Com. v. Rosario, L.

2025 Pa. Super. 242

• Court: Superior Court of Pennsylvania
• Decided: October 27, 2025
• Docket: 1183 MDA 2024
• Status: Published

Opinion

J-A21032-25

2025 PA Super 242

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LUIS ANGEL ROSARIO : : Appellant : No. 1183 MDA 2024

Appeal from the Judgment of Sentence Entered July 19, 2024 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0000925-2023

BEFORE: PANELLA, P.J.E., LANE, J., and STEVENS, P.J.E.*

OPINION BY STEVENS, P.J.E.: FILED OCTOBER 27, 2025

Appellant, Luis Angel Rosario, appeals from the judgment of sentence

entered in the Court of Common Pleas of Berks County following his conviction

at a bench trial on the charge of firearms not to be carried without a license,

18 Pa.C.S.A. § 6106(a)(1). On appeal, Appellant claims Subsection

6106(a)(1) is unconstitutional as applied to him. After our careful review, we

affirm.

The relevant facts and procedural history are as follows: Following a

traffic stop, Appellant ran from the scene, and during flight, he dropped a

handgun, which the police seized. Appellant was immediately apprehended,

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* Former Justice specially assigned to the Superior Court. J-A21032-25

and on March 23, 2023, the Commonwealth filed an Information charging

Appellant with receiving stolen property, 18 Pa.C.S.A. § 3925(a), firearms not

to be carried without a license, 18 Pa.C.S.A. § 6106(a)(1), and possession of

a small amount of marijuana, 35 P.S. § 780-113(a)(31)(i). Appellant filed a

counseled omnibus pretrial motion seeking to suppress the handgun. He also

sought the dismissal of the receiving stolen property charge on the basis there

was no prima facie evidence to support the Commonwealth’s claim that the

firearm was stolen.

Moreover, in the omnibus pretrial motion, he presented a claim seeking

habeas corpus relief as to the firearm charge. Specifically, he averred the

charge of firearms not to be carried without a license under Subsection

6106(a)(1) is unconstitutional as applied to him because, at the time of the

incident, he was twenty years old. He noted that he was an adult just six

months shy of his twenty-first birthday, yet the State of Pennsylvania will not

issue a license to carry a gun in a vehicle to a person under the age of twenty-

one. Accordingly, Appellant argued that he cannot lawfully be charged with

failing to have a permit to carry a firearm in a vehicle when no such permit is

available to him under Pennsylvania’s law. Thus, citing to New York State

Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), Appellant averred

Subsection 6106(a)(1) is unconstitutional as applied to him.

On September 18, 2023, upon motion of the Commonwealth and with

the agreement of defense counsel, the trial court entered an order amending

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the Information to withdraw Count I, the receiving stolen property charge.

Further, by order entered on September 19, 2023, upon motion of defense

counsel and without objection by the Commonwealth, the trial court declared

that Count III, the possession of a small amount of marijuana charge, was

withdrawn.

Thereafter, at a hearing on the omnibus pretrial motion, Appellant

withdrew all claims, except for those challenging the constitutionality of

Subsection 6106(a)(1) as applied to him. On November 2, 2023, the

Commonwealth filed a brief in opposition to Appellant’s pretrial motion for

habeas corpus relief challenging the constitutionality of Subsection

6106(a)(1). The Commonwealth supplemented its brief in opposition on

February 20, 2024.

By order entered on March 4, 2024, the trial court denied Appellant’s

claim for habeas corpus relief, and on May 29, 2024, after waiving his right to

a jury trial, Appellant proceeded to a bench trial on the firearm charge. The

parties agreed to proceed based on a “Stipulation of Facts” without presenting

witnesses. Specifically, the parties agreed to the submission of the following

“Stipulation of Facts” for the trial court’s consideration:

If called to testify, Timothy Morris would testify as follows: 1. In February 2023, Timothy Morris was employed as a criminal investigator by the Reading Police Department assigned [to] the VICE Unit. 2. On February 27, 2023, at approximately 8:27 PM, he was operating the Reading Police Vehicle equipped with emergency lights and observed a red Nissan Altima driving south in the

