The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ZYWON SAEED WARREN :
:
Appellant : No. 64 MDA 2025
Appeal from the Judgment of Sentence Entered December 11, 2024
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005241-2022
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.
MEMORANDUM BY PANELLA, P.J.E.: FILED: DECEMBER 31, 2025
Zywon Saeed Warren appeals from the judgment of sentence entered
in the Court of Common Pleas of York County after a jury convicted him of
persons not to possess a firearm and carrying a firearm without a license.1 On
appeal, Warren challenges the sufficiency of the evidence to sustain his
convictions and the constitutionality of Sections 6105 and 6106. After careful
review, we affirm.
The trial court accurately summarized the facts underlying Warren’s
convictions, based on the evidence presented at trial, as follows:
On June 25, 2021, around midnight, Sergeant Zachary Martz [ ]
of [the] West Manchester Police Department, observed a vehicle
driving eastbound on Route 30 with license plate lights that were
burned out. [Seargeant Martz] pulled out onto Route 30 to pursue
the vehicle and then observed the driver switching lanes multiple
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1 18 Pa.C.S.A. §§ 6105(a)(1) and 6106(a)(1), respectively.
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times. Upon approaching the vehicle, [Seargeant Martz] ran the
registration prior to initiating the traffic stop, which [indicated
that] the vehicle belonged to a Savion Harrison[, who had] an
active warrant. As [Seargeant Martz] continued following the
vehicle, the driver abruptly began changing between multiple
lanes and then headed southbound on Pennsylvania Avenue. At
that time, [Seargeant Martz] initiated a traffic stop of the vehicle
and called for back-up from other officers. As [Seargeant Martz]
approached the vehicle, he observed that there were multiple
occupants inside the vehicle and could smell a faint odor of burnt
marijuana emanating from the vehicle. [Seargeant Martz]
identified the driver as Savion Harrison. The rear seat passenger
was identified as Jason Wilson, and the front seat passenger was
identified as [Warren]. [Warren] amicably provided his name and
date of birth to allow [Seargeant Martz] to identify him.
When [a backup officer] arrived on scene, [Seargeant Martz]
requested that the driver exit the vehicle for further discussion.
The driver was visibly shaking. [Seargeant Martz] requested
permission to search the vehicle. The driver declined consent to
search. [Seargeant Martz] then called for a K-9 unit to respond to
the traffic stop location and perform a search of the vehicle. Prior
to the K-9 officer’s arrival, [Seargeant Martz] then requested that
the remaining occupants exit the vehicle. After a brief time,
[Seargeant Martz] released the passenger occupants of the
vehicle, including [Warren], who exited the scene. Then Officer
[Derek] Smith, [of the] Southern Regional Police Department,
arrived on scene with his K-9 partner. The K-9 circled the vehicle
and positively alerted to the presence of narcotics. After the
positive alert, [Seargeant Martz] impounded the vehicle.
Following the traffic stop and subsequent impounding of the
vehicle, [Seargeant Martz] applied for a search warrant for the
vehicle, which was granted. [Seargeant Martz], along with
Lieutenant Emig, then executed the search warrant of the vehicle.
A loaded Springfield firearm was recovered under the driver’s
seat. A bookbag was recovered on the rear passenger seat, which
contained three pairs of moving gloves and a fanny pack with
loose marijuana[, ] clear plastic baggies of marijuana[,] and cigar
rolling papers inside. A loaded Smith & Wesson firearm, a digital
scale, and two baggies of cocaine were recovered under the
passenger side seat—where [Warren] was seated. Each baggie of
cocaine was weighed during the lab testing; the first baggie
weighed 51.64 grams, and the second baggie recovered weighed
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2.66 grams. At the conclusion of the search of the vehicle, the
firearms were sent to the Pennsylvania State Police Lab to be
swabbed for DNA.
Later, Detective DeWitt applied for and obtained a search warrant
for a buccal swab of [Warren]. This buccal swab was also sent to
the Pennsylvania State Police Lab to compare to the samples
recovered from the firearms. Taylor Richart, [of the] Pennsylvania
State Police[] Forensic DNA Division, received the DNA
submissions in this case—the firearms and [Warren’s] DNA. After
analyzing the DNA results from the Smith & Wesson firearm,
Richart was able to obtain a partial profile that contained three
individual DNA contributors on the firearm. According to Richart,
the third contributor was a “trace contributor” and therefore no
analysis could be provided. [N.T. Jury Trial, 10/3/24, at 194.] The
number one contributor was observed to have contributed to 57%
and the number two contributor was observed to have contributed
to 32% of the recovered DNA. The DNA profile found on the Smith
& Wesson firearm was consistent with [Warren’s] profile[.] Richart
further explained that [Warren’s] profile was consistent with the
number two contributor, which contributed to 32% of the
recovered DNA.
