Commonwealth v. Patton

1

COMMONWEALTH OF PENNSYLVANIA v. ASIM D. ALI PATTON Appellant

No. 1166 MDA 2023

No. J-A11031-24

Superior Court of Pennsylvania

May 31, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered April 6, 2023 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0000414-2022

BEFORE: BOWES, J., STABILE, J., and MURRAY, J.

MEMORANDUM

MURRAY, J.

Asim D Ali Patton (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of persons not to possess firearms.^[1] We affirm the judgment of sentence without prejudice for Appellant to seek further relief in a timely filed Post Conviction Relief Act^[2] (PCRA) petition. See Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013).

The trial court recounted the underlying facts and procedural history:

[Appellant] was arrested on March 11, 2022[,] and charged with violating Section 6105(a)(1) of the Pennsylvania Crimes Code for being a prohibited person in possession of a firearm. The charge arose out of an incident that occurred on November 19, 2021[,] in the City of Williamsport, Lycoming County, Pennsylvania. On that date, [Appellant] and his girlfriend, Anika Monroe, went to the National Range and Armory shooting range on Washington Boulevard in Williamsport. Ms. Monroe had a pistol with her that she was licensed to carry, and both she and [Appellant] showed identification upon entering the shooting range.

[Appellant] claims that he entered the range with Ms. Monroe for the purpose of instructing her how to fire a pistol properly. [Appellant] further asserts that he did not use or attempt to use a firearm provided by the range, as his intention was not to fire a weapon himself. At trial, however, there was testimony from [Jeffrey Ranck,] the range master at the shooting range[,] that [Appellant] purchased 9mm ammunition for the pistol, which was a 9mm Taurus semi-automatic pistol. Although Ms. Monroe owned the pistol, video from the range that was viewed at trial established that [Appellant] handled the firearm, removed and inserted the pistol magazine, and loaded and fired the weapon multiple times.

On November 14, 2022, [Appellant] was tried before a jury …, at which time he was represented by the Lycoming County Public Defender. The Commonwealth proved that [Appellant] had two prior convictions that prohibit him from possessing a firearm[:] possession with intent to deliver a controlled substance[, see 35 P.S. § 780-113(a)(30),] and robbery, [see 18 Pa.C.S.A. § 3701(a)(1),] both of which occurred in 1997, when [Appellant] was eighteen years old. At trial, the only witness for [Appellant] was Anika Monroe, [Appellant] having declined to testify. …

….

At trial, the [c]ourt conducted a colloquy with [Appellant] concerning whether [Appellant] would testify. [Appellant] assured the [c]ourt that he, himself, made the decision not to testify, after being afforded adequate consultation with his attorney, and that he was not pressured or coerced or threatened to make his decision.

[On November 14, 2022, the jury convicted Appellant of the above-referenced offense.] On April 6, 2023, [Appellant] was sentenced to a term of incarceration of five to ten years, to be served in a state correctional institution. [Appellant] was permitted to remain out on bail pending filing of his post sentence motion.

Trial Court Opinion, 8/7/23, at 1-3 (footnotes omitted; emphasis in original).

On January 31, 2023, Peter Campana, Esquire, entered his appearance on behalf of Appellant. On February 7, 2023, the trial court granted the Lycoming County Public Defender's Office's request to withdraw its appearance. On April 11, 2023, Appellant filed a post-sentence motion. He argued the trial court should vacate his conviction, and dismiss the sole count in the criminal information as a de minimis infraction "for possessing a firearm momentarily[.]" Post-Sentence Motion (PSM), 4/11/23, at 4. Appellant further alleged his trial counsel was ineffective for advising him not to testify on his own behalf, and for not objecting to the trial court's jury instruction for persons not to possess firearms.^[3] Id. at 8.

