concurring and dissenting:
*571I agree with Judge CERCONE that the only issue properly before us, in view of the Commonwealth’s failure to file a cross-appeal, is whether the lower court erred in not arresting judgment and discharging appellant given that it properly found insufficient evidence to convict under 18 Pa.C.S. § 61061 and 18 Pa.C.S. § 6108.2 In my view, the lower court did err in refusing to arrest judgment on both counts. However, because the Majority states that the Commonwealth is not required to prove the absence of a license under § 6108, I would like to reiterate my belief, expressed in Commonwealth v. Williams, 237 Pa.Super. 91, 346 A.2d 308 (1975),3 that absence of a license is a material element of the offense prohibited by § 6108. The Commonwealth has the burden of proving every essential element of the crime beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Because the Commonwealth did not produce evidence of the absence of a license, it has failed to sustain its burden of proof under § 6108. Accordingly, appellant’s judgment of sentence for violation of § 6108 should be arrested and appellant should be discharged.
Section 103 of the Crimes Code,4 in pertinent part: “. . . the following words and phrases, when used in this title shall have, unless the context clearly indicates other*572wise, the meanings given to them in this section: ‘Element of an offense’ Such conduct or such attendant circumstances or such a result of conduct as: . . . (3) negatives an excuse or justification for such conduct; . . . ‘Material element of an offense’ An element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with: . (2) the existence of a justification or excuse for such conduct. . . . ” Section 302(a)5 states that: “. . .a person is not guilty of an offense unless he acted intentionally, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense.” (Emphasis supplied) Therefore, appellant is not guilty of violating § 6108 unless the Commonwealth establishes that he acted intentionally, knowingly, recklessly, or negligently with respect to each material element of the offense, as defined by section 103, prohibited by § 6108.
The existence of a license certainly provides a “justification or excuse” for carrying a firearm on a public street. Under the 1972 Crimes Code,6 a fact which negates an excuse or justification is an element of the offense. Moreover, the absence of a license is a material element of an offense under section 6108 because it is directly connected with the existence of a justification or excuse. Because absence of a license is a material element of an offense under § 6108 the Commonwealth must prove this fact beyond a reasonable doubt. In re Winship, supra.
I do not now decide whether the Commonwealth must prove that the accused was not exempt at the time of arrest under § 6108(2) and § 6106(b). Quite possibly, the exemptions listed in § 6106(b) and incorporated by section 6108(2), do not constitute “justifications or excuses” under section 103 and, therefore, are not elements of the offense which the prosecution must prove. Cf. Commonwealth v. Stoffan, 228 Pa.Super. 127, 323 A.2d 318 (1974). Alternatively, the legis*573lature may wish to clarify the precise requirements of proof that the Commonwealth meet under § 6108.
Because the Commonwealth failed to adduce evidence that appellant did not have a firearms license at the time of his arrest, I believe that the judgment of sentence for violation of section 6108 should be arrested and appellant should be discharged.
SPAETH, J., joins in this concurring and dissenting opinion.. The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S. § 6106.
. The Crimes Code, supra; 18 Pa.C.S. § 6108.
. In Commonwealth v. Williams, the Majority held that Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975), decided under the 1939 Crimes Code, was not retroactive and that the Commonwealth, therefore, did not have to prove absence of a license in § 6108 prosecutions tried before the Supreme Court’s decision in McNeil. Implicitly, the Majority believe that if McNeil were retroactive, the Commonwealth would bear the burden of proving absence of a license beyond a reasonable doubt. I argued that the issue of McNeil’s retroactivity was irrelevant because the 1972 Crimes Code, unlike the 1939 Crimes Code, explicitly made absence of a license a material element of the offense of carrying a firearm on a public street in a city of the first class.
. The Crimes Code, supra; 18 Pa.C.S. § 103.
. The Crimes Code, supra; 18 Pa.C.S. § 302(a).
. The Crimes Code, supra; 18 Pa.C.S. § 101 et seq.