COMMONWEALTH OF PENNSYLVANIA v. VICTOR NIEVES-CRESPO
No. 980 MDA 2023
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED MAY 17, 2024
J-S08010-24
MEMORANDUM BY OLSON, J.
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT O.P. 65.37
BEFORE: OLSON, J., MURRAY, J., and STEVENS, P.J.E.*
Appellant, Victor Nieves-Crespo, appeals from the judgment of sentence entered October 1, 2021, as made final by the denial of his post-sentence motion on June 26, 2023.1 We affirm.
The trial court summarized the relevant facts of this case as follows.
On July 3, 2020, Officer [Stacy] Karabin and Officer Camillocci2 of the Dickson City Police Department were dispatched by Lackawanna County Communications Center to the Main Street Bistro, located [along] Main Street in Dickson City[, Pennsylvania]. They had received a report of a Hispanic male wearing a tank top shirt and shorts pointing a gun at someone in a driveway. The 911 dispatcher further reported that the weapon used was a black handgun with a silver side. While
Police officers from neighboring Blakely Borough assisted in the pursuit and observed the subject vehicle at the intersection of Main Street and Mary Street in Dickson City. The only occupant in the vehicle was the driver, [] Appellant. A traffic stop was initiated and [] Appellant was ordered out of the vehicle. While standing at the driver‘s side front door, [] Appellant was seen reaching underneath the driver‘s seat of the vehicle. He was ordered to step away from the vehicle [and subsequently complied. The officers approached Appellant and], while patting him down, [] asked him if he had a firearm on him. [Appellant] stated that he did not have a firearm on his person, [but that] a firearm was under the driver‘s seat in the vehicle. Appellant was searched and taken into custody, where he was read his Miranda3 rights.
[] Appellant‘s vehicle was left running with the driver‘s door open. Blakely Borough Police Officer Michael Shaheen searched [] Appellant‘s vehicle, locating a black hard plastic box underneath the driver‘s seat. The box was removed and a firearm matching the 911 dispatcher‘s description was found inside. The police asked the dispatcher to run the serial number on the firearm, and it was determined that the firearm was last sold to Joline Mary Gish. The officers proceeded to search [Appellant‘s] vehicle, discovering a clear plastic bag containing a white, powdery substance in the center console of the [] vehicle. The firearm and plastic bag were placed in evidence. Officer [] Karabin weighed the plastic bag and utilized a NIK Drug Test Kit to test the substance which tested positive for [c]ocaine.
Trial Court Opinion, 11/27/23, at 1-3 (footnotes added).
The matter proceeded to a jury trial on April 21, 2021, wherein Appellant was convicted of the aforementioned charges. On October 1, 2021, the trial court sentenced Appellant to an aggregate term of 84 to 160 months’ incarceration. Appellant filed an untimely post-sentence motion on October 14, 2021. See
On September 26, 2022, Appellant filed a pro se petition pursuant to the Post-Conviction Relief Act (“PCRA“),
Appellant raises the following issues on appeal:5
- Whether trial counsel was ineffective for failing to raise Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020) when the case was decided before [Appellant] was convicted and, based upon definitive video evidence and police admissions, would have required suppression of all evidence in this case?
- Whether [Appellant‘s] conviction must be vacated and this case remanded for a new suppression hearing because the trial court failed to draft any findings of fact or conclusions of law as required and Superior Court case[] law provides that appropriate credibility determinations cannot be made years after the hearing took place?
- Whether the traffic stop of [Appellant‘s] vehicle was unconstitutional and therefore, this Honorable Court should
- Whether the evidence was sufficient to find [Appellant] guilty of the possession of firearm prohibited charge when the Commonwealth did not present sufficient evidence to prove [that Appellant] was the perpetrator of the prior crime?
- Whether [Appellant‘s] convictions under Section 6105 and 6106 of the Crimes Code must be vacated because the statutes as applied to [Appellant] violate his rights under the Second Amendment and Pennsylvania Constitution?
Appellant‘s Brief at 7-8 (unnecessary capitalization omitted).
In his first issue, Appellant raises a claim of ineffective assistance. More specifically, Appellant argues that trial counsel was ineffective for failing to file a motion to suppress based upon Alexander, supra, which held that, under Article I, Section 8 of the Pennsylvania Constitution, “a showing of [both] probable cause and exigent circumstances [is required] to justify a warrantless search of an automobile,” thereby overruling Commonwealth v. Gary, 91 A.3d 102, 138 (Pa. 2014). Alexander, 243 A.3d at 181.
