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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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                              :     No. 2764 EDA 2014


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

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

CONCURRING MEMORANDUM BY FITZGERALD, J.:                FILED JULY 21, 2016

        Although I agree with the learned majority’s determination to reverse

the trial court’s order and remand this matter for further proceedings, I

would do so on different grounds.      The majority concludes that Appellee’s

argument based on Act 235, and the trial court reasons for dismissal of the

charges, was related to the firearm licensing exception in 18 Pa.C.S. §

6106(b)(6). Majority Mem. at 6. It thus declines to express an opinion on

the interplay between Section 6106(b)(6) and Act 235, because Section

6106(b)(6) is an affirmative defense. Id. at 7. In my view, there are no

relevant issues of material fact underlying the instant dispute, and it would




*
    Former Justice specially assigned to the Superior Court.
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be more appropriate to consider the interplay among the relevant statutes

even at this preliminary stage of the underlying matter.

      Preliminarily, I respectfully disagree with the majority’s decision to

frame the issue presented as an invocation of the affirmative defense under

Section 6106(b)(6).    See Trial Ct. Op., 9/24/14, at 6 (suggesting Section

6106 and 6108 are irreconcilable with Act 235); Appellee’s Brief at 4 (noting,

for the purposes of his pre-trial motion, that Section 6106(b)(6) applies

“when the individual is carrying out [his] duties,” but that it would be

impractical to interpret Act 235 as not permitting an individual to go to and

from duty while carrying a lethal weapon). In my view, identification of a

claim as an affirmative defense does not preclude review of a legal question

when there are no issues of material fact. To determine whether a disputed

fact is material, we must consider the statutes at issue.

      When considering the interpretation and interaction of statutes, the

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

Commonwealth v. Stotelmyer, 110 A.3d 146, 149 (Pa. 2015).

         In all matters involving statutory interpretation, we apply
         the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq.,
         which provides that the object of interpretation and
         construction of statutes is to ascertain and effectuate the
         intention of the General Assembly. 1 Pa.C.S. § 1921(a). A
         statute’s plain language generally provides the best
         indication of legislative intent. Only where the words of a
         statute are not explicit will we resort to other
         considerations to discern legislative intent. 1 Pa.C.S. §
         1921(c).




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Commonwealth v. McCoy, 962 A.2d 1160, 1166 (Pa. 2009) (some

citations omitted).

         When the words of the statute are not explicit, the
         intention of the General Assembly may be ascertained by
         considering, among other matters:

            (1) The occasion and necessity for the statute.

            (2) The circumstances under which it was enacted.

            (3) The mischief to be remedied.

            (4) The object to be attained.

            (5) The former law, if any, including other statutes upon
            the same or similar subjects.

            (6) The consequences of a particular interpretation.

            (7) The contemporaneous legislative history.

            (8) Legislative and administrative interpretations of
            such statute.

1 Pa.C.S. § 1921(c). “[W]hen the courts of this Commonwealth are faced

with interpreting statutory language, they afford great deference to the

interpretation rendered by the administrative agency overseeing the

implementation of such legislation.” Banfield v. Cortes, 110 A.3d 155, 174

(Pa. 2015) (citation omitted).

      The   statutes   relevant   to   this   appeal   are   as   follows.   The

Commonwealth charged Appellee with firearms not to be carried without a

license and carrying a firearm on public streets or public property in




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Philadelphia. See 18 Pa.C.S. §§ 6106(a)(1), 6108. Section 6106 states in

relevant part:

           (a) Offense defined.—

              (1) . . . 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.

                                    *    *    *

           (b) Exceptions.—The provisions             of   [18   Pa.C.S.   §
           6106(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.


18 Pa.C.S. § 6106(a)(1), (b)(6).1

        Section 6108 provides:

           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;[2] or


1
    Section 6106(b) lists sixteen total exceptions.
2
  Licensure is an element of Section 6106(a)(1), but an affirmative defense
to Section 6108. Commonwealth v. Bigelow, 399 A.2d 392, 396 (Pa.
1979).



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              (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.

     Additionally, Section 6109 sets forth the following relevant licensing

provisions:

        (a) Purpose of license.—A license to carry a firearm
        shall be for the purpose of carrying a firearm concealed on
        or about one’s person or in a vehicle throughout this
        Commonwealth.

        (b) Place of application.—An individual who is 21 years
        of age or older may apply to a sheriff for a license to carry
        a firearm concealed on or about his person or in a vehicle
        within this Commonwealth. If the applicant is a resident of
        this Commonwealth, he shall make application with the
        sheriff of the county in which he resides or, if a resident of
        a city of the first class, with the chief of police of that city.

