decided: June 29, 1977.
COMMONWEALTH OF PENNSYLVANIA
GREGORY POINDEXTER, APPELLANT
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.
Author: Van Der Voort
[ 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 to carry a firearm; or (2) such person is exempt from licensing under § 6106(b) of this title (relating to firearms not to be carried without a license)."*fn3
[ 248 Pa. Super. Page 569]
The structure of the sentence which delineates a § 6108 offense (with subsections (1) and (2) following a colon) is such that the two subsections are of equal value: the positions of the two clauses could even be reversed without changing the meaning of the sentence. Were we to hold that the Commonwealth had to prove as an element of a § 6108 offense that the accused did not have a license to carry the firearm, we would have to further conclude that the Commonwealth also had to prove, in every case, that the accused was not a member of an approved organization and on the way to or from target practice or a meeting, that the accused was not carrying the weapon in the ordinary course of repairing or selling firearms, in short, that the accused was not exempt under any of the numerous other exceptions enumerated in sections 6108(2) and 6106(b). The legislature did not intend the Commonwealth to sustain such an impossible burden. We believe that the legislature must have intended that subsections (1) and (2) of § 6108 be treated as setting forth defenses which, if they are to be raised at all, must be raised by the one charged with the offense.
A license to carry a gun is a permission to do so and is neither an excuse nor a justification for carrying one. Lack of a license is made an element of § 6106 offense by definition of offense. Hence, the Commonwealth must prove such lack. Lack of a license on the other hand is not made an element of § 6108 offense by definition*fn4 or otherwise.
[ 248 Pa. Super. Page 570]
The Commonwealth is not required to prove the lack of a license to sustain a § 6108 charge. We find that the Court of Common Pleas was correct in finding that the Commonwealth failed to prove appellant guilty of carrying a firearm without a license; however, we find that the court erred in ordering a new trial as to the § 6106 charge instead of arresting judgment. See Commonwealth v. McNeil, supra. Accordingly, the order of the court below is modified, judgment in the § 6106 charge is arrested, and the appellant is discharged of the § 6106 offense.
Inasmuch as the court below has ordered a new trial as to the § 6108 charge, and since the Commonwealth has taken no appeal, that decision even though based upon faulty reasoning must stand. The order of the court below of October 23, 1975, from which this appeal is taken, as modified with respect to the § 6106 charge, is affirmed.
HOFFMAN, Judge, concurring and dissenting:
[ 248 Pa. Super. Page 571]
I agree with Judge CERCONE that the only issue properly before us, in view of the Commonwealth's failure to file a cross-appeal, is whether the lower court erred in not arresting judgment and discharging appellant given that it properly found insufficient evidence to convict under 18 Pa.C.S. § *fn61061 and 18 Pa.C.S. § 6108.*fn2 In my view, the lower court did err in refusing to arrest judgment on both counts. However, because the Majority states that the Commonwealth is not required to prove the absence of a license under § 6108, I would like to reiterate my belief, expressed in Commonwealth v. Williams, 237 Pa. Super. 91, 346 A.2d 308 (1975),*fn3 that absence of a license is a material element of the offense prohibited by § 6108. The Commonwealth has the burden of proving every essential element of the crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Because the Commonwealth did not produce evidence of the absence of a license, it has failed to sustain its burden of proof under § 6108. Accordingly, appellant's judgment of sentence for violation of § 6108 should be arrested and appellant should be discharged.
Section 103 of the Crimes Code,*fn4 in pertinent part: ". . . the following words and phrases, when used in this title shall have, unless the context clearly indicates otherwise,
[ 248 Pa. Super. Page 572]
the meanings given to them in this section: 'Element of an offense' Such conduct or such attendant circumstances or such a result of conduct as: . . . (3) negatives an excuse or justification for such conduct; . . . 'Material element of an offense' An element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with: . . . (2) the existence of a justification or excuse for such conduct. . . ." Section 302(a)*fn5 states that: ". . . a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense. " (Emphasis supplied) Therefore, appellant is not guilty of violating § 6108 unless the Commonwealth establishes that he acted intentionally, knowingly, recklessly, or negligently with respect to each material element of the offense, as defined by section 103, prohibited by § 6108.
The existence of a license certainly provides a "justification or excuse" for carrying a firearm on a public street. Under the 1972 Crimes Code,*fn6 a fact which negates an excuse or justification is an element of the offense. Moreover, the absence of a license is a material element of an offense under section 6108 because it is directly connected with the existence of a justification or excuse. Because absence of a license is a material element of an offense under § 6108 the Commonwealth must prove this fact beyond a reasonable doubt. In re Winship, supra.
I do not now decide whether the Commonwealth must prove that the accused was not exempt at the time of arrest under § 6108(2) and § 6106(b). Quite possibly, the exemptions listed in § 6106(b) and incorporated by section 6108(2), do not constitute "justifications or excuses" under section 103 and, therefore, are not elements of the offense which the prosecution must prove. Cf. Commonwealth v. Stoffan, 228 Pa. Super. 127, 323 A.2d 318 (1974). Alternatively, the legislature
[ 248 Pa. Super. Page 573]
may wish to clarify the precise requirements of proof that the Commonwealth meet under § 6108.
