In Re: Appeal of E. McCrane From the Decision of the Board of License and Inspection Review ~ Appeal of: The City of Philadelphia

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Eric McCrane :
:
From the Decision of the Board : No. 1749 C.D. 2016
of License and Inspection Review : Argued: October 19, 2017
:
Appeal of: The City of Philadelphia :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE SIMPSON FILED: December 8, 2017
The City of Philadelphia (City) appeals the order of the Philadelphia
County Court of Common Pleas (trial court)1 reversing the City’s Board of License and
Inspection Review (Board) decision revoking Eric McCrane’s (McCrane) concealed
carry firearms license.2 The City argues the Board’s revocation comported with
Section 6109 of the Pennsylvania Uniform Firearms Act (Act), 18 Pa. C.S. §6109.
The City claims the trial court did not apply the proper legal or evidentiary standards
when reviewing the Board decision. It contends the trial court did not defer to the
Board as fact-finder, and raised a constitutional challenge to the Act not raised by the
parties. The City also challenges the trial court’s decision because it held character
evidence must comport with Pa.R.E. 405. In addition, it asserts substantial evidence
supported the Board’s decision. Thus, the City seeks a remand to the trial court with
instructions to reinstate the Board decision. Upon review, we affirm.
1
The Honorable Linda J. Carpenter presided.
2
Peter Saldan was involved in the same incident that resulted in license revocation. His
license revocation appeal is docketed at 2131 C.D. 2017.
I. Background
This license revocation appeal arose from the following incident on
November 25, 2014. At 1:00 p.m., police were investigating a report of stolen
vehicles when they observed McCrane driving a silver F-150 truck on a public street,
with a siren and strobe lights flashing (Incident). When the police did not recognize
the vehicle as part of its auto squad unit, Officer Thomas Maminski (Officer) stopped
the truck to investigate. Officer called for assistance when he “found some things
that he wasn’t comfortable with,” including a handgun in the front seat, and
handguns on the person of McCrane and his passenger, Peter Saldan (Saldan),
(collectively, Licensees). Board Hr’g, Notes of Testimony (N.T.), 8/18/15, at 8.
Specifically, after obtaining a search warrant for the vehicle, Officer
found the following: three handguns;3 a couple boxes of ammunition; 65 Police
Department “No Parking” signs;4 an official placard for the Police Department, the
reverse of which was a Southeastern Pennsylvania Transportation Authority (SEPTA)
placard (N.T. at 33); a hand-held radio; a nightstick; flashlights; 4 sets of plastic zip
ties linked as flex cuffs;5 and, several pages of what appeared to be police flash sheets.6
Licensees did not explain the presence of the police paraphernalia. Although they
worked for SEPTA, Licensees did not claim the items were work-related.
3
The handguns were a 9-mm Glock, a Glock 45-caliber pistol, and a 9-mm Sig Sauer.
4
These signs, when placed, indicate road construction. Sergeant testified “no one else”
had these signs. Notes of Testimony, (N.T.), 8/18/15, at 10.
5
Flex cuffs are often used in lieu of handcuffs to secure individuals. N.T. at 9.
6
The “flash sheets” consisted of a yellow notepad like a legal pad. N.T. at 25. They
contained descriptions of “hot spots,” vehicle descriptions, including license plates, and individual
descriptions, (e.g., white male, 6 foot 2). N.T. at 34. The flash sheets appeared to be notes of
communications that would come over a police radio.
2
Following the search, the police arrested Licensees for impersonating a
police officer, 18 Pa. C.S. §4912. Based on the Incident, the Police Commissioner,
the issuing authority in Philadelphia, revoked Licensees’ licenses to carry a firearm.
The next day, the City issued a license revocation notice to McCrane
(Revocation). Reproduced Record (R.R.) at 87a. As to the reason, the box checked
was “Arrest,” followed by the date of arrest, and “impersonating an officer.” Id.
After a full preliminary hearing before The Honorable Marvin Louis Williams,
Municipal Court of Philadelphia, the charges were dismissed for lack of a prima facie
case (lack of probable cause).