On May 23, 2023, the trial court held a hearing on Appellant's post-sentence motion. At the commencement of the proceeding, the trial court colloquied Appellant concerning his decision to pursue ineffectiveness claims on direct appeal, thereby waiving his right to file a subsequent PCRA petition. N.T., 5/23/23, at 4-6. The trial court denied Appellant's post-sentence motion on August 7, 2023. Appellant timely appealed. Both the trial court and Appellant complied with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

1. Whether the trial court abused its discretion in denying Appellant's motion to dismiss the charges pursuant to [18 Pa.C.S.A. § 312]?

2. Whether the trial court erred in denying Appellant's motion for a new trial on the basis that trial counsel's advice to him not to testify was unreasonable and[,] therefore, Appellant's waiver of his right to testify was not knowing, intelligent and voluntary?

3. Whether the [trial] court erred in finding that trial counsel was not ineffective in failing to object to the court's instruction on the charge of prohibited person possessing a firearm[,] in that the court failed to instruct the jury that there was a mens rea requirement with regard to Appellant's knowledge that he was prohibited from possessing a firearm as a result of previous criminal convictions?

Appellant's Brief at 5 (capitalization modified; quotation marks omitted).

Appellant first challenges the trial court's decision to deny his motion to dismiss his charge as a de minimis infraction.^[4] Id. at 9. Appellant argues,

the prosecution … for possessing a firearm momentarily in a public firing range in order to instruct his significant other as to the proper means of firing a gun is inconsistent with the purpose of [18 Pa.C.S.A.] § 6105(a)(1); did not threaten the harm sought by the law defining the offense; and cannot reasonably [have] been regarded as envisaged by the General Assembly.

Id. at 11. Appellant maintains "no harm to either an alleged victim or society occurred as a result of [his] conduct." Id.

"Our standard in reviewing this claim is whether the trial court committed an abuse of discretion." Deible, 300 A.3d at 1033.

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. Toomer, 159 A.3d 956, 959 (Pa. Super. 2017) (citation omitted). "It is the trial court's responsibility to determine de minimis infractions." Deible, 300 A.3d at 1033 (citation omitted).

Concerning de minimis infractions, the Crimes Code provides:

(a) General 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 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.

18 Pa.C.S.A. § 312(a).

"The purpose of Section 312 is 'to remove petty infractions from the reach of the criminal law.'" In re M.M., 855 A.2d 112, 114 (Pa. Super. 2004) (quoting Commonwealth v. Przybyla, 722 A.2d 183, 184 (Pa. Super. 1998)). "An offense alleged to be de minimis in nature should not be dismissed where either harm to the victim or society in fact occurs." Toomer, 159 A.3d at 960 (citation omitted).

Here, the trial court addressed Appellant's first claim in its August 7, 2023, opinion and order denying Appellant's post-sentence motion:

[T]he [c]ourt finds that [Appellant's] conduct was not "within a customary license or tolerance" of the statutory prohibition. To the contrary, [Appellant] directly and knowingly purchased 9mm ammunition for a firearm, took possession of the firearm, and then handled, loaded and fired the weapon multiple times at an indoor gun range. The purpose of the statutory section prohibiting persons convicted of certain crimes from possessing a firearm is "to protect the public from convicted criminals who possess firearms." [Commonwealth v. Gillespie, 821 A.2d 1221, 1224 (Pa. 2003).] In order to further this purpose convicted criminals must be prohibited from possessing firearms. This purpose is explicitly frustrated when convicted criminals possess firearms. [Appellant's] possession of a firearm "actually cause[d] or threaten[ed] the harm or evil sought to be prevented by the law defining the offense" in a matter that was not "too trivial to warrant the condemnation of conviction."

….

[R]egardless of how [Appellant] characterizes his time of possession of the firearm, he did have time to manipulate, load and fire the pistol. The [c]ourt finds that in the present matter[,] the duration of [Appellant's] possession or control of a firearm is not nearly as important as what [Appellant] did with the firearm while he possessed it. The [c]ourt finds that manipulating, loading and firing a weapon certainly is not a de minimis use of that weapon.

The purpose of Section 6105 would be frustrated were thi

...