Com. v. Gillespie

• Decision Date: 25 April 2003
• Citation: 821 A.2d 1221,573 Pa. 100
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. James L. GILLESPIE, Appellant.
• Court: Pennsylvania Supreme Court

821 A.2d 1221

573 Pa. 100

COMMONWEALTH of Pennsylvania, Appellee v. James L. GILLESPIE, Appellant.

Supreme Court of Pennsylvania.

Argued May 16, 2002.

Decided April 25, 2003.

Sean Patrick McGraw, Deborah Lux, for Appellant, James L. Gillespie.

Ray Frank Gricar, Belllefonte, for Appellee, Com. of PA.

Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, NEWMAN, SAYLOR and EAKIN, JJ.

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

JUSTICE EAKIN.

James Gillespie challenges his conviction under 18 Pa.C.S. § 6105 (persons not to possess, use, manufacture, control, sell or transfer firearms). He argues the shotgun he possessed did not fall within the definition of "firearm," and further contends the shotgun was seized as the result of an unlawful search of his residence.

On August 8, 1999, Pennsylvania State Police received a complaint from a neighbor that appellant, a convicted felon, possessed a firearm. After verifying this information by checking appellant's criminal record, two uniformed officers interviewed the neighbor at his apartment, across the hall from appellant's residence. The neighbor stated he had seen appellant with a gun earlier that day.

At approximately 10:23 p.m., police knocked on appellant's door. When his wife answered, the officers asked to speak with appellant; she allowed the officers to enter. Inside, appellant, his wife, and two other people were present. The officers informed appellant about the complaint against him and invited him to discuss it outside. Appellant told the officers they could speak to him where they were. The officers told appellant there was a complaint he had been carrying a firearm earlier in the day, and asked if there was a firearm in the residence. Appellant, "[i]n a loud, vulgar manner," stated it was none of the officers' business whether he had a gun or not. N.T., 3/17/00, at 10. The officers then asked if they could search the residence. Appellant responded "not without a warrant," and told the officers to leave. One officer described Appellant's conduct as "violent and belligerent." Id.

The officers told appellant they were going to have to ask him, his wife, and his guests to leave the residence so the officers could secure it while a warrant was sought. Appellant "jumped up and started yelling and pointing his finger at [one officer's] face." Id., at 11. In response, the officer handcuffed him, and repeated he was going to get a warrant. With that, appellant stated there was a loaded gun in the bedroom. The other officer went to the bedroom and found a loaded 12-gauge shotgun with a 24-inch barrel just inside the door.

Appellant was charged with violating 18 Pa.C.S. § 6105(a). He filed a pretrial motion to suppress the evidence; the motion was denied. The trial court, sitting without a jury, found appellant guilty. Appellant filed timely post trial motions, which were denied. The Superior Court affirmed. We granted allowance of appeal to resolve the differing definitions of "firearm" in 18 Pa.C.S. § 6105(i) and 18 Pa. C.S. § 6102, and to determine whether the shotgun was seized during an unlawful search.

Section 6105(a)(1) provides, "[a] person who has been convicted of an [enumerated] offense ... shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth." Section 6105 contains the following definition of "firearm": "[a]s used in this section only, the term `firearm' shall include any weapons which are designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon." Id., at § 6105(i) (emphasis added).

Section 6102 has a more restrictive definition of "firearm":

[s]ubject to additional definitions contained in subsequent provisions of this subchapter which are applicable to specific provisions of this subchapter, the following words and phrases, when used in this subchapter shall have, unless the context clearly indicates otherwise, the meanings given to them in this section:

* * *

"Firearm." Any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable.

Id., at § 6102 (emphasis added).

Appellant argues the Commonwealth did not prove his weapon was a "firearm," because his shotgun's barrel alone was 24 inches; under § 6102, a shotgun must have a barrel length of less than 18 inches, or an overall length of less than 26 inches, to be a "firearm." Appellant argues § 6105(i)'s broad definition of "firearm" merely enhances the definition in § 6102, and that § 6102's barrel length requirement still applies.