Licensees filed separate appeals to the Board, which held a consolidated
hearing. The City presented the testimony of police officers who witnessed the
Incident, including Officer, Sergeant James Morrace (Sergeant), and Detective John
Logan (Detective) (collectively, Police). Licensees, unrepresented by counsel at the
hearing, testified on their own behalf.
Sergeant testified he and Detective were investigating reports of stolen
vehicles when they observed a silver F-150 pickup truck with strobe lights in the
front grille and an audible police siren. N.T. at 6, 27-28; Bd. Op., Finding of Fact
(F.F.) No. 5. He noted, “[t]here were no other vehicles coming in either direction”
on the street. N.T. at 6. Because they did not recognize the vehicle as part of the
police auto squad unit, Sergeant instructed Officer “to go stop that silver F-150 for
further investigation.” N.T. at 6-8. At the time of the Incident, Sergeant had no
knowledge of Licensees’ professions or hobbies. N.T. at 13.
3
Officer testified that based on the vehicle’s sirens and lights, he
“thought it was an unmarked police car.” N.T. at 14. He stopped the vehicle for
using the siren. He did not recall the color of the flashing lights. He asked for
assistance when he “found some things that he wasn’t comfortable with,” namely
the three firearms in the front seat. N.T. at 8. McCrane owned one weapon, Saldan
owned another, and the third weapon was registered to Robert Richy, who was not
near the vehicle.
Detective’s testimony corroborated that of Officer and Sergeant. He
observed Licensees react to spotting the Police by turning off the siren and lights.
He believed, based on the police paraphernalia combined with the sirens and lights
on the vehicle, that Licensees were attempting to impersonate police officers.
Initially, they planned to issue a traffic citation for unauthorized use of lights and
sirens on a private vehicle, owned by McCrane and his wife. Detective explained
that in response to his inquiry as to where Licensees worked, they answered SEPTA.
When asked, “SEPTA Police?,” N.T. at 37, McCrane replied no. As Licensees did
not reveal their positions with SEPTA, he was unaware they were bus drivers. He
acknowledged SEPTA retrieved some items from the truck. N.T. at 39.
Licensees testified they were SEPTA bus drivers, and volunteers on
SEPTA’s safety committee. McCrane admitted their actions the night of the Incident
were “no part of [SEPTA’s] safety committee or SEPTA.” N.T. at 66. However, he
claimed he obtained the “No Parking” signs from SEPTA supervisors, and used the
flex ties to hang these signs to clear areas for SEPTA buses. Saldan testified that
“[w]e go around, hang signs, no parking, if they are going to paint bus stops, bus
4
zones. We go out and we trim trees if they are hanging low enough to break
windshields when buses are going through. And any complaints that the drivers
bring to us we go out and handle.” N.T. at 53.
McCrane testified “[t]he siren was being played with on a back street”
that was isolated. N.T. at 57. Licensees explained they patrolled their neighborhood,
offering tips on potential criminal activity to area police. McCrane testified the flash
sheets included “two numbers of police officers’ cellphones [Officer Chang and
Officer Ziggy, N.T. at 60] in the 24th District that we were giving tips to if we saw
something going on in our neighborhood.” N.T. at 59.
In addition to testimony, the Board received documentary evidence
consisting of photos of the police paraphernalia and the revocations. Following the
hearing, the Board voted unanimously to affirm both revocations. In support, it
issued findings of fact and conclusions of law. The Board found the police
paraphernalia “unrelated to their work for SEPTA,” F.F. No. 15, and SEPTA “did
not issue any of those things.” F.F. No. 13. The Board credited testimony from the
Police. Insofar as Licensees’ testimony was inconsistent with that testimony or the
City’s other evidence, the Board found it not credible. F.F. No. 16.
Ultimately, the Board concluded the credited evidence established good
cause to revoke Licensees’ firearms licenses. It concluded Licensees “are individuals
whose character and reputation are such that they would be likely to act in a manner
dangerous to public safety.” C.L. No. 2. It also concluded there was “substantial
evidence” to affirm the City’s revocation of their licenses. C.L. No. 4.
