Opinion
No. 4 EAP 2019
07-21-2020
COMMONWEALTH of Pennsylvania, Appellee v. Darren MONTGOMERY, Appellant
OPINION
This appeal presents the issue of whether the Superior Court erred by holding that a handgun partially tucked into one's waistband, leaving the weapon's handle visible, was "concealed" as a matter of law for purposes of Section 6106 of the Uniform Firearm's Act, 18 Pa.C.S. § 6106, which prohibits carrying a concealed firearm without a license. We respectfully reject the Superior Court's holding that any level of concealment of a firearm demonstrates concealment as a matter of law, and reaffirm the well-settled principal that whether a defendant concealed a firearm pursuant to Section 6106 is an extremely fact-intensive question for a jury to determine based upon a consideration of the totality of the circumstances.
Nevertheless, for the reasons set forth herein, we hold that a review of the totality of the circumstances establishes that there was sufficient evidence to demonstrate a prima facie case of concealment under Section 6106. Accordingly, we affirm the Superior Court's judgment, which reversed the trial court's order dismissing the Section 6106 charge and remanding for further proceedings.
I. Background
The record establishes that on May 21, 2016, Officer Robert McCuen was on patrol in the area of 1048 East Chelten Avenue in Philadelphia. Officer McCuen observed Appellant "messing with the handle of a gun in his waistband on the 1100 block of Chelten Avenue." N.T., 8/15/2016, at 5. Notably, Officer McCuen believed from his thirteen years of experience as a police officer that the object protruding from Appellant's waistband was a brown handle of a handgun. Appellant then entered a small nearby store, causing Officer McCuen and his partner to park in front of the establishment. When Appellant exited the store shortly thereafter, he looked in the direction of the officers and then turned around and went back into the store.
As Appellant has yet to be tried for his offenses, the facts set forth herein are derived from the testimony presented at his preliminary hearing held on August 15, 2016.
Officer McCuen followed Appellant into the store, which had counters in the front presumably for checkout, a deli in the back with a counter between the employee and the customers, and only two aisles. The officer observed a firearm in the back of the store on the top of a rack of potatoes, a couple of feet away from where Appellant was standing. At that time, the only other individuals in the store were a cook on the other side of the deli counter in the back, and two employees behind the front counter with one customer. Upon finding the gun, Officer McCuen stopped Appellant in the middle of the store and asked him if the firearm belonged to him. Appellant replied that it did not.
Appellant was thereafter charged with one count each of carrying a firearm on public streets in Philadelphia, 18 Pa.C.S. § 6108, and carrying a firearm without a license, 18 Pa.C.S. § 6106, the charge at issue here.
Section 6106, entitled "Firearms not to be carried without a license," provides in relevant part:
(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.
A preliminary hearing was held in the Municipal Court of Philadelphia County ("trial court") on August 15, 2016. Based on the evidence presented as set forth above, the trial court dismissed the Section 6106 charge for lack of evidence. On August 23, 2016, the Commonwealth refiled the complaint alleging a Section 6106 violation. At the December 7, 2016 hearing on the refiled complaint, the trial court heard argument from the parties. No new testimony was presented, as the parties relied upon the evidence presented at the initial preliminary hearing. The trial court again dismissed the Section 6106 charge.
The court bound the Section 6108 charge over for trial.
Refiling of the complaint was permitted under Pa.R.Crim.P. 544(a) (providing that "[w]hen charges are dismissed or withdrawn at, or prior to, a preliminary hearing ..., the attorney for the Commonwealth may reinstitute the charges by approving, in writing, the re-filing of a complaint with the issuing authority who dismissed or permitted the withdrawal of the charges"); see also Pa.R.Crim.P. 1003(E)(1) (providing that preliminary hearings in Philadelphia municipal court shall be conducted in accordance with Pa.R.Crim.P. 544(a), with exceptions not relevant here).
In its opinion in support of dismissal, the trial court held that the Commonwealth failed to present sufficient evidence to demonstrate a prima facie case of carrying a firearm without a license in violation of Section 6106. Initially, the court found that to establish the offense of carrying a firearm without a license, the Commonwealth must prove that: (a) the weapon was a firearm; (b) the firearm was unlicensed; and (c) the firearm was concealed on or about the person outside his home or place of business. Trial Court Opinion, 3/6/2017, at 3 (citing Commonwealth v. Parker , 847 A.2d 745 (Pa. Super. 2004) ). The trial court further acknowledged that "whether a defendant concealed a firearm on his person is a question for the fact-finder, and is extremely fact intensive, as well as determined on a case-by-case basis." Id. (citing Commonwealth v. Nickol , 476 Pa. 75, 381 A.2d 873 (1977) ).
The trial court examined decisions where a court had found sufficient evidence for a jury to conclude that the defendant unlawfully concealed a firearm. Trial Court Opinion, 3/6/2017, at 3 (citing Nickol, supra (finding sufficient evidence to give rise to a permissible inference that the defendant concealed a firearm where a witness testified that she saw no weapon in the defendant's possession prior to his entering the supermarket or after the defendant returned to her car, while other testimony established that the defendant fired a weapon, fatally shooting a supermarket employee); Commonwealth v. Scott , 496 Pa. 188, 436 A.2d 607 (1981) (" Scott Pa. ") (finding sufficient evidence to sustain a conviction of Section 6106 where there was conflicting testimony as to whether the defendant pulled something from his waistband that resembled a gun before shooting the victim or made no attempt to conceal the weapon because questions of credibility were for the trier of fact to resolve).
Coincidentally, as discussed infra , there are two cases identified as Commonwealth v. Scott , which are relevant to this appeal, each unrelated to the other and each decided by a different court. As we refer to the cases repeatedly herein, for ease of discussion we will refer to Commonwealth v. Scott , 496 Pa. 188, 436 A.2d 607 (1981), as "Scott Pa. " and Commonwealth v. Scott , 176 A.3d 283 (Pa. Super. 2017), as "Scott Pa. Super. "
The trial court reasoned that the instant case was distinguishable from those cases because "at no time was an actual gun seen or determined to be in [Appellant's] hand; rather, the officer saw what he believed to be the handle of a gun in [Appellant's] waistband; later, a gun was seen on top of some merchandise in the store, not on [Appellant's] person." Trial Court Opinion, 3/6/2017, at 4 (emphasis in original). The court also cited Commonwealth v. Williams , 237 Pa.Super. 91, 346 A.2d 308 (1975), for the proposition that there was insufficient evidence of concealment where a witness observed the defendant firing a handgun at a passing automobile in Philadelphia, spinning the gun and tossing it from hand to hand, and placing the gun in his belt; yet, no gun was found on the defendant when he was subsequently arrested and searched.
The trial court's citation to the Superior Court's holding in Williams appears to lend significance to the fact that no gun was found on the defendant when he was subsequently arrested and searched. As discussed infra , a fair reading of Williams , however, does not plainly support that notion, as the court's analysis seemingly focused on the defendant's open use of the firearm, as opposed to his concealment thereof. See Williams , 346 A.2d at 310 (holding that "there is no evidence whatsoever as to any attempt by appellant to conceal any weapon; and therefore, we must conclude that the evidence was insufficient to sustain appellant's conviction as to Section 6106").
Accordingly, the trial court dismissed the Section 6106 charge based upon the lack of evidence establishing that the item purportedly concealed in Appellant's waistband was, in fact, a firearm. See Trial Court Opinion, 3/6/2017, at 6 (opining that "there is no evidence that, whatever [Appellant] had in his possession or in his waistband, if anything, was a gun that [Appellant] was attempting to conceal when he was first observed by Officer McCuen"). Emphasizing the lack of evidence that Appellant ever brandished a firearm, which could lead to an inference that the firearm was, at some point, concealed, the court concluded that the Commonwealth could not establish a prima facie case that Appellant concealed a firearm on his person.
The Superior Court reversed. Commonwealth v. Montgomery , 192 A.3d 1198 (Pa. Super. 2018). The intermediate appellate court first observed that "[a]t the preliminary hearing stage of a criminal prosecution, the Commonwealth need not prove the defendant's guilt beyond a reasonable doubt, but rather, must merely put forth sufficient evidence to establish a prima facie case of guilt." Id. at 1200 (quoting Commonwealth v. Karetny , 583 Pa. 514, 880 A.2d 505, 513-14 (2005) ). The court reasoned that "[t]he Commonwealth establishes a prima facie case when it presents evidence that the defendant violated a criminal statute. Id. (citing Karetny , 880 A.2d at 514 ). In determining whether the Commonwealth presented facts that warrant a trial on the merits of the Section 6106 charge, the Superior Court narrowly viewed the issue as "whether a firearm tucked into a waistband so that its handle is visible is ‘concealed.’ " Id.
The Superior Court indicated that it exercised jurisdiction because the Commonwealth, in its notice of appeal, certified that the dismissal of the carrying a firearm without a license charge "substantially handicaps its prosecution." Montgomery , 192 A.3d at 1199 n.1 (citing Pa.R.A.P. 311(d) ).
