Commonwealth v. McKown

• Decision Date: 22 October 2013
• Citation: 79 A.3d 678,2013 PA Super 282
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Hobson Lyle McKOWN, Appellant.
• Court: Pennsylvania Superior Court

79 A.3d 678

2013 PA Super 282

COMMONWEALTH of Pennsylvania, Appellee

v.Hobson Lyle McKOWN, Appellant.

Superior Court of Pennsylvania.

Argued March 6, 2013.

Filed Oct. 22, 2013.

Jason S. Dunkle, State College, for appellant.

Sean P. McGraw, Assistant District Attorney, State College, for Commonwealth, appellee.

Kelly S. Diffily, Philadelphia, for City of Philadelphia, amicus curiae.

BEFORE: BENDER, SHOGAN and FITZGERALD ^*, JJ.

OPINION BY SHOGAN, J.:

Appellant, Hobson Lyle McKown, appeals from the judgment of sentence entered on September 1, 2011, in the Centre County Court of Common Pleas. On appeal, Appellant argues, inter alia, that a Pennsylvania resident who does not have a Pennsylvania license to carry a concealed firearm may carry a concealed firearm in Pennsylvania under the authority of a permit issued by another state that has a reciprocal carry agreement with Pennsylvania. For the reasons that follow, we affirm in part, vacate in part, and remand with instructions. ¹

The relevant facts of this case were set forth by the trial court as follows:

On September 2, 2008, [Appellant] Hobson McKown had an appointment at the offices of Magisterial District Justice Jonathan Grine for a court proceeding unrelated to this matter. (Transcript of Preliminary Hearing, p. 18). On that day, around one p.m., Justice Grine's office received a phone call from a man asking if the court provided a lock box for concealed guns. ( Id. at 6). According to Jennifer Carson, an employee of Justice Grine, [Appellant] showed up at the court offices around an hour after this phone call and took pictures of the door, affixed to which was a sign stating that no weapons are allowed in the building. ( Id. at 7).

[Appellant] returned to the court office around four p.m. for his appointment on an unrelated matter. ( Id. at 18). At that point [Appellant] encounteredRobert Bradley, an officer with the State College Police Department, who was called to the offices after the one o'clock phone call. ( Id. at 17). Officer Bradley met [Appellant] as he walked through the front door of the court offices. ( Id. at 18). Officer Bradley asked [Appellant] if he was armed, and [Appellant] did not answer at first. Id. Then [Appellant] asked Officer Bradley if there was a check station on premises. ( Id. at 19, 25). When Officer Bradley answered affirmatively, stating that he was checking for weapons, [Appellant] admitted he did have a gun in his pocket. Id. Officer Bradley retrieved the gun from [Appellant's] pocket. ( Id. at 20). [Appellant] told Officer Bradley that he ( [Appellant] ) had a New Hampshire concealed carry permit, and that it was in his car. ( Id. at 21). Officer Bradley did not attempt to retrieve the New Hampshire permit. ( Id. at 27). [Appellant] was arrested and charged with carrying a concealed weapon without a permit and carrying a weapon inside of a court facility. The courthouse did not have a check station for weapons at the time of this incident. Id. at 26.

Prior to the incident, [Appellant] had a Pennsylvania concealed carry license, issued by Centre County Sheriff Denny Nau on January 19, 2007. ( Id. at 29). Then on April 6, 2008, [Appellant] was involved in an incident for which he was cited criminally. Because of this citation, the Centre County Sheriff revoked [Appellant's] Pennsylvania license on April 14, 2008. A letter providing notice was mailed out the next day, April 15, 2008. ( Id. at 30). However, according to a certified mail receipt, [Appellant] did not receive the revocation notice until April 29, 2008. ( Id. at 31). Also on April 15, 2008, [Appellant] applied for a New Hampshire concealed carry permit, which he subsequently received on May 19, 2008. ( Id. at 55; Transcript of Habeas Corpus Hearing, p. 71). Under New Hampshire law, an out-of-state applicant for a concealed carry license must present a valid concealed carry license from his or her resident state. (Transcript of Preliminary Hearing, p. 52–53). After learning about the courthouse incident, and the revocation of [Appellant's] Pennsylvania license, New Hampshire officials stated they would take “action to suspend” [Appellant's] New Hampshire license. ( Id. at 43).

A preliminary hearing was held before Centre County Magisterial District Justice Leslie Dutchcot on September 10, 2008. The three witnesses at this hearing were Jennifer Carson, Officer Robert Bradley and Centre County Sheriff Denny Nau, who testified regarding his knowledge of Pennsylvania gun laws. Justice Dutchcot found that there was a prima facie case against [Appellant], and the case was sent to the Centre County Court of Common Pleas.

