COMMONWEALTH of Pennsylvania, Appellee, v. Joseph BAVUSA, Appellant.
832 A.2d 1042
Supreme Court of Pennsylvania.
Decided Sept. 29, 2003.
Re-Submitted Oct. 29, 2002.
Chief Justice CAPPY and Justice NIGRO join this concurring opinion.
Hugh J. Burns, Philadelphia, for Commonwealth of PA.
Before CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN AND LAMB, JJ.
OPINION OF THE COURT
Justice CASTILLE.
In 1997, the Pennsylvania General Assembly amended Section 6106 of the Uniform Firearms Act (codified in the Crimes Code at
At 7:00 p.m. on October 18, 1997, two Philadelphia police officers observed appellant, Joseph Bavusa, directing cars into a parking lot. As appellant reached up to point towards the lot, one officer saw a black handgun in a belt holster, partially concealed under appellant‘s jacket. Upon investigation, appellant told the officers that he was licensed to carry the handgun, but a police radio check proved that assertion to be false. Police seized from appellant a .32 caliber Walther semi-automatic handgun, which was loaded with six live rounds in the magazine and one round in the chamber. Appellant was arrested and subsequently charged with violating Sections 6106 and 6108 of the Uniform Firearms Act.
Section 6106 prohibits the carrying of a concealed firearm without a license (subject to enumerated exceptions, see
(a) Offense defined.—
(1) Except as provided in paragraph (2), ... any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.
...
(2) A person who is otherwise eligible to possess a valid license under this chapter but ... carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other
criminal violation commits a misdemeanor of the first degree.
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 section 6106 of this title....
Appellant waived his right to a jury trial and proceeded to a bench trial before the Honorable Barbara A. Joseph. After the Commonwealth presented its case-in-chief, the trial court asked whether the Commonwealth would be presenting evidence regarding appellant‘s eligibility to carry a firearm. The Commonwealth argued that license ineligibility and commission of other criminal violations are sentencing factors, consideration of which is properly deferred pending a verdict. The Commonwealth rested and appellant presented his defense, which consisted of admitting that he carried the handgun without a license, but denying that it was concealed. Appellant did not contest his criminal liability under Section 6108, which lacks a concealment element, nor does he presently challenge that conviction. Appellant further argued that license ineligibility or commission of another criminal violation were factors establishing an additional material element of a Section 6106(a)(1) felony offense, which the Commonwealth was required to establish beyond a reasonable doubt. Appellant averred that the Commonwealth had failed to prove either disqualifying factor.
The trial court found appellant guilty of both offenses. The trial court then turned to the proper grading of the Section 6106 offense, asking the Commonwealth if it had any evidence
Appellant filed a post-sentence motion challenging the felony gradation of his Section 6106 conviction. The trial court denied relief. In an amended opinion, the trial court suggested that appellant had the burden of establishing license eligibility and an unblemished criminal record in order to reduce the presumptive felony grading of the Section 6106(a) conviction to a misdemeanor, and that he had failed to carry that burden.
Appellant renewed his Section 6106(a) grading claim on appeal to the Superior Court, which affirmed the judgment of sentence. Commonwealth v. Bavusa, 750 A.2d 855 (Pa.Super.2000). The panel began its analysis of the issue with a lengthy block quotation from this Court‘s decision in Commonwealth v. Lopez, 523 Pa. 126, 565 A.2d 437 (1989). In Lopez, this Court construed the predecessor to Section 6106—in particular, the clause (which has been carried over verbatim into the present version of the statute) prohibiting the unlicensed carrying of a concealed firearm by any person “except
Such conduct or such attendant circumstances or such a result of conduct as:
(1) is included in the description of the forbidden conduct in the definition of the offense; ...
