“BUT … I DIDN’T KNOW MY GUN WAS CONCEALED!!!”
The PA. Superior Court recently decided the case of Commonwealth v. Scott, No. 1470 WDA 2016 (December 8, 2017), holding that the trial court erred in finding Scott strictly liable for carrying a concealed firearm and that, in order to establish a violation of carrying a concealed firearm without a license, the Commonwealth must establish that the defendant intentionally, knowingly, or recklessly concealed the firearm.
Scott was arrested for domestic violence. After the arrest, a physical pat-down of Scott was conducted for weapons. Upon placing him in handcuffs and conducting the pat-down, the arresting officer located a Sig Sauer handgun in its holster under Scott’s t-shirt. He testified that Scott’s t-shirt was not tucked in, but was loose, and hanging over the firearm, so that the weapon was completely concealed.
At trial, Scott conceded that the weapon was concealed, but maintained that the concealment was accidental and unknowing. He testified that the firearm was holstered on his right hip and in plain view, but that his shirt became untucked without his knowledge. Because he was not aware that the firearm had become concealed, he was unable to correct the situation. I sum, although the t-shirt was concealing the firearm, it was not done so intentionally.
During the trial, the arresting officer further testified that Scott showed him a Lethal Weapons Training Act (“Act 235”) Permit, and that Scott mentioned that he was either coming back or returning to work.
Following a bench trial, the trial court convicted Scott of one count of firearms not to be carried and sentenced him to 7 to 14 months’ incarceration. Scott filed a timely post-sentence motion, which the trial court denied on September 2, 2016. Scott then appealed to the Superior Court.
The Superior Court summarized Scott’s claims on appeal as: (1) He was not required to have a license because (a) he had a Lethal Weapons Training Act (“Act 235”) certification card or (b) because he qualified for an exception under the concealed weapons statute; and (2) He did not have the mens rea required to commit the crime.
ACT 235 and QUALIFIED EXCEPTION ARGUMENTS REJECTED
As to the Act 235 argument, the Superior Court noted that it recently held that Act 235 is not a substitution for a license to carry a firearm and that Act 235’s provisions do not supersede the licensing requirements in the Pa. Uniform Firearms Act (“PUFA”). Therefore, “an individual who carries a firearm incident to employment is required to comply with both” the PUFA and Act 235.
Scott then argued that he fell within one of the exceptions of the PUFA so that he need not be required to possess a concealed weapons permit.
First, he claimed that he met the “”[c]onstables, sheriffs, prison or jail wardens, or their deputies, policemen of this Commonwealth or its political subdivisions, or other law-enforcement officers” exception. However, the Superior Court did not agree, stating that the language of the statute makes plain that the General Assembly intended the general class – “other law-enforcement officers” – to include only those individuals who share the central characteristic of those in the enumerated classes, i.e. – employment by a government entity.
Scott also argued that he met the “[a]gents, messengers and other employees of common carriers, banks, or business firms, whose duties require them to protect moneys, valuables and other property in the discharge of such duties” exception. However, the Superior Court concluded that this exception only applies if (1) his or her employment qualifies under the subsection; and (2) he or she carries a concealed firearm while discharging his or her duty to protect “moneys, valuables and other property.” And, since the trial court, as finder of fact, concluded that Scott had failed to establish that he was carrying the concealed firearm “in the discharge of his duties,” the exception did not apply.
MENS REA ISSUE RECOGNIZED
Lastly, Scott argued that the trial court erred when it treated concealment as a strict liability element and that concealment requires a culpable mental state as did all other elements of the statute at issue.
When presented with the above facts at trial, the trial court concluded that “although I think that your client probably did not intend to conceal the weapon, the weapon was concealed.” In addressing Scott’s post-trial Motions, the trial court stated that “there is no intent requirement under aforementioned statute. The fact that the firearm was completely undetectable to an observer is sufficient … to support a guilty verdict” [and] because Scott “conceded that his firearm was concealed at the time of his arrest, the Commonwealth has met its burden.”
The Superior Court began its analysis of this issue by acknowledging that the statute at issue does not include an express mens rea requirement with respect to any of its elements. Further analysis revealed that there appears to be no indication in the text of the statute at issue that the legislature intended to impose strict liability. Furthermore, the statute at issue is a criminal statute, a violation of which is either a first-degree misdemeanor or third-degree felony. Therefore, a convicted defendant faces a maximum of 5 years’ or 7 years’ imprisonment. Significantly, the Superior Court noted that the Court “should not lightly assume that the legislature intended to impose strict liability.”
Accordingly, the Superior Court concluded that because the statute did not contain an express culpability requirement, and because the legislature did not plainly indicate its intent to create a strict-liability crime, the Commonwealth must establish that a defendant acted “intentionally, knowingly or recklessly” with respect to each element, including the concealment element.
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