Lead Opinion
In 1997, the Pennsylvania General Assembly amended Section 6106 of the Uniform Firearms Act (codified in the Crimes Code at 18 Pa.C.S. §§ 6101-6126), which had previously graded as a felony of the third degree the act of carrying a firearm without a license. The amendment provided for grading of that same conduct as a misdemeanor of the first degree in certain circumstances — specifically, in circumstances where the person was “otherwise eligible” for licensure and the person had not “committed any other criminal violation.” Id. § 6106(a). The issue here is whether the General Assembly intended that amendment to create (1) an additional,
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 18 Pa.C.S. § 6106(b)), as follows:
(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.
18 Pa.C.S. § 6106(a) (emphases added).
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....
Id. § 6108.
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 on grading the offense. The Commonwealth, consistently with its position that license ineligibility and commission of other criminal violations are sentencing factors, invoked Section 6109 of the Uniform Firearms Act, 18 Pa.C.S. § 6109, the section governing firearms license eligibility. The Commonwealth argued that appellant was ineligible for a license under Section 6109(e)(l)(viii), which generally forbids the issuance of a license to carry firearms to a person charged with, or who has been convicted of, a crime punishable by imprisonment for a term greater than one year. In support of its argument, the Commonwealth produced a criminal abstract reflecting appellant’s 1974 conviction for driving without lights to avoid identification, see 75 Pa.C.S. § 3734, and his 1975 probation without verdict under Section 17 of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-117. The trial court found that appellant was firearms license ineligible. The trial court then graded the Section 6106 offense as a third-degree felony and sentenced appellant to concurrent terms of two years’ probation for the Section 6106 offense and the Section 6108 offense.
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,
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; ...
18 Pa.C.S. § 103, quoted in Lopez,
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,
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,
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
The Superior Court then determined that the trial court did not err in grading appellant’s Section 6106 offense as a felony. First, the panel concluded that appellant’s probation without verdict for a prior drug offense rendered him ineligible for a firearms license under Section 6109(e)(l)(viii). Bavusa, 750 A.2d at 862.
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., 18 Pa.C.S. § 2710 (ethnic intimidation). Further, appellant cites the U.S. Supreme Court’s decision in Apprendi v. Neto Jersey,
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 misdemean- or 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 courts below erred to the extent that they concluded that his successfully completed probation without verdict, or his contemporaneous conviction under Section 6108, required grading the offense sub judice as a felony. Finally, appellant asserts that employing his contemporaneous Section 6108 offense as the “other criminal violation” to support a felony grading offends equal protection and due process principles because it creates a geographical disparity in the treatment of firearms violators within Philadelphia city limits.
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.
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,
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,
(1) The occasion and necessity for the statute.
(2) The circumstances under which it was enacted.
(3) The mischief to be remedied.
(4) The object to be attained.
(5) The former law, if any, including other statutes upon the same or similar subjects.
(6) The consequences of a particular interpretation.
(7) The contemporaneous legislative history.
(8) Legislative and administrative interpretations of such statute.
1 Pa.C.S. § 1921(c). See P.R., supra. As the Commonwealth has noted, the Act also requires that we presume that the General Assembly did not intend a result that is absurd or unreasonable. 1 Pa.C.S. § 1922(1) (fundamental presumption in “ascertaining the intention of the General Assembly in the enactment of a statute” is that “the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable”); Housing Auth. of Chester v. Civil Service Comm.,
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.
