Commonwealth v. Scott

J-S28025-17

2017 PA Super 383

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee

v.

THOMAS MARCEL SCOTT

Appellant No. 1470 WDA 2016

Appeal from the Judgment of Sentence June 23, 2016
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0002049-2015

BEFORE: OLSON, J., MOULTON, J., and STRASSBURGER, J.*

OPINION BY MOULTON, J.: FILED DECEMBER 08, 2017

Thomas Marcel Scott appeals from the June 23, 20161 judgment of

sentence following his conviction for one count of firearms not to be carried

without a license, 18 Pa.C.S. § 6106(a)(2). We reject Scott’s claim that he

qualified for an exception to section 6106 of the Pennsylvania Uniform

Firearms Act of 1995 (“PUFA”), which prohibits carrying a concealed firearm

without a license. Nevertheless, because the trial court erred in finding Scott

strictly liable for carrying a concealed firearm, we vacate the judgment of
____________________________________________

* Retired Senior Judge assigned to the Superior Court.

Scott’s notice of appeal lists the date of the judgment of sentence as
1

September 2, 2016, the date the trial court denied his post-sentence motion.
The appeal, however, properly lies from the date of the judgment of sentence,
June 23, 2016. See Commonwealth v. Dreves, 839 A.2d 1122, 1125 n.1
(Pa.Super. 2003) (en banc).
J-S28025-17

sentence and remand for a new trial. For the reasons discussed below, we

hold that to establish a violation of section 6106, the Commonwealth must

establish that the defendant intentionally, knowingly, or recklessly concealed

the firearm.

The trial court summarized the facts of this case as follows:
At trial, Detective James Horwatt of the New Kensington
Police Department testified that on April 18, 2015, he
received a call to respond to a report of domestic violence
at 119 Kenneth Avenue in New Kensington, Westmoreland
County. He proceeded to the residence, and spoke to the
victim, Kristin Kalinowski, who identified [Scott]. Shortly
thereafter, Detective Horwatt was informed that [Scott] was
directly in front of the post office on 11th Street in New
Kensington. Upon traveling to the location and observing
[Scott], Detective Horwatt exited his patrol vehicle and told
[Scott] to raise his hands so that he could see them.
Detective Horwatt placed [Scott] under arrest for domestic
violence, and conducted a physical pat-down of [Scott] for
weapons.
Detective Horwatt stated that upon placing [Scott] in
handcuffs and conducting the pat-down, a Sig Sauer
handgun in its holster was located 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.
[Scott] testified that although the t-shirt was concealing
the firearm, it was not done so intentionally. He opined:
I mean on that particular morning when I
would have got dressed the shirt would have
been tucked in. When I sat on the bench it was
tucked in. I had a hooded sweatshirt and I was
sitting there and I got warm and pulled the
sweatshirt over my head and I believe incident
[sic] of me removing it[,] it became untucked.
Detective Horwatt further testified that [Scott] showed
him his Act 235 Permit, and that [Scott] mentioned that he
was either coming back or returning to work. [Scott]

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testified that at the time of his arrest, he was working in the
field of asset protection[2] for a pawnshop as well as a
clothing store in Pittsburgh. He also stated that at the time
he was arrested, his intention was to travel to Allegheny
County to attend a qualification shooting course for a
seasonal job as a public safety officer with a local
amusement park.

Trial Ct. Op., 9/2/16, at 1-3 (internal citations and footnote omitted) (some

alterations in original).

On June 23, 2016, 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 timely appealed to this Court.

On appeal, Scott raises the following issues:

I. Whether Judge Hathaway abused her discretion in
denying [Scott’s] motion for judgment of acquittal for count
1 since [Scott] was exempt under 18 Pa.C.S. § 6106(B)(1)
[and] (6).

II. Whether the guilty verdict was against the weight of the
evidence in that the Commonwealth did not establish that
[Scott] believed the firearm was concealed or that he had
acted intentionally, knowingly, recklessly or negligently in
possessing the firearm.

III. Whether the guilty verdict was against the weight of the
evidence in that the Commonwealth did not establish that
[Scott] was aware that the firearm was concealed and
therefore unable to terminate possession.

____________________________________________

2 At trial, Scott testified he was employed in the field of “asset
protection,” which was the same as employment as a security guard. N.T.,
6/22-23/17, at 64.

