Pennsylvania Superior Court Reports

PENNSYLVANIA v. RAYBUCK. 2006 PA Super 377 COMMONWEALTH OF PENNSYLVANIA, Appellant v. CHERYL M. RAYBUCK, Appellee. No. 704 WDA 2006. Superior Court Of Pennsylvania. December 22, 2006.

Appeal from the Order Entered February 17, 2006 In the Court of Common Pleas, WARREN County Criminal Division at No. 134 of 2005.

BEFORE: STEVENS, TODD, and McCAFFERY, JJ.

OPINION BY McCAFFERY, J.

¶ 1 The Commonwealth appeals from the trial court
order denying its motion for reconsideration of the sentence
imposed on Appellee, Cheryl M. Raybuck, following her
conviction for two counts of aggravated assault.
Specifically, the Commonwealth asks us to determine whether
the trial court erred by not applying the deadly weapons
enhancement[fn1] to Appellee’s sentence based on Appellee’s
use of commercial mouse poison and household chemicals to
commit her offenses. We conclude that commercial mouse
poison is a deadly weapon for purposes of the enhancement
rule in this case; however, we further conclude that
unidentified household chemicals cannot be considered a
deadly weapon. Therefore, we affirm in part and reverse in
part.

¶ 2 The facts and procedural history underlying this
matter are as follows. Appellee was charged with two counts
of aggravated assault and other offenses in connection with
the attempted poisoning of her husband.[fn2] With regard to
the first count of aggravated assault, she pled guilty to
attempting to cause serious bodily injury to her husband by
placing mouse poison, which is commercially available for
rodent control, onto and into the food she prepared and gave
him to eat. With regard to the second count, Appellee pled
nolo contendere to attempting to cause serious bodily injury
to her husband by pouring household chemicals into a bathtub
drain in an attempt to manufacture a toxic gas. The court
sentenced Appellee to consecutive terms of imprisonment of
30 to 60 months on the first aggravated assault count and 22
to 44 months on the second count, for a total sentence of 52
to 104 months.

¶ 3 The Commonwealth then filed a timely motion for
reconsideration of sentence based on the trial court’s
failure to apply the deadly weapons enhancement, as provided
under 204 Pa. Code § 303.10(a)(iii). After the trial
court denied the motion for reconsideration, the
Commonwealth filed a timely appeal and raises the following
single issue for our review:

Is the Trial Court mandated to apply the deadly weapons
enhancement set forth in the sentencing code on a plea of
guilty to two counts of aggravated assault where poison
and toxic gas were the instrumentalit[ies] used in the
commission of the crime[?].

(Commonwealth’s Statement of Question Involved)

¶ 4 An allegation that the trial court erred by not
applying the deadly weapons enhancement is a challenge to
the discretionary aspects of sentence, from which there is
no appeal as of right. See, e.g., Commonwealth v.
Pennington, 751 A.2d 212, 215 (Pa.Super. 2000); Commonwealth
v. Scullin, 607 A.2d 750, 751-51 (Pa.Super. 1992). To be
reviewed on the merits, a challenge to the discretionary
aspects of sentence must raise a substantial question that
the sentence imposed is not appropriate. Pennington, supra
at 215 (citing 42 Pa.C.S.A. § 9781(b)). A
substantial question is raised when the appellant advances a
“colorable argument” that the sentence was either
“inconsistent with a specific provision of the Sentencing
Code” or “contrary to the fundamental norms which underlie
the sentencing process.” Id. at 215-16.