The Bavusa panel‘s lengthy quotation from Lopez also encompassed the Lopez Court‘s distinction of this Court‘s earlier decision in Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979).4 The relevant question in Bigelow was whether the Commonwealth had the burden of proving non-licensure to sustain a conviction under Section 6108, the firearms provision specifically governing Philadelphia. The Bigelow Court held that proof of non-licensure was not an element of a Section 6108 offense, but instead licensure status could form the basis for an affirmative defense. 399 A.2d at 395-96. In distinguishing Bigelow, the Lopez Court noted that Bigelow had emphasized that:
In section 6108 ... the material regarding licensure is set off by the word of exception “unless“, indicating it is in the nature of a proviso.... The purpose of a proviso is to “qualify, restrain or otherwise modify the general language of the enabling provision.”
...
Material placed in a proviso is not an element of the crime but rather a matter of defense and need not be either plead[ed] or proved by the prosecution.
Lopez, 565 A.2d at 440, quoting Bigelow, 399 A.2d at 395 (citations omitted). The Lopez Court then explained that Section 6106 was not structured in the same way as Section 6108. Far from being a proviso, the Lopez Court found that the territorial restriction in Section 6106(a) “is clearly a part of the definition of the offense:” it was not set-off and intended to modify the core definition, as was the case under Section 6108 and Bigelow. 565 A.2d at 440.5
After reproducing this analysis from Lopez, the Superior Court panel analyzed whether the statutory language at issue here is more like the core definitional language at issue in Lopez, or more like the proviso language at issue in Bigelow, ultimately concluding that the language is in the nature of a proviso. In so holding, the Superior Court panel noted that the single clause alteration to subsection 6106(a)(1), which merely refers to the new misdemeanor grading in subsection (a)(2) (i.e., “Except as provided in paragraph (2)“), is separated from the actual substantive definition of the Section 6106 felony offense. The panel also noted that the factors delineated in subsection (a)(2) (license eligibility and non-commission of other criminal violations), which would permit a misdemeanor grading, are not “self-contained.” This is so because one must turn to other provisions of the Uniform Firearms Act—provisions not even mentioned in subsection (a)(2)—to determine eligibility for a firearms license. In the panel‘s view, this construct requiring reference to other, unidentified statutory provisions to determine license eligibility distinguished Lopez and revealed that the General Assembly did not intend the
Appellant argues that, in amending Section 6106, the General Assembly added a material element (license ineligibility or commission of another criminal violation) to a Section 6106(a)(1) felony offense, which the Commonwealth was bound (and failed) to prove beyond a reasonable doubt. Although appellant concedes that the determination of license eligibility requires reference to other provisions of the Uniform Firearms Act, he argues that such incorporation by reference should be regarded as a space-saving device and not as an indicator of substantive legislative intent, emphasizing that the Crimes Code often employs the incorporation technique in establishing the elements of other offenses. See, e.g.,
In the alternative, appellant suggests that license ineligibility and commission of another criminal offense are sentencing factors that enhance the grade of the offense from misdemeanor to felony, and that the Commonwealth must (but again failed to) prove the existence of at least one of these disqualifying factors by a preponderance of the evidence before the offense may be graded as a felony. Appellant argues that the
The Commonwealth responds that the bulk of appellant‘s arguments—which concern the burden (Commonwealth or defendant) and timing (trial or sentencing) of proof as to license eligibility and other criminal violations—need not be reached because, in point of fact, the Commonwealth proved at trial beyond a reasonable doubt that appellant “committed any other criminal violation” when it secured his separate conviction under Section 6108. That conviction alone, the Commonwealth argues, eliminated the prospect of misdemeanor grading of the Section 6106 offense.