The Superior Court analyzed three cases to resolve the appeal. First, it examined that court's decision in Commonwealth v. Williams, supra , cited by the trial court, which held that there was no evidence of any attempt to conceal a firearm where the defendant was seen firing a gun at a passing car, walking thereafter with the gun at his side, spinning and tossing the gun from one hand to the other, and then placing the gun in his belt. Curiously, the intermediate appellate court reasoned that Williams appeared to be in conflict with this Court's decision in Scott Pa. , supra , which it interpreted as holding that there was sufficient evidence to sustain a conviction of Section 6106 where two witnesses testified that they observed the defendant pull something from his waistband that resembled a gun, notwithstanding that the defendant testified that he made no attempt to conceal the weapon.
The intermediate appellate court concluded that its decision in Scott Pa. Super., see n.4, supra , "reveals a possible distinction" between the cases of Williams and Scott Pa . Id. at 1201. In Scott Pa. Super. , a police officer was conducting a pat-down of the defendant in response to a report of domestic violence and discovered a handgun in its holster located under the defendant's t-shirt. The defendant contended that he had not intentionally concealed the firearm on his person as his t-shirt had initially been tucked into his pants, revealing the gun, but that the t-shirt had become untucked. On appeal from his Section 6106 conviction, the defendant reiterated that he had not intentionally concealed the firearm on his person, and argued that concealment under the statute requires a culpable mental state. The court in Scott Pa. Super. agreed, holding that Section 6106 was not a strict liability statute, and thus, the Commonwealth was required to prove that the defendant had acted " ‘intentionally, knowingly, or recklessly’ with respect to each element, including the concealment element." Scott Pa. Super. , 176 A.3d at 291 (internal citation omitted).
Notably, drawing from these decisions, the Superior Court below held as a matter of law that, pursuant to Scott Pa. , "any concealment, even partial, is sufficient to satisfy the concealment element of the crime." Montgomery , 192 A.3d at 1201. It further concluded that pursuant to Scott Pa. Super. , the Commonwealth must still prove that Appellant possessed the intent to conceal the weapon. Id. The Superior Court interpreted Williams as holding that the evidence in that case was insufficient to establish a violation of Section 6106, as the defendant visibly brandished and fired the gun in front of witnesses and his placement of the gun in his waistband was nothing more than a negligently convenient carrying method. Id. The court concluded, perhaps erroneously, that "to the extent language in Williams is contrary to this interpretation, we recognize that it was implicitly overruled by [ Scott Pa. ]." Id.
Applying such jurisprudence to the facts presented, the Superior Court held that under Scott Pa. , the Commonwealth presented sufficient evidence of concealment because the firearm was tucked into Appellant's waistband with only the handle visible. Id. The court went on to hold that there was sufficient evidence that Appellant knowingly concealed the weapon as Officer McCuen testified that Appellant turned around when he saw a police officer and walked into a nearby store, and when the officer caught up to Appellant, he placed the gun on a nearby produce rack. Id. The Superior Court concluded that this evidence was "sufficient to allow a finder of fact to conclude [Appellant] was attempting to conceal the firearm from observation." Id. Accordingly, the court held that the trial court erred in quashing the Section 6106 charge.
II. Parties Arguments
Appellant contends that the Superior Court erred in reversing the trial court's dismissal of the Section 6106 charge. The crux of his argument focuses on refuting the Superior Court's holding that "any concealment, even partial, is sufficient to satisfy the concealment element of the crime." Montgomery , 192 A.3d at 1201. In Appellant's view, a handgun tucked into a waistband, with the handle protruding and clearly visible cannot be "concealed" for purposes of Section 6106. Acknowledging that the term "concealed" is undefined by the Uniform Firearms Act or the Crimes Code, he suggests that the Court adopt a dictionary definition, particularly, Webster's Third New International Dictionary of the English Language (Unabridged), 469 (1993), which defines "conceal" as "to place out of sight; withdraw from being observed; shield from vision or notice." Appellant posits that his firearm was not placed out of sight or shielded from vision, as half of the firearm was protruding from his waist, visible to all passersby, including Officer McCuen.
Appellant submits that if the Legislature intended to prohibit partial concealment, it would have drafted the statute to prohibit firearms that were "fully or partially concealed." Brief for Appellant at 12 (citing, e.g., 18 Pa.C.S. § 7507.1(a)(1) (prohibiting the videotaping or otherwise recording of another person without their consent in a state of "full or partial nudity")). In the absence of such language, Appellant maintains that Section 6106, as a penal statute, must be strictly construed. Id. at 10-11 (citing Commonwealth v. Brown , 603 Pa. 31, 981 A.2d 893, 898 (2009) (providing that "where doubt exists concerning the proper scope of a penal statute, it is the accused who should receive the benefit of such doubt"), and 1 Pa.C.S. § 1928(b)(1) (providing that penal statutes are to be strictly construed)).
Appellant contends that the Superior Court's analysis of the case law interpreting Section 6106 is flawed for several reasons, all relating to the court's ultimate holding that partial concealment of a firearm is sufficient to establish the concealment element of Section 6106 as a matter of law. Contrary to the lower court, Appellant interprets Williams as standing for the proposition that the placement of a gun in one's waistband is insufficient to demonstrate concealment under Section 6106. Appellant asserts that the Superior Court concluded mistakenly that Williams had been overruled by this Court's subsequent decision in Scott Pa. He maintains that Scott Pa. held only that when there is evidence that the defendant concealed the weapon and evidence that he did not conceal it, resolution of the issue is for the trier of fact to determine. In no way, Appellant asserts, did Scott Pa. alter Williams ’ holding that there is no concealment if the firearm is visible.
Appellant further relies upon a responsive opinion of Judge Hester in Commonwealth v. Berta , 356 Pa.Super. 403, 514 A.2d 921 (1986). At issue in Berta was whether it was unlawful for one to possess, in a concealed fashion, an unloaded, unlicensed replica of an antique firearm. The court answered the inquiry in the affirmative. Acknowledging that the defendant abandoned his challenge to the lower court's finding of concealment where the trooper had observed the butt of what appeared to be a pistol protruding from the defendant's belt line, Judge Hester opined that such evidence did not establish concealment. Interpreting Williams in the same manner as Appellant, i.e., as holding that the placement of a firearm in one's waistband is insufficient to establish concealment, Judge Hester found that, had the issue been argued on appeal, he would have reversed the Section 6106 conviction. Appellant contends that Judge Hester's concurring opinion is persuasive and should be adopted by this Court.
Finally, Appellant relies on decisions from other states for the proposition that when a police officer observes and readily identifies the handle of a pistol extending from an individual's waistband, that gun is not concealed for purposes of statutes prohibiting the carrying of a concealed weapon. Brief for Appellant at 16-17 (citing People ex. Rel. O.R. , 220 P.3d 949, 952 (Colo. Ct. App. 2009) (holding that "concealed" means placed out of sight so as not to be discernible or apparent by ordinary observation; thus, the lower court erred in determining that a partially concealed, but readily discernable firearm is "concealed" for purposes of the governing statute); State v. Reams , 121 N.C. 556, 27 S.E. 1004, 1006 (1987) (providing that if a weapon is partly exposed to public view, it would be unreasonable to conclude legally that the gun was concealed); State v. White , 376 So. 2d 124, 125 (La. 1979) (holding that partial concealment of a weapon is insufficient to establish the offense of carrying a concealed weapon where the jury concludes that the weapon was displayed in a manner that its identity was clearly revealed); People v. Crachy , 131 Ill.App.2d 402, 268 N.E. 2d 467, 467-68 (1971) (holding that evidence that an officer observed from fifteen to thirty feet away that the defendant was carrying a pistol in his waistband was insufficient to establish concealment, as the weapon was not covered or obstructed from view); Clemons v. State , 9 Md.App. 127, 262 A.2d 786, 788 (1970) (holding that there was insufficient evidence of concealment of a weapon where the defendant pulled the pistol from his belt, which was not covered by a coat); and Reid v. Commonwealth , 298 Ky. 800, 184 S.W.2d 101, 102 (Ky. Ct. App. 1944) (holding that a pistol tucked into the waistband of the defendant's pants was not concealed for purposes of a firearms violation)).
Accordingly, Appellant urges the Court to vacate the judgment of the Superior Court and remand the matter for trial on the remaining charge alleging a violation of Section 6108, carrying a firearm in Philadelphia.
The Commonwealth responds that the Superior Court's ultimate ruling that the evidence was sufficient to establish a prima facie case of concealment under Section 6106 is jurisprudentially sound. A careful reading of the Commonwealth's position, however, reveals that it does not contend that a handgun partially tucked into one's waistband, leaving the gun's handle partially visible, is sufficient, in and of itself, to demonstrate a violation of Section 6106, as a matter of law. Rather, the Commonwealth posits that evidence of any concealment, even partial, may be sufficient to submit the case to the jury if the evidence, viewed as a whole in the light most favorable to the Commonwealth, supports the inference that the carrier of the firearm intended to conceal it. Brief for Appellee at 17. Applying this totality of the circumstances paradigm to the facts presented, the Commonwealth concludes that sufficient evidence exists to allow a factfinder to infer reasonably that Appellant knowingly concealed his firearm, as he carried it partially tucked into his waistband, evaded police by retreating into a store when the officers observed him, and hid the firearm on a rack of potatoes when the officers approached him.
