Commonwealth v. Bavusa

Justice SAYLOR,

concurring.

Although I concur in the result, I would hold that the statutory criteria by which a perpetrator of the offense of carrying a firearm without a license is adjudged to have committed a felony or misdemeanor, see 18 Pa.C.S. § 6106, are substantive elements of the crimes, as opposed to sentencing factors (as the majority holds) or affirmative defenses (as the Superior Court determined). My reasoning follows.

First, it is significant, at least to me, that the relevant provision appears in the Crimes Code, as opposed to the Sentencing Code. See Almendarez-Torres v. United States, 528 U.S. 224, 234, 118 S.Ct. 1219, 1226, 140 L.Ed.2d 350 (1998).

Second, in the Crimes Code, the Legislature has broadly defined an element of an offense, inter alia, as:

Such conduct or such attendant circumstances or such a result of conduct as:
(1) is included in the description of the forbidden conduct in the definition of the offense; [or]
(2) establishes the required kind of culpability[.]

18 Pa.C.S. § 103. Section 6106(a)(2)’s eligibility terms qualify as elements under both of these provisions, since they are attendant circumstances expressly included in the description of the offenses and establish the requisite culpability for misdemeanor versus felony treatment.

*646Third, the General Assembly is aware of how to designate a fact or circumstance as an affirmative defense or sentencing factor, see, e.g., 42 Pa.C.S. § 9712(b), discussed in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), which it simply has not done here.

Fourth, it is at least noteworthy that questions related to the issue before the Court arose during floor debates on the 1997 amendment in which paragraph 6106(a)(2) was added to the statute, see Pub.L. 73, No. 5, § 1, April 22, 1997, and the comments of the bill’s proponents tend to reinforce that the facial distinction made between the misdemeanor and felony provisions of Section 6106 was intended as a substantive one. See, e.g., Pa. Leg. Journal (House), April 9, 1997, at 730 (statement of Rep. Gannon, Chairman of the House Judiciary Committee) (stating that if a person “met all of the qualifications for the issuing of a license to carry a concealed weapon [but did not do the requisite] paperwork, and [he] still carried a concealed weapon, that is a misdemeanor”); id. (“if you could have legally carried a firearm under other circumstances, it is a misdemeanor”); id. at 733 (statement of Rep. McCall) (amendment is designed “not to make felons out of those people who are law-abiding citizens and people who do not have any kind of felonious intent”); id. (if an unlicensed gun owner “has always been a law-abiding citizen [and] would have been able to have a license to carry a gun[,] she should not be charged with a felony; she should be charged with a misdemeanor-1”). These and similar statements, while far from dispositive, do suggest that the 1997 amendment was motivated by a perception that an individual who had neglected to obtain a license but could have done so should not be called to defend himself against felony charges. Cf. Staples v. United States, 511 U.S. 600, 610, 114 S.Ct. 1793, 1799, 128 L.Ed.2d 608 (1994) (describing the “long tradition of lawful gun ownership by private individuals in this country,” and the attendant presumption against criminalizing gun possession without the requisite illegal intent).

Fifth, in establishing principles of statutory construction applicable to criminal offenses, the General Assembly has *647directed that, when language is susceptible of differing constructions, it is to be interpreted to further the general purposes stated in the Crimes Code and the special purposes of the particular provision involved. See 18 Pa.C.S. § 105. Even conceding that the legislative commentary should not overemphasized in construing Section 6106, the general purposes of the Crimes Code include safeguarding offenders against excessive and disproportionate punishment and differentiating among offenders with a view to a just individualization in their treatment. See 18 Pa.C.S. § 104(3), (5). While another express purpose is to forbid and prevent conduct that unjustifiably inflicts or threatens substantial harm to individual or public interests, this purpose would seem to be accommodated by merely recognizing the General Assembly’s decision to delineate the lesser of the two instances of proscribed conduct as a misdemeanor of the first degree, see 18 Pa.C.S. § 6106(a), carrying a maximum potential sentence of up to five years, see 18 Pa.C.S. § 1104(1).

Additionally, a more technical assessment of Section 6106 also favors the elements construction. In the absence of express designation, in determining legislative intent regarding offense elements versus affirmative defenses, courts have evaluated: (1) the language and structure of the statute; (2) the character of the factor or exception in question within its context; (3) relevant legislative history; and (4) whether the defendant or the Commonwealth is better situated to prove facts necessary to trigger or negate the exception, see Commonwealth v. Stoffan, 228 Pa.Super. 127, 144, 323 A.2d at 323, 326 (1974); accord United States v. McArthur, 108 F.3d 1350, 1353 (11th Cir.1997). With regard to distinguishing elements and sentencing factors, courts have also considered prejudice that may inure to the defendant as a consequence of development of the fact or circumstance before the jury in the adjudication of guilt or innocence. See, e.g., Almendarez-Torres, 523 U.S. at 234-35, 118 S.Ct. at 1226.

