Com. v. Saita, J.

• Court: Superior Court of Pennsylvania
• Decided: November 12, 2015
• Docket: 2140 MDA 2014
• Status: Unpublished

Opinion

J-S56039-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOSEPH SAITA,

Appellant No. 2140 MDA 2014

Appeal from the Judgment of Sentence April 23, 2014 in the Court of Common Pleas of Lackawanna County Criminal Division at No.: CP-35-CR-0002364-2013

BEFORE: SHOGAN, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 12, 2015

Appellant, Joseph Saita, appeals from the judgment of sentence

imposed following his jury conviction of firearm not to be carried without a

license, in violation of 18 § 6106(a)(2).1 We affirm on the basis of the trial

court’s opinion.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 In relevant part, the statute provides:

A person who is otherwise eligible to possess a valid license under this chapter but 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 and has not committed any other criminal violation commits a misdemeanor of the first degree.

18 Pa.C.S.A. § 6106(a)(2). J-S56039-15

In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them at length. For the convenience of the reader we note that

Appellant, a tow truck operator, was stopped by police for various vehicle

code violations not at issue here. He was placed under arrest when it was

discovered he had an outstanding warrant. While Appellant was being

processed after arrest, the officers found that he was carrying a firearm, a

Kel-Tec .380 handgun, concealed in a holster under his sweatshirt.

Appellant did not possess a valid license for the firearm.

A jury convicted him of firearm not to be carried without a license on

February 11, 2014. Appellant timely appealed following the denial of his

post-sentence motions.2

Appellant raises four questions for our review:

I. Whether the [trial] court erred in denying [A]ppellant’s request for more specific jury instructions relating to concealed carry laws?

II. Whether the [trial] court erred in permitting a lay witness to testify on expert matters despite the fact that [A]ppellant was never on notice of the Commonwealth’s intent to call an expert witness?

III. Whether the [trial] court erred in permitting lay witnesses to testify to and opine on the applicable law?

2 Appellant filed a statement of errors on January 2, 2015. See Pa.R.A.P. 1925(b). The trial court filed a Rule 1925(a) opinion on March 12, 2015. See Pa.R.A.P. 1925(a).

-2- J-S56039-15

IV. Whether 18 Pa.C.S.A. § 6106 is unconstitutionally vague as applied to the facts of this case?

(Appellant’s Brief, at 7).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court we conclude

that there is no merit to the issues Appellant has raised on appeal. The trial

court opinion properly disposes of the questions presented. (See Trial Court

Opinion, 3/12/15, at 4-25) (concluding: (1) trial court properly exercised its

discretion in declining Appellant’s request for more specific jury instructions

on the firearms not to be carried without a license statute (18 Pa.C.S.A.

§ 6106); (2) trial court properly permitted police officer to testify about

operability of weapon at issue in rebuttal to challenge by defense counsel to

operability of weapon; (3) trial court properly permitted a sheriff’s deputy to

testify about the law pertaining to obtaining a license to carry a concealed

weapon in Pennsylvania, which was within the scope of her official duties,

where the trial court instructed the jury four separate times that it was the

role of the trial court alone to provide the applicable law to the jury; and (4)

18 Pa.C.S.A. § 6106 was not unconstitutionally vague). Accordingly, we

affirm on the basis of the trial court’s opinion.

-3- J-S56039-15

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/12/2015

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:.l:l:i i'ii;d le F:(1 2 :Li COM.OF PENNSYLVANIA : IN THE COURT COMMON PLEAS :OF LACKAWANNA COUNTY

V. : CRIMINAL DIVISION JOSEPH SAITA Defendant : 2013 CR 2364

OPINION PURSUANT TO Pa. R. A. P. 1925{a)

Bisignani Moyle, J.

I. INTRODUCTION AND PROCEDURAL HISTORY

I J The instant action arises out of the above-referenced Defendant's Motion for

'I Post Trial Relief and/or Reconsideration. Defendant Joseph Saita (hereinafter

"Defendant") has appealed various rulings made by this Court during the course of

his trial, as a result of which he was convicted of one ( 1) count of Carrying a Fire mm

Without a License in violation of Title 18 § 6106 §§ A2. On April 23, 2014, this

Court sentenced the Defendant to serve a sentence of one (1) year probation.

The Defendant then filed a number of post-sentence motions. On May 5, 2014

the Defendant filed a Motion for Judgment of Acquittal and/or a New Trial pursuant

1 to Pa.R.Criminal.P 720. On November 25, 2014 this Court denied the Motion for

If Judgment of Acquittal and/or a New Trial. Following this, the Defendant filed a

Notice of Appeal to the Superior Court on December 16, 2014 and a Statement of I, I Matters Complained of on Appeal on January 2, 2015, pursuant to Pa.R.A.P. 1925(b).

This Court will briefly address each issue as required under Pa.R.A.P. 1925(a).

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II. FACTUAL BACKGROUND

The evidence offered at trial demonstrated as follows:

On October 19, 2013 Corporal McDonald and Officer Golden of the Scranton

Police Department were assigned to work the nighttime hours to detect and deter

criminal activity within the City of Scranton. N.T. 2/10/14 at p. 6. Specifically, the

two Officers were "aggressively enforcing traffic violations, any other type of crimes

that we may have stumbled across while out there." Id. While on patrol, the Officers

were primarily focusing on the downtown area. Id. at p.7.

The Officers observed a flatbed tow truck on Mulberry Street heading due west.

