J-S87041-16

                                  2017 PA Super 103



COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DELROY R. TOOMER

                            Appellant                    No. 490 MDA 2016


             Appeal from the Judgment of Sentence March 1, 2016
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0001686-2015


BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*

OPINION BY LAZARUS, J.:                                  FILED APRIL 17, 2017

        Delroy R. Toomer appeals from the judgment of sentence, imposed in

the Court of Common Pleas of Luzerne County, after a jury convicted him of

carrying a firearm without a license1 and tampering with physical evidence.2

Upon careful review, we affirm.

        On April 1, 2015, Toomer was driving his Infiniti in Wilkes-Barre.

Toomer’s friend, Jason Rowe, was a passenger in a Nissan Altima driving

just in front of Toomer’s vehicle.         At some point, Toomer’s wife, Angelic,

realized she had left one of her firearms, for which she was licensed, in the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 6101(a)(1).
2
    18 Pa.C.S.A. § 4910(1).
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Altima.     Toomer called Rowe and asked him to pull over so they could

retrieve Angelic’s gun.       Toomer went to obtain the gun and, during the

exchange between Rowe and Toomer, the gun discharged, hitting Rowe in

his right side.3     Toomer grabbed the gun, returned to his vehicle, and

instructed Angelic to drive Rowe to the hospital in Rowe’s vehicle. Toomer

testified that he did not drive Rowe to the hospital himself because he “didn’t

want to drive. I ain’t got a license, and to speed off to get [Rowe] to the

hospital. I [didn’t] want to drive and get pulled over.” N.T. Trial, 1/11/16,

at 107.

        After Angelic drove off toward the hospital, Toomer realized that she

had left her purse, containing her firearms,4 in his car. Toomer, who was

not licensed to carry a firearm, decided to take the guns to his apartment.

Upon arrival there, Toomer placed Angelic’s purse on the counter and left.

Angelic subsequently called him indicating she needed her wallet, so Toomer

returned home and removed the guns from her purse, placed them on the

counter, and took the purse to Angelic at the hospital.

        Police were notified that a shooting victim had been taken to Wilkes-

Barre General Hospital and were dispatched to that location. Wilkes-Barre

Police Detective Charles Jensen interviewed Angelic Toomer, who gave him
____________________________________________


3
  Rowe ultimately died from his injuries.         Toomer was not charged in
conjunction with his death.
4
    Angelic testified that she had been carrying a second firearm in her purse.



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permission to search the couple’s apartment.        Detective Jensen and his

partner searched the residence and found the firearms; one was located on

the kitchen counter and the other was found on top of the refrigerator.

      Detective Jensen interviewed Toomer at police headquarters. At first,

Toomer told him that Angelic had been retrieving the firearm from Rowe

when it discharged.         However, Detective Jensen testified that when he

“confronted him that [his story] wasn’t adding up and it wasn’t consistent

with the other information we were receiving, he gave us what we believed

to be the truth and what the evidence corroborated.” N.T. Trial, 1/11/16, at

61. Toomer was subsequently charged with the above offenses.

      After the trial court denied an oral motion to dismiss the firearms

charge as a de minimis violation under 18 Pa.C.S.A. § 312, a jury found

Toomer guilty of both charges. On March 1, 2016, the trial court sentenced

Toomer to a term of 15 to 30 months’ imprisonment on the firearms

conviction, with a concurrent 12 months of probation for tampering.       This

timely appeal follows, in which Toomer presents the following issues for our

review:

      1.   Whether the trial court erred in not granting counsel’s
      [m]otion to [d]ismiss [c]arrying a [f]irearm without a [l]icense
      as a [d]e [m]inim[i]s infraction?

      2.    Whether the Commonwealth failed to present evidence
      sufficient to prove beyond a reasonable doubt that [Toomer] was
      guilty of one count of [t]ampering with [e]vidence pursuant to
      18 Pa.C.S.A. § [4910(1)]?

Brief of Appellant, at 1.



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     Toomer first asserts that the trial court erred in denying his motion to

dismiss the charge of carrying a firearm without a license as de minimis

pursuant to section 312.   We review a trial court’s refusal to dismiss an

infraction as de minimis for an abuse of discretion.     Commonwealth v.

Lutes, 793 A.2d 949, 963 (Pa. Super. 2002), citing Commonwealth v.

