J-A24011-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ERIC LAMAR THOMAS

Appellant No. 1176 WDA 2016

Appeal from the Judgment of Sentence July 14, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0001963-2016

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 14, 2017

Eric Lamar Thomas appeals from the July 14, 2016 judgment of 

sentence entered in the Allegheny County Court of Common Pleas following 

his convictions for firearms not to be carried without a license, persons not 

to possess a firearm, and possession of marijuana.1 We affirm.

The factual history of this matter, as detailed in the Affidavit of 

Probable Cause and as stipulated to by the parties at trial, is as follows:

On 2/7/16 at 1400 hours, Officers were dispatched to 

Liberty Avenue at Stanwix Street for a welfare check for 

two men who appeared to be passed out in a purple car 

with the engine revving, unknown life status. S[ergent]

____________________________________________

1 18 Pa.C.S. §§ 6106(a)(1), 6105(a)(31), and 35 P.S. § 780-

113(a)(31), respectively.
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Digiacomo[2](3280) was the first to arrive on scene as he 

called out at that location along with firemen and medics. 

Sgt. Digiacomo updated the call when he called out on the 

radio that the vehicle was located. Just after locating the 

vehicle, Sgt. Digiacomo called out for units to step it up to 

that location.

As I, Officer M[andy] Koo, arrived along with Officer A. 

Koo,[3] we found Sgt. Digiacomo on the passenger side of a 

purple colored Dodge Intrepid with his firearm drawn on 

the passenger of the vehicle and he repeatedly ordered the 

male not to move. Sgt. Digiacomo asked for one of us to 

come to the passenger side and he ordered me, Officer 

M[andy] Koo, to recover a firearm whose hand grip was 

visibly seen sticking out of the right pocket of the hooded 

sweatshirt worn by the black male passenger. I reached 

for the hand grip of the gun and recovered it from the 

passenger’s pocket. The firearm was a black and green 

Walther .40 caliber pistol.

At this time Sgt. Digiacomo removed the black male 

passenger from the vehicle and handcuffed him. Officer 

Koo remained at the driver side of the vehicle until we had 

the passenger in handcuffs. Also in plain view was a clear 

knotted baggie containing marijuana which I recovered 

from the door sill guard (plastic kick plate) just to the right 

of where the passenger was sitting. The driver of the 

vehicle, later identified as Eugene Satterwhite, was then 

ordered from the car and was compliant when handcuffed 

and detained.

The black male passenger of the vehicle was 

uncooperative and argumentative and would not offer any 

identifying information about himself. Officer Mammerelli, 

Officer Winters, Officer Remmy, and Officer Osz[4]all 

responded to the scene as back up. I handed the firearm 

that was recovered from the passenger to Officer 

____________________________________________

2 Sergeant Digiacomo’s first name does not appear in the certified 

record.

3 Officer A. Koo’s first name does not appear in the certified record.

4 The officers’ first names do not appear in the certified record. 
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Mammerelli and asked him to clear the weapon to make it 

safe. Officer Mammerelli removed a magazine from the 

firearm containing twelve .40 caliber rounds and there was 

no round found in the chamber of the firearm. Officer 

Mammerelli ran the firearm information (Walther P99 .40 

caliber pistol serial #FAE0197) through index and it came 

back as No Record Found. Officer Mammerelli asked the 

black male passenger if he had a permit to carry a firearm 

and the male said no. Officer Mammerelli was also given 

the marijuana found in the vehide and he took it, along 

with the gun to Zone 2 Station and secured it in the 

evidence locker. Officer Mammerelli also recovered two 

cell phones and a digital scale from the front passenger 

seat of the vehicle which was brought to Zone 2 Station 

and logged into 30 day hold.

Once the scene was safe Sgt. Digiacomo was able to 

explain what occurred prior to my arrival. Sgt. Digiacomo 

said that he was flagged down by a tow truck driver who 

pointed toward the incident vehicle (purple Dodge 

Intrepid) and upon his approach he observed a black male 

driver and a black male passenger who were nonresponsive. Sgt. Digiacomo said that the driver woke up, 

however, the passenger of the vehicle still remained nonresponsive. There were firemen on scene and they were 

going to reach into the window to apply a sternum rub to 

the passenger at which time Sgt. Digiacomo said that he 

was going to open the door so they could better reach the 

passenger. When Sgt. Digiacomo opened the door he 

readily observed the firearm hand grip sticking out of the 

right pocket of the passenger’s hoodie and the marijuana 

was seen in plain view on the door sill guard just next to 

the passenger. Medic District Chief Gilchrist, A., along 

with Medics Berg, D. and Guchert, G. (medic unit 14)[5]

were on scene to witness the removal of the passenger 

from the vehicle.

____________________________________________

5 The medics’ first names do not appear in the certified record.
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The black male passenger, John Doe,[6]immediately 

started making accusations that he was injured by the 

Police even though the medics were on scene to witness 

our encounter with him. Medic Berg spoke with Doe and 

he was cleared on scene since he had no injuries and Berg 

knew that the accusations made by Doe were false as he 

was there to witness the encounter.