.1 Id. The Officers noticed the truck had several marker lights ·out, a-registration light

out, and a malfunctioning left lower tum signal light out. Id. The Officers initiated a

traffic stop while on the 400 block of Mulberry Street. Id. They identified the driver

I as Joseph Saita. Id. The Officers then conducted a standard license and warrants

I check on the driver. Id. The standard check revealed the Defendant's driver's

I I license was valid. It also revealed that the Defendant had no criminal warrants. Id. at

l 1 ~- However, Corporal McDonald requested a further check for warrants at Police

I Headquarters. He testified the second check revealed the Defendant had a "summary I I warrant for a traffic violation for $171. 00 out of Magistrate W are' s office." Id. The

I Officers issued a citation for the lighting violations and for a heat shield violation.

Id. at p. 10. The Officers then informed the Defendant of the warrant and placed him

under arrest. Id.

He was handcuffed and a pat-down search was conducted by Officer Golden.

Id. at p. 11. During the pat-down, Officer Golden located a pill bottle in the

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Defendant's pocket. Id. at p.12. Officer Golden noticed that there were different

types of pills in the bottle. Id. at p. 41-42. The pills were later determined to be

Suboxone and Xanax mixed within the same prescription medication bottle. Id. An

additional charge of unlawfully possessing Xanax was filed against the Defendant.

Id. at 21.

Corporal McDonald testified Officer Benke, the wagon officer, arrived on scene

to transport the Defendant. Id. at p.11. He transported Mr. Saita to the Lackawanna

County Processing Center which is located in the basement of the Lackawanna

County Courthouse. Id. at p.11-12. Officer Golden testified that it is the wagon

officer's responsibility to again search an individual prior to placing him in the

transportation vehicle. Id. at p.42. Officer Golden and Corporal McDonald remained

with the Defendant's vehicle, the Officers had the vehicle towed because it was

I obstructing the roadway. Id. Once the vehicle was towed the officers cleared the

I scene and went to headquarters to prepare paperwork and enter the pills into

evidence. Id. at p. 12.

I i' While at Headquarters, the Officers were informed by Officer Benke that the

Defendant had a fire mm concealed on his person when he was brought into the

Processing Center. Id. at p. 13. The gun was found as the Defendant was being

patted down by Lackawanna County Sheriff's Deputies. Id. It was located

underneath the Defendant's hooded sweatshirt, Id. at p. 13-14. Corporal McDonald

. testified that his research revealed the Defendant did not have a valid license to carry

a concealed weapon. Id. at p. 14. Corporal McDonald further testified that the

j Defendant never mentioned the firearm during the traffic stop and subsequent arrest.

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Id. at p.14. Corporal McDonald added the additional charges against the Defendant

for a Firearm Not to be Carried Without a License. Id.

I III. DISCUSSION- MATTERS COMPLAINED OF ON APPEAL I PURSUANT TO 1925(B)

A. JURYIINSTRUCTIONS

The first tlJee averments made by the Defendant concern the jury

instructions given btfore deliberations began. In the Defendant's Statement of

Matters Complained of on Appeal pursuant to Rule 1925(B), the Defendant

specifically averred,in his first three claims that the Court erred by instructing

the jury as requester by the Defendant.1 The· Defendant requested the jury be

instructed as follows,

1. Ladies and Gentleman, you have heard testimony in this matter that tlie Defendant possessed a firearm. However, it is not illegal per se to simply possess a firearm in public. In Pennsylvania, there is a right to can~ a firearm in public so long as that firearm is not concealed.

As I have already instructed you, Pennsylvania law only prohibits carrying a concealed firearm without a license and carrying a concealed fiiearm without a license and carrying a firearm in a vehicle without a li6ense. It is undisputed that Defendant did not possess a license to cciny a concealed weapon. Neve1iheless, there are several exceptions to the general rule which allow a person to carry a concealed 11 weapon or drry a weapon in a vehicle without a license. 11 ! Speci~cally, in this case, the Defendant has claimed that two I exceptions apply. First, Defendant claims that he is exempt from the rule because he was transporting his firearm between work and home. Under Penn ylvania law, a person is exempt from the prohibition on can·ying a cohcealed weapon if he is carrying a firearm which (1) is not loaded, (2) is in a secured wrapper, (3) while "moving from one place of

I I This was erroneously pied I by the Defendant. On His Statement of Matters Complained of on Appeal , the Defendant stated that the trial court erred in instructing the jury as requested by the Defendant. On the contrary, the Court did not use the language cited in Defendant's Matters Complained of on Appel The Defendant asked the Court to give the requested jury instructions but the Cow1 declined. This Court will address the errors alleged accordingly.

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abode or business to another." Therefore, if you find that the firearm which Deferidant was carrying was not loaded, was in a secure wrapper, and was bei ! g carried between Defendant's home and place of business, you must rerm a verdict of not guilty.

Secondly, Defendant claims that he is exempt from the rule because he 1worked in a business which required him to protect the property o~ others. Specifically, Pennsylvania Law provided an exception for (1) agents, and employees; (2) of business firms; (3) whose dutiesI require them to protect valuables and other property in the discharge o~ such duties. If you find these elements to be satisfied, you must return a verdict of not guilty.

2. Ladies and Gentlemen, you have heard testimony in this matter that the Defendant possessed a firearm. If you find that the Defendant did indeed possess a firearm, your inquiry in this matter is not at an end. In order for the Defendant to be criminally liable, he must have possedsed a firearm that was "operable or capable of being converted into an object that could fire a shot." "An operable fireann may be said Ito be under the control of the alleged actor even though it is a malfunctioning assembled firearm or a disassembled firearm, if the alleged actor has under his control the means to convert the inoperable firearm into ~n operable firearm." Therefore, if you find that the firearm which Defehdant is alleged to have carried was inoperable and the I components to make it operable were not in the control of and readily available to the Defendant at the time of his arrest, you must return a verdict of not guilty.