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J-S28025-17

IV. Whether Judge Hathaway abused her discretion in
finding [Scott] guilty which was against the weight of the
evidence.

Scott’s Br. at vii. In essence, Scott raises two claims: (1) He was not required

to have a license because he had a Lethal Weapons Training Act (“Act 235”)3

certification card or because he qualified for an exception under section 6106;

and (2) Scott did not have the mens rea required to commit the crime.4

I. Whether Scott Was Required to Have a License to Carry a
Concealed Firearm

Section 6106 makes it unlawful for a defendant to “carr[y] a firearm

concealed on or about his person, except in his place of abode or fixed place

of business, without a valid and lawfully issued license under this chapter.”

18 Pa.C.S. § 6101(a)(1). Scott first claims that the Commonwealth failed to

present sufficient evidence5 to establish a violation of section 6106 because

(1) he possessed a valid Act 235 certification card and (2) he qualified for an

exception to the concealed-carry prohibition due to his employment as a

security guard at a pawn shop and clothing store.

____________________________________________

3 Act No. 1974-235, P.L. 705 (Oct. 10, 1974), 22 P.S. §§ 41 to 50.1.

4Scott framed this issue as a claim that the verdict was against the
weight of the evidence. The issue, however, is whether the trial court erred
as a matter of law by applying an improper legal standard. Because Scott
raised the substance of the issue—that the statute required a mens rea to
conceal the weapon and the Commonwealth failed to establish the required
mens rea—we conclude he has not waived it.

5“Because a successful sufficiency of the evidence claim warrants
discharge on the pertinent crime, we must address this issue first.”
Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa.Super. 2013) (en banc).

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J-S28025-17

A. Act 235 Certification

“Act 235 requires privately employed agents who carry lethal weapons

to attend an educational and training program established by the State Police

Commissioner and provides for them to receive ‘certification’ when the

program is satisfactorily completed.” Commonwealth v. Anderson, 169

A.3d 1092, 1099 (Pa.Super. 2017) (en banc). We 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 PUFA.” Id. at

1103. Rather, “an individual who carries a firearm incident to employment is

required to comply with both” the PUFA and Act 235. Id. (emphasis omitted).

Therefore, Scott’s Act 235 certification has no bearing on whether he violated

section 6106 of the PUFA.

B. Section 6106(b) Exceptions

Section 6106(b) lists exceptions to the concealed-carry prohibition,

including the following:

(b) Exceptions.--The provisions of subsection (a) shall not
apply to:

(1) Constables, sheriffs, prison or jail wardens, or their
deputies, policemen of this Commonwealth or its political
subdivisions, or other law-enforcement officers.

...

(6) Agents, 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.

18 Pa.C.S. § 6106(b)(1), (6).

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J-S28025-17

When reviewing a trial court’s interpretation of a statute, our standard

of review is de novo, and our scope of review is plenary. Shafer Elec. &

Constr. v. Mantia, 96 A.3d 989, 994 (Pa. 2014). Our Supreme Court has

stated:

“[T]he objective of all interpretation and construction of
statutes is to ascertain and effectuate the intention of the
legislature.” Bayada Nurses v. Dept. of Labor and
Indus., 607 Pa. 527, 8 A.3d 866, 880 (2010) (citing 1
Pa.C.S. § 1921(a)). Generally, the best indication of the
General Assembly’s intent is the plain language of the
statute. “When the words of a statute are clear and free
from all ambiguity, they are presumed to be the best
indication of legislative intent.” Chanceford Aviation v.
Chanceford Twp. Bd. of Supervisors, 592 Pa. 100, 923
A.2d 1099, 1104 (2007) (citations omitted).

Allstate Life Ins. Co. v. Commonwealth, 52 A.3d 1077, 1080 (Pa. 2012)

(alteration in original).

Scott first maintains that, given his employment as a security guard, he

falls under the exception for “[c]onstables, sheriffs, prison or jail wardens, or

their deputies, policemen of this Commonwealth or its political subdivisions,

or other law-enforcement officers.” 18 Pa.C.S. § 6106(b)(1). Scott plainly

does not fit within any of the specifically listed categories, all of which are

limited to officers employed by government entities. Instead, Scott focuses

on the catch-all “other law-enforcement officers” and argues that a privately

employed security guard is an “other law-enforcement officer.” We disagree.