The Commonwealth refutes Appellant's position that to constitute concealment under Section 6106, the firearm must be completely obscured from view. It relies on the Superior Court's decision in Commonwealth v. Butler , 189 Pa.Super. 399, 150 A.2d 172 (1959), which held that there was sufficient evidence of concealment where witnesses observed part of a gun handle protruding from the defendant's pocket, followed by the defendant's attempt to hide the weapon by passing it to his wife when police officers approached, a factual scenario the Commonwealth finds remarkably similar to that presented here. It asserts that Butler rejected expressly the argument that the word "concealed’ as used in the Uniform Firearms Act "envisages total concealment." Brief for Appellee at 11 (citing Butler , 150 A.2d at 173 ). Rather, the Commonwealth maintains, the court concluded that "the issue of concealment depends upon the particular circumstances present in each case, and is a question for the trier of fact." Id .
The Commonwealth also relies on Butler to contradict Appellant's suggestion that the term "concealed," undefined by statute, is ambiguous, and, thus, subject to strict construction. It argues that the meaning of "concealment" in Section 6106 is not rendered ambiguous, and, thus, subject to strict construction, merely because it lacks a modifier. It observes that in Butler , the intermediate appellate court explained that the rule of strict construction of penal statutes "does not require that the words of a criminal statute must be given their narrowest meaning or that the evident legislative intent should be disregarded," and that the "cannon of strict construction of penal statutes is not an inexorable command to override common sense and evident statutory purpose." Brief for Appellee at 11 (citing Butler , 150 A.2d at 173 ).
The Commonwealth argues that common sense would be compromised and the purpose of the concealment statute subverted if we adopted Appellant's position. It submits that defining concealment as requiring invisibility of the firearm would allow a defendant to thwart a Section 6106 charge by leaving only the smallest portion of a firearm visible, regardless of how unrecognizable that little part may be to an average citizen or police officer, and conceal a weapon for unlawful purposes with impunity. Brief for Appellee at 10 (citing Commonwealth v. McKown , 79 A.3d 678, 690 (Pa. Super. 2013) (holding that Section 6106 "serves to protect the public from persons who would carry concealed firearms for unlawful purposes")). The Commonwealth maintains that Pennsylvania courts have long recognized a plain, common-sense interpretation of concealment. It relies on this Court's decision in Scott Pa. for the proposition that testimony of witnesses who observed the defendant "pull from his waistband something that looked like a gun" was sufficient to sustain the jury's conclusion that the defendant concealed the weapon that he used to shoot the victim. Brief for Appellee at 13 (citing Scott Pa. , 436 A.2d at 608-09 ). Emphasizing that the Court in Scott Pa. deferred to the jury's resolution of the fact-intensive issue of concealment, the Commonwealth maintains that we should follow a similar approach here and decline Appellant's invitation to define concealment by the most restrictive means possible.
The Commonwealth further disputes Appellant's interpretation of the Superior Court's decision in Williams, as holding that the placement of a firearm in one's waistband is insufficient to demonstrate concealment under Section 6106. To the contrary, it asserts, the intermediate appellate court's holding in Williams had nothing to do with the ultimate placement of the firearm in the defendant's waistband. Rather, it submits, Williams simply held that there was no evidence of any attempt to conceal a weapon where the defendant was shooting, waving, and tossing his firearm from hand to hand before placing it in his belt. The Commonwealth argues that the circumstances herein are readily distinguishable as Appellant made known his intent to conceal the weapon.
In fact, the Commonwealth posits, Appellant's interpretation of concealment ignores entirely the consideration of whether he demonstrated an intent to conceal his firearm, which was firmly established when he evaded police by entering the store after the officers observed him with the weapon, and concealed the weapon on a rack of potatoes when he saw the police officers approaching. Brief for Appellee at 14 (citing Scott Pa. Super. , 176 A.3d at 291 (holding that to establish a violation of Section 6106, the Commonwealth must establish that a defendant acted intentionally, knowingly or recklessly in concealing the weapon)).
The Commonwealth also finds Appellant's reliance upon Judge Hester's concurring opinion in Berta , supra , to be misplaced as the responsive opinion is not precedential, and is inapposite as the defendant in Berta simply had a firearm in his waistband and demonstrated no intent to conceal the weapon by attempting to hide it when he saw police, as occurred here. We agree with the Commonwealth that the majority's decision in Berta did not speak to the issue presented herein and that Judge Hester's responsive opinion has no precedential value.
Finally, the Commonwealth cites decisions from other jurisdictions that stand for the proposition that concealment is a fact-intensive inquiry for the trier of fact, and that total invisibility of the gun is not required. See Brief for Appellee at 18-20 (citing, inter alia , McKee v. State , 488 P.2d 1039, 1042 (Al. 1971) (holding that a weapon is concealed if it is hidden from ordinary observation; absolute invisibility to others is not required); People v. Fuentes , 64 Cal.App.3d 953, 134 Cal. Rptr. 885, 886 (1976) (holding that the mere fact that "some portion of the handle" of the weapon may have been visible renders it "no less a concealed weapon"); State v. Sellers , 281 So.2d 397, 398 (Fla. Dist. Ct. App. 1973) (holding that "where the weapon is carried in such a manner that an ordinary citizen viewing the accused would not see the weapon clearly exposed as such the question of concealment should be left to the jury")). Accordingly, the Commonwealth concludes that the Superior Court's judgment should be affirmed, as it satisfied its burden at the preliminary hearing stage of establishing a prima facie case of concealment under Section 6106.
III. Analysis
Stated broadly, we must determine whether the Superior Court erred in reversing the trial court's dismissal of the Section 6106 charge for failure to present a prima facie case of concealment at the preliminary hearing, as well as the trial court's refusal to allow the Commonwealth to refile that charge. It is well-established that "the evidentiary sufficiency, or lack thereof, of the Commonwealth's prima facie case for a charged crime is a question of law as to which an appellate court's review is plenary." Commonwealth v. Karetny , 880 A.2d at 513.
It is equally well-settled in our jurisprudence that a preliminary hearing is not a trial, that the principle function of a preliminary hearing is to "protect an individual's right against an unlawful arrest and detention," and that the Commonwealth bears the burden at the preliminary hearing of establishing "a prima facie case that a crime has been committed and that the accused is probably the one who committed it." Commonwealth v. Weigle , 606 Pa. 234, 997 A.2d 306, 311 (2010) (quoting Commonwealth v. McBride , 528 Pa. 153, 595 A.2d 589, 591 (1991) ). The evidence supporting a prima facie case need not establish the defendant's guilt beyond a reasonable doubt, but must only demonstrate that, if presented at trial and accepted as true, the judge would be warranted in permitting the case to proceed to a jury. Commonwealth v. Karetny , 880 A.2d at 514. The Commonwealth establishes a prima facie case where it "produces evidence of each of the material elements of the crime charged and establishes probable cause to warrant the belief that the accused committed the offense." Id.
In examining the elements of the crime charged herein, we reiterate that Section 6106 of the Uniform Firearms Act provides, as relevant here, that "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." 18 Pa.C.S. § 6106(a)(1). The narrow question posed by Appellant in this appeal involves only the concealment element of the crime. See Commonwealth v. Montgomery , ––– Pa. ––––, 204 A.3d 360 (2019) (granting review of the issue of whether the Superior Court erred in holding that a handgun that was only partially tucked into a waistband, with the handle visible, was "concealed" for purposes of the Uniform Firearms Act). ,
Like our review of the evidentiary sufficiency of the Commonwealth's prima facie case, our standard of review of a lower court's interpretation of a statute is de novo , and our scope of review is plenary. Shafer Elec. & Constr. v. Mantia , 626 Pa. 258, 96 A.3d 989, 994 (2014).
Appellant does not claim in this appeal that the Commonwealth failed to establish that the weapon at issue was a firearm or that the firearm was unlicensed.
As noted, Appellant challenges the Superior Court's holding in this regard, contending that it was error to conclude as a matter of law that "any concealment, even partial, is sufficient to satisfy the concealment element of the crime." Montgomery , 192 A.3d at 1201. He further argues that the plain meaning of the term "concealed" in Section 6106 denotes invisibility or a complete shield from notice, and that a finding of concealment here would be contrary to this Commonwealth's case law.
Without endorsing the Superior Court's holding that partial concealment is sufficient to satisfy the concealment element of Section 6106 as a matter of law, the Commonwealth posits that a handgun partially tucked into one's waistband could be sufficient to establish concealment if the evidence, when viewed as a whole and in the light most favorable to the Commonwealth, supports an inference that the defendant intended to conceal it. It concludes that the evidence presented at Appellant's preliminary hearing satisfies this standard.