I 3. adies and Gentleman, in your deliberations in this matter you should onsider the policy behind the prohibition of the Firearms I I Law and w~ether Defendant's conduct falls within the conduct sought 11 to be sanctiohed by this policy. Specifically. the statute at issue has "the aim of discoraging the carrying of unlicensed weapons because of the 11 inherent thre1at to human life and public peace, the primary thrust of the I statute being to prohibit a practice evil in its tendencies. Whether the I Defendant dctually concealed a firearm "depends on the particular circwnstancJs present in each case" and is a factual question for you the jury to evalJate given the specific facts of this case. If you find that Defendant's conduct is not the type to be prevented by this policy, you may choose to consider this in your determination as to whether the element of c I ncealment has been proved beyond a reasonable doubt.

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In Pennsylvania, when reviewing jury instructions for reversible error, I - an appellate court must read and consider the charge as a whole. I I, Commonwealth v. ]J)ietterick. 631 A.2d 1347, 1352 (Pa.Super.1993), appeal

denied, 64 5 A.2d 12 (Pa.1994). The Court shall "uphold an instruction if it

adequately and accurately reflects the law and is sufficient to guide the jury

through its deliberat~ons." Commonwealth v. Ahlborn, 657 A.2d 518, 520 I I (Pa.1995). "Error will not be predicated on isolated excerpts. Instead, it is the

general effect of the charge that controls." Commonwealth v. Zewe, 663 A.2d

195, 201 (Pa.Super.1995), appeal denied, 675 A.2d 1248 (Pa.1996);

Commonwealth v. kderson, 600 A.2d 577, 578 (Pa.Super.1991), appeal I denied, 612 A.2d 983 (Pa.1992). The Superior Court has stated "an erroneous

charge warrants - I the grant of a new trial unless the reviewing court is convinced

beyond a reasonab lei doubt that the en-or is harmless." Dietterick 631 A.2d at

1352. "The nature of a court's instructions to the jury is "within the discretion

of the court, so long as the court accurately instructs the jury on the appropriate

legal principles invo ved." Commonwealth v. Kim, 888 A.2d 847, 852 I (Pa.Super.2005) (quoting Commonwealth v. Haiiey, 621 A.2d 1023, 1028

(Pa.Super.1993)). TL jury instruction must be read so "that the charge clearly,

adequately, and acclately presents the law to the jury for its consideration." Id.

(quoting Commonwlalth v. Collins, 810 A.2d ~98, 701 (Pa.Super.2002)). Th~

jury charge must be Jeviewed "not in isolated portions but as a whole to I ascertain whether it airly conveys the required legal principles at issue."

Commonwealth v. McClendon, 874 A.2d 1223, 1232 (Pa.Super.2005).

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This Court II address each requested jury instruction separately. The

first requested instruction concerns two (2) exceptions to the prohibition of

carrying a conceale I weapon. Specifically, the first exception states in

pertinent part "any ! erson while carrying a firearm which is not loaded and is in

a secure wrapper, fr m the place of purchase to his home or place of

business ... " 18 Pa. C.S.A. 6106 b 8. Thy instruction requested was not

supported by any e1idence and therefore was not applicable. Kim, 888 A.2d. at

853. The Defendant himself testified the firearm was in a holster on his

waistband and not il a secure wrapper. N.T. 2/11/14 p.70. Additionally, the

Defendant testified e was carrying the weapon, in a holster, as he was.

f performing his job, owing vehicles in Scranton. Id. The Defendant's own

testimony reveals that his conduct fails to satisfy the requirement of the

exception. More spicifically, the weapon was not in a secure wrapper and he

carried it as he conjlucted his business from his tow truck and ultimately into

the Processing Center located in the Courthouse, not from his place of purchase I to his home or plac~ of business, etc. Id. Clearly none of the requirements for ii l this exception have been satisfied. In light of the totality of the evidence, this

I . . was proper instruction 11 y rejecte : d as not supporte db y th e testimony. . l ! I The second Jortion of this instruction addressed the business exception

outlined in 18 Pa. els.A. § 6106 (b)(6). It states in pertinent part "agents,

I messengers and othlr employees of common caiTiers: banks, or business firms,

whose duties requirt them to protect moneys, valuables, and other property in

the discharge of such duties ... " 18 Pa. C.S.A. § 6106 (b)(6). The Defendant lI

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asserts he falls into the exception because his employment as a tow truck I operator is contemp ated by the statute, specifically he asserts as a tow truck

operator he is respo sible for the protections of the property of others. N.T.

2/10/14 at p. 71. An' analysis of the employees exempted, however reveals tow

truck drivers are no similarly situated. The Defendant testified that he is the

owner/operator of Direct Towing and Recovery. N.T. 2/11/14 at p. 68. He

testified his customLs include business owners and private individuals who

own property in the area. Id at p.69. The customers contract the services of the

Defendant to keep nwanted vehicles off their property. Id. He testified the

reason he carries a fireann is because "I'm in the bad parts of the city. And

that's why I carry ,at gun in the open as. a deterrent, not once ever had bullets

in the gun, except for when I was target shooting." Id. at p. 70.

The Superiol Court addressed this exception in Commonwealth v.