5
Licensees appealed to the trial court.
The trial court reversed, determining substantial evidence did not
support the Board’s decision. Specifically, the trial court concluded, “the Board’s
conclusion that [Licensees’] character and reputation were such they would be likely
to act in a manner dangerous to public safety was not based on substantial record
evidence ….” Tr. Ct. Order, 7/22/16 (emphasis added). It “strictly scrutinized” the
evidence and found it speculative. Id., Reason No. 9. The trial court emphasized
that the Board’s decision was not based on evidence or reasonable inferences from
the circumstantial evidence. Reason Nos. 20-25.
The City appealed the order to this Court.7 It also appealed the same
order as to Saldan, docketed at 2131 C.D. 2016. The matters remain unconsolidated.
After argument seriately, the City’s appeal as to McCrane is ready for disposition.8
II. Discussion
The City argues the trial court, on its own motion, raised a constitutional
challenge to the Act, and applied a strict scrutiny standard. It also contends the trial
court disregarded the evidentiary standards applicable to agency proceedings when it
held the Board was required to comply with the Pennsylvania Rules of Evidence. In
addition, the City maintains that substantial evidence supports the Board’s decision.
7
On appeal from a trial court’s review of a Board adjudication, where it takes no evidence, we
must affirm the Board unless its decision violated constitutional rights, was not in accordance with
law, or any necessary findings were not supported by substantial evidence. Morley v. City of Phila.
Licenses & Inspections Unit, 844 A.2d 637 (Pa. Cmwlth.), appeal denied, 863 A.2d 1150 (Pa. 2004).
8
Post-argument, the City filed an application to submit argument as to additional authority.
Because this Court was aware of the authority at issue, we denied the application as moot.
6
Licensees respond that the trial court properly concluded that the
Board’s decision was not supported by substantial evidence of record. Licensees
argue that a single incident, that does not constitute a crime, and based on
assumptions regarding items found in a vehicle, is not sufficient evidence of
character or reputation to show they are likely to act in a dangerous manner.
Section 6109 of the Act governs licenses to carry a firearm concealed on
one’s person or in a vehicle. 18 Pa. C.S. §6109. It provides, in pertinent part:
(d) Sheriff to conduct investigation.-The sheriff to whom the
application is made shall investigate the applicant’s record of
criminal convictions, shall investigate whether or not the
applicant is under indictment for or has ever been convicted of
a crime punishable by imprisonment exceeding one year, shall
investigate whether the applicant’s character and reputation are
such that the applicant will not be likely to act in a manner
dangerous to public safety and shall investigate whether the
applicant would be precluded from receiving a license under
subsection (e)(1).
(e) Issuance of license.-
(1) A license to carry a firearm shall be for the purpose of
carrying a firearm concealed on or about one’s person or in a
vehicle and shall be issued if, after an investigation not to
exceed 45 days, it appears that the applicant is an individual
concerning whom no good cause exists to deny the license. A
license shall not be issued to any of the following:
(i) An individual whose character and reputation is such that the
individual would be likely to act in a manner dangerous to
public safety....
18 Pa. C.S. §6109 (emphasis added). As to revocation, Section 6109(i) provides: “A
license to carry firearms may be revoked by the issuing authority for good cause.
Notice of revocation shall be in writing and shall state the reason for revocation.” Id.
7
This Court determined the legislature intended “to confer discretion [on
the Commissioner] empowering [him] to exercise judgment in applying the Act’s
standards to determine if applicants should be licensed, which discretion also applies
to the revocation of a license.” Morley v. City of Phila. Licenses & Inspections Unit,
844 A.2d 637, 640-41 (Pa. Cmwlth.), appeal denied, 863 A.2d 1150 (Pa. 2004).
The issue before this Court is whether the record contained substantial
evidence to support the Board’s determination that Licensees “would be likely to act
in a manner dangerous to public safety.”9 18 Pa. C.S. §6109(e)(1)(i)(emphasis added).
The record consists of circumstantial evidence that at one point Licensees satisfied
the character and reputation requirement, and thus were granted licenses. In
addition, there is evidence regarding the Incident. There is no other evidence of
Licensees’ character, nor is there any evidence of Licensees’ reputation to act in a
manner dangerous to public safety.
