192 A.3d 1198
Pa. Super. Ct.2018Background
- Defendant Darren Montgomery was charged with carrying a firearm without a license (18 Pa.C.S. § 6106) and carrying a firearm on public streets (§ 6108); municipal court preliminarily bound over the § 6108 charge but dismissed § 6106 for lack of a prima facie case.
- At the preliminary hearing police Officer McCuen testified he saw Montgomery "messing with" what appeared to be a gun handle tucked in Montgomery’s waistband; only the handle was visible.
- Montgomery walked into a store after seeing the officer, then turned back into the store upon noticing the officer; the officer followed and stopped him.
- No gun was found on Montgomery; a firearm was recovered several feet away on top of a rack of potatoes in the store; the cook was the only other person in the small store.
- The municipal court relied on Commonwealth v. Williams in quashing § 6106; the Commonwealth refiled and renewed the § 6106 charge but the court again dismissed it; Commonwealth appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a firearm with only the handle visible in the waistband is "concealed" under § 6106 | The visible-handle-in-waistband is sufficient concealment to establish a prima facie case (and facts support intentional concealment) | Placement and visibility are insufficient; no evidence of intent to conceal (relying on Williams) | Reversed: partial concealment (handle visible) can satisfy § 6106 and evidence supported an inference of knowing concealment |
| Whether the Commonwealth met its burden to show culpable mental state for concealment element | Evidence that Montgomery turned and moved into store upon seeing officer supports knowing/reckless concealment | Defense contended any placement was mere negligent carrying, not intentional concealment | Held that testimony permitted a factfinder to infer Montgomery knowingly attempted to conceal the weapon |
Key Cases Cited
- Commonwealth v. Scott, 436 A.2d 607 (Pa. 1981) (Supreme Court held testimony that defendant pulled something that looked like a gun from waistband was sufficient to sustain concealment)
- Commonwealth v. Williams, 346 A.2d 308 (Pa. Super. 1975) (evidence insufficient where defendant publicly brandished and then placed gun in belt without proof of attempt to conceal)
- Commonwealth v. Karetny, 880 A.2d 505 (Pa. 2005) (standards for prima facie case at preliminary hearing)
- Commonwealth v. Scott, 176 A.3d 283 (Pa. Super. 2017) (§ 6106 requires proof of intentional, knowing, or reckless conduct as to each element, including concealment)