Commonwealth v. Williams

¶1Opinion by

¶2This appeal stems from appellant’s conviction of Sections 61061 and 61082 of the Pennsylvania Uniform Firearms Act. Such convictions were based on the following evidence.

¶3On the afternoon of March 25, 1974, Tyree Johnson, a reporter for the Philadelphia Daily News, was walking on the 2200 block of Harlan Street in Philadelphia when he heard several gunshots. As he rounded the corner of Harlan onto 22nd Street he observed appellant firing a longdoarrelled, jet black hand gun at a fast-moving tan Cadillac. After the Cadillac turned a corner appellant then held the gun to his side and began to walk. Johnson proceeded to his automobile, which was parked on 22nd Street and drove to the corner where he stopped for a red light. At the corner Johnson saw appellant pull a gun, which was apparently the same gun he had seen appellant firing at the tan Cadillac. Appellant then walked over to the corner, about fifteen feet from Johnson, and began to spin the gun and toss it from one hand to the other. As the light turned green appellant stuck the gun in his belt, turned around and walked away. Johnson notified a policeman as to what had occurred and then pointed out appellant, who at this time was sitting in a black Cadillac. Appellant was arrested and searched, but no gun was found. The black Cadillac was not searched. Later a search warrant was obtained for appellant’s store at 22nd and Jefferson Streets. The search of such store resulted in the discovery of another hand gun, which was stipulated *94prior to post-verdict motions to be a different gun than Johnson saw during the incident.

¶4Appellant’s first contention is that the gun found at appellant’s store should not have been admitted in that its admission confused the finder of fact, which in the instant case was the trial judge sitting without a jury. This contention is totally without merit. The prosecution, being aware that the gun seized was not the gun used in the incident, did not during its case introduce or even mention the seized gun. It was the appellant who elicited testimony as to the seized gun by calling the officer who searched appellant’s store to the stand and questioning him as to evidence found. On cross-examination it was entirely proper for the prosecutor to delve into this matter raised by appellant and to introduce the seized gun into evidence. Furthermore, any possible confusion concerning the identity of the guns was corrected because, after trial and prior to post-verdict motions, the parties stipulated that the seized gun was not the gun involved in the incident.

¶5The second issue raised by appellant is whether there was sufficient evidence to sustain appellant’s conviction of Sections 6106 and 6108 of the Firearms Act.3 The relevant portion of Section 6108 states: “No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon public property in a city of the first class. . . .” Since Philadelphia is a city of the first class, and since there was ample evidence from which to conclude that appellant carried a firearm upon the public street, appellant’s conviction as to Section 6108 wab clearly based on sufficient evidence. The evidence, however, as to Section 6106 was not so clear. The relevant portion of that section states: “No person shall carry a firearm in any vehicle or concealed on or about his person. . . .” This section differs from Section 6108 in that *95the essence of the offense set forth in Section 6106 is the concealed carrying of a weapon. See Commonwealth v. Walker, 219 Pa. Superior Ct. 167, 169 (1971). In the instant case there is no evidence whatsoever as to any attempt by appellant to conceal any weapon; and, therefore, we must conclude that the evidence was insufficient to sustain appellant’s conviction as to Section 6106.

¶6Appellant’s last contention is that his conviction of Sections 6106 and 6108 cannot be sustained because the Commonwealth did not meet its burden of proving that appellant did not have a license for the gun pursuant to Section 6109.4 At the time of appellant’s trial, December 13, 1974, the law in this Commonwealth clearly stated that it was the burden of the defendant to prove that he had a license if, in fact, he did have one. See Commonwealth v. Townsend, 211 Pa. Superior Ct. 135 (1967) ; Commonwealth v. Silia, 194 Pa. Superior Ct. 291 (1960) ; and Commonwealth v. Anderson, 191 Pa. Superior Ct. 213 (1959). However on May 13, 1975, the Pennsylvania Supreme Court in the case of Commonwealth v. McNeil, 461 Pa. 709 (1975) shifted the burden. It concluded, applying the principles set forth in In re Winship, 397 U.S. 358 (1970), that the Commonwealth has the burden of affirmatively proving the absence of a license. If, therefore, appellant’s argument is to be successful, Commonwealth v. McNeil must be given retroactive effect. However, the traditional standards regarding retroactivity,5 as set forth in Stovall v. Denno, 388 U.S. 293 (1967), mandate solely prospective application of McNeil. First, McNeilis a change which simply shifted a burden from *96the defendant to the Commonwealth. It is very unlikely that any defendant could have been prejudiced by the pr e-McNeil procedure. The two statutes in question specifically state that if one has a license he cannot be prosecuted for violation of the sections. Therefore, if a defendant did, in fact, have a license to carry a weapon he would have certainly furnished that evidence at his trial. Secondly, as set forth above, pre-McNeil Pennsylvania case law held that the burden was on the defendant to prove that he had a license. Because of this established standard, prosecutors were under no obligation to introduce evidence to prove the absence of a license. Therefore, if McNeilwere given retroactive application, the effect would be the discharge of many, if not all, weapons convictions. For these reasons McNeilwill be given only prospective application.

¶7Accordingly appellant’s conviction as to Section 6106 is reversed and his conviction as to 6108 is affirmed, and case remanded for a determination of whether an adjustment of appellant’s sentence should be made in light of the reversal on Section 6106.