J-S07005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.A.                        IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
APPEAL OF: J.A.
                                                        No. 1343 MDA 2014


               Appeal from the Order Entered on July 8, 2014
               In the Court of Common Pleas of Berks County
                   Juvenile Division at No(s): 277-J-2014


BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED FEBRUARY 25, 2015

      Appellant, J.A., a minor, appeals from the dispositional order entered

on July 8, 2014, immediately following the juvenile court’s adjudicating him

delinquent of three counts of possession of a controlled substance, one count

of carrying a firearm without a license, and one count of possession of a

firearm by a minor.   Appellant presents multiple arguments that the court

erred when it denied his suppression motion.      He also claims that he was

adjudicated delinquent for carrying a firearm without a license without

sufficient evidence. After careful review, we affirm.

      The juvenile court summarized the facts that led to Appellant’s

adjudication of delinquency as follows:

      1. On May 9, 2014, Officer Voorhies of the Reading Police
      Department, while in uniform, was on routine patrol as a
      passenger in an unmarked police vehicle. Officer Voorhies had
      eight (8) years’ experience as a law enforcement officer. He
      served five (5) years with the Berks County Sheriff’s Office,
      where he was a member of the U.S. Marshall’s Drug Task Force,
      and subsequently served with the Reading Police Department for
      three (3) years.
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     2. At approximately 12:50 a.m., Officer Voorhies and his partner
     stopped a tan Nissan motor vehicle in the 800 block of Franklin
     Street, Reading, because the Nissan had malfunctioning rear
     brake lights. This neighborhood was known for having a high
     volume of drug transactions.

     3. After a third officer arrived on the scene, the police
     approached the vehicle and observed three (3) persons inside:
     the driver, [Appellant], who sat in the front passenger seat, and
     a passenger sitting behind the driver.

     4. Officer Voorhies approached [Appellant], shined his flashlight
     into the car and observed that [Appellant] was wearing a
     backpack while seat belted and was taking deep breaths,
     shaking his left leg, and that the artery on the right side of
     [Appellant]’s neck was visibly pulsing.

     5. Based on these observations, Officer Voorhies concluded that
     [Appellant] was nervous.

     6. Officer Voorhies also saw [Appellant] rub the front right
     pocket of his cargo pants multiple times.

     7. Officer Voorhies characterized [Appellant]’s actions as
     indicating a “hot pocket,” one which contains an illegal or
     dangerous item. The suspect rubs the pocket to check if the
     item is there.

     8. Officer Voorhies observed that [Appellant] became more
     nervous after the back seat passenger was arrested pursuant to
     outstanding warrants.

     9. After making these observations, Officer Voorhies asked
     [Appellant] if he had anything on him and [Appellant] said “no.”

     10. Officer Voorhies asked if [Appellant] minded if the Officer
     checked him and again [Appellant] responded “no.”

     11. Finally, Officer Voorhies asked [Appellant] if he could pat him
     down and [Appellant] said “fine.”

     12. [Appellant] then stepped out of the car still wearing the
     backpack and Officer Voorhies patted him down. The Officer felt
     a bulge in the front right pocket of [Appellant]’s cargo pants.
     Based on his experience, Officer Voorhies immediately
     recognized the bulge as packaged narcotics. Officer Voorhies



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      used his fingertips in conducting the pat down and did not
      manipulate the bulge he felt in [Appellant]’s pocket.

      13. The Officer removed the package from [Appellant]’s pocket
      and observed that it contained two (2) bundles of heroin.

      14. Officer Voorhies seized the heroin and arrested [Appellant],
      placed him in handcuffs and gave him his Miranda warnings.

      15. The Officer then conducted a further search of [Appellant]
      and discovered two (2) bags of marijuana and one (1) [Ziploc]
      baggie containing crack cocaine and seized these items.

