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decided: March 16, 1979.


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.

Author: Nix

[ 484 Pa. Page 478]


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).

[ 484 Pa. Page 479]

James Bigelow was arrested and charged with violations of sections 6106*fn1 and 6108*fn2 of the Uniform Firearms Act,

[ 484 Pa. Page 480]

    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 Court which reversed the arrest of judgment on the basis of its Poindexter decision. Commonwealth v. Pope,

[ 484 Pa. Page 481250]

Pa. Super. 626, 379 A.2d 603 (1977). We granted allocatur.*fn5

In Commonwealth v. McNeil this Court held that the absence of a license is an essential element of the crime of carrying a firearm without a license as prohibited by former section 4628(e) of the Uniform Firearms Act. This section provided in relevant part:

Firearms not to be carried without a license; exceptions (e) No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as hereinafter provided.

18 Pa.C.S.A. Appendix, § 4628(e) (1973). In analyzing this section, the Court stated:

The structure of the statute and the nature of the prohibition convince us that the absence of a license is an essential element of the crime. . . . It follows, therefore, that the Commonwealth had the burden of establishing this element beyond a reasonable doubt. Commonwealth v. McNeil, 461 Pa. at 715, 337 A.2d at 843 (emphasis added).

The language employed by the Court indicates that it did not intend to announce a principle applicable to all weapons offenses. Rather, the Court's ruling is based on the peculiar wording of section 4628(e). The structure and phrasing of section 6108 and its predecessor section 4628(e.2) are so different from that of section 4628(e) as to require us to conclude that the McNeil decision is inapposite.

In interpreting the statute before us, our goal is to ascertain and effectuate the intention of the legislature. 1

[ 484 Pa. Page 482]

Pa.C.S.A. § 1921(a) (1978-79 Supp.). In so doing, we are called upon to use a common sense approach in which words and phrases are examined according to established rules of grammar and according to their common usage. Id. at § 1903(a). We are guided by the presumption that the legislature did not intend a result that is absurd, unreasonable, or impossible of execution. Id. at § 1922(1).

For convenience, our examination of the statute involved in these cases will focus on sections 6106 and 6108 of the new crimes code, the pertinent provisions of which are set forth in notes 1 and 2, supra. Our analysis applies with equal vigor to the virtually identical antecedents of these sections in the old crimes code, sections 4628(e) and 4628(e.2), respectively.

The titles of these two sections indicate that the legislature intended that the offenses prescribed by sections 6106 and 6108 to consist of differing elements. That 6106 requires that the absence of a license is to be proven by the prosecution as an element of the crime is shown by the title of that section: "Firearms not to be carried without a license." The title of section 6108, on the other hand, merely states "Carrying firearms on public streets or public property in Philadelphia." Although this difference alone does not compel us to state that non-licensure is not an element of a section 6108 offense, it is strong evidence of such a legislative intent. See 1 Pa.C.S.A. § 1924 (1978-79 Supp.).

The language of each section also provides a key distinction. In section 6106, the phrase "without a license" appears without any words of exception. In section 6108, however, the material regarding licensure is set off by the word of exception "unless", indicating it is in the nature of a proviso. See John V. Carr & Sons, Inc. v. United States, 326 F.Supp. 973, 975 (U.S.Cust.Ct.1971) and cases cited therein. The purpose of a proviso is to "qualify, restrain or otherwise modify the general language of the enabling provision." Commonwealth ex rel. Margiotti v. Lawrence, 326 Pa. 526, 531, 193 A. 46, 48 (1937). Material placed in proviso is not

[ 484 Pa. Page 483]

    an element of the crime but rather a matter of defense and need not be either plead or proved by the prosecution. United States v. Winnicki, 151 F.2d 56, 58 (7th Cir. 1945) and cases cited therein.

In McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301 (1922), the Supreme Court of the United States had occasion to state:

By repeated decisions it has come to be a settled rule in this jurisdiction that an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it.

Id. at 357, 43 S.Ct. at 134 (citations omitted).

The United States Supreme Court has never required the prosecution to negate the language of a proviso. Such a requirement

     would have the effect of limiting the government to allegations it might be wholly unable to prove, and without subserving any useful purpose to the defendant. While the rules of criminal pleading require that the accused shall be fully apprised of the charge made against him, it should, after all, be born in mind that the object of criminal proceedings is to convict the guilty, as well as to shield the innocent; and no impracticable standards of particularity should be set up, whereby the government may be entrapped into making allegations which it would be impossible to prove. . . . Neither in criminal nor in civil pleading is it required to anticipate or negative a defense. . . . "In general," says Chitty, "all matters of defense must come from the defendant, and need not be anticipated or stated by prosecutor."

Evans v. United States, 153 U.S. 584, 590, 14 S.Ct. 934, 937, 38 L.Ed. 830 (1894) (citations omitted).

[ 484 Pa. Page 484]

There is nothing in the Court's opinion in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), that conflicts with this long-standing rule.

That the legislature intended the licensure issue in section 6106 cases to differ from the disposition of the same issue in section 6108 cases is borne out by the differing language employed in each section. Where a section of a statute "contains a given provision, the omission of such provision from a similar [section] is significant to show a different intention existed." Richerson v. Jones, 551 F.2d 918, 928 (3d Cir. 1977) (citation omitted). Cf. Novicki v. O'Mara, 280 Pa. 411, 416, 124 A. 672 (1924) ("A change in language in separate provisions of a statute is prima facie evidence of a change of intent"). We agree with the Superior Court that "[a] close analysis of the syntax in the two sections indicates . . . that the legislature did not intend that lack of a license should be an element of a § 6108 offense." Commonwealth v. Poindexter, supra, 248 Pa. Super. at 568, 375 A.2d at 386. The Superior Court also observed that:

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

[ 484 Pa. Page 485]

(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 or otherwise.

Id., 248 Pa. Super. at 569-70, 375 A.2d at 386-87 (emphasis in the original) (footnote omitted).

Accordingly, we affirm the judgment of the Superior Court in the cases before us.

ROBERTS, Justice, dissenting.

The majority holds that minor differences in the language of Sections 6106 and 6108 of the Crimes Code compel its conclusion that the Legislature intended that the allocation of the burden of proof under Section 6108 be different from that under Section 6106. I dissent.

Nothing in the language of Section 6108 compels this result. Section 6106 makes it an offense to carry a firearm without a license. Section 6108 makes it an offense to carry a firearm unless one is licensed. Both these sections create criminal liability for unlicensed possession of a firearm; they differ only in the circumstances under which such liability attaches. Under Section 6108, there is liability only for unlicensed possession on the public streets and public property in Philadelphia. Under Section 6106 unlicensed possession of a firearm creates liability everywhere except one's home or place of business.

[ 484 Pa. Page 486]

In Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975), this Court held that the Commonwealth has the burden of establishing the defendant is without a license in a Section 6106 prosecution. Common sense mandates that the Commonwealth bear the same burden under Section 6108. The majority's construction of Section 6108 attributes to the Legislature an hyper-technical objective which is unexpressed and unnecessary to effectuate the clear purpose of the statute. The majority's holding will unnecessarily confuse the bench, bar and public, undermine the appearance of uniform justice, and permit firearms violation convictions in Philadelphia and elsewhere in the Commonwealth on different standards.

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