Walton, 529 A.2d. y, 17 (Pa.Super.1987). Specifically, the Court discussed the

applicability of the xception to certain occupations. Id. The Walton Court I I· reasoned the exceptton does not extend to all employees who hold or hai1dle ii I valuable property of another. Id. Rather, the Walton Court stated "we interpret

the language to be rLtrictive. These words limit the applicability of the

exception to agents L employees who are hired for the primary purpose of and

whose duties are plcipally related to the protection of money, valuables, and

property. The exceJtion includes, but is not necessarily limited to, persons

employed as guard,! watchmen, protective patrols, and private detectives, who

are required in the ischarge of their duties to protect money, valuables, and

I: 8

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property." Id. The Walton Cami also stated "the Commonwealth showed that

appellant, a cab driier, possessed an unlicensed, operable firearm while driving

a taxicab in Philadelphia. The burden of proof then shifted to appellant to come

forward with evidelce that he was exempt from the licensing requirement of the

statute because he j as an employee of a common carrier whose duties required

him to protect moneys, valuables, or other property in the discharge of his

duties." Id.

"The provisions of 18 Pa.C.S.A. § 6106(b)(6) do not exempt all agents

or employees who Jandle money or work with instrumentalities owned by their

employers from the statutory proscription against carrying a firearm without a

license." Id. The Walton Cami further stated "to adopt the general

interpretation advaJced by appellant would be to sanction the carrying of

firearms without a license by all types of employees, including waiters and I waitresses, store clerks, bank tellers, train conductors, bus drivers, and theater

cashiers. It would allow employees to carry firearms without licenses on

occasions when an could not." Id. 1mployer I Clearly the IDefendant's self-employment as a tow truck operator does

not meet the requirelnents set forth in Walton for a number ofreasons. First,

Defendant is the 0J1er of the business and not an "agent, messenger, or

employee." Second! the Defendant asserts he falls into the exception because

he is responsible for protecting the vehicles he has towed. N.T. 2/11/14 at p.71.

The statute excepts in clear unambiguous language those "whose duties require

them to protect mo1ys, valuables and other property in the discharge of such

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duties." 18 Pa.C.S. § 6106(b)(6). The Walton court utilized the principles of

agency to conclude f 'agents are not specifically required in the discharge of

their duties to protet t money or property against robbers and other assailants."

Id. In this case the Defendant is hired by property owners to tow illegally

parked vehicles fror their property. N.T. 2/11/14 at p. 68-69. He asserts he is I required to protect the vehicles that he tows. Id. However, he is not hired or

contracted by the Jhicle owners, nor is he their agent. As such his argument

must fail.

The second requested instruction addressed the "operability of the

firearm." This Col gave the Pennsylvania Standard Jury Instruction for§·

6106 which includeh the following language regarding operability: "the specific

object charged mus, be either operable, that is capable of firing a projectile, or, I if inoperable, that the Defendant had under his control the means to convert the

object into one capable of firing a shot." N.T. 2/11/14 p.239. As such, the

requested jury instruction was substantially similar to the delivered charge and

I therefore was inapp opriate because if given would have been cumulative and

unnecessary. The t: has discretion and may properly refuse a requested

instruction when thl substance of that request has already been given in either a

general or specific charge. Zewe, 663 A.2d at 201. Furthermore, the Superior

Court has stated "With regard to the standard of review of this claim, we are

mindful that the natl! e of the court's instructions to the jury is "within the

discretion of the co rt, so long as the court accurately instructs the jury on the

appropriate legal prlciples involved." Commonwealth v. Haiiey, 621 A.2d

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1023, 1028 (Pa.Super.1993). As such, the requested instruction was not

appropriate.

The third and final requested instruction addressed the policy behind the

prohibition (i.e., wal the Defendant's conduct the type sought to be prevented

by the legislative in' ent?) The Defendant cited Commonwealth v. Butler, 150

A.2d. 172 (Pa.Supe .1959) in support of his position. The issue in Butler was

whether a partially Lsible handgun was a "concealed" firearm pursuant to the

I statute. Id. at 172. nits analysis, the Butler court addressed the legislative

intent by stating "the evil sought to be corrected by the enactment of the

Uniform Firearms Act is a serious one, and courts owe-a duty to the public to

see to it that the legislative intent is not thwarted by a construction which is

unreasonably rigid and inflexible." Id. Additionally, the Butler court noted

"the applicable staJte is viewed as having the aim of discouraging the carrying

of unlicensed weapons because of the inherent threat to human life and public

peace, the primary thrust of the statute being to prohibit a practice evil in its

tendencies." Finall the Cami in Butler stated "penal provisions me to be I

11 strictly construed." Continuing, the Butler court stated "the Courts have a duty I

to ascertain and effectuate the intention of the legislature." Id. Turning to § I 6106, the statute in Lem· language prohibits an individual from carrying a

concealed firearm 't1 or about his person ... without a valid and lawfully issued

license ... " The leg tiature carved _out several specific exceptions, none of

which apply in this case. A careful review of this wording reveals the

legislature's intent. The legislature intended to prohibit any individual, who did

not satisfy one oft I e many exceptions from carrying a concealed firearm

without a license. It could not be more clear that the Defendant's requested

· · · I. · · instruction IS not appropriate b ecause 1· 1Is bh · IS e avior · t1re exact bh · soug ht e avior

to be prohibited by the legislation, even absent an evil intent on his part.

The jury instructions given by this Court_ accurately reflected the law

and were sufficient Ito guide the jury in its deliberation.

B. mndMENT OF ACQUITTAL/ SUFFICIENCY OF THE

EVIDkNCE I The Defendant also avers that the Court ened in failing to enter a I Judgment ofAcqui!al because the verdict was not supported by sufficient I. I evidence. Specific~lly, he alleges the Commonwealth failed to present

sufficient evidence that he carried a concealed weapon, that he did not possess I the weapon in his place of business, and that the evidence was insufficient to

overcome two exceptions to 18 Pa. C.S.A. § 6106 (b). Thus, he asserts the I Court should have entered a judgment of not guilty. This Court will address

each issue separatelt. · I Regarding tl 1e sufficiency of the evidence argument advanced by the

Defendant, the Court is required to evaluate the presence or absence "of that

quantum of evidencl necessary to establish the elements of the crime."