A. Applicable Standards
The City argues that the trial court applied higher legal and evidentiary
standards when it reversed the Board’s decision. It asserts the trial court questioned
the constitutionality of the Act, which Licensees did not raise, and applied strict
scrutiny when it should have deferred to the agency. Also, the City challenges the
trial court’s application of the Pennsylvania Rules of Evidence to Board proceedings.
9
The Board’s determination in this regard is a mixed question of fact and law. It concluded
as a matter of law that Licensees’ “character and reputation are such that they would be likely to
act in a manner dangerous to public safety” as the statute requires. Bd. Op., 8/19/15, C.L. No. 1.
Its conclusions were “[b]ased on the credible evidence of record.” C.L. Nos. 1-3. However,
assessments of character and reputation are factual determinations that require evidentiary support.
Caba v. Weaknecht, 64 A.3d 39 (Pa. Cmwlth. 2013). We review such determinations to discern
whether they are adequately supported by the record.
8
It contends direct evidence of character or reputation is not required to establish good
cause for revocation. Further, it maintains circumstantial evidence, and reasonable
inferences therefrom, constitutes sufficient evidence to support a conclusion.
1. Legal Standards
First, we address the City’s challenges to the trial court’s legal review.
The City repeatedly contends the trial court rewrote the Act and the Local Agency
Law, 2 Pa. C.S. §554, when it reversed the Board’s decision.
a. Strict Scrutiny
The City claims the trial court raised a constitutional challenge to the
Act, sua sponte. In both briefs, it asserts the trial court applied a “Second Amendment
Strict Scrutiny Standard.” Appellant’s Reply Br. at 1; see Appellant’s Br. at 11-16.
A “‘strict scrutiny’ test … require[s] reviewing with care each gun law
to determine whether it is ‘narrowly tailored to achieve a compelling governmental
interest.’” Dist. of Columbia v. Heller, 554 U.S. 570, 688 (2008) (Breyer, J.,
dissenting op.) (quoting Abrams v. Johnson, 521 U.S. 74, 82 (1997)). Significantly,
the trial court did not use the terms “narrowly tailored” or “compelling governmental
interest” in its order. Nor did the trial court assess the constitutionality of the Act.
Rather, the trial court recognized the revocations implicated the constitutional right to
bear arms, noting that right may be restricted. Tr. Ct. Order, Reason Nos. 4-5.
The trial court used the phrase “strictly scrutinize” in reference to how
it evaluated the record evidence. Id., Reason No. 9. Specifically, the trial court
9
explained, “this Court has strictly scrutinized whether ‘substantial evidence’
supported the Board’s decision by requiring that the basis for revocation is actually
evidence and not mere conjecture, nor solely based on evidence that would not be
considered admissible evidence in a civil proceeding.” Id. (italics in original).
From there, the City extrapolates a sua sponte constitutional challenge
to the Act. In context, it is evident the reference to strict scrutiny was not as to the
constitutionality of the Act, but as to the quality of the evidence before the trial court.
Accordingly, we wholly reject the City’s premise that the trial court applied strict
scrutiny to the revocation proceedings.
b. Administrative Deference
Next, the City argues the trial court did not afford proper deference to
the agency proceedings. It claims the trial court disregarded the Board’s fact-finding.
It also asserts the trial court should have deferred to the Commissioner’s discretion.
The Local Agency Law, 2 Pa. C.S. §754, applies to administrative
proceedings before the Board. See Morley, 844 A.2d at 639 n.4. A court reviewing
a local agency decision, “may not weigh the evidence and substitute [its] judgment
for the fact-finder as long as the evidence was sufficient to prove [the matter in
dispute].” A.B. ex rel. Bennett v. Slippery Rock Area Sch. Dist., 906 A.2d 674, 678
(Pa. Cmwlth. 2006) (citations omitted).
