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March 4, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Carlton, O.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 2458 EDA 2024
• Precedential Status: Non-Precedential

• Judges: Nichols

• Opinion

• Authorities (5)

• Cited By (0)

• Summaries (0)

• Similar Cases (12.7K)

• PDF

Combined Opinion

                        by Nichols

J-S31032-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OMAR CARLTON :
:
Appellant : No. 2458 EDA 2024

Appeal from the Judgment of Sentence Entered August 26, 2024
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0008268-2021

BEFORE: PANELLA, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED MARCH 4, 2026

Appellant Omar Carlton appeals from the judgment of sentence imposed

after he pled guilty to one count of carrying a firearm on public streets or

public property in Philadelphia.1 On appeal, Appellant contends that he

properly preserved a challenge to the constitutionality of Section 6108 and

argues that Section 6108 is unconstitutional because individuals between the

ages of eighteen and twenty are statutorily precluded from obtaining a license

to carry a firearm concealed on their person or in a vehicle pursuant to 18

Pa.C.S. §§ 6106, 6108, and 6109.2 After review, we affirm.

---

1 18 Pa.C.S. § 6108.

2 We note that Section 6106(a)(1) defines the crime of firearms not to be
carried without a license as follows:

(Footnote Continued Next Page)
J-S31032-25

The trial court summarized the relevant facts and procedural history of

this matter as follows:

On July 17, 2021, Philadelphia police officers pulled over a vehicle
for running a red light. Police observed Appellant, the front seat
passenger, reach into the backseat behind the driver. When
officers approached the vehicle, they saw a rifle on the floor of the
backseat behind the driver’s seat, partially covered with a bag.

---

(a) Offense defined.—

(1) Except as provided in paragraph (2), any person who
carries a firearm in any vehicle or any person who carries a
firearm concealed on or about his person, except in his place
of abode or fixed place of business, without a valid and lawfully
issued license under this chapter commits a felony of the third
degree.

18 Pa.C.S. § 6106(a)(1). Further, Section 6108 provides, in relevant part:

No 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[.]

18 Pa.C.S. § 6108(1). Section 6109(a) and (b), concerning licensing, states:

(a) Purpose of license.—A license to carry a firearm shall be for
the purpose of carrying a firearm concealed on or about one’s
person or in a vehicle throughout this Commonwealth.

(b) Place of application.—An individual who is 21 years of age
or older may apply to a sheriff for a license to carry a firearm
concealed on or about his person or in a vehicle within this
Commonwealth. If the applicant is a resident of this
Commonwealth, he shall make application with the sheriff of the
county in which he resides or, if a resident of a city of the first
class, with the chief of police of that city.

18 Pa.C.S. § 6109(a)-(b) (emphasis added).

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J-S31032-25

Appellant admitted ownership of the rifle and did not have a
license to carry the firearm.[3] Police officers arrested Appellant
and he was charged with two violations of the Uniform Firearms
Act (VUFA): [18 Pa.C.S.] § 6106, carrying a firearm without a
license; and [18 Pa.C.S.] § 6108, carrying a firearm on public
streets or public property in Philadelphia. Appellant was under
21 years old at the time of his arrest.4.

On August 26, 2024, Appellant appeared before this court and
pled guilty to VUFA [18 Pa.C.S.] § 6108. Pursuant to his
negotiated guilty plea agreement, this court sentenced him to two
years reporting probation.

Trial Ct. Op., 12/18/24, at 2 (some formatting altered).

Appellant did not file post-sentence motions. On September 13, 2024,

Appellant filed a timely notice of appeal. Both the trial court and Appellant

have complied with Pa.R.A.P. 1925.

On appeal, Appellant presents the following issues, which we have

reordered as follows:

1. Does not Appellant have a right on this appeal to a decision
   on the merits of the constitutional claims?

2. Is 18 Pa.C.S. § 6108 unconstitutional on its face and as applied
   to 18-20-year-olds under the United States Constitution, and
   independently the Pennsylvania Constitution for three separate
   reasons?

---

3 The firearm was an AR-15 .223 caliber rifle that was loaded with eighteen

rounds and one round in the chamber of the firearm. See N.T. 8/26/24, at
14.

4 Appellant’s date of birth is December 11, 2001. See Sentencing Order,
8/26/24; Appellant’s Rule 1925(b) Statement, 10/29/24, at 1. Accordingly,
Appellant was nineteen years of age at the time the offense on July 17, 2021.

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J-S31032-25

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 that provides that the right to bear arms “shall
not be questioned”, and Article I, Section I, that provides a
right of self-defense.

c. Section 6108 violates the equal protection rights of people
in Philadelphia, and most severely those who are 18-20
years old.

Appellant’s Brief at 2 (some formatting altered).

Because Appellant’s issues are interrelated, we address them together.

Here, Appellant argues that he has a right to challenge the constitutionality of

Section 6108 and contends that he preserved this issue on appeal. See id.

at 23-27. As stated above, Appellant pled guilty to carrying a firearm on public

streets or public property in Philadelphia under Section 6108.