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1200 block of N 6th Street in Reading, Berks County, Pennsylvania. 3. He observed that the left brake light was not working and as the vehicle approached the intersection of N 6th and Marion Streets, it pulled to the right side of the road against a yellow curb. 4. CI Morris then activated the emergency lights and siren to initiate a traffic stop. 5. He observed [Appellant] open the front passenger side door of the Altima and begin to run west on Marion Street. 6. [Appellant] was wearing an unzipped black jacket over a red hoodie. 7. CI Morris observed what he immediately recognized to be a handgun in [Appellant’s] waistband. 8. He began to chase [Appellant] on foot as [Appellant] ran on Marion and then south on Church Street. 9. As [Appellant] was running on the sidewalk, [Appellant] was holding the front of his waistband. 10. As [Appellant] approached Robeson Street, CI Morris observed a black handgun fall out of [Appellant’s] waistband and fall underneath a vehicle. 11. [Appellant] was soon apprehended. 12. [Appellant] was searched, and in his pocket was a small amount of marijuana that weighed less than 30 grams that he possessed for personal use. 13. A black Glock 20C 10mm handgun was recovered from the area where CI Morris saw the handgun fall from [Appellant’s] waist. 14. The handgun was operational and loaded with ammunition. 15. [Appellant] did not have a valid and lawfully issued license to carry a firearm in a vehicle. 16. [Appellant’s] date of birth is 7/**/2002. 17. On February 27, 2023, [the date of the incident, Appellant] was 20 years old.

Stipulation of Facts, filed 5/29/24, at 1-2. See N.T., 5/29/24, at 4.

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At the conclusion of the bench trial, the trial court found Appellant guilty

of firearms not to be carried without a license under Subsection 6106(a)(1),

and on July 19, 2024, following a sentencing hearing, the trial court sentenced

Appellant to 11½ to 23 months in jail to be followed by 3 years of probation.

This timely counseled appeal followed on August 14, 2024. All Pa.R.A.P.

requirements have been met.

On appeal, Appellant presents the following issues in his “Statement of

Questions Involved” (verbatim):

I. Does Pennsylvania’s “Firearms Not to be Carried Without a License” statute, 18 Pa.C.S.A. § 6106, violate the Second Amendment of the United States Constitution as applied to Appellant in this matter as it impermissibly infringes upon the right of 18-to-20-year-olds to carry handguns in a vehicle transiting in public? II. Does Pennsylvania’s “Firearms Not to be Carried Without a License” statute, 18 Pa.C.S.A. § 6106, violate Article 1, Section 21 of the Pennsylvania Constitution as applied to Appellant in this matter as it impermissibly infringes upon the right of 18-to-20-year-olds to carry handguns in a vehicle transiting in public?

Appellant’s Brief at 5 (suggested answers and footnote omitted).

On appeal, Appellant argues that his conviction for firearms not to be

carried without a license should be vacated since 18 Pa.C.S.A. § 6106 is

unconstitutional under the Second Amendment of the U.S. Constitution, as

well as the arms-bearing provision in Article 1, Section 21, of the Pennsylvania

Constitution, as applied to him. He avers the statute is unconstitutional as

applied to him because his age at the time of the offense (twenty years old)

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barred him from getting a permit to carry a firearm in a vehicle under 18

Pa.C.S.A. § 6109.1

Initially, we note Appellant was convicted under Subsection 6106(a)(1),

which provides that “any 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.A.

§ 6106(a)(1). As Appellant asserts, in this Commonwealth, “[a]n individual

who is 21 years of age or older may apply to a sheriff for a license to carry a

firearm concealed on or about his person or in a vehicle within this

Commonwealth.” 18 Pa.C.S.A. § 6109(b).

In the case sub judice, there is no dispute that Appellant was twenty

years old at the time of the offense as opposed to “21 years of age or older.”

Id. Accordingly, he was precluded under Pennsylvania’s firearms statutes

from getting a license to carry a firearm in a vehicle.

Initially, we address Appellant’s federal constitutional challenge, which

is based on the Second Amendment of the United States Constitution, which

states: “A well regulated Militia, being necessary to the security of a free State,

the right of the people to keep and bear Arms, shall not be infringed.” U.S.

1 We note that Appellant claims the stipulated evidence reveals that he was

carrying a firearm while in a vehicle as opposed to carrying a concealed firearm on his person. We shall, arguendo, accept his contention. -6- J-A21032-25

Const. amend. II. Relevantly, challenges to the constitutionality of a statute

present a question of law for which our standard of review is de novo and our

scope of review is plenary. Commonwealth v. Omar, 602 Pa. 595, 981 A.2d

179, 185 (2009). Statutes “are strongly presumed to be constitutional.”

