Caba v. Weaknecht

• Decision Date: 04 February 2013
• Docket Number: No. 318 C.D. 2012,318 C.D. 2012
• Parties: Francisco A. Caba, Appellant v. Eric J. Weaknecht
• Court: Pennsylvania Commonwealth Court

Francisco A. Caba, Appellant
v.
Eric J. Weaknecht

No. 318 C.D. 2012

COMMONWEALTH COURT OF PENNSYLVANIA

Argued: September 10, 2012
FILED: February 4, 2013

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge
HONORABLE MARY HANNAH LEAVITT, Judge
HONORABLE P. KEVIN BROBSON, Judge

OPINION BY JUDGE BROBSON

On February 2, 2012, following an evidentiary hearing, the Court of Common Pleas of Berks County (trial court) overruled and denied the appeal of Appellant Francisco A. Caba (Caba). In his appeal to the trial court, Caba challenged the decision of Appellee Eric. J. Weaknecht, Sheriff of Berks County (Sheriff), to revoke Caba's concealed carry license pursuant to the Pennsylvania Uniform Firearms Act of 1995, 18 Pa. C.S. §§ 6101-6127 (Act). Caba now seeks review of the trial court decision. For the reasons set forth below, we affirm.

BACKGROUND

The Act is part of the Pennsylvania Crimes Code. Section 6106(a) of the Act makes the act of carrying a firearm in any vehicle or concealed (except in

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the home or at a fixed place of business) without a license a crime.¹ Each county of the Commonwealth has its own licensing authority. Except in a city of the first class, where the licensing authority lies with the chief of police or head of the police department, the county sheriff is the licensing authority under the Act. See 18 Pa. C.S. §§ 6102, 6109.

The Sheriff issued a license to Caba on August 20, 2009. By letter dated August 30, 2011 (Revocation Letter),² the Sheriff informed Caba that he was revoking Caba's license for the following reason: "A person whose character/reputation indicates danger to public safety." In the event of a revocation, the Act provides an appeal to the court of common pleas. Id. § 6109. On September 23, 2011, Caba filed an appeal with the trial court, contesting the Sheriff's revocation decision.

Caba served the Sheriff with discovery requests in the form of interrogatories and a request for production of documents. Caba filed a petition with the trial court to compel discovery responses with respect to his interrogatories numbered 4 and 5 and his document requests numbered 5, 6, and 7. The trial court heard the discovery petition on January 4, 2012. With the exception of ordering the Sheriff to produce a copy of Caba's license, the trial court denied Caba's discovery petition.

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On February 2, 2012, the trial court conducted an evidentiary hearing on the merits of Caba's appeal.³ At the outset of the hearing, the trial court ruled that the Sheriff bore the burden of proof in the matter. The Sheriff first called Jeremy Smith, the clerk in charge of firearms licensing in the Berks County Sheriff's Office (Office). Mr. Smith testified that he received a telephone call from Andrew Potts in January 2011, during which Mr. Potts expressed concern about Caba's license status in light of a particular incident that occurred in Hamburg, Pennsylvania. Mr. Smith advised Mr. Potts to express his concerns to the police officer investigating that incident.

The next time Mr. Smith heard of Caba was when he received a telephone call from Assistant District Attorney (ADA) Colleen Dugan. As a result of that conversation, Mr. Smith asked ADA Dugan to send him a copy of the criminal complaint that had been filed against Caba. At this point during the hearing, the Sheriff marked as Exhibit 1 the documents that Mr. Smith claimed he received from ADA Dugan, which all parties agreed on the record appeared to relate to a private criminal complaint filed by Mr. Potts against Caba for an incident on November 24, 2010, in Hamburg, Pennsylvania. Mr. Smith testified that he received this package of documents from ADA Dugan.

After he reviewed the records, Mr. Smith contacted Mr. Potts and asked him whether he would be willing to testify if the Sheriff chose to pursue a civil action against Caba. In addition to noting that Mr. Potts agreed to testify, Mr. Smith also testified that Mr. Potts informed him about another incident in Reading,

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Pennsylvania, dealing with Caba. Mr. Smith testified that he contacted the Reading Police Department to obtain the police record of that incident. The Sheriff marked that record as Exhibit 2.

