Com. v. Livingston, Z.

J-A21031-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ZAIRE N. LIVINGSTON :

:

Appellant : No. 1546 EDA 2023

Appeal from the Judgment of Sentence Entered May 19, 2023

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

No(s): CP-51-CR-0003287-2022

BEFORE: KUNSELMAN, J., NICHOLS, J., and BECK, J.

MEMORANDUM BY BECK, J.: FILED DECEMBER 17, 2024

Zaire Livingston (“Livingston”) appeals from the judgment of sentence

entered by the Philadelphia County Court of Common Pleas (“trial court”)

following his guilty plea to carrying a firearm on public streets in Philadelphia

and possession of a controlled substance.1 Livingston challenges the denial of

his suppression motion and raises several constitutional claims concerning the

constitutionality of the statute governing the crime of carrying a firearm on

public streets in Philadelphia. As there is no merit to any of Livingston’s

claims, we affirm.

On February 14, 2022, just before his twenty-first birthday, police

arrested Livingston after they observed him selling drugs to a woman in a

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1 18 Pa.C.S. § 6108; 35 P.S. § 780-113(a)(16).

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dark alley. Livingston was charged with two drug-related offenses (possession

of a controlled substance and possession with intent to deliver a controlled

substance (“PWID”)) and two violations of the Pennsylvania Uniform Firearms

Act (“VUFA”) (carrying a firearm without a license and carrying a firearm on

public streets in Philadelphia).

Prior to trial, Livingston filed a motion to suppress the evidence of his

police interaction. He maintained that police conducted an illegal search and

seizure of his person, which led to the discovery of drugs in his pocket and his

subsequent admission that he was carrying a firearm concealed in his

waistband.

The trial court provided the following summary of its factual findings

from the suppression hearing:

On February 14, 2022, at about 6:18 p.m., [Philadelphia

Police] Officers [Evan] McBride and [Juan] Nieves were on foot

patrol with two other officers in the 1800 block of East Clementine

Street in the Kensington neighborhood of Philadelphia. Both

officers had been assigned to patrol this area of the city for many

months, and were familiar with the high levels of drug activity on

that block and the two-block area surrounding it. Officer McBride

testified, “[i]n that area, specifically, just on routine foot patrol, I

have walked into and observed a number of hand-to-hand

transactions for alleged narcotics[;] ... I could not tell you how

many times, just walking up and down that two block radius, I’ve

observed hand-to-hand transactions. I have interrupted hand-to-

hand transactions, and have made a number of narcotics arrests

in that area.” He testified that in the 1800 block of East

Clementine Street[,] it was typical for individuals to conceal

themselves between and behind parked cars to conduct hand-to-

hand narcotics transactions. Officer Nieves testified that he

patrolled in the area eight hours a day, had assisted with many

narcotics arrests, and had made narcotics arrests in the

immediate area of the 1800 block of Clementine.

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On that February night, as Officer Nieves’[] body worn

camera footage showed, the 1800 block of East Clementine Street

was narrow, dark, and empty. There appeared to be no open

businesses. It was a cold night. Officer McBride was shining his

flashlight between cars as he walked. Officer McBride was the first

to reach the spot where East Clementine Street intersected with

Ruth Street, an even narrower, darker, street. As he reached the

corner, he saw, “less than five feet away” from him, Livingston

standing behind two parked cars with a woman. Officer Nieves’[]

body worn camera showed that Livingston and the woman were

in the darkest, most secluded spot of the dark, quiet corner.

Officer McBride saw the woman hand Livingston an unidentified

amount of United States currency, and saw Livingston take the

currency with one hand and reach into his jacket pocket with the

other. Officer McBride directed his flashlight at the pair and asked

what they were doing. Livingston, appearing startled and “very,

very flustered,” pulled his empty hand out of his jacket pocket and

held it up, while still holding the currency in his other hand. The

left pocket of Livingston’s down jacket, which was the pocket he

had been reaching into when Officer McBride first saw him, was

unzipped.

Officer McBride and two of the other officers, believing that

they had caught Livingston in the midst of a narcotics transaction,

quickly detained Livingston by turning him around and having him

put his hands against the wall. Three officers placed their hands

on his back and shoulders, but, as the body worn camera footage

shows, they did not apply force, frisk him, or manipulate his

clothing. Neither were they threatening him or shouting at him.

Officer McBride testified that Livingston was not under arrest at

that point.

During the next few seconds, while Livingston stood with his

hands against the wall, Officer Nieves moved around him, shining

his flashlight on him. In Livingston’s unzipped jacket pocket,

Officer Nieves saw a part of a Ziploc bag with a bundle of blue

inserts. This bag was at the opening of the jacket pocket, where

it would have been visible in daylight. Officer Nieves shined his

flashlight on the pocket and confirmed that the bag and inserts

were what he knew, based on his experience, to be narcotics

packaging. Officer Nieves told Officer McBride what he saw.

Officer McBride then shined his flashlight on Livingston’s pocket,

saw the bundle, and retrieved it.

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Officer McBride put Livingston under arrest and placed him

in handcuffs. Officer McBride then asked Livingston if he had any

needles or anything else dangerous on his person. Livingston

replied that he had a handgun in his waistband, and Officer

McBride recovered a “Ruger LC9S, pink wooden pattern firearm”

from his waistband.

Trial Court Opinion, 9/25/2023, at 1-4 (record citations omitted; some

capitalization altered; name substituted for party designation).

The trial court denied Livingston’s suppression motion, concluding that

prior to finding drugs on his person, police “had reasonable suspicion to

conduct an investigatory detention of Livingston; the investigatory detention

did not rise to the level of a custodial detention; the officers did not frisk

Livingston or physically manipulate his jacket; and the drugs in Livingston’s

pocket were in plain view.” Id. at 4. Livingston filed a motion for

reconsideration, which the trial court denied.

Livingston then filed a motion to dismiss the VUFA charges. Relying on

New York State Rifle & Pistol Association., Inc. v. Bruen, 597 U.S. 1

(2022), Livingston argued:

Pennsylvania’s statutory firearms licensing scheme is

unconstitutional under the Second and Fourteenth Amendments

to the United States Constitution and Article I, § 21 of the

Pennsylvania Constitution. Specifically, Livingston contended, the

Pennsylvania statute setting forth the criteria for a license to

carry, 18 Pa.C.S. § 6109, is unconstitutional because it restricts

licenses to people over the age of 21. … Accordingly, Livingston

argued, any Pennsylvania statute that prohibits the carrying of a

firearm without a license, including 18 Pa.C.S. § 6108, may not

be applied to people[, like Livingston,] who were [eighteen,

nineteen, or twenty] years old at the time of their arrest.

