Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, at Misc. No. 75-00-4086, M.C. 74-12-1457.
John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring and dissenting opinion in which Spaeth, J., joins. Cercone, J., files a dissenting opinion in which Spaeth, J., joins.
[ 248 Pa. Super. Page 566]
Appellant Gregory Poindexter was arrested on December 13, 1974, and was charged with possessing an instrument of crime, possessing a prohibited offensive weapon, carrying a firearm without a license, and carrying a firearm in a public place in Philadelphia.*fn1 On July 7, 1975, appellant was found guilty in Philadelphia Municipal Court of carrying a firearm without a license (§ 6106) and of carrying a firearm in a public place in Philadelphia (§ 6108); appellant was given a suspended sentence on the § 6106 conviction and was placed on five years probation on the § 6108 conviction. On July 17, 1975, appellant filed a petition with the Court of Common Pleas of Philadelphia County for a writ of certiorari.*fn2
[ 248 Pa. Super. Page 567]
The Court of Common Pleas issued the writ and, after reviewing the record and finding that the Commonwealth had failed to establish an essential element of the offense, by Order dated October 23, 1975, reversed the convictions and remanded the case to the Municipal Court for a new trial. Appellant then appealed to our court, arguing that the Court of Common Pleas erred in ordering a new trial instead of arresting judgment.
It is clear that due process requires the prosecution in a criminal case to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In the case before us, the Philadelphia Court of Common Pleas found that the Commonwealth had failed to prove an element of the crimes of carrying a firearm without a license and carrying a firearm in a public place in Philadelphia; specifically, the court found that the Commonwealth had failed to prove that appellant was not licensed to carry a gun. The court based this ruling on our Supreme Court's decision in Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). In McNeil, the Supreme Court reviewed the conviction of a person charged with violating 18 Pa.C.S. § 6106, found that the record did not contain a single word relating to the appellant's lack of a license, and ordered the appellant discharged. Although the record in the case before us reveals that the gun which appellant Gregory Poindexter was carrying at the time of his arrest had been purchased ten months prior to appellant's arrest by someone
[ 248 Pa. Super. Page 568]
other than appellant, there is no testimony to show that appellant did not have, at the time of his arrest, a license for the gun. The Court of Common Pleas properly found that the Commonwealth failed to sustain its burden with respect to the § 6106 offense.
At first glance, it would appear that 18 Pa.C.S. § 6106 and 18 Pa.C.S. § 6108 should be treated alike -- that since the Commonwealth must prove lack of a license as an element of § 6106, it must also prove lack of a license as an element of § 6108. A close analysis of the syntax in the two sections indicates, however, that the legislature did not intend that lack of a license should be an element of a § 6108 offense. Section 6108 states: "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 ...