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Commonwealth v. Derr1/15/2004
1 Appellant Scott A. Derr appeals from his judgment of sentence entered on April 11, 2003, in the Cumberland County Court of Common Pleas. Following a bench trial, Appellant was convicted of carrying a firearm without a license, graded as a felony of the third degree; carrying a loaded weapon other than a firearm; driving under the influence of alcohol; and operation following suspension of registration. Appellant presents on appeal the issue of whether there was sufficient evidence to convict him on a felony charge of carrying a firearm without a license. Upon review, we affirm the judgment of sentence.
2 On May 16, 2002, the police received a phone call from Karen Derr, Appellant's mother, informing them that Appellant had recently driven away from her home while intoxicated. Officer Bingham, of the Camp Hill police department, was dispatched to the scene, and, shortly after arriving at Ms. Derr's home, he found Appellant's vehicle parked in an alleyway near his mother's home. When Officer Bingham approached Appellant's vehicle, he observed Appellant asleep in his vehicle. The keys were in the ignition, and Appellant was visibly intoxicated. Officer Bingham found a shotgun, a loaded Colt.25 automatic handgun, and a bottle of vodka lying next to Appellant on the passenger seat of the vehicle. Appellant was arrested and taken to the police station where he underwent a BAC screening. The results of the screening showed Appellant to have a BAC level of.325%.
3 Appellant was charged with and convicted of carrying a firearm without a license graded as a felony; carrying a loaded weapon other than a firearm; driving under the influence of alcohol; and operation following suspension of registration. He was acquitted of driving under suspension. On April 11, 2003, Appellant was sentenced to time served and ordered to pay fines and costs. Appellant timely appealed his judgment of sentence. On May 9, 2003, the trial court ordered Appellant to file a Pa.R.A.P. 1925(b) statement.
Appellant complied. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on June 8, 2003.
4 On appeal, Appellant presents the following question for our review:
Did the trial court err in determining that the evidence presented at trial was sufficient to convict Appellant on the felony charge of firearms carried without a license (18 Pa.C.S.A. Sec. 6106(a)(1)[)], vis-a-vis, the misdemeanor firearms offense (18 Pa.C.S.A. Sec. 6106(a)(2))?
Appellant's brief, at 4.
5 When considering a challenge to the sufficiency of the evidence, our standard of review is as follows:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder.
Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa. Super. 2003) ( quoting Commonwealth v. Gooding, 818 A.2d 546, 549 (Pa. Super. 2003) (citations omitted)).
6 Appellant's sole argument is that driving under the influence does not constitute a "criminal violation" for purposes of 18 Pa.C.S.A. § 6301, and, therefore, the record only supports a misdemeanor conviction for carrying a firearm without a license as opposed to a felony conviction for carrying a firearm without a license. We disagree.
7 Section 6301(a), 18 Pa.C.S.A. provides:
(1) Except as provided in paragraph (2), any person who carries a firearm in any
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