Pennsylvania State Ass'n of Jury Com'rs v. Com., 619 Pa. 369, 64 A.3d

611, 618 (2013) (citation omitted). “Accordingly, a statute will not be declared

unconstitutional unless it clearly, palpably, and plainly violates the

Constitution.” Id.

This Court has explained:

A defendant may contest the constitutionality of a statute on its face or as-applied. A facial attack tests a law’s constitutionality based on its text alone and does not consider the facts or circumstances of a particular case. An as-applied attack, in contrast, does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right. A criminal defendant may seek to vacate his conviction by demonstrating a facial or as-applied unconstitutionality.

Commonwealth v. Bradley, 232 A.3d 747, 757 (Pa.Super. 2020) (citation

omitted).

As to Subsection 6106(a)(1), Appellant contends his conduct of carrying

a firearm in a vehicle is akin to carrying a gun for self-defense outside the

home, and, therefore, according to Bruen, is protected conduct under the

Second Amendment. He argues that, since his conduct is protected under the

Second Amendment, under Bruen, it becomes the Commonwealth’s burden

to show the challenged statute is consistent with traditional firearm

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regulations. He avers there is no tradition of prohibiting the possession of a

firearm in a vehicle by a twenty-year-old citizen such as himself.

In Bruen, supra, to which Appellant cites, the United States Supreme

Court ruled unconstitutional a New York law prohibiting persons from carrying

handguns for self-defense unless they demonstrated a special need for self-

protection distinguishable from that of the general community. In so doing,

the Court held that means-end scrutiny, such as strict or intermediate

scrutiny, does not apply in the context of analyzing Second Amendment

constitutional challenges. Instead, the Court articulated the following two-

part test that controls this Court’s current review:

When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation. Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.”

Id. at 24 (citation omitted).

Two years later, the U.S. Supreme Court decided United States v.

Rahimi, 602 U.S. 680 (2024), and reiterated that “the right to keep and bear

arms is among the ‘fundamental rights necessary to our system of ordered

liberty.’” Id. at 690. “Like most rights, though, the right secured by the

Second Amendment is not unlimited.” Id. Analyzing a Second Amendment

challenge entails considering “whether the challenged regulation is consistent

with the principles that underpin [the Nation’s] regulatory tradition.” Id. at

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692 (quoting Bruen, 597 U.S. at 26-31). We must then determine whether

the Commonwealth has proven that the regulation is “relevantly similar to

laws that our tradition is understood to permit, apply[ing] faithfully the

balance struck by the founding generation to modern circumstances.”

Rahimi, 602 U.S. at 692 (quoting Bruen, 597 U.S. at 20) (internal quotation

marks omitted).

One method we can employ to determine whether historic and modern

regulations are “relevantly similar” is by looking at the “how and why” behind

the regulations, i.e., whether the regulations “impose a comparable burden

on the right of armed self-defense and whether that burden is comparably

justified[.]” Bruen, 597 U.S. at 29. See Rahimi, 602 U.S. at 692 (“Why and

how the regulation burdens the right are central to this inquiry.”). The

analysis does not require a “historical twin” or “dead ringer;” instead, the

Commonwealth can point to “well-established and representative historical

analogue[s]” to show that the regulation is sufficiently analogous. Bruen,

597 U.S. at 30.

Furthermore, the High Court’s Second Amendment precedents do not

render our jurisprudence “trapped in amber.” Rahimi, 602 U.S. at 691. Just

as the Second Amendment’s protection “extends, prima facie, to all

instruments that constitute bearable arms, even those that were not [yet] in

existence [at the founding,]” so too does it permit “more than just those

regulations identical to ones that could be found in 1791.” Id. at 691-92.

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That said, while we do not need a “historical twin” to deem a regulation

constitutional, we “must be careful not to read a principle at such a level of

generality that it waters down the right.” Rahimi, 602 U.S. at 740.

Critically, this Court has recently interpreted both Bruen and Rahimi in

cases involving challenges to Sections 6106 and 6109 on the basis that, as

applied to the defendants, Pennsylvania’s firearm regulations were

unconstitutional since the defendants, who were aged 18-to-20 years, could

not get permits to carry concealed firearms or firearms in a vehicle.

Specifically, in Commonwealth v. Williams, 341 A.3d 144 (Pa.Super.

2025),2 the appellant contended that Sections 6106 and 6109 were

unconstitutional as applied to him because, as a nineteen-year-old person, he

was unable to get a permit to carry a firearm in a vehicle.