Livingston also argued that Pennsylvania’s statutory licensing

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scheme violated the equal protection rights of [eighteen- to

twenty-year-old individuals] under the United States and

Pennsylvania Constitutions and that 18 Pa.C.S. § 6108 violated

Pennsylvania’s Constitutional prohibition against special or local

laws [set forth in Article III, § 32].

Trial Court Opinion, 9/25/2023, at 4-5 (some capitalization and citations

altered; name substituted for party designation).

In its response, the Commonwealth asserted that the trial court should

avoid addressing his constitutional arguments because, at the time of his

arrest, Livingston had pending felony drug charges that made him ineligible

for a license to carry firearms independent of his age. See Commonwealth’s

Response to Defendant’s Motion to Dismiss, 12/1/2023, at 32 (citing 18

Pa.C.S. § 6109(e)(1)(viii) (“A license shall not be issued to … [a]n individual

who is charged with or has been convicted of a crime punishable by

imprisonment for a term exceeding one year except as provided for in section

6123 (relating to waiver of disability or pardons).”)). According to the secure

court summary, which the Commonwealth attached to its response, Livingston

was arrested on several occasions in 2020 and charged with multiple counts

____________________________________________

2 Neither this document nor Livingston’s response thereto appeared in the

certified record on appeal originally sent to this Court. According to the

parties, they emailed the documents to the trial court judge, but did not file

them with the clerk of courts. At oral argument, the panel instructed the

parties to supplement the record with these documents pursuant to

Pennsylvania Rule of Appellate Procedure 1926. Instead, the parties

submitted the documents to this Court as a post-submission communication

pursuant to Pennsylvania Rule of Appellate Procedure 2501. Neither party has

objected to our consideration of these documents in this case.

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of PWID, several of which remained pending at the time of his arrest in the

current case. Id., Exhibit B (secure court summary). Alternatively, the

Commonwealth set forth arguments responding to the merits of Livingston’s

various constitutional challenges. Livingston submitted a reply, contending

that his ineligibility on any other grounds was not relevant to the issue of

whether the statutes are facially unconstitutional and unenforceable because

the age-based licensing prohibition applied to all eighteen- to twenty-year-old

individuals in all circumstances. See Reply to Commonwealth Response to

Motion to Dismiss, 12/1/2023 at 5 n.2. On April 27, 2023, the trial court

denied Livingston’s motion to dismiss.

On May 19, 2023, Livingston entered a negotiated guilty plea to carrying

a firearm on public streets in Philadelphia and possession of a controlled

substance in exchange for a sentence of eleven to twenty-two months of

incarceration followed by thirty months of probation for the section 6108

violation and no further penalties on the narcotics offense. As part of the

negotiated plea agreement, the Commonwealth nolle prossed the remaining

charges and Livingston reserved the right to file a direct appeal on the merits

of his legal issues. The same day, the trial court sentenced Livingston in

accordance with the parties’ agreement.

Livingston timely filed a notice of appeal. Livingston and the trial court

have complied with Pennsylvania Rule of Appellate Procedure 1925. He raises

the following issues on appeal:

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1. Did the police act unreasonably and violate the Fourth

Amendment and independently Article I, Section 8 with

intrusions on [Livingston]’s person that unreasonably exceed

what is permissible during a Terry stop?

2. Is 18 Pa.C.S. § 6108 unconstitutional on its face and as applied

to [eighteen- to twenty-year old individuals] under the [U]nited

States Constitution, and independently the Pennsylvania

Constitution for four separate reasons?

The question presented more specifically is whether:

a. Section 6108 violates the Second Amendment right to public

carry.

b. Section 6108 violates Article I, § 21 of the Pennsylvania

Constitution[, which] provides that the right to bear arms

“shall not be questioned”, and Article I, § 1, which] provides

a right of self-defense.

c. Section 6108 violates the equal protection rights of people

in Philadelphia, and most severely those who are [eighteen

to twenty] years old.

d. Section 6108, realistically applying only to Philadelphia, is

special local legislation, a per se violation of Article III, § 32

of the Pennsylvania Constitution.

Livingston’s Brief at 2.

Suppression

Livingston argues that the trial court erred by denying his motion to

suppress the drugs found in his pocket and the firearm in his waistband

recovered after his disclosure of its presence. Livingston’s Brief at 11-16.

Livingston concedes that police had reasonable suspicion to believe that he

was in the process of selling drugs, thereby justifying an investigative stop

under Terry v. Ohio, 392 U.S. 1 (1968). Livingston’s Brief at 11.

Nevertheless, Livingston insists that police violated the Fourth Amendment to

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the United States Constitution and Article I, Section 8 of the Pennsylvania

Constitution by subjecting him to a custodial detention. Id. at 11-13.

Livingston emphasizes that despite his cooperation with police, three

police officers immediately grabbed him and held him against the wall with

their hands on his back and shoulders, while a fourth officer intrusively shined

his flashlight into Livingston’s jacket pocket. Id. at 11. Livingston insists that

by holding him against the wall at the time police discovered the drugs in his

pocket, they had subjected him to a custodial detention without the requisite

probable cause. Id. A reasonable person, Livingston argues, would have

believed that the officers significantly deprived him of his freedom of

movement, indicated their intent to take him into custody, and subjected him

to their actual control and will. Id. at 11-12.

Alternatively, Livingston contends that police lacked justification for a

Terry frisk because they had no reason to believe that he was armed and

dangerous. Id. at 13. Even if the officers did have justification for a Terry

frisk, Livingston maintains that the officers were entitled only to pat down the

outer portion of his clothing to dispel the fear that he was carrying a weapon,

but they could not “place their hands all over” him to hold him up against the

wall and to peer into his pockets with a flashlight. Id. at 13-16.

When reviewing a trial court’s denial of a suppression motion, we bear

in mind “that the trial court’s findings of fact are binding upon us to the extent

they have record support, but we conduct a de novo review of its legal

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conclusions.” Commonwealth v. Adams, 205 A.3d 1195, 1199 (Pa. 2019).

