Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1974, No. 741, in case of Commonwealth of Pennsylvania v. Hershell Williams.
Lewis S. Small, for appellant.
Martin L. Trichon, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Concurring and Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this concurring and dissenting opinion.
[ 237 Pa. Super. Page 93]
This appeal stems from appellant's conviction of Sections 6106*fn1 and 6108*fn2 of the Pennsylvania Uniform Firearms Act. Such convictions were based on the following evidence.
On the afternoon of March 25, 1974, Tyree Johnson, a reporter for the Philadelphia Daily News, was walking on the 2200 block of Harlan Street in Philadelphia when he heard several gunshots. As he rounded the corner of Harlan onto 22nd Street he observed appellant firing a long-barrelled, jet black hand gun at a fast-moving tan Cadillac. After the Cadillac turned a corner appellant then held the gun to his side and began to walk. Johnson proceeded to his automobile, which was parked on 22nd Street and drove to the corner where he stopped for a red light. At the corner Johnson saw appellant pull a gun, which was apparently the same gun he had seen appellant firing at the tan Cadillac. Appellant then walked over to the corner, about fifteen feet from Johnson, and began to spin the gun and toss it from one hand to the other. As the light turned green appellant stuck the gun in his belt, turned around and walked away. Johnson notified a policeman as to what had occurred and then pointed out appellant, who at this time was sitting in a black Cadillac. Appellant was arrested and searched, but no gun was found. The black Cadillac was not searched. Later a search warrant was obtained for appellant's store at 22nd and Jefferson Streets. The search of such store resulted in the discovery of another hand gun, which was stipulated
[ 237 Pa. Super. Page 94]
prior to post-verdict motions to be a different gun than Johnson saw during the incident.
Appellant's first contention is that the gun found at appellant's store should not have been admitted in that its admission confused the finder of fact, which in the instant case was the trial judge sitting without a jury. This contention is totally without merit. The prosecution, being aware that the gun seized was not the gun used in the incident, did not during its case introduce or even mention the seized gun. It was the appellant who elicited testimony as to the seized gun by calling the officer who searched appellant's store to the stand and questioning him as to evidence found. On cross-examination it was entirely proper for the prosecutor to delve into this matter raised by appellant and to introduce the seized gun into evidence. Furthermore, any possible confusion concerning the identity of the guns was corrected because, after trial and prior to post-verdict motions, the parties stipulated that the seized gun was not the gun involved in the incident.
The second issue raised by appellant is whether there was sufficient evidence to sustain appellant's conviction of Sections 6106 and 6108 of the Firearms Act.*fn3 The relevant portion of Section 6108 states: "No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon public property in a city of the first class. . . ." Since Philadelphia is a city of the first class, and since there was ample evidence from which to conclude that appellant carried a firearm upon the public street, appellant's conviction as to Section 6108 was clearly based on sufficient evidence. The evidence, however, as to Section 6106 was not so clear. The relevant portion of that section states: "No person shall carry a firearm in any vehicle or concealed on or about his person. . . ." This section differs from Section 6108 in that
[ 237 Pa. Super. Page 95]
the essence of the offense set forth in Section 6106 is the concealed carrying of a weapon. See Commonwealth v. Walker, 219 Pa. Superior Ct. 167, 169 (1971). In the instant case there is no evidence whatsoever as to any attempt by appellant to conceal any weapon; and, therefore, we must conclude that ...