1 Pa.C.S. § 1922. The Supreme Court of the United States has described this principle as “the canon of constitutional avoidance.” Harris v. United States,
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,
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 proscribed the following conduct: carrying a firearm in a vehicle or concealed upon one’s person, anywhere except in one’s place of abode or fixed place of business, without a valid license. All violations of the statute were graded as felonies. The 1997 amendment did not change the operative, “forbidden conduct,” 18 Pa.C.S. § 103(1), condemned by subsection (a)(1). Rather, the amendment provides for a lesser gradation of an unlicensed firearm offense where the offender possesses certain personal attributes that the General Assembly obviously deemed relevant in mitigation: i.e., license eligibility and never having committed any other crime. It is not difficult to imagine why the General Assembly might statutorily draw this distinction for purposes of punishment: It is one thing to be unlicensed as a result of negligence, ignorance, or indifference, but it is quite another to be absolutely disqualified from licensure and
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:
[T]he 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, 18 Pa.C.S. § 6109(e), opens the door to a vast potential font of damaging information concerning the defendant’s background and character which, though certainly relevant to sentencing issues — indeed, these are the very sorts of things one commonly sees in a pre-sentence report — would generally be prohibited in the criminal prosecution itself because of the potential prejudice such information might cause the defendant.
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 information as that the defendant: (1) has a “character and reputation” that was such that he “would be likely to act in a manner dangerous to public safety”; (2) has a previous drug conviction; (3) has a conviction for a disqualifying offense under 18 Pa.
It is highly unlikely that, in modestly changing the unlicensed firearms offense set forth in Section 6106(a) from one that was always a felony into one that is sometimes a misdemeanor if the defendant possesses a certain history and background, the General Assembly intended to effect a sweeping change in the manner in which daily trials for unlicensed possession of firearms would necessarily have to be conducted.
In reaching this conclusion, we recognize that this is not a case like McMillan v. Pennsylvania,
The considerations which have led us to conclude that the 1997 amendment did not set forth an additional element of the Section 6106(a)(1) felony offense also lead us to conclude that the amendment was not intended to set forth the basis for an affirmative defense to a felony grading. As to this point at least — i.e., the question of affirmative defense construction versus sentencing factors construction — the parties are in agreement. An affirmative defense construction, like an elements construction, would require us to conclude that the General Assembly intended that the fact-finder be exposed to prejudicial and otherwise irrelevant personal status factors before verdict. We will not read the amendment in such an absurd and unreasonable fashion. Rather, we read the amendment as establishing sentencing factors which govern the proper grading of a Section 6106(a) offense. As we have noted above, many of the personal status factors which determine the question of license eligibility are the sort of considerations routinely entertained by a court fashioning an appropriate sentence.
Viewing the 1997 amendment as setting forth sentencing factors, we agree with the Superior Court’s alternative holding that a felony grading was appropriate here because appellant was adjudged to have committed another criminal violation contemporaneously with his Section 6106 offense— namely, the Section 6108 violation for carrying firearms on the public streets in Philadelphia. Appellant argues that the General Assembly’s intent in drafting the “other offense” clause was to require felony gradation for offenders who possess a gun while committing additional non-weapons offenses. But, no such limitation is included within or suggested by the statute. See 1 Pa.C.S. § 1921(b) (directing enforcement of clear statutory provisions according to their terms). Further, while the Section 6108 offense is based upon the same incident and general conduct as the Section 6106 offense, the statutes contain
We recognize that the Commonwealth did not invoke the Section 6108 conviction as a basis for grading the Section 6106 conviction as a felony either at trial or at sentencing. Nevertheless, it alleged the felony offense in the charging instrument; the Section 6108 offense was established at trial beyond a reasonable doubt; and appellant does not assert a due process or other notice-based challenge to the reliance of the Commonwealth and the Superior Court upon Section 6108, but rather rests his objection to the statute’s relevance upon substantive grounds, i.e., the similarity of the conduct outlawed by Sections 6106 and 6108. In addition, it is settled that the Superior Court, which sat in review of the trial court’s judgment as well as its rationale, had the power to affirm that judgment for any proper reason appearing in the record. See Commonwealth v. Shaw,
Because the fact of appellant’s contemporaneous and disqualifying Section 6108 conviction is indisputable, our resolution in this case does not require us to determine which party has the burden of proving the appropriate grading of a Section 6106 offense at sentencing. When the disqualifying factor is another criminal violation, it is unlikely that assigning a burden of proof would matter: there is either a disqualifying criminal violation or there is not. Such is the controlling situation here. With respect to license ehgibility/ineligibility, however, the potential disqualifying factors are more numerous and more difficult of proof. The parties appear to agree that if this Court determines that a sentencing factors reading is the appropriate one, then the Commonwealth bears the burden of proof at sentencing by a preponderance of the evidence. But we are not so easily convinced that such was the intent of the General Assembly. Many of the license-disqualifying factors are very personal to the defendant and he certainly is in the better position to produce evidence on the subjects. In addition, since we have concluded that the statute continues to define a presumptive felony offense, viewing license eligibility as a matter of sentencing mitigation subject to proof by the defendant may be the better reading. In any event, since we have decided the matter on the basis of appellant’s disqualifying Section 6108 conviction, we need not definitively resolve the question of the burden of proof to resolve this appeal.