“Because the Commonwealth prevailed before the suppression court, we may

consider only the evidence of the Commonwealth and so much of the evidence

for the defense as remains uncontradicted when read in the context of the

record as a whole.” Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.

Super. 2017).

Article I, Section 8 of the Pennsylvania Constitution and the Fourth

Amendment to the United States Constitution protect individuals from

unreasonable searches and seizures. Interactions between citizens and police

fall into three separate categories:

The first, a “mere encounter,” does not require any level of

suspicion or carry any official compulsion to stop or respond. The

second, an “investigative detention,” permits the temporary

detention of an individual if supported by reasonable suspicion.

The third is an arrest or custodial detention, which must be

supported by probable cause.

Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014) (citations omitted).

At issue here is whether police subjected Livingston to an investigative

detention or a custodial detention. “[A]n investigative detention[] is a

temporary detention of a citizen[]” and “constitutes a seizure of a person[.]”

Adams, 205 A.3d at 1199-1200. A “custodial detention occurs when the

nature, duration and conditions of an investigative detention become so

coercive as to be, practically speaking, the functional equivalent of an arrest.”

Commonwealth v. Mackey, 177 A.3d 221, 227 (Pa. Super. 2017). An arrest

is “any act that indicates an intention to take the person into custody and

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subjects him to the actual control and will of the person making the arrest.”

Commonwealth v. Lovette, 450 A.2d 975, 978 (Pa. 1982).

“When initially evaluating the level of interaction between law

enforcement and a citizen to determine if a seizure occurred, courts conduct

an objective examination of the totality of the surrounding circumstances.”

Commonwealth v. Luczki, 212 A.3d 530, 543 (Pa. Super. 2019) (citation

and quotation marks omitted). To decide “whether a particular detention is

investigatory or custodial in nature,” courts consider a non-exhaustive list of

factors:

the basis for the detention (the crime suspected and the grounds

for suspicion); the duration of the detention; the location of the

detention (public or private); whether the suspect was

transported against his will (how far, why); the method of

detention; the show, threat or use of force; and[] the investigative

methods used to confirm or dispel suspicions.

Commonwealth v. Valentin, 748 A.2d 711, 714 (Pa. Super. 2000). Courts

must assess “the reasonable impression conveyed to the person subjected to

the seizure rather than … the subjective views of the police officer making the

arrest.” Commonwealth v. Carter, 643 A.2d 61, 67 (Pa. 1994).

If an officer observes contraband in his plain view from a lawful vantage

point during an investigative detention that is supported by reasonable

suspicion, the officer may lawfully seize such contraband. See Harris v. U.S.,

390 U.S. 234, 236 (1968) (“It has long been settled that objects falling in the

plain view of an officer who has a right to be in the position to have that view

are subject to seizure and may be introduced in evidence.”); see also

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Commonwealth v. McCree, 924 A.2d 621, 628 (Pa. 2007) (explaining that

the plain view doctrine justifies the seizure of an item that is within the officers’

plain view, but cannot provide the justification as to why the officer was in the

vantage point to observe the item in the first place). The plain view doctrine

includes objects in the dark that the officer only could see once illuminated by

flashlight. Commonwealth v. Burton, 436 A.2d 1010, 1013 (Pa. Super.

1981).

It is uncontested that, by turning Livingston around, having him put his

hands against the wall, and placing their hands on Livingston’s back, there is

no question that the officers detained Livingston. Based upon the body

camera footage, the trial court determined that the nature of the detention

was investigative and not custodial. Trial Court Opinion, 9/25/2023, at 9-10.

In addition to the brief duration of the encounter, the court found it significant

that the officers did not apply force, threaten him, shout at him, or transport

Livingston to a different location. Id.

We have reviewed the body camera footage and agree with the trial

court’s conclusion. Several officers held Livingston’s hands on the wall and

had their hands on his hands and back, signaling to Livingston that he was

not free to leave while police investigated their suspicion that he had been

selling drugs to a person on the street. The encounter, however, was very

brief and did not become so coercive or forceful that it transformed into a

custodial detention. N.T., 12/2/2022, Exhibits C-1, C-2. Although it is an

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important factor, physical contact or restraint during a detention does not

automatically shift the nature of the detention from investigative to custodial,

particularly where, as here, the detention is short and police do not interrogate

the suspect, transport him against his will, or display weapons. See

Commonwealth v. Carter, 643 A.2d 61, 68 n.2 (Pa. 1994) (“We, of course,

do not hold that every time the police place an individual in handcuffs that

individual has been arrested.”); Commonwealth v. Guillespie, 745 A.2d

654, 660–61 (Pa. Super. 2000) (“While the use of restraints is a factor to be

considered with regard to whether a detention is custodial, in the present case

other factors militate against such a finding—e.g., minimal duration of

detention, no transport against will, no show or threat or use of force.”);

Valentin, 748 A.2d at 714 (holding that police detained a suspected drug

dealer for investigative purposes, not custodial, when police directed him to

place his hands on a car and held his clothes because the officers did not

interrogate him, display their weapons, threaten him, or transport him against

his will).

As for Livingston’s argument that the officers subjected him to a frisk

and only brought the baggie of drugs in his pocket into plain view by physically

manipulating his pocket, the trial court determined that the body worn camera

and credible police testimony demonstrated otherwise. See Trial Court

Opinion, 9/25/2023, at 9-10. The trial court emphasized that the officers did

not feel or manipulate Livingston’s jacket, open the pocket, or otherwise cause

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the pocket to be open. Id. Instead, Livingston’s pocket was unzipped when

police initially interrupted the suspected drug transaction and remained open

throughout the investigative detention, during which Officer Nieves was able

to observe the narcotics from a lawful vantage point and seize the narcotics

pursuant to the plain view doctrine. Id.

Upon review of the testimony and video footage, we agree with the trial

court’s assessment. Officer Nieves testified that he observed an object in the

darkness in Livingston’s pocket during the brief detention. N.T., 12/20/2022,

at 76-78. The object resembled a bundle of heroin and he shined his flashlight

upon the open pocket to confirm his suspicion. Id. at 77-78. With the aid of

the flashlight, he observed “clear as day” that the object was a clear Ziploc

bag with blue inserts that are commonly used to package heroin. Id. at 76.

