Commonwealth v. Montgomery, 251 EDA 2017

• Court: Superior Court of Pennsylvania
• Writing for the Court: OPINION BY PANELLA, J.
• Citation: 192 A.3d 1198
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Darren MONTGOMERY
• Docket Number: No. 251 EDA 2017,251 EDA 2017
• Decision Date: 05 July 2018

192 A.3d 1198

COMMONWEALTH of Pennsylvania, Appellant
v.
Darren MONTGOMERY

No. 251 EDA 2017

Superior Court of Pennsylvania.

Argued December 5, 2017
Filed July 05, 2018
Reargument Denied September 6, 2018

Matthew M. LaMonaca, Assistant District Attorney, Philadelphia for Commonwealth, appellant.

Victor E. Rauch, Public Defender, Philadelphia, for appellee.

BEFORE: PANELLA, J., OLSON, J., and STEVENS,^* P.J.E.

OPINION BY PANELLA, J.

The Commonwealth of Pennsylvania appeals¹ from the order affirming the dismissal of the charge of carrying a firearm without a license against Darren Montgomery and denying the Commonwealth permission to re-file the charge. The Commonwealth claims it presented sufficient evidence that Montgomery had concealed a firearm on his person for the charge to be bound over for trial. We agree, and thus reverse and remand.

The Commonwealth charged Montgomery with violations of 18 Pa.C.S.A. § 6106, carrying a firearm without a license, and § 6108, carrying a firearm on public streets in Philadelphia. After a preliminary hearing, the municipal court found the Commonwealth had not presented a prima facie case of violating § 6106. The court bound the § 6108 charge over for trial.

The Commonwealth re-filed the complaint to reinstate the § 6106 charge. Trial was postponed and a hearing was held on the re-filed complaint.² The Commonwealth

192 A.3d 1200

did not present new testimony, but rested on the testimony presented at the previous hearing. The court once again dismissed the § 6106 charge, and the Commonwealth filed this timely appeal.

"At 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." Commonwealth v. Karetny , 583 Pa. 514, 880 A.2d 505, 513–514 (2005) (citation omitted). The Commonwealth establishes a prima facie case when it presents evidence that the defendant violated a criminal statute. See id ., at 514.

We review an order quashing a criminal charge for an error of law. See id ., at 513. As such, we take the evidence presented by the Commonwealth as true. See id ., at 514. We merely determine whether the facts presented by the Commonwealth warrant a trial on the merits of the charge. See id .

This case turns on the issue of whether a firearm tucked into a waistband so that its handle is visible is "concealed." Section 6106 prohibits an unlicensed person from carrying a firearm "concealed on or about his person, except in his place of abode or fixed place of business." The Commonwealth must establish that every element of this crime, including concealment, was done intentionally, knowingly, or recklessly. See Commonwealth v. Scott , 176 A.3d 283, 291 (Pa. Super. 2017).

At the preliminary hearing, the Commonwealth presented the testimony of police officer Robert McCuen. Officer McCuen testified that he saw Montgomery "messing with" what he believed to "the handle of a gun in his waistband." N.T., Preliminary Hearing, 8/15/16, at 5. He could not see the entire gun, just the handle. See id., at 7.

Montgomery walked into a nearby store. See id ., at 6. Officer McCuen stopped his car in front of the store. See id . And he watched as Montgomery walked back out of the store. See id . After spotting Officer McCuen, Montgomery turned around and walked back into the store. See id . Officer McCuen followed Montgomery into the store and stopped him. See id .

Officer McCuen did not find a firearm on Montgomery, but found one several feet away on top of a rack of potatoes. See id ., at 7. The...