At trial, the commonwealth requested an instruction regarding the presumption set forth in Section 6104 of the Uniform Firearms Act. Unlike Kelly, where the court instructed the jury that the presumption was mandatory, I instructed the jury in Hall that the inference was permissive. (At the time I gave the instruction in Hall, Kelly had not been decided; however, as a result of a discussion with one of my colleagues, I was aware of ongoing litigation regarding the statute.)
I instructed the jury as follows: “If you find that the Defendant used a firearm in the commission of either of the counts of aggravated assault and that he had no license to carry that firearm, you may regard that as an item of circumstantial evidence from which you may, if you choose, infer that the defendant intended to commit the crime.”
The Supreme Court, in an opinion authored by Justice Ronald D. Castille, with Justice Sandra Schultz Newman dissenting, affirmed the defendant’s conviction. The court began its analysis with the general rule that an evidentiary device must not undermine the fact finder’s responsibility to find facts beyond a reasonable doubt. See Ulster County v. Allen, 442 U.S. 140 (1979); Commonwealth v. Kelly, 555 Pa. 382 (1999). The court goes on to hold that because permissive inferences are less restrictive than mandatory presumptions, the due process test is less demanding. The defendant must show that the inference as applied to him, taking into account the totality of the circumstances, worked to deny him a fair trial. The court cites the U.S. Supreme Court’s analysis in Ulster County:
“Because this permissive [inference] leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof, it affects the application of the ‘beyond a reasonable doubt’ standard only if, under the facts of the case, there is no rational way the trier could make the connection permitted by the inference. For only in that situation is there any risk that an explanation of the permissible inference to a jury, or its use by a jury, has caused the presumptively rational fact finder to make an erroneous factual determination,” Castille wrote.
In considering whether there was a rational relationship between the device and the mens rea of the crimes charged, the court held that non-licensure suggests the stealth by which criminal objectives are furthered. The defendant testified that he purchased the gun on the street, stashed it in an alley, retrieved it, and shot at a man named “Wocoward.” The defendant denied shooting at the police sergeant. The sergeant testified that the defendant pointed the gun at him and shot in his direction. As applied under these facts, the court concluded that the permissive inference did not interfere with the defendant’s right to a fair trial.
In her dissent, Newman points out that although I gave the instruction as a permissive inference, the statute itself to this day creates a mandatory presumption. Moreover, she concludes that there is no rational relationship between the act of carrying an unlicensed firearm and the elements of aggravated assault, even when the instruction is given as a permissive reference. As the majority points out, however, licensure under the Pennsylvania Uniform Firearms Act connotes more than mere registration. It connotes concealment or stealth, as well. A license is not required to possess or even use a firearm, but to carry a firearm concealed on one’s person, in an automobile, or on the streets of a first class city (i.e. Philadelphia). In a word, the statute proscribes what is commonly referred to on the street as “packing.” Is it so much of a stretch to consider “packing” an unlicensed firearm as but one piece of circumstantial evidence of a defendant’s intent? The Hall majority held that it is not.
Cautionary Language
After studying the majority and dissenting opinions, I would recommend that further cautionary language be included in the instruction. First, I would recommend that the following sentences be added to the instruction:
“It is for you to determine what weight you will give the inference. Evidence of non-licensure alone is not sufficient to prove that the defendant intended to commit the crime of —.”
While the Hall court approved an instruction which did not include this language, it did so taking into account the totality of the circumstances in the case, including the testimony of the police sergeant that he observed the defendant point the firearm in his direction and shoot at him. I’m not sure the court would have approved of the instruction as given (albeit as a permissive inference) if the sergeant had testified that he heard the gun discharge as he chased the defendant, but did not observe the defendant point the gun in his direction. I believe the added language, which I suggest, is consistent with the court’s reasoning in Hall and answers some of the concerns raised by Newman in her dissent.
I would also suggest that the following additional language be added to the instruction approved in Hall:
“If you find that the defendant had no license to carry a firearm concealed on his person or in an automobile [or on the streets of Philadelphia] —.”
Under Pennsylvania’s Uniform Firearms Act, a license is not required to purchase, possess or even use a firearm. A license is required to carry a firearm concealed on one’s person or in an automobile (Section 6106) or on the public streets or public property in the city of Philadelphia (Section 6108). It would seem to me, therefore, that the presumption would not apply in a case where there is no evidence of concealment. Care should also be taken that none of the exemptions enumerated in Section 6106(g) apply.
If I were charged to draft a model instruction it would look something like this:
“If you find that the defendant used a firearm in committing [attempting to commit] ____________ [list appropriate crime(s) from Section 6105] and that he (she) did not have a license to [carry the firearm concealed on his person, or in an automobile or on the streets of Philadelphia], you may regard that as circumstantial evidence on the basis of which you may, if you choose, conclude that the defendant intended to commit [the offense or these offenses]. It is for you to determine what weight you will give the inference. Evidence of non-licensure alone is not sufficient to prove that the defendant intended to commit the offense(s).”
While the Hall court approved an instruction which did not include the additional language, remember that it did so taking into account the totality of the circumstances in that case, including the testimony of the sergeant that he observed the defendant discharge the firearm in his direction.
Finally, under the Hall analysis, I can envision situations where a trial judge might properly refuse to give the instruction at all. If, taking into account the totality of the evidence in a particular case, the court concluded that the inference set forth in the instruction unfairly interfered with the duty of the jury to find the facts beyond a reasonable doubt; then, in my opinion, the court may properly refuse to give the instruction.
I also recommend that the Legislature amend Section 6104 in a manner consistent with Kelly. An instruction based on the current statute would be costly per se error.