At the point that Officer Nieves made this discovery, police were investigating

their suspicion that Livingston had been selling illegal drugs.

Because Livingston was subject to a lawful investigative detention at the

time that Officer Nieves observed the heroin bundle in Livingston’s open

pocket, Officer Nieves lawfully seized the heroin and had probable cause to

arrest Livingston. Cf. Commonwealth v. Graham, 721 A.2d 1075, 1080

(Pa. 1998) (plurality) (concluding that because the officer had completed the

investigative detention and determined that the individual was not carrying

weapons before the officer shined his light into the individual’s back pocket,

the plain view doctrine neither could validate the search of the pocket nor the

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seizure of the contraband). Police then were entitled to conduct a search

incident to arrest, which led to Livingston’s admission that he had a firearm in

his waistband. See Commonwealth v. Hannon, 837 A.2d 551, 555 (Pa.

Super. 2003) (“Since probable cause existed to arrest appellant, and

appellant’s person was searched incident to a legal arrest, the evidence

obtained from a search of appellant’s pockets was properly admitted.”).

Accordingly, the trial court did not err in denying Livingston’s motion to

suppress the drugs and firearm.

Constitutionality of Section 6108

Section 6108 of the Uniform Firearms Act states that “[n]o person shall

carry a firearm, rifle or shotgun at any time upon the public streets or upon

any public property in a city of the first class unless … (1) such person is

licensed to carry a firearm[.]”3 18 Pa.C.S. § 6108. Livingston raises several

constitutional challenges to this provision.

A challenge to the constitutionality of a statute “is a question of law for

which our standard of review is de novo and our scope of review is plenary.”

Commonwealth v. McIntyre, 314 A.3d 828, 839 (Pa. Super. 2024). Our

review of the constitutionality of a statute is guided by the following:

A statute is presumed to be constitutional and will only be

invalidated as unconstitutional if it clearly, palpably, and plainly

violates constitutional rights.

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3 Philadelphia is the only Pennsylvania city of the first class.

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A defendant may contest the constitutionality of a statute

on its face or as[]applied. A facial attack tests a law’s

constitutionality based on its text alone and does not consider the

facts or circumstances of a particular case. An as-applied attack,

in contrast, does not contend that a law is unconstitutional as

written but that its application to a particular person under

particular circumstances deprived that person of a constitutional

right. A criminal defendant may seek to vacate his conviction by

demonstrating a law’s facial or as-applied unconstitutionality.

Commonwealth v. Papp, 305 A.3d 62, 70 (Pa. Super. 2023) (citation,

brackets, and quotation marks omitted).

Second Amendment to the United States Constitution and Article I, Section

21 of the Pennsylvania Constitution

Livingston’s first constitutional challenge to section 6108 is based on the

Second Amendment to the United States Constitution and the United States

Supreme Court’s recent decision in Bruen.4 The Second Amendment, made

applicable to the states through the Fourteenth Amendment, declares that

“[a] well regulated Militia, being necessary to the security of a free State, the

right of the people to keep and bear Arms, shall not be infringed.” U.S. CONST.

amend. II. This “right secures for Americans a means of self-defense.” U.S.

v. Rahimi, 602 U.S. ---, 144 S. Ct. 1889, 1897 (2024).

In Bruen, the United States Supreme Court held that “the Second and

Fourteenth Amendments protect an individual’s right to carry a handgun for

self-defense outside the home.” Bruen, 597 U.S. at 10. Like most rights,

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4 Because of the manner by which we address and dispose of his arguments

related to these separate constitutional provisions, we address them together.

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the Court observed, this right is not unlimited. Id. at 22. Thus, when an

individual challenges the constitutionality of a governmental regulation that

infringes upon the right to carry a firearm in public, Bruen requires a two-

step analysis. Id. at 17. First, we must determine whether “the Second

Amendment’s plain text covers an individual’s conduct.” Id. If so, “the

Constitution presumptively protects that conduct,” and the “government must

then justify its regulation by demonstrating that it is consistent with the

Nation’s historical tradition of firearm regulation.” Id.; accord Barris v.

Stroud Township, 310 A.3d 175, 188 (Pa. 2024)

Livingston argues that section 6108 is unconstitutional as applied to

individuals between the ages of eighteen and twenty,5 like himself at the time

of his arrest in this case, because section 6109(b), which describes the

logistics of and criteria for obtaining a license to carry a firearm, does not

provide a mechanism for such individuals to apply for and obtain a license to

carry a firearm.6 Livingston’s Brief at 17. Section 6109(b) states that “[a]n

individual who is [twenty-one] years of age or older may apply to a sheriff for

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5 In general, in Pennsylvania, it is a crime for those under the age of eighteen

to possess a firearm. See 18 Pa.C.S. § 6110.1(a) (“Except as provided in

subsection (b), a person under 18 years of age shall not possess or transport

a firearm anywhere in this Commonwealth.”).

6 In his appellate brief, Livingston argues that section 6108 is unconstitutional

both facially and as-applied to eighteen- to twenty-year-old individuals. See

Livingston’s Brief at 41. At oral argument, counsel for Livingston clarified that

he was solely challenging the constitutionality of section 6108 only on the

basis that it is unconstitutional as applied to eighteen to twenty year olds.

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a license to carry a firearm concealed on or about his person or in a vehicle

within this Commonwealth.” 18 Pa.C.S. § 6109(b). Livingston argues that

together, sections 6108 and 6109(b) render it impossible for eighteen- to

twenty-year-olds to carry a firearm publicly in Philadelphia without facing

criminal penalties, which impermissibly infringes upon the constitutional right

to carry a firearm. See Livingston’s Brief at 17.

Because the right to carry a firearm in public squarely falls under the

Second Amendment’s textual command per Bruen, Livingston focuses on the

second part of the two-part test. According to Livingston, the Commonwealth

cannot establish that restricting eighteen- to twenty-year-old individuals from

carrying a firearm publicly falls within the historical tradition of firearm

regulation because, at the time of the adoption of the Second Amendment,

states required men between the ages of eighteen and forty-five to join the

militia and equip themselves with appropriate weaponry, including firearms.

Livington contends this demonstrates that historically, eighteen- to twenty-

year-olds were entitled to carry a firearm publicly. See Livingston’s Brief at

25-27. Though recognizing the state’s interest in public safety in large urban

areas, Livingston argues that eighteen- to twenty-year-old individuals have

the constitutional right to bear arms in self-defense in those areas for precisely

that reason. Id. at 28.

