                          [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 WECHT                                                  DECIDED: July 21, 2020
       I do not doubt that the existence of a bench warrant might, in appropriate

circumstances, dovetail with a determination that an individual is a “fugitive from justice”

prohibited from possessing a firearm under the Uniform Firearms Act. See 18 Pa.C.S. §

6105(c)(1). But it cannot be gainsaid that “[a] man is not fleeing from justice until he

knows that justice is looking for him or fears that justice is about to look for him.”

Commonwealth v. Woong Knee New, 47 A.2d 450, 466 (Pa. 1946). At times, a warrant

is executed to secure the arrest of a “fugitive from justice.” At others, a bench warrant

may issue for reasons wholly unrelated to any fugitive status, and perhaps unrelated even

to the commission of any crime in the first place. The fatal defect of the Commonwealth’s

case against Brahim Smith is the absence of any evidence of record as to why the warrant

was issued or whether Smith had notice of it. Because the record before us is utterly

devoid of probative evidence supporting even an inference that Smith knew that a warrant
had been issued for his arrest—and that he intended to flee from it—I cannot join the

Court’s conclusion that he was a fugitive per se, and thus automatically precluded from

possessing a firearm. Accordingly, I think it plain that this Court is bound to reverse the

judgment of the Superior Court and vacate Smith’s misdemeanor conviction under

subsection 6105(c)(1).

       The status of fugitives was a primary concern of our nation’s Founders. From the

outset, the extradition of fugitives has been recognized as an obligation of comity between

the States. See Innes v. Tobin, 240 U.S. 127, 130-31 (1916) (“[P]rior to the adoption of

the Constitution fugitives from justice were surrendered between the states conformably

to what were deemed to be the controlling principles of comity.”) (citing Kentucky v.

Dennison, 65 U.S. 66, 101-02 (1860), overruled by Puerto Rico v. Branstad, 483 U.S. 219

(1987)). To that end, the phrase “fugitive from Justice” formally entered our constitutional

lexicon in 1777 with the Second Continental Congress’ approval of the fourth article of

our fledgling nation’s first Charter, which provided:

       The better to secure and perpetuate mutual friendship and intercourse
       among the people of the different states in this union, the free inhabitants
       of each of these states, paupers, vagabonds and fugitives from Justice
       excepted, shall be entitled to all privileges and immunities of free citizens in
       the several states . . . .

       If any Person guilty of, or charged with, treason, felony or other high
       misdemeanor in any state, shall flee from Justice, and be found in any of
       the united states, he shall upon demand of the Governor or executive power
       of the state from which he fled, be delivered up, and removed to the state
       having jurisdiction of his offense.


ARTICLES   OF   CONFEDERATION   AND   PERPETUAL UNION of 1781, art. IV; see also THE

FEDERALIST NO. 42 (James Madison).

       That provision subsequently was refashioned as the Extradition Clause of the

United States Constitution, which commands:



                           [J-118-2019] [MO: Dougherty, J.] - 2
       A Person charged in any State with Treason, Felony, or other Crime, who
       shall flee from Justice, and be found in another State, shall on Demand of
       the executive Authority of the State from which he fled, be delivered up, to
       be removed to the State having Jurisdiction of the Crime.


U.S. CONST. art. IV, § 2. Recognizing that the Clause was not self-enforcing, the second

United States Congress adopted the so-called Fugitive Slave Act of 1793, Act of Feb. 12,

1793, Pub. L. No. 2-7, 1 Stat. 302, the first two sections of which established the

procedures for securing from “the executive authority of any state in the Union” the return

of fugitives from justice “to the state or territory from which he or she shall have fled.” Id.

§§ 1, 2.1 See Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 561, 565-72 (1842) (affirming

the supremacy of the Act and striking down as unconstitutional a Pennsylvania law

“purport[ing] to punish as a public offence against the state” the kidnapping and rendition

of enslaved fugitives).

       In considering the effect of the foregoing provisions on the obligations of the

executive authorities of asylum states, the Supreme Court of the United States has

observed that whether a person is a fugitive from justice “is a question of fact, which the

governor of the state upon whom the demand is made must decide, upon such evidence

as he may deem satisfactory.” Roberts v. Reilly, 116 U.S. 80, 95 (1885).



1      Extradition proceedings are now governed by Chapter 209 of Title 18 of the United
States Code. 18 U.S.C. §§ 3181-96. In this Commonwealth, the procedures facilitating
interstate extradition have since been codified as the Uniform Criminal Extradition Act, 42
Pa.C.S. § 9121, et seq. Compare id. § 9123 (“[I]t is the duty of the Governor of this
Commonwealth to have arrested and delivered up to the executive authority of any other
state of the United States any person charged in that state with treason, felony or other
crime, who has fled from justice and is found in this Commonwealth.”), with 18 U.S.C. §
3182 (“Whenever the executive authority of any State or Territory demands any person
as a fugitive from justice . . . the executive authority of the State, District, or Territory to
which such person has fled shall cause him to be arrested and secured, and notify the
executive authority making such demand, or the agent of such authority appointed to
receive the fugitive, and shall cause the fugitive to be delivered to such agent when he
shall appear.”).


                            [J-118-2019] [MO: Dougherty, J.] - 3
       The simple inquiry must be whether the person whose surrender is
       demanded is in fact a fugitive from justice, not whether he consciously fled
       from justice in order to avoid prosecution for the crime with which he is
       charged by the demanding state. A person charged . . . with the commission
       within a state of a crime covered by its laws, and who, after the date of the
       commission of such crime, leaves the state—no matter for what purpose or
       with what motive, nor under what belief—becomes, from the time of such
       leaving, and within the meaning of the Constitution and the laws of the
       United States, a fugitive from justice . . . . Such is the command of the
       supreme law of the land, which may not be disregarded by any state. The
       constitutional provision relating to fugitives from justice, as the history of its
       adoption will show, is in the nature of a treaty stipulation entered into for the
       purpose of securing a prompt and efficient administration of the criminal
       laws of the several states—an object of the first concern to the people of
       the entire country, and which each state is bound, in fidelity to the
       Constitution, to recognize.


