Commonwealth v. Berta

514 A.2d 921, 356 Pa. Super. 403, 1986 Pa. Super. LEXIS 12190
CourtSupreme Court of Pennsylvania
DecidedSeptember 2, 1986
Docket994
StatusPublished
Cited by9 cases

This text of 514 A.2d 921 (Commonwealth v. Berta) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Berta, 514 A.2d 921, 356 Pa. Super. 403, 1986 Pa. Super. LEXIS 12190 (Pa. 1986).

Opinions

KELLY, Judge:

This is an appeal from the Court of Common Pleas of Crawford County, Pennsylvania, judgment of sentence of July 1, 1985, by the Honorable P. Richard Thomas, whereby defendant was sentenced to serve eight (8) to twenty-four (24) months imprisonment, to be computed from November 6, 1984, the date of appellant’s original incarceration in the Crawford County Jail. Appellant, James William Berta, was found guilty under 18 Pa.C.S.A. §§ 6106 and 6118 of the Uniform Firearms Act for carrying, without a license, a replica of an antique revolver concealed upon his person.

In this, case, appellant purchased the firearm in question as a kit at a local department store and subsequently assembled it into a replica of a cap and ball revolver common in the late nineteenth century. No permit was required for this over-the-counter purchase. In order to fire the gun, black powder, percussion caps, and lead balls were required as well as a working knowledge of its loading procedure. At the time he was cited for the alleged violation, the gun was not loaded, appellant was not in control of the materials necessary to fire the gun and there was no indication that he had ever purchased such materials. (N.T. 8).

We adopt the remaining findings of fact as ably set forth by the court below as follows:

On November 6,1984, Trooper Dan Lloyd of the Pennsylvania State Police was attempting to locate the Defendant while investigating an unrelated burglary matter. He found the Defendant at the residence of a friend. As the trooper entered the friend’s residence1 he saw the Defendant and saw the butt of what appeared to be a pistol [406]*406protruding above the Defendant’s belt line and partially concealed2 by a coat the Defendant was wearing. The trooper promptly approached the Defendant, pulled the gun out of his belt line and subsequently filed charges of carrying an unlicensed weapon. At the nonjury trial the facts were not substantially in dispute and the Defendant testified in his own defense that he had purchased the gun in the form of an antique gun kit at the K-Mart Shopping Center the day before and had assembled the five (5) parts to form a working replica of an antique pistol popular in the 1800’s. The Defendant’s contention was that he had purchased it for a showpiece to hang on his wall.

(Trial court opinion at 2).

The issue before this Court is whether it was unlawful under the provisions of Sections 6106 and 6118 of the Uniform Firearms Act for appellant to possess in a concealed fashion an unloaded, unlicensed replica of an antique firearm.

Mr. Berta, appellant herein, argues that the lower court should not have concluded that the kit gun, being a replica of an antique revolver, was in violation of the Uniform Firearms Act where the revolver was not suitable for use. Appellant argues that because the antique replica in question was not loaded and appellant did not have within his possession at the time of his arrest the cap, balls or powder required to fire the weapon, that the replica firearm was not suitable for use and thus not in violation of the Uniform Firearms Act.

Moreover, appellant argues that under the caselaw of this Commonwealth he cannot be found guilty of violating Sec[407]*407tions 6106 and 6118 of the Uniform Firearms Act, citing Commonwealth v. Layton, 452 Pa. 495, 307 A.2d 843 (1973) and Commonwealth v. Siiams, 260 Pa.Super. 409, 394 A.2d 992 (1978) in support of his contention. Appellant cites Siiams and Layton for the principle that the gun in question must be loaded and “capable of firing a shot” at the moment of the alleged violation in order to be considered “suitable for use” as the language of the Act mandates. We disagree with these contentions and affirm the decision of the lower court.

With respect to this appeal, one of the applicable sections of the Pennsylvania Uniform Firearms Act, as noted previously, is Section 6106 which reads substantially as follows:

(a) Offense defined—
No persons shall carry a firearm in any vehicle or concealed on or about his person except in his place of abode or fixed place of business without a license therefore as provided in this subchapter.

Initially, we find that Section 6106(a) describes those firearms which shall not be maintained without a license. “No persons shall carry a firearm in any vehicle or concealed on or about his person ... without a license ... ”, the exceptions to this principle being “except in his place of abode or fixed place of business ... as provided in this subchapter.” We know that the facts of this case show that appellant was not in his place of abode or fixed place of business, but was located on the porch of a friend’s residence. Consequently, none of the exceptions as listed in Section 6106(a) apply to this case. Second, Trooper Lloyd, who cited appellant for the instant violation, testified that the firearm was possessed in a concealed fashion as described in the lower court’s opinion, supra. Third, neither party disputed the fact that the firearm was unlicensed. (N.T. 8,10). The gun was concealed on his person, unlicensed and not found in his “place of abode” or “place of business”. Hence, relying for the moment on the assumption that the gun involved can be characterized as a “firearm” as defined in the Uniform [408]*408Firearms Act, to be discussed infra, appellant was rightfully cited for violation of Section 6106.

To answer the question of whether the gun involved is a “firearm,” we must analyze Sections 6102 and 6118. Section 6102 of the Act defines “firearm” as follows:

Any pistol or revolver with a barrel less than 12 inches, any shotgun with a barrel less than 24 inches, or any rifle with a barrel less than 15 inches.”

18 Pa.C.S.A. § 6102.

Trooper Lloyd’s testimony at trial revealed that the barrel of the antique gun replica was approximately six inches, thus clearly within the twelve inch maximum stated in Section 6102. (N.T. 7). Section 6118 refers to replicas of antique firearms. This section reads in part:

(a) General Rule. — This subchapter shall not apply to antique firearms.
(c) Definition. — For the purpose of this section “antique firearm” means:
(1) any firearm, including any firearm with ... percussion cap or similar type of ignition system ... and
(2) any replica of any firearm described in paragraph (1)----”

Thus, under the general rule, the firearm in question qualifies as a replica of such an antique firearm, and the Act would not apply in this case.

However, Section 6118(b) lists two exceptions which relate to Section 6106 and Section 6105, respectively. This section reads:

(b) Exception.

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Cite This Page — Counsel Stack

Bluebook (online)
514 A.2d 921, 356 Pa. Super. 403, 1986 Pa. Super. LEXIS 12190, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-berta-pa-1986.