No. 1106, 1107 October Term, 1977 Appeal from the Judgment of Sentence of the Court of Common Pleas of Potter County, Criminal Division at Nos. 7 and 20 of 1976.
Jeffrey E. Leber, Coudersport, with him Duvall & Leber, Coudersport, for appellant.
Harold B. Fink, Jr., District Attorney, Coudersport, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., dissents and would remand. Spaeth, J., joins the majority's disposition of No. 1106 October Term, 1977, but at No. 1107 October Term, 1977 would reverse and remand for a new trial on the ground that appellant's motion to suppress evidence should have been granted. Watkins, former President Judge, did not participate in the consideration or decision of this case.
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William Darush, appellant, asks this court to review his convictions for two alleged violations of the Uniform Firearms Act. Appellant was charged with selling a firearm without a license*fn1 and for obliterating the serial number on a firearm.*fn2 For the reasons set forth below, we reverse both convictions.
Appellant argues that his conviction under 18 P.S. § 6112 was illegal because that provision only applies to "retail dealers," which he claims he is not. The provision in question says, "No retail dealer shall sell . . . any firearm without being licensed . . . ." Though the
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statute provides us with a definition of "firearm,"*fn3 nowhere does it delineate who should be considered a "retail dealer." When the statute itself fails to define a term, case law tells us that the words of a statute are to be construed according to their common or popular meaning unless the context indicates a different construction. Treaster v. Union, 430 Pa. 223, 242 A.2d 252 (1968); Harris-Walsh, Inc. v. Borough of Dickson City, 420 Pa. 259, 216 A.2d 329 (1966); Department of Labor and Industry, Bureau of Employment, Inc. v. Unemployment Compensation Bd. of Review, 203 Pa. Super. 183, 199 A.2d 474 (1964); Quaid v. Tax Review Bd. of City of Philadelphia, 188 Pa. Super. 623, 149 A.2d 557 (1959). Furthermore, penal statutes are to be strictly construed in favor of the accused. Commonwealth v. Cunningham, 248 Pa. Super. 219, 375 A.2d 66 (1977).
In the instant case, we conclude that the legislature did not intend that private gun collectors, who only occasionally sell their firearms, should be required to obtain a license for these isolated transfers. As commonly used, the term "retail dealer" refers to a person who buys articles in gross or merchandise in large quantities and sells the same directly to the ultimate consumer by single articles or in small quantities. Black's Law Dictionary at 1479 (4th ed. 1968). Another indication of the legislator's intent can be found by contrasting Section 6112 with Section 6111 of the Uniform Firearms Act.*fn4 Section 6111(a) speaks generally of the sale of firearms but, unlike Section 6112, Section 6111 focuses on the activities of a "seller." Accordingly, it has been held that because Section 6111 refers to "sellers" in general, both retail and private sellers are included within the ambit of this provision. Commonwealth v. Schaffer, 72 D. & C.2d 772 (1975). A similar rationale in the instant case leads us to
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conclude that the legislature meant to exclude private collectors when they drafted Section 6112.
Since defendant was charged under Section 6112, supra, the Commonwealth necessarily had to prove that appellant was a retail dealer, according to the fundamental rule of law which holds that the Commonwealth has the never shifting burden of proving all elements of the charged offense. Commonwealth v. Williams, 463 Pa. 370, 344 A.2d 877 (1975); Commonwealth v. Johnston, 438 Pa. 485, 263 A.2d 376 (1970); Commonwealth v. Wiggins, 231 Pa. Super. 71, 328 A.2d 520 (1974). Review of the Commonwealth's case shows no evidence that firearms were displayed as if for sale at the tavern which appellant owned, the site of the alleged sale. More importantly, the evidence shows only two occasions on which appellant sold or traded guns. This is significant since one indicia of a retail sale is the number and frequency of sales made. See Janel Sales Corp. v. Lanvin Parfums, Inc., 396 F.2d 398 (2d Cir. 1968). Evidence indicated that appellant exchanged a .38 caliber revolver and some cash with a neighbor in exchange for a .22 caliber Ruger and a .22 caliber Hornet. Afterwards, on January 3, 1976, appellant allegedly sold a ...