Appleyard v. Massachusetts, 203 U.S. 222, 227-28 (1906) (cleaned up; emphasis in

original); but see Bassing v. Cady, 208 U.S. 386, 391-93 (1908) (suggesting that asylum

State governor might be permitted to deny an extradition demand when the requisition

State’s warrant is predicated on criminal offenses for which the alleged fugitive previously

had been charged, assuming jeopardy had attached prior to the dismissal of the first

indictment).

       The Court also has clarified that:

       [F]or purposes of extradition between the states, it does not matter what
       motive induced the departure. . . . The Constitution . . . peremptorily
       requires that upon proper demand the person charged shall be delivered up
       to be removed to the state having jurisdiction of the crime. There is no
       discretion allowed, no inquiry into motives.


Drew v. Thaw, 235 U.S. 432, 439-40 (1914) (citations omitted). Having been charged

with a crime in one State, it is sufficient that an alleged fugitive simply be found in another

State. Strassheim v. Daily, 221 U.S. 280, 285 (1911); Ex parte Reggel, 114 U.S. 642,

651-53 (1885); but see Hyatt v. New York, 188 U.S. 691, 713 (1903) (holding that a

defendant cannot be extradited as a “fugitive from justice” if “in fact he was not within the



                            [J-118-2019] [MO: Dougherty, J.] - 4
[requisition] state at the time the [criminal] act is said to have been committed”). Thus, a

fugitive may be surrendered upon an extradition warrant even if he had been brought into

the asylum State against his will, Innes, 240 U.S. at 135 (noting that, to hold otherwise

“would cause them all to become involuntary asylums for criminals”), regardless of the

alleged forbidden act made punishable by law in the State from which he fled. Taylor v.

Taintor, 83 U.S. (16 Wall.) 366, 375 (1872) (“Every violation of the criminal laws of a State

is within the meaning of the Constitution, and may be made the foundation of a

requisition.”). See generally Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 108-09

(1907) (delineating seven “principles” controlling the interstate extradition of “fugitives

from justice”).

       Although the foregoing authority largely arose in the context of interstate

extradition proceedings, this Court’s jurisprudence on the subject of fugitives developed

in tandem with that indelible feature of American federalism.2            Consequently, our

predecessors have had occasion to distinguish the prevailing federal “fugitive from

justice” standard from Pennsylvania’s consideration of wholly intrastate requisitions.

Commonwealth v. Jailer, 1 Grant 218 (Pa. 1855), for instance, concerned a warrant

issued by the President Judge of Allegheny County directing the sheriff to convey a

fugitive “imprisoned in the common jail of” that county, “upon a charge of adultery,

committed in Washington County,” to the custody of the latter’s county jail. Id. at 219.

Acknowledging that such a transfer would be permissible “[i]f the offence

charged . . . were a felony,” id., this Court ordered the woman’s release on the grounds

that the lower court had no power, either by statute or “at common law,” to order the

2       In light of this historical development, I disagree with the lower court’s rejection of
Smith’s argument as “legally unpersuasive” simply because his “discussion of the phrase
‘fugitive from justice’” arose from “caselaw and statutory authority relating to extradition.”
Commonwealth v. Smith, 1028 EDA 2017, 2018 WL 4089657, at *4 n.6 (Pa. Super. Aug.
28, 2018).


                           [J-118-2019] [MO: Dougherty, J.] - 5
rendition of an alleged fugitive where the conduct at issue was a lower-graded offense.

Id. at 219-20. For non-felonies, however, the Court noted that

       the means provided for the arrest and return of fugitives from justice, is a
       warrant issued by a justice of the peace of the county where the offence is
       alleged to have been committed, and endorsed or backed by a justice or
       alderman of the county where the offender is found.


Id. at 220. While Jailer is in accord with the federal standard that authorities must

demonstrate a nexus to some criminal offense, this Court appeared to signal an early

divergence from the federal courts’ view that flight from any criminal offense would

support the execution of a bench warrant for the capture and conveyance of alleged

fugitives within the Commonwealth.

       Revisiting the fugitive question in Blackman v. Commonwealth, 17 A. 194 (Pa.

1889), this Court held that prosecutors make out a prima facie case that a defendant was

a fugitive by “prov[ing] that he fled from his usual place of residence within this state for

the manifest purpose of avoiding arrest.” Id. at 195. By obligating the Commonwealth to

demonstrate a defendant’s “manifest purpose” in fleeing—i.e., to avoid arrest—the

Blackman Court broke from the High Court’s fugitive jurisprudence, which required no

proof of scienter. Compare id., with Appleyard, 203 U.S. at 227, and Drew, 235 U.S. at

439. As far as Pennsylvania was concerned, a warrant alone would not suffice to prove

that an individual had intended to flee “from justice.” Foreshadowing the circumstances

presently before us, the Court notably inquired as to whether a defendant, “hiding within

the state, instead of outside of it,” would be “in a position to raise the question whether a

fugitive from justice, who effectually secretes himself within the state, and thus baffles all

attempts to arrest him until the statute [of limitations] has run, can then emerge from his

hiding place, and successfully plead the statute of limitations.” Id. Because the issue

was not raised directly in that case, the Court declined to answer its own pregnant query.



                           [J-118-2019] [MO: Dougherty, J.] - 6
       This Court appeared to resolve the question definitively in Commonwealth v.