In Commonwealth v. Grant, our Supreme Court held that, “as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002). In Commonwealth v. Holmes, our Supreme Court held that ”Grant‘s general rule of deferral to PCRA review remains the pertinent law on the appropriate timing for review of claims of ineffective assistance of counsel.” Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013).
First, . . . there may be extraordinary circumstances where a discrete claim (or claims) of trial counsel ineffectiveness is apparent from the record and meritorious to the extent that immediate consideration best serves the interests of justice; and we hold that trial courts retain their discretion to entertain such claims.
Second, . . . where the defendant seeks to litigate multiple or prolix claims of counsel ineffectiveness, including non-record-based claims, on post-verdict motions and direct appeal, we repose discretion in the trial courts to entertain such claims, but only if (1) there is good cause shown, and (2) the unitary review so indulged is preceded by the defendant‘s knowing and express waiver of his entitlement to seek PCRA review from his conviction and sentence, including an express recognition that the waiver subjects further collateral review to the time and serial petition restrictions of the PCRA.
Id. at 563-564 (citations and footnotes omitted). Thereafter, in Commonwealth v. Delgros, the Supreme Court recognized a third exception to Grant‘s general deferral rule. See Commonwealth v. Delgros, 183 A.3d 352 (Pa. 2018). The Delgros Court held that trial courts must “address claims challenging trial counsel‘s performance where the defendant is statutorily precluded from obtaining subsequent PCRA review.” Id. at 361.
Herein, Appellant did not waive his entitlement to seek future PCRA review and he is not “statutorily precluded from obtaining subsequent review.” Id. Therefore, Appellant‘s sole avenue for seeking review of his ineffectiveness claim is based upon Holmes‘s first exception, which involves
The vehicle stop and search in this instance occurred on July 3, 2020. Trial counsel filed a motion seeking to suppress the evidence against Appellant on October 2, 2020, alleging that the traffic stop of his vehicle was unconstitutional because it was based solely upon an anonymous tip.6 The trial court convened a hearing on Appellant‘s motion on December 11, 2020. Our Supreme Court did not issue Alexander, supra, until December 22, 2020. Thus, at the time of Appellant‘s vehicle stop, the filing of his suppression motion, and the suppression hearing, a warrantless search of an automobile based solely on probable cause was considered constitutionally permissible under Gary, supra. Appellant‘s claim, therefore, is rooted in his belief that trial counsel rendered ineffective assistance by failing either to anticipate the ruling in Alexander or to supplement his suppression filing in the intervening period between the publication of Alexander and the issuance of the order denying suppression. Pennsylvania law is clear that criminal defense counsel is not ordinarily deemed ineffective for failing to anticipate
In his second and third issues, Appellant raises claims regarding the disposition of his motion to suppress. In his second issue, Appellant challenges the trial court‘s failure to issue an order or opinion detailing its “findings of fact or conclusions of law” after the suppression hearing. Appellant‘s Brief at 31. Appellant argues that, in so doing, the trial court violated
We will first address Appellant‘s claim of error regarding the trial court‘s failure to enter its findings of fact and conclusions of law after the suppression hearing. Rule 581 of the Pennsylvania Rules of Criminal Procedure, in relevant part, states:
(I) At the conclusion of the [suppression] hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant‘s rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought.
We now turn to Appellant‘s challenge to the trial court‘s order denying his suppression motion. In its 1925(a) opinion, the trial court held that Appellant‘s initial seizure was constitutional because Officers Karabin and Camillocci possessed reasonable suspicion to stop Appellant. In support of this conclusion, the trial court stated:
Officer Karabin and Officer Camillocci received notice from a 911 dispatcher that a witness saw a Hispanic male arguing with another Hispanic male. The 911 caller stated that the ‘initial male’ pointed and racked a pistol and was in a ‘GMC [Acadia].’ The witness was identified as Luke A. Mushensky[,] Jr., and he provided a written statement. Officers were advised that the vehicle bore [a particular] Pennsylvania [r]egistration [] and was leaving the scene.
The vehicle was registered to [Appellant]. Officers were informed that [] Appellant fled the scene [in] the GM[C] Acadia, that the gun used was a black gun with a silver slide, and that the vehicle was fleeing toward the Giant supermarket in Dickson City[, Pennsylvania]. Blakley police located the vehicle in Dickson City and conducted a traffic stop. All the above information taken together gave officers the reasonable suspicion that criminality was afoot. The information received was specific to [] Appellant‘s description, the vehicle he was driving, and the direction he was traveling. Furthermore, the information was corroborated by the police officers within minutes. Accordingly, . . . the investigatory traffic stop was valid and lawful.
