J-A14012-22

2022 PA Super 162

COMMONWEALTH OF PENNSYLVANIA

v.

ERIC WARREN BIEBER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1630 MDA 2021

Appeal from the Judgment of Sentence Entered August 27, 2021

In the Court of Common Pleas of Tioga County Criminal Division at 

No(s): CP-59-CR-0000331-2017

BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*

OPINION BY BENDER, P.J.E.: FILED: SEPTEMBER 22, 2022

Appellant, Eric Warren Bieber, appeals from the judgment of sentence 

of time-served1to 23 months’ incarceration, imposed after a jury convicted 

him of carrying a firearm without a license, 18 Pa.C.S. § 6106(a). After careful 

review, we vacate Appellant’s judgment of sentence and remand for a new 

trial. 

Appellant was initially “charged in a 21-count information with four 

counts of aggravated assault, four counts of terroristic threats, four counts of 

simple assault, four counts of reckless endangerment, four counts of 

harassment[,] and one count of carrying firearms without a license.” 

Commonwealth v. Bieber, No. 904 MDA 2019, unpublished memorandum 

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Appellant was credited with 176 days that he served in pre-trial detention. 

Sentencing Order, 8/27/21, at 1.
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at 1-2 (Pa. Super. filed July 23, 2020). At his first trial in 2019, Appellant 

acted pro se. Id. at 5. “The jury found Appellant not guilty of all felony and 

misdemeanor charges except the firearms charge. The judge found Appellant 

guilty of the four summary offense charges of harassment.” Id. On appeal, 

Appellant successfully argued that he was entitled to a new trial due to a 

defective waiver-of-counsel colloquy. Id. at 12.

At his second trial held on June 2, 2021,2the subject of the instant 

appeal, Appellant was represented by counsel, Peter T. Campana, Esq. The 

sole charge before the jury was Appellant’s Section 6106 offense. The primary 

issue at trial was the applicability of the exception to Section 6106 violations 

set forth in Section 6106(b)(9) (hereinafter, the “Sportsman’s Permit 

Exception”). At trial, the Commonwealth’s evidence established that, on 

August 2, 2017, Appellant was driving with his then-girlfriend, Billie Jo Caffo 

(“Caffo”), as a passenger when police effectuated a vehicle stop.

3

 N.T. Trial, 

6/2/21, at 69, 76. Police removed Appellant and Caffo from the vehicle, at 

which time they observed a handgun in plain view on the floor on the driver’s 

side of the car. Id. at 76-77. Police also discovered in plain view a holster, a 

magazine containing eight rounds of ammunition (not inside the handgun), 

____________________________________________

2 We note that parts of the transcript mistakenly report the trial as having 

occurred on April 12, 2021.

 

3 The basis for the stop was related to the offenses for which Appellant was 

acquitted at his first trial. 
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and one loose round. Id. at 78, 83. The handgun did not have any rounds in 

the chamber. Id. at 93. 

Caffo initially told police that the gun was not loaded, a statement she 

later claimed was a lie when she testified at trial. Id. at 72. At trial, however, 

she indicated that when the police stopped Appellant’s vehicle, she heard 

several clicks and the sound of something hitting the floor. Id. at 70. Caffo 

also stated that Appellant then instructed her not to tell police that the gun 

had been loaded. Id.

Sergeant Craig Wharton of the Pennsylvania State Police testified that 

Appellant once possessed a license to carry a concealed firearm (hereinafter 

“carry-concealed permit”), but that it had been revoked in 2014. Id. at 99. 

Nevertheless, Sergeant Wharton also indicated that, at the time of the stop, 

Appellant possessed a Pennsylvania Sportsman’s Firearm Permit.4 Id. Over 

Appellant’s objection, Sergeant Wharton testified that he did not believe the 

Sportsman’s Permit Exception applied because he surmised no evidence that 

Appellant “was doing any of the activities” that “a Sportsman’s Permit allows 

him to do.” Id. at 102. Sergeant Andrew Adams of the Westfield Borough 

Police Department, and Trooper Justin Millard of the Pennsylvania State Police, 

also provided testimony for the Commonwealth regarding the stop. Id. at 74-

93. 

____________________________________________

4 See 18 Pa.C.S. § 6106(c). 
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Finally, Frank Levindoski, Sheriff of Tioga County, took the stand for the 

Commonwealth. Sheriff Levindoski administered carry-concealed permits for 

Tioga County. Id. at 108. He testified that citizens who possess carryconcealed permits are allowed to carry firearms concealed on their person, 

and/or loaded in their vehicle. Id. He further stated that, absent a carryconcealed permit, persons are not permitted by law to transport a loaded 

firearm in their vehicle. Id. at 109-10. The bulk of Sheriff Levindoski’s 

remaining testimony, on both direct- and cross-examination, consisted of him

reading statutory definitions into the record, and opining as to their meaning 

in the context of this case, and in particular with respect to his understanding 

of the ‘proper’ manner of transporting a firearm in a vehicle under 

Pennsylvania law. Id. at 110-30. Over Appellant’s objection, Sheriff 

Levindoski testified regarding his interpretation of 18 Pa.C.S. § 6106.1, 

despite the fact that the Commonwealth did not charge Appellant with that 

offense. 

Appellant then testified in his own defense, indicating that on the date 

of the vehicle stop, he possessed a fishing license, a hunting license, and a 

sportsman’s firearm license, which were collectively admitted into evidence 

without objection. Id. at 131-32. He admitted ownership and possession of 

the firearm discovered by police. Id. at 133. He indicated that, at the time 

of the stop, he intended to go fishing after he dropped Caffo off at home. Id.

at 133-34. He further stated that there were fishing poles and a tackle box in 
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the vehicle, but that police did not search the areas of the car where they 

were located. Id. at 134. 

In their closing arguments to the jury, the parties essentially agreed 

that the Commonwealth had proven the basic elements of a Section 6106

violation, and that the only issue for the jury to decide was whether the 

Sportsman’s Permit Exception applied. Appellant’s defense counsel argued 

that the Sportsman’s Permit Exception applied based on Appellant’s testimony 

that he was on his way to fish when his plans were interrupted by the domestic 

dispute with Caffo that led to the vehicle stop. Id. at 147. The 

Commonwealth argued that the Sportsman’s Permit Exception did not apply, 

inviting the jury to find Appellant’s testimony regarding his intent to go fishing 

as not credible, and further asking them to rely on Sherriff Levindoski’s

testimony that Appellant was not permitted to have a loaded firearm in his 

vehicle without a concealed carry license unless he was an officer of the law. 

Id. at 150.