In the alternative, the Commonwealth argues that the 1997 amendment to Section 6106 establishes mitigating sentencing factors, not a new element of the felony offense, and that it bore and satisfied the burden of proving the inapplicability of those factors by a preponderance of the evidence.7 The Commonwealth adds the qualification, however, that the defendant should bear a threshold burden of establishing some proper purpose for carrying a firearm before the Commonwealth is put to its proofs. See
The Commonwealth also notes that, in construing the 1997 amendment, this Court must consider certain fundamental principles of statutory construction, including that the General Assembly is presumed not to have intended an absurd or unreasonable result; that good sense and practical utility must always be considered when construing a statute; and that a statute should receive the most sensible construction possible. Brief for Appellee, 9, citing Commonwealth v. Coleman, 289 Pa.Super. 221, 433 A.2d 36, 39 (1981). The Commonwealth argues that an elements construction of the 1997 amendment would be absurd since it would require the Commonwealth to disprove the subsection (a)(2) misdemeanor in order to prove the subsection (a)(1) felony, in a circumstance where the core elements (concealed firearm, no license, territorial restriction) are identical. The Commonwealth also argues that an elements construction is absurd from the standpoint of the accused since it would require introduction of prejudicial information, such as the defendant‘s prior convictions and bad reputation, in the Commonwealth‘s case-in-chief. Finally, the Commonwealth argues that appellant‘s constitutional arguments are both waived, since they were not raised in the trial court, and are meritless.
The question for review involves the proper construction of a statute, which is a question of law. Hence, our review is plenary. See C.B. ex rel. R.R.M. v. Commonwealth, Dept. of Public Welfare, 567 Pa. 141, 786 A.2d 176, 180 (2001).
- The occasion and necessity for the statute.
- The circumstances under which it was enacted.
- The mischief to be remedied.
- The object to be attained.
- The former law, if any, including other statutes upon the same or similar subjects.
- The consequences of a particular interpretation.
- The contemporaneous legislative history.
- Legislative and administrative interpretations of such statute.
Preliminarily, we will address the role and reviewability of appellant‘s constitutional arguments. We agree with the Commonwealth that any constitutional claims as such are waived for failure to raise them below. See Pa.R.A.P. 302. But appellant argues that, since the question raised here requires statutory construction, his invocation of constitutional concerns is proper. Specifically, appellant cites the settled canon of statutory construction teaching that “when a statute is reasonably susceptible of two constructions, by one of which the statute would be unconstitutional and by the other of which it would be constitutional, a court should adopt the construction that would make the statute constitutional.” Brief for Appellant, 23 n. 9 (citation omitted). Appellant thus submits that his “constitutional” arguments are properly forwarded because he does not raise them as distinct claims for relief, but rather forwards them in arguing statutory construction.
The principle of construction appellant invokes has been codified in Section 1922 of the Act, which provides as follows:
§ 1922. Presumptions in Ascertaining Legislative Intent
In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:
***
(3) That the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth.
Even assuming merit in appellant‘s argument that his constitutional sub-arguments are not waived since he ties them to the avoidance canon, it is of no avail on appellant‘s Apprendi claim. The statutory amendment appellant challenges was made effective in June 1997—three full years before Apprendi was decided. In Harris, the U.S. Supreme Court noted the inapplicability of the avoidance canon in such retroactive circumstances:
The avoidance canon rests upon our “respect for Congress, which we assume legislates in the light of constitutional limitations.” Rust v. Sullivan, 500 U.S. 173, 191, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). The statute at issue in this case was passed when McMillan [v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)] provided the controlling instruction, and Congress would have had no reason to believe that it was approaching the constitutional line by following that instruction. We would not further the canon‘s goal of eliminating friction with our coordinate branch, moreover, if we alleviated our doubt about a constitutional premise we had supplied by adopting a strained
reading of a statute that Congress had enacted in reliance on the premise. And if we stretched the text to avoid the question of McMillan‘s continuing vitality, the canon would embrace a dynamic view of statutory interpretation, under which the text might mean one thing when enacted yet another if the prevailing view of the Constitution later changed. We decline to adopt that approach.
