J-S44014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 MARVIN RAVENELL,                        :
                                         :
                     Appellant           :   No. 3501 EDA 2017

         Appeal from the Judgment of Sentence September 11, 2017
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0008357-2016


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                        FILED AUGUST 17, 2018

      Marvin Ravenell appeals from the judgment of sentence, entered in the

Court of Common Pleas of Montgomery County, after a jury found him guilty

of firearms not to be carried without a license. 18 Pa.C.S.A. § 6106(a). After

review, we affirm.

      On October 18, 2016, police responded to a call from Ravenell’s co-

worker, who alleged Ravenell threatened to shoot him over a quarrel. At the

time, Ravenell worked as a mechanic at Firestone Complete Auto Care

(“Firestone”), in Wynnewood, Pennsylvania. When police responded, Ravenell

denied having a firearm on his person. After further questioning, Ravenell

admitted that he had concealed a Smith and Wesson 9MM handgun on his

person while working at Firestone that day. The handgun was not registered

or licensed to Ravenell.
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      Police arrested Ravenell and charged him with one count of firearms not

to be carried without a license, 18 Pa.C.S.A. § 6106(a), and one count of

terroristic threats. 18 Pa.C.S.A. § 2706. A jury found Ravenell guilty only of

firearms not to be carried without a license, and on September 11, 2017, the

trial court sentenced him to two years’ probation. On September 21, 2017,

Ravenell filed a post-sentence motion challenging the constitutionality of

section 6106(a), which the trial court denied. On October 25, 2017, Ravenell

filed a timely notice of appeal. Both Ravenell and the trial court have complied

with Pa.R.A.P. 1925. On appeal, Ravenell raises the following issues for our

review:

      1. Whether [section 6106(a)] is unconstitutional and void for
         vagueness, as the meaning of the language in the statute,
         “fixed place of business,” is not clearly understood by people
         of ordinary intelligence, and therefore the public is not given
         fair notice as to whether or not a permit to carry is required to
         possess a firearm at their place of employment?

      2. Whether the trial court erred and committed an abuse of
         discretion by denying [Ravenell’s] post-sentence motion for
         judgment of acquittal, due to the unconstitutionality of [section
         6106(a)]?

Brief of Appellant, at 5.

      Ravenell first claims that section 6106(a) is unconstitutional and void

for vagueness because people of ordinary intelligence cannot understand the

statutory language therein, i.e., the clause “except in his . . . fixed place of

business.” 18 Pa.C.S.A. § 6106(a). Relatedly, Ravenell argues the trial court

erred in denying his post-sentence motion for acquittal because section



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6106(a) is unconstitutional. Ravenell frames his challenge to section 6106(a)

as “a good faith request to reevaluate whether the majority holding from this

Court 24 years ago in [Commonwealth v. Carr, 483 A.2d 542 (Pa. Super.

1984),] is still good law.” Brief of Appellant, at 10. After review, we find

Ravenell’s claims are meritless.

      Initially, we note that challenges to “[t]he constitutionality of a statute

can be waived.” Commonwealth v. Watley, 81 A.3d 108, 117 (Pa. Super.

2013).    “An appellate court should not address constitutional issues

unnecessarily or when they are not properly presented and preserved in the

trial court for our appellate review.”   Commonwealth v. Berryman, 649

A.2d 961, 973 (Pa. Super. 1994); see Pa.R.A.P. 302(a) (“Issues not raised in

the [trial] court are waived and cannot be raised for the first time on appeal.”).

“The Pennsylvania Supreme Court has clearly held that constitutional issues .

. . are waived if not properly raised in the trial court.” Id. Furthermore, this

court may not raise a constitutional issue sua sponte. Id.

      Instantly, Ravenell first challenged the constitutionality of section

6106(a) in a post-sentence motion. Ravenell did not raise this issue prior to

the conclusion of his trial or prior to sentencing, and thus, his motion is

untimely. See Commonwealth v. Danko, 421 A.2d 1165, 1167 (Pa. Super.