      16. Officer Voorhies uncuffed [Appellant], removed the backpack
      and handcuffed him again.

      17. Officer Voorhies questioned [Appellant] about the backpack
      but [Appellant] did not answer.

      18. Officer Voorhies unzipped the backpack and found an
      unloaded revolver and a tee shirt inside.

      19. The Officer seized the firearm.

      20. Officer Voorhies did not know [Appellant] was under 18 at
      the time he arrested him.

Juvenile Court Suppression “Decision and Order,” 7/1/14, at 1-4 ¶¶ 1-20

(hereinafter, “JCO”).

      On May 20, 2014, Appellant filed an omnibus pre-adjudication motion

to suppress the seized contraband and his statement(s) to police.        The

juvenile court held a suppression hearing on June 10, 2014.      On July 1,

2014, the court denied the motion.          At Appellant’s adjudication of

delinquency hearing on July 8, 2014, the notes of testimony from the June

10, 2014 hearing were incorporated by stipulation, and no further testimony

was heard by the juvenile court.        Based upon that record, the court

adjudicated Appellant delinquent of three counts of possession of a



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controlled substance, 35 Pa.C.S. § 780-113(a)(16); one count of carrying a

firearm without a license, 18 Pa.C.S. § 6106(a)(1); and one count of

possession of a firearm by a minor, 18 Pa.C.S. § 6110.1.       The court then

immediately entered a dispositional order imposing court costs and fines and

committing Appellant to Summit Academy for an indeterminate duration.

        Appellant filed a timely notice of appeal from the dispositional order.

He also filed a timely Pa.R.A.P. 1925(b) statement at the court’s direction.

However, the juvenile court has not filed a Rule 1925(a) opinion in this

matter.1

        Appellant now presents the following questions for our review:

           1. Whether the [juvenile] court erred in denying Appellant’s
              motion to suppress evidence:

                 a. Where the police officers lacked reasonable suspicion
                    to subject Appellant to an investigative detention?

                 b. Where the police officer lacked reasonable suspicion
                    to subject Appellant to a Terry[2] search?

                 c. Where [] Appellant did not give voluntary consent to
                    search and there were no other circumstances to
                    justify a warrantless search?

____________________________________________


1
  Neither Appellant nor the Commonwealth has requested that we remand
for the filing of a Rule 1925(a) opinion. Furthermore, the juvenile court had
previously filed a detailed opinion in support of its denying of Appellant’s
suppression motion on July 1, 2014. Consequently, we conclude that the
record before us is sufficient to permit review of Appellant’s suppression
claims. As we discuss in more detail infra, the record also permits review of
Appellant’s sufficiency-of-the-evidence claim.
2
    Terry v. Ohio, 392 U.S. 1 (1968).



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                  d. Where the police officer did not satisfy the elements
                     of the plain feel doctrine to justify seizing heroin
                     from Appellant’s pocket?

          2. Whether the evidence was insufficient to support the guilty
             verdict of Firearms Not to be Carried Without a License,
             where the Commonwealth failed to establish beyond a
             reasonable doubt that the Appellant did not possess a
             license for the firearm[?]

Appellant’s Brief at 4.

      We review Appellant’s suppression-related claims under the following

standard of review:
      An appellate court may consider only the Commonwealth's
      evidence and so much of the evidence for the defense as
      remains uncontradicted when read in the context of the record
      as a whole. Where the record supports the factual findings of
      the suppression court, the appellate court is bound by those
      facts and may reverse only if the legal conclusions drawn
      therefrom are in error. It is also well settled that the appellate
      court is not bound by the suppression court's conclusions of law.

In   re   V.C.,     66    A.3d   341,   350-51   (Pa.   Super.   2013)   (quoting

Commonwealth v. Knox, 50 A.3d at 746 (Pa. Super. 2012)).

      The first suppression-related claim before us is whether the police had

reasonable suspicion to temporarily detain Appellant.        Appellant does not

dispute the legality of the traffic stop that precipitated the subsequent

events that involved him.        Appellant’s Brief at 11.    However, Appellant

claims that he was subject to an investigative detention, i.e., a Terry stop,

after the completion of the traffic stop.

