                           [J-118-2019] [MO: Dougherty, J.]
                     IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                       :   No. 2 EAP 2019
                                                     :
                        Appellee                     :   Appeal from the Judgment of
                                                     :   Superior Court entered on
                                                     :   8/28/2018 at No. 1028 EDA 2017
                v.                                   :   affirming the Judgement of
                                                     :   Sentence entered on 2/2/2017 in the
                                                     :   Court of Common Pleas,
 BRAHIM SMITH,                                       :   Philadelphia County, Criminal
                                                     :   Division at No. CP-51-CR-0006922-
                        Appellant                    :   2014.
                                                     :
                                                         SUBMITTED: December 12, 2019


                                    DISSENTING OPINION


JUSTICE BAER                                                        DECIDED: July 21, 2020
       This case calls upon us to decide whether the fact that a person is subject to a

bench warrant is sufficient, in and of itself, to support a finding that he is a “fugitive from

justice” and, thus, a “person not to possess, use, control, sell, transfer or manufacture” a

firearm pursuant to Section 6105 of the Pennsylvania Uniform Firearms Act of 1995

(“UFA”), 18 Pa.C.S. § 6105 (a)(1), (c)(1). Answering this question in the affirmative, the

majority effectively creates a per se rule that any individual who is subject to an active

bench warrant is a fugitive from justice, irrespective of whether that individual had the

intent to avoid arrest or prosecution, or was even aware that the bench warrant existed.

       Respectfully, I cannot agree with the creation of this rigid rule. Instead, I would

hold that, while the existence of an active bench warrant may indicate that an individual

is a fugitive from justice, this fact, standing alone, is insufficient to establish that the person

is attempting to avoid the law. Here, because Brahim Smith (“Appellant”) was convicted
of violating Section 6105 merely on a stipulation that he had an active bench warrant, I,

unlike the majority, would reverse the Superior Court’s judgment, as well as vacate

Appellant’s sentence and conviction. Accordingly, I dissent.

       As noted above, pursuant to Section 6105, “[a] person who is a fugitive from

justice” may not “possess, use, control, sell, transfer or manufacture or obtain a license

to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.”

18 Pa.C.S. § 6105(a)(1), (c)(1). In this case, we granted discretionary review to decide

whether the mere issuance of a bench warrant is sufficient to determine that an individual

is a fugitive from justice. The UFA does not define the term fugitive from justice; thus, as

a threshold matter, we must discern what the Legislature intended in utilizing this term.

       In so doing, the majority opines “that the terms ‘fugitive’ and ‘fugitive from justice’

are synonymous for our present purposes and include someone who evades the law or

prosecution, and/or an individual in a criminal case who simply eludes law enforcement.”

Majority Opinion at 13. Concluding that “a bench warrant issues only when an individual

does not appear when required, and thus acts to elude or evade law enforcement or

prosecution[,]” the majority holds that “[i]t logically follows that an individual who evades

law enforcement such that a bench warrant is issued … is a fugitive as that term is

commonly defined.” Id.

       I agree with the majority’s definition of fugitive from justice as someone evading

lawful process. However, as noted supra, I disagree with its ultimate determination that

any individual with an outstanding warrant should be considered a fugitive as a matter of

law. Bench warrants may be issued in many instances, including, for example, one’s

failure to appear for jury duty, a child support hearing, or failure to pay a fine. It is more

than conceivable that an individual who is the subject of a bench warrant may be wholly

unaware of that fact and does not have any intent to evade law enforcement or the courts.




                           [J-118-2019] [MO: Dougherty, J.] - 2
       Likewise, a bench warrant could be issued inadvertently as the result of a

breakdown in the court system. In these types of circumstances, it obviously would be

inappropriate to find that the mere existence of a bench warrant is sufficient to label an

individual a fugitive and, thus, render that person ineligible to possess a firearm. 18

Pa.C.S. § 6105(c)(1). Accordingly, while I believe that the issuance of an active bench

warrant may present indicia that an individual is attempting to elude law enforcement, that

fact alone should not be dispositive in determining whether he is a fugitive from justice.

See, e.g., United States v. Rolle, 19 F. App’x 812, 814 (10th Cir. 2001) (unpublished)

(rejecting Rolle’s claim that the evidence was insufficient to convict him of “possession of

a firearm by a fugitive from justice because the government failed to prove that he left

Montana with the intent to avoid arrest or prosecution.” In Rolle, the Tenth Circuit held

that based on the government’s introduction of both                  “a certified copy of

a bench warrant issued by a Montana court … as a result of Rolle’s failure to appear on

a charge of driving under the influence” and “Rolle’s statement to the ATF officer that he

was aware of the outstanding warrant[,] … [t]he jury was entitled to draw reasonable

inferences from this evidence regarding Rolle’s subjective intent.”).1

       Turning to the facts of this case, the only evidence introduced by the

Commonwealth to prove that Appellant was a fugitive was a stipulation by the parties that

at the time of the offense Appellant was the subject of an active bench warrant. As

explained, this fact, in and of itself, proves little. Notwithstanding, the majority relies on

this stipulation alone to affirm Appellant’s conviction under Subsection 6105(c)(1), without

so much as a scintilla of evidence that Appellant was aware that he was the subject of an



1   While I recognize that Rolle is not precedential, I find this case to offer a helpful
illustration of the minimal evidence that needs to accompany the fact that a bench warrant
has been issued to determine if an individual is a fugitive from justice.


                           [J-118-2019] [MO: Dougherty, J.] - 3
outstanding warrant. In my view, the stipulation offered in this case is insufficient to

support Appellant’s conviction.

      Consequently, I would reverse the judgment of the Superior Court as well as

vacate Appellant’s sentence and conviction.

      Justice Donohue joins this dissenting opinion.




                          [J-118-2019] [MO: Dougherty, J.] - 4