Trial Court Opinion, 3/11/25, at 1-4 (record citations omitted).
On November 16, 2021, Warren was charged with one count each of
persons no to possess a firearm, carrying a firearm without a license,
possession with intent to deliver a controlled substance (“PWID”), 2 criminal
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2 35 P.S. § 780-113(a)(30).
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conspiracy—PWID,3 intentional possession of a controlled substance,4 criminal
conspiracy—intentional possession,5 and possession of drug paraphernalia.6
On June 15, 2023, Warren filed a counseled motion to dismiss the
charge of persons not to possess a firearm. In his motion, Warren conceded
that his prior corruption of minors7 conviction prohibited him from possessing
a firearm pursuant to 18 Pa.C.S.A. § 6105(b) and that his prior PWID—
marijuana8 conviction prohibited him from possessing a firearm under 18
Pa.C.S.A. § 6105(c)(2). See Motion to Dismiss, 6/15/23, at ¶¶ 6-8. However,
Warren alleged that prosecution of his Section 6105 charge would violate his
Second Amendment right to bear arms because he “has never been convicted
of a crime of violence and is not disallowed from possessing a firearm for any
other reason” than his prior convictions. Id. at ¶ 10. The Commonwealth filed
a motion in opposition in which it argued that “disarming fugitives falls
squarely within the established tradition of disarming groups based on
status[,]” and therefore, the “historical analogue for disarming fugitives is
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3 18 Pa.C.S.A. § 903(a)(1)—35 P.S. § 780-113(a)(30).
4 35 P.S. § 780-113(a)(16).
5 18 Pa.C.S.A. § 903(a)(1)—35 P.S. § 780-113(a)(16).
6 35 P.S. § 780-113(a)(32).
7 18 Pa.C.S.A. 6301(a)(1)(i).
8 35 P.S. 780-113(a)(30).
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clear” and supports its assertion that Section 6105 is constitutional as applied
to Warren. Memorandum in Opposition, 9/22/23, at 3.
Warren’s motion to dismiss was joined with those filed on behalf of other
similarly situated defendants charged under Section 6105 where the basis of
the firearm prohibition was an underlying felony drug offense. See Scheduling
Order, 9/7/23. On October 31, 2023, an en banc panel of York County Court
of Common Pleas judges issued an order and opinion denying the motions.
Notably, the panel rejected the defendants’ contention that PWID is a non-
violent felony and instead determined that “the nature of drug dealing is
inherently dangerous and violent.” Order and Opinion, 11/1/23, at 7.
Warren’s case proceeded to a jury trial at which he was convicted of
persons not to possess a firearm and carrying a firearm without a license and
acquitted of all other offenses. On December 11, 2024, the trial court
sentenced Warren to 5 to 10 years’ incarceration for his persons not to possess
a firearm conviction and a concurrent sentence of 3 to 6 years for carrying a
firearm without a license. On January 9, 2025, Warren filed a notice of appeal
from his judgment of sentence. Both Warren and the trial court have complied
with Pa.R.A.P. 1925. See Pa.R.A.P. 1925(a), (b).
On appeal, Warren presents the following questions for our review:
I. Was there insufficient evidence to support the guilty verdict
for person not to possess a firearm and firearm not to be carried
without a license because there was no evidence that [Warren]
possessed or controlled a firearm in a vehicle where the
Commonwealth failed to show that [Warren] had knowledge of the
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firearm’s existence or that he had both the intent and power to
control the firearm?
II. Did the court err in refusing to dismiss [Warren’s] charge
under § 6105(a)(1) for violating the United States Constitution
where the statute regulates conduct protected by the Second
Amendment and the Commonwealth failed to establish that this
restriction is consistent with this Nation’s history of firearm
regulation?
III. Is the vehicle component of § 6101 of the Pennsylvania
Crimes Code—as it relates to § 6106(a)(1), the provision under
which [Warren] was convicted—facially unconstitutional under
a. the Second Amendment of the United States
Constitution?
b. Article I, Section 21 of the Pennsylvania Constitution,
which provides greater protection of the right to keep and
bear arms than does the Second Amendment?
Appellant’s Brief, at 4 (formatting altered; unnecessary capitalization and
suggested answers omitted).
