Com. v. Bavusa

• Decision Date: 21 March 2000
• Citation: 750 A.2d 855
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Joseph BAVUSA, Appellant.
• Court: Pennsylvania Superior Court

750 A.2d 855

COMMONWEALTH of Pennsylvania, Appellee, v. Joseph BAVUSA, Appellant.

Superior Court of Pennsylvania.

Argued September 29, 1999.

Filed March 21, 2000.

Reargument Denied May 18, 2000.

Peter Rosalsky, Asst. Public Defender, Philadelphia, for appellant.

Michael Gehrig, Asst. Dist. Atty., Philadelphia, for the Com.

Before POPOVICH, JOYCE and TAMILIA, JJ.

POPOVICH, J.:

¶ 1 The appellant, Joseph Bavusa, appeals the judgment of sentence (two years probation and costs) for carrying a firearm without a license¹ on the basis the offense should not have been graded a felony of the third degree because the burden of proving that he was ineligible to possess a license to carry a firearm was not carried forward by the Commonwealth. We affirm.

¶ 2 The facts are not in dispute: At 7:00 p.m. on the 18th of October, 1997, Philadelphia Police Officer Edward Lewis saw the appellant directing traffic into a parking lot, and, in the course of doing so, the appellant was observed with a black handgun in a holster at his waist. When the police asked if the appellant had a license, he answered in the affirmative but failed to produce one. After a radio check confirmed the appellant had no firearm license, he was arrested. The police confiscated a .32 caliber Walther semi-automatic handgun loaded with six live rounds in the magazine and one in the chamber.

¶ 3 The appellant was charged with carrying a firearm without a license and carrying a firearm on the public streets or public property in Philadelphia.² The appellant was found guilty by the Hon. Barbara A. Joseph of both crimes after the Commonwealth introduced a certificate of non-licensure from the Pennsylvania State Police.

¶ 4 When the trial court inquired concerning the gradation (misdemeanor or felony) of the Section 6106 conviction, the Commonwealth offered that the appellant had committed two prior crimes (manufacturing with intent to deliver a controlled substance and driving without lights to avoid identification), which prompted the trial court to label the offense a felony of the third degree.

¶ 5 A timely appeal followed challenging the trial court's grading Section 6106 a third degree felony on the ground that the appellant's prior Section 17 Probation Without Verdict for a drug offense was not a conviction, and, therefore, would not have precluded receipt of a license to carry a firearm, which should have decreased the grading for non-licensure to a first degree misdemeanor. The trial court disagreed stating, first, the Commonwealth was not burdened with establishing the appellant's ineligibility to obtain a license to carry a firearm. Second, the trial court held the Commonwealth met its burden and proved each element beyond a reasonable doubt with regard to the Section 6106 offense, which provides in relevant part:

§ 6106. Firearms not to be carried without a license

(a) Offense defined.—

(1) Except as provided in paragraph (2), 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.

(2) A person who is otherwise eligible to possess a valid license under this chapter but 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 and has not committed any other criminal violation commits a misdemeanor of the first degree.

(b) Exceptions....

The Act of April 22, 1997, P.L. 73, No. 5, § 1; 18 Pa.C.S.A. § 6106(a)(1) and (2)(Supp.1999).

¶ 6 Initially, we our guided by the decision in Commonwealth v. Lopez, 523 Pa. 126, 565 A.2d 437 (1989), wherein the elements of the predecessor to Section 6106³ were scrutinized. The phrase "except in his place of abode or fixed place of business" was determined to constitute an element of the offense of carrying a firearm without a license and was required to be proven by the prosecution beyond a reasonable doubt; to-wit:

It is axiomatic that the Commonwealth bears the burden of proving every element of the offense beyond a reasonable doubt. Commonwealth v. Johnston, 438 Pa. 485, 263 A.2d 376 (1970). "Under our system of jurisprudence the legislature is charged with the responsibility of defining the elements of crime." Commonwealth v. Graves, 461 Pa. 118, 126, 334 A.2d 661, 665 (1975); see also Commonwealth v. Wright, 508 Pa. 25, 31, 494 A.2d 354, 357, aff'd sub nom. McMillan v. Pa., 474 U.S. 815, 106 S.Ct. 58, 88 L.Ed.2d 47 (1985). Thus the focus of our inquiry must be whether or not the phrase "except in his place of abode of fixed place of business" is an element of the offense. The Pennsylvania Crimes Code, 18 Pa.C.S. § 103 defines in pertinent part, an element of an offense as:

Such conduct or such attendant circumstances... as:

(1) is included in the description of the forbidden conduct in the definition of the offense;

....

