Legality of Open-Carrying the Non-NFA 14" Mossberg

[USMC3531]

IMHO its worth the $200 tax stamp to eliminate any confusion or legal fees defending how its not a shotgun. we all make our own choices though.

[Gun]

Yeah I'm wondering that as well after reading the POW statute again...it mentions shotguns...but this is not, a shotgun.

The article, from the link in the first post, discusses NFA rules.

In PA Title 18, shotguns are described by length of barrel, and overall length, not characterized by features.

Federal law can be less prohibiting than state law.

[Big-O]

Here's what I read with regard to "firearm":

"Firearm." Any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches. The barrel length of a firearm shall be determined by measuring from the muzzle of the barrel to the face of the closed action, bolt or cylinder, whichever is applicable."

http://www.legis.state.pa.us/cfdocs/...&div=0&chpt=61

Whew! Just that Title 18 Statute was mind dizzying to read. Geez, are we ever under a mountain of laws outling to such detail and minutia what we cannot and better not do or else how long we'll be guests on a steel and concrete cage and monetarily penalized enough to ensure bankruptcy.


"Freedommmmmm"!!! We yell it from the rafters, gotta wonder how real it is sometimes...

[eagleclaw]

I owned a Remington Witness protection shotgun with a 12 in barrel and a similar stock (or lack thereof) that was registered as an AOW ($ 5.00 tax stamp). I found it to be useless. In my opinion if a shotgun doesn’t have a shoulder stock its use is going to be limited. My suggestion will be to get an NFA short barreled shotgun with a shoulder stock. It will cost $200.00 for the stamp but it would be more versatile than the stockless version. Also you don’t have to worry about the gray area that exist with the shockwave tech shotgun.

[bogey1]

§ 908. Prohibited offensive weapons.

(a) Offense defined.--A person commits a misdemeanor of the first degree if, except as authorized by law, he makes repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon.

(b) Exceptions.--

(1) It is a defense under this section for the defendant to prove by a preponderance of evidence that he possessed or dealt with the weapon solely as a curio or in a dramatic performance, or that, with the exception of a bomb, grenade or incendiary device, he complied with the National Firearms Act (26 U.S.C. § 5801 et seq.), or that he possessed it briefly in consequence of having found it or taken it from an aggressor, or under circumstances similarly negativing any intent or likelihood that the weapon would be used unlawfully.

(2) This section does not apply to police forensic firearms experts or police forensic firearms laboratories. Also exempt from this section are forensic firearms experts or forensic firearms laboratories operating in the ordinary course of business and engaged in lawful operation who notify in writing, on an annual basis, the chief or head of any police force or police department of a city, and, elsewhere, the sheriff of a county in which they are located, of the possession, type and use of offensive weapons.

(3) This section shall not apply to any person who makes, repairs, sells or otherwise deals in, uses or possesses any firearm for purposes not prohibited by the laws of this Commonwealth.

(c) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

"Firearm." Any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon.

"Offensive weapons." Any bomb, grenade, machine gun, sawed-off shotgun with a barrel less than 18 inches, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, any stun gun, stun baton, taser or other electronic or electric weapon or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

(d) Exemptions.--The use and possession of blackjacks by the following persons in the course of their duties are exempt from this section:

(1) Police officers, as defined by and who meet the requirements of the act of June 18, 1974 (P.L.359, No.120), referred to as the Municipal Police Education and Training Law.

(2) Police officers of first class cities who have successfully completed training which is substantially equivalent to the program under the Municipal Police Education and Training Law.

(3) Pennsylvania State Police officers.

(4) Sheriffs and deputy sheriffs of the various counties who have satisfactorily met the requirements of the Municipal Police Education and Training Law.

(5) Police officers employed by the Commonwealth who have satisfactorily met the requirements of the Municipal Police Education and Training Law.

(6) Deputy sheriffs with adequate training as determined by the Pennsylvania Commission on Crime and Delinquency.

(7) Liquor Control Board agents who have satisfactorily met the requirements of the Municipal Police Education and Training Law.

(Dec. 20, 1983, P.L.291, No.78, eff. imd.; July 6, 1984, P.L.647, No.134, eff. 90 days; July 11, 1985, P.L.235, No.58, eff. 60 days; Oct. 4, 1994, P.L.571, No.84, eff. 60 days; Nov. 6, 2002, P.L.1096, No.132, eff. 60 days)



2002 Amendment. Act 132 amended subsec. (c).

References in Text. The act of June 18, 1974 (P.L.359, No.120), referred to as the Municipal Police Education and Training Law, referred to in the def. of "police officer," was repealed by the act of December 19, 1996, P.L.1158, No.177. The subject matter is now contained in Subchapter D of Chapter 21 of Title 53 (Municipalities Generally).

