Appeal from the Order of the Superior Court of Pennsylvania entered on April 14, 1988, at No. 2489 Philadelphia 1987, affirming the Judgment of Sentence entered by the Court of Common Pleas of Lehigh County on August 3, 1986, at No. 328-1986. 378 Pa. Super. 648, 544 A.2d 1042.
Edward R. Edelman, Chief Appellate Counsel and Frank J. Madey, Asst. Public Defender, for appellant.
A. Renee Smith, Asst. Dist. Atty., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Papadakos, J., files a concurring opinion.
On October 28, 1986, appellant, Miquel Lopez, was convicted by a jury of resisting arrest*fn1 and of carrying a firearm without a license,*fn2 and sentenced to two and one-half (2 1/2) to five (5) years imprisonment. On appeal the Superior Court affirmed, 378 Pa. Super. 648, 544 A.2d 1042, relying exclusively on its opinion in Commonwealth v. Turner, 339 Pa. Super. 81, 488 A.2d 319 (1985). This Court granted allowance of appeal to examine, as a question of first impression, the sole issue presented by the parties. The issue is whether the condition that the firearm must be
in the defendant's possession outside of his place of abode or fixed place of business is an element of the offense which the Commonwealth has the burden of proving.
On the evening of January 3, 1986, the Allentown Police were summoned to resolve a domestic dispute in the 100 block of North Second Street in the city of Allentown. Several officers were dispatched to the premises where they found and ultimately arrested appellant, after a brief struggle.*fn3 During the struggle, a firearm fell out of appellant's clothing. At trial, appellant unsuccessfully argued that the Commonwealth had the burden of proving, as an element of the offense, that appellant possessed the gun outside his place of abode.
Appellant challenges his conviction on the firearms violation, arguing that the burden of proof was improperly placed upon him as to the issue of whether or not he carried the gun outside his place of abode. He contends that the fact that the firearm was carried outside the place of abode or fixed place of business is an element of the crime which must be proven by the prosecution. Appellant points to the language of section 6106, which, in relevant part, states:
§ 6106. Firearms not to be carried without a license
(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 ...