Livingston’s second constitutional challenge to section 6108 is based on

Article I, Section 21 of the Pennsylvania Constitution. See Livingston’s Brief

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at 29-35. Article I, Section 21 states, “[t]he right of the citizens to bear arms

in defence of themselves and the State shall not be questioned.” PA. CONST.

art. 1, § 21. Livingston makes the same age-based as-applied challenge to

the constitutionality of section 6108 under the Pennsylvania Constitution as

he did under the federal charter. See Livingston’s Brief at 29-35. He

additionally argues that the Pennsylvania Constitution provides greater

protection of the right to bear arms than the United States Constitution. See

id. at 30. Specifically, Livingston contends that because Article I, Section 21

states that the right to bear arms “shall not be questioned,” the right is one

that eighteen- to twenty-year-old individuals “enjoy equally with everyone

else in Pennsylvania, and that there is no basis for diminishing this

fundamental right for people living in urban areas like Philadelphia.” Id. at

32. He further asserts, “[j]ust as there is no national historical justification

for limiting the right to bear arms for [eighteen- to twenty-year-olds,] there

is no basis for limiting Article I, Section 21 rights for those young adults in

Pennsylvania.” Id.

The trial court determined that Livingston lacked standing to challenge

the constitutionality of section 6108 through the age restriction of section

6109(b) because he is not “affected by the particular feature alleged to be in

conflict with the constitution.” Trial Court Opinion, 9/25/2023, at 12 (citing

Commonwealth v. Dodge, 429 A.2d 1143, 1146 (Pa. Super. 1981)). In

support of its determination, the trial court relied on section 6109(e)(1)(viii),

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which, in pertinent part, prohibits issuing a license to carry to any “individual

who is charged with … a crime punishable by imprisonment for a term

exceeding one year[.]” Id. (citing 18 Pa.C.S. § 6109(e)(1)(viii)). Because

Livingston had unrelated felony charges of PWID pending at the time of his

arrest in this case, the trial court concluded that Livingston would have been

ineligible for a license to carry firearms under section 6109(e)(1)(viii),

regardless of his age. Id.

Livingston argues that the trial court erred in determining that he lacked

standing to challenge the constitutionality of section 6108 based upon its age

restrictions. Livingston’s Brief at 17-23. Specifically, Livingston asserts that

the trial court failed to recognize that he was unable to even apply for a license

to carry because he was under the age of twenty-one at the time of his arrest.

Id. at 20. He contends that the trial court wrongly concluded that it could not

decide his constitutional challenge on the “hypothetical” basis that he would

have been denied a license because he had multiple charges of PWID pending

at the time of his arrest in this case. Id. at 20-21. Additionally, Livingston

asserts that it is was “very unlikely” that the General Assembly intended for

section 6109(e)(1)(viii) to apply “to a mere arrest on a felony charge.” Id. at

21-22.

At the outset, we disagree with the trial court’s framing of the issue as

one of standing.

The doctrine of standing stems from the principle that judicial

intervention is appropriate only where the underlying controversy

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is real and concrete, rather than abstract. The touchstone of

standing is protecting against improper plaintiffs. To do so, courts

require a plaintiff to demonstrate he or she has been aggrieved

by the conduct he or she challenges. To determine whether the

plaintiff has been aggrieved, Pennsylvania courts traditionally

examine whether the plaintiff’s interest in the outcome of the

lawsuit is substantial, direct, and immediate. A party’s interest is

substantial when it surpasses the interest of all citizens in

procuring obedience to the law; it is direct when the asserted

violation shares a causal connection with the alleged harm; finally,

a party’s interest is immediate when the causal connection with

the alleged harm is neither remote nor speculative.

Commonwealth v. Sanchez, ___ A.3d ___, 2024 WL 4576662 at *3 (Pa.

Super. 2024) (citation and brackets omitted).

There can be no question in this case that Livingston is an “aggrieved

party” and that his interest in the outcome of his constitutional challenge is

“substantial, direct, and immediate.” See id. Livingston pled guilty to a crime

under section 6108 and his claim on appeal is that the statutory provision to

which he pled guilty is unconstitutional. Were we to determine that section

6108 is indeed unconstitutional, we would vacate his judgment of sentence.

Thus, Livingston had standing to raise his constitutional challenge to section

6108.

Nonetheless, we agree with the trial court’s decision not to reach the

substance of Livingston’s claim that section 6108 is unconstitutional as applied

to eighteen- to twenty-year-old individuals. See Commonwealth v.

Katona, 191 A.3d 8, 16 (Pa. Super. 2018) (en banc) (explaining that we may

affirm if there is any basis on the record to support the trial court’s decision,

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even if we rely on a different basis). Instead, we find more appropriate the

application of the doctrine of constitutional avoidance.

Under the doctrine of constitutional avoidance, “[w]e will not attempt to

resolve constitutional issues unless the specific issue is before us and the

resolution of the issue is absolutely necessary to the decision of the case.”

Commonwealth v. Homoki, 621 A.2d 136, 140 (Pa. Super. 1993); see also

Commonwealth v. Dunkins, 263 A.3d 247, 253 n.5 (Pa. 2021) (explaining

“the sound tenet of jurisprudence that courts should avoid constitutional

issues when the issue at hand may be decided upon other grounds”); In re

Stevenson, 12 A.3d 273, 275 (Pa. 2010) (per curiam) (“[A]s a general

matter, it is better to avoid constitutional questions if a non-constitutional

ground for decision is available.”); Commonwealth v. Collins, 286 A.3d 767,

773 (Pa. Super. 2022) (observing that courts often employ “the doctrine of

constitutional avoidance” as “we ought not to pass on questions of

constitutionality ... unless such adjudication is unavoidable”).

The record reflects that at the time of his arrest in this case, Livingston

had a pending felony charge of PWID. See Commonwealth’s Response to

Defendant’s Motion to Dismiss, 12/1/2023, at 3, Exhibit B (secure court

summary). This charge was punishable by imprisonment for a term exceeding

one year. See 35 P.S. § 780-113(a)(30), (f). Contrary to Livingston’s

assertion, the conclusion that he was ineligible to obtain a firearms license in

Philadelphia at the time of his arrest in this case is not hypothetical. To the

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contrary, section 6109(e)(1)(viii) expressly states that a license to carry a

firearm “shall not be issued” to “[a]n individual who is charged with or has

been convicted of a crime punishable by imprisonment for a term exceeding

one year[.]” 18 Pa.C.S. § 6109(e)(1)(viii) (emphasis added). Thus, there is

no question that Livingston was ineligible to obtain a license to a carry a

firearm in Philadelphia at the time of his arrest in this case, independent of

his age. See id.

