Commonwealth v. Smith, B., Aplt.

[J-118-2019] [MO: Dougherty, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 2 EAP 2019
:
Appellee : Appeal from the Judgment of
: Superior Court entered on
: 8/28/2018 at No. 1028 EDA 2017
v. : affirming the Judgement of
: Sentence entered on 2/2/2017 in the
: Court of Common Pleas,
BRAHIM SMITH, : Philadelphia County, Criminal
: Division at No. CP-51-CR-0006922-
Appellant : 2014.
:
SUBMITTED: December 12, 2019
DISSENTING OPINION
JUSTICE WECHT DECIDED: July 21, 2020
I do not doubt that the existence of a bench warrant might, in appropriate
circumstances, dovetail with a determination that an individual is a “fugitive from justice”
prohibited from possessing a firearm under the Uniform Firearms Act. See 18 Pa.C.S. §
6105(c)(1). But it cannot be gainsaid that “[a] man is not fleeing from justice until he
knows that justice is looking for him or fears that justice is about to look for him.”
Commonwealth v. Woong Knee New, 47 A.2d 450, 466 (Pa. 1946). At times, a warrant
is executed to secure the arrest of a “fugitive from justice.” At others, a bench warrant
may issue for reasons wholly unrelated to any fugitive status, and perhaps unrelated even
to the commission of any crime in the first place. The fatal defect of the Commonwealth’s
case against Brahim Smith is the absence of any evidence of record as to why the warrant
was issued or whether Smith had notice of it. Because the record before us is utterly
devoid of probative evidence supporting even an inference that Smith knew that a warrant
had been issued for his arrest—and that he intended to flee from it—I cannot join the
Court’s conclusion that he was a fugitive per se, and thus automatically precluded from
possessing a firearm. Accordingly, I think it plain that this Court is bound to reverse the
judgment of the Superior Court and vacate Smith’s misdemeanor conviction under
subsection 6105(c)(1).
The status of fugitives was a primary concern of our nation’s Founders. From the
outset, the extradition of fugitives has been recognized as an obligation of comity between
the States. See Innes v. Tobin, 240 U.S. 127, 130-31 (1916) (“[P]rior to the adoption of
the Constitution fugitives from justice were surrendered between the states conformably
to what were deemed to be the controlling principles of comity.”) (citing Kentucky v.
Dennison, 65 U.S. 66, 101-02 (1860), overruled by Puerto Rico v. Branstad, 483 U.S. 219
(1987)). To that end, the phrase “fugitive from Justice” formally entered our constitutional
lexicon in 1777 with the Second Continental Congress’ approval of the fourth article of
our fledgling nation’s first Charter, which provided:
The better to secure and perpetuate mutual friendship and intercourse
among the people of the different states in this union, the free inhabitants
of each of these states, paupers, vagabonds and fugitives from Justice
excepted, shall be entitled to all privileges and immunities of free citizens in
the several states . . . .
If any Person guilty of, or charged with, treason, felony or other high
misdemeanor in any state, shall flee from Justice, and be found in any of
the united states, he shall upon demand of the Governor or executive power
of the state from which he fled, be delivered up, and removed to the state
having jurisdiction of his offense.
ARTICLES OF CONFEDERATION AND PERPETUAL UNION of 1781, art. IV; see also THE
FEDERALIST NO. 42 (James Madison).
That provision subsequently was refashioned as the Extradition Clause of the
United States Constitution, which commands:
[J-118-2019] [MO: Dougherty, J.] - 2
A Person charged in any State with Treason, Felony, or other Crime, who
shall flee from Justice, and be found in another State, shall on Demand of
the executive Authority of the State from which he fled, be delivered up, to
be removed to the State having Jurisdiction of the Crime.
U.S. CONST. art. IV, § 2. Recognizing that the Clause was not self-enforcing, the second
United States Congress adopted the so-called Fugitive Slave Act of 1793, Act of Feb. 12,
1793, Pub. L. No. 2-7, 1 Stat. 302, the first two sections of which established the
procedures for securing from “the executive authority of any state in the Union” the return
of fugitives from justice “to the state or territory from which he or she shall have fled.” Id.
§§ 1, 2.1 See Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, 561, 565-72 (1842) (affirming
the supremacy of the Act and striking down as unconstitutional a Pennsylvania law
“purport[ing] to punish as a public offence against the state” the kidnapping and rendition
of enslaved fugitives).
In considering the effect of the foregoing provisions on the obligations of the
executive authorities of asylum states, the Supreme Court of the United States has
observed that whether a person is a fugitive from justice “is a question of fact, which the
governor of the state upon whom the demand is made must decide, upon such evidence
as he may deem satisfactory.” Roberts v. Reilly, 116 U.S. 80, 95 (1885).
1 Extradition proceedings are now governed by Chapter 209 of Title 18 of the United
States Code. 18 U.S.C. §§ 3181-96. In this Commonwealth, the procedures facilitating
interstate extradition have since been codified as the Uniform Criminal Extradition Act, 42
Pa.C.S. § 9121, et seq. Compare id. § 9123 (“[I]t is the duty of the Governor of this
Commonwealth to have arrested and delivered up to the executive authority of any other
state of the United States any person charged in that state with treason, felony or other
crime, who has fled from justice and is found in this Commonwealth.”), with 18 U.S.C. §
3182 (“Whenever the executive authority of any State or Territory demands any person
as a fugitive from justice . . . the executive authority of the State, District, or Territory to
which such person has fled shall cause him to be arrested and secured, and notify the
executive authority making such demand, or the agent of such authority appointed to
receive the fugitive, and shall cause the fugitive to be delivered to such agent when he
shall appear.”).