Przybyla, 722 A.2d 183 (Pa. Super. 1998).     “An abuse of discretion is more

than just an error in judgment and, on appeal, the trial court will not be

found to have abused its discretion unless the record discloses that the

judgment exercised was manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill-will.” Commonwealth v. Hess, 745 A.2d 29, 31 (Pa.

Super. 2000).

     Section 312 of the Crimes Code provides, in relevant part:

     § 312. De minimis infractions

     (a) General rule.--The court shall dismiss a prosecution if, having
     regard to the nature of the conduct charged to constitute an
     offense and the nature of the attendant circumstances, it finds
     that the conduct of the defendant:

        (1) was within a customary license or tolerance, neither
        expressly negatived by the person whose interest was
        infringed nor inconsistent with the purpose of the law
        defining the offense;

        (2) did not actually cause or threaten the harm or evil
        sought to be prevented by the law defining the offense or
        did so only to an extent too trivial to warrant the
        condemnation of conviction; or

        (3) presents such other extenuations that it cannot
        reasonably be regarded as envisaged by the General
        Assembly or other authority in forbidding the offense.



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18 Pa.C.S.A. § 312(a). An offense alleged to be de minimis in nature should

not be dismissed where either harm to the victim or society in fact occurs.

Id., citing Commonwealth v. Moses, 504 A.2d 330 (Pa. Super. 1986).

       Here, Toomer argues that his failure to obtain a license to carry the

firearm “was not inconsistent with the purpose of [section] 6106(a)(1); did

not threaten the harm sought to be prevented by the law defining the

offense; and cannot reasonably have been regarded as envisaged by the

General Assembly.” Brief of Appellant, at 6.

       The trial court found that:

       [g]iven the testimony of record, we find the nature and purpose
       of [Toomer’s] conduct, and the attendant circumstances
       surrounding his possession of the firearms in the vehicle,
       troubling. . . . Removing and/or concealing evidence subject to
       a shooting investigation is, in our judgment, injurious to society
       and a violation of statute.

Trial Court Opinion, 2/23/17, at 11.

       In order to determine whether the trial court committed an abuse of

discretion in refusing to dismiss the firearms charge as de minimis, we must

look to “the harm or evil sought to be prevented by the law defining the

offense.”5    18 Pa.C.S.A. § 312(a)(2).          Here, Toomer was convicted of

firearms not to be carried without a license, which is defined by section 6106

of the Uniform Firearms Act as follows: “any person who carries a firearm in
____________________________________________


5
  We note that, in his brief, Toomer makes no attempt to identify the
purpose of section 6106 or the harm intended to be prevented by the
legislature in its enactment.



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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.A. § 6106(a)(1).

       This Court has previously observed that “[t]he apparent purpose of the

[Uniform Firearms] Act is to regulate the possession and distribution of

firearms, which are highly dangerous and are frequently used in the

commission of crimes,” Commonwealth v. Corradino, 588 A.2d 936, 940

(Pa. Super. 1991), and to “prohibit certain persons from possessing a

firearm within this Commonwealth.” Commonwealth v. Baxter, 956 A.2d

465, 471 (Pa. Super. 2008).

       Based upon the foregoing, it is apparent that the mere possession of a

firearm by someone not licensed by the Commonwealth is, in and of itself,

the “evil” sought to be remedied by the General Assembly in enacting the

statute in question.      As such, the fact that no additional harm or injury 6

resulted from Toomer’s violation of the statute is of no moment, and the trial

court did not abuse its discretion in refusing to dismiss the charge as de

minimis.



____________________________________________


6
   Although Rowe was fatally injured during the course of events forming the
basis for the charges in this matter, the Commonwealth stipulated that
Rowe’s injury was not relevant to a determination of Toomer’s guilt on the
firearms charge.



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      Finally, Toomer asserts that the Commonwealth presented insufficient

evidence to convict him of tampering with evidence.