Commonwealth v. B\igelow, 611 A.2d 301, 303 (Pa.Super.1992). See also: I Commonwealth v. Meadows, 369 A.2d 1266, 1268 (Pa.1977), Commonwealth

v. Yapsuga, 535 A.2J 187, 188 (Pa.Super.1987). In order to determine the

legal sufficiency of vidence supporting a jury's verdict of guilty, the Court

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must "view the evidence in the light most favorable to the Commonwealth,

which has won the lerdict, and draw all reasonable inferences in its favor. The

Court must then de ermine whether the evidence is sufficient to permit a jury to

determine that eac J and every element of the crimes charged has been

established beyond a reasonable doubt." Co1mnonwealth v. Aulisio, 522 A.2d

1075, 1079 (Pa.19y); Commonwealth v. Smith, 568 A.2d 600, 602 (Pa.1989);

Commonwealth v. Hardcastle, 546 A.2d 1101, 1105 (Pa.1988), cert. denied,

493 U.S. 1093, 110 S.Ct. 1169, 107 L.Ed.2d 1072 (1990). Therefore, "It is the

function of the jury to pass upon the credibility of the witnesses and to

determine the weight to be accorded the evidence produced. The jury is free to

believe all, part, or l1one of the evidence introduced at trial." C01mnonwealth v.

Guest 456 A.2d 1345, 1347 (Pa.1983); Commonwealth v. Rose, 344 A.2d 824,

826 (Pa.1975); C01mnonwealth v. Verdekal, 506 A.2d 415, 419

(Pa.Super.1986). Tt facts and circumstances established by the

Commonwealth "need not be absolutely incompatible with [the] defendant's I

innocence, but the 4uestion of any doubt is for the jury unless the evidence 'be

so weak and inconc~usive that as a matter oflaw no probability of fact can be

drawn from the coJbined circumstances." Co1mnonwealth v. Sullivan, 371 I A.2d 468, 478 (Pa.1977), quoting Commonwealth v. Libonati, 31 A.2d 95, 97

(Pa.1943); Conunolwealth v. Kravitz, 161 A.2d 861, 869 (Pa.1960), cert.

I denied, 365 U.S. 8J6, 81 S.Ct. 807, 5 L.Ed.2d 811 (1961). Ii I I

I l 13

In order to satisfy the elements of the crime of Carrying a Firearm

Without a License, jthe Commonwealth must satisfy the following statutory

requirements:

Firearms Not to be Carried Without a License (a) Offense defined. (1) Any person who carries a firearm in any vehicle or any person who carries a firearm concealed on Jr about his person, except in his place of abode or fixed J1ace of business, without a valid and lawfully issued license 1\nder this chapter commits a felony of the third degree. (2) Ip. person who is otherwise eligible to possess a valid license under this chapter but carries a firearm in any vehicle or any ~erson who carries a firearm concealed on or about his ~erson, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has· not committed any other criminal violation commits a misdemeanor of the first degree.

18 Pa. C.S.lA..I § 6106 (a).

The Defendant alleges the testimony was insufficient to establish that

he "concealed" a weapon. Regarding the first element of the offense, which is

concealment, the Cbrrunonwealth presented the testimony of three (3) Scranton

Police Officers a1:J)oue (1) Sheriffs Deputy each who testified they did not

observe the firearm on the Defendant's waistband, despite the Defendant's self-

serving assertions that it was visibly displayed and not concealed. N.T. 2/10/14

pgs.15, 44, 63, 105, N.T. 2/11/14 p. 70-71. Applying the above referenced

standard set forth in Commonwealth v. Guest, the jury as trier of fact, was free

to accept or reject tlL testimony of the four law enforcement officers who testified they did n1t see the weapon. Additionally, the jury was free to accept I I or reject the Defendant's testimony that the gun was visible and not concealed. 1, I 14

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As such, the Defendant's argument must fail. Turning to the second and third

elements of the offebse, the Commonwealth called Detective Christopher

Kolchamo who der onstrated for the jurors how the firearm operates and that

the firearm in question is in fact operable. N.T. 2-11-14 at p.13-14. Finally, I Corporal McDonald and Deputy Sheriff Booth testified the Defendant did not

possess a permit to carry a concealed firearm. N.T. 2/10/14 at pgs.14, 82-85.

This last element wL stipulated by the Defendant. Id. at p. 89.

This Court is satisfied the evidence presented by the Commonwealth

was sufficient to overcome the assertion that the verdict was not supported by

such evidence. The !evidence presented· by the Commonwealth, through

corroborated witness testimony and expert testimony evidence, clearly

established each and every element of each of the offense.

Next, the Defendant argues the Commonwealth failed to present

sufficient evidence tl prove that he was not at his place of business and that

business exception to 18 Pa. C.S.A. 6106 (b)(8) applies. Since the legal analysis

is the same for both ~guments we will address them simultaneously. First,

Defendant claims that he is exempt from the prohibition because he was

transporting his firJrm between work and home. The first exception states,

"any person while cJn:ying a firearm which is not loaded and is in a secure

wrapper and he is cairying it from the place of purchase to his home or place of

business, or to a plac~ of repair, sale or appraisal or back to his home or place

of business, or in moving from one place of abode or business to another or

'I 15

from his home to a racation or recreational home or dwelling or back ... " ll. Pa. C.S.A. 6106 (b).(8).