[J-118-2019] [MO: Dougherty, J.] - 3
The simple inquiry must be whether the person whose surrender is
demanded is in fact a fugitive from justice, not whether he consciously fled
from justice in order to avoid prosecution for the crime with which he is
charged by the demanding state. A person charged . . . with the commission
within a state of a crime covered by its laws, and who, after the date of the
commission of such crime, leaves the state—no matter for what purpose or
with what motive, nor under what belief—becomes, from the time of such
leaving, and within the meaning of the Constitution and the laws of the
United States, a fugitive from justice . . . . Such is the command of the
supreme law of the land, which may not be disregarded by any state. The
constitutional provision relating to fugitives from justice, as the history of its
adoption will show, is in the nature of a treaty stipulation entered into for the
purpose of securing a prompt and efficient administration of the criminal
laws of the several states—an object of the first concern to the people of
the entire country, and which each state is bound, in fidelity to the
Constitution, to recognize.
Appleyard v. Massachusetts, 203 U.S. 222, 227-28 (1906) (cleaned up; emphasis in
original); but see Bassing v. Cady, 208 U.S. 386, 391-93 (1908) (suggesting that asylum
State governor might be permitted to deny an extradition demand when the requisition
State’s warrant is predicated on criminal offenses for which the alleged fugitive previously
had been charged, assuming jeopardy had attached prior to the dismissal of the first
indictment).
The Court also has clarified that:
[F]or purposes of extradition between the states, it does not matter what
motive induced the departure. . . . The Constitution . . . peremptorily
requires that upon proper demand the person charged shall be delivered up
to be removed to the state having jurisdiction of the crime. There is no
discretion allowed, no inquiry into motives.
Drew v. Thaw, 235 U.S. 432, 439-40 (1914) (citations omitted). Having been charged
with a crime in one State, it is sufficient that an alleged fugitive simply be found in another
State. Strassheim v. Daily, 221 U.S. 280, 285 (1911); Ex parte Reggel, 114 U.S. 642,
651-53 (1885); but see Hyatt v. New York, 188 U.S. 691, 713 (1903) (holding that a
defendant cannot be extradited as a “fugitive from justice” if “in fact he was not within the
[J-118-2019] [MO: Dougherty, J.] - 4
[requisition] state at the time the [criminal] act is said to have been committed”). Thus, a
fugitive may be surrendered upon an extradition warrant even if he had been brought into
the asylum State against his will, Innes, 240 U.S. at 135 (noting that, to hold otherwise
“would cause them all to become involuntary asylums for criminals”), regardless of the
alleged forbidden act made punishable by law in the State from which he fled. Taylor v.
Taintor, 83 U.S. (16 Wall.) 366, 375 (1872) (“Every violation of the criminal laws of a State
is within the meaning of the Constitution, and may be made the foundation of a
requisition.”). See generally Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 108-09
(1907) (delineating seven “principles” controlling the interstate extradition of “fugitives
from justice”).
Although the foregoing authority largely arose in the context of interstate
extradition proceedings, this Court’s jurisprudence on the subject of fugitives developed
in tandem with that indelible feature of American federalism.2 Consequently, our
predecessors have had occasion to distinguish the prevailing federal “fugitive from
justice” standard from Pennsylvania’s consideration of wholly intrastate requisitions.
Commonwealth v. Jailer, 1 Grant 218 (Pa. 1855), for instance, concerned a warrant
issued by the President Judge of Allegheny County directing the sheriff to convey a
fugitive “imprisoned in the common jail of” that county, “upon a charge of adultery,
committed in Washington County,” to the custody of the latter’s county jail. Id. at 219.
Acknowledging that such a transfer would be permissible “[i]f the offence
charged . . . were a felony,” id., this Court ordered the woman’s release on the grounds
that the lower court had no power, either by statute or “at common law,” to order the
2 In light of this historical development, I disagree with the lower court’s rejection of
Smith’s argument as “legally unpersuasive” simply because his “discussion of the phrase
‘fugitive from justice’” arose from “caselaw and statutory authority relating to extradition.”
Commonwealth v. Smith, 1028 EDA 2017, 2018 WL 4089657, at *4 n.6 (Pa. Super. Aug.
28, 2018).
[J-118-2019] [MO: Dougherty, J.] - 5
rendition of an alleged fugitive where the conduct at issue was a lower-graded offense.
Id. at 219-20. For non-felonies, however, the Court noted that
the means provided for the arrest and return of fugitives from justice, is a
warrant issued by a justice of the peace of the county where the offence is
alleged to have been committed, and endorsed or backed by a justice or
alderman of the county where the offender is found.
Id. at 220. While Jailer is in accord with the federal standard that authorities must
demonstrate a nexus to some criminal offense, this Court appeared to signal an early
divergence from the federal courts’ view that flight from any criminal offense would
support the execution of a bench warrant for the capture and conveyance of alleged
fugitives within the Commonwealth.
Revisiting the fugitive question in Blackman v. Commonwealth, 17 A. 194 (Pa.
1889), this Court held that prosecutors make out a prima facie case that a defendant was
a fugitive by “prov[ing] that he fled from his usual place of residence within this state for
the manifest purpose of avoiding arrest.” Id. at 195. By obligating the Commonwealth to
demonstrate a defendant’s “manifest purpose” in fleeing—i.e., to avoid arrest—the
Blackman Court broke from the High Court’s fugitive jurisprudence, which required no
proof of scienter. Compare id., with Appleyard, 203 U.S. at 227, and Drew, 235 U.S. at
439. As far as Pennsylvania was concerned, a warrant alone would not suffice to prove
that an individual had intended to flee “from justice.” Foreshadowing the circumstances
presently before us, the Court notably inquired as to whether a defendant, “hiding within
the state, instead of outside of it,” would be “in a position to raise the question whether a
fugitive from justice, who effectually secretes himself within the state, and thus baffles all
attempts to arrest him until the statute [of limitations] has run, can then emerge from his
hiding place, and successfully plead the statute of limitations.” Id. Because the issue
was not raised directly in that case, the Court declined to answer its own pregnant query.
[J-118-2019] [MO: Dougherty, J.] - 6
This Court appeared to resolve the question definitively in Commonwealth v.