In his first issue, Warren challenges the sufficiency of the evidence to
sustain his convictions. “Because evidentiary sufficiency is a question of law,
our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Johnson, 236 A.3d 1141, 1152 (Pa. Super. 2020) (en
banc) (citation omitted).
When reviewing a challenge to the sufficiency of the evidence, we
must determine whether, when viewed in the light most favorable
to the Commonwealth as the verdict winner, the evidence
presented at trial and all reasonable inferences derived from the
evidence was sufficient to establish [each element] of the offense
beyond a reasonable doubt. The Commonwealth may sustain its
burden entirely by circumstantial evidence. Moreover, the jury,
which passes upon the weight and credibility of each witness’s
testimony, is free to believe all, part or none of the evidence.
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Commonwealth v. McIntyre, 333 A.3d 417, 432 (Pa. Super. 2025)
(citations omitted). “Any doubts regarding a defendant’s guilt may be resolved
by the fact-finder unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from the combined
circumstances.” Commonwealth v. Mead, 326 A.3d 1006, 1012 (Pa. Super.
2024) (citation omitted).
Warren avers that the Commonwealth’s evidence was insufficient as a
matter of law to support his convictions of persons not to possess a firearm
and carrying a firearm without a license “because there was no evidence that
[he] possessed or controlled a firearm.” Appellant’s Brief, at 11. Specifically,
Warren contends that the evidence failed to prove that he “had knowledge of
the firearm’s existence” or that he “had both the intent and power to control
the firearm.” Id.
To sustain a conviction for persons not to possess a firearm under
Section 6105(a)(1), “the Commonwealth must prove beyond a reasonable
doubt that the defendant [(1)] possessed a firearm and [(2) was previously]
convicted of an enumerated offense that prohibits him from possessing … a
firearm.” Commonwealth v. Batty, 169 A.3d 70, 76 (Pa. Super. 2017)
(citation omitted). To sustain a conviction for carrying a firearm without a
license under Section 6106(a)(1), the Commonwealth must prove that the
defendant “intentionally, knowingly, or recklessly carried a firearm in a vehicle
or concealed on or about his person outside his home or place of business
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without a valid and lawfully issued license.” Mead, 326 A.3d at 1013 (citations
omitted). Accordingly, the Commonwealth must establish the element of
possession to convict a defendant of carrying a firearm without a license. See
Commonwealth v. Muhammad, 289 A.3d 1078, 1090 (Pa. Super. 2023).
The sole element Warren disputes in his sufficiency challenge is
possession of the Smith & Wesson firearm. The Commonwealth can establish
the element of possession by proving actual or constructive possession. See
McIntyre, 333 A.3d at 432. Because the firearm at issue was not recovered
from Warren’s person, but rather from under the vehicle’s passenger seat,
“the concept of constructive possession applies.” Muhammad, 289 A.3d at
1091.
When there is no direct evidence [that] the person was in physical
possession of the firearm, the Commonwealth must prove the
element of possession through what has been described as the
legal fiction of constructive possession. This Court has stated that
a defendant has constructive possession of contraband if he has
conscious dominion of it, that is, he has the power to control the
contraband and the intent to exercise that control. Constructive
possession is an inference arising from a set of facts that
possession of the contraband was more likely than not, and may
be established by the totality of the circumstances[.]
McIntyre, 333 A.3d at 432 (citations, quotation marks, and brackets
omitted). “[A]s with any other element of a crime, constructive possession
may be proven by circumstantial evidence.” Muhammad, 289 A.3d at 1091
(citation omitted).
A defendant’s mere presence at a place where contraband is found
or secreted is insufficient, standing alone, to prove that he
exercised dominion and control over those items. Thus, the
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location and proximity of an actor to the contraband alone is not
conclusive of guilt. Rather, knowledge of the existence and
location of the contraband is a necessary prerequisite to proving
the defendant’s intent to control, and, thus, his constructive
possession.
If the only inference that the fact finder can make from the facts
is a suspicion of possession, the Commonwealth has failed to
prove constructive possession. It is well settled that facts giving
rise to mere association, suspicion[,] or conjecture[] will not make
out a case of constructive possession.
Commonwealth v. Wright, 255 A.3d 542, 553 (Pa. Super. 2021) (quotation
marks, brackets, and citations omitted).
At trial, Sergeant Martz testified that after he initiated the traffic stop
and approached the vehicle, he observed that Harrison, the driver and
registered owner of the vehicle, was acting nervously and that Warren was
the front seat passenger. See N.T. Jury Trial, 10/3/24, at 101, 103-104.