Both this Court and our Supreme Court have addressed the proper

interpretation of a general statutory provision that follows a list of specific

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provisions. “Under the ‘doctrine [of] ejusdem generis (of the same kind or

class), where general words follow the enumeration of particular classes of

persons or things, the general words will be construed as applicable only to

persons or things of the same general nature or class as those enumerated.’”

Commonwealth v. Ryan, 909 A.2d 839, 842 n.6 (Pa.Super. 2006)

(alteration in original) (quoting Independent Oil and Gas Ass'n of Pa. v.

Bd. of Assessment Appeals, 814 A.2d 180, 184 (Pa. 2002)). Here, 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: employment by a government entity. This conclusion is reinforced

by the existence of a separate exception, discussed below, that covers certain

privately employed actors. See 18 Pa.C.S. § 6101(b)(6). To read section

6106(b)(1) as granting an exception for privately retained security guards

would dramatically expand the reach of the exception without support in the

statutory language.6 This we decline to do.

Scott next maintains that his employment as a security guard at a pawn

shop and clothing store qualifies him for the exception for “[a]gents,

messengers and other employees of common carriers, banks, or business

firms, whose duties require them to protect moneys, valuables and other

____________________________________________

6We note that Scott himself relies only on the statutory language, and
makes no argument based on the provision’s history or purpose. See Scott’s
Br. at 4.

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J-S28025-17

property in the discharge of such duties.” 18 Pa.C.S. § 6106(b)(6). This

exception permits someone employed by certain classes of entities to carry a

concealed firearm, but only if the concealed carrying of the firearm occurs “in

the discharge of [their] duties.”

The limitation to the exception — that the person may carry a concealed

firearm only in the discharge of their duties “to protect moneys, valuables and

other properties” — is clear not only from the plain language of the exception,

but also when read in context of the remaining exceptions. Subsection (b)(1),

discussed above, permits those qualified for the exception to carry a concealed

firearm with no limitation. Other exceptions, however, limit the permitted

concealed carrying to specified times. For example, subsection (b)(2) permits

“[m]embers of the army, navy, marine corps, air force or coast guard of the

United States or of the National Guard or organized reserves when on duty”;

and subsection 6106(b)(7) permits those engaged “in the business of

manufacturing, repairing, or dealing in firearms, or the agent or

representative of any such person, having in his possession, using or carrying

a firearm in the usual or ordinary course of such business.” 18 Pa.C.S.

§ 6106(b)(2), (7) (emphasis added).7 Therefore, we conclude that subsection
____________________________________________

7 Additional exceptions with time limitations include:

(b) Exceptions.--The provisions of subsection (a) shall not
apply to:

...

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J-S28025-17

6106(b)(6) permits an individual to carry a concealed firearm only: (1) if 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.”

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.”8 Rather, Scott testified that he intended “to travel over to Allegheny

County to attend a qualification shooting course for a seasonal job.” N.T.,

6/22-23/17, at 63. Accordingly, because Scott was not carrying the firearm

in the discharge of his duties, the exception did not apply.9

____________________________________________

(4) Any persons engaged in target shooting with a firearm,
if such persons are at or are going to or from their places of
assembly or target practice and if, while going to or from
their places of assembly or target practice, the firearm is
not loaded.

...

(9) Persons licensed to hunt, take furbearers or fish in this
Commonwealth, if such persons are actually hunting, taking
furbearers or fishing as permitted by such license, or are
going to the places where they desire to hunt, take
furbearers or fish or returning from such places.

18 Pa.C.S. § 6106(b)(4), (9).

As discussed above, the exceptions in subsection (b) are affirmative
8

defenses that the accused bears the burden of proving. See, e.g., Walton,
529 A.2d at 17.

9Because the trial court’s finding that Scott did not carry the firearm in
the discharge of his employment duties is fully supported by the record, we

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J-S28025-17

II. Mens Rea and Concealment of the Firearm

Scott next claims that that the verdict was against the weight of the

evidence because he did not have the required mens rea to establish

concealment under section 6106. While Scott couches this as a weight claim,

his argument is better understood as a challenge to the trial court’s

interpretation of an element of the crime. Specifically, while the trial court

treated concealment as a strict liability element, Scott argues that

concealment requires a culpable mental state. We agree.

As noted above, when reviewing a trial court’s interpretation of a

statute, our standard of review is de novo, and our scope of review is plenary.