In summary, we hold that the 1997 amendment to Section 6106(a) sets forth a grading/sentencing provision, and not an additional element of the felony offense set forth in subsection (a)(1) or an affirmative defense. Whether the offense should be graded as a felony or a misdemeanor is a matter to be decided at sentencing. In light of appellant’s contemporaneous conviction under Section 6108, the Section
Notes
. Contrast 42 Pa.C.S. § 9712(b) (statute explicitly notes '‘[pjrovisions of this section [setting forth mandatory minimum sentences for offenses committed with firearms] shall not be an element of the crime").
. See O'Rourke v. Commonwealth,
. The ellipses indicate deletion of clauses relating to carrying firearms in a vehicle, clauses which are not relevant here.
. Lopez, addressed Bigelow because Bigelow had formed the basis for the lower courts' holding that the territorial restriction in Section 6106 was not an element of the offense.
. Bigelow itself had distinguished this Court's earlier decision in Commonwealth v. McNeil,
. The panel's fuller reasoning was as follows:
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. Flere, 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.
. At the post-sentence stage, the Commonwealth contended that license eligibility constitutes an affirmative defense. It does not pursue that argument on appeal.
. The Crimes Code authorizes a maximum sentence of seven years of imprisonment for a felony of the third degree, 18 Pa.C.S. § 1103(3), and five years for a misdemeanor of the first degree. Id. § 1104(1).
. In any event, we are satisfied that our conclusion infra that the amendment sets forth sentencing factors and not a new element of the felony offense does not cross the Apprendi line. In Apprendi, the Court held that any fact other than a defendant's history of criminal convictions, which increases the available punishment for an offense beyond the applicable statutory maximum penalty, must be determined by a jury on proof beyond a reasonable doubt.
. Section 6109(e) specifically provides, in pertinent part, that:
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 adjudicated 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 18 U.S.C. § 921(a)(19) (relating to definitions).
(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 nonmoving or moving summary offense under Title 75 (relating to vehicles).
(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,
. 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 (hat 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.
Concurrence Opinion
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 18 Pa.C.S. § 6106, are substantive elements of the crimes, as opposed to sentencing factors (as the majority holds) or affirmative defenses (as the Superior Court determined). My reasoning follows.
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,
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[.]
18 Pa.C.S. § 103. Section 6106(a)(2)’s eligibility terms qualify as elements under both of these provisions, since they are attendant circumstances expressly included in the description of the offenses and establish the requisite culpability for misdemeanor versus felony treatment.
Third, the General Assembly is aware of how to designate a fact or circumstance as an affirmative defense or sentencing factor, see, e.g., 42 Pa.C.S. § 9712(b), discussed in McMillan v. Pennsylvania,
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
Fifth, in establishing principles of statutory construction applicable to criminal offenses, the General Assembly has directed that, when language is susceptible of differing constructions, it is to be interpreted to further the general purposes stated in the Crimes Code and the special purposes of the particular provision involved. See 18 Pa.C.S. § 105. Even conceding that the legislative commentary should not overemphasized in construing Section 6106, the general purposes of the Crimes Code include safeguarding offenders against excessive and disproportionate punishment and differentiating among offenders with a view to a just individualization in their treatment. See 18 Pa.C.S. § 104(3), (5). While another express purpose is to forbid and prevent conduct that unjustifiably inflicts or threatens substantial harm to individual or public interests, this purpose would seem to be accommodated by merely recognizing the General Assembly’s decision to delineate the lesser of the two instances of proscribed conduct as a misdemeanor of the first degree, see 18 Pa.C.S. § 6106(a), carrying a maximum potential sentence of up to five years, see 18 Pa.C.S. § 1104(1).
