from the Judgment of Sentence March 1, 2016 In the Court of
Common Pleas of Luzerne County Criminal Division at No(s):
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J. [*]
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 and tampering with physical
evidence.Upon careful review, we affirm.
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. 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.
Angelic drove off toward the hospital, Toomer realized that
she had left her purse, containing her firearms,
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.
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.
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.
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.
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 ...