The City’s criticism of the trial court for fact-finding is well-taken to
some extent. The trial court arguably engaged in fact-finding when it surmised that
10
possession of the police paraphernalia could have been for “some innocent purposes,
as submitted by [Licensees].” Tr. Ct. Order, Reason No. 18. The trial court also
noted the “No Parking” signs were issued to both SEPTA and the Police Department.
Id., Reason No. 16. However, the Board found SEPTA did not issue the signs. See
Bd. Op., F.F. No. 13.
Additionally, the trial court explained that the Board did not properly
consider Licensees’ explanations. It noted, “Saldan never ‘possessed’ any of the
items, but was merely a passenger, and that McCrane legitimately possessed some,
but not all of the items, was not using any flashing lights and that he was using, albeit
stupidly, the siren on an unpopulated street for ‘fun.’” Tr. Ct. Order, Reason No. 21.
In so doing, the trial court credited Licensees’ testimony over the contrary testimony
of the Police that the vehicle had flashing lights. Such credibility determinations are
the province of the Board as fact-finder. Slippery Rock Area Sch. Dist.
To the limited extent the trial court mixed fact-finding with its reasons
for reversal, the trial court erred. However, such minimal fact-finding does not
constitute reversible error when it did not affect the result. Ultimately, the trial court
reversed because the Board’s determinations of Licensees’ character or reputation
were not supported by the record evidence.
Moreover, we view this part of the trial court’s discussion as part of its
duty to evaluate the reasonableness of the inferences drawn by the fact-finder.
Where, as here, the burdened party relies on circumstantial evidence to make its
proof, the “circumstantial evidence must be adequate to establish the conclusion
11
sought and must so preponderate in favor of that conclusion as to outweigh any other
evidence and reasonable inferences therefrom which are inconsistent therewith.”
Flagiello v. Crilly, 187 A.2d 289, 290 (Pa. 1963) (emphasis added). Viewed in this
light, it was permissible for the trial court to evaluate reasonable inferences
inconsistent with those drawn by the fact-finder to test which inferences
preponderated.
Nevertheless, as to the City’s argument that the trial court was required
to defer to the Commissioner’s revocation judgment under the Act, we clearly
disagree.
Administrative deference, which recognizes an agency’s expertise,
does not mean agency decision-making is unbridled. A Commissioner’s revocation
decision “must be uph[e]ld” only “[w]hen evidence supports a conclusion that a
firearm licensee does not possess the requisite character and reputation to carry a
firearm ….” Tsokas v. Bd. of License & Inspection Review, 777 A.2d 1197, 1202
(Pa. Cmwlth. 2001) (emphasis added). Thus, while a Commissioner has the
discretion to revoke a firearms license, his decision will not be upheld by the Board
unless adequately supported by record evidence. Id.
2. Evidentiary Standards
Local agencies are “not bound by technical rules of evidence” at agency
hearings. 2 Pa. C.S. §554; Harris v. Sheriff of Delaware Cnty., 675 A.2d 400, 401-02
(Pa. Cmwlth. 1996) (upholding revocation based on reports showing licensee had
reputation as a cocaine dealer for several years). Generally, agencies are not held to
12
admissibility standards under the Pennsylvania Rules of Evidence. Cf. Walker v.
Unemployment Comp. Bd. of Review, 527 A.2d 366 (1976) (hearsay evidence,
properly objected to, cannot support an agency determination).
a. Substantial Evidence
“An agency’s findings need not be supported by uncontradicted
evidence, so long as they are supported by substantial evidence.” Balshy v. Pa. State
Police, 988 A.2d 813, 835 (Pa. Cmwlth. 2010). When substantial evidence supports
agency findings, they bind an appellate court. “Additionally, we view the evidence
and all reasonable inferences arising from the evidence in the light most favorable to
the prevailing party,” meaning the party that prevailed before the fact-finder. Id.
(citing Bosnjak v. State Civil Serv. Comm’n, 781 A.2d 1280 (Pa. Cmwlth. 2001)).