Weber, 103 A. 348 (Pa. 1918). In that case, Weber, a resident of Pittsburgh who
frequented “his old home in West Deer [T]ownship, where he owned an interest in a farm,”
was charged with “seduction and fornication and bastardy,” offenses that he allegedly
committed in the township in July 1910. Id. at 349. After learning that a criminal
information had been sworn and a warrant issued for his arrest in April 1911, Weber “left
home . . ., going to Youngstown, Ohio,” until November 1913, “when he took up his
residence in Pittsburgh and continued to reside in that city” as of the time of his arrest in
1916. Id. On appeal, Weber asserted that his convictions should be overturned based
upon the two-year statute of limitations for the crimes charged. Drawing from the
circumstances in Blackman, the Weber Court rejected the notion that “one charged with
crime committed in a rural district, who flees from arrest, but subsequently takes up his
residence in a large city within the state,” can invoke the statute of limitations to avoid
prosecution. Id. at 349-50. Thus, so long as a person intentionally flees from his usual
place of residence when the authorities attempt to initiate criminal process, he may be
considered a bona fide fugitive from justice, even if he does not leave the
Commonwealth’s jurisdiction.
Turning to the instant matter, the pertinent inquiry is whether Smith, who was found
in constructive possession of a firearm on the public streets of Philadelphia, was in that
moment a “fugitive from justice” as that phrase commonly is, and historically has been,
understood. Apart from the seizure of the firearm itself, the totality of the
Commonwealth’s evidence against Smith for the offense charged under subsection
6105(c)(1) was the following two-sentence stipulation:
[A]t the time of this offense on April 21st of 2014, the defendant, Brahim
Smith, had an active bench warrant, which was issued on April 3rd of 2014
under CP-51-[CR-]0003923-2011. That bench warrant was lifted on May
1st of 2014, which would make him ineligible for -- a prohibited person from
[J-118-2019] [MO: Dougherty, J.] - 7
carrying a firearm under 6105 graded as a misdemeanor of the first
degree.[3]
Notes of Testimony (“N.T.”), 10/14/2016, at 20-21. The Commonwealth’s argument, at
base, is that the existence of the bench warrant, without more, was sufficient to render
Smith a fugitive from justice for purposes of the Uniform Firearms Act. The Majority
adopts this dubious formulation, reasoning that:
a bench warrant issues only when an individual does not appear when
required, and thus acts to elude or evade law enforcement or prosecution.
It logically follows that an individual who evades law enforcement such that
a bench warrant is issued . . . is a fugitive as that term is commonly defined.
Maj. Op. at 13.4 The Majority’s conclusion rests upon several flawed assumptions.
As a threshold matter, contrary to the Majority’s suggestion, bench warrants do not
issue in criminal cases “only” when someone fails to appear when required. Several of
our Rules of Criminal Procedure provide that bench warrants may issue for the failure to
pay fines and court costs.5 See, e.g., Pa.R.Crim.P. 706, Comment (“Under this rule, when
a defendant fails to pay the fine and costs, the common pleas court judge may issue a
bench warrant for the collection of the fine and costs.”); cf. id. at 142(A)(1)-(2) (bench
warrant “shall be issued” where a contemnor fails to pay fines imposed as a punishment
for contempt). In summary cases, bench warrants may be executed when a
3 See 18 Pa.C.S. § 6119 (“Except as otherwise provided, an offense under this
subchapter constitutes a misdemeanor of the first degree.”).
4 The Majority castigates this dissent for “going so far as to” elide from the block-
quoted text the phrase “as appellant stipulated to do here.” Maj. Op. at 13 n.10. Because
I do not share the Majority’s view that Smith specifically stipulated to “evad[ing] law
enforcement,” id. at 13—which necessarily would have satisfied an essential mens rea
element—I cannot consider that comment to be a fair characterization of the parties’
stipulation.
5 See generally Pa.R.Crim.P. 150 (outlining procedures in cases where bench
warrants are executed).
[J-118-2019] [MO: Dougherty, J.] - 8
defendant has entered a guilty plea by mail and the money forwarded with
the plea is less than the amount of the fine and costs specific in the citation
or summons; or the defendant has been sentenced to pay restitution, a fine,
or costs and has defaulted on the payment; or the issuing authority has, in
the defendant’s absence, tried and sentenced the defendant to pay
restitution, and/or to pay a fine and costs and the collateral deposited by the
defendant is less than the amount of the fine and costs imposed.
Id. at 430(B)(3)(a)-(c). Bench warrants also are issued to secure individuals who violate
conditions of bail, id. at 536(A)(1)(b), including non-monetary conditions such as travel
restrictions, home confinement, curfew, and electronic monitoring. See Commonwealth
v. Sloan, 907 A.2d 460, 462 (Pa. 2006). It logically follows that while a court may issue
a bench warrant based upon a defendant’s efforts “to elude or evade law enforcement or
prosecution,” Maj. Op. at 13, those acts are a sufficient condition, but not a necessary
one.
Nor are bench warrants confined to the enforcement of the criminal law. In the
family courts across this Commonwealth, judges regularly depend upon bench warrants
as tools to compel attendance and to assist in the collection of support payments in
domestic relations matters, matters completely untethered from the criminal law. See
Pa.R.C.P. 1910.13-1. Based upon the Majority’s broad holding, I shudder to think that a
party to a custody dispute or support action who inadvertently misses a scheduling
conference or a child support payment now would be considered a “fugitive from justice,”
subject to prosecution for possessing a firearm regardless of whether he or she knew that
a warrant had issued and absent even a hint of criminal wrongdoing. This result is
unintended and untenable.
