Commonwealth v. Poindexter

375 A.2d 384, 248 Pa. Super. 564, 1977 Pa. Super. LEXIS 2035

• Court: Superior Court of Pennsylvania
• Decided: June 29, 1977
• Docket: 402
• Status: Published

Opinions

VAN der VOORT, Judge:

Appellant Gregory Poindexter was arrested on December 13, 1974, and was charged with possessing an instrument of crime, possessing a prohibited offensive weapon, carrying a firearm without a license, and carrying a firearm in a public place in Philadelphia.¹ On July 7,1975, appellant was found guilty in Philadelphia Municipal Court of carrying a firearm without a license (§ 6106) and of carrying a firearm in a public place in Philadelphia (§ 6108); appellant was given a suspended sentence on the § 6106 conviction and was placed on five years probation on the § 6108 conviction. On July 17, 1975, appellant filed a petition with the Court of Common Pleas of Philadelphia County for a writ of certiorari.² The Court of Common Pleas issued the writ and, after reviewing the record and finding that the Commonwealth had failed to establish an essential element of the offense, by Order dated October 23, 1975, reversed the convictions and remanded the case to the Municipal Court for a new trial. Appellant then appealed to our court, arguing that the Court of Common Pleas erred in ordering a new trial instead of arresting judgment.

It is clear that due process requires the prosecution in a criminal case to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. In re Win-ship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In the case before us, the Philadelphia Court of Common Pleas found that the Commonwealth had failed to prove an element of the crimes of carrying a firearm without a license and carrying a firearm in a public place in Philadelphia; specifically, the court found that the Commonwealth had failed to prove that appellant was not licensed to carry a gun. The court based this ruling on our Supreme Court’s decision in Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). In McNeil, the Supreme Court reviewed the conviction of a person charged with violating 18 Pa.C.S. § 6106, found that the record did not contain a single word relating to the appellant’s lack of a license, and ordered the appellant discharged. Although the record in the case before us reveals that the gun which appellant Gregory Poindexter was carrying at the time of his arrest had been purchased ten months prior to appellant’s arrest by someone other than appellant, there is no testimony to show that appellant did not have, at the time of his arrest, a license for the gun. The Court of Common Pleas properly found that the Commonwealth failed to sustain its burden with respect to the § 6106 offense.

At first glance, it would appear that 18 Pa.C.S. § 6106 and 18 Pa.C.S. § 6108 should be treated alike — that since the Commonwealth must prove lack of a license as an element of § 6106, it must also prove lack of a license as an element of § 6108. A close analysis of the syntax in the two sections indicates, however, that the legislature did not intend that lack of a license should be an element of a § 6108 offense. Section 6108 states: “No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless (1) such person is licensed to carry a firearm; or (2) such person is exempt from licensing under § 6106(b) of this title (relating to firearms not to be carried without a license).”³ The structure of the sentence which delineates a § 6108 offense (with subsections (1) and (2) following a colon) is such that the two subsections are of equal value: the positions of the two clauses could even be reversed without changing the meaning of the sentence. Were we to hold that the Commonwealth had to prove as an element of a § 6108 offense that the accused did not have a license to carry the firearm, we would have to further conclude that the Commonwealth also had to prove, in every case, that the accused was not a member of an approved organization and on the way to or from target practice or a meeting, that the accused was not carrying the weapon in the ordinary course of repairing or selling firearms, in short, that the accused was not exempt under any of the numerous other exceptions enumerated in sections 6108(2) and 6106(b). The legislature did not intend the Commonwealth to sustain such an impossible burden. We believe that the legislature must have intended that subsections (1) and (2) of § 6108 be treated as setting forth defenses which, if they are to be raised at all, must be raised by the one charged with the offense.

A license to carry a gun is a permission to do so and is neither an excuse nor a justification for carrying one. Lack of a license is made an element of § 6106 offense by definition of offense. Hence, the Commonwealth must prove such lack. Lack of a license on the other hand is not made an element of § 6108 offense by definition⁴ or otherwise. The Commonwealth is not required to prove the lack of a license to sustain a § 6108 charge. We find that the Court of Common Pleas was correct in finding that the Commonwealth failed to prove appellant guilty of carrying a firearm without a license; however, we find that the court erred in ordering a new trial as to the § 6106 charge instead of arresting judgment. See Commonwealth v. McNeil, supra. Accordingly, the order of the court below is modified, judgment in the § 6106 charge is arrested, and the appellant is discharged of the § 6106 offense.

