Com. v. Bavusa
| Citation | 832 A.2d 1042,574 Pa. 620 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee, v. Joseph BAVUSA, Appellant. |
| Decision Date | 29 September 2003 |
| Court | United States State Supreme Court of Pennsylvania |
Ellen T. Greenlee, Peter Rosalsky, Philadelphia, for Joseph Bavusa.
Hugh J. Burns, Philadelphia, for Commonwealth of PA.
Before CAPPY, C.J., and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN AND LAMB, JJ.
In 1997, the Pennsylvania General Assembly amended Section 6106 of the Uniform Firearms Act (codified in the Crimes Code at 18 Pa.C.S. §§ 6101-6126), which had previously graded as a felony of the third degree the act of carrying a firearm without a license. The amendment provided for grading of that same conduct as a misdemeanor of the first degree in certain circumstances—specifically, in circumstances where the person was "otherwise eligible" for licensure and the person had not "committed any other criminal violation." Id. § 6106(a). The issue here is whether the General Assembly intended that amendment to create (1) an additional, negative element of the existing felony offense of carrying a firearm without a license (the new element being license ineligibility or other criminal violations); (2) an affirmative defense to a felony grading; or (3) sentencing factors affecting the grading of the offense. Since the plain language of the statute does not explicitly answer the question before this Court,1 our task is one of statutory construction.2 For the reasons set forth below, we hold that the amendatory factors providing for the lesser grading of a Section 6106 offense as a misdemeanor—license eligibility and non-commission of other criminal violations—were intended to be sentencing factors, not a new element of the felony offense and not an affirmative defense. In addition, since we agree with the Superior Court that the trial court properly graded appellant's conviction as a felony, we affirm the order below.
At 7:00 p.m. on October 18, 1997, two Philadelphia police officers observed appellant, Joseph Bavusa, directing cars into a parking lot. As appellant reached up to point towards the lot, one officer saw a black handgun in a belt holster, partially concealed under appellant's jacket. Upon investigation, appellant told the officers that he was licensed to carry the handgun, but a police radio check proved that assertion to be false. Police seized from appellant a .32 caliber Walther semi-automatic handgun, which was loaded with six live rounds in the magazine and one round in the chamber. Appellant was arrested and subsequently charged with violating Sections 6106 and 6108 of the Uniform Firearms Act.
Section 6106 prohibits the carrying of a concealed firearm without a license (subject to enumerated exceptions, see 18 Pa. C.S. § 6106(b)), as follows:
(a) Offense defined.—
(1) Except as provided in paragraph (2), ... 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.
(2) A person who is otherwise eligible to possess a valid license under this chapter but ... 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 and has not committed any other criminal violation commits a misdemeanor of the first degree.
18 Pa.C.S. § 6106(a) (emphases added).3 Section 6108 proscribes carrying a firearm in public in a city of the first class (i.e., Philadelphia):
Id. § 6108.
Appellant waived his right to a jury trial and proceeded to a bench trial before the Honorable Barbara A. Joseph. After the Commonwealth presented its case-in-chief, the trial court asked whether the Commonwealth would be presenting evidence regarding appellant's eligibility to carry a firearm. The Commonwealth argued that license ineligibility and commission of other criminal violations are sentencing factors, consideration of which is properly deferred pending a verdict. The Commonwealth rested and appellant presented his defense, which consisted of admitting that he carried the handgun without a license, but denying that it was concealed. Appellant did not contest his criminal liability under Section 6108, which lacks a concealment element, nor does he presently challenge that conviction. Appellant further argued that license ineligibility or commission of another criminal violation were factors establishing an additional material element of a Section 6106(a)(1) felony offense, which the Commonwealth was required to establish beyond a reasonable doubt. Appellant averred that the Commonwealth had failed to prove either disqualifying factor.
The trial court found appellant guilty of both offenses. The trial court then turned to the proper grading of the Section 6106 offense, asking the Commonwealth if it had any evidence on grading the offense. The Commonwealth, consistently with its position that license ineligibility and commission of other criminal violations are sentencing factors, invoked Section 6109 of the Uniform Firearms Act, 18 Pa.C.S. § 6109, the section governing firearms license eligibility. The Commonwealth argued that appellant was ineligible for a license under Section 6109(e)(1)(viii), which generally forbids the issuance of a license to carry firearms to a person charged with, or who has been convicted of, a crime punishable by imprisonment for a term greater than one year. In support of its argument, the Commonwealth produced a criminal abstract reflecting appellant's 1974 conviction for driving without lights to avoid identification, see 75 Pa.C.S. § 3734, and his 1975 probation without verdict under Section 17 of the Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-117. The trial court found that appellant was firearms license ineligible. The trial court then graded the Section 6106 offense as a third-degree felony and sentenced appellant to concurrent terms of two years' probation for the Section 6106 offense and the Section 6108 offense.