Clearly, this! exception clearly does not apply. The testimony, including

the Defendant's o 1testimony, established the firearm was in a holster on his

waistband, when br ught into the Processing Center located on the first floor of I . the Courthouse. N.T 2/10/14 at p. 104-105. Even by the Defendant's own

testimony the fireai4n was not in a 'secure wrapper.' N.T. 2/11/14 at p.79.

Additionally, he wal n't carrying the firearm from "his place of purchase, to his

place of business oTo a place of repair." The Defendant asserts that his "place

.. of business" is his tow truck. Therefore he alleges is permitted to carry his

firearm without a license in his truck, because of the business exception. To

interpret the language of 18 Pa. C.S.A. 6106 (b)(8) to include his vehicle in the

definition of "placeJofbusiness" would extend the exception to countless I individuals who work out of their car. Walton, 529 A.2d. at 17. This Court I does not accept the Defendant's interpretation and to adopt the general I I :I interpretation advanced by him would be to sanction the carrying of firearms II without a license by rll types of employees, "including cab drivers, limousine

drivers, ambulance iivers, traveling salesman, etc." Id. Therefore, the I I Defendant's argument must fail. I Second, Defeldant argues that the Court should grant his request for a

I Judgment of AcquittL because he is permitted to carry a concealed weapon 11 pursuant to the excellion outlined in 18 Pa. C.S.A. 6106 (b)(6). Specifically, !I the statute provides a 1exception for "agents, messengers and other employees i 16 Circulated 10/20/2015 01:28 PM

of common carriers] banks, or business firms, whose duties require them to

protect moneys, valuables and other property in the discharge of such duties."

18 Pa. C.S.A. 6106 (b)(6). This Court has addressed this argument in the

preceding section rtgarding the Defendant's requested jury instruction. For the

reasons stated previously the Defendant's argument must fail.

C. CON+ITUTIONALITY

Next, the Defendant challenges the constitutionality of 18 Pa. C.S.A. §

6106. The Pennsyl~ania Supreme Court has held that "a statute may be deemed

to be unconstitutionally vague if it fails in its definiteness or adequacy of

statutory expression. The "void-for-vagueness" doctrine implicates due process

notions that a statutl must provide reasonable standards by which a person may

gauge his future coJduct, i.e., notice and warning." Smith v. Goguen, 415 U.S.

566, 572, 94 S.Ct. 11242, 39 L.Ed.2d 605 (1974); Commonwealth v. Heinbaugh,

354 A.2d 244, 246 (Pa. 1976). Specifically, with respect to a penal statute, the

Pennsylvania Suprebe Court and the United States Supreme Court have found

that in order for a st~tute to withstand constitutional scrutiny, based upon a

challenge of vagueness, a criminal statute must "define the criminal offense I with sufficient definiteness that ordinary people can understand what conduct is

prohibited and in a lanner that does not encourage arbitrary and discriminatory

enforcement." KolJnder v. Lawson, 461 U.S. 352, 357. Conm1onwealth v.

Mayfield. 832 A.2d 418, 422 (2003); Commonwealth v. Mikulan. 470 A.2d

1339, 1342 (1983), see also Heinbaugh. 354 A.2d at 246.

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Reviewing courts have "looked at the statutory language itself, and have

interpreted that lanbage, to resolve the question of vagueness."; Mayfield, 832

A.2d at 422; Colonwealth v. Cotto.· 753 A.2d 217, 220 (Pa.2000). Iri doing I so, however, "our Court has cautioned that a statute is not to be tested against

paradigms oflegisltive draftsmanship," Heinbaugh, 354 A.2d at 246, and

"thus, will not be Jclared unconstitutionally vague simply because the

Legislature could Jave "chosen 'clear and more precise language' .... " Id. In

other cases "the Courts have also looked to the legislative history and the

purpose in enacting a statute in attempting to discern the constitutionality of the I statute." See United States Civil Serv. C01mn111 v. Nat1l Ass'n of Letter-Caniers,

413 U.S. 548, 57Jl75, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Cotto. 753

A.2d at 221.

The statute, in clear language, defines the criminal offense with

sufficient definiteness, so that ordinary people can understand what conduct is l prohibited (i.e. the rohibition of carrying a concealed firearm without a I license) and in a manner that does not encourage arbitrary and discriminatory I I enforcement. The Defendant had a firearm concealed on his person when he

was brought into tiJ Processing Center after his arrest. Three (3) Scranton

Police Officers and~ Deputy Sheriff failed to observe the firearm during their

encounter with the Defendant. The gun was found as the Defendant was being

patted down by De Ly Rinaldi. N.T. 2/10/14 pgs.15. 44, 63. 105. It was

located underneath fhe Defendant's hooded sweatshirt. The Defendant did not

have a permit to car ·y a concealed firearm. The conduct is clearly prohibited

18 Circulated 10/20/2015 01:28 PM

and it is so in a manner that does not encourage arbitrary and discriminatory

enforcement.

D. WITNESSES

I I 11,e Defentt alleges that the Court erred in allowing Detective

Christopher Kolchamo to testify as to matters reserved for expert witnesses.

11,e Defendant als, avers that the Court erred in allowing Lackawanna County

Sheriffs Deputy Je' a Booth to testify as to the applicable law regarding

firearms in Pennsylania. This Court will address each averment separately.

Detective Kolchamo was not originally on the Commonwealth's

witness list. N.T. 21/11/14 p.5..:6. The Commonwealth announced he would be

called to testify aftJr the Defense raised the issue of operability during cross-

I examination of Coronwealth witnesses on the first day of trial. Id. at p.4.

Specifically, the following exchange took place during cross-examination of

Corporal McDonald: I I Q: CJouldn't fire it, correct? 11 I A: I there was one in the- you don't need a magazine in the I weapon to fire it. There could be one in the chamber. I. Q: lid you check the weapon?

