J-A17013-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CHAD PATTERSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1773 EDA 2022

Appeal from the Judgment of Sentence Entered February 25, 2022

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0000534-2021

BEFORE: KING, J., SULLIVAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 29, 2023

Chad Patterson (Patterson) appeals from the judgment of sentence 

imposed in the Court of Common Pleas of Philadelphia County (trial court) 

after his open guilty plea to possession of firearms prohibited1 and related 

charges.2 He challenges the trial court’s sentence for his violation of 18 

Pa.C.S. § 6105, arguing that the trial court “double-counted” his prior robbery 

conviction in both his prior record score and as a material element of the 

offense in violation of Section 303.8(g)(3) of the sentencing guidelines where 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 6105 (Persons not to possess, use, manufacture, control, sell 

or transfer firearms).

2 18 Pa.C.S. §§ 6106 (carrying a firearm without a license) and 6108 (carrying 

a firearm in public in Philadelphia), respectively.
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his prior conviction affected the grading of his current Section 6105 conviction. 

We affirm.

I.

The trial court aptly set forth the pertinent background facts of this case 

as follows:

On November 10, 2020, Philadelphia Police initiated a 

vehicle stop after observing a black Dodge Charger with expired 

registration traveling in the area of 5400 Old York Road in the City 

of Philadelphia. Upon stopping the vehicle, police requested that 

all three vehicle occupants provide identification. At that time, 

the police discovered that the front seat passenger had active 

warrants and ordered all occupants to step out of the vehicle. 

Upon ordering [Patterson] out of the vehicle, police officers 

observed in plain view a black firearm in the front pocket of 

[Patterson]’s hoodie. Police recovered the .380 caliber, black 

Walter handgun which was loaded with eight live rounds.

(Trial Court Opinion, 11/22/22, at 1-2) (record citations omitted).

Patterson is prohibited from possessing firearms due to a 2018 

conviction for first degree felony robbery. He was arrested on November 10, 

2020, and charged with first degree felony possession of a firearm prohibited, 

third degree felony carrying a firearm without a license, and misdemeanor 

carrying a firearm on a public street in Philadelphia. On August 18, 2021, he 

entered an open guilty plea to the three charges and the court ordered the 

preparation of a presentence investigation report (PSI). The presentence 

investigator calculated Patterson’s prior record score as a five due to the prior 

robbery conviction.
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At the February 25, 2022 sentencing hearing, defense counsel argued 

that Patterson’s prior record score was one, not five, because his 2018 robbery 

conviction could not be both a material element of his Section 6105 violation

and the basis for enhancing his prior record score. (See N.T. Sentencing, 

2/25/22, at 9-11). The court rejected counsel’s argument and concluded that 

Patterson’s prior conviction could be used in the calculation of the prior record 

score for sentencing purposes. (See id. at 12-13).

The parties agreed that the offense gravity score for the most serious 

charge was eleven. (See id. at 13). After argument and Patterson’s 

allocution, the court imposed a mitigated sentence of four to eight years for 

the Section 6105 charge based on the prior record score of five and offense 

gravity score of eleven, which was one year below the sentencing guideline's 

recommendation of seventy-two to ninety months, plus or minus up to twelve 

months (shorthanded as 72-90 ± 12). See 204 Pa. Code § 303.16(a). It 

imposed three years’ probation for carrying a firearm without a license and no 

further penalty for carrying a firearm in public in Philadelphia. (See N.T. 

Sentencing, at 38-39).

Patterson filed a post-sentence motion raising the same sentencing 

issue, which was denied by operation of law. He filed a timely notice of appeal 

and court-ordered statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b).
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Patterson raises one question for our review: “Did the lower court err 

in counting [his] 2018 robbery conviction as both a material element of his 

instant conviction under 18 Pa.C.S. § 6105 and as part of his prior record 

score calculation?” (Patterson’s Brief, at 3).

II.

A.

Patterson argues that the inclusion of his 2018 robbery conviction in his 

prior record score calculation is prohibited by Section 303(g)(3) of the

Sentencing Code because it double counts his prior conviction since it is a 

material element of his Section 6105 conviction and increases the grading of 

the violation by elevating his conduct of possessing a firearm from being legal 

to being a felony.

Patterson’s issue raises a discretionary aspect of sentence claim, which 

requires that he demonstrate that a substantial question regarding the 

appropriateness of his sentence exists.