Appellant filed a post-sentence motion challenging the felony gradation of his Section 6106 conviction. The trial court denied relief. In an amended opinion, the trial court suggested that appellant had the burden of establishing license eligibility and an unblemished criminal record in order to reduce the presumptive felony grading of the Section 6106(a) conviction to a misdemeanor, and that he had failed to carry that burden.
Appellant renewed his Section 6106(a) grading claim on appeal to the Superior Court, which affirmed the judgment of sentence. Commonwealth v. Bavusa, 750 A.2d 855 (Pa.Super.2000). The panel began its analysis of the issue with a lengthy block quotation from this Court's decision in Commonwealth v. Lopez, 523 Pa. 126, 565 A.2d 437 (1989). In Lopez, this Court construed the predecessor to Section 6106—in particular, the clause (which has been carried over verbatim into the present version of the statute) prohibiting the unlicensed carrying of a concealed firearm by any person "except in his place of abode or fixed place of business." The question in Lopez was whether the place of abode/ fixed place of business territorial restriction was an element of the Section 6106 offense, or an affirmative defense to be proved by Lopez (as the Lopez trial court had held). The Lopez Court noted that the Crimes Code itself defines an "element of an offense" as follows:
18 Pa.C.S. § 103, quoted in Lopez, 565 A.2d at 439
. In concluding that the territorial restriction was an element of the Section 6106 offense, the Lopez Court explained that "[t]his clause is clearly an integral part of the forbidden conduct found in the definition of the offense." 565 A.2d at 439.
The Bavusa panel's lengthy quotation from Lopez also encompassed the Lopez Court's distinction of this Court's earlier decision in Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979).4 The relevant question in Bigelow was whether the Commonwealth had the burden of proving non-licensure to sustain a conviction under Section 6108, the firearms provision specifically governing Philadelphia. The Bigelow Court held that proof of non-licensure was not an element of a Section 6108 offense, but instead licensure status could form the basis for an affirmative defense. 399 A.2d at 395-96. In distinguishing Bigelow, the Lopez Court noted that Bigelow had emphasized that:
Lopez, 565 A.2d at 440, quoting Bigelow, 399 A.2d at 395
(citations omitted). The Lopez Court then explained that Section 6106 was not structured in the same way as Section 6108. Far from being a proviso, the Lopez Court found that the territorial restriction in Section 6106(a) "is clearly a part of the definition of the offense:" it was not set-off and intended to modify the core definition, as was the case under Section 6108 and Bigelow.
After reproducing this analysis from Lopez, the Superior Court panel analyzed whether the statutory language at issue...
To continue reading
Request your trial
-
Com. v. Wright
...with the jury, he offers no argument in support of this claim, and we need not separately discuss it. See: Commonwealth v. Bavusa, 574 Pa. 620, 636-637, 832 A.2d 1042, 1052 (2003); Commonwealth v. Irby, 700 A.2d 463 36. It bears mention that the trial judge, in the opinion he filed in suppo......
-
Danner v. Cameron
...( i.e., counsel was ineffective for failure to call Hoff and Muffley) by failing to develop it in his brief, see Commonwealth v. Bavusa, 574 Pa. 620, 832 A.2d 1042 (2003), we write to address this ineffectiveness claim because the PCRA court failed to do so. Danner argues in his PCRA petiti......
-
Commonwealth v. Ricker
...by statute in instances where construction of a Pennsylvania statute is at issue. See 1 Pa.C.S. § 1922 ; see alsoCommonwealth v. Bavusa , 574 Pa. 620, 832 A.2d 1042, 1050–51 (2003). MCI WorldCom , 844 A.2d at 1249–50. Veon , 150 A.3d at 443 (citations modified).Although "any" is susceptible......
-
Commonwealth v. Veon, 69 MAP 2015
...statute in instances where construction of a Pennsylvania statute is at issue. See 1 Pa.C.S. § 1922 ; see also Commonwealth v. Bavusa, 574 Pa. 620, 832 A.2d 1042, 1050–51 (2003).MCI WorldCom, 844 A.2d at 1249–50 ; see Mt. Lebanon v. Cnty. Bd. of Elections, 470 Pa. 317, 368 A.2d 648, 650 (19......
-
INTERPRETING STATE STATUTES IN FEDERAL COURT.
...Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)) (relying on two leading federal avoidance cases); Commonwealth v. Bavusa, 832 A.2d 1042, 1050-51 (Pa. 2003) (quoting Harris v. United States, 536 U.S. 545, 555 (2002)) (using federal definition of avoidance (79) It would be under......