Sergeant Martz testified that the occupants of the vehicle stepped out upon
his request and that, when asked, Warren indicated there was nothing in the
vehicle that Sergeant Martz needed to worry about. See id. at 111. Upon
impounding the vehicle and executing the search warrant, Sergeant Martz
located, inter alia, a Smith & Wesson firearm, with its grip facing toward the
front of the vehicle and its barrel facing toward the passenger door, a digital
scale, and two bags of cocaine under the passenger seat, where Warren had
been seated. See id. at 117-18, 123.
Taylor Richart, who was qualified as an expert in forensic examination
of DNA evidence, testified that the DNA profile obtained from the firearm was
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a mixture of three individuals that “had DNA that was consistent with”
Warren’s DNA profile. Id. at 196. She further testified that it was “110,000
times more likely” that the DNA was “from [Warren] and two unidentified
individuals than [from] three unidentified individuals.” Id. at 197. Richart
concluded that Warren could “be included as a potential contributor” to the
DNA mixture obtained from the firearm, while Harrison, the owner and
operator of the vehicle, could “be excluded as a contributor to the profile.” Id.
at 200.
Viewing this evidence in the light most favorable to the Commonwealth,
we conclude that the Commonwealth adduced sufficient evidence from which
the jury could reasonably infer that Warren had the requisite power and intent
to control the firearm based on his proximity to its location in the vehicle and
the presence of DNA consistent with his DNA profile on the firearm itself. While
we acknowledge that Warren was neither the owner of the vehicle nor its sole
occupant, “[t]he fact that another person may also have control and access
does not eliminate the defendant’s constructive possession.”
Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. 2018) (citation
omitted). Moreover, based on Richart’s conclusion that the DNA profile of the
vehicle’s owner and operator could be excluded as a contributor to the DNA
profile obtained from the firearm, the jury could have reasonably concluded
that the firearm was only in the vehicle for a brief period and was placed under
the passenger seat by Warren, the occupant of the passenger seat. Because
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the Commonwealth’s evidence established that Warren was a potential
contributor to the DNA detected on the firearm and the location of the firearm
was readily accessible to Warren and within his immediate control, the totality
of the circumstances were sufficient to establish that Warren constructively
possessed the firearm. See McIntyre, 333 A.3d at 432.
Therefore, the Commonwealth presented sufficient evidence to prove,
beyond a reasonable doubt, that Warren possessed the firearm for purposes
of sustaining his convictions under Sections 6105(a)(1) and 6106(a)(1).
Accordingly, Warren’s sufficiency challenge fails.
Next, Warren challenges the constitutionality of the statutes underlying
his convictions. “The constitutionality of a criminal statute is a question of law
for which our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Randolph, 343 A.3d 1248, 1251 (Pa. Super.
2025) (internal quotation marks and citation omitted).
[A] statute is presumed to be constitutional and will only be
invalidated as unconstitutional if it clearly, palpably, and plainly
violates constitutional rights. Further, 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. Bradley, 232 A.3d 747, 756 (Pa. Super. 2020) (citation
omitted).
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In his second issue, Warren raises an as-applied challenge to the
constitutionality of Section 6105(a)(1) based on the Second Amendment to
the United States Constitution, which provides: “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.
Warren does not dispute that he is prohibited from possessing a firearm
in accordance with Section 6105(c) based on his prior PWID9 conviction. See
Appellant’s Brief, at 18. Rather, he avers that his conviction under Section
6105(a)(1) is unconstitutional because the statute “infringes conduct that is
protected under the text of the Second Amendment[,] and the Commonwealth
has failed to supply a well-established and representative historical analogue
for categorically disallowing those convicted of nonviolent felonies from
possessing firearms.” Appellant’s Brief, at 20-21 (internal quotation marks
and citation omitted).
Warren’s challenge is premised upon New York State Rifle & Pistol
Association, Inc. v. Bruen, 597 U.S. 1, 19 (2022), in which the United
States Supreme Court rejected the use of means-end scrutiny for reviewing
the constitutionality of a statute alleged to violate the Second Amendment and
instead promulgated the following standard:
____________________________________________
9 Warren does not raise any argument concerning his prior corruption of
minors conviction, which also prohibits him from possessing a firearm
pursuant to 18 Pa.C.S.A. § 6105(b).
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When the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that conduct.
The government must then justify its regulation by demonstrating
that it is consistent with the Nation’s historical tradition of firearm
regulation. Only then may a court conclude that the individual’s
conduct falls outside the Second Amendment’s unqualified
command.