Appellant relies upon Commonwealth v. Todd, 477 Pa. 529, 384 A.2d 1215 (1978), in which this Court held barrel length was an essential element of the offense defined in § 6105. The version of § 6105 in effect when Todd was decided read: "No person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm, or have one in his possession or under his control." 18 Pa. C.S. § 6105. Because this version of § 6105 did not define "firearm," this Court turned to § 6102's definition, which contained specific barrel length requirements.

In 1995, however, the General Assembly amended the Act. Section 6102's definition of "firearm" was amended to include the word "length" following the word "barrel," and § 6105 was completely rewritten to include its current definition of "firearm." Appellant argues the addition of the word "length" to § 6102 evinces the legislature's intent that barrel length remain an essential element of all firearms offenses, and asks this Court to interpret § 6105(i)'s definition as merely adding to § 6102's definition. However, § 6105(i) explicitly states its broader definition of "firearm" is to be "... used in this section only," which pertains to convicted criminals. Clearly the definition in § 6105 is there for a reason, which is to settle what a former convict may not possess.

The current version of § 6105 also expanded the class of convictions from "crime[s] of violence" to include certain potentially violent crimes. See 18 Pa.C.S. § 6105(b). The clear purpose of § 6105 is to protect the public from convicted criminals who possess firearms, regardless of whether the previous crimes were actually violent or the barrel of the firearm was a certain length. Indeed, during the legislative session regarding the bill which amended the Uniform Firearms Act, the following commentary was made:

[H]ighlights of this crime control proposal are as follows: It expands the categories of persons who commit a crime if they possess, use, control, sell, transfer, or manufacture any firearm, long or short, to include persons convicted of a range of violent or potentially violent crimes....

Legis. J. House Special Session No. 1 (Pa. June 5, 1995), at 286 (emphasis added).

The broader definition of "firearm" in § 6105 was intended as a substitute for the narrower definition in § 6102, when dealing with possession by a convicted criminal. Section 6102 specifically states its definition of "firearm" is "[s]ubject to additional definitions contained in subsequent provisions of this subchapter...." 18 Pa. C.S. § 6102. Merely adding § 6105's projectile/explosion requirement to § 6102, as appellant suggests, would be redundant, since any weapons with barrel lengths specified in that section are already capable of expelling a projectile by an explosive action. It must be presumed the legislature did not intend an absurd or unreasonable result. 1 Pa.C.S. § 1922(1); Commonwealth v. Martorano, 387 Pa.Super. 151, 563 A.2d 1229, 1232 (1989).

The definition of "firearm" in § 6105(i) includes any weapon capable of discharging a projectile by means of explosion, regardless of the weapon's barrel length. Because barrel length is no longer an essential element of the offense under § 6105, Todd and its progeny are not relevant to cases involving the revised statute. Accordingly, the evidence is sufficient to support appellant's conviction under § 6105.

Appellant next argues the trial court erred when it refused to suppress the shotgun. Voluntary consent to search is an exception to the general rule that a warrantless search of a residence is per se unreasonable. Commonwealth v. Gibson, 536 Pa. 123, 638 A.2d 203, 206 (1994). When evaluating voluntariness of consent, the totality of the circumstances must be evaluated. Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 901 (2000). While there is no hard and fast list of factors evincing voluntariness, some considerations include: "1) the defendant's custodial status; 2) the use of duress or coercive tactics by law enforcement personnel; 3) the defendant's knowledge of his right to refuse to consent; 4) the defendant's education and intelligence; 5) the defendant's belief that no incriminating evidence will be found; and 6) the extent and level of the defendant's cooperation with the law enforcement personnel." Commonwealth v. Cleckley, 558 Pa. 517, 738 A.2d 427, 433 n. 7 (1999).

Appellant contends his consent was coerced by the officers.¹ When the officers arrived, appellant's wife admitted them voluntarily. Appellant was clearly aware of his rights, knew he could refuse consent to search, and in fact did refuse. There clearly was nothing coercive to this point, for the mere presence of police is not coercion. Nor was there coercion thereafter. The officers told appellant they would seek a warrant; in order to secure the residence, they requested everyone wait outside while a warrant was sought. Appellant immediately...