The Question of Concealment Under Pennsylvania Law: Part II

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By David Zvirman, Staff Writer

As noted in an earlier article, we have all heard on the news of someone getting accused or arrested of carrying a “concealed” firearm, but what does that mean?  An average person might ask: is hiding a gun in a jacket or under a shirt count? Does the entire gun have to be hidden for it to be concealed?  If not, how much has to be visible? Is it still concealment if you can clearly see part of the gun?  For example, if you see part of a handgun sticking out of someone’s pants, is it still concealed? Or does the fact you can clearly see a handgun negate the concealment?  These are all reasonable questions that, as explained in a previous article, have been answered by the Pennsylvania legislature and judiciary in their attempt to implement effective concealment laws.

Recall that 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 has responded to this broad language by holding 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 understanding has led courts to take two different approaches for determining whether a firearm is concealed.

In the previous article, the first approach of inferred concealment was discussed. Under this approach, a trier of fact may infer concealment from the evidence presented.[4] For example, concealment will be found where a victim saw the defendant walk into his store unarmed, and only saw a gun after he had turned around from the register to give him change.[5] This approach allows concealment to be found at any point a previously unseen firearm becomes visible.

The second approach to concealment in Pennsylvania answers the most basic question that arises when one thinks of “concealment.” This question is whether a gun needs to be totally concealed to constitute concealment. The Superior Court has answered that question in the negative by holding that partial concealment is concealment under Pennsylvania law.[6]

In Butler, the appellant was seen by his wife, the person who called the police, with a small revolver sticking out of his pocket.[7] The appellant testified that one half of the gun was sticking out of his pocket.[8] The appellant argued that this was insufficient to support his conviction.[9] The court upheld the conviction, holding that while some jurisdictions do not find concealment when there is partial visibility, this is not a uniform rule.[10] Further, there are cases that support finding concealment unless the weapon is fully exposed.[11] Additionally, the rules of statutory construction do not require that statutes be given the narrowest interpretation and override the common sense purpose of the statute.[12]

More recent case law shows Pennsylvania continuing to support the interpretation that partial concealment is concealment.[13] Accordingly, Pennsylvania has taken a very practical and simple approach to a potentially very difficult question. By simply holding that partial concealment is concealment under §6106(a), Pennsylvania avoids two issues.

First, it avoids the all questions and debate over what constitutes total concealment. An example of this line of thinking would be, “Is it still totally concealed if I can make out the shape of the gun through the jacket?”

Second, such a simple rule avoids inevitable debate over how exposed does a firearm need to be for it to still be concealed. For example, questions like “is it still concealed if I can see part of it stick out of his pocket?” or “is it still concealed if it can be seen when he opens his jacket?” are all answered with a simple and harsh “Yes!”

While this may not seem particularly generous or fair to defendants, especially when one remembers Pennsylvania also allows finding of concealment through “inferred concealment,” it is how Pennsylvania has chosen to implement its concealment laws in the most effective way.




[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) (finding that a jury could infer concealment where officers saw defendant unarmed prior to bus passing, and then saw a gun at defendant’s feet after the bus passed.); Com. v. Nickol, 381 A.2d 873, 877 (Pa. 1977) (finding that a jury could infer concealment where the getaway driver never saw defendant with a gun before or after defendant had robbed the grocery store and shot a clerk.)

[5] Com. v. Horshaw, 346 A.2d 340, 343 (Pa. Super. 1975).

[6] Com. v. Butler, 150 A.2d 172, 173 (Pa. Super. 1959) (holding that the proposition that the term “concealed,” as used in 18 P.S. § 4628 (repealed, now §6106), requires total concealment is not supported by case law).

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Com. v. Berta, 514 A.2d 921, 923 (Pa. Super. 1986), appeal denied, 522 A.2d 1104, (Pa. 1987) (finding sufficient evidence to support concealment, where the gun was partially protruding out of the appellant’s belt line when the officer arrived); Com. v. Woffard, 2015 WL 6689401, at *5 (Pa. Super. 2015), appeal denied, 634 Pa. 728, (Pa. 2015) (finding partial concealment is concealment where a photo of the appellant, prior to the victim’s death, showed him with a gun clearly visible and sticking out of his waistband); and Com. v. Drayton, 2015 WL 6550999, at *4 (Pa. Super. 2015)(holding that even if a firearm is partially concealed, partial concealment is still considered concealment).

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