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COMMONWEALTH PENNSYLVANIA v. MIQUEL ANTONIO LOPEZ (10/20/89)

SUPREME COURT OF PENNSYLVANIA


decided: October 20, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
MIQUEL ANTONIO LOPEZ, APPELLANT

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.

COUNSEL

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.

Author: Nix

[ 523 Pa. Page 127]

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

[ 523 Pa. Page 128]

    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 license therefor as provided in this subchapter.,

(b) Exceptions . . . .

(18 Pa.C.S. § 6106 (emphasis added)*fn4

[ 523 Pa. Page 129]

The trial court, based on the authority of Turner, supra, decided that the Commonwealth need not prove that Lopez was not in his "place of abode."*fn5 Appellant urges this

[ 523 Pa. Page 130]

Court to overrule Turner and to conclude that the Commonwealth bears the burden of proof that, at the time he possessed the firearm, the accused was not in his place of abode or fixed place of business. We conclude that the fact that the accused carried a firearm outside his home is an element of the offense, and, therefore, the Commonwealth bears the burden of proving it beyond a reasonable doubt.

It is axiomatic that the Commonwealth bears the burden of proving every element of the offense beyond a reasonable doubt. Commonwealth v. Johnston, 438 Pa. 485, 263 A.2d 376 (1970). "Under our system of jurisprudence the legislature is charged with the responsibility of defining the elements of crimes." Commonwealth v. Graves, 461 Pa. 118, 126, 334 A.2d 661, 665 (1975); see also Commonwealth v. Wright, 508 Pa. 25, 31, 494 A.2d 354, 357, aff'd sub nom. McMillan v. Pa., 474 U.S. 815, 106 S.Ct. 58, 88 L.Ed.2d 47 (1985). Thus the focus of our inquiry must be whether or not the phrase "except in his place of abode or fixed place of business" is an element of the offense. The Pennsylvania Crimes Code, 18 Pa.C.S. § 103 defines in pertinent part, an element of an offense as:

Such conduct or such attendant circumstances . . . as:

(1) is included in the description of the forbidden conduct in the definition of the offense;

Section 6106(a) describes the elements that must be proven by the Commonwealth in order to convict an accused of this offense. The Commonwealth must prove each of the factors listed in the definition: (a) that the weapon was a firearm, Commonwealth v. Todd, 477 Pa. 529, 384 A.2d 1215 (1978); (b) that the firearm was unlicensed, Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975); and (c) that where the firearm was concealed on or about the

[ 523 Pa. Page 131]

    person, it must be outside his home or place of business. This clause is clearly an integral part of the forbidden conduct found in the definition of the offense. The Commonwealth cannot successfully prove a violation of section 6106 without showing that the gun, found on the person, was carried outside the place of abode. See, e.g., Commonwealth v. Clinton, 391 Pa. 212, 137 A.2d 463 (1958). This element is just as crucial to the Commonwealth's case as the proof that the weapon was unlicensed, for without such evidence the Commonwealth has not met its burden of proof.

Subsection (b) specifically enumerates certain justifications for carrying a firearm outside one's home or fixed place of business. As recognized by the Superior Court, these exceptions are affirmative defenses, which must be placed in issue by the defendant, and which need not be negated by the prosecutor in its case-in-chief. See, Commonwealth v. Walton, 365 Pa. Super. 147, 529 A.2d 15 (1987), alloc. denied, 517 Pa. 630, 539 A.2d 811 (1988); Commonwealth v. Hughes, 268 Pa. Super. 536, 408 A.2d 1132 (1979). Under the rules of statutory construction, subsection (b) clearly evidences a distinction between the definition of the crime and its exceptions. 1 Pa.C.S. § 1921(b).