This Court has explained:

Generally, “upon entry of a guilty plea, a defendant waives all
claims and defenses other than those sounding in the jurisdiction
of the court, the validity of the plea, and what has been termed
the ‘legality’ of the sentence imposed[.]” Commonwealth v.
Eisenberg, 98 A.3d 1268, 1275 (Pa. 2012). A
guilty plea, however, does not always extinguish all claims outside
of these three categories. In Commonwealth v. Singleton, 169
A.3d 79 (Pa. Super. 2017), this Court recognized that defendants
may enter a guilty plea conditioned on the preservation for appeal
of issues outside of these categories. Singleton, 169 A.3d at 81 -
82 (stating that “[w]hile our courts have not specifically addressed
the validity of conditional plea agreements, our courts have
proceeded to review the merits of issues specifically reserved in
plea agreements” (citations omitted)). Therefore, an issue may
be properly preserved for appeal, despite entry of a guilty plea, if
a defendant raised that issue prior to entering a guilty plea
and specifically reserved the right to seek appellate review

-4-
J-S31032-25

of that issue as part of the plea agreement. See id.; accord
Eisenberg, 98 A.3d at 1274-75 (concluding that the defendant
“adequately preserved [] his claim for Rule 302 purposes at the
plea hearing”). In reviewing the terms of a plea agreement, we
approach the plea agreement as a contract, “to be analyzed under
contract-law standards.” Commonwealth v. Snook, 230 A.3d
438, 444 (Pa. Super. 2020). In a dispute over the terms of a plea
agreement, “[a]ny ambiguities . . . will be construed against the
Government.” Id.

Commonwealth v. Speed, 323 A.3d 850, 853-54 (Pa. Super. 2024)

(emphasis added).

Here, the record reflects that at the guilty plea hearing, Appellant sought

to preserve his challenge to the constitutionality of Section 6108, should an

appellate court hold that Section 6108 prohibitions did not apply to individuals

under twenty-one. N.T., 8/26/24, at 9; Trial Ct. Op., 12/18/24, at 2-3.

[Appellant’s Counsel]: I apologize, your Honor. There’s one other
condition. I’m not sure if I should have written it on the form or
just state it now for the record. As part of this guilty plea, the
Commonwealth has agreed to preserve the issue of the under 21
VUFA. Should that law change in the future, we’re preserving that
issue for Appellant to file any appropriate motions at that time.

THE COURT: I’d like to think that that’s the case in every case.

[Appellant’s Counsel]: Yes, your Honor.

THE COURT: I suppose if you don’t object to it. He wasn’t one of
the ones who filed the . . . .

[Appellant’s Counsel]: He was. I want to make sure it’s on the
record.

THE COURT: No problem.

[Appellant’s Counsel]: As that guilty plea indicates this young man
loses any and all appellate rights when he enters a guilty plea. So
I just wanted to make sure.

-5-
J-S31032-25

THE COURT: So he reserves the right to appeal based on any
change in the law for the 6108?

[Appellant’s Counsel]: Yes, your Honor.

THE COURT: Is that right?

[Appellant’s Counsel]: Yes, 6108. Yes, your Honor.

THE COURT: Is that your understanding?

[Assistant District Attorney]: That’s my understanding, your
Honor. Yes.

THE COURT: Is that your understanding of the deal?

THE COURT: Other than what we just talked about, has anyone
promised you anything else to plead guilty?

THE COURT: Are you talking about the United States Supreme
Court?

[Appellant’s Counsel]: If the Pennsylvania Supreme Court decides
to announce that they are going to follow the federal constitution.

THE COURT: I’m not going to characterize it that way. I’m going
to characterize it in the event that an appellate court with
jurisdiction over this court determines that defendants or
individuals in [Appellant’s] class being under 21 are not
liable for 6108 violations.

---

THE COURT: So this is what I have. This is what I have written.
Appellant reserves the right to appeal 6108 in the event
that any appellate court with jurisdiction over this court
holds that individuals under 21 would not be in violation of
section 6108.

[Appellant’s Counsel]: Yes. That makes sense.

THE COURT: So that’s your understanding of the deal?

---

-6-
J-S31032-25

THE COURT: Very good. So that’s a yes.

After you plead guilty, you only have four limited grounds upon
which to challenge your conviction. One, if I as the judge did not
have the power to hear your case. Two, if your sentence was
illegal. Three, if your plea was involuntary. Four, if your attorney
was ineffective.

We are taking note part of your deal is that appellate right. So
you’re not waiving that appellate right; okay? For a higher
court saying that under 21 people don’t have to follow
6108. Once I agree to accept your plea, that will be the end of
your case.

Knowing all of this, do you still wish to plead guilty –

N.T., 8/26/24, at 7-11 (some formatting altered and emphases added). 5

In his Rule 1925(b) statement, Appellant stated:

1. On August 26, 2024 Appellant entered a conditional guilty plea to 18 Pa.C.S. §6108. With the approval of the [trial court] and the consent of the prosecution Appellant reserved the right to challenge the constitutionality of Section 6108 on appeal. . . .

