Com. v. Bigelow

• Decision Date: 16 March 1979
• Citation: 484 Pa. 476,399 A.2d 392
• Parties: COMMONWEALTH of Pennsylvania v. James BIGELOW, Appellant. COMMONWEALTH of Pennsylvania v. Phillip POPE, Appellant.
• Court: Pennsylvania Supreme Court

Page 392

399 A.2d 392

484 Pa. 476

COMMONWEALTH of Pennsylvania v. James BIGELOW, Appellant.

COMMONWEALTH of Pennsylvania v. Phillip POPE, Appellant.

Supreme Court of Pennsylvania.

Argued Jan. 17, 1979.

Decided March 16, 1979.

John W. Packel, Chief, Appeals Div., Leonard Sosnov, Philadelphia, for appellant James Bigelow.

Harry S. Tischler, Asst. Defender, Leonard Sosnov, Philadelphia, for appellant Phillip Pope.

Robert B. Lawler, Asst. Dist. Atty., Chief, Appeals Div., Gaele McLaughlin Barthold, Asst. Dist. Atty., for appellee in both cases.

Before EAGEN, C. J., and ROBERTS, NIX, MANDERINO and LARSEN, JJ.

OPINION

NIX, Justice.

These two appeals involve the application of our decision in Commonwealth v. McNeil 461 Pa. 709, 337 A.2d 840 (1975), to section 6108 of the Uniform Firearms Act, 18 Pa.C.S.A. § 6108 (1973), and its predecessor, 18 P.S. § 4628(e.2). In McNeil, this Court held that the Commonwealth has the burden of affirmatively proving in prosecutions for carrying firearms without a license under former section 4628(e) of the Act, now codified at 18 Pa.C.S.A. § 6106, that the weapon involved was not licensed. We are asked to extend that burden to cases involving section 6108's prohibition upon carrying firearms on public streets or public property in Philadelphia. For the reasons that follow, we believe that the McNeil decision is not applicable to prosecutions under section 6108 or its predecessor, section 4628(e.2).

James Bigelow was arrested and charged with violations of sections 6106 ¹ and 6108 ² of the Uniform Firearms Act, and of a weapons offense under 18 Pa.C.S.A. § 908. He was found guilty in the Municipal Court of violating section 6108, but because the Commonwealth failed to show that Bigelow did not have a license for the weapon involved a .38 caliber automatic the court failed to convict him under sections 6106 and 908. The Court of Common Pleas reversed the section 6108 conviction believing that our decision in McNeil compelled that result. The Commonwealth appealed to the Superior Court which reversed the Court of Common Pleas and reinstated the conviction, based on its earlier decision in Commonwealth v. Poindexter, 248 Pa.Super. 564, 375 A.2d 384 (1977). ³ Commonwealth v. Bigelow, 250 Pa.Super. 330, 378 A.2d 961 (1977). We granted allocatur pursuant to 42 Pa.C.S.A. § 724(a) (1978).

Phillip Pope was tried and convicted of carrying a firearm without a license in violation of section 4628(e.2) ⁴ of the Uniform Firearms Act, now 18 Pa.C.S.A. § 6108. Believing our McNeil decision to be controlling, the trial court sustained Pope's motion in arrest of judgment because the Commonwealth failed to prove that Pope lacked a license for the rifle involved. The Commonwealth appealed to the Superior Court which reversed the arrest of judgment on the basis of its Poindexter decision. Commonwealth v. Pope, 250 Pa.Super. 626, 379 A.2d 603 (1977). We granted allocatur. ⁵

In Commonwealth v. McNeil this Court held that the absence of a license is an essential element of the crime of carrying a firearm without a license as prohibited by former section 4628(e) of the Uniform Firearms Act. This section provided in relevant part:

Firearms not to be carried without a license; exceptions

(e) No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as hereinafter provided.

18 Pa.C.S.A. Appendix, § 4628(e) (1973). In analyzing this section, the Court stated:

The Structure of the statute and the nature of the prohibition convince us that the absence of a license is an essential element of the crime. . . . It follows, therefore, that the Commonwealth had the burden of establishing this element beyond a reasonable doubt.

Commonwealth v. McNeil, 461 Pa. at 715, 337 A.2d at 843 (emphasis added).

The language employed by the Court indicates that it did not intend to announce a principle applicable to all weapons offenses. Rather, the Court's ruling is based on the peculiar wording of section 4628(e). The structure and phrasing of section 6108 and its predecessor section 4628(e.2) are so different from that of section 4628(e) as to require us to conclude that the McNeil decision is inapposite.