Sgt. Digiacomo escorted Doe to my patrol car (unit 

3224) and Doe was recorded as he was placed in the 

vehicle and seatbelted in. Doe continued to be be[l]ligerent 

and uncooperative and would not give any identifying 

information on himself. I transported Doe to the ACJ 

where the guards were alerted to Doe’s be[l]ligerent 

behavior Upon my arrival at the ACJ followed by Officer 

Remmy and Osz as backup, Doe attempted to kick the 

back window out of the patrol vehicle. Corrections Officers 

witnessed his behavior and the[n] put Doe into the 

restraint chair as soon as he was removed from my patrol 

vehicle.

The driver of the vehicle, Eugene Satterwhite, was ran 

for want or warrants with negative results. Due to the 

incident vehicle being parked and Satterwhite showing that 

his driver’s license was under DUI suspension, the incident 

vehicle was towed by McCann and Chester. Satterwhite 

was released from the scene.

Aff. of Probable Cause at 2.

On July 14, 2016, following a non-jury trial, the trial court convicted 

Thomas of the above charges. Thomas was sentenced to 3 years’ probation 

for the conviction for firearms not to be carried without a license. The trial 

court imposed no further penalty for Thomas’s remaining convictions. 

Thomas did not a file post-sentence motion. On August 10, 2016, Thomas 

filed a timely notice of appeal.

____________________________________________

6 There is no dispute that “John Doe” was Thomas.
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Thomas raises the following issue on appeal: “Whether Mr. Thomas’s 

conviction for Firearms Not to be Carried Without a License must be 

reversed, and his judgment of sentence in this regard must be vacated, 

when the Commonwealth failed to prove, beyond a reasonable doubt, that 

the gun was carried concealed on or about his person?” Thomas’s Br. at 4.

We apply the following standard when reviewing a sufficiency of the 

evidence claim:

[W]hether 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. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 

possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder unless 

the evidence is so weak and inconclusive that as a matter 

of law no probability of fact may be drawn from the 

combined circumstances. The Commonwealth may sustain 

its burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually 

received must be considered. Finally, the [finder] of fact 

while passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, part 

or none of the evidence.

Commonwealth v. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (some 

alterations in original) (quoting Commonwealth v. Harden, 103 A.3d 107, 

111 (Pa.Super. 2014)).

In relevant part, section 6106(a)(1) of the Crimes Code provides that:
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[A]ny 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. 

18 Pa.C.S. § 6106(a)(1).

The trial court made the following findings:

THE COURT: Okay. Mr. Thomas, I find that between the 

affidavit for probable cause and your admission, that you 

were in fact carrying a gun at some point either concealed 

and/or in a vehicle.

. . .

[DEFENSE COUNSEL]: He was not licensed. The reason 

why we were asserting his innocence to [the count of 

carrying without a license], if you would like to hear some 

argument, is it was not transported in the vehicle. He was 

sitting in the vehicle, was incapable -- or at least was not 

driving or moving.

THE COURT: [The statute] doesn’t say -- it just says in a 

vehicle.

He also said he had it in a holster which I, according to 

his description, would consider to be a concealed weapon 

on his person.

[DEFENSE COUNSEL]: Well --

THE COURT: So he’s guilty twice on that count.

N.T., 7/14/16, at 8-9.

Viewing all the evidence admitted at trial in the light most favorable to 

the Commonwealth as verdict-winner, we conclude that there was sufficient 

evidence to support Thomas’s conviction for carrying a firearm in a vehicle 

without a license pursuant to section 6106(a)(1). See Commonwealth v. 

Festa, 40 A.2d 112, 116 (Pa.Super. 1944) (holding that to support 
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conviction under 18 P.S. § 4628, a predecessor statute to section 6106, the 

“Commonwealth need not prove more than the presence of the firearm in 

the car while accused was inside”).7

Judgment of sentence affirmed.8

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/14/2017

____________________________________________

7 At trial, Thomas’s counsel stated his belief that a violation of the first 

part of section 6106(a)(1) – i.e., carrying a firearm in a vehicle without a 

license – requires the vehicle to be moving. N.T., 7/14/16, at 9-10. In his 

statement of errors complained of on appeal pursuant to Pennsylvania Rule 

of Appellate Procedure 1925(b), Thomas also challenged his conviction on 

this basis. However, because Thomas neither included this issue in his 

statement of questions involved nor developed it in the argument section of 

his brief, see infra note 3, we conclude that he has waived this claim. See 

In re M.Z.T.M.W., 163 A.3d 462, 465-66 (Pa.Super. 2017). 

8

In their briefs on appeal, both parties focus on whether the gun was 

adequately “concealed on or about [Thomas’s] person” within the meaning 

of section 6106(a)(1). Because Thomas’s conviction is supportable on other 

grounds, we need not address this issue. Cf. Commonwealth v. Butler, 

150 A.2d 172, 173 (Pa.Super. 1959) (concluding that evidence was sufficient 

to support conviction of carrying concealed firearm without a license under 

predecessor to section 6106(a)(1) where gun was partly visible from jacket 

pocket of defendant).