Commonwealth v. Bigelow

399 A.2d 392, 484 Pa. 476, 1979 Pa. LEXIS 479
CourtSupreme Court of Pennsylvania
DecidedMarch 16, 1979
Docket796 and 16
StatusPublished
Cited by101 cases

This text of 399 A.2d 392 (Commonwealth v. Bigelow) 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. Bigelow, 399 A.2d 392, 484 Pa. 476, 1979 Pa. LEXIS 479 (Pa. 1979).

Opinions

OPINION

NIX, Justice.

These two appeals involve the application of our decision in Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975), to section 6108 of the Uniform Firearms Act, 18 Pa.C.S.A. § 6108 (1973), and its predecessor, 18 P.S. § 4628(e,2). In McNeil, this Court held that the Commonwealth has the burden of affirmatively proving in prosecutions for carrying firearms without a license under former section 4628(e) of the Act, now codified at 18 Pa.C.S.A. § 6106, that the weapon involved was not licensed. We are asked to extend that burden to cases involving section 6108’s prohibition upon carrying firearms on public streets or public property in Philadelphia. For the reasons that follow, we believe that the McNeil decision is not applicable to prosecutions under section 6108 or its predecessor, section 4628(e.2).

[479]*479James Bigelow was arrested and charged with violations of sections 61061 and 61082 of the Uniform Firearms Act, [480]*480and of a weapons offense under 18 Pa.C.S.A. § 908. He was found guilty in the Municipal Court of violating section 6108, but because the Commonwealth failed to show that Bigelow did not have a license for the weapon involved — a .38 caliber automatic — the court failed to convict him under sections 6106 and 908. The Court of Common Pleas reversed the section 6108 conviction believing that our decision in McNeil compelled that result. The Commonwealth appealed to the Superior Court which reversed the Court of Common Pleas and reinstated the conviction, based on its earlier decision in Commonwealth v. Poindexter, 248 Pa.Super. 564, 375 A.2d 384 (1977).3 Commonwealth v. Bigelow, 250 Pa.Super. 330, 378 A.2d 961 (1977). We granted allocatur pursuant to 42 Pa.C.S.A. § 724(a) (1978).

Phillip Pope was tried and convicted of carrying a firearm without a license in violation of section 4628(e.2)4 of the Uniform Firearms Act, now 18 Pa.C.S.A. § 6108. Believing our McNeil decision to be controlling, the trial court sustained Pope’s motion in arrest of judgment because the Commonwealth failed to prove that Pope lacked a license for the rifle involved. The Commonwealth appealed to the Superior Court which reversed the arrest of judgment on the basis of its Poindexter decision. Commonwealth v. Pope, [481]*481250 Pa.Super. 626, 379 A.2d 603 (1977). We granted allocatur.5

In Commonwealth v. McNeil this Court held that the absence of a license is an essential element of the crime of carrying a firearm without a license as prohibited by former section 4628(e) of the Uniform Firearms Act. This section provided in relevant part:

Firearms not to be carried without a license; exceptions (e) No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed plaee of business, without a license therefor as hereinafter provided.
* * * * * *

18 Pa.C.S.A. Appendix, § 4628(e) (1973). In analyzing this section, the Court stated:

The structure of the statute and the nature of the prohibition convince us that the absence of a license is an essential element of the crime. ... It follows, therefore, that the Commonwealth had the burden of establishing this element beyond a reasonable doubt. Commonwealth v. McNeil, 461 Pa. at 715, 337 A.2d at 843 (emphasis added).

The language employed by the Court indicates that it did not intend to announce a principle applicable to all weapons offenses. Rather, the Court’s ruling is based on the peculiar wording of section 4628(e). The structure and phrasing of section 6108 and its predecessor section 4628(e.2) are so different from that of section 4628(e) as to require us to conclude that the McNeil decision is inapposite. '

In interpreting the statute before us, our goal is to ascertain and effectuate the intention of the legislature. 1 [482]*482Pa.C.S.A. § 1921(a) (1978-79 Supp.). In so doing, we are called upon to use a common sense approach in which words and phrases are examined according to established rules of grammar and according to their common usage. Id. at § 1903(a). We are guided by the presumption that the legislature did not intend a result that is absurd, unreasonable, or impossible of execution. Id. at § 1922(1).