Moreover, we are unpersuaded by Livingston’s argument that the

General Assembly did not intend for section 6109(e)(1)(viii) to apply to

individuals who were merely charged with, and not convicted of, a crime

punishable by imprisonment for a term exceeding one year. The clear, plain,

and unambiguous language of the provision says otherwise. See

Commonwealth v. Lehman, 311 A.3d 1034, 1044 (Pa. 2024) (recognizing

that when interpreting a statute, “the plain language of the statute” is the best

indicator of what the General Assembly intended when drafting the statute;

“[i]f the statutory language is clear and unambiguous in setting forth the

intent of the General Assembly, then we cannot disregard the letter of the

statute under the pretext of pursuing its spirit”) (quotation mark and citation

omitted).

Section 6109(e)(1)(viii) states an individual “shall not” receive a

license to carry a firearm if they have been “charged with … a crime

punishable by imprisonment for a term exceeding one year[.]” 18 Pa.C.S.

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§ 6109(e)(1)(viii) (emphasis added). This can only be interpreted to mean

that a person charged with a crime punishable by imprisonment for a term

exceeding one year simply cannot obtain a license to carry a firearm.7 See

id.; Lehman, 311 A.3d at 1044.

Based on the foregoing, regardless of section 6109(b)’s age restriction,

Livingston was ineligible to obtain a license to carry a firearm at the time of

his arrest in this case, and he therefore could not lawfully carry a firearm on

the public streets of Philadelphia. Consequently, even if we were to conclude

that section 6108 was unconstitutional as applied to eighteen- to twenty-year-

old individuals, we would still be required to uphold his conviction under

section 6108 on appeal. We therefore conclude that it would be inappropriate

to address the substance of Livingston’s age-based constitutional challenges

to section 6108 pursuant to the doctrine of constitutional avoidance. See

Collins, 286 A.3d at 773. Accordingly, Livingston’s constitutional claims

under both the Second Amendment to the United States Constitution and

Article I, Section 21 of the Pennsylvania Constitution fail.

Equal Protection

____________________________________________

7 We note that to the extent he challenges the constitutionality of section

6109(e)(1)(viii), Livingston failed to preserve such a challenge in his Rule

1925(b) statement. See Rule 1925(b) Statement, 7/10/2023; see also

Pa.R.A.P. 1925(b)(4)(vii) (stating that issues not included in the Rule 1925(b)

statement are waived); Commonwealth v. Lawrence, 99 A.3d 116, 122

(Pa. Super. 2014) (noting that claims regarding “[t]he constitutionality of a

statute can be waived”).

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For his third constitutional claim, Livingston argues that section 6108

violates the Equal Protection Clause of the Fourteenth Amendment to the

United States Constitution8 and Article I, Sections 19 and 2610 of the

Pennsylvania Constitution. See Livingston’s Brief at 35-41. Livingston asserts

that because section 6108 restricts the fundamental right to bear arms, it

must be justified by a compelling government interest and survive strict

scrutiny. Id. at 38. Livingston contends that section 6108, which he

maintains the Generally Assembly enacted to promote public safety, is not a

legitimate public interest sufficient to restrict this constitutional right in urban

areas like Philadelphia, “where the need to bear arms for self-defense against

criminals is greatest.” Id. at 39. Thus, Livingston asserts that the General

Assembly “in [s]ection 6108 did not have the authority to diminish the

____________________________________________

8 “No State shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor shall any State deprive any

person of life, liberty, or property, without due process of law; nor deny to

any person within its jurisdiction the equal protection of the laws.” U.S. CONST.

amend. XIV, § 1.

9 “All men are born equally free and independent, and have certain inherent

and indefeasible rights, among which are those of enjoying and defending life

and liberty, of acquiring, possessing and protecting property and reputation,

and of pursuing their own happiness.” PA. CONST. art. I, § 1.

10 “Neither the Commonwealth nor any political subdivision thereof shall deny

to any person the enjoyment of any civil right, nor discriminate against any

person in the exercise of any civil right.” PA. CONST. art. I, § 26.

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constitutional rights of those living in Philadelphia because it viewed the city

as a high crime area.” Id. at 40.11

“The essence of the constitutional principle of equal protection under the

law is that like persons in like circumstances will be treated similarly.”

Commonwealth v. Alston, 233 A.3d 795, 805 (Pa. Super. 2020) (quotation

marks and citation omitted). “However, it does not require that all persons

under all circumstances enjoy identical protection under the law.”

Commonwealth v. Jacquez, 113 A.3d 834, 838 (Pa. Super. 2015).

We analyze constitutional challenges based on equal protection under

the following framework:

Equal protection analysis recognizes three types of

governmental classification, each of which calls for a different

standard of scrutiny. The appropriate standard ... is determined

____________________________________________

11 We note that Livingston does not frame his equal protection challenge to

section 6108 within the context of Bruen. See Livingston’s Brief at 35-41.

In fact, it is not until his reply brief that Livingston even mentions Bruen in

relation to his equal protection challenge, and even there, he does so in

passing. See Livingston’s Reply Brief at 19-20; see also infra, note 12. This

is insufficient to raise the claim that the Bruen analysis applies in the equal

protection context to the extent the equal protection claim raised relates to

gun ownership or rights. See Commonwealth v. Fahy, 737 A.2d 214, 218

n.8 (Pa. 1999) (“[A]n appellant is prohibited from raising new issues in a reply

brief. Moreover, a reply brief cannot be a vehicle to argue issues raised but

inadequately developed in appellant’s original brief.”); see also

Commonwealth v. Otero, 860 A.2d 1052, 1054 (Pa. Super. 2004) (“Issues

presented before this court for the first time in a reply brief are waived.”).

