Commonwealth v. Anderson ( 2017 )


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  • J-E01002-17
    
    2017 Pa. Super. 276
    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
    :         PENNSYLVANIA
    Appellant                :
    :
    :
    v.                              :
    :
    :
    JASON ANDERSON                             :    No. 2764 EDA 2014
    Appeal from the Order Entered May 22, 2014
    In the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): CP-51-CR-0001233-2014
    BEFORE:    BENDER, P.J.E., BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS,
    J., OLSON, J., DUBOW, J., MOULTON, J., and SOLANO, J.:
    OPINION BY SOLANO, J.:                                   FILED AUGUST 23, 2017
    The Commonwealth appeals from an order quashing two Pennsylvania
    Uniform Firearms Act (“PUFA”)1 charges against Appellee Jason Anderson, a
    private security guard.       Anderson carried a firearm in Philadelphia without
    first obtaining a license for the firearm, although he did possess a certificate
    issued to him pursuant to the Lethal Weapons Training Act (“Act 235”).2 In
    3
    this interlocutory appeal as of right,             the Commonwealth argues that
    Anderson’s possession of his Act 235 certificate did not excuse him from the
    requirement of a license under the PUFA and that the trial court erred in
    quashing the charges on the basis of that certificate.         We agree with the
    ____________________________________________
    1
    18 Pa.C.S. §§ 6101-6127.
    2
    Act No. 1974-235, P.L. 705 (Oct. 10, 1974), 22 P.S. §§ 41 to 50.1.
    3
    In its notice of appeal, the Commonwealth certified “that the order will
    terminate or substantially handicap the prosecution.” Pa.R.A.P. 311(d).
    J-E01002-17
    Commonwealth and hold that an Act 235 certificate does not serve as a
    substitute for a license under the PUFA. Accordingly, we reverse the order
    below and remand for further proceedings.
    The charges stem from an altercation on North Dewey Street in
    Philadelphia on November 3, 2013. Anderson was on his way home from his
    job as a private security guard, and he stopped at a party to pick up a friend
    who had asked him to take her home. He was wearing a bullet-proof vest
    and a security badge or lanyard around his neck, and he was carrying a gun;
    he stopped his car in the middle of the street. Meanwhile, Mark Ellis drove
    onto the street behind Anderson and stopped to drop off food at the home of
    a local resident, Syreeta Manire.     After Manire retrieved the food, Ellis
    quickly proceeded to drive away.     Anderson’s car was blocking the street,
    and Ellis stopped a few feet behind it. Anderson and Ellis then exchanged
    words. Ellis pulled out a gun, and Anderson tried to grab that gun from him.
    Shots were fired, and Anderson shot and killed Ellis.    A subsequent police
    investigation determined that Anderson was not licensed to carry a firearm,
    but that he did possess a valid Act 235 certificate. Trial Ct. Op., 9/24/14, at
    2-3.
    The Commonwealth decided not to prosecute Anderson for any
    homicide-related charges stemming from the shooting. But on January 17,
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    2014, it charged Anderson with impersonating a police officer4 and violating
    two provisions of the PUFA: Section 6106(a)(1), which prohibits carrying a
    firearm without a license, and Section 6108, which prohibits carrying an
    unlicensed firearm on public streets or public property in Philadelphia.5
    On February 11, 2014, Anderson filed a motion to quash the PUFA
    charges. After hearing argument, the trial court granted Anderson’s motion.
    In an opinion, the court explained that Act 235 requires private security
    guards to carry a certificate under the Act when “on duty or going to and
    from duty and carrying a lethal weapon,” and that, in the court’s view, this
    constitutes “legislatively created permission to carry a firearm on the street
    while ‘going to and from duty.’” Trial Ct. Op., 9/24/14, at 4-5. The court
    observed that penal statutes like the PUFA should be strictly construed, and
    it stated that “the special provisions in Act 235 prevail over general
    provisions in the [PUFA]” because they were the later provisions to be
    enacted. 
    Id. at 5-6.
    Therefore, Anderson was “entitled to avail himself of
    Act 235’s specific permission for him to be carrying a firearm at the time of
    his arrest” and could not be charged with violating the PUFA. 
    Id. at 6.
    The Commonwealth timely appealed.        A panel of this Court issued a
    memorandum decision that reversed without reaching the Act 235 issue that
    ____________________________________________
    4
    18 Pa.C.S. § 4912. This charge was based on Manire’s testimony that
    Anderson identified himself as a police officer. Anderson denies making that
    statement.