Initially, we observe that the term "concealed" is not defined by the Uniform Firearms Act or the Crimes Code. When interpreting the term for purposes of Section 6106, we keep in mind that "[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa.C.S. § 1921(a). When ascertaining legislative intent, "[e]very statute shall be construed, if possible, to give effect to all its provisions." Id . The words of a statute shall be construed according to rules of grammar and according to their common and approved usage. Id. § 1903(a). We further acknowledge that the Pennsylvania General Assembly does not intend a result that is absurd, impossible of execution, or unreasonable, id. § 1922(1), and we presume that the General Assembly intends the entire statute to be effective. Id. § 1922(2). Only when the statutory language is unclear may a court go beyond that language to consider the factors enumerated in the Statutory Construction Act. Id. § 1921(c).
Upon careful consideration, we agree with Appellant that the Superior Court erred by holding that any level of concealment, even partial, is sufficient as a matter of law to satisfy the concealment element of Section 6101. In support of its conclusion in this regard, the intermediate appellate court relied upon this Court's decision in Scott Pa .
In Scott Pa. , the defendant had been convicted of third degree murder and a violation of Section 6106 after he fatally shot the victim. The defendant contended that he had acted in self-defense, although witnesses indicated that the defendant had not been provoked. Two Commonwealth witnesses testified that they observed the defendant pull from his waistband "something that looked like a gun," while the defendant claimed that he made no attempt to conceal his firearm and, instead, approached the group while holding the gun openly in his hand. Scott Pa. , 436 A.2d at 608-09. On appeal, the defendant challenged the sufficiency of the evidence establishing concealment. Emphasizing that questions of credibility are to be resolved by the jury, this Court held, without elaboration, that the testimony of the two Commonwealth witnesses "is sufficient to sustain the jury's conclusion that appellant had, in fact, concealed the weapon." Id. at 609.
The statute at the time, albeit different from the current version, contained the relevant language prohibiting a person from carrying a firearm "concealed on or about his person" without a license. Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 6106 (repealed).
Contrary to the reasoning of the intermediate appellate court in the instant appeal, this Court in Scott Pa . did not base its ruling on any particular level of concealment, but concluded, rather summarily, that it was for the jury to resolve conflicts of fact relating to whether the firearm was concealed. Thus, our decision in Scott Pa . cannot reasonably be interpreted as holding that any concealment, even partial, is sufficient to satisfy the concealment element of Section 6106 as a matter of law. Conversely, appellate courts in this Commonwealth have consistently held that it is for the finder of fact to determine under the totality of the circumstances whether the defendant concealed a firearm on or about his person. See Commonwealth v. Nickol , 381 A.2d at 877 (holding that the issue of whether the defendant concealed a firearm was a question for the fact-finder where a witness testified that she saw no weapon in the defendant's possession prior to entering the supermarket or after the defendant returned to her car, while other testimony established that the defendant fired a weapon, fatally shooting a supermarket employee); Commonwealth v. Horshaw , 237 Pa.Super. 76, 346 A.2d 340, 343 (1975) (holding that the "issue of concealment depends upon the particular circumstances present in each case, and is a question for the trier of fact"); Butler , 150 A.2d at 173 (same).
We acknowledge that the Superior Court did not end its analysis by finding that any level of concealment was sufficient, as it proceeded to examine Appellant's intent to conceal, as demonstrated by his evasion of police and placement of his gun on the rack of potatoes.
The Superior Court also relied on its prior decision in Scott Pa . Super. for the proposition that the Commonwealth must prove that the defendant acted with the requisite intent in concealing the firearm. See Montgomery , 192 A.3d at 1201 (interpreting Scott Pa. Super. as holding that Section 6106 is not a strict liability provision and that the Commonwealth was required to prove that the defendant acted intentionally, knowingly or recklessly in concealing the firearm). While we do not dispute the Superior Court's interpretation of Scott Pa. Super. , we find that decision irrelevant to the determination of what level of concealment, if any, is required to satisfy Section 6106 as a matter of law.
Our analysis is not concluded, however, as we must still construe the term "concealed," as used in Section 6106. In doing so, we decline Appellant's invitation to interpret "concealed" as requiring the defendant to obscure the firearm from sight completely. As cogently argued by the Commonwealth, we find particularly insightful and persuasive the analysis set forth by the Superior Court more than sixty years ago in Butler , supra , which addressed this precise issue.
In Butler , witnesses observed the defendant with a revolver "sticking up in the pocket" of his jacket, and when officers arrived, the defendant attempted to hide the gun from police by passing it to his wife. Butler , 150 A.2d at 173. The witnesses explained that they could see part of the gun's handle, while the defendant testified that the gun was plainly visible. Following a bench trial, the defendant was convicted of violating a prior version of Section 6106, which, like the current version, prohibited a person from carrying a firearm "concealed on or about his person" without a license. Id. , at 172 (citing 18 Pa.C.S. § 4628 (repealed)).
On appeal, the defendant contended that the evidence was insufficient to establish concealment because the term "concealed" as used in the statute "envisages total concealment." Id. at 173. The intermediate appellate court in Butler expressly rejected this approach, explaining that the "evil sought to be corrected by the enactment of the Uniform Firearms Act is a serious one, and courts owe a duty to the public to see to it that the legislative intent is not thwarted by a construction which is unreasonably rigid and inflexible." Id. The court viewed the statute as "discouraging the carrying of unlicensed weapons because of the inherent threat to human life and public peace." Id.
Acknowledging that courts construe penal statutes strictly, the Butler court emphasized that the "rule of strict construction does not require that the words of a criminal statute must be given their narrowest meaning or that the evident legislative intent should be disregarded." Id. (citing Commonwealth v. Mason , 381 Pa. 309, 112 A.2d 174, 175 (1955) ). It found that the canon of strict construction of penal statutes "is not an inexorable command to override common sense and evident statutory purpose." Id. Emphasizing that the determination of whether one concealed a firearm depends upon the particular circumstances of each case, the Butler court concluded that the manner by which the defendant carried the weapon, coupled with his effort to conceal it from the police officers, were sufficient to sustain his conviction.
We reach a similar conclusion here. The courts of this Commonwealth have never adopted the view that absolute concealment of the firearm is required to establish a violation of Section 6106. This interpretation would be unreasonable as it would allow the defendant to avoid prosecution for carrying an unlicensed concealed weapon if he were to leave the smallest portion of the firearm exposed to view. The prohibition on carrying an unlicensed concealed weapon serves to apprise citizens of the fact that an individual is carrying deadly force, thereby lessening the chance that such individual could take his adversary, or anyone else, at a fatal disadvantage. Allowing unlicensed individuals to circumvent the concealment proscription by revealing a small portion of the gun that would go unnoticed by ordinary observation would thwart the very transparency that the statute promotes. Accordingly, we hold that one "carries a firearm concealed on or about his person" pursuant to Section 6106 when, viewed in the totality of the circumstances, he or she carries the firearm in such a manner as to hide the firearm from ordinary observation; absolute invisibility to others is not required.
Contrary to Justice Wecht's dissenting opinion, we are not removing the Commonwealth's burden of establishing that the unlicensed firearm was concealed. Nor are we suggesting that criminal liability under Section 6106 lies each time a citizen carries an unlicensed firearm in a manner that displays a portion, but not all of the weapon. In fact, we have rejected expressly the Superior Court's holding in that regard. Instead, this decision is interpreting the phrase "concealed on or about his person" in accordance with that phrase's plain meaning and common usage, taking into account the context in which the General Assembly employed the phrase, and defining the terms to denote "hiding the firearm from ordinary observation." The statute requires concealment, not partial concealment and not total concealment. The import of our decision is that a jury is not precluded from finding liability under Section 6106 where the circumstances establish that the defendant carried an unlicensed firearm on or about his person in a manner so as to hide it from ordinary observation, without rendering the firearm completely invisible to the naked eye. As demonstrated throughout, the instant facts illustrate how a factfinder could reasonably reach that conclusion. Unlike Justice Wecht's dissent, which focuses on a "snapshot" in time, both figuratively and literally, to determine whether the particular item is concealed, we follow the jurisprudence cited herein, which requires a review of the totality of the circumstances presented and leaves that determination to the jury.
Applying this construct to the instant appeal, upon a review of the totality of the circumstances presented, we conclude that it is clear that the Commonwealth presented sufficient evidence at the preliminary hearing to establish a prima facie case of concealment. We reach this conclusion in recognition of well-settled case law establishing that at the preliminary hearing stage, evidence must be viewed in the light most favorable to the Commonwealth and inferences reasonably drawn from the evidence supporting a verdict of guilt must be given effect. Commonwealth v. Huggins , 575 Pa. 395, 836 A.2d 862, 866 (2003).
Here, the Commonwealth presented at the preliminary hearing the testimony of Officer McCuen who observed Appellant "messing with the handle of a gun in his waistband." N.T., 8/15/2016, at 5. Although the firearm was not "fully visible," id. , based on his thirteen years of experience as a police officer, Officer McCuen believed that the object in Appellant's waistband was the brown handle of a handgun. The officer then observed Appellant enter a small nearby store and exit the store shortly thereafter. Upon glancing in the officer's direction, Appellant immediately returned to the store. Officer McCuen followed Appellant inside and recovered a firearm in the back of the store on the top of a rack of potatoes, a few feet from where Appellant was standing. When asked if the gun belonged to him, Appellant responded that it did not.
