The PA Superior Court has decided the case of Commonwealth v. Smith, No. 211 MDA 2016, holding that because Smith had no intention to use his automobile as a deadly weapon when he struck a pedestrian while operating the vehicle in a reckless manner, the Deadly Weapon Sentencing Enhancement did not apply. 


Smith was using his car as a mode of transportation to go purchase crack cocaine. He was drunk and distracted by one of his passengers when he struck a pedestrian who suffered fractures to his skull, nasal bones, ribs, tibia, and fibula, requiring extensive medical treatment, and resulting in permanent injuries. Following the impact, Smith continued along his course, and ultimately, abandoned his vehicle in a parking lot.

Smith was arrested and charged with aggravated assault and driving under the influence of alcohol (“DUI”). He entered an open guilty plea and, prior to sentencing, the Commonwealth recommended that the court impose the deadly weapons enhancement (“DWE”) to his sentence.

The trial court declined to employ the DWE, and instead imposed a sentence of six-and-a-half to fifteen years incarceration, plus costs and restitution for aggravated assault, and a concurrent thirty days to six months incarceration for the DUI.

The Commonwealth appealed from the trial court’s refusal to impose the deadly weapons enhancement.


Whether the trial court erred in failing to apply the DWE at sentencing?


It was not an abuse of discretion for the trial court to determine that the DWE was not applicable to Smith’s judgment of sentence.


The DWE sentence matrices apply to offenders who either possessed or used a deadly weapon during the commission of a crime.

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 enhancement sentencing matrix. 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 … any device, implement, or instrumentality capable of producing death or serious bodily injury.

The Superior Court noted that a device, implement, or instrumentality is an object, whether simple or complex, that is utilized in a fashion to produce death or serious bodily injury, which need not be consistent with the original purpose of the object. For example, although an automobile is not specifically designed to cause death or serious bodily injury, the character of an automobile changes based on the particular circumstances surrounding its use. 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.

For the sake of applying the DWE for use under that portion of the enhancement statute, the person’s actual use is determinative, and this use is informed by his intentions. Smith’s conduct at the time of the incident was reckless. Nevertheless, he had no intention to use the automobile as a deadly weapon. In light of the surrounding circumstances, there was 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

The trial court emphasized that it is “the intent of the operator and/or the actual manner of use of the motor vehicle” which “may convert it from merely a means of transportation to a deadly weapon.” Accordingly, it concluded that Smith did not intend to use the vehicle as a deadly weapon, and, therefore, the DWE did not apply.


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