Weber, 103 A. 348 (Pa. 1918). In that case, Weber, a resident of Pittsburgh who

frequented “his old home in West Deer [T]ownship, where he owned an interest in a farm,”

was charged with “seduction and fornication and bastardy,” offenses that he allegedly

committed in the township in July 1910.        Id. at 349.   After learning that a criminal

information had been sworn and a warrant issued for his arrest in April 1911, Weber “left

home . . ., going to Youngstown, Ohio,” until November 1913, “when he took up his

residence in Pittsburgh and continued to reside in that city” as of the time of his arrest in

1916. Id. On appeal, Weber asserted that his convictions should be overturned based

upon the two-year statute of limitations for the crimes charged.         Drawing from the

circumstances in Blackman, the Weber Court rejected the notion that “one charged with

crime committed in a rural district, who flees from arrest, but subsequently takes up his

residence in a large city within the state,” can invoke the statute of limitations to avoid

prosecution. Id. at 349-50. Thus, so long as a person intentionally flees from his usual

place of residence when the authorities attempt to initiate criminal process, he may be

considered a bona fide fugitive from justice, even if he does not leave the

Commonwealth’s jurisdiction.

       Turning to the instant matter, the pertinent inquiry is whether Smith, who was found

in constructive possession of a firearm on the public streets of Philadelphia, was in that

moment a “fugitive from justice” as that phrase commonly is, and historically has been,

understood.     Apart from the seizure of the firearm itself, the totality of the

Commonwealth’s evidence against Smith for the offense charged under subsection

6105(c)(1) was the following two-sentence stipulation:

       [A]t the time of this offense on April 21st of 2014, the defendant, Brahim
       Smith, had an active bench warrant, which was issued on April 3rd of 2014
       under CP-51-[CR-]0003923-2011. That bench warrant was lifted on May
       1st of 2014, which would make him ineligible for -- a prohibited person from


                           [J-118-2019] [MO: Dougherty, J.] - 7
      carrying a firearm under 6105 graded as a misdemeanor of the first
      degree.[3]


Notes of Testimony (“N.T.”), 10/14/2016, at 20-21. The Commonwealth’s argument, at

base, is that the existence of the bench warrant, without more, was sufficient to render

Smith a fugitive from justice for purposes of the Uniform Firearms Act. The Majority

adopts this dubious formulation, reasoning 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.
      It 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.


Maj. Op. at 13.4 The Majority’s conclusion rests upon several flawed assumptions.

      As a threshold matter, contrary to the Majority’s suggestion, bench warrants do not

issue in criminal cases “only” when someone fails to appear when required. Several of

our Rules of Criminal Procedure provide that bench warrants may issue for the failure to

pay fines and court costs.5 See, e.g., Pa.R.Crim.P. 706, Comment (“Under this rule, when

a defendant fails to pay the fine and costs, the common pleas court judge may issue a

bench warrant for the collection of the fine and costs.”); cf. id. at 142(A)(1)-(2) (bench

warrant “shall be issued” where a contemnor fails to pay fines imposed as a punishment

for contempt). In summary cases, bench warrants may be executed when a


3     See 18 Pa.C.S. § 6119 (“Except as otherwise provided, an offense under this
subchapter constitutes a misdemeanor of the first degree.”).
4      The Majority castigates this dissent for “going so far as to” elide from the block-
quoted text the phrase “as appellant stipulated to do here.” Maj. Op. at 13 n.10. Because
I do not share the Majority’s view that Smith specifically stipulated to “evad[ing] law
enforcement,” id. at 13—which necessarily would have satisfied an essential mens rea
element—I cannot consider that comment to be a fair characterization of the parties’
stipulation.
5     See generally Pa.R.Crim.P. 150 (outlining procedures in cases where bench
warrants are executed).


                          [J-118-2019] [MO: Dougherty, J.] - 8
       defendant has entered a guilty plea by mail and the money forwarded with
       the plea is less than the amount of the fine and costs specific in the citation
       or summons; or the defendant has been sentenced to pay restitution, a fine,
       or costs and has defaulted on the payment; or the issuing authority has, in
       the defendant’s absence, tried and sentenced the defendant to pay
       restitution, and/or to pay a fine and costs and the collateral deposited by the
       defendant is less than the amount of the fine and costs imposed.


Id. at 430(B)(3)(a)-(c). Bench warrants also are issued to secure individuals who violate

conditions of bail, id. at 536(A)(1)(b), including non-monetary conditions such as travel

restrictions, home confinement, curfew, and electronic monitoring. See Commonwealth

v. Sloan, 907 A.2d 460, 462 (Pa. 2006). It logically follows that while a court may issue

a bench warrant based upon a defendant’s efforts “to elude or evade law enforcement or

prosecution,” Maj. Op. at 13, those acts are a sufficient condition, but not a necessary

one.

       Nor are bench warrants confined to the enforcement of the criminal law. In the

family courts across this Commonwealth, judges regularly depend upon bench warrants

as tools to compel attendance and to assist in the collection of support payments in

domestic relations matters, matters completely untethered from the criminal law. See

Pa.R.C.P. 1910.13-1. Based upon the Majority’s broad holding, I shudder to think that a

party to a custody dispute or support action who inadvertently misses a scheduling

conference or a child support payment now would be considered a “fugitive from justice,”

subject to prosecution for possessing a firearm regardless of whether he or she knew that

a warrant had issued and absent even a hint of criminal wrongdoing. This result is

unintended and untenable.

       Moreover, in each century of its existence, this Court has considered appeals

involving the use of bench warrants where the failure of a party or witness to appear was

not in dispute. For example, trial courts may issue bench warrants proactively to ensure

the attendance of reluctant victims and witnesses in both criminal and civil cases, see,



                           [J-118-2019] [MO: Dougherty, J.] - 9
e.g., Commonwealth v. Cargo, 444 A.2d 639, 641 n.8 (Pa. 1982) (sixteen-year-old

witness to murder ordered to appear ahead of trial); to compel testimony regarding juror

bias, Commonwealth v. White, 290 A.2d 246, 248 (Pa. 1972) (bench warrant issued to

dismissed juror’s employer following disclosure that the two may have discussed case);

to guarantee service of process, Schlesinger v. Musmanno, 81 A.2d 316, 318 (Pa. 1951)

(bench warrant issued in civil trespass case for petitioner’s arrest after he refused service

by deputy sheriff); and to initiate contempt proceedings, Legaux v. Feasor, 1 Yeates 586,

588 (Pa. 1795) (following dismissal of jury, bench warrant issued against a witness for

“wilful and corrupt perjury”).