      A warrantless seizure is presumptively unreasonable under the
      Fourth Amendment, subject to a few specifically established,
      well-delineated exceptions. Horton v. California, 496 U.S.
      128, 133 n. 4, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990) (citing
      Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19

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     L.Ed.2d 576 (1967)). One exception allows police to briefly
     detain individuals for an investigation, maintain the status quo,
     and if appropriate, conduct a frisk for weapons when there is
     reasonable suspicion that criminal activity is afoot. See Terry,
     supra.

Commonwealth v. Chase, 960 A.2d 108, 113 (Pa. 2008).

        It is well settled that to justify their decision to stop and
        briefly detain appellant, the police need not establish their
        suspicions to a level of certainty, a preponderance, or even
        a fair probability. The suspect's expectation of privacy is
        not sufficiently infringed by the minimal intrusion
        attendant to an investigatory stop as to require any more
        than a reasonable suspicion that criminal activity was
        afoot. Though not tantamount to a “hunch,” the requisite
        quantum of suspicion necessary to conduct an
        investigatory stop is a level “obviously less demanding
        than for probable cause.”

     Commonwealth v. Epps, 415 Pa. Super. 231, 233, 608 A.2d
     1095, 1096 (1992) (citations omitted).

            Determining whether a reasonable suspicion exists
     requires an assessment of the totality of the circumstances.
     These circumstances are viewed through the eyes of a trained
     officer, not an ordinary citizen. Interest of B.C., 453 Pa.Super.
     294, 301, 683 A.2d 919, 923 (1996). As this court noted in
     Epps, supra, some of the factors to be considered include
     “various objective observations, information from police reports,
     if such are available, and consideration of the modes or patterns
     of operation of certain kinds of lawbreakers. From these data, a
     trained officer draws inferences and makes deductions—
     inferences and deductions that might well elude an untrained
     person.” Epps[,] at 234, 608 A.2d at 1096 (emphasis omitted)
     (quoting U.S. v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 695,
     66 L.Ed.2d 621, 629 (1981)).

Commonwealth v. Fink, 700 A.2d 447, 449 (Pa. Super. 1997)

     In this case, the juvenile court concluded that Appellant was subject to

an investigative detention supported by reasonable suspicion.      The court

reasoned as follows:


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      The juvenile was a passenger in a motor vehicle stopped at night
      in a neighborhood known for having a high volume of drug
      transactions.    Upon his initial encounter [with] [Appellant],
      Officer Voorhies observed that he was wearing a backpack while
      seat[-]belted.    He also observed [Appellant] taking deep
      breaths, shaking his left leg, and that the artery in the right side
      of [Appellant]’s neck was visibly pulsing, leading him to conclude
      that [Appellant] was nervous. [Appellant] became more nervous
      after the other passenger was arrested. These facts gave rise to
      a reasonable suspicion on Officer Voorhies[’] part that criminal
      activity may be afoot and thus the Officer properly subjected
      [Appellant] to an investigatory stop.

JCO, at 6 ¶ 6.

      The facts cited by the juvenile court, alone, do not constitute

reasonable suspicion to conduct a Terry stop.      The court fails to cite any

authority for the proposition that nervous behavior in a high crime area

constitutes reasonable suspicion that criminal activity is afoot. Indeed, such

evidence appears to amount to little more than a “hunch,” which falls just

short of the “quantum of suspicion necessary to conduct an investigatory

stop.” Fink, supra (quoting Epps).

      Nevertheless, there were facts of record that supported the juvenile

court’s conclusion that Officer Voorhies possessed reasonable suspicion to

justify a Terry stop.     Specifically, the juvenile court’s findings of fact

included Officer Voorhies’ observation that, during the traffic stop, Appellant

rubbed “the front right pocket of his cargo pants multiple times” and that

“Officer Voorhies characterized [Appellant]’s actions as indicating a ‘hot

pocket,’ one which contains an illegal or dangerous item. The suspect rubs

the pocket to check if the item is there.” JCO, at 2 ¶¶ 6-7. The totality of



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these circumstances (Appellant’s “hot pocket,” his nervousness, and his

presence in a high crime area in the middle of the night) collectively

established reasonable suspicion of criminal activity. As such, we conclude

that the juvenile court did not abuse its discretion in reaching its conclusion

that the temporary detention of Appellant was legally justified.

