*2 KELLY, Before HESTER, MONTGOMERY and JJ. KELLY, Judge:
This is an appeal from the Court of Common Pleas of County, Pennsylvania, Crawford judgment of sentence of July the Honorable P. Thomas, Richard whereby defendant was sentenced to serve eight twenty-four (24) months imprisonment, computed from November 6, 1984, the date of appellant’s original incarceration Crawford Jail. County Appellant, Berta, James William guilty was found under 18 Pa.C.S.A. 6106 and 6118 of §§ the Uniform Firearms Act for carrying, license, without a replica of an antique revolver concealed upon person. *3 this, case,
In appellant purchased the in question firearm as a kit department at a local store and subsequently assembled it into replica of a cap and ball revolver common the late nineteenth No century. permit was required for this over-the-counter In purchase. order to gun, fire the powder, percussion black caps, and lead balls required were working well as a knowledge loading of its procedure. At the time he was cited for the alleged viola- tion, loaded, was not appellant was not control of the materials necessary fire the and there was no indication that he purchased (N.T. had ever such materials. 8). adopt the remaining findings of fact as set ably forth court below as follows: 6,1984,
On November Trooper Lloyd Dan of the Pennsyl- vania State Police was attempting to locate the Defendant investigating while an burglary unrelated matter. He found the Defendant at the residence of a friend. As the trooper entered the friend’s residence1 he saw the De- fendant and saw the appeared pistol butt what to be a transcript proceedings appellant The indicates that was talk- ing porch (N.T. 9). to a friend on a side of his friend’s residence.
protruding above the Defendant’s belt line and partially concealed2 by a coat the Defendant wearing. trooper promptly approached Defendant, pulled the gun out of his belt line subsequently filed charges of carrying an weapon. unlicensed At the nonjury trial the facts were not substantially dispute and the Defendant testified in his own defense that he had purchased the the form of an antique gun kit at the K-Mart Shopping Center the day before and had assembled the five parts to form a working replica of an antique pistol popular in the 1800’s. The Defendant’s contention was that he had purchased it for a showpiece hang on his wall.
(Trial opinion 2). at
The issue before this Court is whether it was unlawful under the provisions of Sections 6106 and 6118 of the Uniform Firearms Act appellant possess in a con- unloaded, cealed fashion an unlicensed replica of an antique firearm. Berta, herein,
Mr. argues that the lower court should not have concluded that gun, the kit being replica antique revolver, an was in violation of the Uniform Firearms Act where the revolver was not suitable for use. Appellant argues that because the antique replica in ques- tion was not loaded and appellant did not have within his possession at the time of his arrest the cap, balls powder required to fire the weapon, the replica firearm was not suitable for use and thus not violation of the Uniform Firearms Act.
Moreover, appellant argues that under the caselaw of this Commonwealth he cannot be found guilty of violating Sec- Trooper Lloyd appellant possessed testified gun that the in a con- by stating: Berta, "Upon approaching cealed fashion Mr. I noticed a weapon sticking (N.T. 5). butt of a out from underneath his coat." approached "When I weapon him I saw the sticking butt of the out (N.T. 6). and I reached in and took pants.” it.” "It was stuck in his (N.T. 7). Appellant testimony by claiming endeavored to refute this gun that Upon making was not concealed. its determination that testimony Trooper credible, Lloyd of was more the trial court conclued that had in fact been concealed. Act, tions 6106 and 6118 of the Uniform Firearms citing Layton, Commonwealth v. Siiams, Commonwealth v. 260 (1978) in support of his Appellant contention. cites
Siiams Layton for the principle that the in ques- tion must be “capable loaded and of shot” at the moment alleged violation order to be considered “suitable for use” as the language of the Act mandates. disagree with these contentions and affirm the decision of the lower court. respect appeal,
With to this one of applicable sections of the Pennsylvania Uniform Firearms previ- as noted ously, is Section 6106 which reads as substantially follows:
(a) Offense defined— persons carry No shall a firearm in any vehicle or con- person cealed on or about his except place his of abode place or fixed of business without a license therefore as provided subchapter. this
Initially, 6106(a) we find that Section describes those fire- arms which shall not maintained be without license. “No persons shall carry a firearm vehicle or concealed on or person ”, about his ... without a excep- license ... tions to this principle being “except in his of or place abode fixed of place provided subchapter.” business ... this We know that the facts of this case that appellant show place business, not or fixed place abode but was located on the of a porch Consequently, friend’s residence. 6106(a) none of the listed in exceptions as Section Second, this case. Trooper Lloyd, who cited for violation, the instant testified pos- the firearm was sessed in a concealed fashion as described the lower Third, court’s opinion, supra. neither party disputed (N.T. 8,10). fact that the firearm was unlicensed. The gun was concealed on his person, unlicensed and not found in his “place Hence, “place abode” business”. relying the moment on the assumption that the can involved characterized as a “firearm” as defined in the Uniform
Firearms to be discussed infra, appellant rightful- ly cited violation of Section 6106.