Harris, 536 U.S. at 556, 122 S.Ct. at 2413. We agree with this reasoning; thus, we similarly decline to embrace such a dynamic view of the constitutionality of this 1997 legislation, which would measure legislative intent in light of constitutional authority which was non-existent at the time the General Assembly acted. If appellant had a constitutional objection to the statute premised upon the concerns that led to the view embraced by the 5-4 majority in Apprendi, he was obliged to specifically forward it below.9
Appellant‘s equal protection/due process challenge also fails. Again assuming that this argument may be advanced for the first time on appeal if raised under the avoidance canon, appellant has provided insufficient argument to warrant review. See Purple Orchid, Inc. v. Pennsylvania State Police,
Turning now to the proper construction of the 1997 amendment, we note that Section 6106 identifies a single offense entitled, “Firearms not to be carried without a license.” For the reasons that follow, we agree with the Commonwealth that, in amending Section 6106(a) (titled “Offense defined“) to include new subsection (a)(2), which provides for a reduction in the available punishment range for this single offense in certain circumstances, the General Assembly did not intend to create two crimes, one a felony and one a misdemeanor, with different elements. Instead, the amendment of Section 6106 evidences a legislative intention to provide for a lower grading of the existing single offense of unlicensed possession, already set forth in subsection (a)(1), for certain qualifying individuals.
The statute does not specifically state whether the factors set forth in subsection (a)(2) are intended as a new element of the subsection (a)(1) felony offense, as establishing grounds for an affirmative defense, or as sentencing factors. Nevertheless, the amendatory nature of the provision, its very structure, the narrow object it attains, the consequences of the competing interpretations offered by the parties, and this Court‘s obligation to read it in a common sense fashion, convince us that the most reasonable reading is to view the amendment as intended to affect grading/sentencing. Prior to the amendment of Section 6106(a) in 1997, the statute simply
This Court is also persuaded that the amendment was not intended to establish an additional element of the felony set forth in subsection (a)(1) because of the practical absurdity that would attend such a construction. As the Commonwealth aptly notes:
The construction ... that the Commonwealth must disprove a violation of subsection (a)(2) in order to prove a violation of subsection (a)(1), is absurd and unreasonable. Subsections (a)(1) and (a)(2) contain overlapping elements and proscribe the same core conduct.... [The General Assembly] cannot have intended an interpretation of section 6106 whereby the prosecution, in order to prove a violation of section 6106, would have to prove those core elements contained in both sections, while disproving the two additional “elements” found in subsection (a)(2). Nothing in the
wording of the statute supports such a tortured construction.
Brief for Appellee at 15 (emphases original). More importantly, a construction viewing subsection (a)(2) as establishing additional, negative predicate elements of the felony already set forth in subsection (a)(1) requires this Court to conclude that the General Assembly intended that the Commonwealth, in order to prove its felony case, would not only be permitted, but would actually be required, to introduce evidence concerning the defendant‘s other crimes or bad acts, bad reputation, or otherwise private history and/or personal characteristics giving rise to an ineligibility to obtain a valid license.
For example, one way the Commonwealth could discharge its burden of proving the alleged “element” of a criminal defendant‘s ineligibility for misdemeanor conviction would be by showing that he had committed “any other criminal violation.” But, of course, there are settled evidentiary limitations upon the use of the defendant‘s prior bad acts in a criminal prosecution. See, e.g., Pa.R.E. 404(b) (evidence of other crimes, wrongs, or acts, even where relevant for purpose other than to prove character, admissible only if probative value exceeds prejudicial effect). The other manner in which the Commonwealth could discharge its burden is to prove license ineligibility. But the question of license eligibility, which is governed by a separate section of the Uniform Firearms Act,
Section 6109(e)(1) describes no less than thirteen circumstances in which a person is deemed ineligible for a license to carry a firearm. Thus, to prove the “element” of license ineligibility, the Commonwealth could introduce at trial such diverse, prejudicial, and otherwise irrelevant personal infor-
in light of the peculiar facts of the case, such evidence of a defendant‘s negative character or reputation, or his prior bad acts, or his personal frailties, weaknesses and addictions, generally would not be admissible at trial.
It is highly unlikely that, in modestly changing the unlicensed firearms offense set forth in
In reaching this conclusion, we recognize that this is not a case like McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In McMillan, the General Assembly specifically designated that the mandatory minimum sentencing provisions at issue, see
The considerations which have led us to conclude that the 1997 amendment did not set forth an additional element of the
We recognize that the Commonwealth did not invoke the
Because the fact of appellant‘s contemporaneous and disqualifying
In summary, we hold that the 1997 amendment to
Justice SAYLOR files a concurring opinion.