A: I never saw the weapon because it was concealed on him at

the tine of the traffic stop-the incident. I found out later that

he bJrught the concealed weapon into the Processing Center

where it was found by the Deputies.

I l 19

\1 Circulated 10/20/2015 01:28 PM

Q: You've had three months before you sat here today. Did you

ever test fire the weapon?

A: 1 o. Q: And you indicate, well, you could fire the gun even without a

magLine. There's a certain guns that you can't do that with,

correct? I A: I m not a weapon expert. I couldn't tell you.

Q: All right. So the condition that you found it in his person, I you don't know that it was capable of discharging anything?

A: It looked operable.

Q: !hat's it and he's here.

A: Right.

Q: Facing a charge. That's all you could say. That's the best

evidence that you have that it might have been operable.

A: The best evidence I have is I have a weapon. The law

doesl,t say if it's loaded or unloaded. It just says that you have

11 a wejpon on your person concealed which he did.

Q: Tt1at's not what the law states. That's not what the law

statesr

A: Okay.

N.T. 2/10/14 p.30-311. I In response t(i) the above exchange, the Commonwealth sought to call

Detective Christophl Kolchamo as a witness for the purpose of demonstrating

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the firearm's opera ility. Prior to Detective Kolchamo's testimony, an

objection was raise by the Defense. The Defendant objected to the testimony

on the grounds that Detective Kolchamo 's testimony constituted matters

reserved for experts. N.T. 2/11/14 at p.5-6. Additionally, the Defense argued

the testimony was ihadmissible because the Commonwealth failed to provide I sufficient notice and/or an expert report in compliance with the rules of criminal I procedure. A lengthy sidebar conference was held in which all of the issues

surrounding I Detective Kolcharno' s testimony were discussed. Id. at p. 1-19, I 27-37, 55-59. 109-111. The Court allowed the Commonwealth to present the

testimony and gave lthe Defendant the option of calling his own witness to

testify about the operability of the fireann. The defense chose not to call a I witness. N.T. 2/11/14 at p.37-38, 109-111.

I I This Court finds Detective Kolcharno's testimony was proper because

Ij Defense counsel raised the operability of the firearm as a possible defense I during cross-examination of Commonwealth witnesses. The Pennsylvania

Superior Court has tdressed the issue of operability in Commonwealth v.

Harshaw, 346 A.2d.1340 (Pa. Super.1975). In Harshaw, the Superior Court

ruled the Common1ealth "need not show the weapon to have been operable

until the evidence o its operability has been introduced into evidence."

Harshaw, 346 A.2d at 340, citing Commonwealth v. Layton, 307 A.2d. 843

(Pa.Super.1973). D ltective Kolchamo during his testimony demonstrated to

the jury how the firearm operated. N. T. 2/11/14 at pgs.3 8-42. He explained the

. operation an d ~· I runcti. , na 1·ity o f a pisto . 1 magazme. . Id O n cross-exammation _. . . tlre

21 11

Defense questioned the Detective regarding the weapons ability to operate ·

without a magazin1. Id. at p.42-48. He testified that the firearm is capable of

discharging a roun with or without a magazine. Id. at p.46.

The Cami's\ analysis into the admissibility of Detective Kolchamo's

testimony must begin by reviewing the Pennsylvania Rules of Evidence. I Pa.R.E. 401 states 'tvidence is relevant if it has any tendency to make a fact

more or less probable than it would be without the evidence; and the fact is of

consequence in det1nnining the action. Whether evidence has a tendency to

make a given fact rriore or less probable is to be determined by the court in the

light of reason, exptrience, scientific principles and the other testimony offered

I in the case. The relevance of proposed evidence may be dependent on evidence 11 not yet of record." Pa.R.E. Rule 401. II I Additionally, "a trial court has broad discretion to determine whether f II evidence is admissible and a trial court's ruling on an evidentiary issue will be I, j. reversed only if the rurt abused its discretion." Commonwealth v. Cook, 676

A.2d 639, 647 (Pa.1996). A ruling admitting evidence "will not be disturbed on I appeal unless that ruling reflects manifest unreasonableness, or partiality, I ,, prejudice, bias, or illf will, or such Jack of support to be clearly erroneous."

Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa.Super.2010). Once the I Defense raised a challenge to the operability of the firearm, the Commonwealth I was required, per Harshaw to present evidence of the firearm's operability. As I such the evidence was clearly admissible pursuant to Pa. R.E. 401 and

Harshaw.

I 22 I, 11 Circulated 10/20/2015 01:28 PM

Next this clmi must consider whether Detective Kolchamo should have

been permitted to Jstify to matters reserved for expert witnesses. Pennsylvania

Rule of Evidence 7r2 governs expert witness testimony, it states: If scientific, technical or other specialized knowledge beyond that possessed lily a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in t le form of an opinion or otherwise.

Pa.R.E., Rue 702.

Pennsylvanila Courts have set the standard of review by stating

"generally speaking, the admission of expert testimony is a matter left largely to -. _. I - the discretion of thel trial comi, and its rulings thereon will not be reversed

absent an abuse of discretion." Commonwealth v. Brown, 596 A.2d 840, 842

(Pa.Super.1991). J expert's testimony is admissible when it is based on facts

ofrecord and will not cause confusion or prejudice. Conunonwealth v. Watson,

945 A.2d 174, 176. (Pa.Super.2008). Where the evidentiary question involves a

discretionary rulingJ the reviewing Court' s scope of review is plenary, therefore I I II the appellate court may review the entire record in making its decision. I Commonwealth v. Delbridge, 859 A.2d 1254, 1257 (Pa.2004).