Bruen, 597 U.S. at 24 (quotation marks and citation omitted). The Court
further explained that “analogical reasoning requires only that the government
identify a well-established and representative historical analogue, not a
historical twin. So even if a modern-day regulation is not a dead ringer for
historical precursors, it still may be analogous enough to pass constitutional
muster.” Id. at 30 (emphases omitted). As a preliminary matter, when faced
with a Second Amendment challenge, we must determine whether the
appellant is one of “the people” protected by the Second Amendment. See
Commonwealth v. Jenkins, 328 A.3d 1076, 1085 (Pa. Super. 2024).
Depending upon this determination, we next consider (1) whether the plain
text of the Second Amendment covers the appellant’s proposed course of
conduct and (2) whether the Commonwealth met its burden of demonstrating
that the regulation is consistent with our tradition of firearm regulation. See
id. at 1087-88.
Following its decision in Bruen, in United States v. Rahimi, 602 U.S.
680 (2024), the Supreme Court considered a Second Amendment challenge
to U.S.C. § 922(g)(8), which prohibited persons subject to a domestic violence
restraining order from possessing firearms. The Court applied Bruen and
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further clarified how lower courts should assess whether the government has
met its burden of justifying the firearm regulation at issue by demonstrating
its consistency with our history and tradition of firearm regulation:
A court must ascertain whether the new law is relevantly similar
to laws that our tradition is understood to permit, applying
faithfully the balance struck by the founding generation to modern
circumstances. …. As Bruen explained, a challenged regulation
that does not precisely match its historical precursors still may be
analogous enough to pass constitutional muster.
* * *
Why and how the regulation burdens the right are central to this
inquiry. For example, if laws at the founding regulated firearm use
to address particular problems, that will be a strong indicator that
contemporary laws imposing similar restrictions for similar
reasons fall within a permissible category of regulations. Even
when a law regulates arms-bearing for a permissible reason,
though, it may not be compatible with the right if it does so to an
extent beyond what was done at the founding. And when a
challenged regulation does not precisely match its historical
precursors, it still may be analogous enough to pass constitutional
muster. The law must comport with the principles underlying the
Second Amendment, but it need not be a dead ringer or a
historical twin.
Rahimi, 602 U.S. at 681, 692 (internal quotation marks and citations
omitted). The Rahimi Court upheld the constitutionality of Section 922(g)(8),
upon determining that “[o]ur tradition of firearm regulation allows the
Government to disarm individuals who present a credible threat to the physical
safety of others.” Rahimi, 602 U.S. at 700, 144 S.Ct. 1889.
Considering the foregoing precedent, we turn to Warren’s as-applied
challenge. Section 6105(a)(1) prohibits Warren from possessing a firearm
based on his prior felony PWID conviction. Because this Court has already
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determined that convicted felons are encompassed within the term “the
people” for Second Amendment purposes10 and that the Second Amendment’s
plain text covers the course of conduct prohibited by Section 6105, Warren
has satisfied the first step of the Bruen analysis. See Randolph 343 A.3d at
1256 (“[I]n the context of an as-applied challenge to § 6105, ‘the people’
encompasses all Americans, even criminals.”) (citing Commonwealth v.
Farmer, 329 A.3d 449, 455 (Pa. Super. 2024)).
Proceeding to the second prong of the Bruen analysis, we must consider
whether the Commonwealth has satisfied its burden of demonstrating that
Section 6105’s prohibition on Warren’s right to bear arms is consistent with
the nation’s historical tradition of firearm regulation. The Commonwealth
avers that the nation has a longstanding history and tradition of disarming
those who pose a danger to public peace, such as felons convicted of drug
dealing. See Appellee’s Brief, at 29. Relying on Rahimi, inter alia, the
Commonwealth contends that historically, legislatures have addressed
firearms violence through surety laws, which “authorized magistrates to
require individuals suspected of future misbehavior to post bond[,]” and going
armed laws, which “prohibited people from riding or going armed, with
dangerous or unusual weapons, to terrify the good people of the land.”
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10 While we acknowledge that the Commonwealth disputes whether Warren is
one of the people protected by the Second Amendment, see Appellee’s Brief,
at 23-29, Randolph is dispositive on this issue.
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Appellee’s Brief, at 30 (internal quotation marks and brackets omitted) (citing
Rahimi, 602 U.S. at 695-96). The Commonwealth further maintains:
The disarming under the modern person not to possess statute is
“relevantly similar” to surety and going armed laws in how and
why it disarms a person because it only restricts firearm
possession for persons who present a credible threat of violence[]
and does not restrict possession by the public generally. [Rahimi,
602 U.S. at 698-99).] Importantly, going armed laws allowed for
imprisonment if violated; thus, the how is sufficiently similar
between going armed laws and the person not to possess statute.