Shafer Elec. & Constr., 96 A.3d at 994. Our Supreme Court has stated:

“[T]he objective of all interpretation and construction of
statutes is to ascertain and effectuate the intention of the
legislature.” Bayada[, 8 A.3d at 880] (citing 1 Pa.C.S. §
1921(a)). Generally, the best indication of the General
Assembly’s intent is the plain language of the statute.
“When the words of a statute are clear and free from all
ambiguity, they are presumed to be the best indication of
legislative intent.” Chanceford Aviation[, 923 A.2d at
1104] (citations omitted).

Allstate Life Ins. Co., 52 A.3d at 1080 (some alterations in original).

At trial, Scott conceded that the weapon was concealed, but maintained

that the concealment was accidental and unknowing. He testified that the

____________________________________________

need not address whether Scott’s employment as a security guard at a pawn
shop and/or clothing store would qualify as employment as an agent,
messenger, or other employee “of common carriers, banks, or business firms,
whose duties require them to protect moneys, valuables.” 18 Pa.C.S. §
6106(b)(6).

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J-S28025-17

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. He

argues that his conviction should be overturned because he lacked the

required mens rea to conceal the firearm.

Following trial, the court found:

[A]lthough I think that your client probably did not
intend to conceal the weapon, the weapon was
concealed. I find beyond a reasonable doubt that the
weapon was concealed and that your client does not fit any
exception.

N.T., 6/22-23/16, at 107.

Scott filed a post-sentence motion arguing, among other things, that he

lacked the mens rea required to commit the crime because he did not intend

to conceal the firearm. Post-Sentence Motion, 7/5/16.10 The trial court heard

argument from both Scott and the Commonwealth and requested that the

parties focus on whether the statute required that the Commonwealth

establish that Scott “intended”11 to conceal the firearm. See, e.g., N.T.,

8/9/16, at 2-3, 5. The trial court denied the motion, concluding:

____________________________________________

10 Scott also advanced this argument at trial. N.T., 6/22-23/16, at 78-
79.

Scott’s counsel argued that “a person is not guilty of an offense unless
11

he acted intentionally, knowingly, recklessly, or negligently, as the law may
require.” N.T., 8/9/16, at 10.

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Lastly, it was undisputed that [Scott’s] firearm was
concealed at the time that he was approached by officers.
[Scott] only argues that he did not intend to conceal said
firearm. There is no intent requirement under
aforementioned statute. The fact that the firearm was
completely undetectable to an observer is sufficient under
§6106 to support a guilty verdict. . . .

Because [Scott] has conceded that his firearm was
concealed at the time of his arrest, the Commonwealth has
met its burden, and this Court did not err in finding [Scott]
guilty of the charged offense.

Trial Ct. Op., 9/2/16, at 4-5 (some alterations in original).12

Section 6106(a) provides:

(a) Offense defined.--

(1) Except as provided in paragraph (2), any person who
carries a firearm in any vehicle or any person who carries a
firearm concealed on or about his person, except in his place
of abode or fixed place of business, without a valid and
lawfully issued license under this chapter commits a felony
of the third degree.

(2) A person who is otherwise eligible to possess a valid
license under this chapter but carries a firearm in any
vehicle or any person who carries a firearm concealed on or
about his person, except in his place of abode or fixed place
of business, without a valid and lawfully issued license and
has not committed any other criminal violation commits a
misdemeanor of the first degree.

18 Pa.C.S. § 6106(a).

Section 6106 does not include an express mens rea requirement with

respect to any of its elements. We must therefore determine “whether a mens

____________________________________________

12 The Commonwealth argued that the evidence presented at the trial,
including Scott’s testimony that he removed a sweatshirt, established Scott’s
intent to conceal the firearm. N.T., 8/9/16, at 14-16. In denying the motion,
the trial court determined that intent was not required.

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rea is required . . ., and if so, which level.” Commonwealth v. Moran, 104

A.3d 1136, 1149 (Pa. 2014). The Pennsylvania Supreme Court has held that

“[section] 302 provides the default level of culpability where a criminal statute

does not include an express mens rea.” Id. Section 302(c) provides:

(c) Culpability required unless otherwise provided.--
When the culpability sufficient to establish a material
element of an offense is not prescribed by law, such element
is established if a person acts intentionally, knowingly or
recklessly with respect thereto.