Defense com\ sel raised operability of the firearm as a possible defense

to the charge of Carrying a Firearm Without a License during cross-

exarnination. N.T. J/10/14 p.30-31. The Commonwealth was then required to

prove the firearm w~s operable thus making Detective Kolcharno's testimony

relevant. Harshaw, 346 A.2d at 340. Detective Kolchamo testified he is a

Detective for the LaJkawanna County District Attorney's Office and is a

23 Circulated 10/20/2015 01:28 PM

fireanns instructor for his department. N.T. 2/11/14 p.39. Additionally, he is

employed privatel I as a firearms instructor for the Commonwealth of

Pennsylvania. Id. e has been a Detective since June 2001. Id. This Court

finds because of his employment, he possessed specialized knowledge beyond

that of a lay personj as such he was properly permitted to testify as an expert.

Furthermore, this CJomi finds the operation of the firearm, a Kel-Tec Model

3AT, which is a .38r caliber semiautomatic pistol, "is beyond that possessed by

a layperson." Pa.R.E., Rule 702. As such, his testimony aided the jury in

understanding the Tidence and determining a fact at issue in the case. (ie. Was

the firearm operable?) Detective Kolchamo qualified as an expert by his

knowledge, skill, experience, training, and education. The jurors, as the finders

of fact, had the power to judge the testimony of Detective Kolcharno, and to I give his testimony the weight that they thought it deserved. The Defendant was

also given the full opportunity to cross examine Detective Kolcharno and to call

his own expert witness on the issue. N.T. 2/11/14 p.109-111. Therefore, based

on these facts and cil·cumstances, this Court will not upset the determination

made by the jury. Tre Defendant should be denied any of the relief that he 11 I

requests with respec to this claim.

Next, the Defendant alleges that the Court erred in allowing Deputy

Booth to testify as 11 the applicable law regarding firearms in Pennsylvania. Deputy Booth testified she is employed as a Deputy Sheriff for Lackawanna II County Sheriffs DeJaiiment. N.T. 2/10/14 at p. 75. Her responsibilities I I I include issuing permits to carry a concealed weapon. Id. She testified about the

I 24 I 11 'I Circulated 10/20/2015 01:28 PM

requirements for a , erson to carry a firearm concealed on their person or in

their vehicle. Id. · he also testified about the application process involved in

obtaining a license hrough the Lackawanna County Sheriff's Office. Id.

On direct examination, Assistant District Attorney Rinaldi asked Deputy

Booth the followinJ question, "what is your understanding of carrying in the

open?" Id. at p. 83. Defense Counsel objected and this Court overruled

defense counsel's objection. Id. Deputy Booth went on to state "my

understanding is th ~ if a citizen carries a loaded weapon in the open, they're

covered by the Constitution for that. They can carry a loaded handgun on their

-person in the open ld it's a Second Amendment right." Id. This testimony is

a statement of the lar- The question now is whether the admission of this

testimony constitutes reversible error.

The stai1dai·dl of review for this error is the harmless error doctrine.

Commonwealth v. sbotz, 84 A.3d. 294, 314 (Pa.2014). (" ... the harmless error I I II analysis is typically applied when determining whether the trial court erred in I . 11 i taking or failing to take certain action.") The Pennsylvania Supreme Court has

held "under the harrriless error doctrine, the judgment of sentence will be I affirmed in spite of the error only where the reviewing court concludes beyond I a reasonable doubt tllat the error did not contribute to the verdict."

'I I Commonwealth v. Moran, 104 A.3d 1136, 1150 (Pa.2014). Continuing

"whenever there is a leasonable possibility that an error might have contributed

to the conviction, the error is not harmless ... " Spotz, 84 A.3d. at 314.

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In closing j ry instructions this Court gave the following instruction, "it

is the Court' s responsibility to decide all questions of law. And you must

accept and follow ,y instructions and rulings on matters oflaw." N.T. 2/11/14

at p.224. In addition, this Court gave two additional cautionary instructions on

this issue. The first was during direct examination of Officer Christopher

Hallock. N.T. 2/10/i14. at p. 92. Then, again, during cross-examination of the

Defendant. N.T. 2Jll/14 at pgs. 97-98. In total, the jurors were instructed on

I four (4) separate oc asions that the Court is the judge of the law and the jury is

bound by the Comi'js instructions on what the law is. In order to determine if

testimony erroneously admitted contributed to the verdict, this Court must

. review th e testimony . I presente d i111 its .. entirety. A s previous . 1 y state dlt re

I Commonwealth presented four (4) law enforcement officers, each who testified

they did not observj the firearm on the Defendant's waistband. N.T. 2/10/14 I pgs.15. 44. 63, 105. Detective Kolcharno demonstrated to the jury that the I firearm was operabl . N. T. 2/10/14 p.30-31. Finally, Corporal McDonald,

Deputy Sheriff Booth and the Defendant all testified the Defendant did not have I a license to carry a tncealed weapon. In evaluating the testimony this Court is

satisfied the testimony even though it constituted error did not contribute to the

verdict. Moran, 104 A.3d. at 1150.

l E. CONCLUSION 11

In conclusio , the verdict of guilty on the one count of Carrying a I . Firearm Without a License was supported by the evidence offered at trial.

I I 26 Circulated 10/20/2015 01:28 PM

Throughout the co rse of the trial, the Commonwealth, through corroborated

witness testimony Ind other sufficient evidence, proved each and every element

of the offense. Therefore, this Court finds that the issues raised in the

Defendant's StateiJent of Matters Complained of on Appeal are without merit.

BY THE COURT

I 1 I

I II Il

lI