Trial Court Opinion, 11/27/23, at 9.
When reviewing the denial of a motion to suppress, we must consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Commonwealth v. Mbewe, 203 A.3d 983, 986 (Pa. Super. 2019) (citation omitted). We are bound by the suppression court‘s findings if they are supported by the record. Id. “Factual findings wholly lacking in evidence, however, may be rejected.” Commonwealth v. Dangle, 700 A.2d 538, 540 (Pa. Super. 1997) (citation omitted). We may only reverse the suppression
Importantly,
[O]ur scope of review from a suppression ruling is limited to the evidentiary record that was created at the suppression hearing. See In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).
Further,
Pa.R.Crim.P. 581 provides that “[t]he Commonwealth shall have the burden . . . of establishing that the challenged evidence was not obtained in violation of the defendant‘s rights.”Pa.R.Crim.P. 581(H) . Specifically, the Commonwealth has the burden of “establish[ing] by a preponderance of the evidence that the evidence was properly obtained.” Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011) (citation omitted).
Commonwealth v. Barnes, 296 A.3d 52, 55 (Pa. Super. 2023) (parallel citations and quotation omitted).
Under Pennsylvania law, there are three categories of police citizen interactions. As our Supreme Court has clearly articulated:
The first of these is a “mere encounter” (or request for information) which need not be supported by any level of suspicion, but carries no official compulsion to stop or to respond. The second, an “investigative detention” must be supported by a reasonable suspicion; it subjects a suspect to a stop and a period of detention, but does not involve such coercive conditions as to constitute the functional equivalent of an arrest. Finally, an arrest or “custodial detention” must be supported by probable cause.
Commonwealth v. Gutierrez, 36 A.3d 1104, 1107 (Pa. Super. 2012) (quotation omitted), appeal denied, 48 A.3d 1247 (Pa. 2012).
A police officer may detain an individual in order to conduct an investigation if that officer reasonably suspects that the individual is engaging in criminal conduct. “This standard, less stringent than probable cause, is commonly known as reasonable suspicion.” In order to determine whether the police officer had reasonable suspicion, the totality of the circumstances must be considered. In making this determination, we must give “due weight . . . to the specific reasonable inferences [the police officer] is entitled to draw from the facts in light of his experience.” Also, the totality of the circumstances test does not limit our inquiry to an examination of only those facts that clearly indicate criminal conduct. Rather, “[e]ven a combination of innocent facts, when taken together, may warrant further investigation by the police officer.”
Commonwealth v. Raglin, 178 A.3d 868, 872 (Pa. Super. 2018) (internal citations and quotation omitted).
Further:
“To have reasonable suspicion, police officers need not personally observe the illegal or suspicious conduct, but may rely upon the information of third parties, including ‘tips’ from citizens.” Commonwealth v. Lohr, 715 A.2d 459, 461 (Pa. Super. 1998) (quotation omitted). “Naturally, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.” [Commonwealth v.] Wiley, 858 A.2d [1191,] 1194 [(Pa. Super. 2004)] (quotation and quotation marks omitted). This Court has examined the requirements surrounding reasonable suspicion for automobile stops emanating from information provided by a tipster and has explained:
Reasonable suspicion, like probable cause, is dependent upon both the content of information possessed by police and its degree of reliability. Both factors—quantity and quality—are considered in the “totality of the circumstances—the whole picture,” that must be taken into
account when evaluating whether there is reasonable suspicion. Thus, if a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.
When the underlying source of the officer‘s information is an anonymous call, the tip should be treated with particular suspicion. However, a tip from an informer known to the police may carry enough indicia or reliability for the police to conduct an investigatory stop, even though the same tip from an anonymous informant would likely not have done so.
Lohr, 715 A.2d at 461–462 (quotation and citations omitted). Indeed, identified citizens who report their observations of criminal activity to police are assumed to be trustworthy, in the absence of special circumstances, since a known informant places himself at risk of prosecution for filing a false claim if the tip is untrue, whereas an unknown informant faces no such risk. Commonwealth v. George, 878 A.2d 881 (Pa. Super. 2005); Lohr, supra.
Commonwealth v. Barber, 889 A.2d 587, 593 (Pa. Super. 2005).
