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11/24/97 COMMONWEALTH PENNSYLVANIA v. JAVIER S.

November 24, 1997

COMMONWEALTH OF PENNSYLVANIA,
v.
JAVIER S. ORTIZ, APPELLANT



Appeal from the Order Entered August 30, 1996, In the Court of Common Pleas of Berks County, Criminal No. 2248/96. Before KELLER, J.

Before: McEWEN, P.j., and Beck, J., and Cercone, P.j.e. Cercone, P.j.e., filed a Dissenting Statement.

The opinion of the court was delivered by: Beck

OPINION BY BECK, J.

Filed November 24, 1997

We address the definition of the phrase, "place of abode," as used in criminal statute, Firearms Not to be Carried Without a License, 18 Pa.C.S. § 6106(a). *fn1

The Commonwealth of Pennsylvania appeals from an order granting defendant-appellee habeas corpus relief by dismissing the count in the information charging appellee with carrying a firearm without a license, in violation of 18 Pa.C.S. § 6106(a).

Because 18 Pa.C.S. § 6106(a) excepts from culpability a person who possesses an unlicensed firearm in his or her "place of abode," the issue before us is whether the rear, fenced-in yard of a three-story apartment building constitutes a tenant's "place of abode" within the meaning of 18 Pa.C.S. § 6106(a). We conclude that the statutory phrase, "place of abode," does encompass the yard of appellee's apartment building, and therefore affirm the trial court's order dismissing the count in the information charging appellee with a violation of 18 Pa.C.S. § 6106(a).

The relevant facts of this case are undisputed. Officer David Anderson of the Reading Police Department received a complaint that two Hispanic males were drinking and playing with a handgun in the back of a three-story apartment building located in Berks County, Pennsylvania. Upon arriving on the scene, Anderson noticed two men in the rear, fenced-in yard of the apartment building. Anderson approached appellee, who was one of the men, and asked him where the gun was. Appellee replied that the gun was in his front pants pocket.

Anderson then retrieved a .22 caliber silver handgun with a black handle from appellee's pants pocket. When Anderson asked appellee if he had a license to carry the gun, he answered that he did not. Although the serial number on the handgun had been scratched off, an evidence technician of the Reading Bureau of Police later discovered that the serial number was # 263131, and that the gun was registered to a Lester Hollenbach, who confirmed that it was his gun, but claimed that it had been missing for over a year.

Subsequently, appellee was charged with violation of the following statutes: Firearms Not to be Carried Without a License, 18 Pa.C.S. § 6106(a), and Altering or Obliterating Marks of Identification, 18 Pa.C.S. § 6117(a). In response to appellee's motion, the trial court found that the Commonwealth had failed to provide sufficient prima facie evidence to support the charge of Firearms Not To Be Carried Without A License and issued a writ of habeas corpus dismissing this count. In so holding, the trial court determined that the yard of the apartment building in which appellee lived constituted part of his "place of abode" within the meaning of 18 Pa.C.S. § 6106(a), and therefore appellee could not have violated the statute. The Commonwealth has now appealed from the trial court's order.

A trial court's order granting a defendant pre-trial habeas relief is immediately appealable by the Commonwealth. Commonwealth v. Saunders, 456 Pa. Super. 741, 691 A.2d 946, 948 (1997); Commonwealth v. Karlson, 449 Pa. Super. 378, 381 n.3, 674 A.2d 249, 251 n.3 (1996). A trial court's decision to grant a petition for a writ of habeas corpus will be reversed on appeal only for a manifest abuse of discretion. Saunders, Pa. Super. at , 691 A.2d at 948; Karlson, 449 Pa. Super. at 381, 674 A.2d at 250-251.

In its appeal, the Commonwealth argues that the statutory phrase, "place of abode," should not include the property surrounding or upon which a building or structure sits, and that the trial court thus erred in dismissing the information charging appellee with Firearms Not to be Carried Without a License, 18 Pa.C.S. § 6106(a). Because "place of abode" is not defined in § 6106(a) or our case law, we look to the Statutory Construction Act, the canons of statutory construction, enacted by our legislature in order to interpret this phrase. See 1 Pa.C.S. §§ 1901 et seq.

Section 1921 of the Statutory Construction Act first provides that, "the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions." 1 Pa.C.S. § 1921(a). This section further states, "when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." § 1921(b). *fn2

Black's Law Dictionary defines "place of abode" as "one's residence or domicile." Black's Law Dictionary 1149 (6th ed. 1991). "Residence" is defined as the "place where one actually lives or has his home; a person's dwelling place or habitation," and "domicile" is defined as "the established, fixed, permanent, or ordinary dwelling place or place of residence of a person, as distinguished from his temporary and transient, though actual, place of residence." Id. at 1308, 485. In addition, Black's Law Dictionary defines "place" as "any locality, limited by boundaries, however large or however small," and defines "abode" as "one's home; habitation; place of dwelling or residence." Id. at 1148, 9. The trial ...


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