Moreover, in each century of its existence, this Court has considered appeals
involving the use of bench warrants where the failure of a party or witness to appear was
not in dispute. For example, trial courts may issue bench warrants proactively to ensure
the attendance of reluctant victims and witnesses in both criminal and civil cases, see,
[J-118-2019] [MO: Dougherty, J.] - 9
e.g., Commonwealth v. Cargo, 444 A.2d 639, 641 n.8 (Pa. 1982) (sixteen-year-old
witness to murder ordered to appear ahead of trial); to compel testimony regarding juror
bias, Commonwealth v. White, 290 A.2d 246, 248 (Pa. 1972) (bench warrant issued to
dismissed juror’s employer following disclosure that the two may have discussed case);
to guarantee service of process, Schlesinger v. Musmanno, 81 A.2d 316, 318 (Pa. 1951)
(bench warrant issued in civil trespass case for petitioner’s arrest after he refused service
by deputy sheriff); and to initiate contempt proceedings, Legaux v. Feasor, 1 Yeates 586,
588 (Pa. 1795) (following dismissal of jury, bench warrant issued against a witness for
“wilful and corrupt perjury”).
Bench warrants even have been issued at the insistence of the parties themselves,
sometimes for the express purpose of securing evidence or exposing fraudulent behavior.
See Appeal of McIntyre, 22 A.2d 200, 200-01 (Pa. 1941) (bench warrant executed upon
complaint that election board was committing fraud and failed to compute returns); Willis
v. Kane, 2 Grant 60 (Pa. 1853) (bench warrant issued upon affidavit alleging that attorney
had fraudulently concealed property from creditors); see also Thompson v. Thompson,
223 A.3d 1272, 1274 (Pa. 2020) (discussing agreement signed by appellee in which she
“admitted that she was in civil contempt” of a support order and providing that a bench
warrant would be issued for her immediate arrest if she “failed to remain current in her
obligation”). That is to say, notwithstanding a court’s inherent authority to issue a bench
warrant to secure the arrest of a “fugitive from justice” in a criminal case, it is clear that
bench warrants are used for a multitude of reasons in the law other than one’s failure to
appear when previously ordered. Equally clear is that the issuance of a bench warrant is
not necessarily tethered to one’s commission of a criminal act at all. Whatever other
attributes of a “fugitive from justice” that the Majority emphasizes or dismisses, certainly
[J-118-2019] [MO: Dougherty, J.] - 10
the phrase is intended to refer only to a criminal actor, not a parent who misses a custody
hearing, or a witness to a crime who fails to appear and testify at trial due to intimidation.
Unfortunately, the Majority draws no practical distinction between these disparate
circumstances. Under the Majority’s expansive reading, a bench warrant predicated upon
the mere inability to pay fines and fees (other than for summary traffic offenses) would
just as soon turn a constitutionally protected activity—namely, the right to keep and bear
arms—into a criminal act as it would if it had been triggered by one’s deliberate flight to
avoid prosecution. Every technical probation or parole violator instantly would be
rendered a “fugitive from justice” upon the issuance of a bench warrant, which may be
pro forma in some jurisdictions, or dependent upon the vicissitudes of busy trial court
schedules in others. Anyone who inadvertently misses a domestic relations hearing or a
child support payment could face a weapons charge, even though the offender might
otherwise be permitted to lawfully possess a firearm. The possibilities are alarmingly
endless, and they flow naturally from the Majority’s unbounded ruling.
The Majority dismisses these considerations out of hand as “hyperbolic.” Maj. Op.
at 11 n.9. And yet, in defining “fugitive” and “fugitive from justice” broadly to “include
someone who evades the law or prosecution,” Maj. Op. at 13 (emphasis added), the
Majority provides no meaningful guidance to those who might unwittingly trigger its
application. Nor would that indeterminable designation cabin the Commonwealth’s
discretion as to who could be prosecuted as a fugitive from “the law.” As Justice Baer
aptly notes, the Majority’s “rigid” classification “effectively creates a per se rule that any
individual who is subject to an active bench warrant is a fugitive from justice, irrespective
of” their knowledge or intent. Diss. Op. at 1 (Baer, J., dissenting). Although the Majority
faults both dissents for gleaning this unmistakable consequence from its holding, it
remains self-evident that the Majority’s cursory analysis embraces such a categorical
[J-118-2019] [MO: Dougherty, J.] - 11
approach. But just how many Pennsylvanians would the Majority’s new rule immediately
impact? The Majority does not say. According to data compiled by the Department of
Justice, infra, however, the answer is in the tens of thousands at any given time—not to
mention the millions of Americans with open warrants presently residing beyond our
borders.
Thus, my concerns regarding the unintended consequences of the Majority’s
holding echo those of Justice Sotomayor, who considered the profusion of open warrants
throughout the United States in her dissent in Utah v. Strieff, ___ U.S. ___, 136 S. Ct.
2056 (2016), a Fourth Amendment case involving a suspicionless police stop. Joined by
Justice Ginsburg, Justice Sotomayor warned of the inherent risk of abuse by law
enforcement created by a glut of open warrants, citing abundant evidence from the
Justice Department as well as non-governmental organizations demonstrating that, as of
2014, there were “over 7.8 million outstanding warrants” nationwide, “the vast majority of
which appear to be for minor offenses.” Id. at 2068 (Sotomayor, J., dissenting) (citing
Dep’t of Justice, Bureau of Justice Statistics, Survey of State Criminal History Information
Systems, 2014 (2015) (“Systems Survey”) (Table 5a)).6 Pertinently, the Systems Survey
showed that there were more than 100,000 open warrants in Pennsylvania alone—more
than eighty percent of which were for non-felony matters. Id. As Justice Sotomayor aptly
noted:
Outstanding warrants are surprisingly common. When a person with a
traffic ticket misses a fine payment or court appearance, a court will issue a
warrant. When a person on probation drinks alcohol or breaks curfew, a
court will issue a warrant. . . . The Department of Justice recently reported
that in the town of Ferguson, Missouri, with a population of 21,000, 16,000
people had outstanding warrants against them.
6 The Department of Justice’s 2015 Systems Survey is available online at
https://www.ncjrs.gov/pdffiles1/bjs/grants/249799.pdf.