18 Pa.C.S. § 302(c).

Further:

[A]bsolute liability criminal offenses are “generally
disfavored,” and, absent indicia of legislative intent to
dispense with a mens rea, a statute will not be held to
impose strict liability. See Commonwealth v. Mayfield,
574 Pa. 460, 832 A.2d 418, 426–27 (2003) (citations
omitted). Although the imposition of strict liability is
generally disfavored, this Court has recognized the
legislature may create statutory offenses dispensing with a
mens rea in fields that are essentially non-criminal in order
“to utilize the machinery of criminal administration as an
enforcing arm for social regulations of a purely civil nature,
with the punishment totally unrelated to questions of moral
wrongdoing or guilt.” Commonwealth v. Koczwara, 397
Pa. 575, 155 A.2d 825, 827–28 (1959). The penalty for
such offenses concerning the public welfare is generally
relatively light. Id., at 827.

Moran, 104 A.3d at 1149. “The more serious the penalty, such as a lengthy

term of imprisonment, the more likely it is that the legislature did not intend

to eliminate the mens rea requirement (unless the legislature plainly indicates

otherwise in the language of the statute, as for statutory rape).”

Commonwealth v. Pond, 846 A.2d 699, 707 (Pa.Super. 2004).

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There is no indication in the text of section 6106 that the legislature

intended to impose strict liability. Further, section 6106 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. 18 Pa.C.S. § 106(b)(4), (6). Given the criminal nature

of the offense, and the penalties that could be imposed for a violation, we

should not lightly assume that the legislature intended to impose strict

liability.

Accordingly, because section 6016 does not contain an express

culpability requirement, and because the legislature has not plainly indicated

its intent to create a strict-liability crime, we hold that to establish a violation

of section 6106, the Commonwealth must establish that a defendant acted

“intentionally, knowingly or recklessly” with respect to each element, including

the concealment element. See, e.g., Moran, 104 A.3d at 1150; Gallagher,

924 A.2d at 640.13

____________________________________________

13Both the Commonwealth and the trial court rely on Commonwealth
v. Pressley, 249 A.2d 345 (Pa. 1969), for the proposition that the element of
concealment in section 6106 does not require a culpable mental state. This
reliance is misplaced. In Pressley, the defendant was found guilty of firearms
not to be carried, but not guilty of carrying a concealed deadly weapon. Id.
at 345. On appeal, the defendant argued that the elements of the crimes
were the same, and, therefore, the acquittal as to the carrying a concealed
deadly weapon charge precluded a conviction on the firearms not to be carried
charge. The Supreme Court stated:

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The trial court concluded that Scott “probably did not intend to conceal

the weapon,” N.T., 6/22-23, at 107, but found him guilty nonetheless, based

on its view that section 6106 contains “no intent requirement,” Trial Ct. Op.,

9/2/16, at 4. While the court did not consider whether Scott acted “knowingly

or recklessly” with respect to concealment, its verdict appears to have been

based on the conclusion that concealment is a strict liability element of the

offense, requiring no culpable mental state at all.

The trial court erred by applying an incorrect legal standard and finding

Scott guilty based on mere concealment, without determining whether Scott

knowingly or recklessly concealed the firearm. Accordingly, we must vacate

the judgment of sentence and remand for a new trial.14

____________________________________________

[A]ppellant could be convicted [of carrying a concealed
deadly weapon] only for carrying a ‘firearm . . . concealed
upon his person . . . with the Intent therewith
Unlawfully and maliciously to do injury to any other
person . . .’ No such intent is necessary to sustain a
conviction under the Uniform Firearms Act charge[.]

Id. at 346 (emphasis added). In Pressley, the Court held that the
Commonwealth need not establish an intent to “unlawfully and maliciously to
do injury to any other person” to establish a firearm not to be carried
conviction. Id. It did not address whether the Commonwealth had to
establish a culpable mental state for the element of concealment.

14Scott also argues that he believed he could carry the concealed
firearm because he had an Act 235 certification. As discussed above, an Act
235 certification is not a substitute for a license under PUFA. Further, that
Scott may have believed that the certification permitted him to carry a
concealed firearm is not a defense. See 18 Pa.C.S. § 304, Official Comment
(“Generally speaking, ignorance or mistake of law is no defense.”).

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J-S28025-17

Judgment of sentence vacated. Case remanded for a new trial.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/8/2017

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