from the Judgment of Sentence June 23, 2016 In the Court of
Common Pleas of Westmoreland County Criminal Division at
BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER,
Marcel Scott appeals from the June 23, 2016 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.
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
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 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).
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
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)
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.
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") 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.
Whether Scott Was Required to Have a License to Carry a
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 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.
Act 235 Certification
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.
Section 6106(b) Exceptions
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 ...