       Bench warrants even have been issued at the insistence of the parties themselves,

sometimes for the express purpose of securing evidence or exposing fraudulent behavior.

See Appeal of McIntyre, 22 A.2d 200, 200-01 (Pa. 1941) (bench warrant executed upon

complaint that election board was committing fraud and failed to compute returns); Willis

v. Kane, 2 Grant 60 (Pa. 1853) (bench warrant issued upon affidavit alleging that attorney

had fraudulently concealed property from creditors); see also Thompson v. Thompson,

223 A.3d 1272, 1274 (Pa. 2020) (discussing agreement signed by appellee in which she

“admitted that she was in civil contempt” of a support order and providing that a bench

warrant would be issued for her immediate arrest if she “failed to remain current in her

obligation”). That is to say, notwithstanding a court’s inherent authority to issue a bench

warrant to secure the arrest of a “fugitive from justice” in a criminal case, it is clear that

bench warrants are used for a multitude of reasons in the law other than one’s failure to

appear when previously ordered. Equally clear is that the issuance of a bench warrant is

not necessarily tethered to one’s commission of a criminal act at all. Whatever other

attributes of a “fugitive from justice” that the Majority emphasizes or dismisses, certainly




                           [J-118-2019] [MO: Dougherty, J.] - 10
the phrase is intended to refer only to a criminal actor, not a parent who misses a custody

hearing, or a witness to a crime who fails to appear and testify at trial due to intimidation.

       Unfortunately, the Majority draws no practical distinction between these disparate

circumstances. Under the Majority’s expansive reading, a bench warrant predicated upon

the mere inability to pay fines and fees (other than for summary traffic offenses) would

just as soon turn a constitutionally protected activity—namely, the right to keep and bear

arms—into a criminal act as it would if it had been triggered by one’s deliberate flight to

avoid prosecution.    Every technical probation or parole violator instantly would be

rendered a “fugitive from justice” upon the issuance of a bench warrant, which may be

pro forma in some jurisdictions, or dependent upon the vicissitudes of busy trial court

schedules in others. Anyone who inadvertently misses a domestic relations hearing or a

child support payment could face a weapons charge, even though the offender might

otherwise be permitted to lawfully possess a firearm. The possibilities are alarmingly

endless, and they flow naturally from the Majority’s unbounded ruling.

       The Majority dismisses these considerations out of hand as “hyperbolic.” Maj. Op.

at 11 n.9. And yet, in defining “fugitive” and “fugitive from justice” broadly to “include

someone who evades the law or prosecution,” Maj. Op. at 13 (emphasis added), the

Majority provides no meaningful guidance to those who might unwittingly trigger its

application.   Nor would that indeterminable designation cabin the Commonwealth’s

discretion as to who could be prosecuted as a fugitive from “the law.” As Justice Baer

aptly notes, the Majority’s “rigid” classification “effectively creates a per se rule that any

individual who is subject to an active bench warrant is a fugitive from justice, irrespective

of” their knowledge or intent. Diss. Op. at 1 (Baer, J., dissenting). Although the Majority

faults both dissents for gleaning this unmistakable consequence from its holding, it

remains self-evident that the Majority’s cursory analysis embraces such a categorical




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approach. But just how many Pennsylvanians would the Majority’s new rule immediately

impact? The Majority does not say. According to data compiled by the Department of

Justice, infra, however, the answer is in the tens of thousands at any given time—not to

mention the millions of Americans with open warrants presently residing beyond our

borders.

         Thus, my concerns regarding the unintended consequences of the Majority’s

holding echo those of Justice Sotomayor, who considered the profusion of open warrants

throughout the United States in her dissent in Utah v. Strieff, ___ U.S. ___, 136 S.Ct.

2056 (2016), a Fourth Amendment case involving a suspicionless police stop. Joined by

Justice Ginsburg, Justice Sotomayor warned of the inherent risk of abuse by law

enforcement created by a glut of open warrants, citing abundant evidence from the

Justice Department as well as non-governmental organizations demonstrating that, as of

2014, there were “over 7.8 million outstanding warrants” nationwide, “the vast majority of

which appear to be for minor offenses.” Id. at 2068 (Sotomayor, J., dissenting) (citing

Dep’t of Justice, Bureau of Justice Statistics, Survey of State Criminal History Information

Systems, 2014 (2015) (“Systems Survey”) (Table 5a)).6 Pertinently, the Systems Survey

showed that there were more than 100,000 open warrants in Pennsylvania alone—more

than eighty percent of which were for non-felony matters. Id. As Justice Sotomayor aptly

noted:

         Outstanding warrants are surprisingly common. When a person with a
         traffic ticket misses a fine payment or court appearance, a court will issue a
         warrant. When a person on probation drinks alcohol or breaks curfew, a
         court will issue a warrant. . . . The Department of Justice recently reported
         that in the town of Ferguson, Missouri, with a population of 21,000, 16,000
         people had outstanding warrants against them.



6       The Department of Justice’s 2015 Systems Survey is available online at
https://www.ncjrs.gov/pdffiles1/bjs/grants/249799.pdf.

                            [J-118-2019] [MO: Dougherty, J.] - 12
Strieff, 136 S.Ct. at 2068-69 (Sotomayor, J., dissenting) (citations omitted). Given that

the Majority in this case automatically would deem any and all individuals to be “fugitives

from justice” upon the mere issuance of a bench warrant, the potential repercussions of

the Majority’s holding on a statewide scale are exceptionally vast and readily apparent.

