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MERE POSSESSION OF FIREARM BY PERSON NOT LICENSED TO DO SO IS THE “EVIL” SOUGHT TO BE REMEDIED BY THAT STATUTE

The PA Superior Court has recently decided the case of Commonwealth v. Delroy Toomer, No. 490 MDA 2016 (April 17, 2017), holding that the trial court did not commit error when it refused to dismiss Toomer’s charge of Firearms Not to be Carried Without a License as a de minims infraction.

Toomer and his wife were driving behind a friend in their vehicle when Toomer’s wife realized she left her firearm in the friend’s vehicle. Toomer called the friend and asked him to pull over so they could retrieve the firearm. When Toomer and the friend exchanged the firearm, it discharged, hitting the friend. Toomer grabbed the gun, returned to his vehicle, and instructed his wife to drive the friend to the hospital in the friend’s vehicle Rowe’s vehicle.

Toomer, who was not licensed to carry a firearm, decided to take the guns to his apartment. When he arrived, he placed his wife’s purse on the counter and left. When she subsequently called him indicating she needed her wallet, he returned home and removed the guns from her purse, placed them on the counter, and took the purse to her at the hospital.

Police investigating the shooting were ultimately given permission to search the couple’s apartment and, upon doing so, found the firearms; one was located on the kitchen counter and the other was found on top of the refrigerator.

When interviewed by police, Toomer first told them that his wife had been retrieving the firearm from the friend when it discharged. However, when confronted with certain facts regarding that story that did not add up, Toomer then told police what they believed to be the truth and what the evidence corroborated.

Toomer was charged with carrying a firearm without a license and tampering with physical evidence and, after the trial court denied an oral motion to dismiss the firearms charge as a de minimis violation, a jury found Toomer guilty of both charges. He was sentenced to 15 to 30 months’ imprisonment on the firearms conviction, with a concurrent 12 months of probation for tampering.

Toomer filed an appeal, arguing in his primary issue 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 the applicable statute defining de minimis infractions.

De minims infractions are generally considered to be too trivial or minor to merit consideration. The Superior Court noted that Toomer’s argument was based on the PA statute related to de minimis infractions. That statute requires a court to dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it finds that the conduct of the defendant: (1) was within a customary license or tolerance, neither expressly negatived by the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense; (2) did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the condemnation of conviction; or (3) presents such other extenuations that it cannot reasonably be regarded as envisaged by the General Assembly or other authority in forbidding the offense.

The appellate court also noted that an offense alleged to be de minimis in nature should not be dismissed where either harm to the victim or society in fact occurs. Therefore, in order to determine whether the trial court committed an abuse of discretion in refusing to dismiss the firearms charge as de minimis, they court observed that it must look to “the harm or evil sought to be prevented by the law defining the offense.”

Applying the law to the case at hand, the Court stated that Toomer was convicted of firearms not to be carried without a license, an offense found in the Uniform Firearms Act defined as “any 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.”

The Superior Court then looked to the harm or evil sought to be prevented by this statute, stating that it had previously observed that the apparent purpose of the Uniform Firearms Act is to regulate the possession and distribution of firearms, which are highly dangerous and are frequently used in the commission of crimes, and to prohibit certain persons from possessing a firearm within this Commonwealth.

Accordingly, the Superior Court concluded that the mere possession of a firearm by someone not licensed by the Commonwealth is, in and of itself, the “evil” sought to be remedied by the General Assembly in enacting the statute in question.

CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/J-S87041-16o%20-%2010306583916958640.pdf?cb=1

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