An anonymous tip, on the other hand, requires “[s]ome additional corroboration of [a suspect‘s] involvement in criminal activity . . . before a Terry7 stop may be undertaken.” Commonwealth v. Hayward, 756 A.2d 23, 32 (Pa. Super. 2000). Nonetheless, “when an anonymous tip predicts a person‘s future actions ordinarily not easily predicted, so as to demonstrate ‘inside information—a specific familiarity with [the person‘s] affairs[,]’ police corroboration of the prediction itself can support a finding of reasonable suspicion.” Commonwealth v. Fell, 901 A.2d 542, 545 (Pa. Super. 2006) (citation omitted).
We begin our analysis with a review of the evidence proffered by the Commonwealth during the suppression hearing. At the outset, we recognize that the Commonwealth relied solely upon the testimony of Officer Mercado and Officer Shaheen8 to oppose Appellant‘s suppression motion. In particular, Officer Mercado, a Senior Patrolman in the Blakely Borough Police Department, provided the following testimony. Officer Mercado stated that, on July 3, 2020, he received a dispatch from then “911 Comm[unication] Center]” indicating that an incident occurred in Dickson City involving an individual, described as “either a Hispanic male or a Mexican male,” who “brandished a firearm inside of a vehicle.” N.T. Suppression Hearing, 12/11/20, at 7-8. In addition, Officer Mercado testified that the dispatch provided the vehicle‘s license plate number, described the vehicle as a “beige/gold GMC Acadia,” “stated that the male left the scene in Area 23, in Dickson City, had started making his way toward [Blakely,]” and “was heading towards . . . the Dunkin Donuts.” Id. at 8-9. Officer Mercado explained that, in response to the aforementioned dispatch, he “started making [his] way” to
A review of the foregoing reveals two errors committed by the trial court. First, Officer Karabin and Officer Camillocci testified at trial but did not testify during Appellant‘s suppression hearing. Instead, the Commonwealth relied solely upon Officer Mercado‘s testimony to explain the circumstances of Appellant‘s initial seizure. Second, the Commonwealth did not introduce any testimony or evidence regarding the apparent witness in this matter, Luke A. Mushensky, Jr. The Commonwealth did not introduce the audio recording of the 911 call, a transcription of the 911 call, a report of the 911 call, or the testimony of the dispatcher. In addition, Officers Mercado and Shaheen did not provide any information regarding the source of the dispatcher‘s knowledge. Based upon the foregoing, we reject the trial court‘s conclusion
Upon review, we conclude that, based upon the totality of circumstances, the initial stop of Appellant‘s vehicle was supported by reasonable suspicion. First, we note that the anonymous tip contained a high degree of specificity. The report included a description of the suspect as a Hispanic or Mexican male, indicated that he drove a beige/gold GMC Acadia, and provided the vehicle‘s license‘s plate number. The report also relayed the direction in which the GMC Acadia traveled, noting that it was headed toward the Dunkin Donuts in Blakely. Importantly, Officer Mercado testified that he located the GMC Acadia, with the same license‘s plate number, heading in the predicted direction, while he received the dispatch. We therefore conclude that, given the specificity of the tip as well as Officer Mercado‘s simultaneous observation of the vehicle and driver described, the traffic stop in question was supported by reasonable suspicion. Compare Commonwealth v. Swartz, 787 A.2d 1021, 1025 (Pa. Super. 2001) (holding that the “absence of certain information coupled with the duration of time which passed between
In his fourth issue, Appellant contends that the Commonwealth presented insufficient evidence to sustain his conviction under
Our standard of review for a sufficiency challenge is well settled.
As a general matter, our standard of review of sufficiency claims requires that we evaluate the record “in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt.” Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005). Nevertheless, “the Commonwealth need not establish guilt to a mathematical certainty.” Id.; see also Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super. 2000) (“[T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant‘s innocence“). Any doubt about the defendant‘s guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. See
The Commonwealth may sustain its burden by means of wholly circumstantial evidence. See Brewer, 876 A.2d at 1032. Accordingly, “[t]he fact that the evidence establishing a defendant‘s participation in a crime is circumstantial does not preclude a conviction where the evidence coupled with the reasonable inferences drawn therefrom overcomes the presumption of innocence.” Id. (quoting Commonwealth v. Murphy, 795 A.2d 1025, 1038–1039 (Pa. Super. 2002)). Significantly, we may not substitute our judgment for that of the fact finder; thus, so long as the evidence adduced, accepted in the light most favorable to the Commonwealth, demonstrates the respective elements of a defendant‘s crimes beyond a reasonable doubt, the appellant‘s convictions will be upheld. See Brewer, 876 A.2d at 1032.
