J-A15041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

JASON ANDERSON

                            Appellee                  No. 2764 EDA 2014


                  Appeal from the Order Entered May 22, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001233-2014


BEFORE: BOWES, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                FILED JULY 21, 2016

        The Commonwealth appeals1 from the May 22, 2014 order, dismissing

a portion of the charges filed against Appellee, Jason Anderson.          After

careful review, we reverse and remand for further proceedings.

        We summarize the procedural history of this case as follows.        On

February 12, 2014, the Commonwealth filed an information, charging

Appellee with one count each of impersonating a public servant, firearms not

to be carried without a license, and carrying firearms in public in

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
   Within its notice of appeal, the Commonwealth certified that the
suppression court’s order would terminate or substantially handicap its
prosecution. See Pa.R.A.P. 311(d) (permitting Commonwealth appeal from
an interlocutory order if it certifies that the order will terminate or
substantially handicap the prosecution).
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Philadelphia.2    On February 11, 2014, Appellee filed a pre-trial motion to

dismiss the impersonating a public servant charge, which he later withdrew.

On May 21, 2014, Appellee filed a motion to dismiss the two firearms

charges.      Therein, Appellee argued that the Commonwealth failed to

establish a prima facie case of either firearms offense because Appellee

possessed “a valid Act 235[3] certification … [and that Appellee] was coming

home from work” at the time of the incident in question. Appellee’s Motion

to Quash, 5/21/14, at ¶ 4. The trial court agreed, and on May 22, 2014, it

entered an order granting Appellee’s motion and dismissing the two firearms

counts.     On June 19, 2014, the Commonwealth filed a timely notice of

appeal.4

        On appeal, the Commonwealth presents one issue for our review.

              Did the [trial] court err in [dismissing] charges under
              the Uniform Firearms Act based on its erroneous
              conclusion that certification under “Act 235” is a
              substitute for a license to carry a firearm?

Commonwealth’s Brief at 5.



____________________________________________
2
    18 Pa.C.S.A. §§ 4912, 6106(a)(1), and 6108, respectively.
3
    22 P.S. §§ 41-50.1
4
  Contemporaneously with its notice of appeal, the Commonwealth filed a
concise statement of errors complained of on appeal, pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b), although the trial court
did not order it to do so. The trial court filed its Rule 1925(a) opinion on
September 24, 2014.



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     As this Court recently clarified, whether the Commonwealth presented

a prima facie case is a pure question of law, which this Court reviews de

novo, and our scope of review is plenary.     Commonwealth v. Dantzler,

135 A.3d 1109, 1112 (Pa. Super. 2016) (en banc). “To demonstrate that a

prima facie case exists, the Commonwealth must produce evidence of every

material element of the charged offense(s) as well as the defendant’s

complicity therein.”   Id.   We “examin[e] the evidence and reasonable

inferences   derived   therefrom   in   a   light   most   favorable   to   the

Commonwealth.” Id. at 1111.

     In this case, the Commonwealth charged Appellee with violations of

Sections 6106 and 6108, which provide in relevant part as follows.

             § 6106. Firearms not to be carried without a
             license

             (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.

                  (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.

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           (b) Exceptions.--The provisions of subsection (a)
           shall not apply to:

                                     …

                 (6) Agents, messengers and other employees
                 of common carriers, banks, or business firms,
                 whose duties require them to protect moneys,
                 valuables and other property in the discharge
                 of such duties.

                                     …

           § 6108. Carrying firearms on public streets or
           public property in Philadelphia

           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.A. §§ 6106, 6108. Therefore, in order to make out a prima facie

case for Section 6106, the Commonwealth must provide some evidence “(a)

that the weapon was a firearm, (b) that the firearm was unlicensed, and (c)

that where the firearm was concealed on or about the person, it was outside

his home or place of business.” Commonwealth v. Parker, 847 A.2d 745,

750 (Pa. Super. 2004) (citation omitted).    Likewise, for Section 6108, the

Commonwealth must show some evidence that Appellee carried a firearm on

a public street or property in the City of Philadelphia. 18 Pa.C.S.A. § 6108.

Moreover, our Supreme Court has held that the Commonwealth need not

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prove a lack of license for Section 6108. Commonwealth v. Bigelow, 399

A.2d 392, 396 (Pa. 1979).