Cross References. Section 908 is referred to in section 6105 of this title; section 3304 of Title 5 (Athletics and Sports).

[Ooglar]

I looked into this awhile ago and concluded it's probably legal, but one hell of a gray area to be worth taking a chance. PA specifically prohibts "sawed off shotguns" under 18 inches. If it's a factory 14 inch barrel, is it still "sawed off". I would think not, but again, not worth finding out.

And to be really pedantic, what if I cut a barrel down with a grinder, making a "ground off shotgun"

[SAPPERJoe]

You're going down a bumpy road if you put such a weapon/ firearm/ AOW into use. To try and play the word game with an LEO or a Prosecutor, regardless of the use, is too risky. What is your INTENT?

I am of the opinion that the 14 inch barrel will get you into a jamb, as the court systems (State and Federal) will be to try and make you out to be the Boogeyman.

My NFA items do not become my regular carry or "truck gun" options, especially when there are so many available firearms to fill that purpose.

[bluetrane2028]

Necro thread lives because of new developments.

Saw this on hickock45's channel:

https://www.mossberg.com/category/series/590-shockwave/

Mossberg is now making the Non-NFA "firearm" as a factory model.

Is it still a "prohibited offensive weapon?"

[GunLawyer001]

Read this and see how confident you feel about the Shockwave:

https://scholar.google.com/scholar_c...=2&as_sdt=4,39

Link is dead;

Superior Court of Pennsylvania.

In the Interest of: R.A.F., a Minor v. Appeal of: R.A.F., a Minor
No. 1755 MDA 2015
Decided: September 21, 2016
BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.

R.A.F., a minor, appeals from the August 12, 2015 dispositional order adjudicating him delinquent for, inter alia, conduct constituting possession of a prohibited offensive weapon. We affirm.

On May 20, 2015, Harrisburg Police Officer Michael Rudy and Probation Officer Sean Hamor of the Dauphin County Adult Probation Office, members of the Street Crimes Unit, were conducting nighttime surveillance in the area of 2100 North 4th Street in Harrisburg, Pennsylvania, due to reports of vandalism and individuals carrying firearms in the vicinity. The officers were conducting surveillance at 2110 North 4th Street. Their attention was drawn to two individuals, later identified as Appellant and A.E.,1 who were walking from the West side of 4th Street towards Atlas Alley. From fifty feet away, Probation Officer Hamor and Officer Rudy watched as Appellant and A.E. crossed the alley and entered the backyard of an abandoned property. The two juveniles rummaged through the tall grass for a brief moment until Appellant bent over and arose with a shotgun. Probation Officer Hamor, with the assistance of binoculars, saw Appellant load the shotgun with three shells before handing it to A.E. A.E. wrapped his hooded sweatshirt around the shotgun and started to walk. Then he handed the shotgun back to Appellant, who removed the sweatshirt and slipped the gun down his right pant leg. Appellant donned A.E.'s hooded sweatshirt to conceal the weapon. The two juveniles left the abandoned property, walked through the alley, and crossed a nearby church parking lot. Officer Rudy radioed for additional police, who apprehended A.E. and Appellant. A search of Appellant yielded the shotgun.

The Commonwealth sought to have Appellant adjudicated delinquent based on conduct constituting possession of drug paraphernalia, person in possession of a controlled substance, possession of a firearm by a minor, possession of a firearm with an altered serial number, and possession of a prohibited offensive weapon pursuant to 18 Pa.C.S. § 908(c), specifically, a firearm specially adapted for purposes of concealment.2

At the adjudication, State Police Trooper Michael Fortley, a firearm and tool mark examiner, testified that both the stock of the shotgun and the barrel were visibly shortened. He added that the barrel of the shotgun was eighteen and nine-sixteenth inches long and the overall length of the shotgun was thirty-one and three-quarter inches. The stock end had either been shortened or removed. The expert testified that in his experience, there was no “common, lawful purpose to alter a firearm in that manner.” N.T., 8/12/15, at 58. The Trooper test-fired the weapon and determined that it was fully functional. He also reported that someone had unsuccessfully attempted to obliterate the weapon's serial number.