      When reviewing challenges to the sufficiency of the evidence, we
      evaluate the record in the light most favorable to the
      Commonwealth as the verdict winner, giving the prosecution the
      benefit of all reasonable inferences to be drawn from the
      evidence. Commonwealth v. Duncan, 932 A.2d 226, 231 (Pa.
      Super. 2007) (citation omitted). “Evidence will be deemed
      sufficient to support the verdict when it establishes each material
      element of the crime charged and the commission thereof by the
      accused,     beyond     a   reasonable    doubt.”    Id.   (quoting
      Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super.
      2005)[.] However, the Commonwealth need not establish guilt
      to a mathematical certainty, and it may sustain its burden by
      means of wholly circumstantial evidence. Id. Moreover, this
      Court may not substitute its judgment for that of the factfinder,
      and where the record contains support for the convictions, they
      may not be disturbed. Id. Lastly, we note that the finder of fact
      is free to believe some, all, or none of the evidence presented.
      Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa. Super.
      2006).

Commonwealth v. Yasipour, 957 A.2d 734, 745 (Pa. Super. 2008).

      Tampering with physical evidence is defined at section 4910 of the

Crimes Code, in relevant part, as follows:

      A person commits a misdemeanor of the second degree if,
      believing that an official proceeding or investigation is pending or
      about to be instituted, he:

         (1) alters, destroys, conceals or removes any record,
         document or thing with intent to impair its verity or
         availability in such proceeding or investigation[.]

18 Pa.C.S.A. § 4910(1).       To establish the offense of tampering with

evidence, the Commonwealth must prove three interrelated elements: (1)

the defendant knew that an official proceeding or investigation was pending


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(or about to be instituted); (2) the defendant altered, destroyed, concealed,

or removed an item; and (3) the defendant did so with the intent to impair

the verity or availability of the item to the proceeding or investigation.

Commonwealth v. Jones, 904 A.2d 24, 26 (Pa. Super. 2006).

      Toomer claims that the Commonwealth failed to prove that he was

aware an official investigation was underway when he returned the gun to

his home, or that he did so with the intention to impair an investigation. In

support of his claim, Toomer cites several cases, all of which are

distinguishable.

      Toomer first cites Commonwealth v. Delgado, 679 A.2d 223 (Pa.

1996), in which the defendant fled from police, who were about to arrest

him following a hand-to-hand drug purchase. As he ran, he threw away a

bag containing what was later determined to be cocaine. As a result of his

attempt to dispose of the drugs, he was charged with and convicted of

tampering with evidence.     On allowance of appeal, the Supreme Court

reversed, concluding that the act of discarding contraband in plain view of a

pursuing officer did not rise to a level of conduct that constitutes the

destruction or concealment of evidence as contemplated by the statute, and

was nothing more than abandonment of evidence.           Delgado is clearly

distinguishable from the instant matter, as Toomer did not discard the guns

in plain view of law enforcement.

      Toomer also relies on Commonwealth v. Gettemy, 591 A.2d 320

(Pa. Super. 1991). There, police were investigating the disappearance of a

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woman and a motorhome she owned with her husband. Gettemy had been

interviewed by police in connection with their investigation and denied any

knowledge as to the disappearance of either the woman or the vehicle.

Police subsequently interviewed two witnesses who had seen Gettemy in the

motorhome and, as a result, charged her with, inter alia, tampering with

evidence. The trial court granted Gettemy’s motion to quash the indictment,

finding that the Commonwealth failed to present a prima facie case.     This

Court affirmed, finding that the record established only that certain

witnesses reported that Gettemy was present in Virginia and Florida when

the motorhome was seen in those states, not that she removed the

motorhome with the intent to impair its availability.   Here, however, it is

undisputed that Toomer removed the weapons to his apartment.

     As to the element of intent, Toomer argues that he neither was aware

of a police investigation, nor intended to impair it by concealing evidence.

However, based upon the totality of the circumstances, a jury could have

reasonably inferred that Toomer knew the police would immediately begin

investigating Rowe’s shooting once he appeared at the hospital with a

gunshot wound. The jury could also have reasonably inferred that, knowing

a police investigation would ensue, Toomer decided to dispose of the

weapons in an attempt to conceal his involvement in Rowe’s shooting. Such

an inference is particularly reasonable in light of Detective Jensen’s

testimony that Toomer initially lied and told him that Angelic had been in

possession of the firearm when it discharged.

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     When viewed in the light most favorable to the Commonwealth as

verdict winner, Yasipour, supra, the evidence presented at trial was

sufficient to establish that Toomer believed an investigation was about to be

instituted and concealed evidence with the intent to impair its availability.

See 18 Pa.C.S.A. § 4910(1).       Accordingly, we affirm his judgment of

sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2017




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