The jury found Appellant guilty of violating Section 6106. On August 

20, 2021, the trial court sentenced Appellant as stated above. Appellant filed 

a timely post-sentence motion on August 30, 2021, seeking, inter alia, unitary 

review of ineffective assistance of counsel (“IAC”) claims on direct appeal. 

The trial court held a hearing on October 29, 2021, to address the postsentence motion, but it did not conduct fact-finding with respect to Appellant’s 

IAC claims, nor did the court entertain argument on the merits of those claims. 

By order dated November 19, 2021, the trial court denied the post-sentence 
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motion, which included the court’s reasoning for denying unitary review, and 

did not address the merit of the IAC claims. See Order, 11/19/21, at 1-5. 

Appellant filed a timely notice of appeal, and a timely, court-ordered 

Pa.R.A.P. 1925(b) statement. The trial court issued its Rule 1925(a) opinion 

on February 17, 2022. Appellant now presents the following questions for our 

review:

[1.] Did the trial court err in denying [Appellant]’s request to 

waive PCRA[5]review?

[2.] Whether trial counsel was ineffective in failing to object to 

improper legal opinion testimony by Sheriff Levindoski 

concerning his belief regarding the definition of a weapon 

being loaded even if not physically loaded?

[3.] Whether trial counsel was ineffective in failing to object to 

improper legal opinion testimony by Sheriff Frank 

Levindoski regarding the proper way to transport a firearm 

in a vehicle?

[4.] Did the trial court err in declining to grant a new trial where 

the Commonwealth elicited legal opinion testimony from a 

Pennsylvania State Police Sergeant concerning his 

interpretation and the applicability of the Sportsman’s 

Permit?

[5.] Did the trial court err in declining to grant a new trial where 

the Commonwealth offered testimony from Sheriff 

Levindoski concerning his legal interpretation of 18 Pa.C.S. 

§ 6106.1 and the prohibitions regarding the carrying of a 

loaded pistol?

Appellant’s Brief at 10. 

Appellant’s claims are somewhat interrelated. He argues that the 

Commonwealth elicited inadmissible legal opinion testimony from Sergeant

____________________________________________

5 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-46.
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Wharton and Sheriff Levindoski. In his fourth and fifth issues, Appellant raises

claims based upon objections made by defense counsel at trial. Appellant 

argues in his second and third claims that his trial counsel was ineffective for 

failing to raise appropriate objections to ostensibly inadmissible, legal-opinion

testimony beyond the objections addressed in his fourth and fifth claims. 

Finally, in his first claim, Appellant asserts that the trial court erred by refusing 

to permit Appellant to raise these IAC claims for direct appellate review in 

accordance with Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013).

Section 6106 and the Sportsman’s Permit Exception

Initially, we begin our analysis by addressing the Sportsman’s Permit 

Exception to Section 6106 violations, as it is undisputed that the applicability 

of that exception was effectively the sole issue for the jury to decide in this 

case in determining Appellant’s guilt. Section 6106 is defined, in pertinent 

part, as follows:

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

to:

***

(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. 

Thus, as is relevant in this case, Section 6106 generally prohibits, inter 

alia, the carrying of a firearm in a vehicle without a carry-concealed permit. 

18 Pa.C.S. § 6106(a)(1). A violation of Section 6106 is graded as a thirddegree felony, unless the defendant is “otherwise eligible to possess a valid”

carry-concealed permit, in which case the offense is graded as a first-degree 

misdemeanor. 18 Pa.C.S. § 6106(a)(2).6 Numerous exceptions to the 

prohibition defined in Section 6106(a) are set forth in Section (b) of the 

statute. See 18 Pa.C.S. § 6106(b). The Sportsman’s Permit Exception 

provides that persons licensed to “hunt, take furbearers[,] or fish” in 

Pennsylvania are not subject to the prohibition set forth in Section 6106(a), 

provided that the licensed individuals are “actually” engaged in, or in transit 

to or from, the activities for which they are licensed. 18 Pa.C.S. § 6106(b)(9). 

Some of the exceptions set forth in Section 6106(b) apply only to unloaded 

____________________________________________

6 Appellant’s sentencing order indicates that he was convicted of the

misdemeanor grading of Section 6106. Sentencing Order, 8/20/21, at 1 (filed 

on 8/27/21). 
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firearms.

7

 The Sportsman’s Permit Exception is not one of those 

exceptions. Nevertheless, an entirely separate statute, Section 6106.1, 

prohibits carrying a loaded firearm in vehicle. 18 Pa.C.S. § 6106.1.8 

Unitary Review under Holmes

In Appellant’s first claim, he contends that the trial court erred in 

denying his request to litigate his IAC claims on direct appeal. Appellant’s 

Brief at 22-23. Since our Supreme Court’s decision in Commonwealth v. 

Grant, 813 A.2d 726 (Pa. 2002), abrogated on other grounds, 

Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), it has been the 

general rule that IAC claims may only be raised in PCRA proceedings, subject 

to a few limited exceptions. Holmes, 79 A.3d at 563. In Holmes, our 

Supreme Court limited these exceptions to two categories of cases

(hereinafter “Holmes exceptions”): First, the Holmes Court recognized an 

exception “where a discrete claim (or claims) of trial counsel ineffectiveness 

____________________________________________

7 For example, Section 6106(b)(4) provides an exception for 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.” 

18 Pa.C.S. § 6106(b)(4) (emphasis added). Likewise, the exception set forth 

in Section 6106(b)(8), pertaining to transportation of a firearm related to its 

purchase, sale, or repair, only applies if the firearm “is not loaded[.]” 18 

Pa.C.S. § 6106(b)(8) (emphasis added).

 

8 Section 6106.1 is also subject to several of the same exceptions that apply 

to Section 6106. See 18 Pa.C.S. § 6106.1(a) (“The provisions of this section 

shall not apply to persons excepted from the requirement of a license to carry 

firearms under section 6106(b)(1), (2), (5) or (6)....”). However, there is no 

Sportsman’s Permit Exception to Section 6106.1 offenses. Id.

 
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is apparent from the record and meritorious to the extent that immediate 

consideration best serves the interests of justice[.]” Id. 

Second, with respect to other cases and claims, ... where the 

defendant seeks to litigate multiple or prolix claims of counsel 

ineffectiveness, including non-record-based claims, on postverdict motions and direct appeal, we repose discretion in the trial 

courts to entertain such claims, but only if (1) there is good cause 

shown,1 and (2) the unitary review so indulged is preceded by the 

defendant’s knowing and express waiver of his entitlement to seek 

PCRA review from his conviction and sentence, including an 

express recognition that the waiver subjects further collateral 

review to the time and serial petition restrictions of the PCRA.