In finding no merit to the appellant’s federal constitutional claim, this

Court held, in relevant part, as follows:

[W]e conclude that Section 6109 is consistent with the Nation’s historical tradition of firearm regulation. To begin, under the Bruen analysis, we have little trouble in saying that [the appellant’s] conduct, carrying a firearm in a vehicle, is protected by the Second Amendment. See Bruen, 597 U.S. at 32

2 We note that, on August 1, 2025, the appellant in Williams filed a petition

for allowance of appeal with our Supreme Court; however, the Supreme Court has not yet ruled on the petition.

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(reasoning text of Second Amendment encompasses public carrying of firearms).[3] Turning to the second step, it becomes the Commonwealth’s burden to “justify its [regulation] by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” The Commonwealth has presented evidence of a historical tradition of individuals aged 18-to-20 being prohibited from possessing firearms. Since before the founding, our Nation’s state legislatures have categorically disarmed groups judged too dangerous to be able to safely or responsibly bear arms. As summarized by then- Judge Amy Coney Barrett, “founding-era legislatures categorically disarmed groups whom they judged to be a threat to the public safety.” Kanter v. Barr, 919 F.3d 437, 458 (7th Cir. 2019) (Barrett, J. dissenting)[.] In the 19th century, as guns became more dangerous and accessible, legislatures enacted a variety of prohibitions of the sale and/or possession of guns by, inter alia, “tramps” or “vagrants,” persons of unsound mind, and intoxicated persons. At least 29 jurisdictions limited the sale of firearms to, or the possession of firearms by, individuals below a set age. Aside from legislative prohibitions on certain groups purchasing and/or possessing firearms, the founding-era treatment of 18-to-20-year-olds as minors is likewise weighty evidence of a historical tradition. The founding “generation shared the view that minors lacked the reason and judgment necessary to be trusted with legal rights[,]” and that, accordingly, infants were subject to the ‘power’ of their parents until they reached age 21….[W]hen founding-era youths went off to college, universities, standing in loco parentis, often prohibited students from carrying firearms both on and off campus. This understanding of the legal ____________________________________________

3 As this Court recognized in Williams, supra, the Bruen opinion spent little

time on the issue of determining when a defendant is part of “the people” protected by the Second Amendment. The Rahimi majority opinion makes no mention of it. Given our holdings in the instant matter, we find it unnecessary to determine whether Appellant is part of the “the people” protected by the Second Amendment. See Williams, supra (determining that it was unnecessary to conduct an inquiry into whether the nineteen-year- old appellant was part of “the people” since it was immaterial to the ultimate decision). - 11 - J-A21032-25

status of minors at the founding and the restrictions on bearing arms to which they were subject lends itself to the conclusion that our Nation has a historical tradition of restricting the rights of those aged 18-to-20. *** Going even further, in the latter-half of the nineteenth century, twenty jurisdictions passed laws restricting firearm access for minors….Based upon this history of both common law and statutory restrictions on access to firearms by minors, among other groups, from the pre-founding-era through the latter half of the 19th-century, we find that a national historical tradition exists of restricting firearm access to individuals deemed unable to responsibly bear arms, particularly 18-to-20-year-olds. The “how” and “why” of these laws and Section 6109 are likewise analogous. The restrictions burden the right to access and possess firearms (the “how”) because the defined group—here, 18-to-20-year-olds—has been judged too dangerous to allow such access (the “why”). Therefore, it follows that Section 6109 is constitutional under the standard set out in Bruen. Turning to Section 6106, [the appellant] alleges the Commonwealth cannot meet its burden “because there are no historical analogues to a licensing scheme like Section 6106[,]” i.e., prohibiting the carrying of a firearm in a vehicle. [The appellant] points out that, prior to 1931, few laws in the Commonwealth [] prohibited the carrying of firearms in general, nor did those laws require obtaining a license to do so. Further, he claims that laws prior to 1931 set no prohibitions or licensing requirements for carrying in the available forms of transportation at the time, such as wagons, carriages, railroad cars, and on horseback. *** While [the appellant] makes a compelling case that our historical tradition is rather quiet on the question of carrying firearms in the available forms of transportation in the 19 th century, we do not need a regulation of that sort to find Section 6106 constitutional. This reasoning follows a “use it or lose it view of legislative authority”—it assumes that late-18th and early 19th century legislatures constitutionally could not have legislated in this fashion merely because they did not. This rationale, however, is “flawed” and forces upon present day-legislatures “a law trapped in amber.” Such an approach would turn any Second Amendment analysis into a “historical approach so exacting as to

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be useless, a too-sensitive alarm that sounds whenever a regulation did not exist in an essentially identical form at the founding.” Instead, this Court need only, and does, consider Section 6106 “relevantly similar” to the many “public-carry restrictions [which] proliferate[d]” after the ratification of the Second Amendment in 1791.” See Bruen, 597 U.S. at 50….Thus, since 6106 can then be viewed through the same lens as a standard licensing scheme for concealed carry, Bruen is controlling, and Section 6106’s prohibition on unlicensed individuals possessing a firearm in a vehicle is similarly constitutional. See id. at 80.