    5
    18 Pa.C.S. §§ 6106(a)(1), 6108.
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    was the basis for the trial court’s decision. Commonwealth v. Anderson,
    2764 EDA 2014 (Pa. Super. July 21, 2016) (unpublished memorandum). 6
    This Court then granted the Commonwealth’s application for reargument en
    banc, withdrew the panel’s decision, and received new briefs and argument.
    The Commonwealth presents the following question for review:
    Did the [trial] court err in quashing charges under the Uniform
    Firearms Act based on its erroneous conclusion that certification
    under “Act 235” is a substitute for a license to carry a firearm?
    Commonwealth’s Brief at 5.           The Commonwealth claims it established a
    prima facie case for the PUFA violations based on its allegations that
    Anderson (1) carried a firearm in his car and in a concealed manner on his
    person, (2) was on a public street of Philadelphia, and (3) was not licensed
    under the PUFA.         
    Id. at 16.
          The Commonwealth concedes Anderson
    possessed an Act 235 certificate, but argues that “Act 235 and the firearms
    licensing statutes — set forth in the [PUFA] — are separate regulatory
    schemes, and an individual who carries a firearm incident to employment is
    required to comply with both of them.” 
    Id. at 18
    (emphasis in original).
    In response, Anderson concedes that an Act “235 [certificate] is not a
    substitute for a valid license to carry under [P]UFA when that individual is
    NOT on duty or going to and from duty.”                Anderson’s Brief at 4
    (unpaginated; capitalization in original). However, Anderson argues that an
    ____________________________________________
    6
    Former Justice Fitzgerald issued a concurring memorandum in which he
    said he would reverse on the merits.
    -4-
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    individual whose duty is to “protect moneys, valuables and other property,”
    does not violate Sections 6106(a)(1) and 6108 “when the individual is
    carrying out those duties” because the PUFA contains an exception for such
    individuals under Section 6106(b)(6). 
    Id. He posits
    that “[t]he only logical
    reason for carrying [an Act 235] certificate is to show [it to] law
    enforcement while on duty and traveling to and from duty with a lethal
    weapon, which the individual is Act 235 certified [to do even though he]
    does not possess a valid license to carry under [P]UFA.” 
    Id. at 2-3.
    Thus,
    Anderson contends his Act 235 certificate is a “substitution” that “allows an
    individual who is [Act] 235 certified” but does not carry a valid license to
    nonetheless “carry a lethal weapon to and from” work. 
    Id. The following
    principles govern our review:
    The    question    of   the evidentiary sufficiency  of   the
    Commonwealth’s prima facie case is one of law as to which this
    Court’s review is plenary.
    At the pre-trial stage of a criminal prosecution, it is not
    necessary for the Commonwealth to prove the defendant’s
    guilt beyond a reasonable doubt, but rather, its burden is
    merely to put forth a prima facie case of the defendant’s
    guilt. A prima facie case exists when the Commonwealth
    produces evidence of each of the material elements of the
    crime charged and establishes sufficient probable cause to
    warrant the belief that the accused committed the offense.
    The evidence need only be such that, if presented at trial
    and accepted as true, the judge would be warranted in
    permitting the case to go to the jury.          Moreover,
    inferences reasonably drawn from the evidence of record
    which would support a verdict of guilty are to be given
    effect, and the evidence must be read in the light most
    favorable to the Commonwealth’s case.
    -5-
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    Commonwealth v. Nieves, 
    876 A.2d 423
    , 424 (Pa. Super.) (citations,
    brackets, and internal quotation marks omitted), appeal denied, 
    891 A.2d 731
    (Pa. 2005). Here, whether the Commonwealth presented a prima facie
    case is dependent on whether the trial court correctly construed the statutes
    at issue. We have observed:
    In evaluating a trial court’s application of a statute, our standard
    of review is plenary and is limited to determining whether the
    trial court committed an error of law.              In making this
    determination, we are guided by the Statutory Construction Act,
    which dictates:
    § 1921. Legislative intent controls
    (a) The object of all interpretation and construction of
    statutes is to ascertain and effectuate the intention of the
    General Assembly. Every statute shall be construed, if
    possible, to give effect to all its provisions.