1 ... [I]n short sentence cases[,] the trial court’s assessment 

of good cause should pay particular attention to the length 

of the sentence imposed and the effect the length of the 

sentence will have on the defendant’s realistic prospect to 

be able to avail himself of collateral review under the PCRA.

Id. at 563–64. 

Seeking relief under the second Holmes exception, Appellant argued in 

his timely-filed post-sentence motion that the short duration of his remaining 

sentence provided ‘good cause’ to litigate his IAC claims on direct appeal. 

Post-Sentence Motion, 8/27/21, at 2 ¶ 13 (unnumbered pages). Appellant 

also sought to expressly waive his future PCRA rights in accordance with the 

requirements outlined in Holmes. Id. at 2-3 ¶¶ 13-20. Appellant then 

provide a brief description of the IAC claims he intended to pursue if his 

request for unitary review was granted. Id. at 3 ¶¶ 21-23. 

Notably, in order to be eligible for relief under the PCRA, a petitioner 

must plead and prove, inter alia, that he is “currently serving a sentence of 

imprisonment, probation or parole” for the conviction from which he seeks 
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relief. 42 Pa.C.S. § 9543(a)(1)(i). The “requirements set forth in [S]ection 

9543 establish only a petitioner’s eligibility for post-conviction relief, and do 

not implicate the PCRA court’s jurisdiction to act on a petition.” 

Commonwealth v. Fields, 197 A.3d 1217, 1223 (Pa. Super. 2018) (en 

banc). Nevertheless, “our Supreme Court has held that even if a petitioner is 

serving a sentence when a PCRA petition is filed, the petitioner cannot obtain 

relief under the PCRA once the sentence has expired.” Commonwealth v. 

Auchmuty, 799 A.2d 823, 825 (Pa. Super. 2002) (citing Commonwealth v. 

Ahlborn, 699 A.2d 718 (Pa. 1997)). 

In the order denying Appellant’s post-sentence motion, the trial court 

denied Appellant’s attempt to invoke the second Holmes exception under the 

rationale that the time for Appellant to file a direct appeal had already 

expired.9 See Order, 11/19/21, at 3. In its Rule 1925(a) opinion, however, 

the trial court acknowledged its reasoning for denying Appellant’s postsentence motion was erroneous. See Trial Court Opinion (“TCO”), 2/17/22, 

at 4. Contrary to its analysis in the order denying Appellant’s post-sentence 

motion, the period for Appellant to file a timely notice of appeal did not end 

until 30 days after the court issued its order denying Appellant’s post-sentence 

motion. See Pa.R.Crim.P. 720(A)(2).

____________________________________________

9 Thus, the court rejected Appellant’s argument that his short sentence was 

an impediment to obtaining review of his IAC claims under the theory that,

because Appellant ostensibly could no longer file a direct appeal, his only 

option at that point was to immediately proceed to collateral review by filing 

a PCRA petition, wherein he could raise his IAC claims. 
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Nevertheless, in its Rule 1925(a) opinion, the trial court offered

alternative analyses in support of its decision to deny Appellant the 

opportunity to litigate his IAC claims on direct appeal. Initially, the court found 

that Appellant “executed a knowing and express waiver of entitlement to seek 

PCRA review,” and, accordingly, that “the second prong of the second Holmes

exception” is not at issue in this case. TCO at 10 n.20. 

As to the first prong—whether there was good cause shown to conduct 

unitary review—the trial court conceded that “Appellant’s appeal pertaining to 

issues four and five may not be decided until approximately December 2022.” 

Id. at 10. The trial court nevertheless “believes there would still be sufficient 

time to review and dispose of Appellant’s PCRA [petition], if any, but 

acknowledges that it would be a closer call than previously analyzed given 

proper consideration of the pending appeal.” Id. The court made that 

determination under the understanding that Appellant’s term of parole is set 

to expire “on January 26, 2023[.]” Id. at 10 n.21.

We are compelled to reject the trial court’s ambitious yet ultimately 

unrealistic timeline because, as the Holmes Court advised, when a defendant 

seeks to show “good cause” for unitary review based on the short length of 

his sentence, the trial court is obligated to “pay particular attention to the 

length of the sentence imposed and the effect the length of the sentence will 

have on the defendant’s realistic prospect to be able to avail himself of 

collateral review....” Holmes, 79 A.3d at 564 n.1 (emphasis added). The 

likelihood that Appellant’s direct appeal would be fully resolved before 
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December of 2022 is by itself an ambitious guess. Given that date is less than

four months away from the date of this decision, it is not a realistic timetable

should this Court be required to reach a decision following a filing for 

reconsideration of our decision by a party, nor does it afford much time to 

review this matter should either party file a petition before the Pennsylvania 

Supreme Court. 

In any event, even assuming Appellant’s direct appeal were to conclude 

by December of 2022, and assuming he immediately filed a PCRA petition

thereafter, it is even more unrealistic to believe that PCRA review could be 

meaningfully obtained before Appellant’s parole expires on January 26, 2023. 

The lower court perhaps mistakes meaningful collateral review of Appellant’s 

IAC claims with its willingness and ability to act swiftly in holding an IAC 

hearing and then reaching a fair conclusion in this case before January 26, 

2023. Indeed, we do not doubt that the lower court could, in fact, move with 

the utmost haste. However, that belief neglects to consider Appellant’s 

realistic ability to obtain relief following an adverse decision in the PCRA 

court. Even assuming the PCRA court could reach a decision before 

Appellant’s term of parole expires, his eligibility for relief would expire soon 

thereafter, ultimately depriving Appellant of any opportunity to obtain review

in the appellate courts should the PCRA court deny relief. 

In Commonwealth v. Delgros, 183 A.3d 352 (Pa. 2018), our Supreme 

Court indicated that the Holmes decision “directed trial courts to ‘err on the 

side of favoring the vindication of constitutional rights otherwise susceptible 
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to forfeiture,’ and conveyed confidence that trial courts in short sentence cases 

will recognize these concerns and liberally permit unitary review.” Id. at 361 

(quoting Holmes, 79 A.3d at 578.) It is apparent from the record that, rather 

than erring on the side of the vindication of Appellant’s constitutional right to 

receive meaningful review of claims regarding his Sixth Amendment rights,

and his right to appellate review of such claims, the trial court did not liberally 

permit unitary review, and instead strained to find reasons not to permit it.

Consequently, we conclude that the trial court abused its discretion in 

denying unitary review in the circumstances of this case by erroneously

concluding that Appellant failed to show good cause under the second Holmes

exception. The trial court should have permitted Appellant to raise his IAC 

claims on direct appeal, where the record demonstrates that the remaining 

length of his sentence is too short to afford him a realistic ability to obtain 

meaningful consideration of his IAC claims during collateral review under the 

PCRA.

