from the Judgment of Sentence October 7, 2016 In the Court of
Common Pleas of Berks County Criminal Division at No(s):
BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.
Tavarez appeals from the October 7, 2016 judgment of sentence
entered in the Berks County Court of Common Pleas following
his entry of a guilty plea to one count each of aggravated
assault, burglary, robbery, impersonating a public servant,
and conspiracy. We vacate the judgment of sentence and
remand for resentencing.
guilty plea proceeding on October 7, 2016, Tavarez admitted
to the following facts:
[O]n or about November 17th, 2015, shortly after 1:00 in the
morning at 49 Mill Road in Oley Township, Berks County,
Pennsylvania, you along with your accomplices and
co-conspirators Edward Martinez, Brandon Smith, and Erick
Green went to that residence; the plan even before you
arrived at the residence was to rob the people there; you
believed that there were illegal drugs and money there to
be gained; all four of you agreed to do that. When you got
there, as was your intention all along, you and Edward
Martinez entered the residence, there were people present.
This was a residence. It was not open to the public at that
time. You had no license or privilege to be there.
Once inside, you were yelling, ["]Police.
Freeze[."] in [an] attempt to compel the homeowners to
do what you wanted them to do, thereby impersonating a public
servant. Although you attempted to commit a robbery and you
did so with firearms, nothing was actually taken.
When you confronted the homeowner, Eric Wegman, in the
upstairs bedroom, he pulled his own handgun and fired,
hitting both you and Mr. Martinez. Eric Wegman was also shot
in the leg at that point.
N.T., 10/7/16, at 5-6.
trial court summarized the ensuing procedural history of this
matter as follows:
[Tavarez] was sentenced to a term of incarceration of
10½ to 30 years in a state correctional facility. To
reach this term of incarceration, the Court sentenced
[Tavarez] consecutively on three of the charges. The first
period of incarceration, lasting from 66 to 132 months, was
received for the aggravated assault, robbery and the
accompanying conspiracy charges. The second period of
incarceration, lasting 48 to 96 months, was received for the
burglary charge. The third period of incarceration, lasting
12 to 24 months, was received for the impersonating a public
servant charge. Though the sentence in aggregate is
considerable, [Tavarez] was sentenced on each charge within
the standard range.
Following sentencing, by and through counsel, [Tavarez] filed
a post-sentence motion to reconsider and modify sentence, on
October 17, 2016. We denied this motion that day. On November
14, 2016, [Tavarez], now represented by the public defender,
filed a notice of appeal. Due to a service error by the
Court, Counsel did not receive notice requiring a
[Pennsylvania Rule of Appellate Procedure 1925(b)] statement
until, at the latest, November 28, 2016. Once Counsel
received notice, [Tavarez] filed a timely [Rule 1925(b)]
statement on December 12, 2016.
1925(a) Opinion, 1/30/17, at 1 (unpaginated) ("1925(a)
appeal, Tavarez raises three issues:
1. Whether the trial court erred and abused its discretion by
failing to utilize the correct offense gravity score for the
crime of impersonating a public servant.
2. Whether the trial court erred and abused its discretion by
applying the deadly weapon (used) enhancement absent evidence
that [Tavarez] used a deadly weapon as defined by the
Sentencing Code in the commission of the burglary.
3. Whether the trial court erred and abused its discretion by
failing to consider [Tavarez's] rehabilitative needs when
imposing the sentence of ...