On August 12, 2015, Appellant was adjudicated delinquent. Appellant filed a post-dispositional motion on August 21, 2015, averring that the adjudication based on possession of prohibited offensive weapon was against the weight of the evidence. That motion was denied on September 8, 2015. He timely filed the instant appeal, and the juvenile court issued a Pa.R.A.P. 1925(b) order instructing Appellant to file a concise statement of matters complained of on appeal. Appellant timely complied with that directive, and now presents two issues for our review:

1. In prosecutions for possessing a sawed-off shotgun in violation of 18 Pa.C.S. § 908 (prohibited offensive weapons), should the elements of the offense be based on the specific reference to “sawed-off shotgun” in the statutory definition of “offensive weapon”—“sawed-off shotgun with a barrel length less than 18 inches”—rather than the general reference pertaining to a “firearm specially made or specially adapted for concealment or silent discharge?”

2. Even if an actor can be prosecuted for possessing a sawed-off shotgun under the general provision of the statutory definition of “offensive weapon” at 18 Pa.C.S. § 908, the evidence was insufficient to prove that juvenile consciously disregarded a substantial and unjustifiable risk that he was possessing a firearm made or adapted for concealment? [sic]

See Appellant's brief at 5 (underlining and unnecessary capitalization omitted).

. . . .

Appellant's first issue is predicated on the interpretation of the offensive weapon statute, 18 Pa.C.S. § 908. He contends that he could not be adjudicated delinquent under the general prohibition against possession of a firearm altered for concealment where there was a more specific provision in the statute governing sawed-off shotguns that did not subject him to criminal liability. This appears to be an issue of first impression. In support of his position, he cites the Statutory Construction Act, 1 Pa.C.S. § 1922(2), for the presumption that the legislature intended the entire statute to be effective, and § 1933 for the principle that where statutory provisions conflict, the specific controls the general. Since the issue presented implicates statutory interpretation, our scope of review is de novo and our standard of review is plenary. Commonwealth v. Chester, 627 Pa. 429, 101 A.3d 56 (2014); Kopko v. Miller, 586 Pa. 170, 892 A.2d 766, 770 (2006); In re N.W., 6 A.3d 1020, 1023 (Pa.Super.2010).

The criminal statute at issue is 18 Pa.C.S. § 908, which states, “A person commits a misdemeanor of the first degree if, except as authorized by law, he makes repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon.” 18 Pa.C.S. § 908(a). An offensive weapon is defined as:

Any bomb, grenade, machine gun, sawed-off shotgun with a barrel less than 18 inches, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, any stun gun, stun baton, taser or other electronic or electric weapon or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

18 Pa.C.S. § 908(c). A firearm for purposes of this section is defined as “Any weapon which is designed to or may readily be converted to expel any projectile by the action of an explosive or the frame or receiver of any such weapon.”3 Id. Notably, the definition of a firearm does not exclude sawed-off shotguns.

When construing statutes, our goal is to ascertain and effectuate the intention of the legislature. In performing that function, certain principles of statutory construction apply. We presume “that the General Assembly intends the entire statute to be effective and certain,” and thus construe a statute to give effect to all of its provisions. 1 Pa.C.S. § 1922(2). Penal provisions are to be strictly construed. 1 Pa.C.S. § 1928(b)(1). Furthermore, where general and specific statutory provision conflict, we attempt to construe the two provisions to give effect to both provisions. 1 Pa.C.S. § 1933. It is only when two provisions irreconcilably conflict that “the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.” Id. Even then, the specific-general rule has been abrogated in the context of criminal prosecutions by the enactment of 42 Pa.C.S. § 9303 in 2002. That provision states:

. . .

With the foregoing legal principles in mind, we turn to Appellant's premise that “firearms specially made or adapted for concealment or silent discharge” is a general provision. Appellant contends that if that provision is construed to include sawed-off shotguns, it would encompass every sawed-off shotgun and render the specific sawed-off shotgun provision a nullity. Moreover, Appellant maintains that, by specifically defining only sawed-off shotguns with barrels less than eighteen inches in length as offensive weapons, the legislature intended to exclude sawed-off shotguns with longer barrels from the definition of offensive weapons entirely. Appellant's brief at 7. He contends that the two provisions conflict irreconcilably, and that the specific-general rule still has vitality, inter alia, “in interpreting definitions of statutory terms.” Appellant's brief at 23.

The Commonwealth counters that the sawed-off shotgun provision and the firearm specially altered for purposes of concealment provision of the offensive weapons statute are both specific provisions, that they are consistent and complement each other, and that 42 Pa.C.S. § 9303 specifically authorizes prosecution of a defendant “under all available statutory criminal provisions without regard to the generality or specificity of the statutes.”

