J-A31002-17

2018 PA Super 198

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

DARREN MONTGOMERY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 251 EDA 2017

Appeal from the Order December 7, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): MC-51-CR-0014901-2016

BEFORE: PANELLA, J., OLSON, J., and STEVENS, P.J.E.

OPINION BY PANELLA, J. FILED JULY 05, 2018

The Commonwealth of Pennsylvania appeals1from the order affirming 

the dismissal of the charge of carrying a firearm without a license against 

Darren Montgomery and denying the Commonwealth permission to re-file the 

charge. The Commonwealth claims it presented sufficient evidence that 

Montgomery had concealed a firearm on his person for the charge to be bound 

over for trial. We agree, and thus reverse and remand.

The Commonwealth charged Montgomery with violations of 18 Pa.C.S.A. 

§ 6106, carrying a firearm without a license, and § 6108, carrying a firearm 

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 Former Justice specially assigned to the Superior Court.

1

In its notice of appeal, the Commonwealth certified that the dismissal of the 

carrying a firearm without a license charge substantially handicaps its 

prosecution. We therefore have jurisdiction over this appeal. See Pa.R.A.P. 

311(d).
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on public streets in Philadelphia. After a preliminary hearing, the municipal 

court found the Commonwealth had not presented a prima facie case of 

violating § 6106. The court bound the § 6108 charge over for trial.

The Commonwealth re-filed the complaint to reinstate the § 6106 

charge. Trial was postponed and a hearing was held on the re-filed complaint.

2

The Commonwealth did not present new testimony, but rested on the 

testimony presented at the previous hearing. The court once again dismissed 

the § 6106 charge, and the Commonwealth filed this timely appeal.

“At the preliminary hearing stage of a criminal prosecution, the 

Commonwealth need not prove the defendant’s guilt beyond a reasonable

doubt, but rather, must merely put forth sufficient evidence to establish a 

prima facie case of guilt.” Commonwealth v. Karetny, 880 A.2d 505, 513-

514 (Pa. 2005) (citation omitted). The Commonwealth establishes a prima 

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2 Under the Rules of Criminal Procedure, the Commonwealth had the power 

to re-file the complaint “with the issuing authority who dismissed” the § 6106 

charge. See Pa.R.Crim.P. 544(A); Pa.R.Crim.P. 1003(E)(1) (providing that 

preliminary hearings in Philadelphia municipal court be conducted, with 

exceptions not here relevant, in conformance with Pa.R.Crim.P. 544). The 

Commonwealth had the option of filing a motion requesting any subsequent 

preliminary hearing be held in front of a different issuing authority. See 

Pa.R.Crim.P. 544(B).

 After the complaint was re-filed, this case retained its municipal court docket 

number, and the hearing notices were captioned in the municipal court. There 

is no indication the Commonwealth filed a motion requesting the hearing be 

held by a different issuing authority. However, a judge of the Philadelphia 

Court of Common Pleas held the second hearing. No party has objected to this 

procedure. 
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facie case when it presents evidence that the defendant violated a criminal 

statute. See id., at 514.

We review an order quashing a criminal charge for an error of law. See 

id., at 513. As such, we take the evidence presented by the Commonwealth 

as true. See id., at 514. We merely determine whether the facts presented 

by the Commonwealth warrant a trial on the merits of the charge. See id.

This case turns on the issue of whether a firearm tucked into a waistband 

so that its handle is visible is “concealed.” Section 6106 prohibits an 

unlicensed person from carrying a firearm “concealed on or about his person, 

except in his place of abode or fixed place of business.” The Commonwealth 

must establish that every element of this crime, including concealment, was 

done intentionally, knowingly, or recklessly. See Commonwealth v. Scott, 

176 A.3d 283, 291 (Pa. Super. 2017). 

At the preliminary hearing, the Commonwealth presented the testimony 

of police officer Robert McCuen. Officer McCuen testified that he saw 

Montgomery “messing with” what he believed to “the handle of a gun in his 

waistband.” N.T., Preliminary Hearing, 8/15/16, at 5. He could not see the 

entire gun, just the handle. See id., at 7.