The record does not support Appellant's assertion that "the barrel of a handgun was shoved into his belt," and was "protruding for anyone to see." Brief for Appellant at 9. As noted, Officer McCuen testified that he "observed Appellant "messing with the handle of a gun in his waistband," not in his belt, and that the gun was not "fully visible." N.T. 8/15/2016, at 5. The Commonwealth emphasizes the significance of the distinction between placing a firearm in one's belt, as opposed to one's waistband, reasoning that a gun placed in a belt obscures the weapon only to the extent of the width of the belt, while an object placed in a waistband is completely obscured below the top of the waistband.
This evidence, when view in its entirety and in the light most favorable to the Commonwealth, is sufficient to give rise to a permissible inference that Appellant concealed his firearm as he carried it partially tucked into his waistband, evaded police by retreating into a store when officers observed him, and evidenced his intent to conceal the weapon by hiding the firearm on a rack of potatoes when the officers approached. See Commonwealth v. Pressley , 433 Pa. 163, 249 A.2d 345, 346 (1969) (holding that it was proper for a jury to infer concealment where an officer observed the defendant across the street reach under his sweater and then saw a gun at the defendant's feet after a bus passed between the officer and the defendant). Appellant may certainly offer evidence at trial and argue to the jury that he did not intentionally conceal a firearm in his waistband and that the particular firearm that Officer McCuen discovered in the store did not belong to him. A reasonable jury may credit such facts. This defense theory, however, does not alter the fact that the Commonwealth established a prima facie case of concealment at the preliminary hearing to warrant holding this matter over for trial. Under these circumstances, it is for the finder of fact to determine whether the evidence presented constitutes concealment for purposes of Section 6106.
In her concurring and dissenting opinion, Justice Donohue agrees with our interpretation of "concealment," which does not require absolute invisibility of the firearm. Concurring and Dissenting Opinion (Donohue, J.) at 538. She disagrees, however, with our application of that legal standard to the facts presented. Justice Donohue views Officer McCuen's testimony as insufficient to demonstrate a prima facie case of concealment, and concludes that Appellant's actions of evading the police and discarding the firearm are irrelevant to the concealment inquiry. Id. , at 540. While a jury may agree with Justice Donohue that Officer McCuen's testimony demonstrates that Appellant's firearm was not hidden from ordinary observation, the jury may also conclude that the object in Appellant's waistband, although not invisible, would have gone unnoticed by ordinary observation, and that Appellant's evasion of police and discarding of the firearm when officers approached evidenced his continued intent to conceal the firearm. See Commonwealth v. Butler , 150 A.2d at 173 (holding that the manner by which the defendant carried the weapon in his pocket coupled with the defendant's efforts to conceal the weapon by passing it to his wife when police approached were sufficient to constitute concealment). Consistent with our jurisprudence, we refrain from making a determination of concealment as a matter of law and leave it to the fact-finder to consider the totality of the circumstances and determine whether Appellant concealed the firearm.
Finally, we find no merit to Appellant's assertion that finding a prima facie case of concealment under the facts presented would be inconsistent with the Superior Court's decision in Williams , supra . In Williams , the defendant was convicted of carrying a concealed weapon without a license after witnesses observed him firing a handgun at a passing vehicle, spinning the gun and tossing it from one hand to the other, and ultimately placing the weapon in his belt. The defendant was thereafter arrested and searched, but no firearm was found. On appeal, the defendant contended that there was insufficient evidence of concealment. The Superior Court agreed, opining only that there was "no evidence whatsoever as to any attempt by appellant to conceal any weapon;" thus, the evidence was insufficient to sustain the conviction under Section 6106. Williams , 346 A.2d at 310.
Contrary to Appellant's contentions, there is no language in the Williams ’ decision suggesting that the finding of insufficient evidence of concealment was based on the fact that the defendant ultimately placed the firearm in his belt. Rather, the import of the decision was simply that there was insufficient evidence of concealment because the defendant carried the firearm openly as he fired it and tossed it from hand to hand, and did not demonstrate an intent to conceal the weapon in any way. As demonstrated above, the facts of the instant case are clearly distinguishable.
Accordingly, for the reasons set forth herein, we affirm the judgment of the Superior Court, which reversed the trial court's dismissal of the Section 6106 charge and remanded the case for further proceedings.
Chief Justice Saylor and Justices Todd, Dougherty and Mundy join the opinion.
Justice Donohue files a concurring and dissenting opinion.
Justice Wecht files a dissenting opinion.
JUSTICE DONOHUE
I join the Majority's holding that the Superior Court erroneously concluded that any level of concealment satisfies the element of "concealment" as required by 18 Pa.C.S. § 6106. I further agree that the term does not require absolute invisibility and that a totality of the circumstances analysis governs the question of whether a firearm was concealed. I respectfully dissent, however, with respect to the Majority's application of the test on the facts presented here. I agree with Montgomery that his firearm was readily discernible to the public and therefore not concealed. Thus, the Commonwealth failed to establish a prima facie case.
The Majority, correctly in my view, holds that a firearm is concealed "when, viewed in the totality of the circumstances, he or she carries the firearm in such a manner as to hide the firearm from ordinary observation; absolute invisibility to others is not required." Majority Op. at 536. The corollary to this, however, is that where the firearm is not hidden from ordinary observation there is no concealment.
Here, the record establishes that Officer McCuen observed Montgomery "messing with the handle of a gun in his waistband on the 1100 block of Chelten Avenue.’ " N.T., 8/15/16, at 5. This recitation establishes that the firearm was not hidden from ordinary observation and hence was not concealed. The Majority presumably agrees that, at the discrete moment in time testified to by Officer McCuen, the firearm was not concealed.
The Majority nevertheless finds that this case may go to trial. Its conclusion that the firearm was not hidden from ordinary observation notwithstanding the foregoing appears to rest on a combination of two reasons. First, only Officer McCuen's experience clued him in to the fact that the handle was a firearm as opposed to some other object. Second, Montgomery evaded the officer and discarded the firearm.
Addressing the matter of Officer McCuen's experience as a police officer, the Majority twice notes that point. Majority Op. at 526 ("Notably, Officer McCuen believed from his thirteen years of experience as a police officer that the object protruding from Appellant's waistband was a brown handle of a handgun."); id . at 537 ("Although the firearm was not ‘fully visible,’ based on his thirteen years of experience as a police officer, Officer McCuen believed that the object in Appellant's waistband was the brown handle of a handgun.") (citation to transcript omitted). I do not interpret this testimony to establish that Officer McCuen's experience was a necessary condition of his identifying the object as a firearm. The transcript does not indicate that only Officer McCuen's keen eye and experience allowed him to see what an ordinary member of the public could not. In this regard the Majority assumes that Officer McCuen's ordinary observations were superior to those of the public. But the Majority notes that the concealed firearm statute is intended to promote transparency and alert the public. "The prohibition on carrying an unlicensed concealed weapon serves to apprise citizens of the fact that an individual is carrying deadly force, thereby lessening the chance that such individual could take his adversary, or anyone else, at a fatal disadvantage." Id . at 536. This implicitly acknowledges that the ordinary person can readily identify a firearm handle as a gun without seeing the entire object. Accordingly, the Commonwealth's evidence establishes that the firearm was visible to the ordinary person. If Officer McCuen saw the handle and knew it was a gun, presumably so did everyone else.
The Majority rejects Montgomery's argument that the gun was visible for all to see in part because Officer McCuen testified that the gun was not fully visible. Majority Op. at 537 n.15. But just as we reject Montgomery's argument that total invisibility is required, total visibility is not required, either. Id . at 536 n.14 ("Nor are we suggesting that criminal liability under Section 6106 lies each time a citizen carries an unlicensed firearm in a manner that displays a portion, but not all of the weapon."). The relevant question is whether Montgomery "carrie[d] the firearm in such a manner as to hide the firearm from ordinary observation," id. at 536, and nothing in the transcript establishes that Officer McCuen saw something by virtue of his experience or vantage point that the ordinary person could not.
This leaves the argument that the focus is not limited to the discrete moment in time testified to by Officer McCuen and we must consider all of the circumstances, including Montgomery's actions after-the-fact. In this respect I find a material distinction between pulling a firearm from a place in which it may have been concealed from ordinary view but for the manipulation, versus manipulation of a firearm that is already visible to the ordinary viewer. Officer McCuen confirmed on cross-examination that this case involves the latter situation.
Q And you can see what you believe to be the handle of a gun?
A Correct.
Q Because you see a brown gun handle?
A Correct.
Q And you said he's messing with it?
A Yes.
Q What, exactly?
A His hand was on the -- like he was trying to pull it up but his hand was like -- I'll show you. His hand was on his pants.