1980) (defendant waived argument that criminal statute was unconstitutional

where defendant failed to raise any specific constitutional challenge to the

statute at any time during trial, even though defendant had clear opportunity

to do so). Therefore, Ravenell has waived this claim.

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      In any event, Ravenell’s challenge to section 6106(a) is meritless. The

question raised by Ravenell involves constitutional challenges, and thus our

standard of review of is plenary. Commonwealth v. McCoy, 895 A.2d 18,

24 (Pa. Super. 2016).

      A statute is vague if it fails to give people of ordinary intelligence
      fair notice as to what conduct is forbidden, or if they cannot gauge
      their future, contemplated conduct, or if it encourages arbitrary or
      discriminatory enforcement. A vague law is one whose terms
      necessarily require people to guess at its meaning. If a law is
      deficient – vague – in any of these ways, then it violates due
      process and is constitutionally void. By contrast, to be valid, a
      penal statute must set forth a crime with sufficient definiteness
      that an ordinary person can understand and predict what conduct
      is prohibited. The law must provide reasonable standards which
      people can use to gauge the legality of their contemplated, future
      behavior. At the same time, however, the void for vagueness
      doctrine does not mean that statutes must detail criminal conduct
      with utter precision. Condemned to the use of words, we can
      never expect mathematical certainty from our language. Indeed,
      due process and the void for vagueness doctrine are not intended
      to elevate the practical difficulties of drafting legislation into a
      constitutional dilemma. Rather, these doctrines are rooted in a
      rough idea of fairness. As such, statutes may be general enough
      to embrace a range of human conduct as long as they speak fair
      warning about what behavior is unlawful.

Commonwealth v. Thur, 906 A.2d 552, 560 (Pa. Super. 2006) (internal

quotations and citations omitted) (emphasis added). “A law is overly broad if

it punishes constitutionally protected activity as well as illegal conduct.” Id.

Section 6106(a) provides, 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

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              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.

18 Pa.C.S.A. § 6106(a) (emphasis added).

      This Court, as Ravenell concedes, has previously addressed his

constitutional issue in Carr, and it has found that section 6106(a) is neither

vague nor overbroad.      “The Statutory Construction Act at 1 Pa.C.S.[A.] §

1903(a) states in relevant part that ‘words and phrases shall be construed

according to rules of grammar and according to their common and approved

usage.’” Carr, 483 A.2d at 543. “‘His’ as used in 18 Pa.C.S.[A.] § 6106(a) is

a possessive pronoun connoting ownership or control over the ‘fixed place of

business.’”    Id.   Thus, the “fixed place of business” language in section

6106(a) is limited to individuals with a “controlling, proprietary, or possessory

interest” therein. Id. Furthermore, as the majority in Carr observed astutely,

“our legislature could not have intended to permit every employed individual

in the Commonwealth to carry without a license a concealed, loaded firearm

on the job site.” Id. (emphasis added).

      In Carr, police obtained and executed a search warrant for controlled

substances they believed were stored at and sold from a gasoline service



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station. During the execution of the search warrant, police identified the sole

proprietor of the gasoline service station. Shortly thereafter, they observed

another individual, defendant Carr, drop a loaded .32 caliber revolver into a

cardboard box. At trial, Carr conceded that he had been carrying the revolver,

but argued that because (1) the service station was his place of employment

and (2) he had been working when he was arrested, he met the “fixed place

of business” exception pursuant to section 6106(a). This Court held that the

gasoline service station was the fixed place of business of the proprietor and

not the fixed place of business of Carr because he had no controlling,

proprietary or possessory interest in the service station, and thus, Carr was

in violation of section 6106. Carr, supra.

      The facts here are nearly identical.      Ravenell has no controlling,

proprietary or possessory interest in Firestone; he was merely an employee.

Accordingly, Ravenell was not present at his “fixed place of business” for

purpose of section 6106(a). Therefore, even had Ravenell properly preserved

this issue for our review, he was not exempt from the requirement that he

have a valid and lawfully issued license to carry a concealed firearm while

working at Firestone.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2018




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