HomeMy WebLinkAbout01-1104 CriminalCOMMONWEALTH
SCOTT ALAN DERR
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-1104 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., June 9, 2003.
IN this criminal case, Defendant was found guilty following a nonjury trial
of the felony version of carrying a firearm without a license,~ carrying a loaded
weapon other than a firearm,2 driving under the influence,3 and operation
following suspension of registration;4 he was acquitted of driving under
suspension (DUI-related).s He received time-served sentences for the offenses.6
Defendant has filed a direct appeal to the Pennsylvania Superior Court from
the judgment of sentence] The sole issue raised on appeal is whether Defendant
should have been convicted of the misdemeanor version of the offense of carrying
a firearm without a license rather than the felony version. Specifically, the matter
complained of on appeal is expressed by Defendant as follows:
1. Defendant raises one issue on appeal to the Superior
Court.
2. The issue appealed is whether the evidence presented at
trial was sufficient to convict Defendant of the felony charge of
firearms carried without a license [18 Pa.C.S.A. §6106(a)(1)],
Act of December 6, 1972, P.L. 1482, 81, as amended, 18 Pa. C.S. 86106(a)(1) (2002 Supp.).
Act of December 7, 1989, P.L. 607, 81, as amended, 18 Pa. C.S. 86106.1.
Act of June 17, 1976, P.L. 162, 81, as amended, 75 Pa. C.S. 83731(a) (2002 Supp.).
4Act of June 17, 1976, P.L. 162, 81, 75 Pa. C.S. 81371(a).
Act of June 17, 1976, P.L. 162, 81, as amended, 75 Pa. C.S. 81543(b)(1).
Order of Court, April 8, 2003.
Defendant's Notice of Appeal, filed May 5, 2003.
as opposed to the misdemeanor firearms offense [18 Pa.C.S.A.
§6106(a)(2)].8
The issue, as will be discussed herein, tums upon whether Defendant was
committing "any other criminal violation" at the time of the firearms offense.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
On a challenge to the sufficiency of the evidence in a criminal case,
the evidence is to be viewed "in the light most favorable to the Commonwealth"
and "all reasonable inferences in the Commonwealth's favor" are to be
entertained. Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354
(1996) (quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d
1286, 1288 (1984). Viewed in accordance with this rule,9 the evidence in the
present case may be summarized as follows:
On Wednesday, May 16, 2002, at about 5:35 p.m.,l° Defendant drove his~
Dodge truck from his mother's residence at 307 North 24th Street in the Borough
of Camp Hill, Cumberland County, Pennsylvania, while intoxicated.~2 His mother
contacted borough police, who responded to the scene, spoke to her, and began to
search for Defendant.~3
Defendant was found by police a few minutes laterTM in the truck~5 in a
public~6 alley behind his mother's house~7 where he had driven.~8 Defendant had
8 Defendant's Statement of Matters Complained of on Appeal, filed May 23, 2002.
9 For purposes of the issue on appeal, the facts of the present case were not in material dispute.
l0 N.T.5-6, 7-8, 22, Trial (hereinafter N.T. ~.
ix N.T. 27, 37.
l: N.T. 5-6, 37.
is N.T. 5-8, 12-14.
14 N.T. 13.
15 N.T. 14.
16 N.T. 26.
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fallen asleep, with a bottle of vodka beside him;~9 he was disheveled and had
urinated in his pants.2° A BAC test administered about a half hour later produced
a result of .328%.2~
On the passenger's seat were a firearm,22 in the form of a loaded Colt .25
automatic handgun, and a shotgun,23 both of which were Defendant's.24
Defendant did not have a license to carry the firearm in his vehicle.25
DISCUSSION
Statement of law. Under Section 6106(a) of the Crimes Code, the offense
of carrying a firearm without a license, and its gradings, are described as follows:
(1) Except as provided in paragraph (2), any person who
carries a firearm in any vehicle.., without a valid and lawfully
issued license.., commits a felony of the third degree.
(2) A person who is otherwise eligible to possess a valid
license.., but carries a firearm in any vehicle.., without a
valid and lawfully issued license and has not committed any
other criminal violation commits a misdemeanor of the first
degree.
Act of December 6, 1972, P.L. 1482, §1, as amended 18 Pa. C.S. §6106(a) (2002
Supp.) (emphasis added).
With respect to statutory construction, the Pennsylvania Superior Court has
stated as follows in the context of an interpretation of Crimes Code provisions:
An act of Assembly which imposes penal sanctions for
violations of its provisions must be strictly construed.
~7 N.T. 13.
~8 N.T. 36.
19 N.T. 14, 36.
2o N.T. 14.
2~ N.T. 26.