Q He was holding it, you're saying?
A Yes. Not in his hand. It was still in his pants like he was adjusting it.
N.T., 8/15/2016, at 9.
At most, this establishes that Montgomery was attempting to pull the firearm completely out of his pants. That would make the gun fully visible but it does not follow that the gun was concealed prior to the adjustment observed by Officer McCuen.
This is, to me, readily distinguishable from a case of concealing a firearm that only becomes visible because of a manipulation or movement. For example, an individual places a firearm inside the shaft of a low boot and pulls the leg of her pant over the shaft of the boot. As she mounts a stool, the gun becomes visible to a nearby police officer. The totality of these circumstances would establish concealment.
This image was selected from a bank of free internet images. Tyler Harris (@tylerjackharris), Unsplash , https://unsplash.com/photos/P_oQWfYqY1M (last visited July 2, 2020). The image is licensed for free commercial and noncommercial use. See https://unsplash.com/license (last visited July 2, 2020).
Expanding from the discrete moment in time that Office McCuen observed the gun, the Majority views this evidence as establishing a disputed question of fact and claims that "a jury may also conclude that the object in Appellant's waistband, although not invisible, would have gone unnoticed by ordinary observation, and that Appellant's evasion of police and discarding of the firearm when officers approached evidenced his continued intent to conceal the firearm." Majority Op. at 537 n.16. But how could a jury conclude the gun would have gone unnoticed through ordinary observation when the only evidence presented by the Commonwealth established that the gun was noticed through ordinary observation?
Moreover, the Majority claims that the post-observation actions may evidence a "continued intent to conceal the firearm." Id . This argument places the cart before the horse as the Commonwealth failed to establish concealment in the first place; there is no continued concealment based on the testimony and evidence presented at the preliminary hearing. Thus, Montgomery's actions after being seen constitute nothing more than bootstrapping. While the Majority does not use the actual phrase, its note that Montgomery "evaded" the police invokes concepts of flight and consciousness of guilt. See e.g ., Commonwealth v. Rios , 546 Pa. 271, 684 A.2d 1025, 1035 (1996) ("When a person commits a crime, knows that he is wanted therefor, and flees or conceals himself, such conduct is evidence of consciousness of guilt, and may form the basis [of a conviction] in connection with other proof from which guilt may be inferred.") (quoting Commonwealth v. Coyle, 415 Pa. 379, 203 A.2d 782, 789 (1964) ).
Here, the Majority points to Montgomery's actions as establishing that a crime was committed as opposed to their proper usage as one piece of circumstantial proof when paired with other evidence. There is no other evidence of a crime here in light of Officer McCuen's testimony that he observed the firearm. Because I conclude that the only evidence offered by the Commonwealth conclusively established that concealment did not occur, whatever happened afterwards is irrelevant and cannot be used to establish an element of the crime. Moreover, the fact that this crime occurred in Philadelphia where open carry of a firearm without a license is illegal, significantly undercuts any attempt to draw inferences to support concealment from Montgomery's discarding the firearm.
Therefore, I would hold that the Commonwealth failed to meet its burden and reverse the order of the Superior Court.
JUSTICE WECHT
On May 21, 2016, Philadelphia Police Officer Robert McCuen watched Darren Montgomery walk along East Chelten Avenue. Drawing upon his thirteen years of law enforcement experience, Officer McCuen was able to determine that Montgomery was "messing with the handle of his gun in his waistband." See Maj. Op. at 525–26 (quoting Notes of Testimony ("N.T."), 8/15/2016, at 5). Officer McCuen was not equivocal about what he observed. It was the brown handle of a gun protruding from Montgomery's pants. Thus, for purposes of this case, there exists one immutable fact: at the time that the Commonwealth can prove that Montgomery carried a firearm on his person, that firearm was visible.
For purposes of 18 Pa.C.S. § 6106, the crime that we are called upon to interpret, carrying a visible firearm without a license is not illegal. The General Assembly only has made it criminal for a person to carry a "concealed" weapon without a valid license. 18 Pa.C.S. § 6106(a). When Montgomery had a firearm "on or about his person," id. , enough of the gun could be seen so as to enable Officer McCuen to identify the object as such. This circumstance stands in stark contrast to the statutory requirement that the firearm be "concealed." Indeed, to any objective reader, visibility and concealment would appear to be opposites.
Utilizing any of our most basic canons of statutory interpretation, this case is straightforward. The Majority identifies some of those canons, but does not substantively discuss or apply all of them, and then somehow concludes that the totality of the circumstances in this case converts a visible firearm into a concealed one. See Maj. Op. at 533–34. This is troubling, to say the least, because the General Assembly was clear in its terms and in its objective.
Now, by judicial revision, a new crime is born. The Commonwealth no longer has to prove that the weapon actually was concealed. Under the new § 6106, the Commonwealth only has to prove that the person "partially concealed" the weapon. We are not permitted to add to, or subtract words from, a statute. But that proscription does not deter the Majority. Perhaps worse, the Majority sets no standards, let alone workable ones, as to how much of a firearm can be visible for it still to be "concealed." The Majority's interpretation raises such questions, but does nothing to answer them, leaving police officers unsure when to arrest for this crime, exposing lawful gun carriers to unwarranted arrest, and subjecting all Pennsylvanians to a crime without adequate notice as to what constitutes criminal behavior under this new (and vague) crime created by the Majority.
When interpreting a statute, an appellate court's primary objective is to "ascertain and effectuate the intention of the General Assembly." Koken v. Reliance Ins. Co. , 586 Pa. 269, 893 A.2d 70, 80-81 (2006) (citing 1 Pa.C.S. § 1921(a) ). However, an appellate court is not unrestrained in the means that it uses to achieve this end. Indeed, there is an order that we must follow, beginning with a consideration of the actual language chosen by the General Assembly, as those words represent the best indicator of that body's intent. Commonwealth v. Shiffler , 583 Pa. 478, 879 A.2d 185, 189 (2005). It is only when the language, given its common and approved understanding, is ambiguous or does not resolve the problem that we resort to other means of interpretation.
If the language is clear and unambiguous, we are bound by that language, even when it produces "harsh or draconian result[s]." Koken , 893 A.2d at 82. Although we seek to effectuate the legislative intent, a statute's clear, unambiguous terms cannot "be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(b). Only when a term or phrase is ambiguous does the rest of the interpretive toolbox become available to a court. It is here that the Majority first falters. After rejecting the Superior Court's patently incorrect interpretation that "any level of concealment, even partial," is sufficient to satisfy § 6106 as a matter of law, the Majority declares that we "must still construe the term ‘concealed,’ as used in Section 6106." Maj. Op. at 534, 535–36. But then the Majority leapfrogs over its obligation to contemplate the plain meaning of the term using the "rules of grammar and according to [its] common and approved usage[.]" 1 Pa.C.S. § 1903(a). The Majority does not bother even to contemplate whether the term "concealed" is ambiguous. Instead, the Majority appoints itself to decide what is "unreasonable" (Maj. Op. at 536), inverts the analysis, and then dives straight into the rule of lenity, announcing its belief that presently the deferential rule does not apply because doing so would "override common sense and evident statutory purpose." Maj. Op. at 531 (quoting Commonwealth v. Butler , 189 Pa.Super. 399, 150 A.2d 172, 173 (1959) ). Thus, without ever saying so, the Majority appears simply to assume "concealed" is ambiguous, and then proceeds without more to rummage around in our interpretive toolbox in a quest for some construction the Majority deems sensible enough. The problem is that the word "concealed" is not ambiguous at all.
A statutory provision is ambiguous if there are at least two reasonable interpretations of the word. See A.S. v. Pa. State Police , 636 Pa. 403, 143 A.3d 896, 905-06 (2016). We must ascribe to the challenged term its approved and common usage. To this end, dictionary definitions are helpful, but are not always definitive. As the Supreme Court of the United States explained in Robinson v. Shell Oil Co. , 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997), "[t]he plainness or ambiguity of statutory language is determined [not only] by reference to the language itself, [but also by] the specific context in which that language is used, and the broader context of the statute as a whole." Typically, "a word's usage accords with its dictionary definition. In law as in life, however, the same words, placed in different contexts, sometimes mean different things." Yates v. United States , 574 U.S. 528, 537, 135 S.Ct. 1074, 191 L.Ed.2d 64 (2015). Here, the dictionary definition aligns with the context in which it was used.
Merriam Webster's online dictionary defines "concealed" as "kept out of sight or hidden from view." Concealed , MERRIAM-WEBSTER.COM DICTIONARY , https://www.merriam-webster.com/dictionary/concealed (last visited May 19, 2020). Unsurprisingly, and consistent with its widely understood meaning, Merriam Webster uses the following example: "carrying a concealed weapon." Id. (emphasis in original). A weapon that is exposed to view, and easily identified by a police officer, is not "kept out of sight," nor is it "hidden from view." Instead, such a weapon is "visible," which is one of the antonyms that Merriam Webster lists. Concealed , MERRIAM-WEBSTER.COM THESAURUS , https://www.merriam-webster.com/thesaurus/concealed (last visited May 19, 2020).