For convenience, our examination of the statute involved in these cases will focus on sections 6106 and 6108 of the new crimes code, the pertinent provisions of which are set forth in notes 1 and 2, supra. Our analysis applies with equal vigor to the virtually identical antecedents of these sections in the old crimes code, sections 4628(e) and 4628(e.2), respectively.

The titles of these two sections indicate that the legislature intended that the offenses prescribed by sections 6106 and 6108 to consist of differing elements. That 6106 requires that the absence of a license is to be proven by the prosecution as an element of the crime is shown by the title of that section: “Firearms not to be carried without a license.” The title of section 6108, on the other hand, merely states “Carrying firearms on public streets or public property in Philadelphia.” Although this difference alone does not compel us to state that non-licensure is not an element of á section 6108 offense, it is strong evidence of such a legislative intent. See 1 Pa.C.S.A. § 1924 (1978-79 Supp.).

The language of each section also provides a key distinction. In section 6106, the phrase “without a license” appears without any words of exception. In section 6108, however, the material regarding licensure is set off by the word of exception “unless”, indicating it is in the nature of a proviso. See John V. Carr & Sons, Inc. v. United States, 326 F.Supp. 973, 975 (U.S.Cust.Ct.1971) and cases cited therein. The purpose of a proviso is to “qualify, restrain or otherwise modify the general language of the enabling provision.” Commonwealth ex rel. Margiotti v. Lawrence, 326 Pa. 526, 531, 193 A. 46, 48 (1937). Material placed in proviso is not [483]*483an element of the crime but rather a matter of defense and need not be either plead or proved by the prosecution. United States v. Winnicki, 151 F.2d 56, 58 (7th Cir. 1945) and cases cited therein.

In McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301 (1922), the Supreme Court of the United States had occasion to state:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Linton, B., Aplt.
Supreme Court of Pennsylvania, 2025
Mezzacappa, T. v. Northampton Co., Aplt.
Supreme Court of Pennsylvania, 2025
SAVAGE v. LEDERER
E.D. Pennsylvania, 2024
Downs Racing, L.P. v. Com. of PA
Commonwealth Court of Pennsylvania, 2022
Commonwealth v. Hicks, M., Aplt.
208 A.3d 916 (Supreme Court of Pennsylvania, 2019)
In re T.S.
192 A.3d 1080 (Supreme Court of Pennsylvania, 2018)
Commonwealth v. Karash
175 A.3d 306 (Superior Court of Pennsylvania, 2017)
United States v. McMillan
227 F. Supp. 3d 432 (W.D. Pennsylvania, 2017)
Osborne v. Lewis
59 A.3d 1109 (Superior Court of Pennsylvania, 2012)
United States v. Caesar Holloway
489 F. App'x 591 (Third Circuit, 2012)
Fletcher v. Pennsylvania Property & Casualty Insurance Guaranty Ass'n
985 A.2d 678 (Supreme Court of Pennsylvania, 2009)
Commonwealth v. Zortman
985 A.2d 238 (Superior Court of Pennsylvania, 2009)
Commonwealth v. Hoke
962 A.2d 664 (Supreme Court of Pennsylvania, 2009)
United States v. Cooper
293 F. App'x 117 (Third Circuit, 2008)
Capital Bluecross v. Pennsylvania Insurance Department
937 A.2d 552 (Commonwealth Court of Pennsylvania, 2007)
Commonwealth v. Dickson
918 A.2d 95 (Supreme Court of Pennsylvania, 2007)
United States v. Bond
173 F. App'x 144 (Third Circuit, 2006)
Weiner v. Fisher
871 A.2d 1283 (Superior Court of Pennsylvania, 2005)
Yost v. McKnight
865 A.2d 979 (Commonwealth Court of Pennsylvania, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
399 A.2d 392, 484 Pa. 476, 1979 Pa. LEXIS 479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-bigelow-pa-1979.