J-A11038-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                               Appellant

                      v.

KOBINA A.A. ANDERSON
                                                       No. 235 EDA 2015


           Appeal from the Judgment of Sentence November 26, 2014
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0004005-2012

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 12, 2016

        The Commonwealth appeals from the judgment of sentence entered in

the Philadelphia Court of Common Pleas after the trial court granted

Appellee Kobina A.A. Anderson’s petition to reconsider its original sentence

for carrying a firearm without a license, graded as a third-degree felony.1

The Commonwealth claims the trial court erred in grading the offense as a

first-degree misdemeanor under 18 Pa.C.S. § 6106(a)(2) upon resentencing.

We vacate the judgment of sentence and remand for resentencing.

        The facts underlying Appellee’s conviction were set forth at a guilty

plea hearing.

           [O]n January 19th, 2012, about 4:20 in the afternoon,
           [Appellee] was driving a vehicle on the 2000 block of North

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 6106(a)(1).
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           Broad. That vehicle had very dark window tint and the
           rear lights were inoperable.

              [Appellee] was stopped. The police smelled a strong
           odor of marijuana in the vehicle. The police asked him if
           he had any drugs or contraband. He said he had some
           drugs in an Adidas vest which was in the backseat of the
           vehicle.

              While recovering that, the police also recovered a 40
           caliber Glock semi-automatic handgun which was
           underneath that vest. This gun was placed on a property
           receipt. It was operable. [Appellee] does not have a
           permit to carry a firearm.

N.T. Guilty Plea Hr’g, 6/12/14, at 14.

        Appellee was charged with firearms not to be carried without a license,

carrying firearms on public streets of Philadelphia,2 and possessing a small

amount of marijuana.3       Appellee filed a motion to suppress on April 23,

2012. Consideration of the suppression motion was continued for pending

appellate court decisions.      On April 30, 2014, the trial court denied

Appellee’s motion to suppress indicating that a Pennsylvania Supreme Court

decision had been issued.

        On June 12, 2014, Appellee proceeded to a guilty plea hearing.

Appellee completed a written colloquy indicating he would enter an open

guilty plea to the violation of Section 6106, graded as a third-degree felony.

Colloquy for Plea of Guilty / Nolo Contendere, 6/12/14, at 1; Written Guilty


2
    18 Pa.C.S. § 6108.
3
    35 P.S. § 780-113(a)(31).



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Plea Colloquy, 6/12/14, at 1. The Commonwealth agreed to withdraw the

remaining charges. Written Guilty Plea Colloquy at 1. During the in-court

colloquy, the trial court apprised Appellant of the felony grade of the offense

and the possible maximum sentence of seven years. N.T. Guilty Plea Hr’g at

4, 8.      The court accepted Appellee’s guilty plea, dismissed the remaining

charges by nolle prosequi, and deferred sentencing for the preparation of a

presentence investigation report.

        At the September 4, 2014 sentencing hearing, Appellee’s counsel

indicated the following.      Appellee was married, owned a home, and was

employed. N.T. Sentencing Hr’g, 9/4/14, at 6. Appellee had a prior record

score of zero, and this was his first adult arrest.    Id. at 7-8.    Appellee

legally purchased the firearm three months before his arrest and at the time

of his arrest, was returning from a gun range, but forgot to unload the

weapon.4      Id. at 9.   Appellee was planning to obtain a license to carry a

firearm, but was told he could not apply because of outstanding parking

tickets or fines. Id. Additionally, Appellee’s counsel indicated that Appellee

immigrated from Ghana when he was three years old and was not yet a

citizen.     Id. at 8.     Counsel acknowledged “there [were] some other

immigration issues . . . .”    Id. at 8, 11. The Commonwealth requested an

4
  Cf. 18 Pa.C.S. § 6106(b)(4) (creating exception to license requirement for
“persons engaged in target shooting with a firearm, if such persons are at or
are going to or from their places of assembly or target practice and if, while
going to or from their places of assembly or target practice, the firearm is
not loaded” (emphasis added)).



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eleven-and-a-half to twenty-three month sentence.        Id. at 14.     The trial

court sentenced Appellee to two years’ reporting probation. Id. at 15.

