Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Commonwealth v. McKown

Superior Court of Pennsylvania

October 22, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
HOBSON LYLE McKOWN, Appellant

Appeal from the Judgment of Sentence Entered September 1, 2011, In the Court of Common Pleas of Centre County, Criminal Division, at No. CP-14-CR-0001569-2008.

BEFORE: BENDER, SHOGAN and FITZGERALD [*] , JJ.

OPINION

SHOGAN, J.

Appellant, Hobson Lyle McKown, appeals from the judgment of sentence entered on September 1, 2011, in the Centre County Court of Common Pleas. On appeal, Appellant argues, inter alia, that a Pennsylvania resident who does not have a Pennsylvania license to carry a concealed firearm may carry a concealed firearm in Pennsylvania under the authority of a permit issued by another state that has a reciprocal carry agreement with Pennsylvania. For the reasons that follow, we affirm in part, vacate in part, and remand with instructions.[1]

The relevant facts of this case were set forth by the trial court as follows:

On September 2, 2008, [Appellant] Hobson McKown had an appointment at the offices of Magisterial District Justice Jonathan Grine for a court proceeding unrelated to this matter. (Transcript of Preliminary Hearing, p. 18). On that day, around one p.m., Justice Grine's office received a phone call from a man asking if the court provided a lock box for concealed guns. (Id. at 6). According to Jennifer Carson, an employee of Justice Grine, [Appellant] showed up at the court offices around an hour after this phone call and took pictures of the door, affixed to which was a sign stating that no weapons are allowed in the building. (Id. at 7).
[Appellant] returned to the court office around four p.m. for his appointment on an unrelated matter. (Id. at 18). At that point [Appellant] encountered Robert Bradley, an officer with the State College Police Department, who was called to the offices after the one o'clock phone call. (Id. at 17). Officer Bradley met [Appellant] as he walked through the front door of the court offices. (Id. at 18). Officer Bradley asked [Appellant] if he was armed, and [Appellant] did not answer at first. Id. Then [Appellant] asked Officer Bradley if there was a check station on premises. (Id. at 19, 25). When Officer Bradley answered affirmatively, stating that he was checking for weapons, [Appellant] admitted he did have a gun in his pocket. Id.
Officer Bradley retrieved the gun from [Appellant's] pocket. (Id. at 20). [Appellant] told Officer Bradley that he ([Appellant]) had a New Hampshire concealed carry permit, and that it was in his car. (Id. at 21). Officer Bradley did not attempt to retrieve the New Hampshire permit. (Id. at 27). [Appellant] was arrested and charged with carrying a concealed weapon without a permit and carrying a weapon inside of a court facility. The courthouse did not have a check station for weapons at the time of this incident. Id. at 26.
Prior to the incident, [Appellant] had a Pennsylvania concealed carry license, issued by Centre County Sheriff Denny Nau on January 19, 2007. (Id. at 29). Then on April 6, 2008, [Appellant] was involved in an incident for which he was cited criminally. Because of this citation, the Centre County Sheriff revoked [Appellant's] Pennsylvania license on April 14, 2008. A letter providing notice was mailed out the next day, April 15, 2008. (Id. at 30). However, according to a certified mail receipt, [Appellant] did not receive the revocation notice until April 29, 2008. (Id. at 31). Also on April 15, 2008, [Appellant] applied for a New Hampshire concealed carry permit, which he subsequently received on May 19, 2008. (Id. at 55; Transcript of Habeas Corpus Hearing, p. 71). Under New Hampshire law, an out-of-state applicant for a concealed carry license must present a valid concealed carry license from his or her resident state. (Transcript of Preliminary Hearing, p. 52-53). After learning about the courthouse incident, and the revocation of [Appellant's] Pennsylvania license, New Hampshire officials stated they would take "action to suspend" [Appellant's] New Hampshire license. (Id. at 43).
A preliminary hearing was held before Centre County Magisterial District Justice Leslie Dutchcot on September 10, 2008. The three witnesses at this hearing were Jennifer Carson, Officer Robert Bradley and Centre County Sheriff Denny Nau, who testified regarding his knowledge of Pennsylvania gun laws. Justice Dutchcot found that there was a prima facie case against [Appellant], and the case was sent to the Centre County Court of Common Pleas.
On November 17, 2008 [Appellant] made an omnibus motion petitioning for, among other things, a writ of habeas corpus regarding the findings from the preliminary hearing. Judge Bradley Lunsford denied the habeas petition, but allowed [Appellant] to make an interlocutory appeal, which he did on January 19, 2010. The Superior Court subsequently declined to consider the appeal. Judge Lunsford also granted a Motion in Limine by the Centre County District Attorney. This motion states that, for the purposes of trial, [Appellant] did not have a valid license to carry a concealed firearm on the date of the courthouse incident, September 2, 2008. Judge Lunsford intended this motion to exclude any evidence that [Appellant] had a valid New Hampshire license. (See Transcript of Habeas Corpus Hearing, p. 77-78).
On June 23, 2010, [Appellant] moved to recuse the Centre County judges, as Magisterial District Justice Jonathan Grine, a potential witness at trial, is the son of Centre County President Judge David Grine. Judge Thomas Kistler granted the recusal motion and the case was transferred to this court, for consideration by Judge Milliron. On September 8, 2010 [Appellant] filed his Motion to Suppress Evidence and on September 24, 2010 [Appellant] filed his Motion to Declare the Statutes Unconstitutional, which is the subject of this opinion. Briefs from both sides followed, the last of which was filed on November 29, 2010.