Rather, throughout his principal brief, Livingston presents his equal protection

challenge to section 6108 as separate and distinct from his challenges to

section 6108 under the Second Amendment to the United States Constitution,

Article I, Section 21 of the Pennsylvania Constitution, and Bruen. See

Livingston’s Brief at 35-41. We therefore do not address whether, and to what

extent, Bruen could apply in the context of an equal protection challenge.

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by examining the nature of the classification and the rights

thereby affected. In the first type of case, where the classification

relates to who may exercise a fundamental right or is based on a

suspect trait such as race or national origin, strict scrutiny is

required. When strict scrutiny is employed, a classification will be

invalid unless it is found to be necessary to the achievement of a

compelling state interest.

The second type of case involves a classification which,

although not suspect, is either sensitive or important but not

fundamental. Such a classification must serve an important

governmental interest and be substantially related to the

achievement of that objective.

The third type of situation involves classifications which are

neither suspect nor sensitive or rights which are neither

fundamental nor important. Such classifications will be valid as

long as they are rationally related to a legitimate governmental

interest.

Commonwealth v. Smith, 320 A.3d 674, 686 (Pa. Super. 2024) (citation

omitted).

With respect to Livingston’s constitutional challenge to section 6108 on

equal protection grounds, we find Commonwealth v. Scarborough, 89 A.3d

679 (Pa. Super. 2014), to be instructive. As in the case at bar, Scarborough

involved a constitutional challenge to section 6108 on the basis that it violated

the right of equal protection under both the United States and Pennsylvania

Constitutions. Id. at 682, 684-85. In rejecting the constitutional challenge

to section 6108, we explained that “[t]he class created by [s]ection 6108,

‘persons located in Philadelphia,’ … and the right at issue under [s]ection 6108,

‘the right to carry a firearm on the streets of Philadelphia without a license,’

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[is] not [a] fundamental right[].” Id. at 686. Thus, we determined that “the

nature of our review as to” section 6108 “must be rational basis.” Id.

Analyzing section 6108 under a rational basis review, this Court

concluded that the provision served a legitimate state interest—namely,

combating gun violence in Philadelphia, as it “is staggeringly disproportionate

to any other area of Pennsylvania.” Id. We reasoned,

[s]ection 6108 rationally addresses gun violence in Philadelphia.

Throughout the Commonwealth of Pennsylvania, a license is

necessary only if carrying a concealed firearm; openly carried

firearms do not require a license. However, in Philadelphia a

firearm carried openly requires a license. Clearly the purpose of

the Legislature in enacting this prohibition is twofold. First, as the

most populated city in the Commonwealth with a correspondingly

high crime rate, the possession of a weapon on a city street,

particularly the brandishing of a weapon, can invoke a fearful

reaction on behalf of the citizenry and the possibility of a

dangerous response by law enforcement officers. Second, a

coordinate purpose is to aid in the efforts of law enforcement in

the protection of the public; in Philadelphia, the police are

empowered to arrest an individual for overtly carrying a firearm

without first determining if it is licensed or operable. We find that

[s]ection 6108 serves a legitimate state interest.

Id. 686-87 (citations omitted). We therefore concluded that section 6108 did

not offend equal protection rights. Id. at 687.

We are bound by our prior decision. See Commonwealth v. Harris,

269 A.3d 534, 539 (Pa. Super. 2022) (explaining “[a]s we often recognize, a

prior published opinion issued by a panel of this Court constitutes binding

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precedential authority”).12 We therefore must reach the same conclusion in

this case, and conclude that section 6108 does not violate the Equal Protection

Clause of the Fourteenth Amendment to the United States Constitution or

Article I, Sections 1 and 26 of the Pennsylvania Constitution. Accordingly,

Livingston’s third constitutional challenge to section 6108 fails.

The Pennsylvania Constitution’s Prohibition Against Local or Special Laws

For his final constitutional challenge, Livingston argues that section

6108 violates the prohibition contained in Article III, Section 32 of the

Pennsylvania Constitution against the enactment of local or special laws.

Livingston’s Brief at 41-44. Livingston asserts that section 6108 is

unconstitutional because the General Assembly intended for it to apply only

to Philadelphia, given that the name of the provision is “[c]arrying firearms

on public streets or public property in Philadelphia[,]” and because as the

____________________________________________

12 Livingston does not cite, let alone distinguish, Scarborough in his principal

brief. In his reply brief, Livingston makes a mere passing reference to the

case, stating, in response to the Commonwealth’s reliance on Scarborough

in its brief:

Respectfully, providing lesser rights to bear arms for those living

in violence prone areas (where citizens have the greatest need to

bear arms) is clearly not a legitimate state interest in light of the

United States Supreme Court precedent. Whether or not

Scarborough was a viable constitutional ruling when it was

decided is not the issue; it clearly is not in light of Bruen.

Livingston’s Reply Brief at 19-20 (citation omitted). This does not provide us

with a basis to overturn our prior precedent. See Fahy, 737 A.2d at 218 n.8;

Harris, 269 A.3d at 539.

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Commonwealth’s only city of the first class, section 6108 does, in application,

only apply to Philadelphia. Id. at 42-44.13

Article III, Section 32 of the Pennsylvania Constitution provides, in

pertinent part, as follows:

The General Assembly shall pass no local or special law in any

case which has been or can be provided for by general law and

specifically the General Assembly shall not pass any local or

special law:

1. Regulating the affairs of counties, cities, townships,

wards, boroughs or school districts…

PA. CONST. art. III, § 32. Of additional relevance, Article III, Section 20 of the

Pennsylvania Constitution provides:

The Legislature shall have power to classify counties, cities,

boroughs, school districts, and townships according to population,

and all laws passed relating to each class, and all laws passed

relating to, and regulating procedure and proceedings in court

with reference to, any class, shall be deemed general legislation

within the meaning of this Constitution.

PA. CONST. art. III, § 20.

____________________________________________

13 Livingston frames this issue as violative of Article III, Section 32 because

section 6108 constitutes a law “[r]egulating the affairs of counties, cities,

townships, wards, boroughs or school districts.” See Livingston’s Brief at 41-

42 (quoting PA. CONST. art. III, § 32). Livingston, however, fails to recognize

or discuss Article IX, Section 13 of the Pennsylvania Constitution, which states

that “[l]ocal and special laws, regulating the affairs of the City of Philadelphia

and creating offices or prescribing the powers and duties of officers of the City

of Philadelphia, shall be valid notwithstanding the provisions of section thirty-

two of Article III of this Constitution.” PA. CONST. art. IX, § 13(b). On this

basis alone, his argument for this issue is arguably meritless.

