By David Zvirman, Staff Writer
We have all heard of someone getting accused or arrested for carrying a “concealed” firearm on the news, but what does that mean? Does hiding a gun in your jacket count as concealment? If someone sees part of the gun sticking out of the jacket, does that negate concealment? If that does negate concealment, how much of a gun has to be visible? These are logical and rational questions that both the legislature and judiciary have had to answer in drafting and implementing effective concealment laws.
Under Pennsylvania’s Uniform Firearms Act “any person who carries a firearm. . . concealed on or about his person. . . without a valid and lawfully issued license under this chapter commits a felony of the third degree.”[1] The “definitions” section provides no definition for the term “concealed.”[2] In the absence of a statutory standard or definition, the question of how to determine whether a weapon is concealed has been left to the courts.
The Pennsylvania Supreme Court held that the issue of whether a defendant has concealed a weapon on his person is based on the circumstances of each case and is a question for the trier of fact.[3] This broad understanding has led courts in Pennsylvania to take two different paths in determining whether a firearm is concealed. Because the case law on these two methods is broad and dense, this article will address only one of the two methods, with the second method being reserved for a later article. This first method involves a concept called “inferring concealment.”
A trier of fact may infer concealment from the evidence presented.[4] In Com. v. Pressley, the appellant appealed his conviction of possession of a concealed weapon under 18 P.S. § 4628 (repealed; now §6106).[5] There, officers had announced themselves to the appellant when he crossed a street.[6] A bus then crossed between the officers and the appellant.[7] Officers observed the appellant reaching into his sweater before a bus crossed the street between them.[8] When the bus passed there was a hand gun at the appellant’s feet with no evidence the gun came from the bus.[9] The Court upheld the conviction, finding that the evidence was enough for a fact finder to infer that the gun was concealed in the appellant’s sweater and dropped when the bus passed.[10]
In Com. v. Nickol, the appellant entered a supermarket, robbed it, and fatally shot the manager who attempted to pursue him.[11] The appellant argued that there was no evidence of concealment.[12] The Court, however, upheld the conviction, finding the jury could have inferred concealment from the fact that the getaway driver saw no gun when the appellant entered the supermarket and saw no gun when the appellant got back in the vehicle after the robbery.[13]
The concept of “inferred concealment” allows the term “concealed” to have a broad interpretation. In many cases, concealment was found where a previously unseen gun became visible at any point.[14]
Additionally, recent case law has shown that specific inferences can be made by the trier of the fact.[15] In Com v. Camp, the appellant, while being chased by police through the woods, pulled a gun out of his waist band or pocket, and tossed it.[16] The appellant argued that because the officer did not see where the gun came from, there could be no concealment.[17] The court found, however, that weapons are often concealed in the waist band and it was reasonable to infer that this is where the gun came from.[18]
While this standard does allow for broad findings of concealment, concealment will not be found in all cases. In Com. v. Williams, the appellant challenged the sufficiency of the evidence supporting his conviction under §6106.[19] There, the appellant was first observed firing a long barrel hand gun at a vehicle and then walking down the street spinning the gun and tossing it from hand to hand, prior to placing in it in his belt and leaving the scene.[20] After being convicted, the appellant appealed arguing, among other things, that there was insufficient evidence to support that he had concealed the gun.[21] The Superior Court found there was “no evidence whatsoever as to any attempt by appellant to conceal any weapon” and overturned the conviction.[22]
Based on this case law, it seems Pennsylvania has avoided many of the technical questions that may arise from a more narrowly defined gun law by allowing the courts to interpret §6106(a) very broadly. As noted, this law in essence allows concealment to be found at any point a previously unseen firearm becomes visible. For prosecutors, this law may provide a very convenient card to play in almost any gun case. For defendants, this law should be a deterrent and put them on notice that they will not be able to escape a concealment charge through technicalities or vague questions of “what is concealment?” Regardless of people’s opinions, it seems Pennsylvania has found a very straightforward way to avoid many of the logical questions that arise when one thinks about such an ambiguous term as “concealment.”
Sources
[1] 18 Pa. Stat. and Consol. Stat. Ann. §6106(a) (2008) (emphasis added).
[2] 18 Pa. Stat. and Consol. Stat. Ann. § 6102 (2011).
[3] Com. v. Nickol, 381 A.2d 873, 877 (Pa. 1977) (citing to Com. v. Horshaw, 346 A.2d 340, 343 (Pa. Super. 1975) (holding that the issue of concealment depends upon the particular circumstances present in each case, and is a question for the trier of fact)); Com. v. Scott, 436 A.2d 607, 608 (Pa. 1981) (citing to Com. v. Butler, 150 A.2d 172, 172 (PA. Super. 1959) (holding that the issue of concealment depends upon the particular circumstances present in each case, and is a question for the trier of fact)).
[4] Com. v. Pressley, 249 A.2d 345, 346 (Pa. 1969); Com. v. Nickol, 381 A.2d 873, 877 (Pa. 1977).
[5] Com. v. Pressley, 249 A.2d 345, 346 (Pa. 1969).
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Com. v. Nickol, 381 A.2d 873, 875 (Pa. 1977).
[12] Id. at 876.
[13] Id. at 877
[14] Com. v. Horshaw, 346 A.2d 340, 343 (Pa. Super. 1975) (finding sufficient evidence for inference of concealment, where the victim saw the appellant with a gun only after he had turned around from the register to give him change, and had not seen him enter the service station with gun in hand); Com. v. Williams, 2016 WL 1729202, at *2 (Pa. Super. 2016), appeal denied, 145 A.3d 727 (Pa. 2016) (finding sufficient evidence to support inference of concealment of a gun, where the eyewitness saw the appellant walking down the street unarmed, but, then saw him with a gun when he commenced firing at the intended victim); Com. v. Engra, 2015 WL 6167543, at *3 (Pa. Super. 2015), appeal denied, 125 A.3d 1198 (Pa. 2015) (finding concealment where the officer observed the appellant remove a previously unseen weapon from under his sweat shirt); Com. v. Mathis, 2015 WL 6957049, at *3 (Pa. Super. 2015) (holding that sufficient evidence existed to support finding that the appellant concealed a weapon, where the appellant was seen entering victim’s home unarmed, fired a warning shot, and was seen leaving the home with no gun in hand); Com. v. Drayton, 2015 WL 6550999, at *4 (Pa. Super. 2015) (holding that sufficient evidence existed to infer concealment, where the officer initially observed the appellant unarmed but then later saw the appellant remove a firearm from his waist band in an attempt to dispose of it); and Com. v. Hemphill, 2013 WL 11248437, at *2 (Pa. Super. 2013) (finding reasonable inference of concealment, where the officer testified he saw the appellant with no gun from the patrol car, but saw the appellant with a gun once he got out of the car and gave pursuit).
[15] Com. v. Camp, 2013 WL 11254780, at *3 (Pa. Super. 2013), appeal denied, 625 Pa. 632 (Pa. 2014) (holding that it was a reasonable inference that the gun was concealed in the appellant’s waist band or right pocket).
[16] Id. at *1.
[17] Id. at *3.
[18] Id. at *3.
[19] Com. v. Williams, 346 A.2d 308, 310 (Pa. Super. 1975).
[20] Id. at 309.
[21] Id. at 310.
[22] Id.
