J-A31002-17


                                   2018 PA Super 198

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    DARREN MONTGOMERY                          :   No. 251 EDA 2017

                    Appeal from the Order December 7, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): MC-51-CR-0014901-2016


BEFORE:      PANELLA, J., OLSON, J., and STEVENS, P.J.E.

OPINION BY PANELLA, J.                                    FILED JULY 05, 2018

        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

____________________________________________



    Former Justice specially assigned to the Superior Court.

1
 In its notice of appeal, the Commonwealth certified that the dismissal of the
carrying a firearm without a license charge substantially handicaps its
prosecution. We therefore have jurisdiction over this appeal. See Pa.R.A.P.
311(d).
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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 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, 880 A.2d 505, 513-

514 (Pa. 2005) (citation omitted). The Commonwealth establishes a prima



____________________________________________


2
  Under the Rules of Criminal Procedure, the Commonwealth had the power
to re-file the complaint “with the issuing authority who dismissed” the § 6106
charge. See Pa.R.Crim.P. 544(A); Pa.R.Crim.P. 1003(E)(1) (providing that
preliminary hearings in Philadelphia municipal court be conducted, with
exceptions not here relevant, in conformance with Pa.R.Crim.P. 544). The
Commonwealth had the option of filing a motion requesting any subsequent
preliminary hearing be held in front of a different issuing authority. See
Pa.R.Crim.P. 544(B).

  After the complaint was re-filed, this case retained its municipal court docket
number, and the hearing notices were captioned in the municipal court. There
is no indication the Commonwealth filed a motion requesting the hearing be
held by a different issuing authority. However, a judge of the Philadelphia
Court of Common Pleas held the second hearing. No party has objected to this
procedure.

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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,




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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 only other

person in the small store was a cook on the other side of a counter from the

potatoes. See id., at 7-8.

      In quashing the § 6106 charge, the court relied upon Commonwealth

v. Williams, 346 A.2d 308 (Pa. Super. 1975). There, Williams was seen firing

a gun at a passing car. See id., at 309. After the car turned a corner, Williams

walked towards a witness with the gun at his side. See id. As he approached

the witness, he “began to spin the gun and toss it from one hand to the other.”

Id. As he walked away, Williams “stuck the gun in his belt.” Id.

      The Williams court held “there is no evidence whatsoever as to any

attempt by appellant to conceal any weapon.” Id., at 310. As a result, the

evidence was insufficient to sustain a conviction for a violation of § 6106. See

id.

      By contrast, the Commonwealth argues this case is controlled by our

Supreme Court’s subsequent decision in Commonwealth v. Scott, 436 A.2d

607 (Pa. 1981) (“Scott I”). There, two witnesses “saw appellant pull from his

waistband something that looked like a gun.” Id., at 608. The Supreme Court

held “the testimony of the two Commonwealth witnesses … is sufficient to

sustain the jury’s conclusion that appellant had, in fact, concealed the


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weapon.” Id., at 609. The Court, in reaching its decision, did not reference

Williams.

      While Scott I and Williams appear to be in conflict, we conclude this

Court’s recent decision, also captioned Commonwealth v. Scott, 176 A.3d

283 (Pa. Super. 2017) (“Scott II”), reveals a possible distinction. There, the

appellant argued he had not intentionally concealed a firearm on his person.

See id., at 290. This Court held that § 6106 was not a strict liability statute,

and thus, the Commonwealth was required to prove the defendant had acted

“intentionally, knowingly or recklessly with respect to each element” of the

crime. Id., at 291 (internal quotation marks and citations omitted).

      Viewed in the context provided by Scott II, application of § 6106 is

straightforward. Pursuant to Scott I, any concealment, even partial, is

sufficient to satisfy the concealment element of the crime. However, pursuant

to Scott II, this does not constitute the entirety of the Commonwealth’s

burden; it must still prove the concealment was, at the very least, reckless.

Thus, in Williams, the evidence was insufficient as the appellant visibly

brandished and fired the gun in front of witnesses. There was no evidence his

placement of the gun in his waistband was anything more than a negligently

convenient carrying method. To the extent language in Williams is contrary

to this interpretation, we recognize it was implicitly overruled by Scott I.

      Turning to the application of this framework to this case, it is clear,

under Scott I, the Commonwealth presented sufficient evidence of


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concealment—the firearm was tucked into Montgomery’s waistband with only

the handle visible.

      Also, the evidence is sufficient to establish Montgomery knowingly

concealed it there. Officer McCuen testified that Montgomery turned around

when he saw a police officer, and walked into a nearby store. When Officer

McCuen caught up to Montgomery, the gun had been placed on a nearby rack.

This evidence is sufficient to allow a finder of fact to conclude Montgomery

was attempting to conceal the firearm from observation.

      As a result, we conclude the court erred in quashing the § 6106 charge.

We therefore reverse and remand for further proceedings.

      Order reversed. Jurisdiction relinquished.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/5/2018




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