¶ 5 Our case law has established that application of
the deadly weapons enhancement presents a substantial
question. See id. at 216 (concluding that the appellant
raised a substantial question by challenging the trial
court’s application of the deadly weapons enhancement, based
on the appellant’s assertion that he had not had actual
possession of the deadly weapon, a gun); Commonwealth v.
Hatcher, 746 A.2d 1142, 1144 (Pa.Super. 2000) (same);
(Commonwealth v. Magnum, 654 A.2d 1146, 1149-50 (Pa.Super.
1995) (concluding that the Commonwealth raised a substantial
question by challenging the trial court’s failure to
consider a deadly weapons enhancement in a situation where
the appellant used a knife to threaten the victims);
Scullin, supra at 752-53 (concluding that the Commonwealth
raised a substantial question by challenging the trial
court’s determination that a tire iron thrown by the
appellee was not a deadly weapon). Therefore, because the
Commonwealth has raised a substantial question, we will
address the merits of the claim.[fn3]

¶ 6 When reviewing a challenge to the discretionary
aspects of sentencing, we adhere to the following standard:

Sentencing is a matter vested in the sound discretion of
the sentencing judge, and a sentence will not be disturbed
on appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish,
by reference to the record, that the sentencing court
ignored or misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.

Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.Super. 2006).
¶ 7 The deadly weapons enhancement provision of the
sentencing guidelines provides, in relevant part, as
follows:

When the court determines that the offender possessed a
deadly weapon during the commission of the current
conviction offense, the court shall consider the
DWE/Possessed Matrix ( § 303.17). An offender has
possessed a deadly weapon if any of the following were on
the offender’s person or within his immediate physical
control:

(i) Any firearm, (as defined in 42 Pa.C.S. § 9712)
whether loaded or unloaded, or

(ii) Any dangerous weapon (as defined in 18 Pa.C.S.
§ 913), or

(iii) Any device, implement, or instrumentality designed
as a weapon or capable of producing death or serious
bodily injury where the court determines that the
defendant intended to use the weapon to threaten or injure
another individual.

204 Pa. Code § 303.10(a)(iii).

¶ 8 In considering the applicability of the deadly
weapon enhancement in a particular case, we look for
guidance to our case law. Not surprisingly, guns, knives,
and other clearly offensive weapons constitute the most
obvious and commonly encountered forms of deadly weapons.
See Pennington, 751 A.2d at 215-17; Magnum, 654 A.2d at
1149-50; Commonwealth v. Burns, 568 A.2d 974, 976 (Pa.Super.
1990). However, other items, not normally considered to be
weapons, have also been categorized as deadly weapons under
certain circumstances. For example, in Scullin, 607 A.2d at
753, this Court held that a tire iron was a deadly weapon
under the circumstances of its use by the offender, who had
thrown a tire iron at the victim, thereby causing his death.
The Court acknowledged that a tire iron was not a
traditional weapon, but nonetheless considered it a deadly
weapon in that case because it had been used in such a
manner as to create a high probability of serious bodily
injury or death. Id. As stated by the Court, the tire iron
“became a deadly weapon at the moment [the defendant] threw
it in the direction of the ultimate victim.” Id.

¶ 9 Similarly, this Court has held that a fireplace
poker and a dry-wall saw were deadly weapons under certain
circumstances. Commonwealth v. Cornish, 589 A.2d 718, 721
(Pa.Super. 1991); Commonwealth v. Brown, 587 A.2d 6, 7
(Pa.Super. 1991). In Cornish, the fireplace poker had been
used to strike the victim numerous times during the course
of a robbery, and in Brown, the saw had been used to stab
the victim ten times. From the holdings of Scullin,
Cornish, and Brown, it is clear that an object can attain
deadly weapon status based on its use under the
circumstances of the particular crime.

¶ 10 The sentencing court has no discretion to
refuse to apply the deadly weapons enhancement when it is
appropriate. Magnum, 654 A.2d at 1149-50; Scullin 607 A.2d
at 753. The court must begin its calculation of a sentence
from the correct starting range, including, when
appropriate, the deadly weapons enhancement. Magnum, supra
at 1150; Scullin, supra at 754. When a sentencing court
fails to begin its calculation of sentence from the correct
starting point, this Court will vacate the sentence and
remand for reconsideration of sentence. Magnum, supra at
1150; Scullin, supra at 754.

