No. 1135 October Term, 1979, Appeal from the Order of the Court of Common Pleas, Criminal Division, Philadelphia County, at Nos. Misc. 79-00-3248 and MC 78-10-2309
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele M. Barthold, Assistant District Attorney, Philadelphia, for Com., appellee.
Cercone, President Judge, and Hester and Wieand, JJ. Wieand, J., files a dissenting opinion.
[ 339 Pa. Super. Page 83]
Appellant was convicted in Philadelphia Municipal Court of violating Section 6106 of the Crimes Code, 18 Pa.C.S. § 6106 (Firearms not to be carried without a license) and sentenced to one year non-reporting probation and payment of a $60 fine. He filed a timely petition for a writ of certiorari to the Court of Common Pleas which subsequently denied the petition and thereby affirmed the Municipal Court's judgment of sentence. This appeal followed.
Crimes Code Section 6106 reads in part:
(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 therefor as provided in this subchapter.
(b) Exceptions. -- The provisions of subsection (a) of this section shall not apply to:
18 Pa.C.S.A. § 6106(a) & (b). Subsection (b) goes on to enumerate ten exceptions to subsection (a). We have previously held that the exceptions in subsection (b) are not elements of the offense which the Commonwealth must prove beyond a reasonable doubt if a conviction is to be sustained, but are rather affirmative defenses which must be proven by the accused. See Commonwealth v. Hughes, 268 Pa. Superior Ct. 536, 408 A.2d 1132 (1979). On the other hand, the Supreme Court has held that lack of a license for the firearm in question is an essential element of the offense proscribed by Crimes Code Section 6106 and the
[ 339 Pa. Super. Page 84]
burdens of proof and persuasion lie on the Commonwealth. See Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975). And see In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Cf. Commonwealth v. Stoffan, 228 Pa. Superior Ct. 127, 323 A.2d 318 (1974). But cf. Commonwealth v. Bigelow, supra, (Lack of license not essential element of offense proscribed by 18 Pa.C.S. § 6108 "Carrying firearms on public streets or public property in Philadelphia"). The question presented on appeal, however, deals with neither of those two lines of cases. Rather, appellant contends that the Commonwealth bears the burden of proving that the unlicensed firearm found in his possession was found on him outside his "place of abode or fixed place of business." See 18 Pa.C.S. § 6106(a).
Appellant argues that "except in his place of abode" should be read as a material element of the offense just as "without a license" was read in Commonwealth v. McNeil, supra. And he argues that the Commonwealth did not make out its case against him because it failed to present any evidence in its case in chief that he was not in his "place of abode" when found with the prohibited firearm. He contends the Municipal Court should have granted his demurrer to the evidence based on this contention. Finally he argues that the trial judge improperly took "judicial notice" that he was not in his "place of abode" when found with the gun based on information contained in the record but not introduced into evidence or adduced at trial. The Commonwealth responds that "place of abode" should be construed to be an affirmative defense and not an essential element of the crime as defined in Section 6106(a), and that the burden therefore should rest on the accused. It further argues that by presenting a defense appellant waived the demurrer, but ...