Commonwealth v. Montgomery

Decision Date21 July 2020
Docket NumberNo. 4 EAP 2019,4 EAP 2019
Citation234 A.3d 523
Parties COMMONWEALTH of Pennsylvania, Appellee v. Darren MONTGOMERY, Appellant
CourtPennsylvania Supreme Court


This appeal presents the issue of whether the Superior Court erred by holding that a handgun partially tucked into one's waistband, leaving the weapon's handle visible, was "concealed" as a matter of law for purposes of Section 6106 of the Uniform Firearm's Act, 18 Pa.C.S. § 6106, which prohibits carrying a concealed firearm without a license. We respectfully reject the Superior Court's holding that any level of concealment of a firearm demonstrates concealment as a matter of law, and reaffirm the well-settled principal that whether a defendant concealed a firearm pursuant to Section 6106 is an extremely fact-intensive question for a jury to determine based upon a consideration of the totality of the circumstances.

Nevertheless, for the reasons set forth herein, we hold that a review of the totality of the circumstances establishes that there was sufficient evidence to demonstrate a prima facie case of concealment under Section 6106. Accordingly, we affirm the Superior Court's judgment, which reversed the trial court's order dismissing the Section 6106 charge and remanding for further proceedings.

I. Background

The record establishes that on May 21, 2016, Officer Robert McCuen was on patrol in the area of 1048 East Chelten Avenue in Philadelphia.1 Officer McCuen observed Appellant "messing with the handle of a gun in his waistband on the 1100 block of Chelten Avenue." N.T., 8/15/2016, at 5.

Notably, Officer McCuen believed from his thirteen years of experience as a police officer that the object protruding from Appellant's waistband was a brown handle of a handgun. Appellant then entered a small nearby store, causing Officer McCuen and his partner to park in front of the establishment. When Appellant exited the store shortly thereafter, he looked in the direction of the officers and then turned around and went back into the store.

Officer McCuen followed Appellant into the store, which had counters in the front presumably for checkout, a deli in the back with a counter between the employee and the customers, and only two aisles. The officer observed a firearm in the back of the store on the top of a rack of potatoes, a couple of feet away from where Appellant was standing. At that time, the only other individuals in the store were a cook on the other side of the deli counter in the back, and two employees behind the front counter with one customer. Upon finding the gun, Officer McCuen stopped Appellant in the middle of the store and asked him if the firearm belonged to him. Appellant replied that it did not.

Appellant was thereafter charged with one count each of carrying a firearm on public streets in Philadelphia, 18 Pa.C.S. § 6108, and carrying a firearm without a license, 18 Pa.C.S. § 6106, the charge at issue here.

Section 6106, entitled "Firearms not to be carried without a license," provides in relevant part:

(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.

18 Pa.C.S. § 6106(a)(1).

A preliminary hearing was held in the Municipal Court of Philadelphia County ("trial court") on August 15, 2016. Based on the evidence presented as set forth above, the trial court dismissed the Section 6106 charge for lack of evidence.2 On August 23, 2016, the Commonwealth refiled the complaint alleging a Section 6106 violation.3 At the December 7, 2016 hearing on the refiled complaint, the trial court heard argument from the parties. No new testimony was presented, as the parties relied upon the evidence presented at the initial preliminary hearing. The trial court again dismissed the Section 6106 charge.

In its opinion in support of dismissal, the trial court held that the Commonwealth failed to present sufficient evidence to demonstrate a prima facie case of carrying a firearm without a license in violation of Section 6106. Initially, the court found that to establish the offense of carrying a firearm without a license, the Commonwealth must prove that: (a) the weapon was a firearm; (b) the firearm was unlicensed; and (c) the firearm was concealed on or about the person outside his home or place of business. Trial Court Opinion, 3/6/2017, at 3 (citing Commonwealth v. Parker , 847 A.2d 745 (Pa. Super. 2004) ). The trial court further acknowledged that "whether a defendant concealed a firearm on his person is a question for the fact-finder, and is extremely fact intensive, as well as determined on a case-by-case basis." Id. (citing Commonwealth v. Nickol , 476 Pa. 75, 381 A.2d 873 (1977) ).