Similarly, Black's Law Dictionary defines "concealment" as "[t]he act of removing from sight or notice; hiding." Concealment , BLACK'S LAW DICTIONARY (11th ed. 2019). Obviously, a weapon that can readily be viewed is not "remov[ed] from sight or notice." It is the opposite of that.
While these dictionary definitions are useful in this exercise of interpretation, perhaps a picture is the best device to demonstrate what is understood (or what is not understood) when the term "concealed" is used, and to demonstrate the absurdity of the Majority's definition. Observe the handkerchief protruding from this gentleman's breast pocket:
As is evident from the photograph,1 half of the handkerchief, folded ornately, protrudes out of the pocket and is visible to even the most casual observer. The other half, however, is secreted inside the pocket, and outside of view. The handkerchief is situated in the same manner that Montgomery's handgun was: part visible and part hidden. The question is whether this person has "concealed" his handkerchief? Bound to its own logic, the Majority would have no choice but to say "yes."
However, no common understanding or definition of the term would support characterizing this handkerchief as "concealed." One would be hard-pressed to find any rational observer that would describe it as such. Yet, partial visibility is included within the Majority's new definition of concealment. There is no material difference between the handkerchief shown and the gun that Officer McCuen saw in Montgomery's waistband, each being both exposed and hidden to some degree. One could argue that the handkerchief is "partially concealed," and one also could argue that it is "partially exposed." But our task is not to pronounce a reformation of the statute according to what we deem "reasonable." See, e.g., Maj. Op. at 538. Our task is confined to defining the actual words used by the General Assembly. This enterprise does not allow for the inclusion and interpretation of alternative, judicially-manufactured versions or forms of those words. We must confine our evaluation to the word "concealed." This handkerchief is not concealed. Neither was Montgomery's gun. Nonetheless, by the letter of today's ruling, the handkerchief in this photo would be considered "concealed" in this man's pocket in the same way that Montgomery's gun was "concealed" in his waistband.
The Majority leaves law enforcement and gun owners in perilous limbo, failing entirely to provide guidance as to how much of the firearm can still be viewed yet also still be concealed. What if a police officer can see only the hammer on the back of the gun? What if she can see all the way up to the trigger, but no part of the barrel? This newly minted version of concealment not only is inconsistent with the everyday understanding of the term; it raises an entirely new set of problems that the Majority makes no effort to address. I would think it axiomatic that, when a police officer can see the handle of a firearm using nothing more than his or her eyesight, that weapon could not be considered "hidden from ordinary observation." But, if absolute invisibility is not required, then any amount of exposure can subject individuals to unwarranted arrest and prosecution. The Majority now leaves police officers to guess as to whether something is concealed. To evade unwarranted arrest, firearm owners similarly must guess as to whether enough of the weapon is showing when being carried.
The only way to interpret concealment so broadly would be to engraft upon the statute an intent element that does not appear within the terms of § 6106. Section 6106 does not contain language such as "intent to conceal" or "attempt to conceal." Had the legislature chosen to do so, it might have permitted police officers to arrest persons who wanted (or tried) to conceal a weapon but failed to do so for one reason or another. When the General Assembly desires such tried-but-failed elements to be a part of the substance of a crime, it knows very well how to include such provisions within the definition of that crime. See, e.g. , 18 Pa.C.S. § 2702 (defining aggravated assault to include both causing various degrees of bodily injury and attempts to cause such injury); 18 Pa.C.S. § 3701(a)(2) (defining "in the course of committing a theft" for purposes of robbery to include attempts to commit a theft). The General Assembly chose not to include such language in § 6106. The judiciary is not at liberty to add to, or improve upon, statutes to fit the circumstances of a given case or to facilitate a "reasonable" result.
Perhaps Montgomery wanted to conceal the weapon, and perhaps he even believed that he had done so. Neither of these speculations matters. The element of concealment requires completion of the act. In a word, it requires ... well, it requires concealment. Consider a motorist driving along the highway fully intending to exceed the posted speed limit of fifty-five miles per hour. If the motorist never exceeds that posted limit, it does not matter how much he or she wants to do so: there is no violation of the Motor Vehicle Code. Section 6106 of the Crimes Code is no different. If a weapon is not actually concealed, the statute is not violated, regardless of whether the individual fully intended to conceal that weapon. Every crime requires both an actus reus and a mens rea . One without the other is no prosecutable crime.
Because concealment, as used by the General Assembly in this statute, is not ambiguous, our inquiry must simply end there. But the Majority does not abide that. Instead, the Majority evades the threshold ambiguity question, choosing instead to venture into other canons of interpretation. So, for purposes of this discussion, let us assume for the moment that the term is ambiguous. It is equally clear under such an exercise that our canons of construction do not support the Majority's interpretation of the word "concealed."
In this exercise, I imagine (like the Majority) that the statutory terminology ("concealed") is somehow ambiguous, thus allowing me to break through the actual language used by the General Assembly and seek instead to ascertain the legislative body's intent. In doing so, our courts consider, inter alia , the following non-exhaustive list:
the occasion and necessity for the statute or regulation; the circumstances under which it was enacted; the mischief to be remedied; the object to be attained; the former law, if any, including other statutes or regulations upon the same or similar subjects; the consequences of a particular interpretation; and administrative interpretations of such statute.
Commonwealth v. Ricker , 642 Pa. 367, 170 A.3d 494, 512 (2017) (Wecht, J., dissenting) (quoting Freedom Med. Supply, Inc. v. State Farm Fire & Cas. Co. , 635 Pa. 86, 131 A.3d 977, 984 (2016) (citing 1 Pa.C.S. § 1921(c) )).
With the enactment of § 6106, the General Assembly sought to protect the citizenry from persons (those who have not submitted to the process of licensure) moving in public while carrying a hidden weapon. As the Majority puts it, the crime is meant to "apprise citizens of the fact that an individual is carrying deadly force, thereby lessening the chance that such individual could take his adversary, or anyone else, at a fatal disadvantage." Maj. Op. at 536. That concern obviously is not present, or at least not as prevalent, when the public can see the weapon. Assuming a person is not violating 18 Pa.C.S. § 6105 (persons not to possess a firearm) or some other provision of the Uniform Firearms Act, that is precisely why that individual may carry a weapon openly without committing a criminal offense: the public can see the weapon and is not subject to ambush or being placed at a "fatal disadvantage." For those who desire to carry a weapon and to obtain that hidden advantage, a demonstration of eligibility through the licensing process is required. Only through such licensing compliance can the person move about in public without members of the public knowing that the person is armed.
The General Assembly drew a very clear line. Either the gun is visible, putting the public on notice that a person is armed, or the gun is concealed, which renders the public unaware of the presence of the weapon (a circumstance that requires a specific license). The foggy middle ground created by the Majority is not only unsupported by the statutory text, it also is inconsistent with the General Assembly's intent. The purpose of Section 6106 was to criminalize unlicensed, hidden weapons. It was not to punish visible weapons, which the public can see and know about. In this case, Officer McCuen clearly could see and identify the weapon on Montgomery's hip, as could any member of the public at that particular moment. As the Majority acknowledges, when we interpret a statute, we presume that the General Assembly intended that the entire statute be effective and certain. See Maj. Op. at 534 (citing 1 Pa.C.S. § 1922(2) ). Furthermore, "[w]e are not permitted to ignore the language of a statute, nor may we deem any language to be superfluous." Commonwealth v. McCoy , 599 Pa. 599, 962 A.2d 1160, 1168 (2009) (citing 1 Pa.C.S. § 1921(a) ). Interpreting the term "concealed" to include things that are visible, as the Majority does, erases the element from the statute. As demonstrated above, the General Assembly intended to protect the public from weapons that are hidden from observation, not from visible firearms. If "concealed" were to mean anything other than "invisibility," then the term becomes superfluous, and the crime necessarily mutates from "carrying a concealed weapon without a license" into simply "carrying a weapon without a license." The General Assembly is free to create that transformation. We are not.
Presumably, the Majority is concerned that the intent of the General Assembly to make the public aware of certain dangers would be thwarted if, for example, a person carried a weapon in a manner in which only a small portion of it is exposed. While that is an understandable concern, it does not alter the words that the General Assembly selected, and to which we must assign plain meaning. As I explain, "concealed" generally is understood to mean hidden entirely. The Majority makes no effort to define the term or to contemplate whether it is ambiguous. We are not permitted to ignore the plain meaning of terms in an effort to overcome societal problems that could ensue. We elect legislators to address such problems. That one might avoid prosecution merely because only a sliver of the weapon is visible is a consequence of the unambiguous words enacted by the legislature. It is not our job to remedy whatever harms result. The General Assembly writes the laws as it chooses. We neither approve nor disapprove those laws; we merely interpret them.