Trial Court Opinion (Judge Milliron), 3/18/11, at 1-3.[2] Judge Milliron denied Appellant's motion to suppress and motion to declare statutes unconstitutional.

A jury trial was held on June 2, 2011. At the conclusion of the trial, Appellant was found guilty of firearms not to be carried without a license pursuant to 18 Pa.C.S.A. § 6106(a)(1). On September 1, 2011, the Honorable Thomas King Kistler sentenced Appellant to two years of probation. Appellant filed a timely post-sentence motion seeking to have his conviction graded as a misdemeanor as opposed to a felony. Appellant's motion was denied in an order filed on January 20, 2012. This timely appeal followed.

On appeal, Appellant raises ten issues for this Court's consideration:
1. Did the trial court commit an error of law in holding that 18 Pa.C.S. § 6109 requires a Pennsylvania resident to have a Pennsylvania license to carry a concealed firearm in Pennsylvania and thereby cannot carry under the authority of a permit issued by another state that has a reciprocal carry agreement with Pennsylvania?
2. Did the trial court err in not applying a strict scrutiny test to review the facial challenges to the constitutionality of 18 Pa.C.S. § 6106?
3. Did the trial court err in not finding that 18 Pa.C.S. § 6106 was violative of Article 1, Sections 1, 21, and 25 of the Pennsylvania Constitution?
4. Did the trial court err in finding that 18 Pa.C.S. § 6106 was not facially violative of the Second Amendment to the United States Constitution?
5. Did the trial court err finding that 18 Pa.C.S. § 913 was not violative of Article 1, Sections 1, 21, and 25 of the Pennsylvania Constitution?
6. Did the trial court err in prohibiting McKown from challenging the revocation of his Pennsylvania license as being void ab initio for a failure to comply with statutory revocation requirements and thereby violated McKown's due process rights?
7. Did the sentencing court abuse its discretion in finding that hearsay testimony alone about one incident was sufficient to show that McKown had a "character and reputation" of being dangerous and thereby was not eligible for the reduction of the section 6106(a) charge available to people that were "otherwise eligible" to be licensed?
8. Did the trial court err in denying McKown's request for return of property where the property was not contraband, evidence of a crime, or otherwise prohibited by law or bail conditions to be returned?
9. The trial court erred in summarily denying McKown's motion for modification of bail and not reviewing appropriate bail release criteria.
10. Did the trial court abuse its discretion in denying McKown's request to close the courtroom from the public for the sentencing proceeding?

Appellant's Brief at 4-5.[3] We will address these issues in the order in which they were presented.[4]

Most of Appellant's arguments pertain to the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.C.S.A. § 6101 et seq. ("the Act"). As noted by the Commonwealth,

The Act is "an exercise of the police power for the good order of society and the protection of the citizens, " Minich v. County of Jefferson, 919 A.2d 356, 361 (2007) citing Gardner v. Jenkins, 116 Pa.Cmwlth. 107, 541 A.2d 406, appeal denied, 520 Pa. 620, 554 A.2d. 511 (1988), whose provisions are designed to
provide support to law enforcement in the area of crime prevention and control without placing any undue or unnecessary burdens on law-abiding citizens with respect to the acquisition, possession, transfer, transportation or use of firearms, rifles, or shotguns for personal protection, hunting, target shooting, employment or any other lawful activity.