To question answer the of whether the gun involved is a “firearm,” we analyze must Sections 6102 and 6118. Sec- tion 6102 of the Act defines “firearm” as follows:
Any pistol or revolver with a inches, barrel less than 12 any shotgun a barrel less inches, with than 24 or any rifle with a barrel less than 15 inches.” 18 Pa.C.S.A. §
Trooper Lloyd’s testimony at trial revealed that the barrel antique gun replica was inches, approximately six thus clearly within the twelve inch maximum stated in 7). (N.T. Section 6102. Section 6118 refers to replicas of antique firearms. This section reads in part:
(a) General Rule.—This subchapter shall not apply
antique firearms. (c) purpose Definition. —For the of this “antique section
firearm” means: firearm, any including any firearm percus- with ...
sion cap or similar type of ignition system ... and (2) any replica firearm described in paragraph (1)----”
Thus, under general rule, the firearm in question quali- fies replica as a of such firearm, an antique and the Act would not this case.
However, 6118(b) Section lists exceptions two which re- late to Section 6106 and Section respectively. This section reads:
(b) Exception. (a) shall not apply to the ex- —Subsection
tent that such antique firearms, reproductions or rep- licas of firearms are concealed weapons provided section 6106 (relating to firearms not to be carried license), without a nor shall it apply to the provisions of section (relating to former convict not to own firearm, etc.) if firearms, such antique reproductions or replicas of firearms are suitable for use. 6118(b). 18 Pa.C.S.A. The lower opinion, by P. § Thomas, J., Richard stated: fact antique “[t]he *6 replica was not loaded is immaterial as 6118 section only mandates antique that the be ‘suitable for Testimony use’. ball, indicated proper cap, powder that with and the replica put operable (Op. 4). could be p. Although into use.” the lower court properly applied the suitable for use test in Act, finding a violation under the such standard is not se, 6118, language derived from the of Section per but is a standard of operability which is inherent in every issue regarding a under Nevertheless, violation Section 6106. we find exception 6118(b) that the set forth in Section as it relates to Section 6106 does to apply this case. Consequent- ly, appellant to properly was found be in of violation Sec- tions 6106 and of the 6118 Act. v.
In Commonwealth 295, 285 Jennings, 304, Pa.Super. 231, 427 A.2d 235 the said: fact may reasonable finder ... infer operability “[a] is an also essential element to in proven estab- [which lishing of 6106,] violations Sections 6105 and from an object like, like, looks feels sounds or is like like a firearm ... direct of Com- proof operability,” without monwealth Layton, v. 843, 452 Pa. 307 A.2d 844 (1973). of a firearm operability is to its synonymous
suitability Here, for use. though unloaded, gun the was mechanically operable capable and of shot. firing a It cannot question be said that incapable was of shot, a unloaded, whether loaded or because a merely shot was not or fired because ammunition was not found the appellant’s possession at the time of his arrest. More over, it would be absurd to find that of the intent legislature to Act only this to those firearms which were discovered opposed loaded as to firearm within the given definition could potential that be deemed a statute, threat. When interpreting guided are “[w]e that the presumption legislature did not intend a result absurd, impossible unreasonable execution.” Stewart, Commonwealth 514, 343 citing Commonwealth v. Bigelow, (1985), A.2d (1979). Thus, we conclude that appellant’s possession operable found was an fire- arm meaning within the Act. In defining firearm within the bounds of the Uniform Firearms “suitable applies operability general use” to not opera- of the bility moment. The instant use a ability to firearm is key determining not weapon’s life-threatening One capability. who is a victim a violator Act can hardly avail himself or herself of the opportunity such a to ponder situation whether fact the at that moment is capable firing a shot. in Siiams, supra, defined the terms “fire- Court,
This “operable arm” status” order provide a broader *7 picture applicability of of the Act. It that, was determined a finding even without of operability, appellant had within the control means to the object convert into one capable a Thus, of shot. firing appellant was found guilty of 18 violating Pa.C.S.A. Section 6106. The issue disputed sole Siiams was whether in on appeal the lower court was correct in finding the Commonwealth to prove failed that the found on appellant was in “operable” condition. The alleged inoperability was due to a mechanical defect the itself. On this appeal, court found that sufficient evidence did to prove fact exist operability vacated the determination, lower order. In its making the Layton, supra, court, of the majority on relying found that though the firearm máy have been “inoperable the [for moment]”, it was still of capable firing by a shot means control appellant. within the Layton set out a standard of the operability and rationale of statutory stated, for the definition “firearm”. The Court owned, it can concluded actor reasonably be that “[I]f or possessed operable firearm, controlled an there is a risk of of by violence a shot was the result avoided____” Layton, 452 Pa. sought at Layton of operability 845. It was clear in that the fire- at arm a of Sec- determining finding factor a violation Siiams footnote, the holding tion of the Act. found By 6105
411 6106 as well as Section 6105. Layton applicable to Section Siiams, Ct. at A.2d at 994. Thus Pa.Superior Layton and Siiams misplaced, reliance appellant’s on defined, firearm, been does since as it has operability 6106 and thus to Section Section In criminal prosecution, the Commonwealth has an burden, unshifting prove beyond all reasonable doubt elements a crime. Cropper, Commonwealth (1975). A.2d A review of the instant facts reveals the aforesaid proved elements were be- yond reasonable doubt. lower court was correct in that, at holding the time of for being cited violation of the antique replica an firearm only need be found suitable use, “operable” than necessarily rather loaded. We therefore affirm the lower court finding appellant guilty violations under the above-mentioned sections of the Uniform Firearms Act.