Preliminarily, we reject Appellant's characterization of the instant prosecution as one for possession of “a sawed-off shotgun in violation of 18 Pa.C.S. § 908 (prohibited offensive weapons).” Appellant's brief at 5. Appellant was charged with the delinquent act of possessing a firearm specially adapted for purposes of concealment in violation of § 908, and adjudicated delinquent based on that conduct. While the weapon happened to be a shotgun with a shortened barrel, it also was a firearm with the stock end altered to reduce its overall length. Appellant does not dispute that the shotgun as adapted met the definition of “a firearm specially made or specially adapted for purposes of concealment.” 18 Pa.C.S. § 908. He simply contends that the Commonwealth could not charge and prosecute him under the adapted firearm provision where the specific sawed-off shotgun provision did not subject him to criminal liability. He argues that the general statute irreconcilably conflicts with the specific sawed-off shotgun provision and the latter should be construed as an exception to the general provision. For the reasons that follow, Appellant's argument fails.

We discern legislative intent first by examining the language of the statute itself.4 Commonwealth v. Vega–Reyes, 131 A.3d 61, 63 (Pa.Super.2016) (en banc). Only where the statutory language is not explicit do we go beyond the face of the text to ascertain legislative intent beyond the face of the text. Id.

Section 908(c) defines offensive weapons as implements “for the infliction of serious bodily injury which serve[ ] no common lawful purpose.” 18 Pa.C.S. § 908(c). This Court held in Commonwealth v. Hitchon, 379 Pa.Super. 136, 549 A.2d 943, 946 (1988), “Section 908 was ‘intended to establish a prohibition very nearly absolute aimed at the implements or weapons themselves, whether enumerated or falling within the general definition which are offensive by nature.’ ” The offensive weapon statute lists a number of offensive weapons. Certain items are offensive weapons per se: bombs, machine guns, daggers, stun guns, and metal knuckles. Others are defined as offensive weapons when they have certain characteristics, such as a sawed-off shotgun with a barrel less than eighteen inches, a firearm specially made or altered for purposes of concealment or silent discharge, and a knife, dagger or cutting instrument with a blade that is exposed by switch, push button, or some other automatic mechanism. The definition of an offensive weapon also contains a catchall provision that encompasses any “other implement for the infliction of serious bodily injury which serves no common lawful purpose[,]” which makes it apparent that the enumerated items are not intended to be an exhaustive list. 18 Pa.C.S. § 908(c). The legislature clearly intended the statute to be expansive in its reach.

. . .

We find that the two definitions are specific, that on the facts herein we can construe them to give effect to both, and further, there is no irreconcilable conflict that would implicate the specific-general rule. The provision defining a sawed-off shotgun with a barrel not exceeding eighteen inches as an offensive weapon was not applicable since the barrel measured eighteen and nine-sixteenth inches in length. However, the shotgun was a firearm altered in another manner. The stock end of the firearm was shortened, which reduced its overall length and width and made it easier to conceal. Nothing in the statute suggests that the legislature, by adding the maximum barrel requirement in the shotgun provision, intended to foreclose prosecution for possession of a sawed-off shotgun with a stock end shortened to facilitate concealment. Appellant's argument ignores the fact that the shortening of the stock end of the shotgun herein constituted an alteration and modification to a firearm that, together with proof that its purpose was to facilitate concealment, could support the court's finding that it constituted an offensive weapon.

Furthermore, we agree with the Commonwealth that the two provisions are not irreconcilable and the specific-general rule is not implicated.5 The weapon at issue was not a sawed-off shotgun with a barrel less than eighteen inches in length, an enumerated offensive weapon. It was, however, a firearm with a shortened stock end that the Commonwealth proved was adapted for purposes of concealment. The two provisions can therefore be reconciled.

Moreover, culpability under the adapted firearm definition required proof of an additional element that the sawed-off shotgun provision did not. The Commonwealth offered expert testimony that the shotgun was a functional firearm and that its stock end as well as its barrel were shortened. Testimony was introduced that Appellant loaded the firearm, initially wrapped it a sweatshirt, then hid it in his pant leg, and donned the sweatshirt. N.T., 8/12/15, at 52-53, 56. From this evidence, one could reasonably find that Appellant possessed a loaded and operational firearm that was specially adapted for purposes of concealment. We find no merit in Appellant's contention that he could not be adjudicated delinquent when he possessed a firearm that met the definition of an offensive weapon under the statute.