    (b) When the words of a statute are clear and free from all
    ambiguity, the letter of it is not to be disregarded under
    the pretext of pursuing its spirit.
    1 Pa.C.S. § 1921. As a general rule, the best indication of
    legislative intent is the plain language of a statute.
    Commonwealth v. McFadden, 
    156 A.3d 299
    , 305 (Pa. Super. 2017)
    (internal quotation marks and some citations omitted). Our Supreme Court
    further instructed in Commonwealth v. Stotelmyer, 
    110 A.3d 146
    (Pa.
    2015):
    Every statute shall be construed, if possible, to give effect to all
    its provisions. We presume the legislature did not intend a
    result that is absurd, impossible, or unreasonable, and that it
    intends the entire statute to be effective and certain. When
    evaluating the interplay of several statutory provisions, we
    recognize that statutes that relate to the same class of persons
    -6-
    J-E01002-17
    are in pari materia and should be construed together, if possible,
    as one statute. If two statutes conflict, they are to be construed
    so effect may be given to both, if possible; if this is not possible,
    the special provision prevails over the general one as an
    exception to it, unless the general one was enacted later and
    there is manifest legislative intent that it 
    prevail. 110 A.3d at 150
    (quotation marks and citations omitted).
    Because this case involves the interplay between the PUFA and Act
    235, we begin by surveying the terms of each statute.
    The PUFA. The PUFA has been a part of Chapter 61 of the Crimes
    Code since the Code’s original enactment in 1972,7 but its current form is
    the result of substantial amendments made in 1995.8 In a preamble to the
    1995 legislation, the General Assembly stated:
    The General Assembly hereby declares that the purpose of this
    act is to provide support to law enforcement in the area of crime
    prevention and control, that it is not the purpose of this act to
    place any undue or unnecessary restrictions or burdens on law-
    abiding citizens with respect to the acquisition, possession,
    transfer, transportation or use of firearms, rifles or shotguns for
    personal protection, hunting, target shooting, employment or
    any other lawful activity, and that this act is not intended to
    discourage or restrict the private ownership and use of firearms
    by law-abiding citizens for lawful purposes or to provide for the
    ____________________________________________
    7
    Act No. 1972-334, P.L. 1482, 1574 (Dec. 6, 1972).
    8
    See Act No. 1995-17 (Spec. Sess. 1), P.L. 1024 (June 13, 1995). The
    amendments renamed the relevant provisions the “Uniform Firearms Act of
    1995.” 18 Pa. C.S. § 6101. The Supreme Court has observed that, despite
    its name, the statute is not a “uniform act” in the sense of a statute sharing
    similar provisions with other states’ laws. Rather, the PUFA’s provisions are
    unique to the Commonwealth, and the word “uniform” in its title refers to
    the creation of uniform firearms provisions throughout the Commonwealth.
    Allegheny County Sportsmen's League v. Rendell, 
    860 A.2d 10
    , 21 n.6
    (Pa. 2004).
    -7-
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    imposition by rules or regulations of any procedures or
    requirements other than those necessary to implement and
    effectuate the provisions of this act. The General Assembly
    hereby recognizes and declares its support of the fundamental
    constitutional right of Commonwealth citizens to bear arms in
    defense of themselves and this Commonwealth.
    Act No. 1995-17 (Spec. Sess. 1), P.L. 1024 (June 13, 1995).
    Anderson is charged with violating Section 6016(a)(1) of the PUFA,
    which provides:
    . . . 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.
    18 Pa.C.S. § 6106(a)(1).9 He also is charged with violating Section 6108,
    which provides:
    No person shall carry a firearm, rifle or shotgun at any time
    upon the public streets or upon any public property in a city of
    the first class unless:
    (1) such person is licensed to carry a firearm; or
    (2) such person is exempt from licensing under section
    6106(b) of this title (relating to firearms not to be carried
    without a license).
    ____________________________________________
    9
    Section 6122(a) of the PUFA states:
    When carrying a firearm concealed on or about one’s person or
    in a vehicle, an individual licensed to carry a firearm shall, upon
    lawful demand of a law enforcement officer, produce the license
    for inspection. Failure to produce such license either at the time
    of arrest or at the preliminary hearing shall create a rebuttable
    presumption of nonlicensure.
    18 Pa.C.S. § 6122(a).
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    18 Pa.C.S. § 6108.           Unlike Section 6106, Section 6108 prohibits all
    unlicensed carriage of firearms in Philadelphia, not just unlicensed concealed
    carriage.