       Unwilling to confront these inconvenient truths on their merits, the Majority instead

simply derides them as “riffs” and “magical thinking.” Maj. Op. at 13 n.10. As it labors to

divine Smith’s knowledge and intent from the scant record before us, the Majority

effectively transmogrifies a somewhat muddled stipulation into an ironclad guilty plea. “By

agreeing to the stipulation,” the Majority asserts, Smith “also assented to the facts

supporting it, and obviated the Commonwealth’s burden to demonstrate that underlying

fact.” Id. The Majority cites a number of inapposite decisions to rationalize stretching the

stipulation far beyond its natural limits. See id. Phillips v. Schoenberger, 534 A.2d 1075

(Pa. Super. 1987), for instance, stands for the proposition that the facts underlying a

stipulation, once agreed to by the parties, cannot be diminished or enlarged without the

assent of both sides. Id. at 1078-79. But that is precisely what the Majority does here on

the Commonwealth’s behalf when it assumes—without any support whatsoever—that the

bare stipulation somehow established Smith’s mens rea. See Maj. Op. at 4 (quoting N.T.

10/14/2016, at 23); see also id. at 7 n.8. Notably, that portion of the bench trial quoted

by the Majority in support of its bald assumption came not from the parties’ stipulation,

but was made by the Commonwealth during argument. As the Majority well knows, “a

prosecutor’s comments do not constitute evidence,” Commonwealth v. Baez, 720 A.2d

711, 729 (Pa. 1998), nor can they be used to supplement the explicit terms of a stipulation

agreed to by the defense.7

7       The Majority’s reference to Commonwealth v. Padilla, 80 A.3d 1238 (Pa. 2013),
the lone criminal case cited in support of its expansive view of stipulations generally,
similarly is misplaced. There the parties had stipulated explicitly “that evidence exists



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       Critically, the Majority’s position also is out of step with persuasive federal

precedent on a very similar question. In an analogous case, Rehaif v. United States, ___

U.S. ___, 139 S.Ct. 2191 (2019), the Supreme Court of the United States considered the

fate of Hamid Rehaif, who “entered the United States on a nonimmigrant student visa to

attend university” and later was convicted of a possessory firearm offense under federal

law. Id. at 2194. After dismissing Rehaif from the school for poor grades, the university

informed him “that his ‘immigration status’ would be terminated unless he transferred to

a different university or left the country. Rehaif did neither.” Id. (record citation omitted).

The Government subsequently discovered that Rehaif had “visited a firing range, where

he shot two firearms” for target practice, and then “prosecuted him for possessing

firearms as an alien unlawfully in the United States, in violation of” the Gun Control Act of

1968, 18 U.S.C § 922, et seq. “At the close of Rehaif’s trial, the judge instructed the jury

(over Rehaif’s objection) that the ‘United States is not required to prove’ that Rehaif ‘knew

that he was illegally or unlawfully in the United States.” Rehaif, 139 S.Ct. at 2194 (citation

omitted).   Consequently, the jury found him guilty, and the court sentenced him to

eighteen months’ imprisonment. Id.

beyond a reasonable doubt that” Padilla had killed three people “while in the perpetration
of the felony of a person not to possess and/or use a firearm . . . a felony of the second
degree.” Id. at 1271 (citing N.T. 9/13/2006, at 20). “The Commonwealth presented no
evidence as to any firearm offense, but relied exclusively on the above stipulation to
establish the” aggravating factor under 42 Pa.C.S. § 9711(d)(6) (killing while in the
perpetration of a felony). Padilla, 80 A.3d at 1271. As it turned out, the predicate offense
to which Padilla had stipulated—possession of a firearm by an alien “illegally or unlawfully
in the United States,” 18 Pa.C.S. § 6105(c)(5)—was only a misdemeanor, and thus would
not have established the aggravating factor if its grading had been accurately conveyed
to the jury. Padilla, 80 A.3d at 1271. Notwithstanding that oversight, this Court rejected
Padilla’s efforts to “employ” his sufficiency challenge “as an alternative route to obtain
review of trial court or counsel error.” Id. at 1272. Because the stipulation—“as read to
the jury”—was sufficient to support its findings, this Court concluded that his challenge
necessarily “must fail.” Id. (emphasis in original). Here again, conversely, the parties’
stipulation, by its plain terms, provides no support for the Majority’s conclusion that Smith
knew of the warrant and intended to flee from it.


                           [J-118-2019] [MO: Dougherty, J.] - 14
       On appeal, Rehaif contended that the judge erroneously had instructed the jury

“that it did not need to find that he knew he was in the country unlawfully.” Id. at 2195.

At issue before the Supreme Court was the interplay between subsection 922(g) of the

Act, which prohibits certain individuals, “including felons and aliens who are ‘illegally or

unlawfully in the United States,’” from possessing firearms, id. at 2194 (quoting 18 U.S.C.

§ 922(g)), and subsection 924(a), which separately “adds that anyone who ‘knowingly

violates’ the first provision shall be fined or imprisoned for up to 10 years.” Id. (quoting

18 U.S.C. § 924(a)(2)) (emphasis in original). The question was whether those two

provisions required the Government to “prove that a defendant knew both that he

engaged in the relevant conduct (that he possessed a firearm) and also that he fell within

the relevant status (that he was a felon, an alien unlawfully in this country, or the like)?”

Id.

       In a 7-2 opinion authored by Justice Breyer, the Court reversed Rehaif’s conviction,

holding “that the word ‘knowingly’ applies both to the defendant’s conduct and to the

defendant’s status.” Id. The Court observed that:

       Whether a criminal statute requires the Government to prove that the
       defendant acted knowingly is a question of congressional intent. See
       Staples v. United States, 511 U.S. 600, 605 (1994). In determining
       Congress’ intent, we start from a longstanding presumption, traceable to the
       common law, that Congress intends to require a defendant to possess a
       culpable mental state regarding “each of the statutory elements that
       criminalize otherwise innocent conduct.” United States v. X-Citement
       Video, Inc., 513 U.S. 54, 72 (1994); see also Morissette v. United States,
       342 U.S. 246, 256-58 (1952). We normally characterize the interpretive
       maxim as a presumption in favor of “scienter,” by which we mean a
       presumption that criminal statutes require the degree of knowledge
       sufficient to “mak[e] a person legally responsible for the consequences of
       his or her act or omission.” Black’s Law Dictionary 1574 (10th ed. 2014).