Justice NIGRO files a dissenting opinion.
Justice SAYLOR, concurring.
Although I concur in the result, I would hold that the statutory criteria by which a perpetrator of the offense of carrying a firearm without a license is adjudged to have committed a felony or misdemeanor, see
First, it is significant, at least to me, that the relevant provision appears in the Crimes Code, as opposed to the Sentencing Code. See Almendarez-Torres v. United States, 523 U.S. 224, 234-35, 118 S.Ct. 1219, 1226, 140 L.Ed.2d 350 (1998).
Second, in the Crimes Code, the Legislature has broadly defined an element of an offense, inter alia, as:
Such conduct or such attendant circumstances or such a result of conduct as:
(1) is included in the description of the forbidden conduct in the definition of the offense; [or]
(2) establishes the required kind of culpability[.]
Fourth, it is at least noteworthy that questions related to the issue before the Court arose during floor debates on the 1997 amendment in which paragraph 6106(a)(2) was added to the statute, see Pub.L. 73, No. 5, § 1, April 22, 1997, and the comments of the bill‘s proponents tend to reinforce that the facial distinction made between the misdemeanor and felony provisions of Section 6106 was intended as a substantive one. See, e.g., Pa. Leg. Journal (House), April 9, 1997, at 730 (statement of Rep. Gannon, Chairman of the House Judiciary Committee) (stating that if a person “met all of the qualifications for the issuing of a license to carry a concealed weapon [but did not do the requisite] paperwork, and [he] still carried a concealed weapon, that is a misdemeanor“); id. (“if you could have legally carried a firearm under other circumstances, it is a misdemeanor“); id. at 733 (statement of Rep. McCall) (amendment is designed “not to make felons out of those people who are law-abiding citizens and people who do not have any kind of felonious intent“); id. (if an unlicensed gun owner “has always been a law-abiding citizen [and] would have been able to have a license to carry a gun[,] she should not be charged with a felony; she should be charged with a misdemeanor-1“). These and similar statements, while far from dispositive, do suggest that the 1997 amendment was motivated by a perception that an individual who had neglected to obtain a license but could have done so should not be called to defend himself against felony charges. Cf. Staples v. United States, 511 U.S. 600, 610, 114 S.Ct. 1793, 1799, 128 L.Ed.2d 608 (1994) (describing the “long tradition of lawful gun ownership by private individuals in this country,” and the attendant presumption against criminalizing gun possession without the requisite illegal intent).
Fifth, in establishing principles of statutory construction applicable to criminal offenses, the General Assembly has
Additionally, a more technical assessment of Section 6106 also favors the elements construction. In the absence of express designation, in determining legislative intent regarding offense elements versus affirmative defenses, courts have evaluated: (1) the language and structure of the statute; (2) the character of the factor or exception in question within its context; (3) relevant legislative history; and (4) whether the defendant or the Commonwealth is better situated to prove facts necessary to trigger or negate the exception, see Commonwealth v. Stoffan, 228 Pa.Super. 127, 144, 323 A.2d 318, 326 (1974); accord United States v. McArthur, 108 F.3d 1350, 1353 (11th Cir.1997). With regard to distinguishing elements and sentencing factors, courts have also considered prejudice that may inure to the defendant as a consequence of development of the fact or circumstance before the jury in the adjudication of guilt or innocence. See, e.g., Almendarez-Torres, 523 U.S. at 234-35, 118 S.Ct. at 1226.
