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COMMONWEALTH PENNSYLVANIA v. ALBERT CARR (04/02/84)

submitted: April 2, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
ALBERT CARR, APPELLANT



No. 2737 Philadelphia, 1982, Appeal From the Denial By The Court of Common Pleas, Criminal Trial Division of Philadelphia County (Misc. No. 82-006823) Of A Writ of Certiorari To The Municipal Court of Philadelphia County At M.C. 81-04-2057.

COUNSEL

Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.

Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, Johnson and Lipez, JJ. Wieand, J. filed a dissenting opinion.

Author: Johnson

[ 334 Pa. Super. Page 460]

Albert Carr was tried on various criminal charges in the Municipal Court of Philadelphia but was found guilty only of possessing an unlicensed firearm in violation of a particular section of the Uniform Firearms Act set forth at 18 Pa.C.S. § 6106(a).*fn1 After a fine and sentence of probation had been imposed, Carr filed a petition for certiorari in the Court of Common Pleas. This petition was denied, and an appeal was taken to this Court in which Carr contends (1) that the evidence was insufficient to sustain the conviction

[ 334 Pa. Super. Page 461]

    and (2) that the firearm should have been suppressed as the product of an unlawful arrest. Finding no merit in these contentions, we affirm the conviction.

On April 22, 1981, members of the Philadelphia Police Department obtained and executed a search warrant for controlled substances believed to be stored upon and sold from a gasoline service station at 2000 North Broad Street in the City of Philadelphia. Although the owner was then known only by description, he was subsequently identified as Mr. Cummings. When police arrived they found a group of approximately eight males standing in front of the bay area. As these men were being led into the service station building so that the search could be conducted without interference, Appellant Carr was observed dropping a loaded .32 caliber revolver into a cardboard box. He conceded at trial that he had been carrying the revolver when the police arrived. He testified, however, that the service station was his place of employment and that he was working when he was arrested.

Carr argues on appeal that Mr. Cummings' service station was "his fixed place of business" and, therefore, he was permitted to carry a loaded firearm without a license at the service station because of a specific exemption contained in 18 Pa.C.S. § 6106(a).

Possession of a firearm without a license is made an offense by 18 Pa.C.S. § 6106(a), which provides as follows:

(a) Offense defined. -- 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 therefore as provided in this subchapter.

The Statutory Construction Act at 1 Pa.C.S. § 1903(a) states in relevant part that "(w)ords and phrases shall be construed according to rules of grammar and according to their common and approved usage." "His" as used in 18 Pa.C.S. § 6106(a) is a possessive pronoun connotating ownership or control over the "fixed place of business." The gasoline service station clearly was the fixed place of business

[ 334 Pa. Super. Page 462]

    of the proprietor, Mr. Cummings, and not the place of business of Appellant Carr because Carr had no controlling, proprietary, or possessory interest in the service station. Our legislature could not have intended to permit every employed individual in the Commonwealth to carry without a license a concealed, loaded firearm on the job site.

Assuming arguendo that § 6106(a) contains some ambiguity, the Statutory Construction Act at 1 Pa.C.S. § 1921 requires that every statute "be construed, if possible, to give effect to all its provisions" and 1 Pa.C.S. § 1922(2) permits the presumption that the legislature "intends the entire statute to be effective and certain." As this court recently stated:

The Legislature is presumed to have intended to avoid mere surplusage in the words, sentences and provisions of its laws. Courts must therefore construe a statute, if possible, so as to give effect to every word.

Habecker v. Nationwide Ins. Co., 299 Pa. Super. 463, 471, 445 A.2d 1222, 1226 (1982).

In addition to the "abode or fixed place of business" exceptions as set forth in 18 Pa.C.S. § 6106(a), subsection (b) of section 6106 lists ten specific exceptions including:

(6) Agents, messengers, and other employees of common carriers, banks, or business firms, whose duties require them to protect moneys, valuables and other property in the discharge of such duties.

If under 18 Pa.C.S. § 6106(a) all employees were permitted to carry concealed firearms without a license while on the job, 18 Pa.C.S. § 6106(b)(6) would be mere surplusage. There would have been no need for the legislature to refer to employees of business firms in section 6106(b)(6). In order to give full effect to every word of section 6106(b)(6), the reference to "his . . . fixed place of business" in section 6106(a), must be ...


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