       We apply the presumption in favor of scienter even when Congress does
       not specify any scienter in the statutory text. See Staples, 511 U.S. at 606.
       But the presumption applies with equal or greater force when Congress
       includes a general scienter provision in the statute itself.


                          [J-118-2019] [MO: Dougherty, J.] - 15
Id. at 2195 (parallel citations omitted). By clarifying that, in order to secure a conviction,

the Government “must show that the defendant knew he possessed a firearm and also

that he knew he had the relevant status when he possessed it,” id. at 2194, the Court also

looked “[b]eyond the text,” observing that its reading of the two provisions was “consistent

with a basic principle that underlies the criminal law, namely, the importance of showing

what Blackstone called ‘a vicious will.’” Id. at 2196 (quoting 4 WILLIAM BLACKSTONE,

COMMENTARIES ON THE LAWS OF ENGLAND 21 (1769)).

        The Court reiterated the fundamental principle “that an injury is criminal only if

inflicted knowingly,” characterizing it “as universal and persistent in mature systems of

law as belief in freedom of the human will and a consequent ability and duty of the normal

individual to choose between good and evil.” Id. (internal quotation marks and citation

omitted).

        Scienter requirements advance the basic principle of criminal law by helping
        to “separate those who understand the wrongful nature of their act from
        those who do not.” (quoting X-Citement Video, 513 U.S. at 72-73, n.3).

        The cases in which we have emphasized scienter’s importance in
        separating wrongful from innocent acts are legion. We have interpreted
        statutes to include a scienter requirement even where the statutory text is
        silent on the question. See Staples, 511 U.S. at 605. And we have
        interpreted statutes to include a scienter requirement even where “the most
        grammatical reading of the statute” does not support one. X-Citement
        Video, 513 U.S. at 70.


Id. at 2196-97 (parallel and string citations omitted). Significantly, the Court reasoned

that:

        Applying the word ‘knowingly’ to the defendant’s status in [subsection]
        922(g) helps advance the purpose of scienter, for it helps to separate
        wrongful from innocent acts. Assuming compliance with ordinary licensing
        requirements, the possession of a gun can be entirely innocent. It is
        therefore the defendant’s status, and not his conduct alone, that makes the
        difference. Without knowledge of that status, the defendant may well lack


                           [J-118-2019] [MO: Dougherty, J.] - 16
      the intent needed to make his behavior wrongful. His behavior may instead
      be an innocent mistake to which criminal sanctions normally do not attach.


Id. at 2197 (citation omitted; emphasis in original); see also id. at 2197 (quoting OLIVER

WENDELL HOLMES, JR., THE COMMON LAW 3 (1881) (“even a dog distinguishes between

being stumbled over and being kicked”)).

      Rehaif is particularly instructive because the same provision that makes it unlawful

for felons and certain aliens to possess firearms under federal law likewise precludes “any

person . . . who is a fugitive from justice” from doing so as well. 18 U.S.C. § 922(g)(2).

Subsection 922(g)(2) was promulgated in 1993 with the passage of Brady Handgun

Violence Prevention Act (“Brady Act”), Act of Nov. 30, 1993, Pub. L. No. 103-159, 107

Stat. 1536, which amended the Gun Control Act to require “a statement that the

transferee” of a firearm, inter alia, “is not a fugitive from justice.”      18 U.S.C. §

922(s)(3)(B)(ii). The 1993 amendments also added a familiar definition for “fugitive from

justice,” which “means any person who has fled from any State to avoid prosecution for

a crime or to avoid giving testimony in any criminal proceeding.” Id. § 921(a)(15). Within

two years of the Brady Act’s passage, our General Assembly added subsection

6105(c)(1) to the Uniform Firearms Act to bring Pennsylvania law into conformity with its

federal analogue.8

      Notwithstanding the Uniform Firearms Act’s provision that “the fact that [a] person

was armed with a firearm, . . . and had no license to carry the same, shall be evidence of

8       The legislative record is silent as to whether the General Assembly contemplated
the definition of “fugitive from justice” contained in the federal statute when it amended
the Uniform Firearms Act to criminalize the same from possessing a firearm in
Pennsylvania. Perhaps recognizing the sheer breadth of the federal standard, the
legislature further amended the Act in 1998 to clarify that “the prohibition of subsection
6105(a) . . . does not apply to an individual whose fugitive status is based upon a
nonmoving or moving summary offense under Title 75 (relating to vehicles).” 18 Pa.C.S.
§ 6105(c)(1); see Act of Dec. 3, 1998, Pub. L. 933, No. 121, § 4.



                          [J-118-2019] [MO: Dougherty, J.] - 17
that person’s intention to commit the offenses” enumerated in Section 6105 of the Act, 18

Pa.C.S. § 6104, this Court has long considered a defendant’s mens rea in assessing

whether he was, in fact, a fugitive from justice in Pennsylvania.9 See Woong Knee New,

47 A.2d at 466. As our intermediate appellate courts historically have recognized, “[t]here

can be no doubt that one charged with crime who escapes from an officer after being

notified that he is under arrest for the offense is a fugitive from justice.” Commonwealth

v. McCormick, 71 Pa. Super. 567, 569-70 (1919) (en banc) (emphasis added). Indeed,

one cannot “become a fugitive” unless he “voluntarily flies from an accusation of crime.”

