Com. v. Smith, D. ( 2015 )

J-S13008-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAJON ANTHONY SMITH
Appellant No. 375 WDA 2014
Appeal from the Judgment of Sentence entered November 21, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0016741-2012
BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.
CONCURRING MEMORANDUM BY STABILE, J.: FILED APRIL 1, 2015
I concur in the Majority’s decision. I write only to express my view
that the trial court did not err in failing to consider Appellant’s non-
commission of another crime with the firearm as a mitigating factor. The
possessory offense of carrying a firearm without a license, 18 Pa.C.S.A.
§ 6106(a), does not require the commission of an attendant crime.
Commission of another crime using the illegally possessed firearm (for
example aggravated assault or terroristic threats) is an “aggravating factor”
only in the sense that an offender could receive a separate, consecutive
sentence for committing that other crime. Moreover, the sentencing
guidelines would account for use of the firearm to commit that other crime.
Compare 204 Pa. Code § 303.16(a) (Basic Sentencing Matrix), with id.
§ 303.17(b) (Deadly Weapon Used Enhancement Sentencing Matrix); see,
J-S13008-15
e.g., Commonwealth v. Kneller, 999 A.2d 608, 615 (Pa. Super. 2010) (en
banc) (applying the deadly weapon used enhancement to cruelty to animals
conviction where defendant used firearm in furtherance of offense). Merely
because use of the firearm to commit another offense may result in greater
sentencing liability does not, therefore, require a sentencing judge to
consider non-use of the firearm to commit another crime as a mitigating
factor.
Consequently, I do not believe trial court “likely erred” in refusing to
consider Appellant’s non-commission of another crime as mitigating.
Moreover, it is debatable whether this claim constitutes a substantial
question. “That the court refused to weigh the proposed mitigating factors
as [a]ppellant wished, absent more, does not raise a substantial question.”
Commonwealth v. Moury, 992 A.2d 162, 175 (Pa. Super. 2010). To the
extent Appellant raises a substantial question, as the Majority holds, the trial
court did not abuse its discretion. See id. at 170 (“An abuse of discretion
may not be found merely because an appellate court might have reached a
different conclusion . . . .”).
Accordingly, I concur in the result reached by the Majority.
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