Com. v. Ramos, 2291 EDA 2005.

• Decision Date: 20 March 2007
• Docket Number: No. 2291 EDA 2005.,2291 EDA 2005.
• Citation: 920 A.2d 1253
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Hector RAMOS, Appellant.
• Court: Pennsylvania Superior Court

920 A.2d 1253

COMMONWEALTH of Pennsylvania, Appellee v. Hector RAMOS, Appellant.

No. 2291 EDA 2005.

Superior Court of Pennsylvania.

Submitted January 2, 2007.

Filed March 20, 2007.

Michael E. Brunnabend, Public Defender, for appellant.

James B. Martin, Assistant District Attorney, for Com., appellee.

BEFORE: JOYCE, PANELLA and KELLY, JJ.

OPINION BY JOYCE, J.:

¶ 1 Hector Ramos, Appellant, appeals his judgment of sentence entered July 14 2005, in the Court of Common Pleas of Lehigh County. After review, affirm. The relevant facts and procedural history are as follows.

¶ 2 Appellant and his cohorts went on a crime spree where they robbed several business establishments at gunpoint, one of them twice. Appellant, who was seventeen-years-old at the time he committed the offenses, was certified as an adult pursuant to the 42 Pa.C.S.A. § 6302 "Delinquent Act" (2)(ii)(D) of the Juvenile Act, 42 Pa.C.S.A. § 6301, et. seq. Appellant filed a petition to transfer the case in accordance with 42 Pa.C.S.A. § 6322. Following evidentiary hearings, the petition was denied. Appellant then pled guilty to four counts each of robbery and conspiracy to commit robbery. He was sentenced on July 14, 2005, to an aggregate term of incarceration of nine to eighteen years. Post-sentence motions were filed on July 22, 2005, and denied on August 2, 2005. Notice of appeal was filed on August 23, 2005. The trial court ordered Appellant to file a statement of matters complained of on appeal pursuant to Pa.R.A.P.1925, with which he timely complied. In this appeal, Appellant presents the following issues for our consideration, which we have renumbered for ease in disposition.

A. Whether the lower court erred by failing to sustain [Appellant's] objection to the entry of the "expert testimony" as it related to the unspecified BB gun and/or a paintball gun as being weapons that could cause serious bodily injury and/or death?

B. Whether the lower court erred by determining that the use of an unspecified BB gun during the commission of a robbery would constitute the use of a deadly weapon as defined by the Juvenile Act so as to exclude the offense from juvenile court jurisdiction?

C. Did the lower court abuse its discretion by failing to transfer [Appellant's] case to the juvenile court as [Appellant] was amenable to and an appropriate candidate for treatment in the juvenile system?

D. Whether the lower court erred by ruling that [Appellant's] use of an unspecified BB gun during the commission of a robbery permitted the Commonwealth to demand the imposition of a five year mandatory sentencing [sic] and the imposition of the deadly weapon enhancement as set forth in the Sentencing Code?¹

Appellant's brief, at 10-11 (full capitalization omitted).

¶ 3 Appellant first contends that the trial court erred in allowing the Commonwealth's witness to testify as a firearms expert and to render an opinion regarding whether or not a BB gun constitutes a deadly weapon.

[T]he question whether a witness is qualified to testify as an `expert' is within the sound discretion of the trial court and will not be overturned except in clear cases of abuse. In Pennsylvania, a liberal standard for the qualification of an expert prevails. Generally, if a witness has any reasonable pretension to specialized knowledge on the subject matter under investigation he may testify and the weight to be given to his evidence is for the [fact finder]. It is also well established that an expert may render an opinion based on training and experience; formal education on the subject matter is not necessarily required.

Commonwealth v. Marinelli, 570 Pa. 622, 810 A.2d 1257, 1267 (2002) (citations and quotation marks omitted).

¶ 4 The witness, Nicholas Mogish, was a Pennsylvania State Trooper for twenty-one years before his retirement. For seven of those years, Mr. Mogish was a firearms and tool marks examiner at the state crime laboratory. In order to qualify for that position, he had to undergo two years of extensive training from qualified firearms and tool marks examiners. In further elaborating upon his qualifications, Mr. Mogish testified:

I, myself, have read numerous books, articles, [and] journals in the field of firearms and tool marks identification, [and] conducted various tests on firearms and projectiles. I have been given the opportunity to observe techniques used by examiners and technicians from the Pennsylvania State Police regional labs, also at the Federal Bureau of Investigation, Washington, D.C., Philadelphia, and New York City Police Departments, at the state labs in New Jersey and New Hampshire, Vermont and Connecticut.