    The provisions of Section 6106(a) and 6108 both are subject to
    exceptions to their licensing requirements that are listed in Section 6106(b).
    One of those exceptions states:
    The provisions of [Section 6106(a)] shall not apply to:
    *    *   *
    (6) Agents, messengers and other employees of common
    carriers, banks, or business firms, whose duties require them
    to protect moneys, valuables and other property in the
    discharge of such duties.
    18 Pa.C.S. § 6106(b)(6).10 None of Section 6106(b)’s provisions states that
    it excepts persons holding Act 235 certificates.
    Licenses under the PUFA must be issued pursuant to Section 6109,
    which prescribes detailed requirements for their issuance and terms.            The
    specified purpose of a license is to permit concealed or vehicular carriage of
    a firearm.     18 Pa.C.S. § 6109(a).           A license is issued in response to an
    ____________________________________________
    10
    The PUFA states:
    An individual carrying a firearm on or about his person or in a
    vehicle and claiming an exception under section 6106(b)
    (relating to firearms not to be carried without a license) shall,
    upon lawful demand of a law enforcement officer, produce
    satisfactory evidence of qualification for exception.
    18 Pa.C.S. § 6122(b).
    -9-
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    application made by a person 21 years of age or older to the sheriff of the
    applicant’s county11 on a form prescribed by the Pennsylvania State Police.
    18 Pa.C.S. § 6109(b), (c); see 37 Pa. Code §§ 33.101 to 33.131 (State
    Police regulations for PUFA licensing).        The applicant must state a “proper
    reason” for making the application, one of which may be “employment,” and
    may obtain the license only after an investigation by the sheriff to determine
    such things as whether the applicant is of sound mind or has a prior criminal
    record.     18 Pa.C.S. § 6109(c)-(e), (g).          The license must contain a
    photograph of the licensee and specified descriptive information, along with
    a special identifying license number and contact information that can be
    used in responding to law enforcement inquiries through the Firearms
    License Validation System. 
    Id. § 6109(e)(3),
    (l).12 Section 6109 states that
    nothing in it shall be construed to “[a]uthorize any Commonwealth agency to
    regulate the possession of firearms in any manner inconsistent with the
    provisions of this title.” 
    Id. § 6109(m.3)(2).
    Act 235. The General Assembly enacted Act No. 1974-235, the Lethal
    Weapons Training Act, on October 10, 1974.            In doing so, the Legislature
    stated the Act’s purpose as follows:
    ____________________________________________
    11
    In Philadelphia, the application is made to the chief of police. 18 Pa. C.S.
    § 6109(b).
    12
    The Firearms License Validation System is a nationwide system available
    to law enforcement personnel to enable verification of the validity of firearms
    licenses. See 18 Pa. C.S. § 6109(l).
    - 10 -
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    (a) The General Assembly finds that there are private
    detectives, investigators, watchmen, security guards and
    patrolmen, privately employed within this Commonwealth who
    carry and use lethal weapons including firearms as an incidence
    of their employment and that there have been various tragic
    incidents involving these individuals which occurred because of
    unfamiliarity with the handling of weapons. The General
    Assembly also finds that there is presently no training required
    for such privately employed agents in the handling of lethal
    weapons or in the knowledge of law enforcement and the
    protection of rights of citizens, and that such training would be
    beneficial to the safety of the citizens of this Commonwealth.
    (b) It is the purpose of this act to provide for the
    education, training and certification of such privately employed
    agents who, as an incidence to their employment, carry lethal
    weapons through a program administered or approved by the
    Commissioner of the Pennsylvania State Police.
    Act No. 1974-235 § 2, 22 P.S. § 42.       The Act defines “lethal weapons” to
    include firearms.     
    Id. § 3,
    22 P.S. § 43.       It defines “privately employed
    agents” to include persons “employed for the purpose of providing watch
    guard, protective patrol, detective or criminal investigative services either
    for another for a fee or for his employer.” 
    Id. Act 235
    requires the State Police Commissioner to establish and
    administer “[a]n education and training program in the handling of lethal
    weapons, law enforcement and protection of rights of citizens.”          Act No.
    1974-235 § 4(a), 22 P.S. § 44(a).       With exceptions not relevant here, all
    “privately employed agents” are required to attend that program, and, upon
    its satisfactory completion, they “shall be entitled to certification by the
    commissioner.”      