Inasmuch as the court below has ordered a new trial as to the § 6108 charge, and since the Commonwealth has taken no appeal, that decision even though based upon faulty reasoning must stand. The order of the court below of October 23, 1975, from which this appeal is taken, as modified with respect to the § 6106 charge, is affirmed.

HOFFMAN, J., files a concurring and dissenting opinion in which SPAETH, J., joins. CERCONE, J., files a dissenting opinion in which SPAETH, J., joins.

1 . Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 907, 18 Pa.C.S. §§ 907, 908, 6106, 6108.

2 . Section 26 of the Schedule to Article 5 of the Pennsylvania Constitution provides: “Unless and until changed by rule of the Supreme Court, in addition to the right of appeal under section nine of this article, the judges of the courts of common pleas . . . shall have power to issue writs of certiorari to the municipal court in the City of Philadelphia.....” Although the Supreme Court, by Pennsylvania Rule of Criminal Procedure 159(e), has suspended the Act of Dec. 2, 1968, P.L. 1137, No. 355, § 6, 42 P.S. § 3006, the act which previously authorized courts of common pleas to issue writs of certiorari to minor judiciary courts, the Supreme Court has not specifically abolished certiorari. We must therefore assume that the courts of common pleas retain the power to issue writs of certiorari to the Philadelphia Municipal Court in non-summary criminal cases.

3 . 18 Pa.C.S. § 6106(b) exempts the following persons from licensing: “(1) Constables, sheriffs, prison or jail wardens, or their deputies, policemen of this Commonwealth or its political subdivisions, or other law-enforcement officers.

(2) Members of the army, navy or marine corps of the United States or of the National Guard or organized reserves when on duty.

(3) The regularly enrolled members of any organization duly organized to purchase or receive such weapons from the United States or from this Commonwealth.

(4) The members of any organization incorporated under the laws of this Commonwealth, engaged in target shooting with rifle, pistol, or revolver, if such members are at or are going to or from their places of assembly or target practice.

(5) Officers or employes of the United States duly authorized to carry a concealed firearm.

(6) Agents, messengers and other employes of common carriers, banks, or business firms, whose duties require them to protect moneys, valuables and other property in the discharge of such duties.

(7) Any person engaged in the business of manufacturing, repairing, or dealing in firearms, or the agent or representative of any such person, having in his possession, using or carrying a firearm in the usual or ordinary course of such business.

(8) Any person while carrying a firearm unloaded and in a secure wrapper from the place of purchase to his home or place of business, or to a place of repair or back to his home or place of business, or in moving from one place of abode or business to another.

(9) Persons licensed to hunt or fish in this Commonwealth, if such persons are actually hunting or fishing or are going to the places where they desire to hunt or fish or returning from such places.

(10) Persons training dogs, if such persons are actually training dogs during the regular training season.”

4 . The concurring and dissenting opinion of Judge Hoffman states that “[t]he existence of a license certainly provides a ‘justification or excuse’ for carrying a firearm on a public street.” Possession of a license cannot be considered either an “excuse” or a “justification” for carrying a gun in a public place in Philadelphia. An “excuse” imports an acquittal, release, absolution, or forgiveness. The definition found in Webster’s Third International Dictionary is: “a justifying explanation of fault or defect”, and something which is “exculpating, pardoning or release.” Black’s Law Dictionary defines excuse as “a reason alleged for doing or not doing a thing,” or “a plea offered in extenuation of a fault or irregular deportment”, or “a matter alleged as a reason for relief for exemption from some duty or obligation.” In contrast, a license indicates permission to do something. Webster’s defines license as a “right or permission to . .

do some act, or to engage in some transaction which but for such license would be unlawful.” Black’s states that a license is the authority or liberty given to do or forebear any act. Black’s also defines license as a “certificate or the document itself which gives permission.” An excuse is quite different from permission. Imagine a man about to get married telling his intended that he is going to the Court House to get an “excuse” to marry her. The word “justification” is defined in Chapter 5 of the Crimes Code: § 503 tells us that legal justification relates to conduct “which the actor believes to be necessary to avoid a harm or evil to himself or to another.” Possessing an official document granting permission to do something is not the same as having legal “justification” for doing that thing. Applying § 103’s unusual definition to § 302 does not make lack of a license an element of a § 6108 offense and does not place on the Commonwealth the burden of proving lack of a license.