Sufficiency of evidence; Concealed firearm

Commonwealth v. Montgomery, 192 A.3d 1198 (Pa. Super 2018), allocatur granted March 12, 2019), appeal docket 4 EAP 2019

The Pennsylvania Supreme Court granted review of Superior Court’s reversal of a Philadelphia Court of Common Pleas order affirming the dismissal of the charge against Montgomery of carrying a firearm without a license in violation of 18 Pa. C.S. § 6106. The unlicensed carry charge initially was dismissed after a preliminary hearing where Philadelphia Municipal Court found the Commonwealth had not presented a prima facie case that Montgomery violated section 6106. The Commonwealth refiled the charge and common pleas affirmed Municipal Court. The Commonwealth appealed claiming it presented sufficient evidence that Montgomery had concealed a firearm on his person for the charge to be bound over for trial.

A unaminous Superior Court panel reversed. The appeal presented a straightforward issue: is a firearm tucked into a waistband so that its handle is visible “concealed” for purposes of section 6106? That section prohibits an unlicensed person from carrying a firearm “concealed on or about his person, except in his place of abode or fixed place of business.” The Commonwealth must establish that every element of this crime, including concealment, was done intentionally, knowingly, or recklessly. An order quashing a criminal charge is reviewed for an error of law, and the court takes the evidence presented by the Commonwealth as true seeking merely to determine if the facts presented by the Commonwealth warrant a trial on the merits of the charge.

Before Municipal Court, Philadelphia police officer Robert McCuen testified that he saw Montgomery “messing with” what McCuen believed to be “the handle of a gun in his waistband.” McCuen could not see the entire gun, just the handle. Montgomery walked into a nearby store. McCuen stopped his car in front of the store and watched as Montgomery walked back out of the store. After spotting McCuen, Montgomery turned around and walked back into the store. McCuen followed Montgomery into the store and stopped him. McCuen did not find a firearm on Montgomery but found one several feet away on top of a rack of potatoes. The only other person in the small store was a cook on the other side of a counter from the potatoes.

Municipal Court quashed the unlicensed carry charge and the Commonwealth refiled. At the hearing before common pleas, the Commonwealth did not present additional evidence but relied only on the evidence it presented previously. Relying on Commonwealth v. Williams, 346 A.2d 308 (Pa. Super. 1975), common pleas affirmed Municipal Court’s conclusion that the Commonwealth’s evidence was insufficient to present a prima facie case that Montgomery violated section 6106.

In reversing common pleas, Superior Court relied on our Supreme Court’s decision in Commonwealth v. Scott, 436 A.2d 607 (Pa. 1981) (Scott I), and on its subsequent decision also captioned Commonwealth v. Scott, 176 A.3d 283 (Pa. Super. 2017) (Scott II). Acknowledging that Scott I and Williams (Scott I did not reference Williams) appeared to be in conflict, the court looked to Scott II as providing a relevant distinction:

Pursuant to Scott I, any concealment, even partial, is sufficient to satisfy the concealment element of the crime. However, pursuant to Scott II, this does not constitute the entirety of the Commonwealth’s burden; it must still prove the concealment was, at the very least, reckless. Thus, in Williams, the evidence was insufficient as the appellant visibly brandished and fired the gun in front of witnesses. There was no evidence his placement of the gun in his waistband was anything more than a negligently convenient carrying method. To the extent language in Williams is contrary to this interpretation, we recognize it was implicitly overruled by Scott I.

Slip op. at 5.

Using this rubric, the court concluded that under Scott I it was clear that the Commonwealth presented evidence sufficient to establish concealment—the firearm was tucked into Montgomery’s waistband with only the handle visible. The court also found that the evidence was sufficient to establish that Montgomery knowingly concealed it there based upon Officer McCuen’s testimony that Montgomery returned to the store when he saw McCuen, and that when McCuen caught up to Montgomery, the gun had been placed on a nearby rack.

The Supreme Court granted Montgomery’s allocatur petition on the following issue as stated by Montgomery:

Did not the Superior Court err, in a published opinion, in holding that a handgun that was only partially tucked into a waistband, with the handle being visible to all, was nonetheless “concealed” for the purposes of the Uniform Firearms Act?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.