    Id. § 4(b),
    22 P.S. § 44(b).
    - 11 -
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    Persons may apply to enroll in the program if they are 18 years of age
    or older, pass a criminal background check, and meet other requirements
    established by the Commissioner. Act No. 1974-235 § 6, 22 P.S. § 46; see
    37 Pa. Code § 21.11 (eligibility criteria established by Commissioner). When
    they complete the program, they receive “an appropriate wallet or billfold
    size copy of the certificate, which shall include a photograph of the individual
    thereon.” Act No. 1974-235 § 7(b), 22 P.S. § 47(b). There are two classes
    of certifications, one of which entitles the agent to be armed with all types of
    lethal weapons, including a firearm, and the other of which authorizes use of
    weapons other than firearms.       37 Pa. Code § 21.12.       The State Police
    regulations call the certificate issued for both types of certifications a
    “certification card” and state that it “must be in the form of a laminated,
    wallet or billfold size card containing identifying information, type of
    certification, and a color photograph of the applicant.” 
    Id. § 21.20.
    Notably,
    the regulations state, “The issuance of a certification card to a privately
    employed agent does not grant the agent the right or privilege to carry,
    possess, own, or have under his control a firearm contrary to 18 Pa.C.S. §§
    6101–6120 (relating to Uniform Firearms Act).” 
    Id. § 21.26(d).
    The Act requires agents to carry their certification cards when on duty.
    Section 8(a) provides:
    Privately employed agents must possess a valid certificate
    whenever on duty or going to and from duty and carrying a
    lethal weapon.
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    22 P.S. § 48(a). Section 7(c) provides further:
    Every certified individual shall carry his wallet or billfold size
    certificate on his person as identification during the time when
    he is on duty or going to and from duty and carrying a lethal
    weapon.
    
    Id. § 47(c).
        Failure to comply with Section 8(a) is a misdemeanor
    punishable by up to one year in prison, and failure to comply with Section
    7(c) is a summary offense. Act No. 1974-235 § 9, 22 P.S. § 49.
    Act 235 Certificates as “Substitutions” for Firearms Licenses
    Anderson contends that he may not be prosecuted for violating the
    PUFA’s licensing requirements because his Act 235 certificate serves as a
    lawful “substitution” for the firearms license required by the PUFA.           Our
    review of the two statutes makes clear that this contention is incorrect for
    two broad reasons.
    First, the PUFA requires a person carrying a firearm to have a license,
    but an Act 235 certificate is not a license and does not function as a type of
    document that could serve as a substitute for a license. A “license” is “[the]
    permission by competent authority to do an act which, without such
    permission, would be illegal . . . [or the] certificate or the document itself
    which gives permission.” BLACK’S LAW DICTIONARY 829 (5th ed. 1979); see,
    e.g., Morning Call, Inc. v. Bell Atlantic-Pennsylvania, Inc., 
    761 A.2d 139
    ,    144   (Pa.   Super.   2000).      A     government   license   “constitutes
    governmental ‘permission’” to do an act. See Redevelopment Authority
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    of Philadelphia v. Lieberman, 
    336 A.2d 249
    , 257 (Pa. 1975). Hence, a
    firearms license grants permission by the Commonwealth to carry a firearm.
    An Act 235 certificate grants no such permission. A “certification” is
    the formal assertion in writing of some fact, and a “certificate” is the written
    assurance that some act has been done or some legal formality complied
    with.     BLACK’S LAW DICTIONARY at 205-06.       Act 235 requires privately
    employed agents who carry lethal weapons to attend an educational and
    training program established by the State Police Commissioner and provides
    for them to receive “certification” when the program is satisfactorily
    completed. Act No. 1974-235 § 4(b), 22 P.S. § 44(b). Act 235 certification
    thus attests to an agent’s successful completion of the training course
    required by the statute.    The certification is evidenced by a certificate (or
    “certification card”) issued by the Commissioner, which the agents must
    then carry while on duty. 
    Id. §§ 7(b)
    & (c), 8(a), 22 P.S. §§ 47(b) & (c),
    8(a).    But nothing in Act 235 states that this certificate grants its bearer
    permission from the Commonwealth to carry a firearm or other weapon.