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,
With respect to language and structure, various interpretive presumptions are frequently employed. First, a distinction is drawn between exceptions fused integrally into the definition of the offense (and therefore deemed to reflect integral aspects of the forbidden conduct) and those styled as distinct provisos.
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 construction imposing a duty upon the defendant to bring himself within the exculpatory provision. See Stoffan,
Here, the language of Section 6106(a)(1) employs a precedent “except clause” to distinguish the felony versus misdemeanor designations, thus favoring the elements construction. Compare Commonwealth v. Lopez,
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.
I would hold, therefore, that in order for the Commonwealth to secure a felony conviction pursuant to Section 6106(a)(1), it must establish beyond a reasonable doubt that the conditions in paragraph 6106(a)(2) have not been met. Accordingly, the Commonwealth should be required to demonstrate the existence, at the time of a Section 6106 violation, of an impediment the defendant’s eligibility to possess a valid license to carry firearms, or the defendant’s commission of another criminal violation.
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 18 Pa.C.S. § 6108), thus disqualifying him from misdemeanor treatment.
. 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,
. 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,
. 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,
. As Bavusa argues, the incorporation by reference device is frequently employed by the Legislature as a space-saving device, see, e.g., 18 Pa.C.S. § 2710 (incorporating elements of various underlying offenses into the crime of ethnic intimidation), and thus, may be regarded as a weak indicator of substantive legislative intent.
. 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,
Dissenting Opinion
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.
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.
18 Pa.C.S. § 6106(a)(2) (emphasis added). Thus, in order to sustain Appellant’s felony conviction pursuant to Section 6106(a)(1), it must be shown that Appellant, at the time of his Section 6106 violation, either was not otherwise eligible to possess a valid license to carry firearms or committed “any other criminal violation.” See id. The majority concludes that Appellant’s felony conviction is sustainable because, according to the majority, Appellant’s simultaneous Section 6108 violation can properly be classified as an “other criminal violation” for purposes of Section 6106. In support of its conclusion, the majority finds that Sections 6106 and 6108 contain materially different elements in terms of concealment and geographic location of the conduct, a finding which renders merger analysis inapplicable. See Commonwealth v. Whelton,
The central inquiry of a merger analysis is whether the crimes are greater and lesser-included offenses. To complete this inquiry, we first look at the elements of each offense. If all of the elements of the lesser offense are within the elements of the greater, and the greater offense includes at least one additional element, then the sentences merge. Commonwealth v. Anderson,
Applying these principles here, I would find that Section 6106 and Section 6108 merge for sentencing purposes. As stated above, Section 6106(a) provides that “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 ... commits a felony of the third degree,” subject to the exceptions provided in subsection (a)(2). 18 Pa.C.S. § 6106(a)(1). Section 6108 provides that “[n]o 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.” Id. § 6108. Thus, a conviction for a violation of Section 6106 is established when a defendant carries a concealed firearm on or about his person without a license in any public place. At the same time, a conviction for a violation of Section 6108 is established
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 purposes of sentencing. See Anderson,
. Section 6106 provides in relevant part:
(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 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 and has not committed any other cnminal violation commits a misdemeanor of the first degree.
18 Pa.C.S. § 6106(a) (emphasis added). Section 6108 provides:
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).
18 Pa.C.S. § 6108 (emphasis added).
. Although the Commonwealth has often charged defendants with violations of both Sections 6106 and 6108, see, e.g., Commonwealth v. Smith,
. 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.