Because the Commonwealth failed to adduce evidence that appellant did not have a firearms license at the time of his arrest, I believe that the judgment of sentence for violation of section 6108 should be arrested and appellant should be discharged.
CERCONE, Judge, dissenting:
The instant appeal arose from an order of the Court of Common Pleas of Philadelphia County, Criminal Division, which was reviewing appellant's conviction on certiorari from the Municipal Court. The question raised on that certiorari was whether the Commonwealth had failed to sustain its burden of proving violations of Sections 6106 and 6108 of the Crimes Code*fn1a (Firearms not to be carried without a license; carrying firearms on public streets or public property in Philadelphia, respectively) when it failed to offer any evidence at trial in the Municipal Court that appellant did not have a license to carry the weapon in question. Based upon the authority of Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975) and its progeny the Honorable Ethan Allen Doty sustained appellant's claim of insufficient evidence but, rather than arrest judgment on the charges, Judge Doty remanded the case for a new trial in Municipal Court. Only the defendant has appealed from this order.
At the outset it must be noted that the question of whether Judge Doty properly applied McNeil to Sections 6106 and 6108 of the Crimes Code in vacating appellant's convictions in the instant case is not before us, because the Commonwealth, which was the party aggrieved by that
[ 248 Pa. Super. Page 574]
determination, has not appealed.*fn2a If we were to hold that the court improperly applied McNeil to the claimed violation of Section 6108 and reinstate the judgment entered in the Municipal Court, as the majority would prefer to do, we would be violating well-entrenched principles of appellate practice:
"[I]t is settled that ordinarily an appellee who did not file a cross appeal is not entitled to an appellate review to obtain a decision more favorable to him than that appealed from by the other party. . . . Errors prejudicially affecting an appellee who made no cross appeal are not within the scope of appellate review, despite his objections in the court below, to those errors. . . . Unless the decision below is reversed in favor of the appellant, it must on appeal stand even though it is not as favorable to the appellee as the evidence would have warranted, and where the decision of the court below was in part favorable and in part unfavorable to each of the adverse parties, it can be reviewed for the benefit of each party only if each party has attacked it either by appeal or cross-appeal." 5 Am.Jur.2d, Appeal & Error § 707 at pp. 153-54. See also 5 C.J.S. Appeal & Error § 1498; Annotation, 1 L.Ed.2d 1820.
In the instant case we have a decision by Judge Doty that was both favorable and unfavorable to each party. The Commonwealth was adversely affected by the court's determination of insufficient evidence and its consequential vacation of the conviction in the Municipal Court, but the Commonwealth did not appeal. Therefore, the determination of insufficient evidence has become the law of this case. On the other hand, appellant was aggrieved by the court's ordering a new trial after finding that the evidence was insufficient, and he did appeal that order. Of course, since the court's finding of insufficient evidence was favorable to him, appellant has not challenged it here and, therefore, it cannot be reviewed. Nevertheless, in an off-handed manner
[ 248 Pa. Super. Page 575]
at the very end of its opinion, the majority seeks to justify its reaching the question of whether the evidence was indeed insufficient. While the reason given is cryptic at best, it appears to rest on a supposed permutation of the rule that an order of the trial court may be affirmed on any ground which appears in the record.*fn3a This is certainly a peculiar suggestion in this case, since the majority opinion is manifestly an argument for reversal and reinstatement of the judgment of the Municipal Court. In short, the majority has concluded that Judge Doty's order granting a new trial must be affirmed because it should be reversed! That paradox underscores why the majority errs in reviewing Judge Doty's determination of insufficient evidence when the Commonwealth has not appealed and is obviously willing to accept it.
Hence, the only question before us is, given the insufficiency of the evidence produced by the Commonwealth at the first Municipal Court trial, could the court on certiorari properly remand for a new trial, or should it have arrested judgment as appellant argues herein. In Commonwealth v. Wright, 449 Pa. 358, 296 A.2d 746 (1972) our Supreme Court found evidence of receiving stolen goods insufficient to prove guilt beyond a reasonable doubt and confronted the question of whether a new trial was a permissible remedy. Basing its decision on the guideline of the Act of June 15, 1951, P.L. 585, § 1, 19 P.S. § 871 (1964), the Court concluded that the only remedy was arrest of judgment and discharge of the defendant. As the Court stated:
"Where it is determined after a review of the entire record that the evidence is insufficient to sustain the charge, the trial court is mandated to discharge the defendant and dismiss the case. This act does not leave the remedy to the discretion of the court, but rather, directs the dismissal of the action and the discharge of the defendant." Id. 449 Pa. at 361, 296 A.2d at 748. See Commonwealth v. Dale, 232 Pa. Super. 213, 335 A.2d 454
[ 248 Pa. Super. Page 576]
(1975). Cf. Commonwealth v. Henderson, 451 Pa. 452, 304 A.2d 154 (1973); Commonwealth v. Brown, 234 Pa. Super. 119, 126, n. 2, 338 A.2d 659 (1975) (Dissenting Opinion by Hoffman, J.).
Therefore, the lower court erred in remanding the instant case for a new trial after it determined that the evidence was insufficient. The court should have arrested judgment and discharged appellant.
For the foregoing reasons, the order of the court below should be vacated, judgment should be arrested and appellant discharged.