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Commonwealth v. Toomer

Superior Court of Pennsylvania

April 17, 2017

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
DELROY R. TOOMER Appellant

         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

          LAZARUS, J.

         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 license[1] 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 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 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.

          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 ...


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