# Commonwealth v. Scullin > Superior Court of Pennsylvania · April 3, 1992 · 414 Pa. Super. 442 URL: https://www.frixlaw.com/law-library/cases/9705277 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellant, v. Frank SCULLIN, Appellee - **Court:** Superior Court of Pennsylvania - **Decided:** April 3, 1992 - **Citations:** 414 Pa. Super. 442; 607 A.2d 750; 1992 Pa. Super. LEXIS 1147 - **Precedential status:** Published - **Opinion:** Dissent by McEWEN - **Judges:** Cavanaugh, McEwen, Olszewski - **Cited by:** 47 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9705277 ## How later opinions describe it (automated extraction) - 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 - concluding that “the tire iron used by appellee to strike the victim became a deadly weapon at the moment appellee threw it in the direction of the ultimate victim” - holding that the tire iron “became a deadly weapon at the moment [the defendant] threw it in the direction of the ultimate victim.” - stating that the sentencing court must begin its calculations from the correct starting point - finding that a tire iron became a deadly weapon when thrown at victim ## Opinion text *452 McEWEN, Judge, dissenting: Since the author of the majority opinion has provided so insightful an analysis and thoughtful an expression of view, I hasten to express at the outset that I agree (1) that a sentencing court must consider the deadly weapons enhancement in calculating the applicable ranges under the guidelines, and (2) that, whatever the guideline ranges of that calculation, the court may proceed to impose a sentence outside the guidelines, including a sentence of probation for involuntary manslaughter 1 . I am compelled, nonetheless, to this dissent because I am of a mind that, under the facts of this case, the tire iron, as it was used in this case, did not meet the definition of a “deadly weapon”, and that, therefore, the trial court properly concluded that the deadly weapon enhancement provision of the sentencing guidelines was inapplicable. This appeal focuses, of course, upon the section of the Sentencing Code known as the deadly weapon enhancement requirement which declares: When the court determines that the defendant possessed a deadly weapon, as defined in 18 Pa.C.S. § 2301 (relating to definitions), during the commission of the current offense, at least 12 months and up to 24 months shall be added to the guidelines sentence range which would otherwise have been applicable, (emphasis supplied). 204 Pa.Code § 303.4. Thus, the sentencing court is required to add a period of between twelve months and twenty-four months in its calculation of the three guideline ranges, whenever two conditions precedent coalesce, namely, the facts of the offense include (1) the possession by the defendant of (2) a deadly weapon. The distinguished Judge Lisa A. Richette did not here consider the deadly weapon enhancement in calculating the applicable ranges under the guidelines because, in her words: *453 [T]he deadly weapon enhancement does not, in this court’s experience, apply to a tire iron thrown by the victim and thrown back by the defendant who is not in clear possession of it. The very first phrase of the enhancement provision itself confers upon the trial court the prerogative of determining whether a device is a deadly weapon. Moreover, this court has established as clear and certain that the determination of whether a particular weapon is within the embrace of the statute can only be made by the trial court measuring the specificity of the statute against the actual facts of the occurrence and conduct of the party challenging the applicability of the statute. Commonwealth v. McKeithan, 350 Pa.Super. 160 , 504 A.2d 294 (1986). Since there is a sound basis for the ruling of the trial court, I am unwilling to intrude upon the statutorily conferred prerogative of the trial court by substituting our judgment upon the issue. An analysis of the issue summons to focus the statutory definition of the term deadly weapon: Any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death, or serious bodily injury, or any other device or instrumentality which, in the manner in which it is used or intended to be used, is calculated or likely to produce death or serious bodily injury. 18 Pa.C.S. § 2301. Clearly, firearms and knives, which, by virtue of their design and construction, may be used to kill, maim, or inflict serious bodily injury, are to be regarded as deadly per se. Other instrumentalities, which are not weapons by primary function because they are designed to serve some positive purpose, are not deadly per se, and only become a deadly weapon when wielded or used by its possessor for the purpose of causing death or inflicting bodily harm. See, e.g., Anno., Walking Cane as Deadly Weapon, 8 ALR 4th 842 (1981); Cummings v. State, 270 Ind. 251 , 384 N.E.2d 605 (1979) (stapler qualified as deadly weapon when used during robbery to bludgeon victim); *454 Evans v. State, 516 N.E.2d 86 (Ind.1987) (fan belt used to choke robbery victim constituted deadly weapon). Truly, a tire iron can be a deadly weapon, and when it is routinely carried by a driver under his seat, and not in the trunk, it is kept as a deadly weapon. And, of course, when a tire iron is wielded as a weapon by its possessor or used by its possessor to inflict blows, it becomes unquestionably a deadly weapon. Here, however, appellee did not grab the tire iron from beneath his vehicle seat, appellee did not wield the tire iron as a weapon, and appellee did not use it to strike blows. Moreover, appellee did not arm himself with the tire iron as he embarked upon a criminal mission. It is so implicit as to be explicit that the enhancement provision is directed at the actor who arms himself so that the device or instrumentality serves as complement to a formed intent to enter upon a criminal foray. Such an intent is not a necessary ingredient for guilt of unlawfully carrying a firearm. 18 Pa.C.S. § 6106. However, the intent to engage in other criminal activity is, by definition, a prerequisite to application of an enhancement statute since the enhancement provision refers to underlying criminal conduct which results in an initial sentence which the weapon provision is to enhance. Thus it is that I would refrain from reversing the ruling of the trial court that the deadly weapon enhancement statute was not applicable, and would instead affirm the judgment of sentence. . The sentencing court must, of course, provide a contemporaneous written statement of the reasons for the departure from the guidelines. 42 Pa.C.S. § 9721(b). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9705277. Public record. Not legal advice.