Section 6106(a) describes the elements that must be proven by the Commonwealth in order to convict an accused of this offense. The Commonwealth must prove each of the factors listed in the definition: (a) that the weapon was a firearm, Commonwealth v. Todd, 477 Pa. 529, 384 A.2d 1215 (1978); (b) that the firearm was unlicensed, Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975); and (c) that where the firearm was concealed on or about the person, it must be outside his home or place of business. This clause is clearly an integral part of the forbidden conduct found in the definition of the offense. The Commonwealth cannot successfully prove a violation of section 6106 without showing that the gun, found on the person, was carried outside the place of abode. See, e.g., Commonwealth v. Clinton, 391 Pa. 212, 137 A.2d 463 (1958). This element is just as crucial to the Commonwealth's case as the proof that the weapon was unlicensed, for without such evidence the Commonwealth has not met its burden of proof.

Subsection (b) specifically enumerates certain justifications for carrying a firearm outside one's home or fixed place of business. As recognized by the Superior Court, these exceptions are affirmative defenses, which must be placed in issue by the defendant, and which need not be negated by the prosecutor in its case-in-chief. See, Commonwealth v. Walton, 365 Pa.Super. 147, 529 A.2d 15 (1987),alloc. denied, 517 Pa. 630, 539 A.2d 811 (1988). Under the rules of statutory construction, subsection (b) clearly evidences a distinction between the definition of the crime and its exceptions. 1 Pa.C.S. § 1921(b).

* * * *

In [Commonwealth v.] Bigelow, [484 Pa. 476, 399 A.2d 392 (1979)], this Court considered the proper interpretation of section 6108 of the "Firearms & Other Dangerous Articles Act," 18 Pa.C.S. § 6108. At issue in that case was whether the Commonwealth had the burden of proving non-licensure as an element of the offense of "carrying firearms on public streets or public property in Philadelphia." The Act provided:

§ 6108, Carrying firearms on public streets or public property in Philadelphia[;]

No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless:

(1) such person is licensed to carry a firearm; or

(2) such person is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).

We concluded that proof of an unlicensed possession was not required as an element of the offense. In so deciding, the rationale offered for that conclusion was:

In section 6108 ... the material regarding licensure is set off by the word of exception "unless", indicating it is in the nature of a proviso.... The purpose of a proviso is to "qualify, restrain or otherwise modify the general language of the enabling provision."

....

Material placed in a proviso is not an element of the crime but rather a matter of defense and need not be either plead or proved by the prosecution.

Id. at 482, 399 A.2d at 395 (citations omitted).

* * * *

... The proviso referred to in Bigelow is set off from the text of the definition of the offense, similar to the manner in which subsection (b) of section 6106 is divorced from the definitional section of that offense.

The language of Bigelow itself evidences the improper application of that decision by the Superior Court in its interpretation of subsection (a) of section 6106. Bigelow specifically states that a proviso modifies the general language of the enabling provision. Bigelow, 484 Pa. at 482, 399 A.2d at 395, citing Commonwealth ex rel. Margiotti v. Lawrence, 326 Pa. 526, 531, 193 A. 46, 48 (1937). According to this reasoning, we conclude the language herein cannot be considered a proviso, but rather is clearly a part of the definition of the offense.

565 A.2d at 439-40 (Emphasis in original).

¶ 7 At bar, unlike in Lopez but similar to Bigelow, the language "except as provided" is separated from the verbiage defining the offense. For example, missing from the paragraph containing "carrying a firearm without a license" is the added prohibitive conduct (e.g., making one "otherwise [in]eligible to possess a valid license" is not expounded upon) as discussed in Lopez and missing in Bigelow informing a person of the proscribed behavior. We have to travel to Section 6105,⁴ subsection (b) of Section 6106 or Section 6109⁵ to garner what makes an accused "otherwise [in]eligible to possess a valid license". Section 6106(a) does not contain the defined conduct as existed in the predecessor to Section 6106 (and addressed in Lopez). Rather, one is directed to go outside the statute to ascertain what conduct exempts one from a felony status. This undermines the statute's "except" clause as an element of the offense, i.e., it manifests itself as a proviso...