Com. v. Thomas, E. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ERIC LAMAR THOMAS
Appellant No. 1176 WDA 2016
Appeal from the Judgment of Sentence July 14, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001963-2016
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 14, 2017
Eric Lamar Thomas appeals from the July 14, 2016 judgment of
sentence entered in the Allegheny County Court of Common Pleas following
his convictions for firearms not to be carried without a license, persons not
to possess a firearm, and possession of marijuana.1 We affirm.
The factual history of this matter, as detailed in the Affidavit of
Probable Cause and as stipulated to by the parties at trial, is as follows:
On 2/7/16 at 1400 hours, Officers were dispatched to
Liberty Avenue at Stanwix Street for a welfare check for
two men who appeared to be passed out in a purple car
with the engine revving, unknown life status. S[ergent]
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1
18 Pa.C.S. §§ 6106(a)(1), 6105(a)(31), and 35 P.S. § 780-
113(a)(31), respectively.
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Digiacomo[2] (3280) was the first to arrive on scene as he
called out at that location along with firemen and medics.
Sgt. Digiacomo updated the call when he called out on the
radio that the vehicle was located. Just after locating the
vehicle, Sgt. Digiacomo called out for units to step it up to
that location.
As I, Officer M[andy] Koo, arrived along with Officer A.
Koo,[3] we found Sgt. Digiacomo on the passenger side of a
purple colored Dodge Intrepid with his firearm drawn on
the passenger of the vehicle and he repeatedly ordered the
male not to move. Sgt. Digiacomo asked for one of us to
come to the passenger side and he ordered me, Officer
M[andy] Koo, to recover a firearm whose hand grip was
visibly seen sticking out of the right pocket of the hooded
sweatshirt worn by the black male passenger. I reached
for the hand grip of the gun and recovered it from the
passenger’s pocket. The firearm was a black and green
Walther .40 caliber pistol.
At this time Sgt. Digiacomo removed the black male
passenger from the vehicle and handcuffed him. Officer
Koo remained at the driver side of the vehicle until we had
the passenger in handcuffs. Also in plain view was a clear
knotted baggie containing marijuana which I recovered
from the door sill guard (plastic kick plate) just to the right
of where the passenger was sitting. The driver of the
vehicle, later identified as Eugene Satterwhite, was then
ordered from the car and was compliant when handcuffed
and detained.
The black male passenger of the vehicle was
uncooperative and argumentative and would not offer any
identifying information about himself. Officer Mammerelli,
Officer Winters, Officer Remmy, and Officer Osz[4] all
responded to the scene as back up. I handed the firearm
that was recovered from the passenger to Officer
____________________________________________
2
Sergeant Digiacomo’s first name does not appear in the certified
record.
3
Officer A. Koo’s first name does not appear in the certified record.
4
The officers’ first names do not appear in the certified record.
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Mammerelli and asked him to clear the weapon to make it
safe. Officer Mammerelli removed a magazine from the
firearm containing twelve .40 caliber rounds and there was
no round found in the chamber of the firearm. Officer
Mammerelli ran the firearm information (Walther P99 .40
caliber pistol serial #FAE0197) through index and it came
back as No Record Found. Officer Mammerelli asked the
black male passenger if he had a permit to carry a firearm
and the male said no. Officer Mammerelli was also given
the marijuana found in the vehide and he took it, along
with the gun to Zone 2 Station and secured it in the
evidence locker. Officer Mammerelli also recovered two
cell phones and a digital scale from the front passenger
seat of the vehicle which was brought to Zone 2 Station
and logged into 30 day hold.
Once the scene was safe Sgt. Digiacomo was able to
explain what occurred prior to my arrival. Sgt. Digiacomo
said that he was flagged down by a tow truck driver who
pointed toward the incident vehicle (purple Dodge
Intrepid) and upon his approach he observed a black male
driver and a black male passenger who were non-
responsive. Sgt. Digiacomo said that the driver woke up,
however, the passenger of the vehicle still remained non-
responsive. There were firemen on scene and they were
going to reach into the window to apply a sternum rub to
the passenger at which time Sgt. Digiacomo said that he
was going to open the door so they could better reach the
passenger. When Sgt. Digiacomo opened the door he
readily observed the firearm hand grip sticking out of the
right pocket of the passenger’s hoodie and the marijuana
was seen in plain view on the door sill guard just next to
the passenger. Medic District Chief Gilchrist, A., along
with Medics Berg, D. and Guchert, G. (medic unit 14)[5]
were on scene to witness the removal of the passenger
from the vehicle.
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5
The medics’ first names do not appear in the certified record.
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The black male passenger, John Doe,[6] immediately
started making accusations that he was injured by the
Police even though the medics were on scene to witness
our encounter with him. Medic Berg spoke with Doe and
he was cleared on scene since he had no injuries and Berg
knew that the accusations made by Doe were false as he
was there to witness the encounter.
