instant case. In Barnes, the defendant was not charged with attempted murder resulting in serious bodi1y injury, the information did not allege serious *12 bodily injury and the jury was not instructed on the charge of attempted murder causing serious bodily injury. The trial court applied Section l 102(c) of the Crimes Code, 18 Pa. C.S. § 1102( c), in imposing a maximum term of imprisonment of 40 years. The Superior Court held that in the absence of a jury finding of serious bodily injury, the sentence violated the holding in Apprendi. Barnes is thus also controlJing as to the use of the incorrect sentencing guidelines. Therefore, the court utilized the correct sentencing guidelines for attempted murder generally without consideration for serious bodily injury. Secondly, Shakir asserted that the court's application of the deadly weapon used enhancement without a specific and separate factual finding by the jury of the use of a deadly weapon violated the holding in Alleyne. The court rejected Shakir' s position on the deadly weapon used enhancement and ordered that the original sentence for attempted murder remain in full force and effect.

In his concise statement, Shakir first claims, citing to Commonwealth v. Barnes, supra, that the court abused its discretion and displayed vindictiveness toward him by imposing a sentence on the offense of attempted murder identical to the sentence imposed for said offense in the sentence orders of October 15, 2012 and Apri I 26, 2016, without reference to the sentence guidelines and in order to preserve the integrity of the original sentencing scheme. In Barnes, the defendant

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I . 1

ifter being 'convicted by a jury,. was sentenced to terms of incarceration for

attempted murder of 20 years to 40 years, for aggravated assault to two and a half �ears· to five years, and for kidnapping of two and a half years to five years, with Ian . sentenc�S running consecutively. On appeal, the . Superior Court determined :i ., (hat the conviction for aggravated assault and attempted homicide should have

,merged and remanded for resentencing. Upon remand, the trial court resentenced year� /the defendant to 20. to 40 years for attempted murder followed by a . :J; consecutive term of five years to ten years for kidnapping. The defendant again I l

! I appealed claiming the trial court abused its discretion when imposing a more .•

severe sentence for kidnapping on remand thus demonstrating a presumption of

! I vindictiveness. The court in Barnes referred to North Carolina v. Pearce, 395 U.S. ' . " I

'i · ! 711, 89. S.Ct. 2072, 23 L. Ed. 2d. 656 (1969), which held that whenever a judge . I . ! J imposes a more.severe sentence on a defendant after a new trial, the reasons for his

: r doing· so must· affirmatively appear and be based upon objective information

concerning identifiable conduct upon the part of the defendant occurring after the

:i time of the original sentencing proceeding. Pearce's rational for providing reasons

on the record also applies . when the original sentence is vacated . and a second

sentence is imposed without an additional trial. Commonwealth v. Greer, 3�2 Pa.

Super. 127, 554 A.2d 980, 987 n. 7 (1983 ). Absent evidence that a sentence

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increase is justified due to objective information concerning a defendant's case, the lresumplion of vindictiveness cannot be rebutted. Commonwealth v. Serrano, 727

�.2d 1168, 1170 (Pa: Super. 1999). The Barnes trial court explained that by j . increasing the kidnapping sentence, the original sentencing structure was merely

I · · ed . p reservmg ratntatn · th e ·integnty · O r a pnor · sentencing · SCh eme IS· a l egitirnate · · : ; sentencing concern, Commonwealth v. Walker, 390 Pa. Super. 76, 568 A.2d 201, I I .I 205 ( 1989), disapproved on other grounds by Commonwealth v. Robinson, 931 ) l.2d 15, 20-22 (Pa. · Super. 2007). A trial court may property resentence a

I iefendant to the same aggregate sentence to preserve its original sentencing , I . · scheme. Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super. 1999), ippeal denied, 56 J Pa. 651, 747 A.2d 896 (l 999). The Barnes court determined

!hat the defendant was not the victim of a vindictive sentence on the part of the

!rial court, as his aggregate sentence after remand remained the same.

In the instant case, the court has not increased the sentence for attempted

murder, but specificaJly referred to and used the proper sentencing guidelines. In lits original sentence, the court sentenced the defendant using the guidelines for luempted murder with serious bodily injury and the deadly weapon used lnhancement, which considering Shakir's prior record score of one, converted to

ln offense gravity score of 14 with a mitigated sentence at 90 months and the

·,

standard range of sentence at between 102 months and 240 months. (See 204 Pa. J I ·. . l !Code §§303.15, O�e:nse Listing; 303.3(c)(4), Offense Gravity Score, Inchoate j !Offenses; 303.9(b), Deadly Weapon Enhancement Sentence Recommendations;

· �03.16, Basic Sentencing Matrix; and 303.18, Deadly Weapon Enhancement/Used : I . . ' , . Matrix). When utilizing the correct sentencing guidelines for attempted murder · rith bod;ly ! no serious injury and the deadly weapon used enhancement, the : . sentencing guidelines provided for an offense gravity score of 13, with the : !mitigated . sentence of 72 months, the standard range of 84 months to I 02 months I ! and the aggravated sentence of 114 months. Id. Shakir argued that the court should .

use sentencing guidelines for attempted murder with no serious bodily injury and .I I no deadly weapon used enhancement making the offense gravity score 13, with the

, mitigated .sentence of 54 months, the standard range of 66 months to 84 months r . and the aggravated sentence of 96 months. Id. The court's original sentence of 102

months for attempted murder with serious bodily injury .was within the standard

range. Using the corrected sentencing guidelines, l 02 months is also within the

standard range. The court explained that the reasons for the sentence for attempted

murder remained the.same as outlined at the time of the original sentence hearing,

' and thus, the sentence would remain identica] in order to maintain the sentencing . 'I

I 15

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I scheme. Shakir has thus failed to demonstrate either actual or presumptive

Lndictiveness or an abuse of discretion on the part of the court.