Id. at 700.
Appellee’s Brief, at 31 (unnecessary capitalization omitted).
Warren argues that under the Bruen framework, the Commonwealth
failed to meet its burden of identifying a legitimate historical analogue for
“categorically disallowing those convicted of nonviolent felonies[,]” such as
PWID, “from possessing firearms.” Appellant’s Brief, at 20-21. Warren further
contends that the trial court erred in denying him relief because it did not
“provide a convincing reason to uphold Section 6105” where its opinion “failed
to cite a single regulation from before the 20th century that directly disarmed
anyone based on prior convictions.” Id. at 22. Warren acknowledges that
under Rahimi, individuals who present a credible threat to the physical safety
of others may be constitutionally disarmed but contends that the temporary
disarmament in Rahimi is not analogous to his prohibition from possessing a
firearm because Section 6105 imposes a “permanent disarmament” and he
“has never been adjudicated to be dangerous or threatening.” Id. at 25.
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This Court’s recent decision in Randolph, which addressed both a facial
and as-applied Second Amendment challenge to Section 6105, is analogous
to the case sub judice. Pursuant to the second step of the Bruen analysis, the
Randolph panel considered the pertinent jurisprudence and determined that
Section 6105’s prohibition on the appellant’s possession of a firearm was
consistent with the nation’s historical tradition of firearm regulation where the
trial court specifically found drug trafficking to be an inherently dangerous
offense, and thus, appellant’s prior PWID convictions placed him in a category
of persons who pose a credible threat to others. See Randolph, 343 A.3d at
1258. The panel concluded that “America’s history of prohibiting certain
classes of people from having firearms, particularly those that could pose a
higher risk of danger to society, provides a historical analogue required by
Bruen for § 6105, even if it is not a historical twin.” Id. at 1259 (internal
quotation marks and citation omitted). Therefore, because Section 6105’s
prohibition on the right to bear arms was supported by adequate historical
analogues, the panel determined that the appellant’s as-applied challenge to
the constitutionality of the statute failed under Bruen. See id.
Similarly, here, we find that the Commonwealth has met its burden. As
detailed at length above, the Commonwealth presented evidence of a
historical tradition of prohibiting individuals who pose a credible threat of
violence, such as those convicted of drug trafficking, from possessing
firearms, see Appellee’s Brief, at 29-38, which this Court previously
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determined to be an adequate historical analogue for purposes of upholding
the constitutionality of Section 6105 under Bruen. See Randolph, 343 A.3d
at 1259. Moreover, in Randolph, we explicitly rejected the arguments Warren
raises in his brief:
In reaching this decision, we necessarily conclude that Appellant’s
arguments to the contrary are unpersuasive. Although he devotes
a significant portion of his brief to describing that PWID is not a
“crime of violence,” that contention is unavailing since “crime of
violence” is not the term utilized by the U.S. Supreme Court
throughout its recent case law. Instead, the Rahimi Court
highlighted that firearm prohibitions may apply to those that pose
a credible threat to the safety of another. Drug traffickers fit that
mold.
Next, although Appellant is correct that there is no identical
provision from the founding era restricting drug traffickers from
having firearms, likely arising from the lack of existence of this
crime in that era, that does not entitle him to relief. It is clear that
historical analogues are close enough to show that § 6105 has a
historically rooted how and why of restricting firearm possession.
No “dead ringer” is required. See Bruen, 597 U.S. at 26 ....
Finally, [] the ban imposed pursuant to § 6105 is not permanent
because Pennsylvania law permits restoration of gun rights in
certain circumstances. See, e.g., 18 Pa.C.S.[A.] § 6105(d)
(allowing for application to the court of common pleas for relief
from the disability imposed by this section); see also 18
Pa.C.S.[A.] § 6105.1 (outlining procedure for restoration of
firearms rights restricted by § 6105). Section 6105 is then, in that
sense, less restrictive than some of the historical laws that
permanently disarmed individuals without any conviction simply
because they belonged to a certain class.
Id. (some quotation marks omitted).
Therefore, in light of our decision in Randolph, Warren, who was
previously convicted of PWID, may be constitutionally disarmed under Section
6105 in accordance with the Second Amendment, where the trial court
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determined that he posed a credible threat to the safety of others because
“the nature of drug distribution as a felony is violent, both in the inherent
dangerousness of the drugs on the street today and in the strong connection
between drug distribution and the violent use of firearms.” Order and Opinion,
11/1/23, at 5. Accordingly, Warren’s as-applied challenge to Section 6105
fails.
