PA Superior Court: Even Partial Concealment of Firearm Requires Concealed Carry Permit

Criminal Defense Attorney Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Montgomery, finding that even partial concealment of a gun in a defendant's waistband establishes a prima facie case of a violation of VUFA 18 Pa.C.S. Sec. 6106 (firearms not to be carried without a license) for purposes of a preliminary hearing. Whether the defendant intended to conceal the firearm is likely an issue for trial, but the presence of the gun in the defendant's waistband, even though part of it was still visible, was enough to show concealment at a preliminary hearing. This is a bad case for the defense which makes it even easier for the Commonwealth to prove Violations of the Uniform Firearms Act. 

The Facts of Commonwealth v. Montgomery

Montgomery was arrested and charged with various violations of the uniforms firearms act. This case focused on whether or not the evidence presented at his preliminary hearing was sufficient to show that he had concealed the firearm in violation of 18 Pa.C.S. Sec. 6106. The Commonwealth called only witness at the preliminary hearing - the Philadelphia Police Officer who had arrested the defendant. At the hearing, the officer testified that he drove by the defendant and saw him “messing with” what the officer believed to be “the handle of a gun in his waistband.” The officer also testified that he could not see the entire gun. He could only see the the handle. 

The defendant then walked into a nearby store. The officer stopped his police car in front of the store and watched the defendant walk out of the store. The officer testified that the defendant saw him and then immediately walked back into the store. The officer exited his vehicle and went into the store. he stopped the defendant in the store, searched him, and did not find the gun. He did locate a gun several feet away on top of a rack of potatoes. The only other person in the store at the time was the cook, who was not very close to the gun. 

The officer arrested the defendant and charged him with violations of § 6106 and 18 Pa.C.S. § 6018 (Carrying Firearms on Public Streets or Public Property in Philadelphia). At the preliminary hearing, the Philadelphia Municipal Court Judge dismissed the § 6106 charge because, according to the court, the Commonwealth did not establish at a prima facie level that the defendant concealed the gun.

The Commonwealth then re-filed the complaint (which it is allowed to do under Rule 544 of the Pennsylvania Rules of Criminal Procedure). In Philadelphia, re-filed criminal complaints are typically heard by a Common Pleas Judge who sits in Motions Court. That judge will review the transcript from the preliminary hearing and hear any new evidence or testimony which the Commonwealth wishes to present. That judge will then make a decision as to whether the charges should be held for court or whether the Municipal Court Judge correctly dismissed the charges. Notably, the Superior Court indicated in a footnote that this procedure is not technically correct as the re-filed complaint should be heard by the same Municipal Court Judge who dismissed the case. Alternatively, if the Commonwealth files a motion seeking a different judge for the second preliminary hearing, the case should be heard by a different Philadelphia Municipal Court judge. In this case, neither party objected to the usual procedure of the case being heard in the Court of Common Pleas, so the Superior Court did not do anything to disturb that procedural route. Nonetheless, it may be possible to object to this procedure in the future in order to keep a case in the Municipal Court. Nonetheless, the Commonwealth did not present any new evidence for the Court of Common Pleas Judge, and that judge also agreed that the Commonwealth failed to establish concealment of the firearm. The prosecution appealed to the Superior Court. 

What is VUFA § 6106? 

VUFA § 6106 basically makes it a crime to carry a concealed gun on your person or in a car without a concealed carry permit. There are some limited exceptions. The statute provides “[a]ny person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in the place of abode or fixed business, without a valid and lawfully issued license” commits a felony of the third degree. In other words, a person cannot have a gun without a valid license and conceal that gun or he or she will be in violation of § 6106.

As such, there are several elements to this charge. First, the defendant must have a gun. Second, the person must not have a valid license to possess the gun. Third, the person must not be in his home or fixed place of business. And finally, a defendant must conceal the gun. 

When is a gun concealed?

According to the Pennsylvania Supreme Court, any concealment, including a partial concealment, is sufficient to establish the concealment element for § 6106. However, concealment is a fact-specific inquiry. For example, suppose someone is walking down the street in broad daylight with a pistol in his hand. This person is holding the gun up in his hand and tossing it up in the air. The police come and tell him to drop the gun and he puts the gun in his waistband. In this particular fact pattern, the defendant has probably not committed § 6106. Why? Because he made no attempt to conceal the gun. He made it very clear that he had a gun on his person.  

Now let’s change the fact pattern. Let’s suppose that someone is walking down the street and he has a gun in his waistband. A concerned bystander then notifies a police officer that this person has a gun. When the police officer approaches this person, he immediately tells the officer that he has a gun and gives it to him. This person has probably committed § 6106 because even though he was honest with the officer and cooperated with him, the gun was technically concealed for purposes of § 6106. 

Does the concealment element require the Commonwealth to prove a mens rea (mental state)? 

The answer to this question is yes, the Commonwealth must prove that the defendant was at least reckless in concealing the gun. As discussed in our December 9, 2017 blog (unlawful possession of a concealed firearm requires intentional concealment), the Superior Court held in the case of Commonwealth v. Scott that concealment is not established per se just because the gun is in the waistband. This might seem contradictory. However, it is important to remember at what stage each of these cases were decided. In Scott, the Superior Court reached its decision after a trial, and there was evidence in the record to suggest that the gun in that became concealed by accident. In the instant case, the defendant had not yet gone to trial. His case was only at the preliminary hearing level. The burden of proof is much lower at a preliminary hearing than at trial, where the prosecution must prove the case beyond a reasonable doubt. 

Thus, in the context of VUFA § 6106, the Commonwealth must prove beyond a reasonable doubt that a defendant intentionally, knowingly, or recklessly concealed the gun. However, the Commonwealth does not have the same burden at a preliminary hearing. At a preliminary hearing, the Commonwealth only needs to establish a prima facie case of guilt. Additionally, the Commonwealth is entitled to all reasonable inferences in its favor. In other words, it is a much lower burden for the Commonwealth to prevail at a preliminary hearing. If a gun is even remotely concealed, then according to the Superior Court, this will be sufficient to establish the element of concealment at a preliminary hearing. That does not mean the defendant will be convicted at trial; only that the defendant should be required to stand trial. In a gun case, there may be other defenses, including a motion to suppress for an illegal stop as well also officer credibility. 

The Superior Court Finds that the Commonwealth Proved Concealment

In a relatively short opinion, the Superior Court held that because the defendant had the gun in his waistband, the Commonwealth established concealment at the preliminary hearing. The Court further explained that the defendant's subsequent actions also showed that he intended to conceal the gun. Specifically, his decision to go back into the store and try to discard the gun indicated an intent to conceal the weapon. Therefore, the Superior Court held that the evidence was sufficient to establish concealment at a preliminary hearing. Consequently, the Defendant now must stand trial for § 6106.  

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