    The certificate merely attests to the fact that its bearer has satisfied a
    mandatory condition — completion of training — that is necessary to carry a
    weapon while on duty under the statute. The State Police regulations under
    the Act make this distinction clear, stating that issuance of the certificate
    “does not grant the agent the right or privilege to carry, possess, own, or
    have under his control a firearm.”       37 Pa. Code § 21.26(d) (emphasis
    - 14 -
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    added).    In other words, it does not grant a license.         Because the State
    Police are charged with administering Act 235 and also carry out significant
    responsibilities under the PUFA, that agency’s understanding of the Act 235
    certificate that it issues is entitled to substantial deference. See Banfield v.
    Cortes, 
    110 A.3d 155
    , 174 (Pa. 2015).13
    An Act 235 certificate thus does not act as the “license” required by
    Sections 6106 and 6108 of the PUFA and cannot serve as a substitute for
    that license. This is especially evident with respect to Section 6106(a)(1),
    which requires a person carrying a firearm to have “a valid and lawfully
    issued license under this chapter.”            “This chapter” is Chapter 61 of the
    Crimes Code (Title 18 of Pennsylvania Consolidated Statutes).          Act 235 is
    not part of any chapter of the Crimes Code, and, indeed, was not enacted as
    part of Pennsylvania Consolidated Statutes. The license required by these
    PUFA provisions is that under Section 6109 of the PUFA, the specific
    licensing provision in Chapter 61. An Act 235 certificate does not fit that bill.
    ____________________________________________
    13
    We find the terms of the PUFA and Act 235 clear, but if we did not, we
    would derive significant guidance from the State Police regulation on their
    meaning. The Statutory Construction Act states that, “[w]hen the words of
    the statute are not explicit, the intention of the General Assembly may be
    ascertained by considering . . . administrative interpretations of such
    statute.” 1 Pa.C.S. § 1921(c)(8). Because the statutory provisions are
    clear, the trial court’s reliance on such canons of construction as the rule
    that penal statutes are to be strictly construed, 1 Pa. C.S. § 1928(b)(1), was
    improper. “Courts may apply the rules of statutory construction only when
    the statutory language is not explicit or is ambiguous.” In re Trust Under
    Agreement of Taylor, No. 15 EAP 2016, ___ A.3d ___, 
    2017 WL 3044242
    ,
    at *6, 2017 Pa. LEXIS 1692, at *17 (Pa., July 19, 2017).
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    We will not belabor the point, but we add that an Act 235 certificate
    has several features that would make it an inappropriate “substitution” for a
    firearms license under the PUFA statutory scheme.        For one thing, the
    eligibility requirements for the two documents are different.      An Act 235
    certificate may be issued to an 18-year-old, for example, while a firearms
    license may not be issued to anyone under 21. The form and content of the
    two documents are different as well. One significant difference is that each
    firearms license has an identification number that can be checked nationwide
    by law enforcement investigators through the Firearms License Validation
    System; an Act 235 certificate is not searchable in that system.
    Second, nothing in the PUFA authorizes anyone to substitute another
    form of gun authorization for the license required by the PUFA. Indeed, the
    PUFA’s licensing provision, Section 6109, warns that no Commonwealth
    agency is authorized to regulate the possession of firearms in any manner
    inconsistent with the PUFA. 18 Pa. C.S. § 6109(m.3)(2). Anderson argues,
    however, that the exception to the PUFA’s licensing requirement in Section
    6106(b)(6) for certain persons who are employed to protect money or other
    property demonstrates that the PUFA does not require security guards like
    himself to have firearms licenses so long as they possess Act 235
    certificates. Anderson’s Brief at 4. Anderson’s argument misinterprets the
    PUFA.
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    J-E01002-17
    Section 6106(b) contains no exception for persons carrying Act 235
    certificates. Indeed, nothing in the PUFA ever mentions Act 235 certificates
    or even acknowledges their existence.              The exceptions in Section 6106(b)
    are affirmative defenses that may be raised at trial by persons charged with
    PUFA violations. Commonwealth v. Lopez, 
    565 A.2d 437
    , 440 (Pa. 1989);
    Commonwealth v. Hughes, 
    408 A.2d 1132
    , 1138 (Pa. Super. 1979).
    Therefore, Anderson may defend himself at trial by seeking to prove that he
    meets each of the elements described in Section 6106(b)(6) for persons who
    protect valuables and property in the discharge of their duties, and, if he is
    successful, may be found not guilty of the PUFA charges. 14 But the fact that
    Anderson may assert a defense under Section 6106(b)(6) does not mean
    that his possession of an Act 235 certificate in connection with his work
    entitles him to have the charges dismissed.