                                  *    *    *

        (g) Grant or denial of license.—Upon the receipt of an
        application for a license to carry a firearm, the sheriff shall,
        within 45 days, issue or refuse to issue a license on the
        basis of the investigation under subsection (d) and the
        accuracy of the information contained in the application. If
        the sheriff refuses to issue a license, the sheriff shall notify
        the applicant in writing of the refusal and the specific
        reasons. . . .

18 Pa.C.S. § 6109(a), (b), (g).

     Act 235 defines the following terms.         “‘Privately employed agents’

include any person employed for the purpose of providing watch guard,

protective patrol, detective or criminal investigative services either for

another for a fee or for his employer.”      22 P.S. § 43.     “‘Lethal weapons’



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include but are not limited to firearms and other weapons calculated to

produce death or serious bodily harm,” including a “concealed billy club.”

Id.

      Act 235 requires the Commissioner of the Pennsylvania State Police to

implement “physical and psychological testing and screening of the

candidate for the purpose of barring from the program those not physically

or mentally fit to handle lethal weapons.”     22 P.S. § 45(2).       Further, the

commissioner must “implement and administer or approve the minimum

courses of study and training in the handling of lethal weapons, law

enforcement and protection of the rights of citizens.” 22 P.S. § 45(1). The

commissioner, following a review of an application, may issue a “certificate

of qualification,” which “entitles the applicant to enroll in an approved

program.”     22 P.S. § 46(f).      The commissioner later certifies “those

individuals who have satisfactorily completed basic educational and training

requirements” and issues “appropriate certificates” and “an appropriate

wallet or billfold size copy of the certificate” to the agent. 22 P.S. §§ 45(7),

47(b). The certificate issued upon completion of the education and training

requirements is the Act 235 certificate referred to in this appeal.

      As to privately employed agents, Act 235 establishes the following

requirements. “All privately employed agents . . . who, as an incidence to

their employment, carry a lethal weapon shall be required to attend” “[a]n

education and training program in the handling of lethal weapons, law



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enforcement and protection of rights of citizens . . . .” 22 P.S. § 44(a), (b).

“Privately employed agents must possess a valid certificate whenever on

duty or going to and from duty and carrying a lethal weapon.” 22 P.S. §

48(a).   “Every certified individual shall 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.” 22 P.S. § 47(c).

      Act 235 contains the following penalties.     “Any privately employed

agent who in the course of his employ carries a lethal weapon, and who fails

to comply with” 22 P.S. §§ 44(b) or 48(a), regarding possession of a

certificate, commits an ungraded misdemeanor.        22 P.S. § 49(a).     “Any

privately employed agent who in the course of his employ carries a lethal

weapon, and who violates” 22 P.S. § 47(c), requiring the carrying of a

certificate when “on duty or going to and from duty and carrying a lethal

weapon,” commits a summary offense. See 22 P.S. § 49(b).

      Notably, the language of Act 235 is obligatory. A privately employed

agent must be qualified, complete the education and training components,

and then carry the issued certification when carrying a firearm on duty or

going to and from duty.        Act 235, contains no permissive language,

particularly when contrasted against Section 6109’s language that “[a]

license to carry a firearm shall be for the purpose of carrying a firearm

concealed on or about one’s person or in a vehicle throughout this

Commonwealth.” See 18 Pa.C.S. § 6109(a). This interpretation of the plain



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language of each statute, as well as the interplay of the statutes, supports

the Pennsylvania State Police’s view that “[t]he issuance of a certification

card to a privately employed agent does not grant the agent the right or

privilege to carry, possess, own, or have under his control a firearm contrary

to 18 Pa.C.S. §§ 6101-6120 (relating to Uniform Firearms Act).”         37 Pa.

Code § 21.26(d).

       Furthermore, even if ambiguity exists in the application of either Act

235 or the Uniform Firearms Act, consideration the mischief to be remedied

and the object to be attained by the statutes is illuminating. Section 6106

and 6108 seek to regulate the unlicensed carrying of firearms in a particular

manner or in a particular location. The express purposes of Act 235 is to

provide for the education and training of privately employed agents. Each

statute is given their fullest intended effect if they are construed as

independent but overlapping regulations.3 See Stotelmyer, 110 A.3d at

150.

        In sum, I believe the question of the interplay between the

Pennsylvania Uniform Firearm Act and Act 235 is properly before this Court,

and this Court should clearly answer the legal question presented.        Such

clarity is of paramount importance to the instant parties and the trial court in

preparation for trial. Furthermore, similarly situated individuals and entities

3
 There is nothing novel in this approach to Section 6106, 6108, and 6109
and Act 235 in light of the past practices of this Court.




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would benefit from a definitive answer in this area.   Accordingly, I would

hold that Act 235 does not operate as a “provisional license” that excuses a

failure to possess a valid license.

      Thus, I respectfully concur in the result.




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