Sgt. Digiacomo escorted Doe to my patrol car (unit
3224) and Doe was recorded as he was placed in the
vehicle and seatbelted in. Doe continued to be be[l]ligerent
and uncooperative and would not give any identifying
information on himself. I transported Doe to the ACJ
where the guards were alerted to Doe’s be[l]ligerent
behavior Upon my arrival at the ACJ followed by Officer
Remmy and Osz as backup, Doe attempted to kick the
back window out of the patrol vehicle. Corrections Officers
witnessed his behavior and the[n] put Doe into the
restraint chair as soon as he was removed from my patrol
vehicle.
The driver of the vehicle, Eugene Satterwhite, was ran
for want or warrants with negative results. Due to the
incident vehicle being parked and Satterwhite showing that
his driver’s license was under DUI suspension, the incident
vehicle was towed by McCann and Chester. Satterwhite
was released from the scene.
Aff. of Probable Cause at 2.
On July 14, 2016, following a non-jury trial, the trial court convicted
Thomas of the above charges. Thomas was sentenced to 3 years’ probation
for the conviction for firearms not to be carried without a license. The trial
court imposed no further penalty for Thomas’s remaining convictions.
Thomas did not a file post-sentence motion. On August 10, 2016, Thomas
filed a timely notice of appeal.
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6
There is no dispute that “John Doe” was Thomas.
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Thomas raises the following issue on appeal: “Whether Mr. Thomas’s
conviction for Firearms Not to be Carried Without a License must be
reversed, and his judgment of sentence in this regard must be vacated,
when the Commonwealth failed to prove, beyond a reasonable doubt, that
the gun was carried concealed on or about his person?” Thomas’s Br. at 4.
We apply the following standard when reviewing a sufficiency of the
evidence claim:
[W]hether viewing all the evidence admitted at trial in the
light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (some
alterations in original) (quoting Commonwealth v. Harden, 103 A.3d 107,
111 (Pa.Super. 2014)).
In relevant part, section 6106(a)(1) of the Crimes Code provides that:
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[A]ny person who carries a firearm in any vehicle or any
person who carries a firearm concealed on or about his
person, except in his place of abode or fixed place of
business, without a valid and lawfully issued license under
this chapter commits a felony of the third degree.
18 Pa.C.S. § 6106(a)(1).
The trial court made the following findings:
THE COURT: Okay. Mr. Thomas, I find that between the
affidavit for probable cause and your admission, that you
were in fact carrying a gun at some point either concealed
and/or in a vehicle.
...
[DEFENSE COUNSEL]: He was not licensed. The reason
why we were asserting his innocence to [the count of
carrying without a license], if you would like to hear some
argument, is it was not transported in the vehicle. He was
sitting in the vehicle, was incapable -- or at least was not
driving or moving.
THE COURT: [The statute] doesn’t say -- it just says in a
vehicle.
He also said he had it in a holster which I, according to
his description, would consider to be a concealed weapon
on his person.
[DEFENSE COUNSEL]: Well --
THE COURT: So he’s guilty twice on that count.
N.T., 7/14/16, at 8-9.
Viewing all the evidence admitted at trial in the light most favorable to
the Commonwealth as verdict-winner, we conclude that there was sufficient
evidence to support Thomas’s conviction for carrying a firearm in a vehicle
without a license pursuant to section 6106(a)(1). See Commonwealth v.
Festa, 40 A.2d 112, 116 (Pa.Super. 1944) (holding that to support
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conviction under 18 P.S. § 4628, a predecessor statute to section 6106, the
“Commonwealth need not prove more than the presence of the firearm in
the car while accused was inside”).7
Judgment of sentence affirmed.8
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
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7
At trial, Thomas’s counsel stated his belief that a violation of the first
part of section 6106(a)(1) – i.e., carrying a firearm in a vehicle without a
license – requires the vehicle to be moving. N.T., 7/14/16, at 9-10. In his
statement of errors complained of on appeal pursuant to Pennsylvania Rule
of Appellate Procedure 1925(b), Thomas also challenged his conviction on
this basis. However, because Thomas neither included this issue in his
statement of questions involved nor developed it in the argument section of
his brief, see infra note 3, we conclude that he has waived this claim. See
In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017).
8
In their briefs on appeal, both parties focus on whether the gun was
adequately “concealed on or about [Thomas’s] person” within the meaning
of section 6106(a)(1). Because Thomas’s conviction is supportable on other
grounds, we need not address this issue. Cf. Commonwealth v. Butler,
150 A.2d 172, 173 (Pa.Super. 1959) (concluding that evidence was sufficient
to support conviction of carrying concealed firearm without a license under
predecessor to section 6106(a)(1) where gun was partly visible from jacket
pocket of defendant).
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