In reaching its result in Turner, the Superior Court attempted to premise its decision in that case upon the reasoning this Court employed in Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979). That reliance upon this Court's decision in Commonwealth v. Bigelow, supra, is clearly misplaced. In Bigelow, this Court considered the proper interpretation of section 6108 of the "Firearms & Other Dangerous Articles Act," 18 Pa.C.S. § 6108. At issue in that case was whether the Commonwealth had the burden of proving non-licensure as an element of the offense of "carrying firearms on public streets or public property in Philadelphia." The Act provided:

§ 6108. Carrying firearms on public streets or public property in Philadelphia

[ 523 Pa. Page 132]

No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless:

(1) such person is licensed to carry a firearm; or

(2) such person is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).

We concluded that proof of an unlicensed possession was not required as an element of the offense. In so deciding, the rationale offered for that conclusion was:

In section 6108 . . . the material regarding licensure is set off by the word of exception "unless", indicating it is in the nature of a proviso . . . . The purpose of a proviso is to "qualify, restrain or otherwise modify the general language of the enabling provision."

Material placed in a proviso is not an element of the crime but rather a matter of defense and need not be either plead or proved by the prosecution.

Id. at 482, 399 A.2d at 395 (citations omitted).

This language was relied upon in Turner to support the Superior Court's conclusion that the phrase "except in his place of abode or fixed place of business" was a proviso, which must be plead and proved by the defendant. Turner, 339 Pa. Super. at 88, 488 A.2d at 322. The error in this conclusion is readily apparent upon consideration and comparison of sections 6106 and 6108. The proviso referred to in Bigelow is set off from the text of the definition of the offense, similar to the manner in which subsection (b) of section 6106 is divorced from the definitional section of that offense.

[ 523 Pa. Page 133]

The language of Bigelow itself evidences the improper application of that decision by the Superior Court in its interpretation of subsection (a) of section 6106. Bigelow specifically states that a proviso modifies the general language of the enabling provision. Bigelow, 484 Pa. at 482, 399 A.2d at 395, citing Commonwealth ex rel. Margiotti v. Page 133} Lawrence, 326 Pa. 526, 531, 193 A. 46, 48 (1937). According to this reasoning, we conclude the language herein cannot be considered a proviso, but rather is clearly a part of the definition of the offense.

Accordingly, the order of the Superior Court is reversed, the judgment of sentence is vacated, and the matter is remanded for a new trial in accordance with this opinion.

Disposition

Accordingly, the order of the Superior Court is reversed, the judgment of sentence is vacated, and the matter is remanded for a new trial in accordance with this opinion.

PAPADAKOS, Justice, concurring.

I concur in the result reached in this case but write separately to express my view that today's result effectively overrules Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979).

As I understand the Majority, because Section 6106(a) of the Crimes Code is drafted as one sentence in which is included the following phrase set off by commas, "except in his place of abode or fixed place of business" that phrase is to be read as an element of the crime which must be proven by the Commonwealth.

In Bigelow, however, the Court relieved the Commonwealth of the burden of proving whether a person caught with a gun on a city street or building had a license, because that section was contained in a proviso, separated from the main section by a colon, but the two exceptions were all part of the one sentence defining the offense. (18 Pa.C.S. § 6108).

I do not find the Majority's attempt to distinguish Bigelow from today's holding very persuasive. Apparently, the Majority is now indicating that the words of exception of Section 6108 are a proviso and are not interpreted as elements of a crime because of the colon separating them from the rest of the definitional sentence. This, however, was not the rationale given originally for the Court's interpretation. The Court originally noted in Bigelow that the word of exception "unless" conferred proviso status on the

[ 523 Pa. Page 134]

    phrase and did not consider the effect of setting the phrase off from the rest of the definitional section with a colon.

Today the words of exception of Section 6106(a) are not given proviso status because they are separated by the rest of the definitional section by commas. I simply do not see that a definitional sentence should be read differently depending on whether phrases within the sentence are separated by commas or a colon. Punctuation should not be used to control the intention of the General Assembly and is specifically frowned upon by the Rules of Statutory Construction (1 Pa.C.S.A. § 1923(b)).

In light of the Court's interpretation of Section 6106(a), I believe that Bigelow is inconsistent and that it should be reversed so that our case law is uniform.


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