488 A.2d 319 | Pa. Super. Ct. | 1985
Lead Opinion
Appellant was convicted in Philadelphia Municipal Court of violating Section 6106 of the Crimes Code, 18 Pa.C.S. § 6106 (Firearms not to be carried without a license) and sentenced to one year non-reporting probation and payment of a $60 fine. He filed a timely petition for a writ of certiorari to the Court of Common Pleas which subsequently denied the petition and thereby affirmed the Municipal Court’s judgment of sentence. This appeal followed.
Crimes Code Section 6106 reads in part:
(a) Offense defined. — No person shall carry a firearm in any vehicle or concealed on or about his person except in his place of abode or fixed place of business, without a license therefor as provided in this sub-chapter.
(b) Exceptions. — The provisions of subsection (a) of this section shall not apply to:
18 Pa.C.S.A. § 6106(a) & (b). Subsection (b) goes on to enumerate ten exceptions to subsection (a). We have previously held that the exceptions in subsection (b) are not elements of the offense which the Commonwealth must prove beyond a reasonable doubt if a conviction is to be sustained, but are rather affirmative defenses which must be proven by the accused. See Commonwealth v. Hughes, 268 Pa.Superior Ct. 536, 408 A.2d 1132 (1979). On the other hand, the Supreme Court has held that lack of a license for the firearm in question is an essential element of the offense proscribed by Crimes Code Section 6106 and the
Appellant argues that “except in his place of abode” should be read as a material element of the offense just as “without a license” was read in Commonwealth v. McNeil, supra. And he argues that the Commonwealth did not make out its case against him because it failed to present any evidence in its case in chief that he was not in his “place of abode” when found with the prohibited firearm. He contends the Municipal Court should have granted his demurrer to the evidence based on this contention. Finally he argues that the trial judge improperly took “judicial notice” that he was not in his “place of abode” when found with the gun based on information contained in the record but not introduced into evidence or adduced at trial. The Commonwealth responds that “place of abode” should be construed to be an affirmative defense and not an essential element of the crime as defined in Section 6106(a), and that the burden therefore should rest on the accused. It further argues that by presenting a defense appellant waived the demurrer, but that such an argument on appeal will be treated as an attack on the sufficiency of the evidence. See Commonwealth v. Ilgenfritz, 466 Pa. 345, 353 A.2d 387 (1976) . And the Commonwealth contends that the evidence adduced at trial was sufficient to sustain the verdict.
In Commonwealth v. Stoffan, 228 Pa.Superior Ct. 127, 323 A.2d 318 (1974), this court found Commonwealth v. Neal, 78 Pa.Superior Ct. 216 (1922) useful in interpreting certain exemption clauses in the Controlled Substance, Drug, and Cosmetic Act, 35 P.S. § 780-113(a)(14).
“In deciding whether the exemption clauses referred to elements [of charged crimes] this court enunciated the following test:
*86 ‘When a statute defining an offense contains an exception, in the enacting clause, which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately and clearly described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enought 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 pleader may safely omit any such reference, as the matter contained in the exception is matter of defense and must be shown by the accused.’ ” Neal, 78 Pa.Superior Ct. at 219, in Stoffan, supra 228 Pa.Super. at 140, 323 A.2d at 324.
While this test refers to the wording of an indictment, the question is the same one that is involved in this case, whether a clause phased, like an exception states a necessary element of the crime with which the defendant is charged, in which case the burden of proving the exception rests on the Commonwealth.
The Stoffan case then proceeds to enumerate four factors which must be considered in this situation where the wording of a statute is involved.
... [T]he wording of the exception and its role in relation to the other words in the statute; whether in light of the situation prompting legislative action, the exception is essential to complete the general prohibition intended; whether the exception makes an excuse or justification for what would otherwise be criminal conduct, i.e., sets forth an affirmative defense; and whether the matter is peculiarly within the knowledge of the defendant. Id., 228 Pa.Superior Ct. at 141, 323 A.2d at 324.
The first of these factors appears to support the interpretation that “except in his place of abode or fixed place of business” constitutes an element of the crime. Subsection (a) of the statute contains the definition of the proscribed
Moreover, remembering Section 1924 of the Statutory Construction Act, the expression of the exceptions, clearly delineated such, as in subsection (b), should be read to exclude all other exceptions. Following this line of reasoning, “place of abode” is not an exception to the proscription of Section 6106(a) but rather an element of the offense. This conclusion is bolstered by what this court wrote in Commonwealth v. Hughes, where we said:
[W]e note the language defining the offense in section 6106(a) of the Act clearly, accurately, and fully describes the conduct sought to be punished without resort to subsection (b) of 6106 (Exceptions). Grammatically, section 6106(b) is completely divorced from the more specific provisions of 6106(a) which defines the essential elements of the crime.