Commonwealth v. Rahman, 75 A.3d 497, 500-501 (Pa. Super. 2013) (parallel citations and quotation omitted).
This Court previously explained:
The Crimes Code prohibits a person who has been convicted, in this Commonwealth or elsewhere, of a[n enumerated offense] from having a firearm in his possession or under his control.
18 Pa.C.S. § 6105 . The Commonwealth must present evidence of a prior conviction of a crime of violence in order to sustain a conviction under Section 6105. Commonwealth v. Payne, 463 A.2d 451, 456 (Pa. Super. 1983).
Commonwealth v. Jones, 172 A.3d 1139, 1143 (Pa. Super. 2017) (parallel citations omitted).
The trial court described the evidence submitted by the Commonwealth in this instance as follows:
In the instant case, the Commonwealth alleged that Appellant had previously entered a guilty plea to a charge of Manufacture, Delivery, or Possession of a Controlled Substance With Intent to Deliver in Pennsylvania -
35 Pa.C.S.A. § 780-113(a)(30) .
Under Section 6105, [a conviction for violating
35 Pa.C.S.A. § 78–113(a)(30) ] precludes the possession, use or control of a firearm.18 Pa.C.S. § 6105(b) .In support of its claim that Appellant had a felony drug conviction, the Commonwealth presented the testimony of Mauri Kelly, Lackawanna County Clerk of Judicial Records. Ms. Kelly explained that she was an elected official who served as custodian of the criminal records in Lackawanna County. Based on the documents reviewed, she testified to [] Appellant‘s prior felony conviction. [See] N.T. Trial, 4/20/21, [at 13-15 (explaining that a review of the criminal record for “Victor Nieves-Crespo” revealed that he entered a guilty plea on July 7, 2011 to “manufacture, delivery, possession with intent to manufacture deliver” which is graded as “[a] felony“)]. In further support, the Commonwealth submitted [] Appellant‘s criminal record with the matching name[,] Victor Nieves[-]Crespo, [date of birth, July 4, 1987,] and [a matching Social Security Number].
Trial Court Opinion, 11/27/23, at 12-13.
Our review of the evidence confirms that, reviewing all of the evidence presented and drawing all reasonable conclusions therefrom, the Commonwealth presented sufficient evidence to prove that Appellant‘s prior drug conviction rendered him legally ineligible from possessing, using or controlling a firearm pursuant to Section 6105. Accordingly, Appellant‘s claim fails.
In his final issue, Appellant contends that
This Court previously explained:
A challenge to the constitutionality of a criminal statute presents us with “a pure question of law for which our standard
See Commonwealth v. McIntyre, 2024 WL 1245688 *1, *5 (Pa. Super. March 25, 2024) (addressing the appellant‘s constitutional challenge even though it was first raised in his supplemental post-sentence motion).
Right To Bear Arms
A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Inherent rights of mankind
All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.
Right to bear arms
The right of the citizens to bear arms in defence of themselves and the State shall not be questioned.
[A] statute is presumed to be constitutional and will only be invalidated as unconstitutional if it clearly, palpably, and plainly violates constitutional rights.
[A] defendant may contest the constitutionality of a statute on its face or as-applied. A facial attack tests a law‘s constitutionality based on its text alone and does not consider the facts or circumstances of a particular case. An as-applied attack, in contrast, does not contend that a law is unconstitutional as written but that its application to a particular person under particular circumstances deprived that person of a constitutional right. A criminal defendant may seek to vacate his conviction by demonstrating a law‘s facial or as-applied unconstitutionality.
Commonwealth v. Bradley, 232 A.3d 747, 756-757 (Pa. Super. 2020) (citation omitted [and] paragraph break added). “If there is any doubt that a challenger has failed to [demonstrate the] high burden [of establishing the unconstitutionality of a statute], then that doubt must be resolved in favor of finding the statute constitutional.” Collins, 286 A.3d at 785 (citation omitted).
Commonwealth v. Papp, 305 A.3d 62, 70–71 (Pa. Super. 2023), appeal denied, 2024 WL 1400084 (Pa. Apr. 2, 2024).