With respect to language and structure, various interpretive presumptions are frequently employed. First, a distinction is drawn between exceptions fused integrally into the definition
In considering an exception‘s character, courts generally make some primary assessment concerning its substantive relationship to the definition of the crime. For example, exceptions reflecting facts or circumstances materially interrelated with the primary criminal conduct constituting the offense are distinguished from those which merely furnish an excuse for what would otherwise be criminal conduct or layer some more tangential factor or circumstance into the calculus. Exceptions of the former character obviously favor the elements construction; those in latter nature militate toward a
Here, the language of
punishment by virtue of the felony versus misdemeanor treatment is substantial. Additionally, the legislative history of Section 6106 tends to suggest the elements construction. See supra. Both parties agree that the burden of proof is most appropriately allocated to the Commonwealth.3 Finally, there is the potential for prejudice in the presentation of license ineligibility factors to a jury; however, this factor is ameliorated by the availability of cautionary instructions, and, in instances in which a trial court would deem it necessary, bifurcation. In my view, the majority‘s decision to label as absurd an interpretation that implicates the potential for precautionary measures at trial in some cases is unjustified, as countervailing and substantial liabilities attach to each of the approaches under consideration.
In light of the above, I deem the pertinent factors, considered in their totality, to favor allocation of the determination of the degree of criminal fault to the factfinder. While the Superior Court‘s reasoning is not without foundation, I do not consider employment by the Legislature of the drafting technique of incorporation by reference to be controlling.4 Partic-
I would hold, therefore, that in order for the Commonwealth to secure a felony conviction pursuant to
I am able to join the majority‘s disposition, however, as I agree that the Commonwealth established at trial beyond a reasonable doubt that Bavusa committed another criminal offense (violation of
NIGRO, Justice, dissenting opinion.
Appellant was found guilty of violating Sections 6106 (Firearms not to be carried without a license) and 6108 (Carrying firearms on public streets or public property in Philadelphia) of the Pennsylvania Uniform Firearms Act based upon the same single act of possessing an unlicensed revolver in his waistband in Philadelphia.1 He was sentenced to probation for concurrent terms of two years for each offense, a sentence the majority now upholds. Contrary to the majority, I believe that convictions under Section 6106 and Section 6108 merge for purposes of sentencing, and therefore I must respectfully dissent from the majority‘s conclusion that the Superior Court properly affirmed Appellant‘s judgment of sentence.
A person who is otherwise eligible to possess a valid license under this chapter but . . . carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid or lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.
Applying these principles here, I would find that Section 6106 and Section 6108 merge for sentencing purposes. As stated above,
Given that Section 6108 contains all of the elements of Section 6106, and that Section 6108 includes one additional element, I would conclude that the offenses merge for pur-
Notes
As elaborated by the Superior Court:
When a statute defining an offense contains an exception . . . which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception, but if the language of the clause defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, . . . the matter contained in the exception is a matter of defense and must be shown by the accused.
Stoffan, 228 Pa.Super. at 140, 323 A.2d at 324 (quoting Commonwealth v. Neal, 78 Pa.Super. 216 (1922)); accord United States v. Kloess, 251 F.3d 941, 945 (11th Cir.2001) (explaining that the appearance of the contested language “in a distinct clause, in a different section of the statute[,] suggests that it is not an element of the crime“); United States v. Outler, 659 F.2d 1306, 1309-10 (5th Cir.1981) (where “an exception . . . [is] so necessary to a true definition of the offense . . . the elements of the crime are not fully stated without the exception“).
(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.
(2) A person who is otherwise eligible to possess a valid license under this chapter but carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.
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 section 6106 of this title (relating to firearms not to be carried without a license).
I recognize that many of the factors included in Section 6106(a)(2)‘s assessment via incorporation from Section 6109(e) are in the nature of traditional sentencing factors, at least as the sentencing scheme existed prior to the implementation of the present paradigm. Compare Commonwealth v. Jones, 523 Pa. 138, 141-42, 565 A.2d 732, 733 (1989)
Although the Commonwealth has often charged defendants with violations of both Sections 6106 and 6108, see, e.g., Commonwealth v. Smith, 518 Pa. 15, 540 A.2d 246, 251 (1988); Commonwealth v. Romero, 449 Pa.Super. 194, 673 A.2d 374, 376 n. 2 (1996), and occasionally defendants have been convicted of both offenses, see Commonwealth v. Queen, 536 Pa. 315, 639 A.2d 443, 444 (1994) (defendant convicted of both offenses and sentenced to six months imprisonment on each conviction), the Commonwealth has just as often decided to charge defendants only with violations of Section 6108. See, e.g., Commonwealth v. Woods, 710 A.2d 626, 630 (Pa.Super.1998); Commonwealth v. Perry, 1992 WL 1071435, *1 (Pa.Com.Pl.1992).
