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COMMONWEALTH PENNSYLVANIA v. JAMES WILLIAM BERTA (02/10/86)

submitted: February 10, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMES WILLIAM BERTA, APPELLANT



Appeal from Judgment of Sentence entered by the Court of Common Pleas of Crawford County, Pennsylvania, Criminal Division, July 1, 1985, at No. 1984-820.

COUNSEL

Bruce A. Barrett, Assistant Public Defender, Meadville, for appellant.

John M. Dawson, District Attorney, Meadville, for Com., appellee.

Kelly, Montgomery and Hester, JJ. Hester, J., joins this opinion and files a concurring opinion.

Author: Kelly

[ 356 Pa. Super. Page 405]

This is an appeal from the Court of Common Pleas of Crawford County, Pennsylvania, judgment of sentence of July 1, 1985, by the Honorable P. Richard Thomas, whereby defendant was sentenced to serve eight (8) to twenty-four (24) months imprisonment, to be computed from November 6, 1984, the date of appellant's original incarceration in the Crawford County Jail. Appellant, James William Berta, was found guilty under 18 Pa.C.S.A. ยงยง 6106 and 6118 of the Uniform Firearms Act for carrying, without a license, a replica of an antique revolver concealed upon his person.

In this case, appellant purchased the firearm in question as a kit at a local department store and subsequently assembled it into a replica of a cap and ball revolver common in the late nineteenth century. No permit was required for this over-the-counter purchase. In order to fire the gun, black powder, percussion caps, and lead balls were required as well as a working knowledge of its loading procedure. At the time he was cited for the alleged violation, the gun was not loaded, appellant was not in control of the materials necessary to fire the gun and there was no indication that he had ever purchased such materials. (N.T. 8).

We adopt the remaining findings of fact as ably set forth by the court below as follows:

On November 6, 1984, Trooper Dan Lloyd of the Pennsylvania State Police was attempting to locate the Defendant while investigating an unrelated burglary matter. He found the Defendant at the residence of a friend. As the trooper entered the friend's residence*fn1 he saw the Defendant and saw the butt of what appeared to be a pistol

[ 356 Pa. Super. Page 406]

    protruding above the Defendant's belt line and partially concealed*fn2 by a coat the Defendant was wearing. The trooper promptly approached the Defendant, pulled the gun out of his belt line and subsequently filed charges of carrying an unlicensed weapon. At the non-jury trial the facts were not substantially in dispute and the Defendant testified in his own defense that he had purchased the gun in the form of an antique gun kit at the K-Mart Shopping Center the day before and had assembled the five (5) parts to form a working replica of an antique pistol popular in the 1800's. The Defendant's contention was that he had purchased it for a showpiece to hang on his wall.

(Trial court opinion at 2).

The issue before this Court is whether it was unlawful under the provisions of Sections 6106 and 6118 of the Uniform Firearms Act for appellant to possess in a concealed fashion an unloaded, unlicensed replica of an antique firearm.

Mr. Berta, appellant herein, argues that the lower court should not have concluded that the kit gun, being a replica of an antique revolver, was in violation of the Uniform Firearms Act where the revolver was not suitable for use. Appellant argues that because the antique replica in question was not loaded and appellant did not have within his possession at the time of his arrest the cap, balls or powder required to fire the weapon, that the replica firearm was not suitable for use and thus not in violation of the Uniform Firearms Act.

Moreover, appellant argues that under the caselaw of this Commonwealth he cannot be found guilty of violating Sections

[ 356 Pa. Super. Page 4076106]

and 6118 of the Uniform Firearms Act, citing Commonwealth v. Layton, 452 Pa. 495, 307 A.2d 843 (1973) and Commonwealth v. Siiams, 260 Pa. Super. 409, 394 A.2d 992 (1978) in support of his contention. Appellant cites Siiams and Layton for the principle that the gun in question must be loaded and "capable of firing a shot" at the moment of the alleged violation in order to be considered "suitable for use" as the language of the Act mandates. We disagree with these contentions and affirm the decision of the lower court.

With respect to this appeal, one of the applicable sections of the Pennsylvania Uniform Firearms Act, as noted previously, is Section 6106 ...


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