However, because the trial court also provides some alternative reasons 

for us to affirm its decision, despite its error in the application of Holmes, we 

feel compelled to briefly address those matters. In its Rule 1925(a) opinion, 

the trial court indicates that we should affirm based on several other theories 

that it never offered below in denying unitary review of Appellant’s IAC claims. 

First, the trial court finds that,

[a]s to those ineffective assistance of counsel claims, this [c]ourt 

would have denied relief had it reached the merits. First, 

Appellant neither pled that the allegations of ineffective assistance 
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of counsel were not previously litigated[, n]or waived pursuant to 

42 Pa.C.S.[] § 9543(a)(3). More importantly, however, Appellant 

failed to plead any prong related to the ineffective assistance of 

counsel. Commonwealth v. Keaton, 45 A.3d 1050, 1060-61 

(Pa. 2012). Furthermore, Appellant never discussed any prong at 

the hearing. As pled in paragraphs 21 and 22 of Appellant’s 

Motion filed August 30, 2021, the claims are simply undeveloped.

TCO at 10-11.

However, Appellant argues that,

in its Rule 1925(a) [opinion], the trial court ... conflat[es] the 

requirements of a PCRA petition and PCRA appellate brief with the 

requirements needed to waive PCRA review. See ... [TCO] at 11. 

The trial court ignored that [Appellant]’s post-sentence motion

was not a PCRA petition and was seeking to waive his PCRA rights

— not present argument on the underlying issues in question at 

that time. See ... Delgros, 183 A.3d [at] 362 ... (“Appellant’s 

challenges to trial counsel’s stewardship set forth in post-sentence 

motions are not ‘collateral claims’ subject to the requirements of 

the PCRA.”). Had the trial court granted the PCRA waiver, it could 

have scheduled an evidentiary hearing on the ineffectiveness 

issues and/or requested that [Appellant] submit a brief or 

memorandum of law.

Here, the court did not request, pursuant to Pa.R.Crim.P.

720(B)(2)(a), that [Appellant] present a brief arguing the 

underlying merits of his [IAC] issues before the scheduled 

argument on the PCRA waiver issue. Pointedly, because the trial 

court incorrectly denied [Appellant]’s PCRA[-]waiver request, he 

never was afforded the opportunity to develop arguments on 

those issues. Simply put, the trial court did not schedule a hearing 

on the ineffectiveness issues and the hearing that was scheduled 

was not for the purposes of developing and arguing the merits of 

the claims; rather, it was for the purpose of deciding if [Appellant]

could validly waive PCRA review and to conduct a colloquy.

A trial court cannot erroneously deny PCRA waiver, as it did here, 

and then fault counsel for not arguing the merits of the underlying 

[IAC] claims where the [c]ourt said [Appellant] had to wait until 

PCRA review. The trial court’s belated reasons for denying PCRA 

waiver are no more sound than its original ruling.

***
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The trial court also erroneously insinuated in its Rule 1925(a) 

opinion that [Appellant] did not adequately plead his 

ineffectiveness claims. [TCO] at 11. But this ignores that 

[Appellant]’s post-sentence motion was asking for permission to 

litigate and develop those arguments by waiving PCRA review —

and the [c]ourt erroneously denied that request. 

Appellant’s Brief at 33-36.

We agree with Appellant. His post-sentence motion seeking unitary 

review was not subject to the requirements of the PCRA and, unlike the first 

Holmes exception, the second Holmes exception does not require any inquiry 

into the underlying merit of the IAC claims sought to be raised. Under the 

second Holmes exception, a litigant need only establish good cause shown 

and expressly waive his PCRA rights to obtain unitary review. As discussed 

above, both those prongs were established in this case. Only after Appellant 

demonstrated those two prongs was he then entitled to raise his IAC claims 

on the merits and test those claims at an evidentiary hearing in order to 

resolve factual issues. Neither the trial court nor the Commonwealth cite to 

any case law suggesting that IAC claims must be fully developed for review in 

a post-sentence motion when initially seeking unitary review under the second 

Holmes exception, nor has this Court found any pertinent cases setting forth 

such a requirement. Because the trial court denied Appellant the opportunity 

to have unitary review of his IAC claim on direct appeal, we cannot accept the

court’s post hoc rationale that the claims were insufficiently developed for 

review when the court’s actions themselves deprived Appellant of the 

opportunity to meaningfully develop those claims with further argument 

and/or a hearing.
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Second, the trial court further found that, had it reached the merits of 

Appellant’s IAC claims, it would have denied them for the same rationale it 

used to reject Appellant’s non-IAC claim related to the testimony of Sergeant

Wharton and Sheriff Levindoski.

10

 The court states:

[N]either ineffectiveness allegation would have prejudiced 

Appellant. But for counsel’s error, the outcome of the proceeding 

would have been the same based upon ... harmless error and the 

fact this [c]ourt properly instructed the jury on the law, and the 

jury is presumed to have followed this [c]ourt’s instructions.... 

Thus, because the outcome would not have been different, 

Appellant would necessarily fail to meet the prejudice prong of the 

IAC [test].

Accordingly, this [c]ourt respectfully requests the [Superior] Court 

deny relief regarding alleged errors two and three and sustain the 

verdict. Even if the [c]ourt abused its discretion in denying to 

exercise its discretion to permit unitary review, it would have

denied relief on the merits.

TCO at 11-12.

It is odd that the trial court first asserts that Appellant’s IAC claims were 

insufficiently developed for its review, yet also finds the claims sufficiently 

developed to dismiss them on the merits. Furthermore, the purpose of unitary 

review is to allow an Appellant to raise all his claims, including those typically 

reserved for collateral review, in a single direct appeal. However, because 

Appellant’s non-IAC claims are interrelated and ultimately would entitle him

____________________________________________

10 We note that, to prevail on an IAC claim, the defendant must plead and 

prove by a preponderance of the evidence that: “(1) the underlying legal claim 

has arguable merit; (2) counsel had no reasonable basis for acting or failing 

to act; and (3) the [defendant] suffered resulting prejudice.” 

Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 780 (Pa. Super. 

2015). A failure to prove any prong of the IAC test will defeat an IAC claim. 

Id. 
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to a new trial—the same relief that would be afforded to Appellant should he 

ultimately prevail on those claims on remand—we address those non-IAC 

claims now as a matter of judicial economy. 