In this regard, I acknowledge the Commonwealth‘s contention that defendants should bear a threshold burden of establishing some proper purpose for firearms licensure. Notably, however, the primary decision cited by the Commonwealth, Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979), concerned an exception styled as a distinct proviso. See id. at 492, 408 A.2d at 1110 (quoting 35 P.S. § 780-113(16) (qualifying the offense of knowing or intentional possession of a controlled substance with the proviso, “unless the substance was obtained directly from a valid prescription . . . or as otherwise authorized by this act“)). Therefore, the subject matter was more appropriately amenable to application of a burden-shifting paradigm.
Based on the majority‘s conclusions, it would seem that a violation of Section 6108 in Philadelphia simultaneously establishes Section 6106 felony gradation, thereby precluding defendants who commit a Section 6106 offense within Philadelphia from misdemeanor gradation, although such conduct would constitute a misdemeanor everywhere else in the state. Thus, as a practical matter, the majority creates a disparate rule whereby violations of Section 6106 constitute a misdemeanor of the first degree, unless the violation occurs in Philadelphia, in which case the offense becomes a felony in the third degree.
As Bavusa argues, the incorporation by reference device is frequently employed by the Legislature as a space-saving device, see, e.g.,
In this regard, I also draw guidance from the cautionary observations of other courts in instances in which legislative bodies have not specified the treatment intended to be given exceptions. See, e.g., State v. McLemore, 782 S.W.2d 127, 129 (Mo.Ct.App.1989) (“There is no certain principle . . . to use to determine when a qualification of the scope of the proscribed conduct should be viewed as a matter of excuse or justification as distinguished from a basic element of the crime[;][c]ourts have continuously wrestled with this problem and consistently have been pinned to the mat.“); id. at 130 (“Reliance on the positioning of the exception or proviso to determine whether it defines an element of the crime gives preeminence to what may be an accident of drafting, rather than an analysis of the exception or proviso and its relevance to the culpability of the accused.“); Hall v. State, 291 Ala. 397, 281 So.2d 662, 664 (1973) (criticizing the intermediate appellate court for “la[ying] too much emphasis on the grammatical construction of the [a]ct rather than upon the essential elements of the offense denounced“); People v. Devinny, 227 N.Y. 397, 125 N.E. 543, 544 (1919) (“Attempts to distinguish between exceptions and provisos have resulted in many technicalities and in much subtlety[;][t]he two classes of provisos—exceptions and provisos—frequently come close together[.]“); People v. Franzoni, 75 Misc.2d 246, 347 N.Y.S.2d 910, 914 (1973) (“The rule requiring pleading and proof by the People of negative exceptions in a criminal statute has been described in an exhaustive annotation as presenting ‘one of the most frequent problems in criminal procedure, yet often one of the most baffling.‘” (citation omitted)); cf. Apprendi, 530 U.S. at 494, 120 S.Ct. at 2365 (characterizing the distinction between sentencing factors and elements as “constitutionally novel and elusive“).
750 A.2d at 858-59, 861-62 (footnotes and citation omitted). It is apparent from this analysis that, although the Bavusa panel clearly concluded that the 1997 amendment did not add additional elements to the felony offense, the court was not as clear on the question of whether the amendment established an affirmative defense or sentencing factors.At bar, unlike in Lopez but similar to Bigelow, the language “except as provided” is separated from the verbiage defining the offense. For example, missing from the paragraph containing “carrying a firearm without a license” is the added prohibitive conduct (e.g., making one “otherwise [in]eligible to possess a valid license” is not expounded upon) as discussed in Lopez and missing in Bigelow informing a person of the proscribed behavior. We have to travel to[, inter alia,] Section 6109 to garner what makes an accused “otherwise [in]eligible to possess a valid license“. Section 6106(a) does not contain the defined conduct as existed in the predecessor to Section 6106 (and addressed in Lopez). Rather, one is directed to go outside the statute to ascertain what conduct exempts one from a felony status. This undermines the statute‘s “except” clause as an element of the offense, i.e., it manifests itself as a proviso required to be proven by a defendant as an affirmative defense to rebut the Commonwealth‘s allegation of guilt.
