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COMMONWEALTH v. RAY (12/10/70)

decided: December 10, 1970.

COMMONWEALTH, APPELLANT,
v.
RAY



Appeals from judgments of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1968, No. 519, and Oct. T., 1969, No. 444, in cases of Commonwealth of Pennsylvania v. Frederick Ray; Same v. Hosie Jeffcoat.

COUNSEL

Thomas C. Carroll, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

James D. Crawford, Deputy District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Watkins, J.

Author: Watkins

[ 218 Pa. Super. Page 74]

These are appeals by the Commonwealth from the order of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia, dismissing prosecutions under Section 10-814 and Section 10-818 of The Philadelphia Code and indictments for carrying a concealed deadly weapon and for unlawfully carrying a firearm without a license under the Uniform Firearms Act of 1939, June 24, P. L. 872, § 628, 18 P.S. 4628 and its amendments. The Court directed verdicts of not guilty of the indictable offenses of carrying a concealed deadly weapon and, holding Section 10-814 and Section 10-818 of The Philadelphia Code unconstitutional, dismissed the summary charges under the Code and held that Sections e.1 and e.2 of Section 628 of the Uniform Firearms Act, 1968, July 30, P. L. [ILLEGIBLE WORD], § 1, 18 P.S. 4628 as unconstitutional and dismissed the indictable offenses without decision on the merits.

Appellee, Frederick Ray, was tried after waiver of trial by jury before Judge Thomas M. Reed on indictments for (1) carrying concealed deadly weapon and (2) unlawfully carrying a firearm without a license. He was also charged with the summary violation of the licensing provision of Section 10-814 of The Philadelphia Code.

Appellee, Hosie Jeffcoat, was charged with the same indictable offenses as well as a summary violation of Section 10-818 of The Philadelphia Code which prohibits

[ 218 Pa. Super. Page 75]

    the carrying of firearms in public in Philadelphia.

The directed verdicts of not guilty are not appealable by the Commonwealth. Commonwealth v. Haines, 410 Pa. 601, 190 A.2d 118 (1963). However, both defendants were also charged in summary proceedings with violation of Section 10-814 in the case of Ray, which prohibits the acquisition or transfer of firearms without a license; in the case of Jeffcoat, violation of Section 10-818 of the Code, which prohibits the carrying of firearms in public places. In both summaries, the Court dismissed the prosecutions and they are the proper subject for appellate review on appeal by the Commonwealth. It is only where the question involved is purely one of law that the Commonwealth may appeal from an adverse ruling in a criminal case. Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961). These cases clearly fall into that category where the court below dismissed the prosecution on the ground of unconstitutionality. The petitions to quash these appeals are denied.

Hosie Jeffcoat was apprehended in the 5500 block of Jane Street in the City of Philadelphia by Police Officer Michael Nuzzi, on August 29, 1969. He was subsequently indicted for carrying a concealed deadly weapon and for carrying a firearm without a license. The Magistrate's transcript carried the additional charge of violation of City Ordinance 10-818, which prohibited the carrying of firearms in public places.

The Court declared Section 628(e.2) of the Uniform Firearms Act, 1968, July 30, P. L. [ILLEGIBLE WORD], § 2, as unconstitutional; the court further declared the City Firearms Ordinance Section 10-818 to be unconstitutional; the court sitting as trier of fact found the weapon was not concealed and directed a verdict of not guilty of carrying a concealed deadly weapon.

[ 218 Pa. Super. Page 76]

In 1951, Philadelphia, by referendum of its citizens, adopted the Philadelphia Home Rule Charter as provided by Article XV, § 1, of the Pennsylvania Constitution as of that date and the authority expressly granted by the Legislature in the First Class City Home Rule Act, 1949, April 21, P. L. 665, § 1 et seq., 53 P.S. § 13101 et seq. Section 17 of the Home Rule Act provided that a city taking advantage of the act shall have all powers of local self-government ". . . and shall have complete powers of legislation and administration in relation to its municipal functions . . . The charter of any city adopted or amended in accordance with this act may provide for a form or system of municipal government and for the exercise of any and all powers relating to its municipal functions, not inconsistent with the Constitution of the United States or of this Commonwealth, to the full extent that the General Assembly may legislate in reference thereto as to cities of the first ...


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