Another canon of statutory interpretation, the rule of lenity—which requires that penal statutes be strictly construed—compels the same interpretation. The Majority, however, quoting the Superior Court's 1959 decision in Butler , concludes just the opposite, claiming that the rule "is not an inexorable command to override common sense and evident statutory purpose." Maj. Op. at 531 (quoting Butler , 150 A.2d at 173 ). The Majority finds it "unreasonable" to apply the rule of lenity, because doing so would allow a person to evade prosecution if even a small portion of the gun is visible to the public. This, the Majority asserts, would thwart the very transparency that the statute promotes.
But the rule of lenity is not so easily swept aside. As we recently noted in Commonwealth v. Smith , ––– Pa. ––––, 221 A.3d 631 (2019), the Supreme Court of the United States has emphasized that the rule is " ‘not merely a convenient maxim of statutory construction,’ but, rather, ‘is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited.’ " Id. at 639 (quoting Dunn v. United States , 442 U.S. 100, 112, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979) ). I would not disregard this command, and I would apply the rule, strictly interpreting the provision in Montgomery's favor. To do otherwise violates not only Montgomery's due process rights but also the due process rights of all Pennsylvanians, as we all are now unsure about when a firearm is concealed and when it is visible enough to allow carry without arrest and prosecution.
The Majority offers unconvincingly little to support its refusal to apply this fundamental rule. By citing the side-door provision from Butler , the Majority signals an apparent belief that interpreting "concealed" to mean fully hidden from view defies common sense and the statutory purpose. However, the purpose of the statute is to provide notice to the public when a person, one who is not permitted to carry a weapon out of public view because he or she did not first obtain a license, is carrying a weapon. When that weapon is visible, partially or otherwise, the public is on notice, and the legislative concern is alleviated. Common sense dictates that the crime only arises when the public cannot know that the person is carrying the firearm. When the gun is visible, no crime is committed.
The Majority then declares that the rule of lenity does not apply because it would be "unreasonable" to do so, because it would allow persons to avoid prosecution by the mere fact that part of the gun is visible, even just a small part. First, there is nothing unreasonable about not prosecuting people who have not violated the plain terms of a criminal statute. As shown, both the plain language and the legislative intent of Section 6106 paint a clear picture of what the General Assembly sought to criminalize: carrying secreted weapons without first obtaining a valid license. A person who has not actually "concealed" the weapon from public view cannot be prosecuted simply because we think it is "reasonable" to assume he meant or wanted or tried to do so. The goal of statutory interpretation is not to construe provisions so as to ensnare as many people as possible, nor is a statute "unreasonable" merely because it only would criminalize the conduct of a portion of those who our "common sense" tells us really "want" to break the law.
Second, to the extent that the Majority believes it to be "unreasonable" for a person to escape prosecution when only a small fraction of the firearm can be seen, that is a choice the legislature opted for when it selected the word "concealed." This is a policy judgment with which we as the judiciary cannot tinker. Indeed, there is nothing "unreasonable" in a decision by the General Assembly to limit the reach of its criminal statutes. A "reasonable" criminal law is not necessarily or always the one that criminalizes the most behavior. Nor is it our job to concern ourselves with the reach of the law. We must apply our canons of statutory construction and proclaim a result, regardless of whether that interpretation is "harsh or draconian." Koken , 893 A.2d at 82.
The Majority exacerbates the due process problems that inform its use of the rule of lenity by interpreting the statute in a manner that increases the uncertainty for gun carriers. Interpreting the statute strictly, as we must, the line is clear for both law enforcement and for those carrying weapons. By allowing some visibility to still be considered "concealed," but not explaining at all how much visibility is permitted and how a court or police officer or gun owner is supposed to know, the Majority infuses uncertainty where it does not need to be, depriving our citizenry of full and fair notice of what is and what is not criminal conduct in Pennsylvania. The Majority's answer to citizens, police officers and trial judges is: "Take your best guess as to what is ‘concealed enough’ to be ‘concealed.’ Maybe we'll decide later if your guess was wrong, or maybe not."
The fact that this case arises in the context of a preliminary hearing, a proceeding that requires only the demonstration of a prima facie case, is of no moment, notwithstanding the Majority's belief to the contrary. The purpose of the preliminary hearing is for the Commonwealth to prove to a neutral and detached judicial officer that it possesses sufficient evidence to prove that crimes were committed and that those crimes likely were committed by the defendant. See Commonwealth v. McBride , 528 Pa. 153, 595 A.2d 589, 591 (1991). The evidentiary threshold is low, but that does not relieve the Commonwealth from its burden of submitting some evidence as to every element of each crime charged. If the Commonwealth does not have evidence as to an element of a crime, the Commonwealth cannot prove the crime, and the charge must be dismissed, regardless of whether the proceeding is a preliminary hearing, a full criminal trial, or any other evidentiary proceeding.
The Majority replies that "concealment" does not mean "partial concealment" and does not mean "total concealment." See Maj. Op. at 536 n.14. This, the Majority insists, is a construction that interprets the term in a manner consistent with "plain meaning and common usage." Id. The Majority never tells us what it understands that "common usage" or "plain meaning" is. It is just what a majority of this Court will determine on any given day, in any given case. We are left with a wholly unworkable definition, and one that is inconsistent with the General Assembly's words to boot.
If concealment does not mean "absolute invisibility," id. at 536, and does not mean "partial concealment" or "total concealment," what exactly does it mean? The statutory crime was drafted in a binary fashion. A gun is either concealed, or it is not. There is no other meaning of the term consistent with the language used, with how that language is understood in everyday parlance, with the context in which it was used, and with the intent of the General Assembly. Instead, the Majority offers a muddled hybrid in which concealment means something between partial and total concealment, but only in a "manner" that hides "it" (one cannot be sure how much of "it") from ordinary observation. The only way in which this works is if one ignores the actual plain meaning of the term, and instead views the crime as one that is dependent upon whether the totality of the circumstances enables a fact-finder to reach the conclusion that enough of the gun was showing, or was hidden, to believe that the actor wanted it to be concealed. Of course, "intending to conceal" or "wanting to conceal" are not elements of this crime. But that does not deter today's Majority.
To the extent that there is any confusion about this (and confusion there will be), the Majority simply says that a jury can figure it out later. But this is not the law. This is the antithesis of how the criminal law works, and embeds a due process violation into our jurisprudence. Every person has a right to know what the law is, and to know when he is committing a crime. This "the jury will sort it out later" crime ignores the fact that the legislature did not enact an "intent to conceal" crime, and did not enact an "attempt to conceal" crime. It did enact a "conceal" crime. Either the gun is concealed or it's not. Letting a jury decide what a crime means after the fact means that the legislature no longer makes the law. Instead, police officers and juries do.
The resulting problems are obvious. A police officer easily can determine whether a gun is "concealed." It is not so easy––in fact it is nearly impossible––to fairly and consistently determine in a nonarbitrary fashion whether the totality of the circumstances supports arresting a person for concealing a weapon "in a manner so as to hide it from ordinary observation." Maj. Op. at 536 n.14. The officer has to perform this adjudication on the street level, and can only find out later whether seizing, searching, and (likely) incarcerating a person was a violation of one of our statutes. This later point in time, per the Majority's instruction, will not occur until the jury eventually decides what the law means. The consequences that befall the arrestee, particularly one who finds out later that a jury thinks he was not concealing the weapon clearly visible on his hip, are even more troubling.
All of these gymnastics could be avoided by simply adhering to the common, approved, understood meaning of the word that the General Assembly actually used.
Thus, the Majority's reliance upon the nature and evidentiary burden of a preliminary hearing is unavailing. See Maj. Op. at 536–37. Officer McCuen testified at that hearing that the firearm was not fully visible, but that enough of it could be seen to enable him to identify what he saw as the brown handle of a firearm. Stated otherwise, Officer McCuen told the presiding judicial officer that he saw a firearm. No invocation of any totality of the circumstances test, nor any emphasis upon the low burden at preliminary hearings, can change the fact that Officer McCuen testified that the gun was visible, not concealed.
Furthermore, the Majority's reliance upon the fact that Montgomery subsequently hid the gun in the potatoes is misplaced. The Majority highlights this act as evidence that Montgomery intended to conceal the weapon. See id. at 536–37. This fact is entirely immaterial to the actual inquiry. The crime requires first that the firearm is "concealed." It does not require merely an intent to conceal, or that the actor makes an attempt to conceal. The gun must be actually concealed. And, it must be actually concealed on the actor's person, not in a pile of potatoes. When the police observed the firearm on Montgomery's person, it was not concealed. It was visible for all to see. His after-the-fact attempt to hide the gun under root vegetables has no bearing upon the visibility of the firearm at the time in question: the moment of actual possession.
Section 6106 is a clear and unambiguous statute. By holding that "concealed" can mean "visible," the Majority strikes out a required element of the crime, in violation of nearly every applicable canon of statutory interpretation. The Majority judicially manufactures an entirely new crime. No longer is the crime "carrying a concealed weapon without a license." As of today, it merely is "carrying a weapon without a license."
This is not what the statute says, nor is it what the General Assembly intended. Because the canons of statutory interpretation compel the opposite conclusion, and because it is not this Court's job to rewrite, add, or modify statutory terms, I dissent.