In interpreting the statute before us, our goal is to ascertain and effectuate the intention of the legislature. 1 Pa.C.S.A. § 1921(a) (1978-79 Supp.). In so doing, we are called upon to use a common sense approach in which words and phrases are examined according to established rules of grammar and according to their common usage. Id. at § 1903(a). We are guided by the presumption that the legislature did not intend a result that is absurd, unreasonable, or impossible of execution. Id. at § 1922(1).

For convenience, our examination of the statute involved in these cases will focus on sections 6106 and 6108 of the new crimes code, the pertinent provisions of which are set forth in notes 1 and 2, Supra. Our analysis applies with equal vigor to the virtually identical antecedents of these sections in the old crimes code, sections 4628(e) and 4628(e.2), respectively.

The titles of these two sections indicate that the legislature intended that the offenses prescribed by sections 6106 and 6108 to consist of differing elements. That 6106 requires that the absence of a license is to be proven by the prosecution as an element of the crime is shown by the title of that section: "Firearms not to be carried without a license." The title of section 6108, on the other hand, merely states "Carrying firearms on public streets or public property in Philadelphia." Although this difference alone does not compel us to state that non-licensure is not an element of a section 6108 offense, it is strong evidence of such a legislative intent. See1 Pa.C.S.A. § 1924 (1978-79 Supp.).

The language of each section also provides a key distinction. In section 6106, the phrase "without a license" appears without any words of exception. In section 6108, however, the material regarding licensure is set off by the word of exception "unless", indicating it is in the nature of a proviso. See John V. Carr & Sons, Inc. v. United States, 326 F.Supp. 973, 975 (U.S.Cust.Ct.1971) and cases cited therein. The purpose of a proviso is to "qualify, restrain or otherwise modify the general language of the enabling provision." Commonwealth ex rel. Margiotti v. Lawrence, 326 Pa. 526, 531, 193 A. 46, 48 (1937). Material placed in 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. United States v. Winnicki, 151 F.2d 56, 58 (7th Cir. 1945) and cases cited therein.

In McKelvey v. United States, 260 U.S. 353, 43 S.Ct. 132, 67 L.Ed. 301 (1922), the Supreme Court of the United States had occasion to state:

By repeated decisions it has come to be a settled rule in this jurisdiction that an indictment or other pleading founded on a general provision defining the elements of an offense, or of a right conferred, need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere, and that it is incumbent on one who relies on such an exception to set it up and establish it.

Id. at 357, 43 S.Ct. at 134 (citations omitted).

The United States Supreme Court has never required the prosecution to negate the language of a proviso. Such a requirement

would have the effect of limiting the government to allegations it might be wholly unable to prove, and without subserving any useful purpose to the defendant. While the rules of criminal pleading require that the accused shall be fully apprised of the charge made against him, it should, after all, be born in mind that the object of criminal proceedings is to convict the guilty, as well as to shield the innocent; and no impracticable standards of particularity should be set up, whereby the government may be entrapped into making allegations which it would be impossible to prove. . . . Neither in criminal nor in civil pleading is it required to anticipate or negative a defense. . . . "In general," says Chitty, "all matters of defense must come from the defendant, and need not be anticipated or stated by prosecutor."

Evans v. United States, 153 U.S. 584, 590, 14 S.Ct. 934, 937, 38 L.Ed. 830 (1894) (citations omitted).

There is nothing in the Court's opinion in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), that conflicts with this long-standing rule.

That the legislature intended the licensure issue in section 6106 cases to differ from the disposition of the same issue in section 6108 cases is borne out by the differing language employed in each section. Where a section of a statute "contains a given provision, the omission of such provision from a similar (section) is significant to show a different intention existed." Richerson v. Jones, 551 F.2d 918, 928 (3d Cir. 1977) (citation omitted). Cf. Novicki v. O'Mara, 280 Pa. 411, 416, 124 A. 672 (1924) ("A change in language in separate provisions of a statute is prima facie evidence of a change of intent"). We agree with the Superior Court that "(a) close analysis of the syntax in the two sections indicates . . . that the legislature did not intend that lack of a license should be an element of a § 6108 offense." Commonwealth v. Poindexter, supra, 248 Pa.Super. at 568, 375 A.2d at 386. The Superior Court also observed that The structure of the sentence which delineates a § 6108 offense (with subsections (1) and (2) following a colon) is such that the two subsections are of equal value: the positions of the two clauses could even be reversed without changing the meaning of the sentence. Were we to hold that the Commonwealth had to prove as an element of a § 6108 offense that the accused did not have a license to carry the firearm, we would have to further conclude that the Commonwealth also had to...