      On   September   15,   2014,   Appellee   timely   filed   a   petition   for

reconsideration of the sentence with the assistance of new counsel.5

Appellee requested that the trial court “vacate and reconsider his sentence

of the felony charge of 6106” because he “was otherwise eligible to obtain a

permit to carry and therefore the charge . . . should’ve been reduced to a

misdemeanor, M1.” Appellee’s Pet. for Recons. of Sentence, 9/15/14, at 1.

Appellee asserted that he is “a resident alien and the conviction for a felony

may affect his status in the United States.” Id.   The Commonwealth filed a

letter opposing the post-sentence motion and arguing that Appellee (1)

knowingly, intelligently, and voluntarily pleaded guilty to a felony offense,

(2) committed other criminal violations while unlawfully carrying the firearm,

and (3) presented no evidence that he was otherwise eligible to possess a

valid license to carry a firearm under 18 Pa.C.S. § 6109. Commonwealth’s

Opp’n. to Appellee’s Pet. for Recons. of Sentence, 10/16/14, at 2-4

(unpaginated).




5
  The tenth day after the September 4, 2014 sentencing hearing fell on a
Sunday. Therefore, Appellee had until the following Monday, September 15,
2014, to file a post-sentence motion. See 1 Pa.C.S. § 1908 (establishing
rules for computation of time); Pa.R.Crim.P. 720(A)(1) (stating general rule
that a “written post-sentence motion shall be filed no later than 10 days
after imposition of sentence”).



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      The trial court held arguments on Appellee’s petition on November 26,

2014. At the conclusion of the arguments, the court stated, “I’ll vacate the

guilty verdict of VUFA 6106 as a felony of the [third] degree, and will enter a

verdict of VUFA 6106 as a misdemeanor of the first degree.” N.T. Mot. Hr’g,

11/26/14, at 16. The court immediately resentenced Appellee to no further

penalty.6 Id.

      The Commonwealth timely filed a motion for reconsideration of

sentence on December 4, 2014.         The Commonwealth asserted that the

conviction was properly graded as a third-degree felony in light of Appellee’s

guilty plea and because Appellee failed to establish the factors for a

reduction of the grade of the offense.          The Commonwealth filed a

supplemental motion for reconsideration of sentence on December 22, 2014,

asserting the misdemeanor grading of the offense deprived it of the benefits

of the plea agreement and seeking withdrawal of the guilty plea and

reinstatement of all charges.

      On January 15, 2015, forty-two days after the Commonwealth filed its

original motion to reconsider, the clerk of the court erroneously issued an

order indicating that Appellee’s post-sentence motions were denied by

operation of law. The Commonwealth filed a notice of appeal and Pa.R.A.P.

1925(b) statement on the following day. On April 21, 2015, the clerk of the

6
 Although the court’s intent was to resentence under Section 6106(a)(2), its
order and the docket reflect that the sentence was imposed for a violation of
Section 6105. See Trial Ct. Op., 5/25/15, at 3 n.2.



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court issued an order denying the Commonwealth’s post-sentence motion by

operation of law.7

      The trial court, on May 26, 2015, filed a Rule 1925(a) opinion

suggesting we affirm the amended sentence.               The court, in relevant part,

determined    that   “[i]n   this   case,   no   other    offense,   either   prior   or

contemporaneous, was established by a conviction.”8 Trial Ct. Op., 5/26/15,

at 5. The court further concluded that “the legislatively enacted mitigating

factor ‘otherwise eligible’ under [Section 6106(a)(2)] required that the

offense be graded as a[ first-degree misdemeanor].” Id.

      The Commonwealth presents the following question for review:



7
  Although the Commonwealth took the appeal from the January 15, 2015,
“order” and did not appeal the April 21, 2015 order denying its post-
sentence motions, we regard as done that which should have been done and
will not quash the Commonwealth’s premature appeal. See generally
Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514-15
(Pa. Super. 1995) (en banc). Moreover, we observe that (1) the trial court
granted Appellee’s petition to reconsider the original sentence over the
Commonwealth’s objections, (2) the January 15, 2015 order apparently
engendered confusion, and (3) an order disposing of the Commonwealth’s
post sentence motion was eventually docketed. Therefore, the holding and
rationale of Commonwealth v. Borrero, 692 A.2d 158 (Pa. Super. 1997),
do not require us to quash this appeal. See Borrero, 692 A.2d at 160
(quashing appeal filed by the defendant after he filed timely post-sentence
motions but prematurely filed notice of appeal before the court ruled on the
motion and no appropriate order was docketed at the time the appeal was
considered).
8
  The trial court also concluded that the Commonwealth’s claim that it was
deprived of the benefit of the plea agreement was waived because it was
raised in an untimely supplemental motion for reconsideration. Trial Ct. Op.
at 2 n.1. The Commonwealth has not pursued that argument on appeal.



