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Commonwealth v. Mendozajr

Superior Court of Pennsylvania

July 23, 2013

COMMONWEALTH OF PENNSYLVANIA Appellant
v.
MANUEL MENDOZAJR Appellee

Appeal from the Judgment of Sentence August 9, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004316-2011

BEFORE: GANTMAN, J., LAZARUS, J., and OTT, J.

OPINION

GANTMAN, J.

Appellant, the Commonwealth of Pennsylvania, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following the open guilty plea of Appellee, Manuel Mendozajr, to the offenses of firearms not to be carried without a license and carrying firearms on public streets or public property in Philadelphia.[1] The Commonwealth asks us to determine whether the trial court erred in downgrading the Section 6106 offense of firearms not to be carried without a license from a third-degree felony to a first-degree misdemeanor. Under the circumstances of this case, we hold the trial court improperly graded the Section 6106 offense as a first-degree misdemeanor because Appellee's contemporaneous Section 6108 conviction independently precluded the court from downgrading the Section 6106 offense from a third-degree felony to a first-degree misdemeanor. Accordingly, we vacate the judgment of sentence and remand for resentencing.

The certified record sets forth the factual basis of the plea in this case as follows:

[COMMONWEALTH]: Your honor, March 24th, 2011, at approximately 11:24 p.m. police in the 25th District were [in] the area of 7th and Erie Streets in Philadelphia and heard seven to eight gun shots in the area south. Other officers, Officer McKnight and White were also in the area.
Officers responded to the area at 8th and Venango and observed a complainant, Michael Bivens, with a gunshot wound to his right shin. Those officers gave out radio information that there was a found shooting.
Officers White and McKnight were in the area, received that information over police radio and observed a grey '98 Ford Crown Victoria traveling southbound coming from the direction where the shooting had occurred. They observed that the vehicle had bullet holes in the rear window and a bullet hole in the driver's side fender. [Appellee] was the driver of that vehicle that was pulled over. In the course of the car stop officers observed in the area next to the driver's seat, Officer White observed [Appellee] reaching in that area and that he was able to observe a firearm which was subsequently recovered. It was a silver/black Ruger .45 caliber handgun with an obliterated serial number. It was empty with a slide lock open. That was placed on property receipt 2968523 and later submitted to Firearm's Identification Unit.
Officer McKnight recovered from the passenger side floor a black and silver nine millimeter firearm with a double/POED that was jammed. That was placed on a property receipt and also submitted to the Firearm's Identification Unit.
The crime scene at 8th and Venango was processed by Philadelphia Police Detectives and multiple .45 caliber and nine millimeter caliber fire cartridge casings were recovered from that scene and submitted [to] the Firearm's Identification Unit.
Your Honor, I have what I'll mark as C-1 a ballistic's report which indicates that the .45 caliber casings that were recovered at the scene of the shooting, were a match to the gun that was recovered in the car [Appellee] was driving[, ] to the right of [Appellee]. [Appellee] subsequently gave–well, at the scene of the arrest, indicated to Police Officer White that it was in fact his firearm and subsequently [Appellee] gave two statements to the police. The first I'll mark as C-2 which is a statement to Detective Newberg that was taken on 3/25/2011, at 3:20 a.m. which in sum indicates that [Appellee] knew his friend Michael Bivens the complainant in the shooting had been shot, but [Appellee] basically denied any sort of involvement in having a firearm. And a subsequent statement that [was] given to Detective Bartle, which I'll mark as C-3, that was taken on [3/26/2011], at approximately 2:00 a.m. [Appellee] indicates that he did in fact have a firearm and that he had his 45 gun on him and someone was shooting at his friend and [Appellee] shot and he discharged his firearm in that direction.
So I would move those into evidence for the purposes of the plea and that's a summary of evidence. [Appellee's] pleading guilty to the possession of the 45.
[COURT]: Okay. [Appellee] was not otherwise eligible?
[COMMONWEALTH]: I'm sorry. I would mark as C-4 the certificate of non-licensure which indicates [Appellee] did not have a valid license to ...

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