In re H.T., 2 Pennyp. 84, 95-96 (Pa. 1882) (emphasis added).10 Conversely, “[a]n

accused, unaware that process has been issued against him, has no obligation to make

himself available.” Commonwealth v. Cohen, 392 A.2d 1327, 1330 (Pa. 1978); cf. Rehaif,

139 S.Ct. at 2198 (“The defendant’s status . . . refers to a legal matter, but this legal matter

is what the commentators refer to as a ‘collateral’ question of law. A defendant who does

not know that he is an alien ‘illegally or unlawfully in the United States’ does not have the

9      Compare 18 Pa.C.S. § 302 (“General requirements of culpability”), with id. § 305
(“Limitations on scope of culpability requirements”).
10      The voluntariness of a defendant’s flight is a common refrain in our fugitive-from-
justice jurisprudence. See Commonwealth v. Deemer, 705 A.2d 827, 828, 828-29 (Pa.
1997) (holding that a trial court may deny a defendant’s motion to file post-trial motions
nunc pro tunc where he “had willfully and purposely become a fugitive,” thus “voluntarily
absent[ing] himself from the jurisdiction” of the court); Commonwealth v. Kindler, 639 A.2d
1, 3 (Pa. 1994) (Opinion Announcing the Judgment of the Court) (recognizing “that one
who invokes the jurisdiction of a tribunal and then flees has voluntarily waived or
disentitled himself to call upon the resources of the [c]ourt for a determination of his
claims”); Commonwealth v. Jones, 610 A.2d 439, 441 (Pa. 1992) (“A defendant’s
voluntary escape acts as a per se forfeiture of his right of appeal, where the defendant is
a fugitive at any time after post-trial proceedings commence.”); Commonwealth v.
Passaro, 476 A.2d 346, 349 (Pa. 1984) (holding that, “by choosing to flee and live as a
fugitive, a defendant forfeits the right to have his claims considered” because his “resort
to escape constitutes a flagrant and deliberate bypass of the entire judicial process”)
(emphasis added). See generally RICHARD D. FREER & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE (W RIGHT & MILLER): CRIMINAL § 3533.4.2 (3d ed. Apr. 2020
update) (collecting federal cases discussing the fugitive disentitlement doctrine).


                           [J-118-2019] [MO: Dougherty, J.] - 18
guilty state of mind that the statute’s language and purposes require.”). I see no good

reason to depart from this well-settled jurisprudence, particularly where the conduct at

issue—possession of a firearm—is not inherently a criminal offense. See Commonwealth

v. Hicks, 208 A.3d 916, 936-37 (Pa. 2019).

      In view of this abundant decisional law, it is clear that, in order to establish a

violation of subsection 6105(c)(1), the Commonwealth must adduce some evidence that

the defendant: (a) was subject to criminal process; (b) had been on notice of the

proceedings at the time of his disappearance; and (c) knew of his fugitive status “when

he possessed” the firearm. See Rehaif, 139 S.Ct. at 2194; Blackman, 17 A. at 195; see

also Cohen, 392 A.2d at 1330. Succinctly put, a criminal nexus, notice, and knowledge

of one’s prohibited status are essential elements in a prosecution under subsection

6105(c)(1).11 If the Commonwealth can show, for instance, that a defendant in a criminal

case, including a probationer or parolee, had received notice that his failure to appear

could result in his arrest and then in fact failed to appear, such evidence would tend to

establish a presumption of an intent to evade justice. Cf. Commonwealth ex rel. Flower

v. Superintendent of Phila. Cty. Prison, 69 A. 916, 917 (Pa. 1908) (noting that an

extradition “warrant is presumptive but not conclusive evidence that the person is a

fugitive from justice”). While actual knowledge of the open warrant would lend greater

11      As our procedural rules demonstrate, notice—actual or constructive—already is a
prerequisite to establishing the validity of a bench warrant. See Pa.R.Crim.P. 140(B);
142(A); 543(D)(3); see also id. at 430(B)(4) (“No warrant shall issue under paragraph
(B)(3) unless the defendant has been given notice in person or by first class mail that
failure to pay the amount due or to appear for a hearing may result in the issuance of a
bench warrant, and the defendant has not responded to this notice within 10 days.”);
Pa.R.C.P. 1910.13-1(a)(1) (bench warrant may issue for failure to appear at conference
or hearing in a domestic relations matter if the court finds “following a hearing on the
record that the party had actual notice that the party was ordered to attend the conference
and/or hearing”); see also id. at 234.5(a) (“If a witness fails to comply with a subpoena,
the court may issue a bench warrant and if the failure to comply is wilful may adjudge the
witness to be in contempt.”); but see 42 Pa.C.S. § 5904(d) (bench warrant may not issue
for failure to respond to a subpoena “if service has been by first class mail”).

                          [J-118-2019] [MO: Dougherty, J.] - 19
weight to the presumption, a defendant nonetheless may seek to rebut that presumption

with relevant evidence. See Deemer, 705 A.2d at 829 n.3 (raising, without answering,

“the question of whether a returned fugitive who is able to offer compelling reasons for

his fugitive status (i.e., he was a fugitive for reasons beyond his control) might be allowed

an extension of time for filing” an appeal); cf. Bassing, 208 U.S. at 391-93; Hyatt, 188

U.S. at 713.

       Like the Rehaif Court, I “doubt that the obligation to prove a defendant’s knowledge

of his status will be as burdensome as” the Commonwealth or today’s Majority might think.

Rehaif, 139 S.Ct. at 2198. After all, “knowledge can be inferred from circumstantial

evidence.” Staples, 511 U.S. at 615 n.11; see Commonwealth v. Rizzuto, 777 A.2d 1069,

1078 (Pa. 2001) (“Evidence of flight shows a consciousness of guilt.”) (cleaned up); see

also Commonwealth v. DeJesus, 880 A.2d 608, 615 (Pa. 2005) (noting that “other

evidence presented by the Commonwealth showed that [DeJesus] evaded an arrest on

at least one occasion . . . mak[ing] clear that [he] knew of his fugitive status and intended

to evade police custody, which in turn suggested his consciousness of guilt”).

