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Commonwealth v. Brougher

July 13, 2009

COMMONWEALTH OF PENNSYLVANIA APPELLEE
v.
ELI GARRETT BROUGHER APPELLANT



Appeal from the Judgment of Sentence May 2, 2008 In the Court of Common Pleas of Perry County. Criminal No. CP-50-CR-0000445-2007.

The opinion of the court was delivered by: Kelly, J.

BEFORE: PANELLA, SHOGAN and KELLY, JJ.

OPINION

¶ 1 Appellant, Eli Garrett Brougher, appeals from the judgment of sentence entered in the Perry County Court of Common Pleas. The issue presented on appeal is whether an unloaded toy pistol, designed to shoot small plastic pellets, constitutes a deadly weapon for purposes of the deadly weapons enhancement. We affirm.

¶ 2 On September 20, 2007, Appellant, then seventeen years of age, entered a Uni-Mart in New Bloomfield, Perry County wearing a Halloween mask with a black pointed hood. He approached a clerk displaying what appeared to be a handgun, pointed the weapon at the clerk's face, and demanded that she open the cash register. Appellant then reached over the counter, took $269 and fled from the store on foot. It was later determined that the weapon used during the course of the robbery was an air-soft pistol, which looks like a real pistol, but shoots small plastic pellets by either spring or air action similar to a BB gun. (N.T. Plea, 3/20/08, at 4).

¶ 3 Appellant pleaded guilty to robbery with the threat of immediate serious injury.*fn1 On May 1, 2008, Appellant was sentenced to five to ten years' imprisonment for robbery while in possession of a firearm pursuant to the deadly weapons enhancement, 204 Pa. Code § 303.10, and was ordered to pay restitution to the store in the amount of $269. (N.T. Sentencing, 5/1/08, at 9). The trial court denied Appellant's motion to modify sentence. On May 28, 2008, Appellant filed a timely notice of appeal and timely complied with the court's order to file a statement of errors complained of on appeal.

¶ 4 Appellant's sole claim on appeal is that the sentencing court erred in applying the deadly weapons enhancement. Appellant argues that the instrument used in the robbery was a toy, and that the Commonwealth failed to offer any evidence at sentencing to indicate that the toy was loaded and had the potential to discharge. Thus, he claims that it was not capable of producing serious bodily injury to the clerk, and that it was not a deadly weapon for purposes of the deadly weapons enhancement.*fn2 We disagree.

¶ 5 Preliminarily, we note that Appellant has substantially failed to comply with the requirements of Pa.R.A.P. 2111. Specifically, Appellant has failed to include with his brief a statement of jurisdiction, an order or other determination in question, a statement of the scope of review and the standard of review, a summary of argument, the opinion of the trial court, the transcripts of the guilty plea and sentencing hearing, or a copy of the statement of errors complained of on appeal. Nevertheless, our review is not impeded because Appellant has identified the applicability of the deadly weapons enhancement as the issue presented.

¶ 6 Additionally, claims relating to the discretionary aspects of a sentence are waived if an appellant does not include a Pa.R.A.P. 2119(f) statement in his brief and the opposing party objects to the statement's absence.*fn3

Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008), appeal granted, (Pa. 2009). Appellant has failed to comply with the requirement of 2119(f); however, the Commonwealth did not object to the statement's absence. Therefore, we will not find it waived. See id.

¶ 7 Although Appellant's claim is not waived for failure to comply with Rules 2111 or 2119(f), we are constrained to find waiver for his failure to sufficiently develop his issue pursuant to Pa.R.A.P 2119(a)-(b). As a general rule, an appellant "shall have at the head of each part [of his argument]-in distinctive type or in type distinctively displayed-the particular point treated therein, followed by such discussion and citation of authorities as are deemed pertinent." Pa.R.A.P. 2119(a). "Citations of authorities must set forth the principle for which they are cited. . . . Quotations from authorities or statutes shall also set forth the pages from which they are taken." Pa.R.A.P. 2119(b); see also Commonwealth v. Love, 896 A.2d 1276, 1287 (Pa. Super. 2005) ("Arguments not appropriately developed are waived."). Here, Appellant failed to state at the beginning of his argument the particular point treated therein. Additionally, Appellant does not support any of his claims with pertinent case law. Appellant cites to only one case, without providing a pinpoint reference:

In [sic] Commonwealth v. Chapman, [ ] 528 A.2[d] 99[0] ([Pa. Super.] 1987), held that "while there is no requirement that the victim actually be immediate danger [sic] of serious injury, the device or instrumentality must be used in a manner, that could cause serious bodily injury." In the instant case, the Commonwealth offered no facts at sentencing that the toy was loaded and was capable of producing serious bodily injury. (Appellant's Brief, at 5). Although Chapman uses similar language, the quotation from Appellant's brief does not appear anywhere in that case. Rather, Chapman provides:

The definition [of a "deadly weapon"] clearly states the device or instrumentality must be "calculated or likely to produce death or serious bodily injury;" there is no requirement in the definition that the victim actually be in immediate danger of serious bodily injury.

Chapman, supra at 991 (quoting 18 Pa.C.S.A. ยง 2301). Because Appellant did not properly form the heading of his argument or cite to relevant authority, his ...


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