    Anderson’s argument seeks improperly to meld his defense under
    Section 6106(b)(6) with requirements of Act 235 to create some sort of
    immunity from prosecution for security guards carrying Act 235 certificates.
    See Anderson’s Brief at 4.         He points out that the defense under Section
    ____________________________________________
    14
    See Commonwealth v. Walton, 
    529 A.2d 15
    , 17 (Pa. Super. 1987)
    (suggesting Section 6106(b)(6) applies to “persons employed as guards,
    watchmen, protective patrols, and private detectives, who are required in
    the discharge of their duties to protect money, valuables, and property”),
    appeal denied, 
    539 A.2d 811
    (Pa. 1988). We note that Anderson was not
    acting in the performance of his duties when he shot Ellis, and we express
    no view on the merits of any defense Anderson may make under Section
    6106(b)(6).
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    J-E01002-17
    6106(b)(6) applies to “agents” of banks or other businesses who carry
    firearms to protect “moneys, valuables and other property” in the course of
    their duties and that Sections 7(c) and 8(a) of Act 235 require “privately
    employed agents” who carry firearms, including private security guards like
    Anderson, to carry an Act 235 certificate when they are on duty or traveling
    to or from duty. From this, he suggests that a security guard who is on duty
    or traveling to or from duty is exempt from the requirement to have a
    firearms license so long as he has an Act 235 certificate.     But Anderson’s
    melding of Section 6106(b)(6) and Act 235 is unsupported by the statutes
    themselves. The exception in Section 6106(b)(6) has been part of the PUFA
    since the Crimes Code was first enacted in 1972, see Act No. 1972-334,
    1972 P.L. at 1576, and therefore has nothing to do with the fact that an
    “agent” covered by it may carry an Act 235 certificate, since such certificates
    did not exist in 1972 and would not exist until passage of Act 235 two years
    later. Section 6106(b)(6) does not reference Act 235, and Act 235 does not
    reference Section 6106(b)(6).     There therefore is no statutory basis for
    Anderson’s apparent speculation that Section 6106(b)(3) evidences a
    legislative intent silently to make possession of an Act 235 certificate an
    excuse not to carry a firearms license.
    Anderson’s argument that an Act 235 certificate           serves as a
    “substitution” for a PUFA firearms license finds no support in either statute.
    - 18 -
    J-E01002-17
    The trial court therefore erred in dismissing the PUFA charges against
    Anderson on the basis of that argument.
    Reconcilability of the PUFA and Act 235
    In support of its view that Anderson’s compliance with Act 235
    excused his failure to carry a firearms license, the trial court held that an
    irreconcilability   between   the   PUFA   and   Act   235   requires   that   the
    requirements of Act 235 control. Trial Court Opinion at 6. The trial court
    based this reasoning on Section 1933 of the Statutory Construction Act,
    which provides:
    Whenever a general provision in a statute shall be in conflict with
    a special provision in the same or another statute, the two shall
    be construed, if possible, so that effect may be given to both. If
    the conflict between the two provisions is irreconcilable, the
    special provisions shall prevail and shall be construed as an
    exception to the general provision, unless the general provision
    shall be enacted later and it shall be the manifest intention of
    the General Assembly that such general provision shall prevail.
    1 Pa.C.S. § 1933.      The court characterized the provisions of Act 235 as
    “special provisions” that should prevail over the ‘general provisions” of the
    PUFA because Act 235 was enacted later (in 1974) than the PUFA (1972).
    Trial Ct. Opinion. at 6.
    The trial court’s analysis was flawed for several reasons. First of all,
    with respect to gun licensing, it is not readily apparent to us what it is about
    Act 235 that makes its provisions “special” when compared to those of the
    PUFA.      The Supreme Court has observed that such characterizations
    sometimes are “mutable” and unhelpful, and, given that the PUFA is a
    - 19 -
    J-E01002-17
    statute that requires licensing and Act 235 says nothing about licensing, that
    seems to be the case here. See generally 
    Stotelmyer, 110 A.3d at 154
    n.13; Commonwealth v. Hansley, 
    47 A.3d 1180
    , 189-90 (Pa. 2012). In
    addition, the trial court’s labeling of Act 235 as the more recent law was
    overly simplistic in light of the extensive revisions that the Legislature made
    to the PUFA in 1995 and the numerous amendments it has made to that
    statute (and, in particular, to Section 6106) since then. 15 The Legislature
    has had many opportunities to incorporate provisions relating to Act 235 into
    the PUFA if it wished to do so, but it has not taken such action.