“Substantial evidence is relevant evidence that a reasonable mind might
consider adequate to support a conclusion.” In re Collegium Found., 991 A.2d 990,
992 n.6 (Pa. Cmwlth. 2010). Stated differently, “[s]ubstantial evidence is more than
a mere scintilla and must do more than create a suspicion of the existence of the fact
to be established.” U.S. Nat’l Bank Ass’n v. United Hands Cmty. Land Trust, 129
A.3d 627, 632 (Pa. Cmwlth. 2015) (emphasis added). Indeed, “evidence proving
‘suspicion and conjecture’ does not constitute substantial evidence as a matter of
law.” Id.
Circumstantial evidence is “evidence of one fact, or of a set of facts
from which the existence of the fact to be determined may reasonably be inferred.”
Monaci v. State Horse Racing Comm’n, 717 A.2d 612, 618 (Pa. Cmwlth. 1998)
13
(citation omitted). This is in contrast to direct evidence, such as firsthand testimony,
of the ultimate fact to be determined. “When properly prove[n], circumstantial
evidence is entitled to as much weight as direct evidence.” Id. (citing
Commonwealth v. Chambers, 599 A.2d 630 (Pa. 1991)).
As observed above, to reasonably infer a fact from circumstantial
evidence, “the evidence must be adequate to establish the conclusion sought and
must so preponderate in favor of that conclusion so as to outweigh … any other
evidence and reasonable inferences therefrom which are inconsistent therewith.”
Flagiello, 187 A.2d at 290 (emphasis added).
The trial court concluded that circumstantial evidence “to infer that
particular conduct must have occurred, to then infer character[,] to then infer future
dangerousness can never properly be evidence pursuant to Rule 405(b)(1).” Tr. Ct.
Order, Reason No. 23 (italics in original). It concluded three inferences rendered
the circumstantial evidence too speculative to constitute adequate evidence to
support a conclusion. We agree.
Relevant here, the legal conclusion of “good cause” for revocation of a
firearms license is predicated upon findings that the licensee has a character or
reputation showing the licensee would be likely to act in a dangerous manner. The
first step is showing the licensee’s character and reputation.
This Court determined that the Act required proof of character and
reputation to support revocation. Caba v. Weaknecht, 64 A.3d 39 (Pa. Cmwlth. 2013)
14
(revoking license based on character/reputation evidence). In Caba, we recognized
that, as used in the statute, character and reputation are related concepts.
Here, the City presented evidence related to the Incident. In that regard,
the City offered no record evidence as to either Licensees’ character or reputation
other than the single event of driving down a deserted back street with a siren and
flashing lights operating, and the presence of alleged police paraphernalia in
McCrane’s vehicle. The operation of an unauthorized siren is a traffic violation, not
a crime.
Based on the single event, the Board drew an inference that Licensees
engaged in the crime of attempting to impersonate police officers. However, there
was no evidence that Licensees were dressed like police officers, displayed badges,
offered identification as police officers, or even interacted with another person at all.
See 18 Pa. C.S. §4912 (element of crime of impersonating public servant is acting
with intent to induce another to submit to pretended official authority or otherwise
to act in reliance upon that pretense to his prejudice). Thus, it is not surprising that
charges were dismissed against Licensees at the preliminary hearing stage. Worse,
from the inference of a crime, the Board further inferred dangerous character.
However, there was no evidence that either Licensee touched or displayed a weapon,
uttered any verbal threats, made threatening motions, or otherwise acted in a
dangerous manner. Also, there was no evidence of Licensees’ reputation.
The trial court deemed it significant that there was no actual evidence
that Licensees impersonated a police officer; however, this does not demonstrate that
15
the trial court held the Board to a higher evidentiary standard. The trial court noted
the lack of direct evidence when it assessed whether the inferences drawn by the
fact-finder preponderated over inconsistent reasonable inferences. Flagiello. The
trial court thus properly assessed whether the evidence was adequate to support the
Board’s conclusion that Licensees’ firearms licenses were revoked for good cause.
b. Pa. R.E. 405
Rule 405 allows the admission of specific acts to show character in civil
proceedings where character is an essential element of a claim or defense. Pa.R.E.
405. Firearms license revocation proceedings are civil proceedings where character
is directly in issue. Caba.
