CASE REVIEW: Commonwealth v. Bavusa, 832 A.2d 1042 (2003).

Bavusa is a case that doesn’t make any sense to me, but for some reason, we see it come up all the time in Philadelphia County Criminal Court. The ruling is logically inconsistent, which is surprising because Chief Justice Castille wrote the opinion, and his opinions are always very well written.

The case stands for two principals, first whether the issue of gradation under 6106 is for sentencing, and second whether anyone can be otherwise eligible in Philadelphia County, making 6106 a misdemeanor?

In Bavusa, the defendant had a firearm in Philadelphia without a license to carry. He was charged with 18 Pa.C.S. § 6106: Firearms not to be carried without a license, and with 18 Pa.C.S. § 6108: Carrying firearms on public streets or public property in Philadelphia. He argued the prosecutor had to put on evidence to show that he was not otherwise eligible to have a license to carry, otherwise, he could only be found guilty of misdemeanor. The prosecutor argued gradation was for sentencing and since the defendant was charged with 6108, which is an additional crime, he could not, therefore be otherwise eligible, so the issue was moot. The Court ruled for the Commonwealth on both issues.

The real issue lies within the statute in 6106. The crime is usually a felony, but can become a misdemeanor if the person would have been able to get a license to carry if they had applied for the license. When the situation exists, we call the person “otherwise eligible.” In the statute the language is clear:

(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.

People who are otherwise eligible are described in 18 Pa.C.S. § 6109: Licenses(e) Issuance of license:

(1) A license to carry a firearm shall be for the purpose of carrying a firearm concealed on or about one’s person or in a vehicle and shall be issued if, after an investigation not to exceed 45 days, it appears that the applicant is an individual concerning whom no good cause exists to deny the license. A license shall not be issued to any of the following:
(i) An individual whose character and reputation is such that the individual would be likely to act in a manner dangerous to public safety.
(ii) An individual who has been convicted of an offense under the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act. [FN1]
(iii) An individual convicted of a crime enumerated in section 6105.
(iv) An individual who, within the past ten years, has been adjudicated delinquent for a crime enumerated in section 6105 or for an offense under The Controlled Substance, Drug, Device and Cosmetic Act.
(v) An individual who is not of sound mind or who has ever been committed to a mental institution.
(vi) An individual who is addicted to or is an unlawful user of marijuana or a stimulant, depressant or narcotic drug.
(vii) An individual who is a habitual drunkard.
(viii) An individual who is charged with or has been convicted of a crime punishable by imprisonment for a term exceeding one year except as provided for in section 6123 (relating to waiver of disability or pardons).
(ix) A resident of another state who does not possess a current license or permit or similar document to carry a firearm issued by that state if a license is provided for by the laws of that state, as published annually in the Federal Register by the Bureau of Alcohol, Tobacco and Firearms of the Department of the Treasury under 18 U.S.C. § 921(a)(19) (relating to definitions).
(x) An alien who is illegally in the United States.
(xi) An individual who has been discharged from the armed forces of the United States under dishonorable conditions.
(xii) An individual who is a fugitive from justice. This subparagraph does not apply to an individual whose fugitive status is based upon nonmoving or moving summary offense under Title 75 (relating to vehicles).
(xiii) An individual who is otherwise prohibited from possessing, using, manufacturing, controlling, purchasing, selling or transferring a firearm as provided by section 6105.
(xiv) An individual who is prohibited from possessing or acquiring a firearm under the statutes of the United States.

The Court in Bavusa held that if you are convicted of 6108, Carrying firearms on public streets or public property in Philadelphia, you are thereby not otherwise eligible because you are violating 6109(1)(viii). This has the effect of making anyone who possesses a gun illegally in Philadelphia automatically not eligible, and therefore the person must be guilty of the felony and not the misdemeanor. It is illogical that all arrests in Philadelphia for gun cases are automatically felonies, where in the rest of the state you would be guilty of a misdemeanor, and this result was the intent of the general assembly at the time they passed the law.

As an aside, I also question the holding in light of BlakelyApprendiAlleyne, and Booker, whether this opinion is still good law, but thats for another post. Though Apprendi was decided before Bavusa. 

Brian J. Zeiger, Esquire, is an experienced and successful criminal defense and civil rights attorney. He is a seasoned trial lawyer with significant experience before juries and judges. Brian understands civil rights cases, including Taser, Wrongful Death, Excessive Force, Police Brutality, Police Misconduct, Malicious Prosecution, Monell Claims, Sexual Assault, Prisoner’s Rights, Time Credit, Medical Malpractice, and Medical Indifference.