As Appellant bases his constitutional challenge to Section 6105 and 6106 on Bruen, we begin our analysis of Appellant‘s claim with a review of that decision. In Bruen, the United States Supreme Court addressed the constitutionality of a New York statute which required proper cause, or a special need for self-protection, to obtain a license to carry a handgun outside the home. Bruen, 597 U.S. at 12-13. In reaching this conclusion, the High Court initially rejected the “means-ends” approach developed by the courts of
The High Court then turn to the facts in Bruen. First, it determined that, because the petitioners in Bruen were “two ordinary, law-abiding, adult citizens” it was “undisputed” that they were “part of ‘the people’ whom the Second Amendment protects.” Id. at 32 (citation omitted). Second, it held, with “little difficulty,” that the petitioner‘s proposed conduct, i.e., “carrying handguns publicly for self-defense,” was protected by the “plain text of the Second Amendment.” Id. Finally, it determined, after a thorough review of
Importantly, in his concurring opinion, Justice Kavanaugh undertook to clarify the majority opinion. In so doing, Justice Kavanaugh initially noted that the “Court employ[ed] and elaborate[ed] on the text, history, and tradition test that Heller and McDonald required for evaluating whether a government regulation infringes on the Second Amendment right to possess and carry guns for self-defense.” Id. at 79 (Kavanaugh, J., concurring, joined by Roberts, C.J.). Justice Kavanaugh then went on to “underscore two important points about the limits of the Court‘s decision.” Id. He stated,
First, the Court‘s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court‘s decision does not affect the existing licensing regimes—known as ‘shall-issue’ regimes—that are employed in 43 States[, including Pennsylvania].
[Instead, t]he Court‘s decision addresses only the unusually discretionary licensing requirements, known as ‘may-issue’ regimes, that are employed by [six] States, including New York.
***
Second, as Heller and McDonald established and the Court today again explains, the Second Amendment “is neither a regulatory straightjacket nor a regulatory blank check.” Properly interpreted, the Second Amendment allows a “variety” of gun regulations. Heller, 554 U.S. at 636[.] As Justice Scalia
“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. . . . [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. [Footnote 26: We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.]
“We also recognize another important limitation on the right to keep and carry arms. [U.S. v. Miller, 307 U.S. 174 (1939)] said, as we have explained, that the sorts of weapons protected were those in common use at the time. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of dangerous and unusual weapons.” Heller, 554 U.S. at 626–627, and n. 26, (citations and quotation marks omitted); see also McDonald, 561 U.S. at 786 (plurality opinion).
Id. at 79-81 (parallel citations omitted) (emphasis in original).
We first address Appellant‘s challenge to Section 6105‘s constitutionality. To do so, we begin our analysis of Appellant‘s constitutional challenge with the threshold question posed by Bruen: whether Appellant is one of “the people” who have Second Amendment rights. Appellant offers no argument addressing this point.
Importantly, the question of whether a convicted felon is one of “the people” included within the protective sweep of the Second Amendment was recently addressed by a panel of this Court. See McIntyre, supra. Indeed,
Upon review, we conclude that, pursuant to McIntyre, Appellant, as a convicted felon, is not one of “the people” whose firearms rights are protected by the Second Amendment. As stated in McIntyre, Bruen is inapplicable to individuals with prior felony convictions. This determination is consistent with the contours of Bruen, as explained by Justice Kavanaugh, as well as four other justices in their various concurring/dissenting opinions. See Bruen, at 72 (Alito, J., concurring) (noting that the decision does not “disturb[] anything that [the Court] said in Heller or McDonald[,] . . . about restrictions that
In this same vein, we conclude that Bruen is inapplicable to Section 6106 and, as such, Appellant‘s constitutional challenge fails. As explained above, Bruen addressed the constitutionality of a New York statute which demanded that, prior to obtaining a license to carry a handgun in public for self-defense, a citizen was required to demonstrate “proper cause,” i.e., “a special need for firearm protection distinguishable from that of the general community.” Bruen, 597 U.S. at 12. Ultimately, the Bruen Court held that this “‘may-issue’ licensing regime for carrying handguns for self-defense violate[d] the Second Amendment.” Id. at 79 (Kavanaugh, J., concurring, joined by Roberts, C.J.).
In contrast, Section 6106 states, in relevant part,
Upon the receipt of an application for a license to carry a firearm, the sheriff shall, with 45 days, issue or refuse to issue a license on the basis of the investigation under subsection (d) and the accuracy of the information contained in the application.
We now turn to Appellant‘s claim that Section 6105 and 6106 violate Article 1, Section 21 of the Pennsylvania Constitution. Appellant herein urges
Based upon all of the foregoing, we conclude that Appellant‘s claim that Sections 6105 and 6106 violate his constitutional rights, both federal and state, fails.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 05/17/2024