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        Where [Appellee] pleaded guilty and was sentenced under
        § 6106 of the Uniform Firearms Act as a felony of the third
        degree, whether the lower court subsequently erred by (as
        the docket states) changing and replacing the offense
        under § 6106 with § 6105 graded as a first degree
        misdemeanor; or by (as indicated by the court) changing
        the § 6106 offense to a first degree misdemeanor?

Commonwealth’s Brief at 4.

     The Commonwealth asserts Appellee was not entitled to the first-

degree misdemeanor grading under Section 6106(a)(2) for firearm not to be

carried without a license.   First, the Commonwealth argues that Appellee

failed to produce evidence or prove he was otherwise eligible to possess a

valid license to carry a firearm.   Id. at 10.   Second, it claims the record

established that Appellee committed other criminal violations while carrying

the firearm without a license. Id. at 13. The Commonwealth contends the

trial court erred in concluding that only a conviction for another criminal

violation will preclude a reduction of the grade under Section 6106. Id. at

12-13. We conclude that relief is due.

     The Commonwealth’s arguments raise questions of law over which our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Mendozajr, 71 A.3d 1023, 1027 (Pa. Super. 2013).

     Section 6106(a) states:

        (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,


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            without a valid and lawfully issued license under this
            chapter commits a felony of the third degree.

               (2) A person who is otherwise eligible to possess a
            valid license under this chapter but 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 and has not committed any
            other criminal violation commits a misdemeanor of
            the first degree.

18 Pa.C.S. § 6106(a)(1)-(2) (emphasis added).

      In Commonwealth v. Bavusa, 832 A.2d 1042 (Pa. 2003), the

Pennsylvania Supreme Court held that Section 6106(a)(1) defines an offense

that is presumptively graded as a felony of the third degree, while Section

6106(a)(2) constitutes a grading/sentencing provision.     Id. at 1056.    The

Court concluded that the issue of “[w]hether the offense should be graded

as a felony or a misdemeanor is a matter to be decided at sentencing.” Id.

      In light of Bavusa, a reduction in the grade of the Section 6106

offense from a presumptive felony to a misdemeanor requires consideration

of two prongs, both of which must be met.       See id.   First, the defendant

“must be otherwise eligible to possess a valid license under this chapter . . .

.”    See   18   Pa.C.S.   §§   6106(a)(2),   6109(e)(1)(i)-(xiv);   see   also

Commonwealth v. Coto, 932 A.2d 933, 940 (Pa. Super. 2007).                 The

defendant bears the burdens of production and persuasion regarding his

license eligibility. Coto, 932 A.2d at 940. Second, the defendant must not




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have “committed any other criminal violation . . . .”     See 18 Pa.C.S. §

6106(a)(2); Bavusa, 832 A.2d at 1056. We focus on the second prong.

     Although the decisional law establishes that a “contemporaneous

conviction” is sufficient to preclude application of Section 6106(a)(2), no

decision has suggested that a conviction is necessary to negate that second

prong.    See Bavusa, 832 A.2d at 1056; accord Commonwealth v.

Scarborough, 89 A.3d 679, 685 (Pa. Super.) (contemporaneous conviction

for a Section 6108 offense prevents the misdemeanor grading of a Section

6106 offense), appeal denied, 102 A.3d 985 (Pa. 2014); Mendozajr, 71

A.3d at 1028 (same); Commonwealth v. Derr, 841 A.2d 558, 561-62 (Pa.

Super. 2004) (contemporaneous conviction for driving under the influence

precluded the misdemeanor grading of Section 6106 offense). Returning to

the statute, we note that Section 6106 plainly speaks to “committing any

other criminal violation,” and not a conviction for such acts. See 18 Pa.C.S.