Act of June 13, 1995, P.L. 1024, No. 17 (Spec. Sess. No. 1), §2 (H.B. 110). The General Assembly has made it clear that the Act

is not intended to discourage or restrict the private Ownership and use of firearms by law-abiding citizens for lawful purposes, or to provide for the imposition by rules or regulations of any procedures or requirements other than those necessary to implement and effectuate the provisions of this Act.

Id.

Commonwealth's Brief at 13.

In his first issue on appeal, Appellant claims the trial court erred in holding that Pennsylvania residents are required to have a Pennsylvania license to carry a concealed firearm while in this Commonwealth, and that Pennsylvania residents cannot carry a concealed weapon in Pennsylvania under the authority of a permit issued by another state. Appellant's Brief at 4. Appellant relies primarily on 18 Pa.C.S.A. § 6106(b)(15) in support of his argument. Because the issue requires interpretation of statutory language, our scope of review is plenary and our standard of review is de novo. Commonwealth v. Gravelle, 55 A.3d 753, 755 (Pa.Super. 2012).

Generally, "any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree" in Pennsylvania. 18 Pa.C.S.A. § 6106(a)(1). Indeed, Appellant concedes that a person in Pennsylvania must have a valid Pennsylvania license to carry a firearm in any vehicle or concealed on his or her person. Appellant's Brief, at 9.

Despite this general requirement that a Pennsylvania license is required to carry a firearm in a vehicle or concealed on one's person, except in one's home or business, Appellant argues that a Pennsylvania resident may substitute a New Hampshire permit for a Pennsylvania license. Appellant's Brief at 10-11. In doing so, Appellant relies on one of the limited exceptions to section 6106(a), which are listed under 18 Pa.C.S.A. § 6106(b). This exception provides, as follows:

(15) Any person who possesses a valid and lawfully issued license or permit to carry a firearm which has been issued under the laws of another state, regardless of whether a reciprocity agreement exists between the Commonwealth and the state under section 6109(k), provided:
(i) The state provides a reciprocal privilege for individuals licensed to carry firearms under section 6109.
(ii) The Attorney General has determined that the firearm laws of the state are similar to the firearm laws of this Commonwealth.

18 Pa.C.S.A. § 6106(b)(15).

In response, the Commonwealth argues that the Attorney General has not determined that the firearm laws of New Hampshire are similar to the firearm laws of this Commonwealth, as required by section 6106(b)(15)(ii). Commonwealth's Brief at 14. The Commonwealth further argues that section 6106 must be read in pari materia with 18 Pa.C.S.A. § 6109, which provides as follows:

Licenses

(a) Purpose of license.-- A license to carry a firearm shall be for the purpose of carrying a firearm concealed on or about one's person or in a vehicle throughout this Commonwealth.
(b) Place of application.-- An individual who is 21 years of age or older may apply to a sheriff for a license to carry a firearm concealed on or about his person or in a vehicle within this Commonwealth. If the applicant is a resident of this Commonwealth, he shall make application with the sheriff of the county in which he resides or, if a resident of a city of the first class, with the chief of police of that city.

18 Pa.C.S.A. § 6109(a) and (b) (emphasis added). Commonwealth's Brief at 16. On either basis, the Commonwealth contends that Appellant's challenge fails.

At the outset, we note that the trial court concluded that Appellant's "New Hampshire permit was not validly or lawfully issued, " and thus, he did not meet the requirements of section 6101(b)(15). Trial Court Opinion (Judge Milliron), 3/18/11 at 9. Stating that "under New Hampshire law, an out-of-state applicant for a concealed carry license must present a valid concealed carry license from his or her resident state, " the trial court found that "[Appellant's] Pennsylvania license had been revoked the day before" he applied to New Hampshire. Id. at 2, 9.[5] Although we agree with the trial court, we decline to dispose of Appellant's first issue on this basis alone and, thus, address the remaining statutory arguments raised on appeal.

We begin our analysis of the statutes at issue by enumerating our approach to statutory interpretation. We note:

(a) 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.
(b) 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.
(c) When the words of the statute are not explicit, the intention of the General Assembly may be ascertained by ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.