Appellant’s Non-IAC Claims

In his fourth issue, Appellant claims that the trial court erred in failing 

to grant a new trial based on Sergeant Wharton’s ostensibly inadmissible 

testimony regarding the applicability of the Sportsman’s Permit Exception to 

Section 6106. In his fifth issue, Appellant asserts that the trial court erred in 

failing to grant a new trial based on Sheriff Levindoski’s testimony regarding 

Section 6106.1. In both cases, Appellant maintains that the court erroneously 

permitted these two law enforcement officers to testify to their legal 

interpretations of Pennsylvania’s firearm laws. According to the trial court, 

both claims were “properly before the [c]ourt for review[,]” indicating that 

Appellant’s contemporaneous objections were timely and sufficiently raised 

the issues presented in Appellant’s Rule 1925(b) statement. TCO at 5. The 

Commonwealth also takes no issue with Appellant’s preservation of these 

claims. 

Our standard of review regarding the admissibility of evidence is well 

settled:

With regard to the admission of evidence, we give the trial court 

broad discretion, and we will only reverse a trial court’s decision 

to admit or deny evidence on a showing that the trial court clearly 

abused its discretion. An abuse of discretion is not merely an error 

in judgment, but an overriding misapplication of the law, or the 

exercise of judgment that is manifestly unreasonable, or the result 
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of bias, prejudice, ill-will or partiality, as shown by the evidence 

of the record.

Commonwealth v. Talbert, 129 A.3d 536, 539 (Pa. Super. 2015) (cleaned 

up). Even when evidence is wrongfully admitted, however, such error is 

subject to harmless error analysis. See Commonwealth v. Hardy, 918 A.2d 

766, 777 (Pa. Super. 2007). 

Furthermore, the Pennsylvania Rules of Evidence provide as follows:

If a witness is not testifying as an expert, testimony in the form 

of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to 

determining a fact in issue; and

(c) not based on scientific, technical, or other specialized 

knowledge within the scope of Rule 702.

Pa.R.E. 701. 

Rule 702 provides that:

A witness who is qualified as an expert by knowledge, skill, 

experience, training, or education may testify in the form of an 

opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized 

knowledge is beyond that possessed by the average layperson;

(b) the expert’s scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the evidence or 

to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the relevant 

field.

Pa.R.E. 702. 

With respect to his fourth issue, Appellant’s trial counsel objected to the 

prosecutor’s asking Sergeant Wharton what, “the Sportsman’s Permit 
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entails?” N.T. Trial at 101. Defense counsel argued that it “was a matter of 

law for the [c]ourt to decide.” Id. The prosecutor responded that he was 

merely attempting to elicit why Sergeant Wharton filed charges when “he 

knew there was a Sportsman’s permit in play[.]” Id. The trial court appears 

to have denied the objection, stating: “Well, the [c]ourt is certainly[] going to 

instruct on it. However, I’ll give the Commonwealth a little latitude here.” Id. 

Sergeant Wharton then testified: “[L]ooking at the definition of the 

crimes code ... it meant [Appellant] had to be in the act of hunting, fishing, 

whatever, or coming there, back, or going to.” Id. at 102. The prosecutor 

then asked Sergeant Wharton if he was “able to determine if [Appellant] was 

doing any of those activities,” to which the officer responded that “[t]here was 

no indication by the incident we were called to, that [Appellant] was doing any 

of the activities [that] a Sportsman’s Permit allows him to do.” Id. 

Appellant asserts this is “nothing short of testimony that [Appellant] was 

guilty of the offense charged.” Appellant’s Brief at 54. He argues that it 

constituted “improper legal opinion testimony ... proving a legal conclusion as 

to the result that the prosecution wanted the jury to reach.” Id. at 57. In its 

Rule 1925(a) opinion, the trial court did not address whether this testimony 

was admissible but, instead, determined that it was harmless error. TCO at 

5. The Commonwealth argues, however, that Sergeant Wharton did not 

provide improper legal opinion testimony. Commonwealth’s Brief at 11. The 

Commonwealth instead contends that:
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Sergeant Wharton was the arresting officer in this case. His 

testimony was an effort to explain what he charged and why. He 

explained that [A]ppellant would need to be actually hunting, 

fishing, trapping, etc.[,] to fall under the exception of carrying a 

loaded firearm in his vehicle. The testimony that there was no 

indication [A]ppellant was doing any of the things a Sportsman’s 

Permit allows him to do was the officer’s observation of the crime 

scene. This was not a legal opinion. This was the arresting 

officer’s testimony based on his investigation.

Id. at 11-12. 

We agree with the Commonwealth. Sergeant Wharton’s testimony 

regarding the Sportsman’s Permit Exception to Section 6106 contained no 

interpretive elements of the law at all. To the extent that he spoke to the 

legal elements of the exception, he merely stated what they are, and did so 

accurately. See 18 Pa.C.S. § 6106(b)(9) (stating that the exception applies 

only if those persons holding a Sportsman’s Permit 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”). Recitation of the pertinent text of the statute does not 

constitute “specialized knowledge” within the meaning of Rule 701(c), as 

nothing in that part of his statement could accurately be construed as an 

opinion, even though Sergeant Wharton did not quote the statute word-forword. He then testified, based on his direct observations at the scene,

regarding the factual question of whether he had seen any evidence that 

corroborated Appellant’s claim that he was going fishing when the vehicle stop 

occurred. That was factual testimony that was “rationally based on the 

witness’s perception[,]” not legal opinion testimony and, therefore, it was
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permissible under Rule 701(a). Thus, we conclude that Appellant’s fourth 

claim is meritless. 

In his fifth claim, Appellant contends that the trial court erred in 

permitting Sheriff Levindoski to “testify to his legal interpretation of [Section] 

6106.1, which was not charged and not at issue.” Appellant’s Brief at 57. 

Again, the trial court failed to address the admissibility of Sheriff Levindoski’s 

at-issue testimony, and instead concluded that any error was harmless. See

TCO at 5-6. In its brief, the Commonwealth does not present any argument 

that the Sheriff’s at-issue testimony was permissible under the rules of 

evidence, and instead argues in support of the trial court’s harmless-error 

analysis. However, the Commonwealth also does not expressly concede that 

Sheriff Levindoski’s testimony regarding Section 6106.1 was inadmissible. 

Despite an utter lack of justification by the trial court or the Commonwealth 

regarding the admission of the Sherriff’s testimony regarding Section 6106.1 

over Appellant’s objection, we will first address its admissibility. 

Sheriff Levindoski was Commonwealth’s final witness at trial. See N.T. 

Trial, 6/2/21, at 107-29. He indicated that he was Sheriff of Tioga County, 

id. at 107, and in that capacity, he administered license-to-carry permits for 

that county, id. at 108. He also asserted that he had specialized training as 

a certified firearms instructor for handguns. Id. Without objection, he 

testified regarding the general rules governing carry-concealed permits in 

Pennsylvania. Id. at 108-12. At one point, he indicated that citizens are not 

allowed to carry a loaded firearm in a vehicle without a carry-concealed
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permit.