      Next, Appellant contends that Officer Voorhies lacked reasonable

suspicion to subject Appellant to a Terry search. Appellant also argues that

he did not give voluntary consent for Officer Voorhies to conduct the pat-

down. Both of these issues are resolved by our conclusion that the record

adequately supports the juvenile court’s determination that Appellant

consented to the search.

      “Terry and its progeny set as the standard for allowing a frisk, the

presence of a ‘reasonable articulable suspicion’ that criminal activity is afoot

and that the suspect may be armed and dangerous.” Commonwealth v.

Shelly, 703 A.2d 499, 503 (Pa. Super. 1997) (emphasis added).             Thus,

although we have already determined that Officer Voorhies possessed a

reasonable suspicion that criminal activity was afoot, that suspicion did not

justify a Terry pat-down unless it was also accompanied by a reasonable

suspicion that Appellant was armed. Here, however, the juvenile court did

not determine that Officer Voorhies reasonably suspected that Appellant was

armed. Instead, the court concluded that Appellant consented to the pat-

down.




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      A search warrant is not required if the search has been with
      voluntary consent. In order for the consent to be valid, it must
      be unequivocal, specific, and voluntary. Moreover, the consent
      must be given free from coercion, duress, or deception. The
      question of whether consent was voluntarily given depends upon
      the circumstances and a consideration of: the setting in which
      the consent was obtained; what was said and done by the
      parties present; and the age, intelligence, and intellectual
      background of the person consenting.

Commonwealth v. Barnette, 760 A.2d 1166, 1170 (Pa. Super. 2000)

(internal citations omitted).

      The juvenile court considered the following facts in concluding that

Appellant consented to the pat-down:

      Here, [Appellant]’s detention was short and took place not at a
      remote location but at a public intersection in the city of
      Reading. There is no evidence of police abuse, physical contact,
      or [the] use of physical restraints. Officer Voorhies did not touch
      [Appellant] until he conducted the pat-down search, nor did he
      handcuff [Appellant] until after he discovered the heroin in
      [Appellant]’s pocket. The officer did not display aggressive
      behavior or use language or tone that w[as] not commensurate
      with the circumstances.          Here, the interaction between
      [Appellant] and the Officer was conversational, not loud, and the
      Officer did not use any threatening or intimidating language
      when speaking with [Appellant]. Finally, Officer Voorhies asked
      [Appellant] only a few questions, and the questioning was not
      repetitive or prolonged. Although the Officer did not advise
      [Appellant] that he was free to leave or of his right to refuse
      consent, Officer Voorhies was not legally required to give such
      information to [Appellant].         Given the totality of the
      circumstances, this Court concludes that [Appellant]’s consent to
      being searched was voluntary.

JCO, at 7-8 ¶ 10.

      Appellant contends that the Commonwealth failed to meet their burden

to demonstrate that his consent was voluntary. We disagree. The juvenile

court’s analysis is supported by the record, and we agree with the court that

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the totality of these circumstances demonstrate that Appellant voluntarily

consented to be searched. Moreover, Appellant fails to cite any case law or

other authority addressing similar or analogous facts that tends to

undermine this conclusion. Accordingly, we conclude that Appellant’s second

and third suppression-related claims lack merit because Appellant consented

to be searched by Officer Voorhies.

      Next, Appellant asserts that Officer Voorhies did not satisfy “the

elements of the plain feel doctrine” and, therefore, the officer was not

justified in seizing the heroin from Appellant’s pocket. Appellant’s Brief at

16.   In this regard, Appellant contends that Officer Voorhies “failed to

articulate in detail what it was that led him to conclude that he was feeling

packaged narcotics.” Id. at 17.

