Deadly Weapon Enhancement In Cases Where Defendantdid Not Have a Gun During Robbery
Is a Deadly Weapon Enhancement Applicable in a Case Where Defendant Neither has a Gun Nor is it in His Immediate Physical Control During a Robbery ?
In Commonwealth v. Greene, 702 A.2d 547, 552 (Pa.Super. 1997), three co-conspirators were found guilty of armed robbery.
Only one of the co-conspirators entered the jewelry store they were attempting to rob.
Further, of the three men, only this individual wielded a weapon in the commission of the offense.
Accordingly, when the defendant received a twelve-month enhancement due to his co-conspirator's use of a weapon during the robbery, he challenged the application of the weapons enhancement.
In declining to apply the enhancement, the Court stated:
"Application of the proper authority compels us to conclude that the deadly weapon enhancement is inapplicable in this case because the gun was neither on appellant's person nor within his immediate physical control at any time during the perpetration of the robbery." Id. at 553.