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Commonwealth v. Scott

Superior Court of Pennsylvania

December 8, 2017

COMMONWEALTH OF PENNSYLVANIA Appellee
v.
THOMAS MARCEL SCOTT Appellant

         Appeal from the Judgment of Sentence June 23, 2016 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0002049-2015

          BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.[*]

          OPINION

          MOULTON, J.

         Thomas Marcel Scott appeals from the June 23, 2016[1] judgment of sentence following his conviction for one count of firearms not to be carried without a license, 18 Pa.C.S. § 6106(a)(2). We reject Scott's claim that he qualified for an exception to section 6106 of the Pennsylvania Uniform Firearms Act of 1995 ("PUFA"), which prohibits carrying a concealed firearm without a license. Nevertheless, because the trial court erred in finding Scott strictly liable for carrying a concealed firearm, we vacate the judgment of sentence and remand for a new trial. For the reasons discussed below, we hold that to establish a violation of section 6106, the Commonwealth must establish that the defendant intentionally, knowingly, or recklessly concealed the firearm.

         The trial court summarized the facts of this case as follows:

At trial, Detective James Horwatt of the New Kensington Police Department testified that on April 18, 2015, he received a call to respond to a report of domestic violence at 119 Kenneth Avenue in New Kensington, Westmoreland County. He proceeded to the residence, and spoke to the victim, Kristin Kalinowski, who identified [Scott]. Shortly thereafter, Detective Horwatt was informed that [Scott] was directly in front of the post office on 11th Street in New Kensington. Upon traveling to the location and observing [Scott], Detective Horwatt exited his patrol vehicle and told [Scott] to raise his hands so that he could see them. Detective Horwatt placed [Scott] under arrest for domestic violence, and conducted a physical pat-down of [Scott] for weapons.
Detective Horwatt stated that upon placing [Scott] in handcuffs and conducting the pat-down, a Sig Sauer handgun in its holster was located under [Scott's] t-shirt. He testified that [Scott's] t-shirt was not tucked in, but was loose, and hanging over the firearm, so that the weapon was completely concealed.
[Scott] testified that although the t-shirt was concealing the firearm, it was not done so intentionally. He opined:
I mean on that particular morning when I would have got dressed the shirt would have been tucked in. When I sat on the bench it was tucked in. I had a hooded sweatshirt and I was sitting there and I got warm and pulled the sweatshirt over my head and I believe incident [sic] of me removing it[, ] it became untucked.
Detective Horwatt further testified that [Scott] showed him his Act 235 Permit, and that [Scott] mentioned that he was either coming back or returning to work. [Scott] testified that at the time of his arrest, he was working in the field of asset protection[2] for a pawnshop as well as a clothing store in Pittsburgh. He also stated that at the time he was arrested, his intention was to travel to Allegheny County to attend a qualification shooting course for a seasonal job as a public safety officer with a local amusement park.

Trial Ct. Op., 9/2/16, at 1-3 (internal citations and footnote omitted) (some alterations in original).

         On June 23, 2016, following a bench trial, the trial court convicted Scott of one count of firearms not to be carried and sentenced him to 7 to 14 months' incarceration. Scott filed a timely post-sentence motion, which the trial court denied on September 2, 2016. Scott timely appealed to this Court.

On appeal, Scott raises the following issues:
I. Whether Judge Hathaway abused her discretion in denying [Scott's] motion for judgment of acquittal for count 1 since [Scott] was exempt under 18 Pa.C.S. § 6106(B)(1) [and] (6).
II. Whether the guilty verdict was against the weight of the evidence in that the Commonwealth did not establish that [Scott] believed the firearm was concealed or that he had acted intentionally, knowingly, recklessly or negligently in possessing the firearm.
III. Whether the guilty verdict was against the weight of the evidence in that the Commonwealth did not establish that [Scott] was aware that the firearm was concealed and therefore unable to terminate possession.
IV. Whether Judge Hathaway abused her discretion in finding [Scott] guilty which was against the weight of the evidence.

         Scott's Br. at vii. In essence, Scott raises two claims: (1) He was not required to have a license because he had a Lethal Weapons Training Act ("Act 235")[3] certification card or because he qualified for an exception under section 6106; and (2) Scott did not have the mens rea required to commit the crime.[4]

         I. Whether Scott Was Required to Have a License to Carry a Concealed Firearm

         Section 6106 makes it unlawful for a defendant to "carr[y] 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." 18 Pa.C.S. § 6101(a)(1). Scott first claims that the Commonwealth failed to present sufficient evidence[5] to establish a violation of section 6106 because (1) he possessed a valid Act 235 certification card and (2) he qualified for an exception to the concealed-carry prohibition due to his employment as a security guard at a pawn shop and clothing store.

         A. Act 235 Certification

         "Act 235 requires privately employed agents who carry lethal weapons to attend an educational and training program established by the State Police Commissioner and provides for them to receive 'certification' when the program is satisfactorily completed." Commonwealth v. Anderson, 169 A.3d 1092, 1099 (Pa.Super. 2017) (en banc). We recently held that "Act 235 is not a 'substitution' for a license to carry a firearm and that Act 235's provisions do not supersede the licensing requirements in the PUFA." Id. at 1103. Rather, "an individual who carries a firearm incident to employment is required to comply with both" the PUFA and Act 235. Id. (emphasis omitted). Therefore, Scott's Act 235 certification has no bearing on whether he violated section 6106 of the PUFA.

         B. Section 6106(b) Exceptions

         Section 6106(b) lists exceptions to the concealed-carry prohibition, including the following:

(b) Exceptions.--The provisions of subsection (a) shall not apply to:
(1) Constables, sheriffs, prison or jail wardens, or their deputies, policemen of this Commonwealth or its political subdivisions, or other law-enforcement officers.
. . .
(6) Agents, messengers and other employees of common carriers, banks, or business firms, whose duties require them to protect moneys, valuables and other ...

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