No. 796 January Term, 1977, Appeal from the Judgment of the Superior Court filed October 6, 1977, at No. 130, October Term, 1976, reversing the order of the Court of Common Pleas, Trial Division, Criminal Section, for the County of Philadelphia, at Misc. Docket No. 75-00-3884 and reinstating judgment of sentence of the Municipal Court at M.C. No. 75-03-754; No. 16 January Term, 1978, Appeal From The Judgment of Superior Court No. 1883, October Term, 1975, Reversing The Arrest Of Judgment Of Common Pleas - Trial Division - Criminal Section No. 786, January Sessions, 1970, Of Philadelphia County
John W. Packel, Chief, Appeals Div., Leonard Sosnov, Philadelphia, for appellant James Bigelow.
Harry S. Tischler, Asst. Defender, Leonard Sosnov, Philadelphia, for appellant Phillip Pope.
Robert B. Lawler, Asst. Dist. Atty., Chief, Appeals Div., Gaele McLaughlin Barthold, Asst. Dist. Atty., for appellee in both cases.
Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. Roberts, J., filed a dissenting opinion in which Manderino, J., joined. O'Brien, J., did not participate in the consideration or decision of this case.
These two appeals involve the application of our decision in Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975), to section 6108 of the Uniform Firearms Act, 18 Pa.C.S.A. § 6108 (1973), and its predecessor, 18 P.S. § 4628(e.2). In McNeil, this Court held that the Commonwealth has the burden of affirmatively proving in prosecutions for carrying firearms without a license under former section 4628(e) of the Act, now codified at 18 Pa.C.S.A. § 6106, that the weapon involved was not licensed. We are asked to extend that burden to cases involving section 6108's prohibition upon carrying firearms on public streets or public property in Philadelphia. For the reasons that follow, we believe that the McNeil decision is not applicable to prosecutions under section 6108 or its predecessor, section 4628(e.2).
James Bigelow was arrested and charged with violations of sections 6106*fn1 and 6108*fn2 of the Uniform Firearms Act,
and of a weapons offense under 18 Pa.C.S.A. § 908. He was found guilty in the Municipal Court of violating section 6108, but because the Commonwealth failed to show that Bigelow did not have a license for the weapon involved -- a .38 caliber automatic -- the court failed to convict him under sections 6106 and 908. The Court of Common Pleas reversed the section 6108 conviction believing that our decision in McNeil compelled that result. The Commonwealth appealed to the Superior Court which reversed the Court of Common Pleas and reinstated the conviction, based on its earlier decision in Commonwealth v. Poindexter, 248 Pa. Super. 564, 375 A.2d 384 (1977).*fn3 Commonwealth v. Bigelow, 250 Pa. Super. 330, 378 A.2d 961 (1977). We granted allocatur pursuant to 42 Pa.C.S.A. § 724(a) (1978).
Phillip Pope was tried and convicted of carrying a firearm without a license in violation of section 4628(e.2)*fn4 of the Uniform Firearms Act, now 18 Pa.C.S.A. § 6108. Believing our McNeil decision to be controlling, the trial court sustained Pope's motion in arrest of judgment because the Commonwealth failed to prove that Pope lacked a license for the rifle involved. The Commonwealth appealed to the Superior ...