3

 See Commonwealth v. Spenny, 

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3 Because a discretionary aspect of sentence claim must be considered a 

petition for permission to appeal, it also requires that the appellant: (1) 

preserve the issue by raising it in the trial court, (2) file a timely notice of 

appeal, and (3) set forth a statement of the reasons relied upon for allowance 

of the appeal pursuant to Rule 2119(f). See Commonwealth v.

Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014), appeal denied, 104 A.3d

1 (Pa. 2014); Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super.

2013), appeal denied, 86 A.3d 231 (Pa. 2014). Patterson has met all of these

requirements.
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128 A.3d 234, 241 (Pa. Super. 2015);

4 42 Pa.C.S. § 9781(b). “A claim that 

the sentencing court misapplied the sentencing guidelines in double counting 

a prior conviction in its calculation of the prior record score presents a 

substantial question.” Commonwealth v. Keiper, 887 A.2d 317, 319 (Pa. 

Super. 2005) (citation omitted). Therefore, we will review the merits of his 

claim.

Our standard of review of Patterson’s sentencing challenge is wellsettled:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. 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.

Id. (citation omitted).

B.

Patterson maintains that the trial court erred in “double counting” his 

robbery conviction by including it in both his prior record score and as a 

material element for a violation of Section 6105.

Section 6105 provides, in pertinent part:

(a) Offense defined.--

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4 Patterson agrees that legal precedent establishes that his claim challenges 

the discretionary aspects of sentence. He then suggests that it could also be 

a legality of sentence issue. We are not persuaded by this suggestion.
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(1) A person who has been convicted of an offense 

enumerated in subsection (b), within or without this 

Commonwealth, regardless of the length of sentence or whose 

conduct meets the criteria in subsection (c) shall not possess, use, 

control, sell, transfer or manufacture or obtain a license to 

possess, use, control, sell, transfer or manufacture a firearm in 

this Commonwealth.

* * *

(a.1) Penalty.—

(i) A person convicted of a felony enumerated under 

subsection (b) or a felony under The Controlled Substance, Drug, 

Device and Cosmetic Act, or any equivalent Federal statute or 

equivalent statute of any other state, who violates subsection (a) 

commits a felony of the first degree if:

* * *

(B) at the time of the commission of a violation of subsection (a), 

the person was in physical possession or control of a firearm, 

whether visible, concealed about the person or within the person’s 

reach.

18 Pa.C.S. § 615(a)(1), (a.1)(i)(B).

Section 303(g)(3) of the sentencing guidelines directs that “[t]he 

following types of offenses, charges and convictions shall not be scored in the 

Prior Record Score: ... Any prior conviction which contributed to an increase in 

the grade of a subsequent conviction[.]” 204 Pa. Code § 303.8(g)(3).

Like the trial court, we find Keiper to be dispositive.

In Keiper, 887 A.2d 317, this Court addressed the identical arguments 

Patterson presents now, i.e., “the trial court’s use of [a prior] conviction in 

calculating the prior record score amounted to double counting” and the trial 

court erred in interpreting Section 303.8(g)(2) of the sentencing guidelines to 
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find the prior conviction did not increase the grading of the current Section 

6105 violation. Keiper, 887 A.2d at 319, 321. The Court concluded that 

committing one of the enumerated offenses is not an element of Section 

6105, but instead it is a precondition to charging an individual with a Section 

6105 violation. Therefore, reasoned Keiper, because a prior conviction is a 

prerequisite and not an element of Section 6105, including it in a prior record 

score is not “double counting” it.5 See id. at 321.

Moreover, even if Patterson’s prior conviction was a material element of 

a Section 6105 violation, the trial court was not precluded from including it in 

his prior record score because, as explained below, it did not affect the grading 

of the current offense.

C.

Patterson argues that his sentence violated Section 303(g)(3) of the 

sentencing guidelines because his robbery conviction changed the grading of 

his Section 6105 conviction since it elevated his conduct of possessing a 

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5 Patterson argues that Commonwealth v. Jamison, 98 A.3d 1254 (Pa. 

2014) implicitly overruled Keiper’s holding when it stated that a prior 

enumerated conviction is an element of the offense of possession of a firearm 

prohibited pursuant to Section 6105. We disagree. The Pennsylvania 

Supreme Court did not address sentencing in its decision or categorize the 

prior offense as an element of Section 6105 for sentencing purposes and, 

therefore, as other panels of this Court have held, Jamison is not relevant to 

this sentencing issue. See, e.g., Commonwealth v. Fretz, 281 A.3d 1064, 

at *12 (Pa. Super. filed June 13, 2022); Commonwealth v. McSorley, 2019 

WL 3306744, unpublished memorandum, at *2 (Pa. Super. filed July 23, 

2019).
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firearm from being legal to being a felony. (See Patterson’s Brief, at 15). 