HESTER, J., joins opinion concurring this and files a opinion.
HESTER, Judge, concurring:
I join opinion Judge scholarly Kelly, write but I separately because believe did not a con- carry cealed weapon that his conviction was therefore errone- Although ous. appellant’s counsel this in post- raised issue trial motions and the trial court addressed issue its opinion, counsel inexplicably abandoned issue con- *8 appeal. cealment on cannot properly treat the issue on merits, its 2116(a), it has been waived. Pa.R.A.P. Balch, v. 2119(a); Commonwealth 71, 76, Pa.Super. 328 476 Nace, 458, (1984); A.2d 461 v. 575, 578, Rago Pa.Super. 313 337, 460 v. (1983); A.2d 339 Sanford, Commonwealth 299 64, 67, Pa.Super. 149, Common- (1982); 445 A.2d 150-51 Harper, wealth v. Pa.Super. 192, 3, 292 196 n. 436 A.2d 1217, (1981). n. 3 1219
Nevertheless, is Of importance issue to substantial I appellant, and believe the trial court erred its treatment involving issue weapon. concealment 412 Butler, Commonwealth v. trial court cited correctly 399, 403, 172,
189 Pa.Super. (1959), 150 A.2d 173 for the proposition that the “issue of depends concealment on the particular circumstances present each case and is a question for the trier of reaching fact a resolve 10/8/85, Slip op., court, however, decision.” at 2. The when, fact, characterized the issue as one of credibility there no was conflict the testimony.
Butler
that when
and a
line of cases
it hold
following
evidence,
there
conflicting
is
concealment
is a question for
Butler,
Commonwealth v.
supra,
the fact-finder.
189
403,
Superior
(Butler
Ct. at
150 A.2d
173
attempted
at
had
the gun
police
conceal
from
officers
it to
by passing
Nickol,
Commonwealth v.
wife);
75, 81,
476 Pa.
381 A.2d
873,
(1977) (evidence
876-77
from
trier of fact
could
to robbery); Com-
infer
gun prior
that Nickol concealed
monwealth v.
Pressley,
163, 166,
345,
433 Pa.
249
A.2d
346
(1969) (evidence from which fact-finder
could infer
Pressley
sweater);
had
from
removed
under his
Horshaw,
v.
Commonwealth
237 Pa.Super.
346 A.2d
340,
(1975)
342-43
(robbery victim testified that Horshaw
from
pulled gun
his abdomen and victim first
it
it
saw when
Commonwealth v.
side);
coming up by
Horshaw’s
Harris,
606, 608-09,
Pa.Super.
850,
171 A.2d
(testimony very much
conflict
Harris seen drawing
but
gun from his
one
and seen
jacket by
drawing
witness
some
others).
object from his pocket by
When, however,
evidence,
there is no conflict in the
there
no
credibility
issue of
the trier of
be resolved
fact.
from Commonwealth
I
indistinguishable
believe this case is
Williams,
over-
91,
Pa.Super.
(1975),
Foster,
ruled on other grounds, Commonwealth v.
32,
(1977).
34 n.
439 n. 3
City
Philadelphia
Williams was seen
automobile,
handgun
passing
walking
corner,
at
to the
spinning
tossing
Then,
it from hand to hand.
belt,
Williams “stuck the
in his
turned around and
Id.,
away.”
Pa.Superior
walked
Ct. at
Although appellant issue, failed to argue this the Com- monwealth did address it. The Commonwealth states that appellant’s
explanation that he intended to place gun on a wall would have merit if it were not for the he way which carrying in the meantime. People just don’t guns walk around stuck in pants, with their having the so that others will sticking butt just enough out realize that he is armed if the real intention place is to on a wall. Brief appellee added). at 3 (emphasis
Accordingly, had the issue on I argued appeal, been would have reversed the and discharged appel- conviction lant. As it was not I argued, am constrained to join Judge Kelly’s opinion correctly addresses the other argu- ments of appellant. Pennsylvania, Appellant
COMMONWEALTH of Daniel MANSBERRY.
Superior Pennsylvania. Court of
Argued May 1986. Sept.
Filed