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Strieff, 136 S. Ct. at 2068-69 (Sotomayor, J., dissenting) (citations omitted). Given that
the Majority in this case automatically would deem any and all individuals to be “fugitives
from justice” upon the mere issuance of a bench warrant, the potential repercussions of
the Majority’s holding on a statewide scale are exceptionally vast and readily apparent.
Unwilling to confront these inconvenient truths on their merits, the Majority instead
simply derides them as “riffs” and “magical thinking.” Maj. Op. at 13 n.10. As it labors to
divine Smith’s knowledge and intent from the scant record before us, the Majority
effectively transmogrifies a somewhat muddled stipulation into an ironclad guilty plea. “By
agreeing to the stipulation,” the Majority asserts, Smith “also assented to the facts
supporting it, and obviated the Commonwealth’s burden to demonstrate that underlying
fact.” Id. The Majority cites a number of inapposite decisions to rationalize stretching the
stipulation far beyond its natural limits. See id. Phillips v. Schoenberger, 534 A.2d 1075
(Pa. Super. 1987), for instance, stands for the proposition that the facts underlying a
stipulation, once agreed to by the parties, cannot be diminished or enlarged without the
assent of both sides. Id. at 1078-79. But that is precisely what the Majority does here on
the Commonwealth’s behalf when it assumes—without any support whatsoever—that the
bare stipulation somehow established Smith’s mens rea. See Maj. Op. at 4 (quoting N.T.
10/14/2016, at 23); see also id. at 7 n.8. Notably, that portion of the bench trial quoted
by the Majority in support of its bald assumption came not from the parties’ stipulation,
but was made by the Commonwealth during argument. As the Majority well knows, “a
prosecutor’s comments do not constitute evidence,” Commonwealth v. Baez, 720 A.2d
711, 729 (Pa. 1998), nor can they be used to supplement the explicit terms of a stipulation
agreed to by the defense.7
7 The Majority’s reference to Commonwealth v. Padilla, 80 A.3d 1238 (Pa. 2013),
the lone criminal case cited in support of its expansive view of stipulations generally,
similarly is misplaced. There the parties had stipulated explicitly “that evidence exists
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Critically, the Majority’s position also is out of step with persuasive federal
precedent on a very similar question. In an analogous case, Rehaif v. United States, ___
U.S. ___, 139 S. Ct. 2191 (2019), the Supreme Court of the United States considered the
fate of Hamid Rehaif, who “entered the United States on a nonimmigrant student visa to
attend university” and later was convicted of a possessory firearm offense under federal
law. Id. at 2194. After dismissing Rehaif from the school for poor grades, the university
informed him “that his ‘immigration status’ would be terminated unless he transferred to
a different university or left the country. Rehaif did neither.” Id. (record citation omitted).
The Government subsequently discovered that Rehaif had “visited a firing range, where
he shot two firearms” for target practice, and then “prosecuted him for possessing
firearms as an alien unlawfully in the United States, in violation of” the Gun Control Act of
1968, 18 U.S.C § 922, et seq. “At the close of Rehaif’s trial, the judge instructed the jury
(over Rehaif’s objection) that the ‘United States is not required to prove’ that Rehaif ‘knew
that he was illegally or unlawfully in the United States.” Rehaif, 139 S. Ct. at 2194 (citation
omitted). Consequently, the jury found him guilty, and the court sentenced him to
eighteen months’ imprisonment. Id.
beyond a reasonable doubt that” Padilla had killed three people “while in the perpetration
of the felony of a person not to possess and/or use a firearm . . . a felony of the second
degree.” Id. at 1271 (citing N.T. 9/13/2006, at 20). “The Commonwealth presented no
evidence as to any firearm offense, but relied exclusively on the above stipulation to
establish the” aggravating factor under 42 Pa.C.S. § 9711(d)(6) (killing while in the
perpetration of a felony). Padilla, 80 A.3d at 1271. As it turned out, the predicate offense
to which Padilla had stipulated—possession of a firearm by an alien “illegally or unlawfully
in the United States,” 18 Pa.C.S. § 6105(c)(5)—was only a misdemeanor, and thus would
not have established the aggravating factor if its grading had been accurately conveyed
to the jury. Padilla, 80 A.3d at 1271. Notwithstanding that oversight, this Court rejected
Padilla’s efforts to “employ” his sufficiency challenge “as an alternative route to obtain
review of trial court or counsel error.” Id. at 1272. Because the stipulation—“as read to
the jury”—was sufficient to support its findings, this Court concluded that his challenge
necessarily “must fail.” Id. (emphasis in original). Here again, conversely, the parties’
stipulation, by its plain terms, provides no support for the Majority’s conclusion that Smith
knew of the warrant and intended to flee from it.
[J-118-2019] [MO: Dougherty, J.] - 14
On appeal, Rehaif contended that the judge erroneously had instructed the jury
“that it did not need to find that he knew he was in the country unlawfully.” Id. at 2195.
At issue before the Supreme Court was the interplay between subsection 922(g) of the
Act, which prohibits certain individuals, “including felons and aliens who are ‘illegally or
unlawfully in the United States,’” from possessing firearms, id. at 2194 (quoting 18 U.S.C.
§ 922(g)), and subsection 924(a), which separately “adds that anyone who ‘knowingly
violates’ the first provision shall be fined or imprisoned for up to 10 years.” Id. (quoting
18 U.S.C. § 924(a)(2)) (emphasis in original). The question was whether those two
provisions required the Government to “prove that a defendant knew both that he
engaged in the relevant conduct (that he possessed a firearm) and also that he fell within
the relevant status (that he was a felon, an alien unlawfully in this country, or the like)?”
Id.