Williams, 341 A.3d at 154-58 (some quotation marks, quotations, and

citations omitted) (footnotes omitted) (footnote added). Thus, as applied to

the appellant, this Court held in Williams that Sections 6106 and 6109 were

constitutional under the Second Amendment.

Thereafter, this Court recognized and applied the holdings in Williams

to other cases. Specifically, in Commonwealth v. Carthon, 3208 EDA 2022

(Pa.Super. filed 8/5/25) (unpublished memorandum),4 this Court, relying on

Williams, rejected the appellant’s claim that 18 Pa.C.S.A. § 6108, pertaining

to carrying a firearm on the public streets of Philadelphia, is unconstitutional

as applied to her because, under Section 6109, she, a person aged 18-to-20,

could not obtain a license to carry a firearm on the public streets in

4 See Pa.R.A.P. 126(b) (providing that an unpublished memorandum filed by

this Court after May 1, 2019, may be cited for its persuasive value). We note that the appellant in Carthon has filed a petition for allowance of appeal; however, our Supreme Court has not yet ruled on the petition.

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Philadelphia. We found no merit to her as-applied constitutionality claim and

noted that the prohibition of firearms for those between the ages of 18-to-20

years old is “consistent with the Nation’s historical tradition of firearms

regulation,” and, thus, constitutional. Carthon, 3208 EDA 2022, at *2.

Moreover, in Commonwealth v. Beatty, 1307-1308 MDA 2024

(Pa.Super. filed 8/7/25) (unpublished memorandum), the appellant, who was

eighteen years old, claimed Section 6106, as applied to him, was

unconstitutional since he could not get a license to carry a concealed firearm.

Relying on Williams, this Court held that, as applied to the appellant’s

particular circumstances, Section 6106 is “‘consistent with the country’s

historical tradition of firearms regulation.’” Beatty, 1307-1308 MDA 2024, at

*6 (quoting Bruen, 597 U.S. at 17). Thus, we found no merit to the

appellant’s constitutionality claim.

Likewise, in the case sub judice, we hold that Section 6106(a)(1), as

applied to Appellant’s particular circumstances, is consistent with this Nation’s

historical tradition of firearms regulation. A “national historical tradition exists

of restricting firearm access to individuals deemed unable to responsibly bear

arms, particularly 18-to-20-year-olds.” Williams, 341 A.3d at 157 This

tradition applies to Appellant, who was 20 years old at the time of the firearms

violation and carrying a firearm while traveling in a vehicle. Accordingly, we

find no merit to Appellant’s federal constitution challenge.

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As to Appellant’s claim that Article 1, Section 21 of the Pennsylvania

Constitution provides greater protection than the U.S. Constitution, we find no

merit. As this Court held in Williams:

This Court has at least twice had the recent opportunity to take up the question of whether Pennsylvania’s Constitution’s arms-bearing provision provides greater protection than its federal counterpart. In both instances, this Court has declined to hold that it does. See Commonwealth v. Mead, 326 A.3d 1006, 1015 (Pa.Super. 2024)[, appeal denied, 604 MAL 2024 (Pa. 7/23/25)] (“[Pennsylvania’s] courts have repeatedly treated Article 1, Section 21 as not providing any greater restriction on government firearm regulations than the Second Amendment.”); Commonwealth v. Nieves-Crespo, 321 A.3d 965, *13 (Pa.Super. 2024) (Table) (finding arms-bearing provisions of Pennsylvania and United States Constitutions “offer the same protection”).

Williams, 341 A.3d at 158-59.

Thus, based on the foregoing, we hold that, as applied to Appellant,

Section 6106 is constitutional and does not impermissibly infringe upon his

rights to bear arms under either the United States or Pennsylvania

Constitutions. Thus, we affirm.

Judgment of sentence affirmed.

P.J.E. Panella joins the Opinion.

Judge Lane filed a Concurring Opinion in which P.J.E. Panella joins.

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 10/27/2025

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