11

 Id. at 109-10. The prosecutor then asked Sheriff Levindoski to read 

Section 6106.1 into the record. Id. at 112-13. The prosecutor then asked 

the Sheriff: “I guess, in common terms[,] what is that statute telling us?” Id.

at 113. Appellant’s trial counsel objected to the testimony being elicited by 

the prosecutor. Id. The trial court then stated: “Well, this gentleman cannot 

instruct the jury on matters of law because that is the function of the [c]ourt. 

As a certified firearms instructor, I think he can indicate what his practice is.” 

Id. The prosecutor then asked: “[T]hat statute is specifically saying that you 

can’t have a loaded fire[]arm, and a gun unless. [sic] Okay, what are – as 

you understand as a firearms instructor, what are those exceptions?” Id. at 

113-15. Sheriff Levindoski responded: “I’ll be honest, that – that piece 

[doesn’t] necessarily ... have much to do with being a firearms instructor[,] it 

is completely separate just so we’re clear ... but my interpretation is, unless 

there’s something different in the game law under Title 34 that would make 

you exempt ...[,] this is basically saying, you cannot [carry a loaded firearm 

in a car,] unless you have a Concealed[-]Carry Permit[.]” Id. at 114

(emphasis added).

12

____________________________________________

11 Sherriff Levindoski did not indicate which law rendered this conduct illegal. 

That is, he did not distinguish between Section 6106’s prohibition against

carrying any firearm in a vehicle without a carry-concealed permit—the sole 

criminal charge at-issue in this case—and Section 6106.1’s more specific 

prohibition of carrying a loaded firearm in a vehicle, for which Appellant was 

not charged. 

12 After this exchange, Sheriff Levindoski also testified to his personal 

knowledge (as the administrator of carry-concealed permits in Tioga County) 

(Footnote Continued Next Page)
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Appellant argues that Sheriff Levindoski “should not have been 

permitted to give his legal interpretation of the law. Pointedly, the testimony 

is even more prejudicial where the statute[] in question w[as] not relevant to 

the charge at issue.” Appellant’s Brief at 59. We agree with Appellant. There 

was no legitimate purpose for Sheriff Levindoski to testify to the contents, 

much less his interpretation, of the prohibition against carrying a loaded 

firearm in a vehicle set forth in Section 6106.1. Viewed as a lay witness, his 

opinion testimony regarding the statute was not relevant to his perception of 

events or any facts at issue in the prosecution of a Section 6106 violation

(unlike Sergeant Wharton’s testimony regarding the Sportsman’s Permit 

Exception). See Pa.R.E. 701(a) and (b). Nor could Sheriff Levindoski be said 

to have been testifying as an expert with respect to the meaning or application 

of Section 6106.1. To the extent that the record might be read to show that 

Sheriff Levindoski was admitted as an expert, it was only due to his specialized

training as a certified firearm instructor. However, in response to the 

Commonwealth’s question about his interpretation of Section 6106.1, Sheriff 

Levindoski specifically disavowed that his expertise in that area was relevant 

to his answers regarding Section 6106.1. Thus, his opinion testimony was 

also inadmissible under Rule 702. 

____________________________________________

that Appellant did not possess a carry-concealed permit at the time of the 

vehicle stop. Id. at 115. This appears to be the only testimony provided by 

Sheriff Levindoski that was based on his personal knowledge of factual matters 

that were relevant to Appellant’s charge under Section 6106. 
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Nevertheless, the trial court maintains that the erroneous admission of 

this testimony constituted harmless error:

Here, any error in including the testimony of ... Sheriff ...

Levindoski[ ]regarding his interpretation of [Section] 6106.1 and 

the prohibitions regarding the carrying of a loaded pistol ... w[as]

insignificant compared to the properly admitted evidence that 

established the inapplicability of the affirmative defense of the 

Sportsman’s Permit Exception....

As articulated by Appellant’s counsel in opening argument:

The question before you is going to be, is the exception

applicable to [Appellant]? The exception allowing him to

have the pistol if he has the Sportsman’s Firearm Permit, is 

that exception applicable in this case, and if you find that it 

is then you must find [Appellant] not guilty of the charge.

Specifically, the issue of ... whether the affirmative defense of the

Sportsman’s Permit [Exception] was applicable in this case[,] the 

only exception relied upon by Appellant at trial[,] was a question 

of fact for the jury to decide. Moreover, because the issue of 

whether the exception is applicable is an affirmative defense, it 

was Appellant[‘]s burden to prove [it] by a fair preponderance of 

the evidence.

Therefore, because of the shifting burden and lower standard of 

proof, this [c]ourt does not believe that the properly admitted and 

uncontradicted evidence of guilt need be “so overwhelming and 

the prejudicial effect of the error so insignificant by comparison 

that the error could not have contributed to the verdict.” Instead, 

this [c]ourt’s position is that a lower standard of harmless error 

for affirmative defenses should apply, such as: the uncontradicted 

evidence of guilt need only be overwhelming and the prejudicial 

effect of the error need only be insignificant.

Notwithstanding, this [c]ourt believes there is sufficient evidence 

that the higher standard of harmless error has been met, which is 

sufficient to prove that the error was harmless beyond a 

reasonable doubt. Additionally, this [c]ourt believes that the 

alleged errors did not prejudice Appellant.

Specifically, ... Caffo[] testified that prior to leaving Wellsboro to 

head to her home in Osceola, she and ... Appellant were not in the 
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vehicle at any other point earlier that day. She also testified that 

[she] and ... Appellant were not hunting, fishing, or trapping, nor 

was there any intent of going hunting or fishing when she left 

Wellsboro and got into the vehicle; rather, the intent was to go 

home and there was no mention of going hunting or fishing. [N.T. 

Trial at 5-16.]

Additionally, Sergeant Wharton testified, “There was no indication 

by the incident we were called to, that [Appellant] was doing any 

of the activities in which a Sportsman’s Permit allows him to do.” 

[Id. at 102.]

Lastly, Appellant himself testified that he arrived at [Caffo’s]

around 7:30 [or] 8:00 p.m. with the intent to drop her off and 

then go fishing, but the jury is permitted to reasonably infer 

otherwise given the time that evening and his bias.

Therefore, the inapplicability of [the Sportsman’s Permit 

Exception] was never really in doubt. Frankly, it was not a close 

case.

Moreover, this [c]ourt properly instructed the jury regarding the 

law applicable to this case, and the jury is presumed to have 

followed the court’s instructions. Commonwealth v. Williams, 

245 A.3d 710, 723 (Pa. Super. [] 2021).

Accordingly, this [c]ourt respectfully requests the [Superior] Court 

[d]eny relief ... since any error was harmless.