With respect to language and structure, various interpretive presumptions are frequently employed. First, a distinction is drawn between exceptions fused integrally into the definition *648of the offense (and therefore deemed to reflect integral aspects of the forbidden conduct) and those styled as distinct provisos.1 As noted above, elements treatment has been favored for “except clauses,” particularly those preceding the core description of the offense, see Commonwealth v. Bavusa, 750 A.2d 855, 860 (Pa.Super.2000), versus an inclination toward construction of subsequent “unless clauses” as affirmative defenses. See id; see also Commonwealth v. Bigelow, 484 Pa. 476, 483, 399 A.2d 392, 395 (1979) (“The United States Supreme Court has never required the prosecution to negate the language of a proviso.”); Commonwealth v. Banellis, 452 Pa.Super. 478, 485, 682 A.2d 383, 387 (1996) (distinguishing a proviso from an “except clause”).

In considering an exception’s character, courts generally make some primary assessment concerning its substantive relationship to the definition of the crime. For example, exceptions reflecting facts or circumstances materially interrelated with the primary criminal conduct constituting the offense are distinguished from those which merely furnish an excuse for what would otherwise be criminal conduct or layer some more tangential factor or circumstance into the calculus. Exceptions of the former character obviously favor the elements construction; those in latter nature militate toward a *649construction imposing a duty upon the defendant to bring himself within the exculpatory provision. See Stoffan, 228 Pa.Super. at 142, 323 A.2d at 325. Further, distinctions have been drawn according to the breadth of an exception. See McArthur, 108 F.3d at 1353 (explaining that “a narrow proviso to a more general statutory offense is more likely to be an affirmative defense than an element of the offense”); accord McKelvey v. United States, 260 U.S. 353, 357, 43 S.Ct. 132, 134, 67 L.Ed. 301 (1922) (“an indictment ... founded on a general provision defining the elements of an offense ... need not negative the matter of an exception made by a proviso or other distinct clause, whether in the same section or elsewhere”). The impact of the exception in terms of character and severity of punishment is also a significant consideration. See generally Apprendi v. New Jersey, 530 U.S. 466, 494-95, 120 S.Ct. 2348, 2365, 147 L.Ed.2d 435 (2000) (determining that the effect of a New Jersey sentencing enhancement was “unquestionably to turn a second-degree offense into a first-degree offense[;][t]he degree of criminal culpability the legislature chooses to associate with particular, factually distinct conduct has significant implications both for a defendant’s very liberty, and for the heightened stigma associated with an offense the legislature has selected as worthy of greater punishment”).

Here, the language of Section 6106(a)(1) employs a precedent “except clause” to distinguish the felony versus misdemeanor designations, thus favoring the elements construction. Compare Commonwealth v. Lopez, 523 Pa. 126, 128, 565 A.2d 437, 438 (1989); Banellis, 452 Pa.Super. at 485, 682 A.2d at 387. Further, subsections 6106(a)(1) and (a)(2) are structured such that each repeats, in full, all elements of the unlawful conduct. While the degree to which the fact of license ineligibility should be viewed as part and parcel of the core criminal conduct is arguable,2 its impact in terms of the severity of *650punishment by virtue of the felony versus misdemeanor treatment is substantial. Additionally, the legislative history of Section 6106 tends to suggest the elements construction. See supra. Both parties agree that the burden of proof is most appropriately allocated to the Commonwealth.3 Finally, there is the potential for prejudice in the presentation of license ineligibility factors to a jury; however, this factor is ameliorated by the availability of cautionary instructions, and, in instances in which a trial court would deem it necessary, bifurcation. In my view, the majority’s decision to label as absurd an interpretation that implicates the potential for precautionary measures at trial in some cases is unjustified, as countervailing and substantial liabilities attach to each of the approaches under consideration.

In light of the above, I deem the pertinent factors, considered in their totality, to favor allocation of the determination of the degree of criminal fault to the factfinder. While the Superior Court’s reasoning is not without foundation, I do not consider employment by the Legislature of the drafting technique of incorporation by reference to be controlling.4 Partic*651ularly since, as noted, the Legislature is aware of how to designate a fact or circumstance as an affirmative defense or sentencing factor, I favor application of the traditional and more conservative judicial approach, namely, maintaining an elements construction in the face of this uncertain legislative pronouncement, unless and until the General Assembly prescribes differently.5 As also previously indicated, I believe that this comports with the Legislature’s directive to construe the Crimes Code in accordance with its general purposes, and the purposes of the provision at issue. See supra.

I would hold, therefore, that in order for the Commonwealth to secure a felony conviction pursuant to Section 6106(a)(1), it must establish beyond a reasonable doubt that the conditions in paragraph 6106(a)(2) have not been met. Accordingly, the Commonwealth should be required to demonstrate the existence, at the time of a Section 6106 violation, of an impediment the defendant’s eligibility to possess a valid license to carry *652firearms, or the defendant’s commission of another criminal violation.