Appellant's second issue is a challenge to the sufficiency of the evidence of mens rea supporting his adjudication of delinquency.6 Specifically, he contends that the Commonwealth failed to present evidence that he possessed an offensive weapon intentionally, knowingly, or with reckless disregard of a substantial and unjustifiable risk to others. Appellant's brief at 25. He maintains that “intentionally” or “knowingly” requires that the actor be conscious of the nature of his conduct while “recklessly” connotes a conscious disregard of a substantial risk. There was no proof, according to Appellant, that he and his friend intentionally or knowingly possessed the weapon before finding it in the tall grass, that they understood it was adapted for purposes of concealment, or that they would have continued to possess it had law enforcement not intervened. Appellant's brief at 30. Furthermore, he alleges that the evidence did not establish that he acted recklessly as he did not fire the weapon, point it at anyone, or brandish it in such a way as to create a substantial risk to others.

The Commonwealth counters that the eyewitness testimony of Officer Rudy and Probation Officer Hamor supplied sufficient proof that Appellant either intentionally or knowingly possessed a firearm specially adapted for purposes of concealment. The officers observed Appellant and his cohort looking through the tall grass, as if searching for an item. Appellant picked up the shotgun with the shortened stock and barrel and loaded it with 20-gauge birdshot that he already had in his possession. The Commonwealth cites the reasoning of the trial court: “The [juveniles] would have us imagine that it was just pure happenstance that one or two of them would have shells on their person to load a 20 gauge shotgun. That confluence of happenstance is beyond any reasonability.” Commonwealth's brief at 13-14 (quoting Adjudicating Court Opinion, 3/31/16, at 5). Appellant then hid the weapon in his pant leg and put on a jacket to further conceal the firearm. N.T., 8/12/15, at 9-11.

We agree with the trial court that the Commonwealth adduced sufficient evidence to prove the requisite mens rea. One can reasonably infer from the testimony of the officers that Appellant and A.E. knew where the sawed-off shotgun was hidden, and that they intentionally retrieved it, loaded it, and took possession of it. See Commonwealth v. Giordano, 121 A.3d 998, 1006 (Pa.Super.2015) (defendant's conviction of prohibited offensive weapon upheld where he knew he had a sword and that it was not permitted on school property). Their efforts to conceal the shotgun permit the reasonable inference that they were aware of its unlawful nature. Certainly, the act of loading the firearm refuted Appellant's claim, which the juvenile court was free to reject, that the two juveniles merely found the weapon and intended to turn it over to police. We therefore find sufficient evidence to sustain Appellant's adjudication of delinquency for conduct amounting to possession of a prohibited offensive weapon.

Dispositional order affirmed.

FOOTNOTES

. . .
2.  The Juvenile Petition also alleged the delinquent acts of possession of a firearm with the manufacturer's number altered and possession of a firearm not to be carried without a license, both of which were withdrawn. The act of possessing a firearm with an altered serial number was found not substantiated.

3.  Title 18 Pa.C.S. § 6102 defines a firearm as any “pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel length less than 18 inches or any rifle with a barrel length less than 16 inches, or any pistol, revolver, rifle or shotgun with an overall length of less than 26 inches.” Under that definition, the shotgun herein would not have constituted a firearm. The definition of a firearm for purposes of the offensive weapons statute, however, did not include barrel or overall lengths, and it encompassed the shotgun herein. The legislature clearly intended to include a more expansive definition of a firearm for purposes of the offensive weapons statute.

4.  Prior to 1994, 18 Pa.C.S. § 908(c) defined all sawed-off shotguns as prohibited offensive weapons. As this Court explained in Commonwealth v. Stewart, 343 Pa.Super. 514, 495 A.2d 584, 594 (1985), when the barrel of a shotgun is sawed off, the shotgun has been reshaped and “specially adapted” or altered for criminal purposes, and is precisely the type of weapon prohibited by 18 Pa.C.S. § 908(c). At that same time, the statutory definition also included firearms specially adapted for concealment or silent operation.In 1994, § 908(c) was amended to add the eighteen-inch maximum barrel length language. The legislative history surrounding the amendment offers no insight into our lawmakers' rationale for imposing the barrel length limitation. One may surmise, however, that the legislature determined that there could be a common lawful purpose for sawing off a portion of a shotgun barrel, provided the barrel was not less than eighteen inches.

. . .

OPINION BY BOWES, J.:

[mmi]

did you notice
NOTE: This letter only speaks to its FEDERAL status. There could be local/state laws that prohibit the sale of this gun in your state. Consult your State Police for clarification.