Id., 268 Pa.Superior Ct. at 546, 408 A.2d at 1137-1138. Thus it would appear that applying these rules of construction yields the conclusion that the legislature intended that the Commonwealth prove that the offense did not take place in appellant’s place of abode.
Nevertheless, this court concludes, as did the trial court, that it was not the intention of the legislature to impose this burden upon the Commonwealth.
The heading for section 6106 is “Firearms not to be carried without a license.” Even a cursory reading of the title would seem to indicate that the gravamen of the offense is the simple carrying of an unlicensed firearm. Indeed, the Court of Common Pleas so concluded when it considered the question on appellant’s petition for writ of certiorari. The fact that the phrase in question is set off by
Material placed in a proviso is not an element of the crime but rather a matter of defense and need not be either plead or proved by the prosecution. United States v. Winnicki, 151 F.2d 56, 58 (7th Cir.1945) and cases cited therein. Id., 484 Pa. at 482-483, 399 A.2d at 395.
The Crimes Code, in Section 103, defines “Material element of an offense” as
[a]n element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with:
(1) the harm or evil incident to conduct, sought to be prevented by the law defining the offense; or
(2) the existence of a justification or excuse for such conduct.
18 Pa.C.S.A. § 103.
In concluding that the “harm or evil ... sought to be prevented” by Section 6106 was the mere possession of an unlicensed firearm regardless of the location, the trial court compared Section 6106 with Sections 6107
Finally, the fourth factor in Stoffan, “whether the matter is peculiarly within the knowledge of the defendant,” also supports the exception as an affirmative defense. Whether a location in which a defendant is found to be carrying a concealed unlicensed firearm is indeed his “place of abode” is often within a defendant’s own knowledge. And, in these cases, there is no central accessible record upon which the Commonwealth may draw to determine a defendant’s place of abode.
The Commonwealth’s only witness, Officer Ryan, testified that he responded to a radio call and went to 2830 North 22nd Street in the City of Philadelphia. Upon arriving there he was waved down by a woman. He proceeded into a beauty shop at that address. At the rear of the shop was a second room used as a residence. He stated that he saw appellant seated there, whom he frisked. The officer found a .22 caliber six-shot revolver in appellant’s pocket. Appellant was immediately arrested and subsequently booked. Appellant testified that at the time of his arrest he was living with his paramour in the rear room of the beauty shop, and that his paramour owned the shop. He also testified that after his release from police custody he returned to the North 22nd Street address. On cross-examination he testified that he occasionally stayed at his sister’s home at 4639 North 12th Street.
Appellant’s final contention is that the trial judge erroneously took “judicial notice” of the fact that appellant had listed his address as 4639 N. 12th Street on certain papers contained in appellant’s file when he ruled on the demurrer. Because his “place of abode” was not a material element of the offense, taking judicial notice of the address listed on the papers in question was innocuous.
For the above reasons, order denying petition for writ of certiorari and judgment of sentence are affirmed.
. In Stoffan, this court found that a clause beginning with the word “except" did not define a defense but, rather, a necessary element of the crime.
. § 6107. Prohibited conduct during emergency.
No person shall carry a firearm, rifle or shotgun upon the public streets or upon any public property during an emergency proclaimed by a municipal or State government executive unless that person is:
(1) Actively engaged in a defense of his life or property from peril or threat.
(2) Licensed to carry firearms under section 6109 of this title (relating to licenses) or is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).
. § 6108. Carrying firearms on public streets or public property in Philadelphia.
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(b) of this title (relating to firearms not to be carried without a license).
. Unlike the Commonwealth’s record of licenses to carry firearms. McNeil, supra.
. On two occasions during his cross-examination appellant, as found by the trial court on remand by this court for correction of the record, twice misstated the 2830 North 22nd Street address, which caused some confusion.
Dissenting Opinion
dissenting:
Although I acknowledge the great care with which the majority has approached a difficult problem, I must nevertheless dissent. In my judgment it is an essential element of the offense defined at 18 Pa.C.S. § 6106 that possession of an unlicensed firearm occur at a place other than the possessor’s “place of abode or fixed place of business.” See: Commonwealth v. Stoffan, 228 Pa.Super. 127, 323 A.2d 318 (1974). I would hold, therefore, that when there is evidence from whatever source that the defendant’s possession of an unlicensed firearm occurred only at his place of abode, the burden is then on the Commonwealth to prove beyond a reasonable doubt that his possession of the unlicensed firearm was criminal, i.e., that possession of the unlicensed firearm occurred at a place that was not his place of abode. See: Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). See also: Commonwealth v. Green, 493 Pa. 409, 426 A.2d 614 (1981); Commonwealth v. Tyson, 485 Pa. 344, 402 A.2d 995 (1979); Commonwealth v. Williams, 463 Pa. 370, 344 A.2d 877 (1975); Common