WHEN DOES A CAR BECOME A DEADLY WEAPON?

The Superior Court has decided the case of Commonwealth v. Solomon, No. 1209 WDA 2015 (Nov. 22, 2016), holding that it was proper for the trial court to apply a Deadly Weapon Enhancement to Solomon’s sentence after Solomon drove an SUV in reverse through an eight-foot-wide opening directly at a person who was standing less than fifteen feet behind him during a police pursuit.

FACTS

Police attempted to stop Solomon’s vehicle after observing it being operated in a reckless manner. Instead of stopping, Solomon fled, traveling in excess of eighty miles per hour during the pursuit. Once Solomon brought the vehicle to a stop in an alley, Officers Baker and Schutz exited their vehicle, which was stopped approximately fifteen feet behind Solomon’s vehicle.

Rather than complying with the Officers’ warnings to stop, Solomon put the vehicle in reverse and drove in reverse toward the police vehicle. Solomon missed Officer Baker by approximately one foot and continued on toward Officer Schutz. The summary of the evidence described an eight-foot separation between the police car and a parked van in the alleyway. Solomon narrowly missed Officer Schutz. Both Officers attempted to stop Solomon’s vehicle by firing their weapons, fearing for their safety as Solomon fled.

Solomon was ultimately charged, tried and was convicted and sentenced to seven and one-half to fifteen years of imprisonment for aggravated assault, plus seven years of probation to be served consecutively for fleeing and eluding charge, and two years’ probation to be served concurrently with the preceding probation sentence for recklessly endangering another.

As part of the sentence, the Court imposed a Deadly Weapon Enhancement.

ISSUE

Did the sentencing court err when it applied the Deadly Weapon Enhancement when Appellant drove an SUV in reverse through an eight-foot-wide opening directly at a person who was standing less than fifteen feet behind him?

HOLDING

In this context, the SUV was an instrument likely to produce death or serious bodily injury and thus constituted a deadly weapon. The sentencing court had no discretion to refuse to apply the Deadly Weapon Enhancement.

REASONING

Solomon asserted that by driving in reverse, he was using his car to (1) continue his flight after entering a dead end, and (2) prevent himself from being shot. His challenge is to the discretionary aspects of his sentence.

When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court’s jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. The Superior Court has “found on several occasions that the application of the deadly weapon enhancement presents a substantial question.”

In this case, the trial court sentenced Solomon according to the “Deadly Weapon Enhancement Used” Matrix of the Sentencing Guidelines.

The definition of deadly weapon does not demand that the person in control of the object intended to injure or kill the victim. Therefore, Solomon’s motivation for reversing the vehicle was of no moment. The Superior Court conclude that if one drives a vehicle at another person, there is a high probability that the victim will be seriously hurt or killed.

Here, Solomon pleaded guilty to aggravated assault, a crime eligible for deadly weapon enhancement. Therefore, the sentencing court had no discretion to refuse to apply the deadly weapons enhancement, given the manner in which Solomon chose to use his vehicle.

LINK TO CASE:

http://www.pacourts.us/assets/opinions/Superior/out/J-A26016-16o.pdf?cb=2

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