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filed: February 13, 1980.


No. 167 April Term, 1977, Appeal from Judgment of Sentence of the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Division, at No. CC7600844.


Paulette J. Balogh, Assistant Public Defender, Pittsburgh, for appellant.

Charles W. Johns, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., concurs in the result. Jacobs, J., did not participate in the consideration or decision in this case.

Author: Cercone

[ 275 Pa. Super. Page 47]

The instant appeal arises from appellant's conviction, following a non-jury trial, of carrying a firearm without a

[ 275 Pa. Super. Page 48]

    license,*fn1 and former convict not to own firearms.*fn2 On appeal, appellant challenges the propriety of admitting the certification of the State Police that appellant was not licensed to carry the pistol the police found in his pocket. Appellant also claims the court erred in finding that he was not justified in carrying the weapon. We find no merit in either contention and will affirm.

The facts may be succinctly stated. Two police officers were routinely patrolling Centre Avenue in Pittsburgh when a young girl ran up to them and told them of a scuffle nearby. The police went to where the girl said the fight was taking place and found appellant struggling with his wife in a doorway. When the police separated the two and searched appellant, they found a pistol and placed him under arrest. At trial appellant testified that his wife had assaulted him.*fn3 When he saw the pistol in her purse, he removed it to protect himself and put it in his pants pocket before the police arrived.

Appellant's first argument, that an adequate foundation was not laid for admitting into evidence the State Police certificate of non-licensure, is frivolous. The Commonwealth did not have to comply with the foundation requirements of the Uniform Business Records as Evidence Act, 28 P.S. 91a-d (1958) as appellant contends. Rather, the admissibility of such certificate is controlled by 28 P.S. § 110 which provides:

"The certification of a duly authorized representative of any administrative department, board or commission, attesting to the licensure status of non-licensure status of

[ 275 Pa. Super. Page 49]

    an individual, as shown by the required official records, shall be received as evidence in all courts in this Commonwealth in the trial of any case."

In the instant case, the certificate showing that appellant was not licensed to carry a firearm was signed and sealed by the Commissioner of the State Police, as well as by the Director of their records division. Consequently, there was no need to comply with the Uniform Business Records as Evidence Act as appellant contends. See Commonwealth v. Richbourg, 260 Pa. Super. 438, 444, 394 A.2d 1007, 1010 (1978).*fn4

Appellant's remaining contention is that the Commonwealth failed to establish the requisite intent to control or possess a firearm under the Uniform Firearms Act, 18 Pa.C.S. § 6106 (1974), pursuant to In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). Appellant alleges his testimony, that he removed the pistol from his wife's purse to protect himself, establishes a justification for possessing the pistol under the Crimes Code, 18 Pa.C.S. § 503 (1974). The difficulty with appellant's argument is that the trial judge, sitting without a jury, found as a fact that appellant was not telling the truth. Consequently, there is no factual basis upon which appellant can support his theory of justification on appeal.

Judgment of sentence affirmed.

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