      This claim is meritless.    First, it has already been determined that

Appellant voluntarily consented to the search of his person for contraband.

That Officer Voorhies conducted his initial search of Appellant in a manner

ostensibly consistent with Terry does not convince us otherwise. It is true

that Officer Voorhies asked Appellant, “You don’t mind if I pat you down?”

and that Appellant answered, “No, that’s fine.”         N.T., 6/10/14, at 9.

However, immediately prior to that, the following interaction occurred,

according to Officer Voorhies: “At that point in time, I said: [‘]Hey, do you

have anything on you that you’re not supposed to have?[’] And he told me,

[‘]no.[’] I said: [‘]Do you mind if I check.[’] He said, [‘]no.[’]” Id. Thus, it




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does not appear that Appellant’s consent to be searched was limited to his

consent to be patted down for weapons.

      Second, even if Officer Voorhies had not obtained consent for a

broader search beyond a Terry pat-down, his seizure of Appellant’s heroin

was nevertheless justified under the plain-feel doctrine. “[W]hen conducting

a valid Terry stop and frisk, [a police officer] may seize items that are not

weapons if, when patting down a suspect's outer clothing, the officer feels

an object whose contour or mass makes its identity immediately apparent as

contraband.”   Commonwealth v. Stevenson, 744 A.2d 1261, 1269 (Pa.

2000) (unnecessary capitalization and footnotes omitted).      Here, Officer

Voorhies testified that he immediately knew the bulge in Appellant’s pocket

was contraband and, specifically, that it was packaged heroin. He supported

this belief with testimony that, due to his experience in law enforcement, he

knew how heroin was typically packaged and that what he felt during the

pat-down of Appellant was consistent with that experience.       Specifically,

Officer Voorhies testified as follows:

      Q.    And when you patted that pocket, the cargo pocket, you
      said you felt something?

      A.    Correct.

      Q.    [W]hat was that, again?

      A.    Packaged narcotics.

      Q.    How do you know that?

      A.     Through my training and experience I had the opportunity
      to deal with narcotics on a regular basis. I have handled them
      all the way down from a single bag to all the way up to multiple

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       pounds and in between, so I’m very familiar with how it is
       packaged.

       Q.     [W]hen you felt his pocket, how soon did you know it was-

       A.     I knew right away what it was.

       Q.     You indicated you manipulated the pocket?

       A.     I felt it one time, that was it, and I knew what it was.

       Q.     [W]hat did it feel like?

       A.    I specifically felt the heroin [and] I knew what it was.
       There’s smaller blocks. When they package it, they are referred
       to as bundles. Each bundle comes with ten bags inside, then
       rubber banded to secure the bags.

N.T., 6/10/14, at 11-12.

       We conclude that Officer Voorhies’ testimony sufficiency demonstrated

that the “contour or mass” of the object he felt in Appellant’s pocket made

“its identity immediately apparent as contraband.” Stevenson, 744 A.2d at

1269. Appellant’s claim that Officer Voorhies did not articulate adequately

why the object was immediately apparent as contraband is belied by the

record. Accordingly, Appellant’s claim lacks merit.3
____________________________________________


3
   We note that Appellant has waived any claim that Officer Voorhies
exceeded the bounds of the plain feel doctrine during the pat-down by
squeezing or manipulating the object that turned out to be heroin. See
Commonwealth v. Graham, 721 A.2d 1075, 1082 (Pa. 1998) (“Once the
initial pat-down dispels the officer's suspicion that the suspect is armed, any
further poking, prodding, squeezing, or other manipulation of any objects
discovered during that pat-down is outside the scope of the search
authorized under Terry.”). Appellant did not raise such a claim in his Rule
1925(b) statement, nor does he raise the matter in his brief. “Any issues
not raised in a 1925(b) statement will be deemed waived.”
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). Nevertheless, as
we discussed above, any such claim would be meritless in this case because
(Footnote Continued Next Page)


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      Finally, Appellant claims that his adjudication of delinquency under 18

Pa.C.S. § 6106 is infirm because the Commonwealth did not present

sufficient evidence that he was not licensed to carry a concealed firearm.