§ 6106(a)(2). Were Section 6106(a)(1) viewed as increasing the maximum

possible sentence based on the grade of the offense, we would find more

compelling the argument that a contemporaneous conviction, or at least a

finding beyond a reasonable doubt, was necessary to establish the felony

grade of the offense.      Cf. Bavusa, 832 A.2d at 1061 (Saylor, J.,

concurring); see generally Apprendi v. New Jersey, 530 U.S. 466

(2000).   However, Bavusa drew a narrow, but clear, theoretical line

between Section 6106(a)(1) and (2), and separated Section 6106(a)(2) as a



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provision   for   sentencing   mitigation.     We   therefore   agree   with   the

Commonwealth that a contemporaneous conviction is not necessary to

preclude mitigation under Section 6106(a)(2).

      Having concluded a separate conviction is not necessary to bar

application of Section 6106(a)(2), we could remand this matter for more

detailed findings of fact and credibility on the second prong of Section

6106(a)(2). However, because the Uniform Firearms Act applies with special

force in Philadelphia, a review of the instant record convinces us that a

remand is not necessary for further proceedings on this issue.

      Section 6108 of the Crimes Code defines the offense of carrying a

firearm on the public streets of Philadelphia as follows:

         No person shall carry a firearm, rifle or shotgun at any
         time upon the public streets or upon any public property in
         a city of the first class unless:

            (1) such person is licensed to carry a firearm; or

            (2) such person is exempt from licensing under section
            6106(b) of this title (relating to firearms not to be
            carried without a license).

18 Pa.C.S. § 6108. A Section 6108 offense is graded as a misdemeanor of

the first degree. See id. §§ 6108, 6119.

      In Bavusa, the Court described the interaction between Section 6106

and 6108.

         [W]hile the Section 6108 offense is based upon the same
         incident and general conduct as the Section 6106 offense,
         the statutes contain distinct and different material
         elements with respect to concealment and the geographic


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         location of the conduct: i.e., concealment is an element of
         Section 6106(a) but not of Section 6108, while location in
         Philadelphia is an element of Section 6108 but not of
         Section 6106(a).

Bavusa, 832 A.2d at 1055-56.

      Justice Nigro, who dissented in Bavusa, suggested:

         Based on the majority’s conclusions, it would seem that a
         violation of Section 6108 in Philadelphia simultaneously
         establishes Section 6106 felony gradation, thereby
         precluding defendants who commit a Section 6106 offense
         within Philadelphia from misdemeanor gradation, although
         such conduct would constitute a misdemeanor everywhere
         else in the state. Thus, as a practical matter, the majority
         creates a disparate rule whereby violations of Section 6106
         constitute a misdemeanor of the first degree, unless the
         violation occurs in Philadelphia, in which case the offense
         becomes a felony in the third degree.

Id. at 1063 n.3 (Nigro, J., dissenting).

      Subsequently, in Scarborough, this Court rejected a defendant’s

claim that “his violation under Section 6106 would be a first degree

misdemeanor     if   committed   anywhere     else   in   Pennsylvania   except

Philadelphia, and that such a geographical distinction violates his due

process and equal protection rights.” Scarborough, 89 A.3d at 685. The

Scarborough Court engaged in a rational basis review, and concluded that

         the interplay of Sections 6106 and 6108, whereby a person
         who carries a concealed weapon in Philadelphia will always
         face enhanced sentencing exposure on a third degree
         felony, also addresses a legitimate state interest in curbing
         gun violence in Philadelphia. We find that the Legislature
         could legitimately amend Section 6106 to include carrying
         a concealed weapon in a city of the first class as a
         disqualifier for grading as a first degree misdemeanor.



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           The interplay of Sections       6106    and   6108   simply
           accomplishes the same.

Id. at 687.

      Instantly, Appellee pleaded guilty to a Section 6106 offense. Although

the Section 6108 charge was dismissed by nolle prosequi, the same facts

underlying his plea to Section 6106 establish that he committed a Section

6108 offense. Specifically, he was driving on a public street in Philadelphia—

i.e. the 2000 block of North Broad Street—and was carrying a loaded

firearm.    See N.T. Guilty Plea Hr’g     at 14.   Under these circumstances,

precedents constrain us to conclude that the trial court erred in its

application of Section 6106(a)(2).

      Lastly, we note that the trial court was also convinced that a sentence

of no further penalty was appropriate. This Court has no basis to consider

the discretionary aspects of that sentence. Therefore, we conclude only that

Appellee’s Section 6106 must be graded as a third-degree felony and

remand this matter for resentencing.

      Judgment of sentence vacated.           Case remanded.       Jurisdiction

relinquished.

      Shogan, J. Concurs in the Result.

      Mundy, J. Concurs in the Result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/12/2016




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