The trial court examined decisions where a court had found sufficient evidence for a jury to conclude that the defendant unlawfully concealed a firearm. Trial Court Opinion, 3/6/2017, at 3 (citing Nickol, supra (finding sufficient evidence to give rise to a permissible inference that the defendant concealed a firearm where a witness testified that she saw no weapon in the defendant's possession prior to his entering the supermarket or after the defendant returned to her car, while other testimony established that the defendant fired a weapon, fatally shooting a supermarket employee); Commonwealth v. Scott , 496 Pa. 188, 436 A.2d 607 (1981) (" Scott Pa. ")4 (finding sufficient evidence to sustain a conviction of Section 6106 where there was conflicting testimony as to whether the defendant pulled something from his waistband that resembled a gun before shooting the victim or made no attempt to conceal the weapon because questions of credibility were for the trier of fact to resolve).

The trial court reasoned that the instant case was distinguishable from those cases because "at no time was an actual gun seen or determined to be in [Appellant's] hand; rather, the officer saw what he believed to be the handle of a gun in [Appellant's] waistband; later, a gun was seen on top of some merchandise in the store, not on [Appellant's] person." Trial Court Opinion, 3/6/2017, at 4 (emphasis in original). The court also cited Commonwealth v. Williams , 237 Pa.Super. 91, 346 A.2d 308 (1975), for the proposition that there was insufficient evidence of concealment where a witness observed the defendant firing a handgun at a passing automobile in Philadelphia, spinning the gun and tossing it from hand to hand, and placing the gun in his belt; yet, no gun was found on the defendant when he was subsequently arrested and searched.5

Accordingly, the trial court dismissed the Section 6106 charge based upon the lack of evidence establishing that the item purportedly concealed in Appellant's waistband was, in fact, a firearm. See Trial Court Opinion, 3/6/2017, at 6 (opining that "there is no evidence that, whatever [Appellant] had in his possession or in his waistband, if anything, was a gun that [Appellant] was attempting to conceal when he was first observed by Officer McCuen"). Emphasizing the lack of evidence that Appellant ever brandished a firearm, which could lead to an inference that the firearm was, at some point, concealed, the court concluded that the Commonwealth could not establish a prima facie case that Appellant concealed a firearm on his person.

The Superior Court reversed. Commonwealth v. Montgomery , 192 A.3d 1198 (Pa. Super. 2018).6 The intermediate appellate court first observed that "[a]t the preliminary hearing stage of a criminal prosecution, the Commonwealth need not prove the defendant's guilt beyond a reasonable doubt, but rather, must merely put forth sufficient evidence to establish a prima facie case of guilt." Id. at 1200 (quoting Commonwealth v. Karetny , 583 Pa. 514, 880 A.2d 505, 513-14 (2005) ). The court reasoned that "[t]he Commonwealth establishes a prima facie case when it presents evidence that the defendant violated a criminal statute. Id. (citing Karetny , 880 A.2d at 514 ). In determining whether the Commonwealth presented facts that warrant a trial on the merits of the Section 6106 charge, the Superior Court narrowly viewed the issue as "whether a firearm tucked into a waistband so that its handle is visible is ‘concealed.’ " Id.

The Superior Court analyzed three cases to resolve the appeal. First, it examined that court's decision in Commonwealth v. Williams, supra , cited by the trial court, which held that there was no evidence of any attempt to conceal a firearm where the defendant was seen firing a gun at a passing car, walking thereafter with the gun at his side, spinning and tossing the gun from one hand to the other, and then placing the gun in his belt. Curiously, the intermediate appellate court reasoned that Williams appeared to be in conflict with this Court's decision in Scott Pa. , supra , which it interpreted as holding that there was sufficient evidence to sustain a conviction of Section 6106 where two witnesses testified that they observed the defendant pull something from his waistband that resembled a gun, notwithstanding that the defendant testified that he made no attempt to conceal the weapon.

The intermediate appellate court concluded that its decision in Scott Pa. Super., see n.4, supra , "reveals a possible distinction" between the cases of Williams and Scott Pa . Id. at 1201. In Scott Pa. Super. , a police officer was conducting a pat-down of the defendant in response to a report of domestic violence and discovered a handgun in its holster located under the defendant's t-shirt. The defendant contended that he had not intentionally concealed the firearm on his person as his t-shirt had initially been tucked into his pants, revealing the gun, but that the t-shirt had become untucked. On appeal from his Section 6106 conviction,...

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