I am able to join the majority’s disposition, however, as I agree that the Commonwealth established at trial beyond a reasonable doubt that Bavusa committed another criminal offense (violation of 18 Pa.C.S. § 6108), thus disqualifying him from misdemeanor treatment.

. As elaborated by the Superior Court:

When a statute defining an offense contains an exception ... which is so incorporated with the language defining the offense that the ingredients of the offense cannot be accurately described if the exception is omitted, the rules of good pleading require that an indictment founded upon the statute must allege enough to show that the accused is not within the exception, but if the language of the clause defining the offense is so entirely separable from the exception that the ingredients constituting the offense may be accurately and clearly defined without any reference to the exception, ... the matter contained in the exception is a matter of defense and must be shown by the accused.

Stoffan, 228 Pa.Super. at 140, 323 A.2d at 324 (quoting Commonwealth v. Neal, 78 Pa.Super. 216 (1922)); accord United States v. Kloess, 251 F.3d 941, 945 (11th Cir.2001) (explaining that the appearance of the contested language "in a distinct clause, in a different section of the statute),] suggests that it is not an element of the crime”); United States v. Outler, 659 F.2d 1306, 1309-10 (5th Cir.1981) (where "an exception ... [is] so necessary to a true definition of the offense ... the elements of the crime are not fully stated without the exception”).

. I recognize that many of the factors included in Section 6106(a)(2)’s assessment via incorporation from Section 6109(e) are in the nature of traditional sentencing factors, at least as the sentencing scheme existed prior to the implementation of the present paradigm. Compare Commonwealth v. Jones, 523 Pa. 138, 141-42, 565 A.2d 732, 733 (1989) *650(designating the defendant’s prior criminal record and personal characteristics as sentencing factors), with 18 Pa.C.S. § 6109(e) (identifying analogous factors as relevant to license ineligibility). It is significant, however, that under Section 6106(a), these factors are not evaluated as sentencing considerations in and of themselves, but are relevant only to the extent that they pertain to the designated elemental fact (the defendant’s license eligibility).

. In this regard, I acknowledge the Commonwealth's contention that defendants should bear a threshold burden of establishing some proper purpose for firearms licensure. Notably, however, the primary decision cited by the Commonwealth, Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979), concerned an exception styled as a distinct proviso. See id. at 492, 408 A.2d at 1110 (quoting 35 P.S. § 780 — 113(16) (qualifying the offense of knowing or intentional possession of a controlled substance with the proviso, "unless the substance was obtained directly from ... a valid prescription ... or as otherwise authorized by this act”)). Therefore, the subject matter was more appropriately amenable to application of a burden-shifting paradigm.

. As Bavusa argues, the incorporation by reference device is frequently employed by the Legislature as a space-saving device, see, e.g., 18 Pa.C.S. § 2710 (incorporating elements of various underlying offenses into the crime of ethnic intimidation), and thus, may be regarded as a weak indicator of substantive legislative intent.

. In this regard, I also draw guidance from the cautionary observations of other courts in instances in which legislative bodies have not specified the treatment intended to be given exceptions. See, e.g., State v. McLemore, 782 S.W.2d 127, 129 (Mo.Ct.App.1989) ("There is no certain principle ... to use to determine when a qualification of the scope of the proscribed conduct should be viewed as a matter of excuse or justification as distinguished from a basic element of the crime[;][c]ourts have continuously wrestled with this problem and consistently have been pinned to the mat.”); id. at 130 (“Reliance on the positioning of the exception or proviso to determine whether it defines an element of the crime gives preeminence to what may be an accident of drafting, rather than an analysis of the exception or proviso and its relevance to the culpability of the accused.”); Hall v. State, 291 Ala. 397, 281 So.2d 662, 664 (1973) (criticizing the intermediate appellate court for “la[ying] too much emphasis on the grammatical construction of the [a]ct rather than upon the essential elements of the offense denounced”); People v. Devinny, 227 N.Y. 397, 125 N.E. 543, 544 (1919) ("Attempts to ... distinguish between exceptions and provisos have resulted in many technicalities and in much subtlety[;][t]he two classes of provisos — exceptions and provisos — frequently come close togetherf.]”); People v. Franzoni, 75 Misc.2d 246, 347 N.Y.S.2d 910, 914 (1973) (“The rule requiring pleading and proof by the People of negative exceptions in a criminal statute has been described in an exhaustive annotation as presenting 'one of the most frequent problems in criminal procedure, yet often one of the most baffling.' " (citation omitted)); cf. Apprendi, 530 U.S. at 494, 120 S.Ct. at 2365 (characterizing the distinction between sentencing factors and elements as "constitutionally novel and elusive”).