In a 7-2 opinion authored by Justice Breyer, the Court reversed Rehaif’s conviction,
holding “that the word ‘knowingly’ applies both to the defendant’s conduct and to the
defendant’s status.” Id. The Court observed that:
Whether a criminal statute requires the Government to prove that the
defendant acted knowingly is a question of congressional intent. See
Staples v. United States, 511 U.S. 600, 605 (1994). In determining
Congress’ intent, we start from a longstanding presumption, traceable to the
common law, that Congress intends to require a defendant to possess a
culpable mental state regarding “each of the statutory elements that
criminalize otherwise innocent conduct.” United States v. X-Citement
Video, Inc., 513 U.S. 54, 72 (1994); see also Morissette v. United States,
342 U.S. 246, 256-58 (1952). We normally characterize the interpretive
maxim as a presumption in favor of “scienter,” by which we mean a
presumption that criminal statutes require the degree of knowledge
sufficient to “mak[e] a person legally responsible for the consequences of
his or her act or omission.” Black’s Law Dictionary 1574 (10th ed. 2014).
We apply the presumption in favor of scienter even when Congress does
not specify any scienter in the statutory text. See Staples, 511 U.S. at 606.
But the presumption applies with equal or greater force when Congress
includes a general scienter provision in the statute itself.
[J-118-2019] [MO: Dougherty, J.] - 15
Id. at 2195 (parallel citations omitted). By clarifying that, in order to secure a conviction,
the Government “must show that the defendant knew he possessed a firearm and also
that he knew he had the relevant status when he possessed it,” id. at 2194, the Court also
looked “[b]eyond the text,” observing that its reading of the two provisions was “consistent
with a basic principle that underlies the criminal law, namely, the importance of showing
what Blackstone called ‘a vicious will.’” Id. at 2196 (quoting 4 WILLIAM BLACKSTONE,
COMMENTARIES ON THE LAWS OF ENGLAND 21 (1769)).
The Court reiterated the fundamental principle “that an injury is criminal only if
inflicted knowingly,” characterizing it “as universal and persistent in mature systems of
law as belief in freedom of the human will and a consequent ability and duty of the normal
individual to choose between good and evil.” Id. (internal quotation marks and citation
omitted).
Scienter requirements advance the basic principle of criminal law by helping
to “separate those who understand the wrongful nature of their act from
those who do not.” (quoting X-Citement Video, 513 U.S. at 72-73, n.3).
The cases in which we have emphasized scienter’s importance in
separating wrongful from innocent acts are legion. We have interpreted
statutes to include a scienter requirement even where the statutory text is
silent on the question. See Staples, 511 U.S. at 605. And we have
interpreted statutes to include a scienter requirement even where “the most
grammatical reading of the statute” does not support one. X-Citement
Video, 513 U.S. at 70.
Id. at 2196-97 (parallel and string citations omitted). Significantly, the Court reasoned
that:
Applying the word ‘knowingly’ to the defendant’s status in [subsection]
922(g) helps advance the purpose of scienter, for it helps to separate
wrongful from innocent acts. Assuming compliance with ordinary licensing
requirements, the possession of a gun can be entirely innocent. It is
therefore the defendant’s status, and not his conduct alone, that makes the
difference. Without knowledge of that status, the defendant may well lack
[J-118-2019] [MO: Dougherty, J.] - 16
the intent needed to make his behavior wrongful. His behavior may instead
be an innocent mistake to which criminal sanctions normally do not attach.
Id. at 2197 (citation omitted; emphasis in original); see also id. at 2197 (quoting OLIVER
WENDELL HOLMES, JR., THE COMMON LAW 3 (1881) (“even a dog distinguishes between
being stumbled over and being kicked”)).
Rehaif is particularly instructive because the same provision that makes it unlawful
for felons and certain aliens to possess firearms under federal law likewise precludes “any
person . . . who is a fugitive from justice” from doing so as well. 18 U.S.C. § 922(g)(2).
Subsection 922(g)(2) was promulgated in 1993 with the passage of Brady Handgun
Violence Prevention Act (“Brady Act”), Act of Nov. 30, 1993, Pub. L. No. 103-159, 107
Stat. 1536, which amended the Gun Control Act to require “a statement that the
transferee” of a firearm, inter alia, “is not a fugitive from justice.” 18 U.S.C. §
922(s)(3)(B)(ii). The 1993 amendments also added a familiar definition for “fugitive from
justice,” which “means any person who has fled from any State to avoid prosecution for
a crime or to avoid giving testimony in any criminal proceeding.” Id. § 921(a)(15). Within
two years of the Brady Act’s passage, our General Assembly added subsection
6105(c)(1) to the Uniform Firearms Act to bring Pennsylvania law into conformity with its
federal analogue.8
Notwithstanding the Uniform Firearms Act’s provision that “the fact that [a] person
was armed with a firearm, . . . and had no license to carry the same, shall be evidence of
8 The legislative record is silent as to whether the General Assembly contemplated
the definition of “fugitive from justice” contained in the federal statute when it amended
the Uniform Firearms Act to criminalize the same from possessing a firearm in
Pennsylvania. Perhaps recognizing the sheer breadth of the federal standard, the
legislature further amended the Act in 1998 to clarify that “the prohibition of subsection
6105(a) . . . does not apply to an individual whose fugitive status is based upon a
nonmoving or moving summary offense under Title 75 (relating to vehicles).” 18 Pa.C.S.
§ 6105(c)(1); see Act of Dec. 3, 1998, Pub. L. 933, No. 121, § 4.
[J-118-2019] [MO: Dougherty, J.] - 17
that person’s intention to commit the offenses” enumerated in Section 6105 of the Act, 18
Pa.C.S. § 6104, this Court has long considered a defendant’s mens rea in assessing
whether he was, in fact, a fugitive from justice in Pennsylvania.9 See Woong Knee New,
47 A.2d at 466. As our intermediate appellate courts historically have recognized, “[t]here
can be no doubt that one charged with crime who escapes from an officer after being
notified that he is under arrest for the offense is a fugitive from justice.” Commonwealth
v. McCormick, 71 Pa. Super. 567, 569-70 (1919) (en banc) (emphasis added). Indeed,
one cannot “become a fugitive” unless he “voluntarily flies from an accusation of crime.”