       Applying the foregoing authority to the facts before us, there exists no question in

my mind that the Commonwealth failed to satisfy its evidentiary burden. This record

contains no evidence that Smith knew of the existence of the bench warrant at the time

of his April 2014 arrest, or that he had received notice that one would be issued for his

failure to appear for any particular proceeding (or for any other reason). The record is

equally silent as to why the warrant was issued in the first place, beyond two fleeting

references to a “probation violation” made by the Commonwealth after the close of

evidence. See N.T., 10/14/2016, at 22-23. Although the Commonwealth marked the

warrant as Exhibit C-3 at the close of Smith’s preliminary hearing, N.T., 6/12/2014, at 25,

it does not appear that the exhibit was moved into evidence during those proceedings or




                          [J-118-2019] [MO: Dougherty, J.] - 20
subsequently at Smith’s bench trial. See Commonwealth v. Williams, 715 A.2d 1101,

1103 (Pa. 1998) (“Appellate courts are limited to considering only those facts that have

been duly certified in the record on appeal.”) (cleaned up). Of course, if Smith had

received notice of a court date in connection with a probation violation—whether technical

or direct—and then deliberately failed to appear, that would be probative of his intent to

abscond from justice.     If he had received notice of the bench warrant itself, the

presumption would be even stronger. But the Commonwealth abdicated its duty by

presenting nothing of the kind.

      For these reasons, I am skeptical that the Commonwealth’s bare stipulation would

have sufficed to make out even a prima facie case that Smith was a fugitive, let alone

prove his status beyond a reasonable doubt. The only relevant entry on the docket

proffered by the Commonwealth in the parties’ stipulation shows that a bench warrant

had been issued on April 3, 2014, for a “probation violation.” See Docket No. CP-51-CR-

0003923-2011, at 7.12 There is no testimony indicating that Philadelphia County deputy

sheriffs had attempted to serve the warrant at Smith’s “usual place of residence within”

the city before his coincidental capture therein on April 21 of that year. See Blackman,

17 A. at 195. Nor does the record suggest that Smith was hiding or in active flight during

those eighteen days. Instead, he was found relaxing in broad daylight, his legs dangling

out of the open side door of a green 1998 Ford Windstar minivan on a public street in


12     From that docket and the sentencing hearing transcript in this case we can deduce
that Smith had been found with contraband while serving a prison sentence for an
unrelated matter in 2010. N.T., 2/2/2017, at 29. He entered a negotiated guilty plea to a
single count of possession of a controlled substance by an inmate, 18 Pa.C.S. §
5123(a.2), a second-degree felony, and was sentenced to six to twenty-three months’
imprisonment followed by three years’ probation. Docket No. CP-51-CR-0003923-2011,
at 4. Prior to his April 2014 arrest, Smith apparently had violated his probation (how,
exactly, remains unclear), prompting the court to issue a bench warrant. Immediately
following sentencing in this case, Smith was sentenced to a term of four years’ probation,
to run concurrently with his sentence in the instant case. Id.


                         [J-118-2019] [MO: Dougherty, J.] - 21
Philadelphia. See N.T., 10/12/2016, at 46-47. That degree of conspicuousness might

seem counterintuitive if one’s goal is to keep a low profile, as a fugitive might be wont to

do. Furthermore, the registered owner of the van—a female acquaintance of Smith’s who

lived in the house in front of which the van innocuously was parked—was a person known

to the Commonwealth at the time of Smith’s 2016 trial. But she was not called to testify.

Perhaps she could have shed some light on whether Smith had willfully absconded “for

the manifest purpose of avoiding arrest.” Blackman, 17 A. at 195. We may never know.

       In sum, the absence of evidence demonstrating Smith’s awareness of the criminal

proceedings against him, and his concomitant intent to abscond from those proceedings,

should be dispositive of the sufficiency question here. But the Majority’s sweeping holding

is far more problematic than the erroneous resolution of the instant appeal. The mere

existence of a bench warrant, without more, cannot suffice to prove that a person is a

“fugitive from justice,” and thus categorically prohibited from possessing a firearm. See

id. The Majority’s contrary holding casts a net of disturbing breadth, threatening to classify

thousands of Pennsylvanians as fugitives per se—summarily stripped of their

constitutional rights and subject to criminal prosecution—regardless of whether their

conduct is consistent with that of a “fugitive” by any cognizable definition.

       Further, the Majority’s analysis essentially eliminates an important scienter

consideration from the Uniform Firearms Act. Absent the requisite proof that a defendant

knew of his prohibited status at the time he possessed a firearm, see generally Rehaif,

139 S.Ct. 2191, Section 6105 presents a threat of criminal prosecution for conduct that

an individual has no reason to believe is illegal. Although this Court has not yet adopted

an interpretation of Section 6105 along the lines of Rehaif, that approach is compelling.

Yet the Majority moves in precisely the opposite direction. Rather than requiring that a

person have knowledge of his prohibited status, the Majority would simply deem an




                           [J-118-2019] [MO: Dougherty, J.] - 22
individual to be a “fugitive from justice” immediately upon the issuance of a bench warrant.

The Majority’s bright line test seemingly would apply irrespective of the individual’s intent

and without regard for whether he knew that such a warrant automatically rendered his

possession of a firearm unlawful. This effectively transforms subsection 6105(c)(1) and

other offenses based upon one’s prohibited status into strict liability crimes, which are

“disfavored and of questionable validity.” See Commonwealth v. Samuels, 778 A.2d 638,

641-44 (Pa. 2001) (Saylor, J., concurring).

       Because the Majority’s overbroad and shortsighted holding risks criminalizing the

conduct of countless individuals without their knowledge, while they engage in what they

believe to be the lawful exercise of the right to keep and bear arms—a right protected by

the Second Amendment to the United States Constitution and Article I, Section 21 of the

Pennsylvania Constitution—I respectfully dissent.




                          [J-118-2019] [MO: Dougherty, J.] - 23