TCO at 5-8 (some citations, footnotes, and quotation marks omitted). 

Initially, we reject the trial court’s notion that some alternative,

harmless error standard applies to our review of its error in admitting Sheriff 

Levindoski’s at-issue testimony. The trial court cites no authorities suggesting 

that alternative harmless error standards exist under Pennsylvania 

jurisprudence, much less that such a standard would apply in the 

circumstances of this case due to Appellant’s burden to prove the applicability 

of the Sportsman’s Permit Exception by a preponderance of the evidence

below. Our Supreme Court 
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has held that an error may be considered harmless “only if the 

appellate court is convinced beyond a reasonable doubt that 

the error is harmless.” Commonwealth v. Story, ... 383 A.2d 

155, 162 ([Pa.] 1978) [(emphasis added)]. “[A]n error cannot be 

held harmless unless the appellate court determined that the error 

could not have contributed to the verdict. Whenever there is 

a reasonable probability that an error might have contributed to 

the conviction, the error is not harmless.” Id. at 164 [(emphasis 

added)]. In Story, th[e] Supreme Court outlined three scenarios 

under which an error may be deemed harmless, which have been 

summarized in subsequent cases as follows:

Harmless error exists if the state proves either: (1) the error 

did not prejudice the defendant or the prejudice was de 

minimis; or (2) the erroneously admitted evidence was 

merely cumulative of other untainted evidence which was 

substantially similar to the erroneously admitted evidence; 

or (3) the properly admitted and uncontradicted evidence of 

guilt was so overwhelming and the prejudicial effect of the 

error was so insignificant by comparison that the error could 

not have contributed to the verdict.

Commonwealth v. Fulton, ... 179 A.3d 475, 493 ([Pa.] 2018) 

(additional citations omitted).

Commonwealth v. Jones, 240 A.3d 881, 891–92 (Pa. 2020).

With this well-established standard as our guide, we address the trial 

court’s holding that its error was harmless because it was insignificant in 

comparison to the evidence of guilt, and because it properly instructed the 

jury as to the applicable law. For the following reasons, we disagree.

First, we repeat that there is no dispute that the essential issue at trial 

was the applicability of the Sportsman’s Permit Exception. Absent Sheriff 

Levindoski’s inadmissible testimony (and the Commonwealth’s reliance 

thereon), that issue should have turned solely on the factual question of 

whether Appellant was going fishing at the time his vehicle was stopped by 
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police. The trial court construes this matter as “not a close case[,]” TCO at 8, 

but the record does not support a determination that the evidence was 

overwhelming. The issue was, fundamentally, a battle of credibility between 

Appellant and a few of the Commonwealth’s witnesses. The jury, and not the 

trial court, had the sole province to resolve this credibility dispute.13 

Appellant testified that he is an avid outdoorsman, that he intended on 

going fishing on the day of the stop, but that his “day didn’t go as was 

planned.” N.T. Trial at 131-32. He stated that although he was involved in a 

dispute with Caffo, he “was going fishing to unwind afterwards[,]” and that he 

was trying to “get her out of ... [his] vehicle and leave ... to do other things.” 

Id. at 133. He said he intended to take her home before he went fishing. Id.

at 134. He further testified that he had multiple fishing rods in the trunk of 

the vehicle, as well as a tackle box and other items that he would have used 

for that purpose. Id. He stated that the police did not search his trunk. Id. 

He indicated that the police only “checked the driver’s area of the car.” Id. 

Finally, he told the court that he believed he had a right to have the gun in 

the car because he possessed a Sportsman’s Permit. Id.

On cross-examination, Appellant further explained that he intended to 

go fishing that day after dropping off Caffo, but after their dispute began, 

____________________________________________

13 The “fact-finder is free to believe all, part, or none of the evidence, and 

credibility determinations rest solely within the purview of the fact-finder.” 

Commonwealth v. Flor, 998 A.2d 606, 626 (Pa. 2010). Here, the jury, and 

not the trial court, acted as the fact-finder. Thus, we need not afford any 

deference to the trial court’s assessment of the witnesses’ credibility. 
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Caffo refused to leave the vehicle. Id. at 136-37. When asked why he did 

not inform the police of his intent to go fishing at the time of his arrest, he 

stated that he was not “given an opportunity to explain” himself, and that “no 

questions were asked of [him] during the stop.” Id. at 137. 

Caffo testified that she and Appellant had not been fishing that day 

before the vehicle stop, that her intent in getting in the vehicle with Appellant 

was to go home, and that he had not mentioned going fishing. Id. at 71. 

Sergeant Andrew Adams of the Westfield Borough Police Department made 

the traffic stop of Appellant’s vehicle. Id. at 76. He testified regarding his 

discovery of the firearm on the floor on the driver’s side of the vehicle. Id. at 

77. The firearm was in plain view from the outside of the vehicle. Id. at 80. 

He did not take possession of any evidence, but he did take photos of “a black 

handgun, a holster, a bullet, and a magazine.” Id. at 78; see also

Commonwealth’s Exhibit 1. Sergeant Adams’ testimony did not include any 

discussion of his interaction with Appellant beyond removing him from the 

vehicle, cuffing him, and placing Appellant in the rear of a police vehicle. See 

id. at 76. He did not indicate that he had spoken with Appellant or asked him 

any questions. He also did not indicate that he searched any other part of the 

vehicle beyond discovering the firearm on the floor in front of the driver’s seat. 

The prosecutor did not ask Sergeant Adams if he saw any evidence consistent 

with Appellant’s claim that he was going fishing. 

Trooper Justin Millard of the Pennsylvania State Police also testified. Id.

at 81-93. He arrived at the scene after Sergeant Adams had already placed 
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Appellant in custody. Id. at 82. He also observed the firearm, “a holster, a 

magazine with live rounds, and then one loose round in the foot area.” Id. at 

83. He took photos of these items as they were found in the vehicle. Id. at 

84-86; Commonwealth’s Exhibit 2. Trooper Millard did not testify as to any 

communications he had with Appellant. He specifically testified that he did 

not see anything else “of significance” in the vehicle, with the caveat that he 

did not “search the vehicle in any other way” beyond his involvement in 

photographing and then securing the firearm. Id. at 92. He was not asked 

any specific questions about whether he observed anything in the vehicle that 

was consistent or inconsistent with Appellant’s claim that he had intended to 

go fishing that evening before he was stopped by police. 