In re H.T., 2 Pennyp. 84, 95-96 (Pa. 1882) (emphasis added).10 Conversely, “[a]n
accused, unaware that process has been issued against him, has no obligation to make
himself available.” Commonwealth v. Cohen, 392 A.2d 1327, 1330 (Pa. 1978); cf. Rehaif,
139 S. Ct. at 2198 (“The defendant’s status . . . refers to a legal matter, but this legal matter
is what the commentators refer to as a ‘collateral’ question of law. A defendant who does
not know that he is an alien ‘illegally or unlawfully in the United States’ does not have the
9 Compare 18 Pa.C.S. § 302 (“General requirements of culpability”), with id. § 305
(“Limitations on scope of culpability requirements”).
10 The voluntariness of a defendant’s flight is a common refrain in our fugitive-from-
justice jurisprudence. See Commonwealth v. Deemer, 705 A.2d 827, 828, 828-29 (Pa.
1997) (holding that a trial court may deny a defendant’s motion to file post-trial motions
nunc pro tunc where he “had willfully and purposely become a fugitive,” thus “voluntarily
absent[ing] himself from the jurisdiction” of the court); Commonwealth v. Kindler, 639 A.2d
1, 3 (Pa. 1994) (Opinion Announcing the Judgment of the Court) (recognizing “that one
who invokes the jurisdiction of a tribunal and then flees has voluntarily waived or
disentitled himself to call upon the resources of the [c]ourt for a determination of his
claims”); Commonwealth v. Jones, 610 A.2d 439, 441 (Pa. 1992) (“A defendant’s
voluntary escape acts as a per se forfeiture of his right of appeal, where the defendant is
a fugitive at any time after post-trial proceedings commence.”); Commonwealth v.
Passaro, 476 A.2d 346, 349 (Pa. 1984) (holding that, “by choosing to flee and live as a
fugitive, a defendant forfeits the right to have his claims considered” because his “resort
to escape constitutes a flagrant and deliberate bypass of the entire judicial process”)
(emphasis added). See generally RICHARD D. FREER & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE (W RIGHT & MILLER): CRIMINAL § 3533.4.2 (3d ed. Apr. 2020
update) (collecting federal cases discussing the fugitive disentitlement doctrine).
[J-118-2019] [MO: Dougherty, J.] - 18
guilty state of mind that the statute’s language and purposes require.”). I see no good
reason to depart from this well-settled jurisprudence, particularly where the conduct at
issue—possession of a firearm—is not inherently a criminal offense. See Commonwealth
v. Hicks, 208 A.3d 916, 936-37 (Pa. 2019).
In view of this abundant decisional law, it is clear that, in order to establish a
violation of subsection 6105(c)(1), the Commonwealth must adduce some evidence that
the defendant: (a) was subject to criminal process; (b) had been on notice of the
proceedings at the time of his disappearance; and (c) knew of his fugitive status “when
he possessed” the firearm. See Rehaif, 139 S. Ct. at 2194; Blackman, 17 A. at 195; see
also Cohen, 392 A.2d at 1330. Succinctly put, a criminal nexus, notice, and knowledge
of one’s prohibited status are essential elements in a prosecution under subsection
6105(c)(1).11 If the Commonwealth can show, for instance, that a defendant in a criminal
case, including a probationer or parolee, had received notice that his failure to appear
could result in his arrest and then in fact failed to appear, such evidence would tend to
establish a presumption of an intent to evade justice. Cf. Commonwealth ex rel. Flower
v. Superintendent of Phila. Cty. Prison, 69 A. 916, 917 (Pa. 1908) (noting that an
extradition “warrant is presumptive but not conclusive evidence that the person is a
fugitive from justice”). While actual knowledge of the open warrant would lend greater
11 As our procedural rules demonstrate, notice—actual or constructive—already is a
prerequisite to establishing the validity of a bench warrant. See Pa.R.Crim.P. 140(B);
142(A); 543(D)(3); see also id. at 430(B)(4) (“No warrant shall issue under paragraph
(B)(3) unless the defendant has been given notice in person or by first class mail that
failure to pay the amount due or to appear for a hearing may result in the issuance of a
bench warrant, and the defendant has not responded to this notice within 10 days.”);
Pa.R.C.P. 1910.13-1(a)(1) (bench warrant may issue for failure to appear at conference
or hearing in a domestic relations matter if the court finds “following a hearing on the
record that the party had actual notice that the party was ordered to attend the conference
and/or hearing”); see also id. at 234.5(a) (“If a witness fails to comply with a subpoena,
the court may issue a bench warrant and if the failure to comply is wilful may adjudge the
witness to be in contempt.”); but see 42 Pa.C.S. § 5904(d) (bench warrant may not issue
for failure to respond to a subpoena “if service has been by first class mail”).
[J-118-2019] [MO: Dougherty, J.] - 19
weight to the presumption, a defendant nonetheless may seek to rebut that presumption
with relevant evidence. See Deemer, 705 A.2d at 829 n.3 (raising, without answering,
“the question of whether a returned fugitive who is able to offer compelling reasons for
his fugitive status (i.e., he was a fugitive for reasons beyond his control) might be allowed
an extension of time for filing” an appeal); cf. Bassing, 208 U.S. at 391-93; Hyatt, 188
U.S. at 713.
Like the Rehaif Court, I “doubt that the obligation to prove a defendant’s knowledge
of his status will be as burdensome as” the Commonwealth or today’s Majority might think.
Rehaif, 139 S. Ct. at 2198. After all, “knowledge can be inferred from circumstantial
evidence.” Staples, 511 U.S. at 615 n.11; see Commonwealth v. Rizzuto, 777 A.2d 1069,
1078 (Pa. 2001) (“Evidence of flight shows a consciousness of guilt.”) (cleaned up); see
also Commonwealth v. DeJesus, 880 A.2d 608, 615 (Pa. 2005) (noting that “other
evidence presented by the Commonwealth showed that [DeJesus] evaded an arrest on
at least one occasion . . . mak[ing] clear that [he] knew of his fugitive status and intended
to evade police custody, which in turn suggested his consciousness of guilt”).