I graduated from firearms schools conducted by major manufacturers such as Beretta, Charter Arms, Beretta, Sternberger, Smith and Wesson, Remmington [sic] Arms Company. I did receive a class by the National Guard in M16 and AR15. I learned first hand the manufacturing process involved in both ammunition design so I'd understand what was involved. I toured most of the major firearms manufacturers' ammunition places on the east coast.

I have been a Pennsylvania State Police firearms instructor, a member of the Association of Firearms and Tool Marks Examiners, a member of the International Association for Identification, and I've testified as an expert witness in the field of firearms and tool marks examination in 17 different counties in Pennsylvania, one of them including Lehigh.

N.T., 09/27/04, at 55-56.

¶ 5 Mr. Mogish testified on cross-examination that only a small part of his training and education pertained to BB guns, and that he only field tested one BB gun while with the Pennsylvania State Police. However, he also stated on re-direct that he owns four BB guns, understands their operation, and has read literature on BB guns, specifically, the use of BB guns and their effects on humans. Id. at 62-64.

¶ 6 We find the trial court did not err in allowing Mr. Mogish to testify as an expert. Aside from his extensive training and education pertaining to firearms in general, he also had some that pertained to BB guns specifically. Additionally, Mr. Mogish testified that he had read literature on air rifle BB guns and their effects on human beings. He further stated that he could testify as to velocities or coefficients of BB guns and/or air rifles. Id. at 65. Mr. Mogish has been qualified as an expert in firearms in seventeen different counties of this Commonwealth, including Lehigh County. Clearly, the witness possessed a reasonable pretension to specialized knowledge on the subject matter under investigation. Marinelli, supra. Accordingly, we conclude that the trial court did not err in admitting Mr. Mogish as an expert witness in firearms.

¶ 7 Appellant next argues that the trial court erred in allowing Mr. Mogish to testify regarding some experiments he conducted whereby he would shoot a BB gun at a target and measure the velocity and the damage rendered to the target. Appellant objects to this testimony because there is no "correlation of the use of the tin and/or steel cans and the effect of the pellets on them to that which would occur if similar guns were used on the human body." Appellant's brief, at 24. We agree with this argument. However, the admission of this evidence is of no consequence since no opinion was offered as to how the tests implicated the ability of a BB gun to inflict serious bodily injury, and the trial court did not rely on it. Indeed, the argument is a red herring, ignoring the other evidence that truly went to the heart of the matter.

¶ 8 Mr. Mogish testified that he has read articles and publications about injuries caused by BB guns. He related instances where BB guns have killed people by entering the eye socket and traveling to the brain or by missing the breast plate and ribs and striking the heart. He also testified that a BB gun comes with a manufacturer's warning acknowledging its ability to cause death or serious bodily injury. Additionally, Mr. Mogish referred to a ballistics book utilized by the crime lab during his tenure as a firearms examiner. The book specifically discusses the serious wounds that a person can receive from a BB gun, no matter what the variety.² Based on the foregoing, Mr. Mogish opined to a reasonable degree of scientific certainty that a BB gun, no matter the variety, is a deadly weapon in that it is capable of producing death or serious bodily injury. N.T., 09/27/04, at 82-86. Thus, Appellant's focus on Mr. Mogish's tests is misplaced as there is ample and relevant evidence to support his opinion that a BB gun is capable of producing death or serious bodily injury.

¶ 9 Appellant's second issue challenges the trial court's determination that he possessed a deadly weapon so as to exclude him from the jurisdiction of the juvenile court. Appellant filed an omnibus pretrial motion to transfer his case pursuant to 42 Pa.C.S.A. § 6322. Therein, he alleged that he used a BB gun in the commission of the robberies and that a BB gun does not qualify as a deadly weapon as defined by 18 Pa.C.S.A. § 2301.³ Appellant concludes that this factor removes him from the jurisdiction of the criminal court since a robbery committed by a child where no deadly weapon is used is not an excludable offense under the Juvenile Act.

¶ 10 "Decisions of whether to grant decertification will not be overturned absent a gross abuse of discretion. An abuse of discretion is not merely an error of judgment but involves the misapplication or overriding of the law or the exercise of a manifestly unreasonable judgment passed upon partiality, prejudice or ill will." Commonwealth v. Sanders, 814 A.2d 1248, 1250 (Pa.Super.2003). We will review Appellant's allegation of error with this standard in mind.

¶ 11 The Juvenile Act, 42 Pa.C.S.A. § 6301 et seq., is designed to effectuate the protection of the public while providing children who commit delinquent acts with supervision, rehabilitation, and care...