On November 17, 2008 [Appellant] made an omnibus motion petitioning for, among other things, a writ of habeas corpus regarding the findings from the preliminary hearing. Judge Bradley Lunsford denied the habeas petition, but allowed [Appellant] to make an interlocutory appeal, which he did on January 19, 2010. The Superior Court subsequently declined to consider the appeal. Judge Lunsford also granted a Motion in Limine by the Centre County District Attorney. This motion states that, for the purposes of trial, [Appellant] did not have a valid license to carry a concealed firearm on the date of the courthouse incident, September 2, 2008. Judge Lunsford intended this motion to exclude any evidence that [Appellant] had a valid New Hampshire license. ( SeeTranscript of Habeas Corpus Hearing, p. 77–78).

On June 23, 2010, [Appellant] moved to recuse the Centre County judges, as Magisterial District Justice Jonathan Grine, a potential witness at trial, is the son of Centre County President Judge David Grine. Judge Thomas Kistler granted the recusal motion and the case was transferred to this court, for consideration by Judge Milliron. On September 8, 2010 [Appellant] filed his Motion to Suppress Evidence and on September 24, 2010 [Appellant] filed his Motion to Declare the Statutes Unconstitutional, which is the subject of this opinion. Briefs from both sides followed, the last of which was filed on November 29, 2010.

Trial Court Opinion (Judge Milliron), 3/18/11, at 1–3.² Judge Milliron denied Appellant's motion to suppress and motion to declare statutes unconstitutional.

A jury trial was held on June 2, 2011. At the conclusion of the trial, Appellant was found guilty of firearms not to be carried without a license pursuant to 18 Pa.C.S.A. § 6106(a)(1). On September 1, 2011, the Honorable Thomas King Kistler sentenced Appellant to two years of probation. Appellant filed a timely post-sentence motion seeking to have his conviction graded as a misdemeanor as opposed to a felony. Appellant's motion was denied in an order filed on January 20, 2012. This timely appeal followed.

On appeal, Appellant raises ten issues for this Court's consideration:

1. Did the trial court commit an error of law in holding that

18 Pa.C.S. § 6109 requires a Pennsylvania resident to have a Pennsylvania license to carry a concealed firearm in Pennsylvania and thereby cannot carry under the authority of a permit issued by another state that has a reciprocal carry agreement with Pennsylvania?

2. Did the trial court err in not applying a strict scrutiny test to review the facial challenges to the constitutionality of 18 Pa.C.S. § 6106?

3. Did the trial court err in not finding that 18 Pa.C.S. § 6106 was violative of Article 1, Sections 1, 21, and 25 of the Pennsylvania Constitution?

4. Did the trial court err in finding that 18 Pa.C.S. § 6106 was not facially violative of the Second Amendment to the United States Constitution?

5. Did the trial court err finding that 18 Pa.C.S. § 913 was not violative of Article 1, Sections 1, 21, and 25 of the Pennsylvania Constitution?

6. Did the trial court err in prohibiting McKown from challenging the revocation of his Pennsylvania license as being void ab initio for a failure to comply with statutory revocation requirements and thereby violated McKown's due process rights?

7. Did the sentencing court abuse its discretion in finding that hearsay testimony alone about one incident was sufficient to show that McKown had a “character and reputation” of being dangerous and thereby was not eligible for the reduction of the section 6106(a) charge available to people that were “otherwise eligible” to be licensed?

8. Did the trial court err in denying McKown's request for return of property where the property was not contraband, evidence of a crime, or otherwise prohibited by law or bail conditions to be returned?

9. The trial court erred in summarily denying McKown's motion for modification of bail and not reviewing appropriate bail release criteria.

10. Did the trial court abuse its discretion in denying McKown's request to close the courtroom from the public for the sentencing proceeding?

Appellant's Brief at 4–5.³ We will address these issues in the order in which they were presented.⁴

Most of Appellant's arguments pertain to the Pennsylvania Uniform Firearms Act of 1995, 18 Pa.C.S.A. § 6101 et seq. (“the Act”). As noted by the Commonwealth,

The Act is “an exercise of the police power for the good order of society and the protection of the citizens,” Minich v. County of Jefferson, 919 A.2d 356, 361 (2007) citing Gardner v. Jenkins, 116 Pa.Cmwlth. 107, 541 A.2d 406,appeal denied,520 Pa. 620, 554 A.2d 511 (1988), whose provisions are designed to

provide support to law enforcement in the area of crime prevention and control without placing any undue or unnecessary burdens on law-abiding citizens with respect to the acquisition, possession, transfer, transportation or use of firearms, rifles, or shotguns for personal protection, hunting, target shooting, employment or any other lawful activity.

Act of June 13, 1995, P.L. 1024, No. 17 (Spec. Sess. No. 1), § 2 (H.B. 110). The General Assembly has made it clear that the Act

is not intended to discourage or restrict the private Ownership and use of firearms by law-abiding citizens for lawful...