      In this case, the Commonwealth argues that it presented evidence that

Appellee possessed a firearm, on a public street in Philadelphia, and that he

did not have a license to do so.       Commonwealth’s Brief at 6-8, 13-16.

Detective John Keen testified at the preliminary hearing that Appellee

informed him he possessed a “.40 caliber XDM” gun. N.T., 2/5/14, at 33.

Appellee also informed Detective Keen that he had this firearm at 100 North

Dewey    Street   in   Philadelphia.   Id.   at    27.    Furthermore,   Appellee

acknowledged that he did not have a license to carry the same and that he

was “presently going through the process to get [his] license to carry.” Id.

at 30.   The trial court acknowledged this testimony.        Trial Court Opinion,

9/24/14, at 1-3. Appellee does not dispute the existence of this testimony

either. Appellee’s Brief at 1. In our view, that is the end of the inquiry, as a

prima facie case has been established for both offenses.

      However, Appellee’s motion and the trial court’s opinion concentrated

on whether the trial court was correct in concluding that a certificate issued

under Act 235 is a license to carry or a substitution for a license to carry

within the meaning of the Crimes Code.            Briefly, Act 235, known as the

Lethal Weapons Training Act, was enacted by the General Assembly “to

provide for the education, training and certification of such privately

employed agents who, as an incidence to their employment, carry lethal


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weapons through a program administered or approved by the Commissioner

of the Pennsylvania State Police.” 22 P.S. § 42(b). Further, the Act requires

“[a]ll    privately   employed   agents    …    who,    as   an   incidence   to   their

employment, carry a lethal weapon shall be required to attend [a] program

established … in accordance with the requirements or regulations established

by the commissioner and upon satisfactory completion of such program,

shall be entitled to certification by the commissioner.” Id. § 44(b). Once

the person completes said program, he or she is issued a certificate as well

as “an appropriate wallet or billfold size copy of the certificate, which shall

include a photograph of the individual thereon.” Id. § 47(b). Each person

must “carry his wallet or billfold size certificate on his person as identification

during the time when he is on duty or going to and from duty and carrying a

lethal weapon.” Id. § 47(c). This Act 235 certificate lasts for a period of

five years. Id. § 47(d).

         In this case, Appellee has consistently argued that he did not violate

either Section 6106 or 6108 because he carries an Act 235 certificate.

Appellee’s Brief at 2-4. However, a review of Appellee’s brief reveals that he

presses this argument because he believes he is covered under the

exception at Section 6106(b)(6).          Id. at 4.    In his view, because he was

going “to and from duty” within the meaning of Act 235, the Commonwealth

could not make out a prima facie case under Sections 6106 and 6108. Id.

Our Supreme Court has instructed that the 16 exceptions listed at Section


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6106(b) of the Crimes Code “are affirmative defenses, which must be placed

in issue by the defendant, and which need not be negated by the prosecutor

in its case-in-chief.”   Commonwealth v. Lopez, 565 A.2d 437, 440 (Pa.

1989) (citations omitted); see also Commonwealth’s Brief at 15 n.4.

Appellee’s argument pertaining to Act 235 is structured around the premise

that he is covered by the affirmative defense at Section 6106(b)(6).     See

generally Appellee’s Brief at 4.       As an affirmative defense, Section

6106(b)(6) is purely a trial issue, thus, it is inappropriate and premature at

this juncture to address what, if any, interaction there is between Section

6106(b)(6) and Act 235. We therefore express no opinion on the question

at this time.

      The exclusive issue in this case was whether the Commonwealth

presented evidence that, if believed by the ultimate finder of fact, would

establish “every material element of the charged offense[s.]”      Dantzler,

supra at 1112.       Because it is not disputed that the Commonwealth

accomplished this task, the charges should not have been dismissed at this

juncture.

      Based on the foregoing, we conclude that the trial court erred when it

granted Appellee’s motion and dismissed the two firearms charges against

him. See id. Accordingly, the trial court’s May 22, 2014 order is reversed,

and the case is remanded for further proceedings, consistent with this

memorandum.


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     Order reversed. Case remanded. Jurisdiction relinquished.

     Judge Bowes joins the memorandum.

     Justice Fitzgerald files a concurring memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2016




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