In his third issue, Warren raises a facial challenge to the constitutionality
of Section 6106 under both the United States and Pennsylvania Constitutions,
which we review in accordance with Bruen. See Barris v. Stroud Township,
310 A.3d 175, 203 (Pa. 2024) (Pennsylvania Supreme Court reviewed a facial
challenge to a shooting range exception to a Township’s local ordinance under
Second Amendment analysis). Specifically, Warren avers that, under Bruen,
Section 6106 is facially unconstitutional because it burdens conduct protected
by the Second Amendment and “there is no historical tradition of regulating
such conduct.” Appellant’s Brief, at 26. Warren further avers that Section 6106
“violates Article I, Section 21 of the Pennsylvania Constitution, which provides
even greater protection for the right to keep and bear arms than the Second
Amendment[.]” Id.
In response, the Commonwealth contends that Warren waived this issue
for our review. See Appellee’s Brief, at 39-40. Warren acknowledges that he
did not raise this challenge before the trial court but argues that he did not
waive the issue because the facial unconstitutionality of Section 6106 “renders
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his conviction and sentence illegal and void.” Appellant’s Brief, at 28-29.
Therefore, according to Warren, this issue can be raised for the first time on
appeal because it “implicates the legality or voidness of [his] conviction and
sentence[.]” Id. at 29 (internal quotation marks and citation omitted).
As the Commonwealth highlights, and our review of the record confirms,
Warren raised his constitutional challenge to Section 6106 for the first time
on January 30, 2025, in his 1925(b) statement.
The Pennsylvania Rules of Appellate Procedure specify that issues
that are not first raised in the trial court are waived on appeal.
See Pa.R.A.P. 302(a). Even issues of constitutional dimension
cannot be raised for the first time on appeal.
Commonwealth v. Papp, 305 A.3d 62, 71 (Pa. Super. 2023) (case citation
omitted). However, “[a] challenge that implicates the legality of an appellant’s
sentence[ ] is an exception to this issue preservation requirement.”
Commonwealth v. Thorne, 276 A.3d 1192, 1196 (Pa. 2022) (citation
omitted). Therefore, where an appellant avers that he received “an illegal
sentence due to a void ab initio conviction[,]” his claim implicates the legality
of his sentence and may be raised for the first time on appeal.
Commonwealth v. McIntyre, 232 A.3d 609, 619 (Pa. 2020). Accordingly,
considering the specific facial constitutional challenge Warren raises, we
decline to find waiver.
Turning to the merits of Warren’s facial challenge, we consider the first
prong of the Bruen analysis, which requires us to determine whether the plain
text of the Second Amendment covers the proposed course of conduct.
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Section 6106(a)(1) prohibits an individual from, inter alia, carrying a firearm
in a vehicle without a valid and lawfully issued license. Warren has satisfied
the first prong, as such conduct is covered by the Second Amendment’s plain
text. See Bruen, 597 U.S. at 10.
Proceeding to the second prong of the Bruen analysis, we must consider
whether the Commonwealth has satisfied its burden of demonstrating that
Section 6106’s limitation on the right to bear arms is consistent with our
historical tradition of firearm regulation. Warren argues that “there is no well-
established and representative historical analogue for restricting the ability to
carry a firearm in a vehicle.” Appellant’s Brief, at 31 (internal quotation marks
and citation omitted). Specifically, Warren contends that “there are no
historical regulations barring the carrying of firearms in motor vehicles from
1791 or 1868[,]” as “such vehicles were not widely used until the beginning
of the 20th century.” Id. at 33. Warren further maintains that “it was not until
140 years after the ratification of the Second Amendment, 63 years after the
ratification of the Fourteenth Amendment, and 28 years after Pennsylvania
began regulating motor vehicles that Pennsylvania began to regulate the mere
carrying of weapons in automobiles through a licensing scheme.” Id. at 34.
Relying on the recent decisions of this Court, the Commonwealth
maintains that Section 6106’s “limitation on carrying a firearm in a vehicle [is]
analogous to historical tradition that restricted the ability of persons to carry
a weapon concealed on one’s person.” Appellee’s Brief, at 39. We agree.