¶ 11 We turn now to the facts and circumstances of
the case sub judice, addressing first whether commercial
mouse poison as used by Appellee is a deadly weapon. For
mouse poison to be classified as a deadly weapon, it must be
an “instrumentality . . . capable of producing death or
serious bodily injury where the court determines that the
defendant intended to use the weapon to threaten or injure
another individual.” 204 Pa. Code § 303.10(a)(iii).
We conclude that mouse poison, as used by Appellee herein,
is encompassed by this provision.

¶ 12 Mouse poison is clearly an instrumentality, the
broad definition of which is a “thing used to achieve an end
or purpose.” Black’s Law Dictionary, 8th ed., 2004. Mouse
poison is used to kill rodents. Instantly, it became a
deadly weapon when Appellee included it in the sandwich that
she prepared for her husband to consume, in light of her
admitted intent to poison him. See Scullin, 607 A.2d at 753
(holding that the tire iron “became a deadly weapon at the
moment [the defendant] threw it in the direction of the
ultimate victim.”)

¶ 13 That the amount of poison Appellee added to the
sandwich was apparently insufficient to actually cause
serious bodily injury is irrelevant to our conclusion that
mouse poison is a deadly weapon under the circumstances of
this case. By design and normal usage, mouse poison kills
rodents, and thus by its very nature it is toxic and
dangerous. Appellee attempted to exploit this characteristic
in order to poison her husband. It is not necessary for the
court to venture into calculations of the amount of mouse
poison that the victim would have had to ingest to produce
the injurious effect intended by Appellee in order for the
deadly weapons enhancement to apply. We base this conclusion
upon our interpretation of the entire text of 204 Pa. Code
§ 303.10(a), which provides in subsection (i) that a
firearm is classified as a deadly weapon, whether loaded or
unloaded. 204 Pa. Code § 303.10(a)(i) (emphasis
added). By analogy, we conclude that commercial mouse poison
is a deadly weapon under subsection (iii), whether or not it
is used in an amount actually capable of causing serious
bodily injury or death.

¶ 14 Finally, we turn to the question of whether
unidentified household chemicals can be considered a deadly
weapon. The second charge of aggravated assault, to which
Appellee pled nolo contendere, stemmed from her attempt to
manufacture a poisonous gas by pouring household chemicals
down the bathtub drain. However, not a scintilla of evidence
was offered as to the identity or nature of the chemicals
Appellee used. “Household chemicals” comprises a large,
broad, and diverse category with little or no commonality
except for the common presence and usage of these products
in the home. In the absence of any information regarding the
nature of the specific chemicals used by Appellee, we
conclude that the trial court did not err in declining to
apply the deadly weapons enhancement when calculating
Appellee’s sentence on this charge of aggravated assault.

¶ 15 In summary, we conclude that the trial court
erred as a matter of law by not including the deadly weapons
enhancement when calculating Appellee’s sentence for
aggravated assault involving the use of mouse poison.
However, we affirm the trial court’s refusal to consider
unknown household chemicals as a deadly weapon. Thus, we
affirm in part and reverse in part and remand for
reconsideration of sentence.

¶ 16 Sentence affirmed in part, reversed in part,
and remanded for resentencing. Jurisdiction relinquished.
-9-

[fn1] 204 Pa. Code § 303.10(a)(iii).

[fn2] Aggravated assault is defined, in relevant part, as
follows:

A person is guilty of aggravated assault if he: (1)
attempts to cause serious bodily injury to another, or
causes such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to
the value of human life[.]

18 Pa.C.S.A. 2702(a)(1). Appellee was also charged with
attempted murder and recklessly endangering another person,
but these charges were nolle prossed.

[fn3] The Commonwealth has not included a statement of the
reasons relied upon for allowance of appeal, as required by
Pa.R.A.P. 2119(f). However, because Appellee has failed to
object to this omission and a substantial question is
obvious from the Commonwealth’s brief, we will address the
merits of the issue presented. See Commonwealth v.
Saranchak, 544 Pa. 158, n. 18, 675 A.2d 268, 277 n. 18
(1996) (stating that an appellate court may overlook an
appellant’s failure to include a Rule 2119(f) statement when
the appellee fails to object to the omission and a
substantial question is evident from the appellant’s brief).