Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, No. 85-12-3225.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Wieand, Olszewski and Hoffman, JJ.
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Elyadagaha Walton was tried non-jury and was found guilty of violating 18 Pa.C.S. § 6106 (firearms not to be
[ 365 Pa. Super. Page 149]
carried without a license) and 18 Pa.C.S. § 6108 (carrying firearms on public streets in Philadelphia).*fn1 Oral posttrial motions were made immediately following the finding of guilt and were denied. Walton was sentenced to pay a fine and costs. On direct appeal from the judgment of sentence, Walton contends that the evidence was insufficient to sustain the verdict because "his possession of the firearm occurred while he was performing his duties as a cab driver and had in his possession moneys and property of the cab company for which he was responsible." Therefore, he argues, he was exempt from the licensing provisions of the statute. We disagree and affirm the judgment of sentence.
The Commonwealth's evidence was that at or about 8:40 p.m. on November 20, 1984, Officer Richard Cray observed a Yellow Cab stopped at Second and Westmoreland Streets in Philadelphia. The dome light of the cab was lighted and two men were seated in the cab, one behind and the other beside the driver. Because this was an area in which there had been frequent robberies of taxi drivers, Cray suspected that the driver might be in trouble. He went around the block and pulled up behind the stopped cab. He then suggested that the driver step out of the vehicle. When the driver did so, Cray observed a gun on the front seat, protruding from under a cushion on which the driver had been seated. Elyadagaha Walton, the driver, was employed by Yellow Cab Company. He did not have a license to carry a firearm.*fn2
The provisions of 18 Pa.C.S. § 6106(a) make it unlawful to carry a firearm, except in one's place of abode or fixed place of business, without a license. However, 18 Pa.C.S. § 6106(b)(6) creates an exception for "[a]gents, 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." Moreover, the provisions of 18 Pa.C.S. § 6108, which make
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it unlawful to carry a firearm on the public streets in Philadelphia, are inapplicable if the person carrying the firearm "is exempt from licensing under [18 Pa.C.S. § 6106(b)]." Appellant asks that we interpret the language of 18 Pa.C.S. § 6106(b)(6) to exclude taxi drivers from the licensing requirements of 18 Pa.C.S. § 6106(a) and the proscription of 18 Pa.C.S. § 6108. Cab drivers, he argues, are "employees of common carriers . . . whose duties require them to protect moneys, valuables and other property in the discharge of their duties." We are constrained to reject this argument.
"We have previously held that the exceptions in subsection (b)*fn3 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." Commonwealth v. Turner, 339 Pa. Super. 81, 83, 488 A.2d 319, 320 (1985). See: Commonwealth v. Hughes, 268 Pa. Super. 536, 408 A.2d 1132 (1979). In the instant case, the Commonwealth showed that appellant, a cab driver, possessed an unlicensed, operable firearm while driving a taxicab in Philadelphia. The burden of proof then shifted to appellant to come forward with evidence that he was exempt from the licensing requirement of the statute because he was an employee of a common carrier whose duties required him to protect moneys, valuables, or other property in the discharge of his duties. Appellant failed to meet this burden. Although ...