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In upholding the constitutionality of Section 6106 under the Second
Amendment post-Bruen, we have explained that statutes requiring “a person
to obtain a license to carry a firearm [] do not violate the Second Amendment
where the statute does not require the applicant to show any special need and
requires the government to issue the license unless the applicant fails a
background check.” Mead, 326 A.3d at 1015 (citations omitted). Accordingly,
we have held that because Pennsylvania’s shall-issue firearm licensing statute
does not violate the Second Amendment under Bruen, Section 6106 is
likewise constitutional, and an “[a]ppellant’s conviction for carrying a firearm
without a license does not violate his federal constitutional rights.” Id.11
More recently, in Commonwealth v. Williams, 341 A.3d 144 (Pa.
Super. 2025), a panel of this Court specifically considered the constitutionality
of Section 6106’s limitation on the right to carry a firearm in a vehicle. In
doing so, the panel analyzed our nation’s historical tradition of regulating the
concealed carrying of firearms on one’s person and noted that it considered
“the possession of a firearm in a vehicle, as opposed to on one’s person, nearly
indistinguishable.” Williams, 341 A.3d at 158 n. 25. The panel addressed the
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11 Warren asserts that Mead “was wrongly decided where no such licensing
schemes have historically governed the distinct act of bearing arms in a motor
vehicle or in pre-automobile forms of transportation.” Appellant’s Brief, at 36.
However, as Warren acknowledges, Mead is binding precedent, see
Appellant’s Brief, at 36 n.19, and this panel “lacks the authority to overturn
another panel decision.” Commonwealth v. May, 271 A.3d 475, 482 (Pa.
Super. 2022) (citation omitted).
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appellant’s arguments, which are analogous to those raised in the case sub
judice, as follows:
While Williams makes a compelling case that our historical
tradition is rather quiet on the question of carrying firearms in the
available forms of transportation in the 19th century, we do not
need a regulation of that sort to find section 6106 constitutional.
See Bruen, 597 U.S. at 3 … (stating courts need not find “dead
ringer” to hold law constitutional). This reasoning follows a “use it
or lose it view of legislative authority”—it assumes that late-18th
and early-19th century legislatures constitutionally could not have
legislated in this fashion merely because they did not. See
Rahimi, 602 U.S. at 739–40 … (Barrett, J., concurring) (internal
quotation omitted). This rationale, however, is flawed and forces
upon [present-day] legislatures a law trapped in amber. Such an
approach would turn any Second Amendment analysis into a
historical inquiry so exacting as to be useless, a too-sensitive
alarm that sounds whenever a regulation did not exist in an
essentially identical form at the founding.
Instead, this Court need only, and does, consider section 6106
relevantly similar to the many public-carry restrictions which
proliferated after the ratification of the Second Amendment in
1791. See Bruen, 597 U.S. at 50 …. Carrying a weapon concealed
on one’s person versus storing it in the glovebox or center console
is, to this Court, a distinction without a difference. If anything, the
additional number of spaces in which to store a firearm within a
vehicle, the variety of firearms that can be carried within a vehicle
as opposed to concealed on one’s person, and the portability
provided by modern vehicles all weigh in favor of section 6106
applying with greater force to possession within a vehicle than
possession on one’s person.
Id. (some quotation marks, some citations, and brackets omitted). The panel
concluded that because “section 6106 can then be viewed through the same
lens as a standard licensing scheme for concealed carry, Bruen is controlling,
and section 6106’s prohibition on unlicensed individuals possessing a firearm
in a vehicle is similarly constitutional.” Id. (citation omitted). Therefore, this
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Court’s decision in Randolph is dipositive, and Warren’s facial challenge to
the constitutionality of Section 6106 under the Second Amendment fails.
Additionally, Warren raises a facial constitutional challenge to Section
6106 based on Article I, Section 21 of the Pennsylvania Constitution, which
provides: “The right of the citizens to bear arms in defence of themselves and
the State shall not be questioned.” Pa. Const. Art. I, § 21. Although this Court
has repeatedly held, post-Bruen, that Article I, Section 21 offers no greater
protection of the right to bear arms than the Second Amendment, see
Williams, 341 A.3d at 158-59; Mead, 326 A.3d at 1015; Jenkins, 328 A.3d
at 1096, Warren impermissibly asks this panel to find that our state
constitution offers broader protection than its federal counterpart. See
Appellant’s Brief, at 39-47; May, 271 A.3d at 482. Therefore, based on our
determination that Section 6106 does not violate the Second Amendment,
Warren’s Article I, Section 21 challenge likewise fails.
For the foregoing reasons, Warren is not entitled to his requested relief,
and we affirm his judgment of sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/31/2025
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