22 N.T. 20-21.
23 N.T. 15, 27-28. Two additional long guns were also found in the vehicle. N.T. 26.
24 N.T. 36-37.
25 N.T. 24, 31, 39; Commonwealth's Ex. 4.
3
However, strict construction does not require that the words of
a criminal statute be given their narrowest meaning or that the
legislature's evident intent be disregarded. If the words of a
statute are clear and unambiguous, we must not disregard the
letter under the pretext of pursuing its spirit. Moreover, we
must construe the words and phrases contained within a statute
according to their common and approved usage. When
interpreting a statute, it is presumed that the legislature did not
intend an absurd or unreasonable result. In this regard, we are
permitted to examine the practical consequences of a particular
interpretation.
Commonwealth v. Diakatos, 708 A.2d 510, 512 (Pa. Super. Ct. 1998) (citations
omitted). It is also a rule of statutory construction that exceptions to a general rule
are not to be expanded beyond their terms. Burkey v. Borough of Auburn, 100 Pa.
Commw. ll0, 114 n.3, 514 A.2d 273, 275 n.3 (1986); Act of December 6, 1972,
P.L. 1339, §3, 1 Pa. C.S. §1924. Finally, courts are reluctant to impress upon a
statutory provision language which the legislature itself could have included had it
intended such a construction. Commonwealth v. Berkorvitz, 415 Pa. Super. 505,
524, 609 A.2d 1338, 1348 (1992).
In Pennsylvania, driving under the influence is a misdemeanor.26 In
common parlance, "[a] misdemeanor is a crime." Sklar v. Department of Health,
798 A.2d 268, 274 (Pa. Commw. Ct. 2002).
Application of law to facts. In the present case, Defendant contended at
trial that, as committed by him, the offense of carrying a firearm without a license
fell within the (misdemeanor) exception of Section 6106(a)(2) of the Crimes Code,
because he was not committing "any other criminal violation" on the occasion of
the offense.27 This position was predicated on the theories that (a) driving under
the influence was not a "criminal violation," inasmuch as it was prohibited in the
Vehicle Code rather than the Crimes Code,:a and (b) that a sufficient nexus,
26 Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §3731(e)(1) (2002 Supp.).
27 N.T. 43.
28 N.T. 43.
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implicit within the language of Section 6106(a)(2), between the offenses of
carrying a firearm in a vehicle without a license and driving under the influence
29
was lacking in this case.
The theory that the term "criminal violation" in Section 6106(a)(2) of the
Crimes Code does not encompass misdemeanors (or felonies) under the Vehicle
Code disregards the common meaning of the term, conflicts with the principle that
a court will generally not impress qualifying language upon a statute which the
legislature could have included had such a qualification been desired,3° and would
lead to an unreasonable result in the form of an exclusion of numerous crimes,
including drug offenses,3~ from the scope of the provision. In addition, the
proffered construction appears to lack any basis in precedent.
The theory that a sufficient nexus, implicit in Section 6106(a)(2), between
the offenses of carrying a firearm in a vehicle without a license and driving under
the influence was lacking in this case is also unpersuasive, in the court's view.
First, a construction of the statutory provision which would limit the meaning of
"any other criminal violation" to "any other criminal violation in which the
firearm was an instrument of the crime" would conflict with the principle that a
court will generally not impress qualifying language upon a statute which the
legislature could have included had it desired to do so.
Second, such a construction is not necessary to a reasonable application of
the statute. A legitimate state interest can be discerned in the proscription of the
possession of an illegal firearm by the perpetrator of a crime, during its
commission, whether or not the weapon is brandished or otherwise resorted to.
29 N.T. 43-44.
30 Had the legislature intended the term "criminal violation" in Section 6106(a)(2) of the Crimes
Code to mean "violation of the Crimes Code," it could have used that language.
~ Drug offenses are set forth in the Controlled Substance, Drug, Device and Cosmetic Act, Act of
April 14, 1972, P.L. 233, as amended, 35 P.S. §§780-101 etseq.
5
Finally, the propriety of Defendant's conviction of the felony version of the
crime of carrying a firearm in a vehicle without a license was not dependent upon
a construction of Section 6106(a)(2) which inferred the absence of any required
nexus between the offenses. The crime of carrying a firearm in a vehicle without a
license, where the weapon lies loaded on the seat next to the driver, and the crime
of driving the vehicle with a BAC level of .328%, share commonalities of vehicle,
actor, and time that, in combination, represent a danger to the public far more
potent than that presented by both offenses committed disjunctively.
For the foregoing reasons, the court was not able to agree with Defendant
that the offense of carrying a firearm in a vehicle without a license qualified as a
misdemeanor rather than a felony.
BY THE COURT,
David J. Freed, Esq.
First Assistant District Attorney
William T. Tully, Esq.
Attorney for Defendant
J. Wesley Oler, Jr., J.
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