    More important, however, there is nothing about the PUFA and Act 235
    that is “irreconcilable.” “[C]onsistent with our overarching goal of construing
    statutes to fulfill the intent of the General Assembly, we are obliged to
    construe [two statutes] in harmony, if possible, so as to give effect to both.”
    In re Downingtown, 
    161 A.3d 844
    , 871 (Pa. 2017).                    This rule of
    construction is in accord with the Legislature’s directive that we construe
    statutes dealing with the same subject matter as in pari materia, 1 Pa. C.S.
    § 1932, and that such statutes “be considered concurrently whenever
    ____________________________________________
    15
    Since Act 235’s enactment in 1974, Section 6106 has been amended
    seven times. See Act No. 1986-93, P.L. 442 (July 8, 1986); Act No. 1988-
    158, P.L. 1275 (Dec. 19, 1988); Act No. 1995-66, P.L. 621 (Nov. 22, 1995);
    Act No. 1997-5, P.L. 73 (Apr. 22, 1997); Act No. 2000-101, P.L. 728 (Dec.
    20, 2000); Act No. 2005-66, P.L. 335 (Nov. 10, 2005); Act No. 2008-131,
    P.L. 1628 (Oct. 17, 2008). The licensing provisions in Section 6109 have
    undergone a similar number of amendments.           There have been no
    amendments to Section 6108.
    - 20 -
    J-E01002-17
    possible and if they can be made to stand together effect should be given to
    both as far as possible.” 
    Downingtown, 161 A.3d at 871
    (quoting Kelly v.
    City of Philadelphia, 
    115 A.2d 238
    , 245 (Pa. 1955)). Upon applying these
    principles, it is clear that the PUFA and Act 235 can coexist in harmony and
    that there is no reason to hold that the provisions of one statute supersede
    those of the other.
    Both the PUFA and Act 235 regulate firearms by imposing separate
    and complimentary requirements for their possession.      The PUFA requires
    that those carrying firearms be licensed. The purpose of this requirement “is
    to provide support to law enforcement in the area of crime prevention and
    control,” Act No. 1995-17 (Spec. Sess. 1), 1995 P.L. at 1024, by creating a
    system to screen those eligible to carry firearms and to document and verify
    lawful gun possession.   See Commonwealth v. Scarborough, 
    89 A.3d 679
    , 686-87 (Pa. Super.), appeal denied, 
    102 A.3d 985
    (Pa. 2014). Act
    235 requires certain professionals who carry firearms for security purposes
    to be certified in the weapons’ proper use.     Its purpose is to prevent the
    occurrence of “tragic incidents” due to “unfamiliarity” with proper weapons
    handling. Act No. 1974-235 § 2, 22 P.S. § 42.
    There is no reason why persons required to be certified under Act 235
    cannot also be required to be licensed under the PUFA. To the contrary, the
    dual requirements can work in a complementary fashion to further the
    Legislature’s dual aims of law enforcement and safety. We thus agree with
    - 21 -
    J-E01002-17
    the Commonwealth that the PUFA and Act 235 set forth separate,
    independent, and entirely compatible regulatory schemes, and that “an
    individual who carries a firearm incident to employment is required to
    comply with both of them.”       Commonwealth’s Brief at 18 (emphasis in
    original). There thus is no irreconcilability calling for application of Section
    1933 of the Statutory Construction Act. In holding to the contrary, the trial
    court erred.
    In sum, we conclude that Act 235 is not a “substitution” for a license
    to carry a firearm and that Act 235’s provisions do not supersede the
    licensing requirements in the PUFA. Accordingly, we reverse the trial court’s
    decision and remand this matter for further proceedings.
    Order reversed. Case remanded. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/23/2017
    - 22 -
    

Document Info

Docket Number: Com. v. Anderson, J. No. 2764 EDA 2014

Judges: Bender, Bowes, Panella, Shogan, Lazarus, Olson, Dubow, Moulton, Solano

Filed Date: 8/23/2017

Precedential Status: Precedential

Modified Date: 10/26/2024