Finally, Officer Wharton testified.14 He arrived at the scene with Trooper 

Millard. Id. at 96. He testified consistently with the other officers regarding 

the location and condition of the firearm found in Appellant’s vehicle, and to 

the fact that Appellant did not possess a carry-concealed permit, because it 

had been previously revoked. Id. at 97-99. He further testified to the fact 

that Appellant possessed a Sportsman’s Permit. Id. at 101. As discussed 

above, he also stated that “there was no indication by the incident” that 

Appellant “was doing any of the activities in which a Sportsman’s Permit allows 

him to do.” Id. at 102. He was not asked about the scope of his search of 

____________________________________________

14 As noted above, Sheriff Levindoski also testified for the Commonwealth, but 

he was not present for the vehicle stop and, therefore, could not speak to any 

facts in this case relevant to the credibility of Appellant’s claim that he was 

going fishing. 
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the vehicle that led him to this conclusion. He also testified that Appellant 

was required to have a carry-concealed permit “to have [the firearm] loaded 

in the vehicle[.]” Id. at 103. He also stated that Appellant would not need a 

carry-concealed permit to transport the firearm in the vehicle “if [the firearm]

wasn’t loaded.” Id. at 104. 

Given this record, it is certainly the case that the jury was free to 

disbelieve Appellant’s claim that, at the time of the stop, he intended to go 

fishing after dropping off Caffo. We also agree with the trial court and the 

Commonwealth that Caffo’s testimony, coupled with Sergeant Wharton’s 

testimony, if believed by the jury, tended to weigh against Appellant’s 

credibility on that issue. However, the evidence contradicting Appellant’s 

account was not overwhelming. First, Appellant did not testify that he 

intended to take Caffo fishing with him, nor could she fully speak to his intent 

in that regard. Second, none of the officers testified to having searched 

anywhere in the vehicle other than in the location where the firearm was 

found. Thus, Appellant’s claims that he had a tackle box and fishing rods in 

his trunk, and that none of the officers had searched that location, were both 

left uncontradicted by the Commonwealth’s evidence. Third, Appellant’s 

testimony that none of the officers asked him questions about his intent to go 

fishing was also left uncontradicted. Such questions might have led the 

officers to conduct a more thorough search of the vehicle to confirm or refute 

Appellant’s fishing claim. Thus, contrary to the trial court’s characterization—

that the factual question of whether Appellant was in transit to go fishing was 
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not a close case—the record indicates that it was merely a credibility issue for 

the jury to resolve, even if the greater weight of the established facts 

suggested that Appellant’s story was not credible. It certainly was not 

impossible to believe that Appellant intended to go fishing until his plans were 

interrupted by his domestic dispute with Caffo, even if it appeared unlikely to 

the trial court.

15

 If the jury believed Appellant’s story, we see no reason why 

the Sportsman’s Permit Exception would not apply. Moreover, the jury could 

have believed Appellant and concluded that the officers had simply failed to 

confirm or refute his claim because they had not thoroughly searched the 

vehicle or asked Appellant questions relevant to the applicability of the 

Sportsman’s Permit Exception, rather than simply disbelieving their 

testimony. Simply put, the evidence against the applicability of the

Sportsman’s Permit Exception was not overwhelming in relation to the 

evidence for its applicability. 

Most critically, however, the Commonwealth’s explicit reliance on 

Sherriff Levindoski’s inadmissible and irrelevant testimony regarding Section 

6106.1 demonstrates that the error was not harmless. In its closing argument 

to the jury, the prosecutor invoked the Sheriff’s testimony, stating: “[A]nd

you heard Sheriff Levindoski testify that there is no way[,] unless you are a 

police office[r], have a badge of some sort, or have a [carry-concealed] 

____________________________________________

15 If the jury were to believe that Appellant’s plan to go fishing was interrupted 

by that domestic dispute, that would also tend to undermine or deflate the 

strength of the inference that he was lying based on the time of the stop. 
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permit, that you can have a loaded gun in your car.” Id. at 150-51. While 

that statement of the law is technically true (because such conduct is 

prohibited under Section 6106.1), Appellant was not on trial for a violation of 

Section 6106.1, and the Sportsman’s Permit Exception to Section 6106 

contains no caveat for loaded firearms. 

The prosecutor next suggested that Appellant displayed consciousness 

of guilt when he told Caffo to tell the police that the gun was not loaded. Id.

at 151. If the jury had believed Caffo’s testimony that Appellant instructed 

her to lie, it was at least somewhat suggestive of Appellant’s consciousness of 

guilt, which the jury was free to use in questioning Appellant’s credibility. 

However, the prosecutor then put the focus on the factual question of 

whether the firearm was loaded as being dispositive of whether Appellant was

guilty of a violation Section 6106, regardless of whether the jury believed 

Appellant’s fishing claim. See id. at 152 (“Again, we know now that 

[Appellant] was arguing that he was [going] fishing, but it – regardless[,]

it doesn’t matter because the gun is loaded, and even his Sportsman’s 

Permit does not allow him to carry the gun loaded in the vehicle.”)

(emphasis added). Indeed, even on appeal, the Commonwealth continues to 

conflate the prohibition against carrying a loaded firearm in a vehicle under 

Section 6106.1, a matter improperly introduced at trial through Sherriff 

Levindoski’s testimony, with the applicability of the Sportsman’s Permit 

Exception to Section 6106. See Commonwealth’s Brief at 10 (“This case 
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rested on the fact of whether ... the firearm was loaded in the vehicle. The 

Commonwealth provided sufficient evidence to support that element.”). 

As noted above, whether the firearm was loaded or unloaded was not a 

relevant fact for purposes of whether Appellant could avail himself of the 

Sportsman’s Permit Exception to Section 6106. Although carrying a loaded 

firearm in a vehicle is prohibited by Section 6106.1, Appellant was never 

charged and was not on trial for that wholly-distinct offense. We acknowledge 

that the trial court’s instructions to the jury did not misstate the law with 

regard to Section 6106 or the Sportsman’s Permit Exception, but nor did those 

instructions correct the conflation of Section 6106 and Section 6106.1 that 

pervaded Appellant’s trial. See N.T. Trial at 159-60. Under these 

circumstances, we cannot conclude that the admission of Sherriff Levindoski’s

inadmissible and irrelevant legal opinion testimony regarding Section 6106.1 

“could not have contributed to the verdict.” Story, supra. The prosecutor 

invited the jury to decide this case based on that testimony, irrespective of 

Appellant’s claim that he was going fishing. Thus, we are not convinced 

beyond a reasonable doubt that the admission of that testimony was harmless 

error. Appellant is entitled to a new trial.16 

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

Jurisdiction relinquished. 

____________________________________________

16 Consequently, it is unnecessary to remand for further IAC proceedings for 

purposes of unitary review under Holmes, as Appellant cannot obtain greater 

relief in such proceedings beyond a new trial. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 09/22/2022