Here, the City challenges the trial court’s application of Rule 405 to
Board proceedings. The trial court reasoned,
where the revocation of a citizen’s license to carry a firearm is
based solely on allegations of ‘character and reputation,’ the
City must present evidence that comports with Rule 405 of the
Rules of Evidence. Such evidence must be based on specific
acts that can reliably provide evidence of unfit character. To
hold otherwise, would deprive individuals who lawfully
obtained permits, their right to possess a firearm within the
[City] based on mere conjecture. Conjecture is not ‘evidence’
much less substantial evidence.
Tr. Ct. Order, Reason No. 25 (emphasis added).
The Caba Court discussed the application of Rule 405(b) to firearms
license revocation proceedings. In Caba, this Court held license revocation
16
proceedings are a civil proceeding where instances of specific conduct may be used
to show character or fitness for gun ownership. As a result, this Court rejected a
licensee’s challenge to the introduction of evidence regarding a specific incident
where he retrieved his weapon during a parking lot altercation. The witness testified
Caba grabbed his gun, and put a round in the chamber, and followed the individual
“with his gun raised above his waist and pointed in front of him.” Id. at 43. We
reasoned the trial court was permitted to consider the evidence of one act under
Pa.R.E. 405.
However, Caba is distinguishable. In Caba, the trial court served as the
fact-finder on appeal from a sheriff’s revocation decision. Thus, the trial court in
Caba properly determined the admissibility and weight of evidence. By contrast,
here, the trial court was sitting in an appellate capacity, reviewing whether the
Board’s decision was supported by substantial evidence.
While the trial court here overstated the need for an agency to comply
with formal rules of evidence, we discern no reversible error in such a reference.
The trial court was permitted to evaluate the reliability of the evidence on which the
fact-finder relied as part of its evaluation of whether the conclusions inferred were
supported by the record. Flagiello. Stated differently, as part of its evaluation of
inconsistent reasonable inferences, the trial court could view inferences based on
evidence that conformed with the Pennsylvania Rules of Evidence as more
trustworthy.
17
B. Sufficiency of Evidence
Lastly, we consider whether the trial court erred in holding the Board’s
decision as to Licensees’ revocations was based on findings, or mixed findings and
conclusions, unsupported by substantial evidence.
Revocation is appropriate if it is evident that a permit was issued to an
individual “whose character and reputation is such that the individual would be
likely to act in a manner dangerous to public safety.” 18 Pa. C.S. §6109(e) (emphasis
added). The question before this Court is whether the record contains evidence
adequate to show Licensees possess a character and reputation that shows the
likelihood of Licensees acting in a dangerous manner.
A review of other revocation decisions illustrates the type of evidence
considered sufficient to support a firearms license revocation.
In Gardner v. Jenkins, 541 A.2d 406 (Pa. Cmwlth. 1988), the licensee
pulled a gun when plumbers were performing work in his home. He waved it around
at the plumbers, and announced that it was how he got work done. That act involved
the weapon, a threat of using it, and a potential danger to society because the licensee
used it in an unsafe manner while in an agitated state.
In Morley, the licensee was in a bar when he lost his temper and became
involved in an altercation. He drew his gun after assaulting another patron,
chambered a round, and ordered everyone to leave the bar. The incident involved
the weapon, and acts of brandishing the weapon, and threatening others while
18
holding the weapon. The threats, and the chambering of a round, supported an
inference that the licensee was likely to act in a dangerous manner.
In Smith v. Nace, 824 A.2d 416 (Pa. Cmwlth. 2003), the licensee was
involved in a road rage incident. At the hearing on the revocation appeal, the other
motorist testified that he and the licensee were traveling at about two miles per hour
when the licensee refused to let him merge. He was within 15 or 20 feet when the
licensee lifted a gun and waved it in the air, and then slammed it on the dashboard and
sped in front of the motorist. The motorist called 911. The trooper who later stopped
the licensee testified as to the licensee’s argumentative and sarcastic demeanor. He
was so concerned that for the first time in his career, he called the sheriff at home to
report the incident. The trial court affirmed the revocation, finding that the licensee
used poor judgment, and used “the firearm in a manner to impress or perhaps threaten
the [motorist].” Id. at 418. The licensee brandished a gun while driving. This incident
involved expressions of anger and implied threat of using the weapon.