Montgomery walked into a nearby store. See id., at 6. Officer McCuen 

stopped his car in front of the store. See id. And he watched as Montgomery 

walked back out of the store. See id. After spotting Officer McCuen, 
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Montgomery turned around and walked back into the store. See id. Officer 

McCuen followed Montgomery into the store and stopped him. See id.

Officer McCuen did not find a firearm on Montgomery, but found one 

several feet away on top of a rack of potatoes. See id., at 7. The only other 

person in the small store was a cook on the other side of a counter from the 

potatoes. See id., at 7-8.

In quashing the § 6106 charge, the court relied upon Commonwealth 

v. Williams, 346 A.2d 308 (Pa. Super. 1975). There, Williams was seen firing 

a gun at a passing car. See id., at 309. After the car turned a corner, Williams 

walked towards a witness with the gun at his side. See id. As he approached 

the witness, he “began to spin the gun and toss it from one hand to the other.” 

Id. As he walked away, Williams “stuck the gun in his belt.” Id.

The Williams court held “there is no evidence whatsoever as to any 

attempt by appellant to conceal any weapon.” Id., at 310. As a result, the 

evidence was insufficient to sustain a conviction for a violation of § 6106. See 

id.

By contrast, the Commonwealth argues this case is controlled by our 

Supreme Court’s subsequent decision in Commonwealth v. Scott, 436 A.2d 

607 (Pa. 1981) (“Scott I”). There, two witnesses “saw appellant pull from his 

waistband something that looked like a gun.” Id., at 608. The Supreme Court 

held “the testimony of the two Commonwealth witnesses ... is sufficient to 

sustain the jury’s conclusion that appellant had, in fact, concealed the 
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weapon.” Id., at 609. The Court, in reaching its decision, did not reference 

Williams.

While Scott I and Williams appear to be in conflict, we conclude this 

Court’s recent decision, also captioned Commonwealth v. Scott, 176 A.3d 

283 (Pa. Super. 2017) (“Scott II”), reveals a possible distinction. There, the 

appellant argued he had not intentionally concealed a firearm on his person. 

See id., at 290. This Court held that § 6106 was not a strict liability statute, 

and thus, the Commonwealth was required to prove the defendant had acted 

“intentionally, knowingly or recklessly with respect to each element” of the 

crime. Id., at 291 (internal quotation marks and citations omitted).

Viewed in the context provided by Scott II, application of § 6106 is 

straightforward. Pursuant to Scott I, any concealment, even partial, is 

sufficient to satisfy the concealment element of the crime. However, pursuant 

to Scott II, this does not constitute the entirety of the Commonwealth’s 

burden; it must still prove the concealment was, at the very least, reckless. 

Thus, in Williams, the evidence was insufficient as the appellant visibly 

brandished and fired the gun in front of witnesses. There was no evidence his 

placement of the gun in his waistband was anything more than a negligently 

convenient carrying method. To the extent language in Williams is contrary 

to this interpretation, we recognize it was implicitly overruled by Scott I.

Turning to the application of this framework to this case, it is clear, 

under Scott I, the Commonwealth presented sufficient evidence of 
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concealment—the firearm was tucked into Montgomery’s waistband with only 

the handle visible.

Also, the evidence is sufficient to establish Montgomery knowingly 

concealed it there. Officer McCuen testified that Montgomery turned around 

when he saw a police officer, and walked into a nearby store. When Officer 

McCuen caught up to Montgomery, the gun had been placed on a nearby rack. 

This evidence is sufficient to allow a finder of fact to conclude Montgomery 

was attempting to conceal the firearm from observation. 

As a result, we conclude the court erred in quashing the § 6106 charge. 

We therefore reverse and remand for further proceedings.

Order reversed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/5/2018