****
Stated otherwise, the “except” clause is devoid of any language which facilitates a clear and accurate picture defining the offense. ... The referential language (“except as provided in paragraph (2)“) in the statute convinces us that it was not meant by the Legislature to be an element of the offense. Rather, it is a directional finder to plot the perimeters of the “except” clause, which excuses one from being labeled a felon when charged under Section 6106. This is evident from the fact that the “except” paragraph lends nothing to the definition of the offense.
****
Exemption from being labeled a felon requires one to read other sections of the subchapter, i.e., Sections 6105 and 6109, to vindicate one from the taint of felonious behavior and the recriminations flowing as a result of such a status. These definitional and grammatical limitations did not plague the statutes reviewed by Lopez and Banellis [Commonwealth v. Banellis, 452 Pa.Super. 478, 682 A.2d 383 (1996)], both of which concluded that the “except” phrase constituted an element of the offense to be proven by the prosecution. Here, in contrast, the formulation and content of the statute‘s use of the “except” term without elaboration but mere referral to another provision leaves the reader with no option but to scour the remaining provisions of the firearms subchapter to discount the “except” clause as an element of the offense not to be proven beyond a reasonable doubt by the prosecution. Further, it is a tool looked to at sentencing to grade the offense a felony or misdemeanor, as was the case at bar by the trial court.
A license shall not be issued to any of the following:
(i) An individual whose character and reputation is such that the individual would be likely to act in a manner dangerous to public safety.
(ii) An individual who has been convicted of an offense under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act.
(iii) An individual convicted of a crime enumerated in section 6105.
(iv) An individual who, within the past ten years, has been adjudicat-ed delinquent for a crime enumerated in section 6105 or for an offense under The Controlled Substance, Drug, Device and Cosmetic Act.
(v) An individual who is not of sound mind or who has ever been committed to a mental institution.
(vi) An individual who is addicted to or is an unlawful user of marijuana or a stimulant, depressant or narcotic drug.
(vii) An individual who is a habitual drunkard.
(viii) An individual who is charged with or has been convicted of a crime punishable by imprisonment for a term exceeding one year except as provided for in section 6123 (relating to waiver of disability or pardons).
(ix) A resident of another state who does not possess a current license or permit or similar document to carry a firearm issued by that state if a license is provided for by the laws of that state, as published annually in the Federal Register by the Bureau of Alcohol, Tobacco and Firearms of the Department of the Treasury under
(x) An alien who is illegally in the United States.
(xi) An individual who has been discharged from the armed forces of the United States under dishonorable conditions.
(xii) An individual who is a fugitive from justice. This subparagraph does not apply to an individual whose fugitive status is based upon
(xiii) An individual who is otherwise prohibited from possessing, using, manufacturing, controlling, purchasing, selling or transferring a firearm as provided by section 6105.
Id. (footnote omitted).
Indeed, since an elements construction of the amendment would require exposure of the fact-finder to what otherwise would be irrelevant and prejudicial personal information, such a construction is not one that interprets the statute “in the light most favorable to the accused.” Commonwealth v. Booth, 564 Pa. 228, 766 A.2d 843, 846 (2001).
We also need not and do not decide the merit of the Commonwealth‘s argument that the defendant should have a preliminary burden of producing some evidence that he has a proper reason for carrying a firearm.
It bears noting that the two-year probationary sentence imposed here would have been lawful whether the offense was graded as a third degree felony or a first degree misdemeanor. See n. 8, supra.