The Commonwealth effectively concedes that it did not offer specific

evidence     to   establish       Appellant’s       non-licensure.    However,    the

Commonwealth argues that circumstantial evidence existed to justify the

court’s adjudicating Appellant delinquent of the offense, because 1) it is

undisputed that Appellant was a minor at the time of the offense, and 2)

statutory law conclusively establishes that a minor is not eligible to obtain a

license to carry a firearm. Unfortunately, the juvenile court’s failure to file a

Rule 1925(a) opinion in this case leaves this Court without an explanation as

to how the court concluded that this element was met.                Nevertheless, we

agree with the Commonwealth that, because it would be impossible for

Appellant to have obtained a valid license to carry a concealed firearm due

to his minor status, Appellant’s sufficiency claim lacks merit.

      Our standard of review of sufficiency claims is well-settled:

            A claim challenging the sufficiency of the evidence is a
      question of law. 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. Where the evidence offered to
      support the verdict is in contradiction to the physical facts, in
      contravention to human experience and the laws of nature, then
                       _______________________
(Footnote Continued)

Appellant’s consent to be searched was not limited to a Terry frisk/pat-
down.



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      the evidence is insufficient as a matter of law. When reviewing a
      sufficiency claim[,] the court is required to view the evidence in
      the light most favorable to the verdict winner giving the
      prosecution the benefit of all reasonable inferences to be drawn
      from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      To establish a violation of Section 6106, “[t]he Commonwealth must

prove each of the factors listed in the definition: (a) that the weapon was a

firearm…; (b) that the firearm was unlicensed…; and (c) that where the

firearm was concealed on or about the person, it must be outside his home

or place of business.” Commonwealth v. Lopez, 565 A.2d 437, 439 (Pa.

1989).   Here, Appellant does not dispute that elements (a) and (c) were

proven in this case. Indeed, the testimony of Officer Voorhies was sufficient

to demonstrate these elements.     However, there is no testimony or other

evidence of record that directly established that Appellant was unlicensed to

carry a concealed firearm.

      Licenses to carry concealed firearms in Pennsylvania are governed by

18 Pa.C.S. § 6109. Such licenses are only available to “[a]n individual who

is 21 years of age or older….” 18 Pa.C.S. § 6109(b).      Consequently, “[a]

person under the age of twenty-one years is absolutely disqualified from

obtaining a license under Section 6109….” In re R.B.G., 932 A.2d 166, 171

(Pa. Super. 2007) (emphasis in original).    Moreover, “[t]he juvenile court

has jurisdiction over children charged with delinquent acts.” In Interest

of Ryan, 419 A.2d 1224, 1225 (Pa. Super. 1980) (emphasis added). The


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Juvenile Act defines “[c]hild” as an individual under the age of 18 years, or

an individual under the age of 21 who was adjudicated delinquent, or

committed a delinquent act, before reaching the age of 18 years. See 42

Pa.C.S. § 6302 (definition of “Child”). Thus, to be subject to the jurisdiction

of the juvenile court, Appellant must have been under the age of 18 at the

time he was arrested by Officer Voorhies. Additionally, Appellant’s status as

a defendant in juvenile court implies, without qualification, that Appellant is

under the age of 21.

        Thus, it is not merely unlikely, or even extremely unlikely, that

Appellant possessed a valid license to carry a concealed firearm when he

was arrested. It is an absolute impossibility that he could have possessed a

valid license to carry a concealed firearm at that time. Accordingly, we are

constrained to agree with the Commonwealth that there was sufficient

evidence of record to establish that Appellant was not licensed to carry a

concealed firearm when he was arrested in this case because, by the very

nature of Appellant’s status as a defendant in juvenile court, he was

ineligible to possess a license to carry a concealed firearm under Section

6109.

        Order of disposition affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/25/2015




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