In Tsokas, the licensee’s license was revoked based on numerous
incidents over a number of years. The incidents included: brandishing his gun;
threatening to shoot two men; showing his gun to children playing; and, pulling his
gun on a person he thought was breaking in. During the break-in incident, the
licensee threatened: “I’ll blow your brains out.” 777 A.2d at 1199. These incidents
involved the weapon, and the use of poor judgment while handling the weapon.
Crucially, the licensee threatened to kill another person. These acts show a
likelihood that the licensee would act in a dangerous manner.
19
The circumstances here are readily distinguishable from these cases.
The standard under the Act requires evidence as to the likelihood of
acting in a dangerous manner. Although direct evidence is not required, there must
be evidence sufficient to support an inference that Licensees were likely to act in a
dangerous manner. Moreover, such an inference must be reasonable. Based on prior
cases addressing the character and fitness to carry a firearm, it is evident courts
consider how licensees used the weapon and whether there was threatening conduct.
Here, the Incident did not involve the use or display of firearms.
Licensees did not brandish their weapons, as in Morley and Smith, or threaten to use
their weapons as in Caba, Gardner or Tsokas. They did not engage in a criminal
activity, like the reputed drug dealer in Harris.
In sum, the record here does not support an inference of dangerous
character. We agree with the trial court’s conclusion that multiple layers of
inferences renders the Board’s inferences no more than speculation. Therefore, we
uphold the trial court’s order reversing the Board for insufficient evidence of good
cause.
III. Conclusion
For the foregoing reasons, we uphold the trial court’s order reversing
the Board.
ROBERT SIMPSON, Judge
20
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Eric McCrane :
:
From the Decision of the Board : No. 1749 C.D. 2016
of License and Inspection Review :
:
Appeal of: The City of Philadelphia :
ORDER
AND NOW, this 8th day of December, 2017, the order of the
Philadelphia County Court of Common Pleas is AFFIRMED, and Eric McCrane’s
firearms license is REINSTATED.
ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Appeal of Eric McCrane :
:
From the Decision of the Board : No. 1749 C.D. 2016
of License and Inspection Review : ARGUED: October 19, 2017
:
Appeal of: The City of Philadelphia :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
DISSENTING OPINION BY
SENIOR JUDGE LEADBETTER FILED: December 8, 2017
As the majority correctly notes:
This Court determined the legislature intended “to confer
discretion [on the Commissioner] empowering [him] to
exercise judgment in applying the Act’s standards to
determine if applicants should be licensed, which
discretion also applies to the revocation of a license.”
Morley v. Phila. License & Inspections Unit, 844 A.2d
637, 640-41 (Pa. Cmwlth.), appeal denied, 863 A.2d 1150
(Pa. 2004).
Slip op at p. 8.
In the case before the court, I believe that the evidence amply supported
the Commissioner’s exercise of discretion. Specifically, that evidence can support a
determination that Appellant and his companion (the appellant in No. 2131 C.D.
2016) (Appellants) were prevented from impersonating police officers and otherwise
acting in a dangerous manner only because of their timely arrest after “playing” with
a siren and flashing lights (if, indeed, that alone is not inimical to public safety).
While the evidence could also support a different conclusion, drawing factual
inferences and making that ultimate judgment was vested in the Commissioner’s
sound discretion. Rather than deferring to that discretion, however, Common Pleas
substituted its own judgment that Appellants were not dangerous because they had
not yet brandished or shot the guns they carried, attempted to handcuff anyone with
their flexcuffs or otherwise completed whatever actions they had planned with all
the police paraphernalia.
While I disagree with the trial court’s apparent view that a permit to
carry a gun should not be revoked unless the person has been convicted of a crime
or has actually completed a dangerous act, that judgment is not for me, nor for the
court of common pleas, but for the Commissioner.
Accordingly, I believe the City’s arguments are well taken and I must
respectfully dissent.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
Senior Judge
BBL - 2