Shakir next asserts that Alleyne and Apprendi v, New Jersey, 530 U.S. 466,

120 S. Ct. 2348, 147-L.Ed. 2d 435 (2000), prohibit the application of the deadly

reapon used enhancement to the charge of attempted murder, unless the jury specifically finds as a-fact that a deadly weapon was used. Apprendi held that any lfact that increases the penalty for a crime beyond the prescribed statutory

'maximum must be submitted to the jury and proven beyond a reasonable doubt.

JThe defendant's. argument fails for two· reasons. The Commonwealth's

information in count 1 charging criminal attempt to commit criminal homicide

specifically alleges that Shakir did "with the intent to commit a specific crime, do

any act which constitutes a substantial step towards the commission of that crime,

to-wit: actor did fire-a handgun at the victim, Brian Elmore, which caused hlm l I I to be struck several times, in an attempt to commit the crime of homicide."

I (Emphasis supplied). Further, in the charge to the jury, the court, as one of the

I I three elements required to be proven beyond a reasonable doubt, charged to the

j jury as follows: I That the defendant did a certain act. In this case, the I ( Commonwealth alleges that the act which the defendant committed was fire a handgun at the victim, Brian Elmore, which caused him to.be struck several times. (Emphasis supplied).

The jury was specifica1Iy required to find that Shakir fired a handgun at the victim and struck him several times in order to be convicted of attempted murder, and thus, Shakir's argument is rejected.

Secondly, the deadly weapon used enhancement is contained in §303. l O of the Sentencing Guidelines, 204 Pa. Code §303.10, and provides in relevant part as follows:

a. Deadly Weapon Enhancement.

(2) When the court determines that the offender used a deadly weapon during the commission of the current conviction offense, the court sha11 consider the DWFJUsed 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.

The sentencing court has no discretion to refuse to apply the deadly weapon enhancement when it is appropriate. Commonwealth v. Solomon, 151 A. 3d 672, 677 (Pa. Super. 2016), citing Commonwealth v. Magnum, 439 Pa. Super. 616, 654 A.2d 1146, 1149-50 (1995). The court must begin its calculation of a sentence from the correct starting range, including when appropriate, the deadly weapon enhancement, Magnum at 1150 and Solomon at 677. As to the specific issue raised by Shakir, the Superior Court, in Commonwealth v. Shull, 148 A.3d 820 (Pa.

; i i I' .·..

1 ·_. � i .. r . . . $upt:fr.·2016) n.6 and� Commonwealth 'v, · Buterbaugh, 91. A.3d 1247 (Pa. Super. I . : . ,, 1014) n.10, appeal denied, 628 Pa. 627, 104 A.3dl. (2014), explained that the

/imposition of the deadly weapon sentencing enhancement does not implicate the

j holdings of Alleyne nqr Apprendi, as follows:

In both [Alleyne and Apprendii, the Supreme Court determined that certain sentencing factors were considered elements of the • 1 .. underlying crime, and thus, to comply with the dictates of the Sixth I ' Amendment, must be submitted to the jury and proven beyond a ·I . reasonable doubt instead of being determined by the sentencing judge. I I However, this inquiry is not relevant to our case because of the nature I oftheDWE. Alleyne and Apprendi dealt with factors that either increased the . mandatory .minimum sentence or increased the prescribed 'sentencing range beyond 'the statutory maximum, respectively; Our case doesnot involve either. situation; instead, we are dealing with a sentencing enhancement, : If the enhancement applies, the sentencing court is required to raise the standard guideline range; however, the 'Court retains the discretion to sentence outside the guideline range. . of · Therefore, neither the situations addressed in Alleyne and Apprendi I are implicated. :i In the present case.: the jury specifically determined beyond a .reasonable doubt that .. : I I Shakir· fired. a handgun . at the victim, Brian Elmore, which caused him to be struck ' . I

.! several times as an element in convicting him of attempted ·murder, which required . I

. / the· court to apply 'the deadly weapon used enhancement in accordance with I ;

§3QJ: 10(a)(2)(i) of the sentencing guidelines. The court, utilizing the correct . .• se�tericing guidelines for the offense of attempted murder generally, 'applying the

deadly weapon used-enhancement, and following the dictates of Commonwealth . i V.

Serrano, 150 AJd 470, 473 (Pa. Super. 2016), to review the entire case file anew,

chose to properly maintain its original sentence, which was within the standard

range, in order to preserve the integrity of the sentencing scheme.

Based on the foregoing, the court entered its order of January 23, 2018

denying Shakir's post-sentence motion.

BY THE COURT

S.J. C)

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