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Our Supreme Court has explained the difference between local or special

laws and general laws:

In general, a special law is the opposite of a general law. A special

law is not uniform throughout the state or applied to a class. A

general law is. It is well known that the Legislature has classified

cities and counties. A law dealing with all cities or all counties of

the same class is not a special law, but a general law, uniform in

its application. But a law dealing with but one county of a class

consisting of ten, would be local or special.

Appeal of Torbik, 696 A.2d 1141, 1146 (Pa. 1997). Further, this Court has

explained that Article III, Section 20 “expressly authorizes the legislature to

classify political subdivisions” and to pass legislation specific to each class of

city or county as general legislation, not special or local laws. Kistler v.

Carbon Cnty., 35 A.2d 733, 737 (Pa. Super. 1944).14

Section 6108 prohibits individuals “in a city of the first class” from

carrying a firearm in public unless they are licensed to do so or exempt from

licensing requirements. 18 Pa.C.S. § 6108. There is no dispute that

Philadelphia is a city of the first class. See id.; see also 53 P.S. § 101 (stating

that cities “containing a population of one million or over shall constitute the

first class”). Notwithstanding the title of section 6108, the language of section

6108 expressly states that it is applicable to any “city of the first class[.]”

Thus, section 6108 applies to a population-based class of cities and to all cities

____________________________________________

14 Kistler refers to “Art. III, § 34.” Kistler, 35 A.2d at 737. At that time,

the language of Article III, Section 34 contained the exact language that is

now in Article III, Section 20.

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of that class, which is expressly permitted under Article III, Section 20; it does

not apply to a single of a class of several, which would be prohibited under

Article III, section 32. See PA. CONST. art. III, §§ 20, 32; 18 Pa.C.S. § 6108;

see also Torbik, 696 A.2d at 1146. Although Philadelphia is currently the

only city of the first class in Pennsylvania, the possibility of another city in

Pennsylvania becoming a city of the first class still exists, and there is nothing

in the language of section 6108 preventing it from applying to such a city if

that occurs. See 18 Pa.C.S. § 6108.

In support of his claim, Livingston relies on West Mifflin Area School

District v. Zahorchak, 4 A.3d 1042 (Pa. 2010), and Harrisburg School

District v. Hickok, 761 A.2d 1132 (Pa. 2000). Both cases involve laws that

are distinguishable from section 6108. In Zahorchak, the statutory

provisions at issue, sections 1607.1 and 1113(b.2) to the School Code,15

required the reassignment of students from distressed and shuttered school

districts stemming from low test scores to neighboring school districts and

preferential hiring of the furloughed teachers from the shuttered school

districts by neighboring school districts. Zahorchak, 4 A.3d at 1044.

Although the law set forth a litany of criteria for a school district to be required

to have its students reassigned to, and faculty rehired by, neighboring school

districts, our Supreme Court found that there was only one school district in

____________________________________________

15 24 P.S. §§ 16-1607.1, 11–1113(b.2).

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Pennsylvania that met, and would likely ever meet, the criteria of sections

1607.1 and 1113(b.2)—the Duquesne City School District. Id. Consequently,

the Court determined that those provisions violated the constitutional

prohibition of Article III, Section 32 against special legislation because the

provisions were “always intended … to provide a remedy solely for the adverse

circumstances obtaining within the Duquesne City School District upon

elimination of its high school[.]”

Similarly, in Hickok, the law at issue, section 1707–B (the Reed

Amendment) of the Education Empowerment Act,16 set forth action and

improvement plans for reinvigorating school districts that had a history of poor

test performance. Hickok, 761 A.2d at 1135. The law, however, expressly

provided for handling the Harrisburg School District differently from all other

school districts in the event it became a district with a history of poor test

performance. Id. at 1135-36. Our Supreme Court held that section 1707-B

violated the constitutional prohibition of Article III, Section 32 against special

legislation because the law could only possibly ever apply to one school

district. Id. at 1136.

Unlike the laws at issue in Zahorchak and Hickok, section 6108

expressly applies to an entire population-based class of cities—cities of the

first class—and there is no language in section 6108 precluding it from

____________________________________________

16 No. 2000–16 (Act 16) and section 8.1 of Act 16 (the Educational

Empowerment Act).

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applying to other cities of the first class. See 18 Pa.C.S. § 6108. Thus, in

alignment with the definition of a general law, section 6108 is a law dealing

with and uniform in its application to all cities of the first class. See Torbik,

696 A.2d at 1146. Although the possibility that another city in Pennsylvania

other than Philadelphia will become a city of the first class remains remote at

the present time, section 6108 is not constructed in a manner such that it

could only ever apply to Philadelphia.

Moreover, our Supreme Court has specifically stated that it is not the

size of the class that is material when determining whether a law constitutes

a local or special law as opposed to a general law, but rather whether that law

applies uniformly to all members of a particular class. See Torbik, 696 A.2d

at 1146. Thus, the fact that Philadelphia is the only city of the first class is

immaterial to the determination of whether section 6108 is an unconstitutional

local or special law. See Wings Field Preservation Assocs., L.P. v.

Commonwealth, Dept. of Transp., 776 A.2d 311, 318 (Pa. Cmwlth. 2001)

(“A law’s special or general nature is not dependent upon the size of the class

which is not treated uniformly it is determined by that treatment's uniformity,

or lack thereof, in relation to the entire class, notwithstanding the number of

members therein.).17

____________________________________________

17 “This Court is not bound by the decisions of the Commonwealth Court.

However, such decisions provide persuasive authority, and we may turn to

our colleagues on the Commonwealth Court for guidance when appropriate.”

Commonwealth v. Hunt, 220 A.3d 582, 590 n.6 (Pa. Super. 2019).

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Based on the foregoing, we conclude that section 6108 constitutes a

general law, and does not violate the prohibition contained in Article III,

Section 32 against local or special legislation. Accordingly, Livingston’s final

constitutional challenge to section 6108 fails.

Conclusion

Livingston has failed to raise a meritorious challenge to either the denial

of his suppression motion or to the constitutionality of section 6108.

Accordingly, we affirm his judgment of sentence.

Judgment of sentence affirmed.

Date: 12/17/2024

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