COMMONWEALTH of Pennsylvania, Appellee v. Delroy R. TOOMER, Appellant
No. 490 MDA 2016
Superior Court of Pennsylvania.
Filed April 17, 2017
Submitted November 7, 2016
As noted above, the United States District Court for the Western District of Pennsylvania has issued a filing injunction against Appellant. See Ramsden II, 2012 WL 6592597 at *3. The Court of Common Plеas of Allegheny County has similarly issued a filing injunction against Appellant. See Coulter v. Ignelzi, GD-15-002176 (C.C.P. Allegheny Dec. 15, 2015).
Both state and federal trial courts have issued filing injunctions against Appellant because of her continued vexatious litigation. Nonetheless, she continues to file frivolous lawsuits and appeal to this Court after trial сourts properly dismiss her claims. We conclude that it is necessary to take the extraordinary measure of issuing a filing injunction at the appellate level. The vast amount of judicial resources that this Court expends affirming dismissals of Appellant‘s frivolous lawsuits is beyond that required by both the United Statеs and Pennsylvania constitutions’ due process clauses. Cf. In re McDonald, 489 U.S. 180, 184, 109 S.Ct. 993, 103 L.Ed.2d 158 (1989) (per curiam) (“Every paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution‘s limited resources. A part of the Court‘s responsibility is to see that these resources are allocated in a way that promotes the interests of justice.“). Accordingly, we bar Appellant from taking any further pro se appeals in non-criminal matters to this Court without prior leave of this Court.
In sum, we conclude that the trial court did not abuse its discretion in denying Appellant‘s recusal motion. We hold that
Order affirmed. Case remanded. Jurisdiction relinquished.
Demetrius W. Fannick, Public Defender, Wilkes-Barre, for appellant.
Amanda M. Young, Public Defender, Wilkes-Barre, for appellant.
Steven M. Greenwald, Public Defender, Wilkes-Barre, for аppellant.
Stefanie J. Salavantis, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Gregory S. Skibitsky, Jr., Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.
BEFORE: LAZARUS, J., SOLANO, J., and PLATT, J.*
OPINION BY LAZARUS, J.:
Delroy R. Toomer appeals from the judgment of sentence, imposed in the Court of Common Pleas of Luzerne Cоunty, after a jury convicted him of carrying a firearm without a license1 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.
Police were notified that a shooting victim had been taken to Wilkes-Barre General Hospital and were dispаtched 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 orаl motion to dismiss the firearms charge as a de minimis violation under
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 exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will.” Commonwealth v. Hess, 745 A.2d 29, 31 (Pa. Super. 2000).
§ 312. De minimis infractions
(a) Genеral rule.—The court shall 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 nеgatived 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.
Here, Toomer argues that his failure to obtain a licеnse to carry the firearm “was not inconsistent with the purpose of [section] 6106(a)(1); did not threaten the harm sought to be prevented by the law defining the offense; and cannot reasonably have been regarded as envisaged by the General Assembly.” Brief of Appellant, at 6.5
The trial court found that:
[g]iven the testimony of record, we find the nature and purpose of [Toomer‘s] conduct, and the attendant circumstances surrounding his possession of the firearms in the vehicle, troubling..... Removing and/or concealing evidence subject to a shooting investigation is, in our judgment, injurious to society and a violation of statute.
Trial Court Opinion, 2/23/17, at 11.
In order to determine whether the trial court committed an abuse of discretion in refusing to dismiss the firearms charge as de minimis, we must look to “the harm or evil sought to be prevented by the law defining the offense.”
This Court has previously observed that “[t]he 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,” Commonwealth v. Corradino, 403 Pa.Super. 251, 588 A.2d 936, 940 (1991), and to “prohibit certain persons from possessing a firearm within this Commonwealth.” Commonwealth v. Baxter, 956 A.2d 465, 471 (Pa. Super. 2008).
Based upon the foregoing, it is apparent 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 statutе in question. As such, the fact that no additional harm or injury6 resulted from Toomer‘s violation of the statute is of no moment, and the trial court did not abuse its discretion in refusing to dismiss the charge as de minimis.
Finally, Toomer asserts that the Commonwealth presented insufficient evidence to convict him of tampering with evidence.
When reviewing challenges to the sufficiency of the evidence, we evaluate the
Tampering with physical evidence is defined at
A person commits a misdemeanor of the second degree if, believing that an official proceeding or investigation is pending or about to be instituted, he:
(1) alters, destroys, conceals or removes any record, document or thing with intеnt to impair its verity or availability in such proceeding or investigation[.]
Toomer claims that the Commonwealth failed to prove that he was aware an official investigation was underway when he returned the gun to his home, or that he did so with the intention to impair an investigation. In support of his claim, Toomer cites several cases, all of which are distinguishable.
Toomer first cites Commonwealth v. Delgado, 544 Pa. 591, 679 A.2d 223 (1996), in which the defendant fled from police, who were about to arrest him following a hand-to-hand drug purсhase. As he ran, he threw away a bag containing what was later determined to be cocaine. As a result of his attempt to dispose of the drugs, he was charged with and convicted of tampering with evidence. On allowance of appeal, the Supreme Court reversed, concluding that the act of discarding contraband in plain view of a pursuing officer did not rise to a level of conduct that constitutes the destruction or concealment of evidence as contemplated by the statute, and was nothing more than abandonment of evidence. Delgado is clearly distinguishаble from the instant matter, as Toomer did not discard the guns in plain view of law enforcement.
Toomer also relies on Commonwealth v. Gettemy, 404 Pa.Super. 504, 591 A.2d 320 (1991). There, police were investigating the disappearance of a woman and a motorhome she owned with her husband. Gettemy had been interviewed by police in connection with their investigatiоn and denied any knowledge as to the disappearance of either the woman or the vehicle. Police subsequently interviewed two witnesses who had seen Gettemy in the motor
As to the element of intent, Toomer argues that he neither was aware of a police investigation, nor intended to impair it by concealing evidenсe. However, based upon the totality of the circumstances, a jury could have reasonably inferred that Toomer knew the police would immediately begin investigating Rowe‘s shooting once he appeared at the hospital with a gunshot wound. The jury could also have reasonаbly inferred that, knowing a police investigation would ensue, Toomer decided to dispose of the weapons in an attempt to conceal his involvement in Rowe‘s shooting. Such an inference is particularly reasonable in light of Detective Jensen‘s testimony that Toomer initially lied and told him that Angelic had been in possession of the firearm when it discharged.
When viewed in the light most favorable to the Commonwealth as verdict winner, Commonwealth v. Yasipour, 957 A.2d 734, 745 (Pa. Super. 2008), the evidence presented at trial was sufficient to establish that Toomer believed an investigation was about to be instituted and concealеd evidence with the intent to impair its availability. See
Judgment of sentence affirmed.
COMMONWEALTH of Pennsylvania, Appellee v. David MIKLOS, Appellant
No. 978 WDA 2016
Superior Court of Pennsylvania.
Filed April 17, 2017
Submitted January 3, 2017