J-A24011-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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]


____________________________________________


       1
        18 Pa.C.S. §§ 6106(a)(1), 6105(a)(31), and 35 P.S. § 780-
113(a)(31), respectively.
J-A24011-17


            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.



                                           -2-
J-A24011-17


            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.




____________________________________________


       5
           The medics’ first names do not appear in the certified record.




                                           -3-
J-A24011-17


               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.
____________________________________________


       6
           There is no dispute that “John Doe” was Thomas.



                                           -4-
J-A24011-17


     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:



                                    -5-
J-A24011-17


        [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


                                    -6-
J-A24011-17


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



____________________________________________


       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).



                                           -7-