Mr. Smith testified that he presented the above-described information to the Sheriff, and the Sheriff decided to revoke Caba's license under the Act. Mr. Smith also testified that he contacted a Magisterial District Judge's (MDJ) office about the Hamburg incident. The Sheriff marked as Exhibit 3 a record from the MDJ's office, showing Caba's conviction for a single count of harassment, a summary offense, for an incident on November 24, 2010.

On cross-examination, Mr. Smith testified that his direct testimony reflected the entirety of his investigation into the matter. The Sheriff testified next. He testified that, based on Mr. Smith's investigation, as recounted in Mr. Smith's testimony, he instructed Mr. Smith to revoke Caba's license.

The Sheriff then called Mr. Potts to testify, but Mr. Potts did not offer any material testimony on direct examination. Through Mr. Potts, the Sheriff marked for identification Exhibit 6, which Mr. Potts identified as a letter he wrote to the District Attorney when he filed a personal criminal complaint against Caba. Mr. Potts testified that the District Attorney refused to allow the private criminal complaint to proceed. The Sheriff then rested his case-in-chief.

Jose Rifas was Caba's first witness. Caba called Mr. Rifas to testify as to Caba's character and reputation in the community. He testified that he had known Caba's family for approximately eight years and served as a character reference for Caba when he applied for his license under the Act. He testified that he felt Caba was a good member of society and did not believe Caba was a threat or a violent person. He testified that, based on his discussions with other members

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of the community, Caba is regarded as a law-abiding citizen in his community. On questioning by the trial court, Mr. Rifas clarified that when he testified about his discussions with other members of the community, he meant those who live in the Allentown area (Lehigh County), where Caba lived approximately four or five years before he moved to Berks County.

Caba then testified on his own behalf. He testified that he moved from Allentown to Fleetwood (Berks County) "about 5 years ago."⁴ He testified that on the evening of November 24, 2010, he was not carrying his firearm because he was going to be in a bar and understood that firearms were not allowed in establishments that served alcohol. He further testified that on that evening, a Pennsylvania State Trooper questioned him about an incident between Caba and a male, Ryan Stufflet. The Trooper searched Caba and the general area around Caba that evening, but did not find a firearm.

On cross-examination, Caba testified that Mr. Potts and his wife were present when Caba and Mr. Stufflet had their altercation. He also testified that he believed Mr. Potts and his wife helped to break up the scuffle ("or whatever").

On rebuttal, the Sheriff recalled Mr. Potts. Mr. Potts testified that he witnessed an incident between Caba and Mr. Stufflet on the evening of November 24, 2010, in the parking lot of The Westy, Hamburg Hotel:

I saw Mr. Caba locate a gun which he had dropped during the altercation that I broke up. I turned my back. I heard him charge the weapon, putting a round into the chamber which got my attention again. I turned to see him pursuing in the direction my wife and Mr. Stufflet

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had travelled with the gun raised above his waist and pointed in front of him.

(R.R. 48a.) On cross-examination, Mr. Potts testified that his wife and Mr. Stufflet were cousins. He testified that it was nighttime (11:00 p.m.) and that when Caba retrieved the weapon, Mr. Potts was approximately three feet from him.

Caba's attorney then called Caba to the stand again. Caba disputed Mr. Potts' testimony. He testified that he dropped an item that evening, but that the item was his cellular phone, not a weapon. He described the cellular phone as black and silver. He stated further that it was very dark, as there were no lights in the parking lot. On cross-examination, Caba contended that Mr. Potts had mistaken Caba's cellular phone for a handgun. Caba further testified that he did not point either object, a cellular phone or a handgun, in a threatening manner.

This testimony prompted the Sheriff to re-call Mr. Potts. Mr. Potts disputed Caba's account of events. Mr. Potts testified that Caba did have a cellular phone, the lighted screen of which Caba used to locate his handgun. He testified that Caba definitely retrieved a midsized to compact semi-automatic handgun with "a black lower [and] silver or gray upper." Mr. Potts testified that he asked Caba what he planned to do with the gun and told him to put it away and go home. According to Mr. Potts, Caba said that he had a handgun permit. Mr. Potts testified that he left at that point, because he was unarmed and did not want to get shot. As he turned away, however, he heard Caba chamber (i.e., load) a round in the weapon. He turned back in the direction of Caba and saw Caba raise the weapon waist-high and travel in the direction of Mr. Potts' wife and Mr. Stufflet.

Following the conclusion of the testimony recounted above, the trial court admitted Exhibits 3 (the MDJ record of conviction), 4 (instructions from the Office on how to apply...