Com. v. Ray
| Decision Date | 10 December 1970 |
| Citation | 218 Pa.Super. 72,272 A.2d 275 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Frederick RAY. COMMONWEALTH of Pennsylvania, Appellant, v. Hosie JEFFCOAT. |
| Court | Pennsylvania Superior Court |
James D. Crawford, Deputy Dist. Atty., Chief, Appeals Div., Philadelphia, for appellant at Nos. 987 and 392.
Vincent J. Ziccardi, Defender, Thomas C. Carroll, Philadelphia, for appellee at Nos. 987 and 392.
The United Sportsmen's Ass'n of Greater Delaware Valley, amicus curiae at No. 392, by Emil F. Toften, Philadelphia.
Before WRIGHT, P.J., and WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
These are appeals by the Commonwealth from the order of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, dismissing prosecutions under Section 10--814 and Section 10--818 of the Philadelphia Code and indictments for carrying concealed deadly weapon and to unlawfully carrying a firearm without a license under the Uniform Firearms Act of 1939, June 24 P.L. 872, § 628, 18 P.S. § 4628 and its amendments. The Court directed a verdict of not guilty of the indictable offenses of carrying a concealed deadly weapon and, holding Section 10--814 and Section 10--818 of the Philadelphia Code unconstitutional, dismissed the summary charges under the Code and held that Sections e.1 and e.2 of Section 628 of the Uniform Firearms Act, 1968, July 30, P.L. ---, No. 228, § 1, 18 P.S. § 4628 as unconstitutional and dismissed the indictable offenses without decision on the merits.
Appellee, Frederick Ray, was tried after waiver of trial by Jury before Judge Thomas M. Reed on indictments for (1) carrying concealed deadly weapon and (2) unlawfully carrying a firearm without a license. He was also charged with the summary violation of the licensing provision of Section 10--814 of the Philadelphia Code.
Appellee, Hosie Jeffcoat, was charged with the same indictable offenses as well as a summary violation of Section 10--818 of the Philadelphia Code which prohbits the carry of firearms in public in Philadelphia County.
The directed verdicts of not guilty are not appealable by the Commonwealth. Commonwealth v. Haines, 410 Pa. 601, 100 A.2d 118 (1963). However, both defendants were also charged in summary proceedings with violation of Section 10--814 in the case of Ray, which prohibits the acquisition or transfer of firearms without a license; in the case of Jeffcoat, violation of Section 10--818 of the Code, which prohibits the carrying of firearms in public places. In both summaries, the Court dismissed the prosecutions and they are the proper subject for appellate review on appeal by the Commonwealth. It is only where the question involved is purely one of law that the Commonwealth may appeal from an adverse ruling in a criminal case. Commonwealth v. Melton, 402 Pa. 628, 168 A.2d 328 (1961). These cases clearly fall into that category where the court below dismissed the prosecution on the ground of unconstitutionality. The petitions to quash these appeals are denied.
Hosie Jeffcoat was apprehended in the 5500 block of Jane Street in the City of Philadelphia by Police Officer Michael Nuzzi, on August 29, 1969. He was subsequently indicted for Carrying a Concealed Deadly Weapon and for Carrying a Firearm without a License. The Magistrate's transcript carried the additional charge of Violation of City Ordinance 10--818, which prohibited the carrying of firearms in public places.
The Court declared Section 628(e.2) of the Uniform Firearms Act, 1968, July 30, P.L. ---, No. 228, § 1, as unconstitutional; the Court further declared the City Firearms Ordinance, Section 10--818 to be unconstitutional; the Court sitting as trier of fact found the weapon was not concealed and directed a verdict of not guilty of Carrying a Concealed Deadly Weapon.
In 1951, Philadelphia, by referendum of its citizens, adopted the Philadelphia Home Rule Charter as provided by Article XV, § 1, of the Pennsylvania Constitution, P.S., as of that date and the authority expressly granted by the Legislature in the First Class City Home Rule Act, 1949, April 21, P.L. 665 § 1, et seq., 53 P.S. § 13101 et seq. Section 17 of the Home Rule Act provided that a city taking advantage of the act shall have all powers of local self-government '* * * and shall have complete powers of legislation and administration in relation to its municipal functions * * * The charter of any city adopted or amended in accordance with this act may provide for a form or system of municipal government and for the exercise of any and all powers relating to its municipal functions, not inconsistent with the * * * extent that the General Assembly may legislate in reference thereto as to cities of the first class, and with like effect, and the city may enact ordinances, rules and regulations necessary and proper for carrying into execution the foregoing powers and all other powers vested the city by the charter it adopts or by this or any other law.'
That his enabling statute did not grant unlimited legislative power to the city is apparent from a reading of Section 18 of the Act which provides in part as follows:
In 1965, the City of Philadelphia passed an ordinance regulating the acquisition and transfer of firearms. § 10--814, Para. 2, provides that:
In 1967, the City of Philadelphia passed another ordinance regulating firearms in public places. § 10--818 reads as follows:
'(1) Definition.
'Firearms. 'Firearms' means any revolver, pistol, rifle, shotgun or other weapon capable of propelling a projectible by means of an explosive material or charge.
'(a) licensed by the Commonwealth of Pennsylvania to carry a firearm or licensed to hunt;
'(b) actively engaged in a defense of his life or property from imminent peril or threat; or
'(c) a police officer or member of the State or Federal militia on active duty.
At the time of the passage of these ordinances, the Legislature had shown its intention to regulate firearms, their sale, use, etc., by statutes passed from time to time. One statute being the Uniform Firearms Act, supra.
The intent of the Legislature is further indicated by its adoption of additions to the Uniform Firearms Act, supra, which provide:
'(e.1) No person shall carry a firearm, rifle or shotgun upon the public streets or upon any public property during an emergency proclaimed by a municipal or state governmental executive unless that person is:
'(1) Actively engaged in a defense of his life or property from peril or threat; or
'(2)...
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Commonwealth v. McKown
...not binding on this Court. Barren v. Commonwealth, 74 A.3d 250, 254 n. 2 (Pa.Super.2013). 13. I recognize that in Commonwealth v. Ray, 218 Pa.Super. 72, 272 A.2d 275 (1970), this Court held constitutional a statute requiring a license to carry a firearm in public. Id. at 77–78, 272 A.2d at ......