Again, we turn to Keiper, which observed that owning a gun is legal and only 

becomes illegal after a person commits an enumerated offense, but that this 

has nothing to do with the grading of a Section 6105 violation. In reaching 

its decision on this issue, it relied on the language of the Sentencing Guidelines 

Implementation Manual at 144 (5th ed.1997).

Keiper observed that the Sentencing Commission explained its 

intention in promulgating Section 303(g)(3) as follows:

Exclusion of prior convictions that are used to elevate the 

statutory grading of an offense reflects the Commission’s general 

policy against the “double counting” of factors against the 

defendant. For a few offenses, such as retail theft and DUI, 

certain prior convictions may increase the grade of a subsequent 

offense. Because both the Offense Gravity Score and the Prior 

Record Score reflect to some degree the grade of offenses, and 

an increase in the grade of a current or previous offense will 

generally increase the sentence recommendation, the offenses 

which contribute to an increase in the grade of a subsequent 

offense should not be counted again.

Keiper, 887 A.2d at 321 (quoting Sentencing Guidelines Implementation 

Manual at 144 (5th ed. 1997)).

Based on the foregoing, the Keiper Court reasoned:

The rationale for section 303.8(g)([3])[

6] indicates that no 

factor, including prior convictions, should be counted twice when 

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6 Keiper notes that at the relevant time, the pertinent subsection was 

303(g)(2). See Keiper, 887 A.2d at 321. However, the language of that 

subsection was materially the same as the subsection now under review. See

204 Pa. Code § 303.8(g)(2) (“[a]ny prior conviction which contributed to an 

(Footnote Continued Next Page)
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determining a prior record score. However, a plain reading of the 

language of section 303.8(g)([3]) demonstrates that this section 

prevents the inflation of a prior record score in cases where 

“the statutory definitions of the crimes provide for the 

grading of the crimes (i.e., misdemeanor of the first or 

second degree, or felony of the first, second, or third 

degree) based on whether prior offenses have been 

committed.” Commonwealth v. Johnson, 758 A.2d 1214,

1219 (Pa. Super. 2000), appeal denied, 775 A.2d 803 (Pa. 2001).

Clearly, in these types of circumstances, a defendant’s prior 

conviction would be double counting and would place a defendant 

in an unfair situation. Here, unlike the offenses listed by the 

Sentencing Commission, the prior burglary conviction does not 

change the grading of the present offense. ... No increase of 

gradation of the offense for any prior convictions is apparent. 

As stated above, the prior burglary conviction is merely a 

precondition to a violation of section 6105. Therefore, the trial 

court only counted the prior burglary conviction once.

Keiper, 887 A.2d at 321 (internal citation formatting provided; emphasis 

added); see also Johnson, 758 A.2d at 1219 (rejecting defendant’s 

argument that his prior conviction for rape changed the grading of his present 

offense for failing to register because, but for the rape conviction, the current 

offense would not have occurred because statutory definition of current 

offense did not contain sub-categories of grading based on prior offense).

We agree with the trial court that there is no language in Section 6105 

that grades an offense based on a prior conviction. See 18 Pa.C.S. § 6105. 

The fact that possessing a firearm would be legal but for Patterson’s prior 

conviction does not increase the grading of his present violation which, as 

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increase in the grade of a subsequent conviction shall not be used in 

computing the Prior Record Score.”).
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observed by the Keiper and Johnson Courts, involves whether a crime is a 

misdemeanor of the first or second degree or felony of the first, second or 

third degree.

7 The full title of Section 6105 is “Persons not to possess, use, 

manufacture, control, sell or transfer firearms.” Therefore, the grading is 

based on which of the current prohibited conduct an individual engages. See

18 Pa.C.S. § 6105(a.1). Patterson’s violation of Section 6105 was graded as 

a first degree felony because he was in actual possession of the firearm in this 

case, not because of his prior robbery conviction. See id. at

§ 6105(a.1)(i)(B). This claim fails. The trial court did not abuse its discretion 

in sentencing Patterson to a term of four to eight years’ incarceration on the 

Section 6105 conviction.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/29/2023

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7 Patterson argues that to the extent the phrase “increase the grade of a 

subsequent conviction” is ambiguous, it should be resolved in his favor. This 

language is not ambiguous and the argument is disingenuous. It is wellsettled that “grading” is understood to mean a crime’s degree and the 

language, “subsequent conviction,” after the prior conviction is the current 

one. See 204 Pa. Code § 303.8(g)(3).