Applying the foregoing authority to the facts before us, there exists no question in
my mind that the Commonwealth failed to satisfy its evidentiary burden. This record
contains no evidence that Smith knew of the existence of the bench warrant at the time
of his April 2014 arrest, or that he had received notice that one would be issued for his
failure to appear for any particular proceeding (or for any other reason). The record is
equally silent as to why the warrant was issued in the first place, beyond two fleeting
references to a “probation violation” made by the Commonwealth after the close of
evidence. See N.T., 10/14/2016, at 22-23. Although the Commonwealth marked the
warrant as Exhibit C-3 at the close of Smith’s preliminary hearing, N.T., 6/12/2014, at 25,
it does not appear that the exhibit was moved into evidence during those proceedings or
[J-118-2019] [MO: Dougherty, J.] - 20
subsequently at Smith’s bench trial. See Commonwealth v. Williams, 715 A.2d 1101,
1103 (Pa. 1998) (“Appellate courts are limited to considering only those facts that have
been duly certified in the record on appeal.”) (cleaned up). Of course, if Smith had
received notice of a court date in connection with a probation violation—whether technical
or direct—and then deliberately failed to appear, that would be probative of his intent to
abscond from justice. If he had received notice of the bench warrant itself, the
presumption would be even stronger. But the Commonwealth abdicated its duty by
presenting nothing of the kind.
For these reasons, I am skeptical that the Commonwealth’s bare stipulation would
have sufficed to make out even a prima facie case that Smith was a fugitive, let alone
prove his status beyond a reasonable doubt. The only relevant entry on the docket
proffered by the Commonwealth in the parties’ stipulation shows that a bench warrant
had been issued on April 3, 2014, for a “probation violation.” See Docket No. CP-51-CR-
0003923-2011, at 7.12 There is no testimony indicating that Philadelphia County deputy
sheriffs had attempted to serve the warrant at Smith’s “usual place of residence within”
the city before his coincidental capture therein on April 21 of that year. See Blackman,
17 A. at 195. Nor does the record suggest that Smith was hiding or in active flight during
those eighteen days. Instead, he was found relaxing in broad daylight, his legs dangling
out of the open side door of a green 1998 Ford Windstar minivan on a public street in
12 From that docket and the sentencing hearing transcript in this case we can deduce
that Smith had been found with contraband while serving a prison sentence for an
unrelated matter in 2010. N.T., 2/2/2017, at 29. He entered a negotiated guilty plea to a
single count of possession of a controlled substance by an inmate, 18 Pa.C.S. §
5123(a.2), a second-degree felony, and was sentenced to six to twenty-three months’
imprisonment followed by three years’ probation. Docket No. CP-51-CR-0003923-2011,
at 4. Prior to his April 2014 arrest, Smith apparently had violated his probation (how,
exactly, remains unclear), prompting the court to issue a bench warrant. Immediately
following sentencing in this case, Smith was sentenced to a term of four years’ probation,
to run concurrently with his sentence in the instant case. Id.
[J-118-2019] [MO: Dougherty, J.] - 21
Philadelphia. See N.T., 10/12/2016, at 46-47. That degree of conspicuousness might
seem counterintuitive if one’s goal is to keep a low profile, as a fugitive might be wont to
do. Furthermore, the registered owner of the van—a female acquaintance of Smith’s who
lived in the house in front of which the van innocuously was parked—was a person known
to the Commonwealth at the time of Smith’s 2016 trial. But she was not called to testify.
Perhaps she could have shed some light on whether Smith had willfully absconded “for
the manifest purpose of avoiding arrest.” Blackman, 17 A. at 195. We may never know.
In sum, the absence of evidence demonstrating Smith’s awareness of the criminal
proceedings against him, and his concomitant intent to abscond from those proceedings,
should be dispositive of the sufficiency question here. But the Majority’s sweeping holding
is far more problematic than the erroneous resolution of the instant appeal. The mere
existence of a bench warrant, without more, cannot suffice to prove that a person is a
“fugitive from justice,” and thus categorically prohibited from possessing a firearm. See
id. The Majority’s contrary holding casts a net of disturbing breadth, threatening to classify
thousands of Pennsylvanians as fugitives per se—summarily stripped of their
constitutional rights and subject to criminal prosecution—regardless of whether their
conduct is consistent with that of a “fugitive” by any cognizable definition.
Further, the Majority’s analysis essentially eliminates an important scienter
consideration from the Uniform Firearms Act. Absent the requisite proof that a defendant
knew of his prohibited status at the time he possessed a firearm, see generally Rehaif,
139 S. Ct. 2191, Section 6105 presents a threat of criminal prosecution for conduct that
an individual has no reason to believe is illegal. Although this Court has not yet adopted
an interpretation of Section 6105 along the lines of Rehaif, that approach is compelling.
Yet the Majority moves in precisely the opposite direction. Rather than requiring that a
person have knowledge of his prohibited status, the Majority would simply deem an
[J-118-2019] [MO: Dougherty, J.] - 22
individual to be a “fugitive from justice” immediately upon the issuance of a bench warrant.
The Majority’s bright line test seemingly would apply irrespective of the individual’s intent
and without regard for whether he knew that such a warrant automatically rendered his
possession of a firearm unlawful. This effectively transforms subsection 6105(c)(1) and
other offenses based upon one’s prohibited status into strict liability crimes, which are
“disfavored and of questionable validity.” See Commonwealth v. Samuels, 778 A.2d 638,
641-44 (Pa. 2001) (Saylor, J., concurring).
Because the Majority’s overbroad and shortsighted holding risks criminalizing the
conduct of countless individuals without their knowledge, while they engage in what they
believe to be the lawful exercise of the right to keep and bear arms—a right protected by
the Second Amendment to the United States Constitution and Article I, Section 21 of the
Pennsylvania Constitution—I respectfully dissent.
[J-118-2019] [MO: Dougherty, J.] - 23