---

1. The issues on appeal involve the denial of the motion to dismiss 18 Pa.C.S. § 6108 that claimed that the statute is unconstitutional facially and as applied. 18 Pa.C.S. § 6108 criminalizes the conduct of 18-20-year-olds for publicly carry[ing] a firearm in Philadelphia without a license even though 18 Pa.C.S. § 6109 bars any one [sic] under 21 from applying [for] or obtaining a license.

---

5 We note that the Commonwealth agrees that Appellant preserved his
challenge to the constitutionality of Section 6108. See Commonwealth’s Brief
at 6-7 (citing N.T. Guilty Plea Hr’g, 8/26/24, at 7-8).

-7-
J-S31032-25

1. The [trial court] erred in denying [Appellant’s motion to dismiss
   the charge under Section 6108] without considering the merits. [6]
   The [trial court] erred in holding that there was no standing.
   Appellant is aggrieved by Section 6108 because of his
   prosecution and conviction. Appellant was not required[, to
   establish] standing to challenge 6108[,] to have done the useless
   act of applying for a license before his arrest. 18 Pa.C.S. § 6109
   specifically bars anyone under the age of 21 from applying for a
   license. Nor was he required[, to establish] standing in this
   criminal case[,] to seek a civil declaratory judgment.

2. Section 6108 impermissibly burdens and violates the
   fundamental constitutional right to bear arms publicly, a
   guarantee of the Second and Fourteenth Amendments.

3. The statutory scheme violates Article 1, Section 21 of the
   Pennsylvania Constitution which provides that the right to bear
   arms “shall not be questioned”, and Article [1, Section] 1, that
   provides for the “inherent and indefeasible” right of “defending life
   and liberty.”

4. The criminalization of the right to bear arms in public for 18-
   20-year-olds in Philadelphia violates their equal protection rights
   under the Fourteenth Amendment of the United States
   Constitution and, independently, through several provisions of the
   Pennsylvania Constitution. Everywhere else in Pennsylvania there
   is no complete prohibition for 18-20-year-olds to publicly carry
   firearms.

---

6 Appellant filed a pre-trial motion to dismiss alleging that Section 6108 was

unconstitutional and that “[b]ecause of his age, under 21, Appellant is
ineligible in Pennsylvania to apply for and receive a license, 18 Pa.C.S. §
6109(b), and therefore has the unavoidable consequence of violating Sections
6106 and 6108 every time he exercises his right to publicly bear arms.” Pre-
Trial Mot. to Dismiss, 5/7/24, at 2. The trial court denied Appellant’s pre-trial
motion to dismiss a month before Appellant entered his guilty plea. See
Order, 7/18/24. Appellant subsequently entered his guilty plea to Section
6108, but he did not present the challenges raised in his pre-trial motion
concerning the constitutionality of Section 6108. At the guilty plea hearing,
the trial court concluded that: “Appellant reserves the right to appeal 6108
in the event that any appellate court with jurisdiction over this court
holds that individuals under 21 would not be in violation of section
6108.” N.T., Guilty Plea Hr’g, 8/26/24, at 9 (emphasis added).

-8-
J-S31032-25

Appellant’s Rule 1925(b) Statement, 10/29/24, at 1-2 (some citations omitted

and formatting altered).

In its Rule 1925(a) opinion, the trial court addressed the issue raised in

Appellant’s Rule 1925(b) statement as follows:

In his statement of errors, Appellant challenges the
constitutionality of VUFA § 6108. However, there are no grounds
upon which to challenge this statute as it pertains to [Appellant’s]
guilty plea. At the guilty plea hearing, [Appellant’s Counsel]
stated that, “[a]s a part of this guilty plea, the Commonwealth has
agreed to preserve the issue of the under 21 VUFA. Should that
law change in the future, we’re preserving that issue for
Appellant to file any appropriate motions at that time.” (N.T.
8/26/24, p. 7.). This court clarified the conditional appellate right
as, “Appellant reserves the right to appeal 6108 in the event
that any appellate court with jurisdiction over this court holds that
individuals under 21 would not be in violation of section 6108.”
Id. at 9. A review of recent Pennsylvania appellate court decisions
does not result in any precedential case law that finds VUFA §
6108 unconstitutional or holds that individuals under the age 21
years old should not be found in violation of VUFA § 6108. As
there has been no change in law since [Appellant’s] negotiated
guilty plea and sentencing on August 26, 2024, his . . . judgment
of sentence should be affirmed.

Trial Ct. Op., 12/18/24, at 2-3 (footnote omitted).

Following our review, we agree with the trial court that Appellant is not

entitled to relief.7 As noted previously, this Court recently held that Section

6108 was unconstitutional when applied to individuals under twenty-one who

seek to obtain an open carry permit in Philadelphia, as it conflicts with the

eighteen-year-old age requirement that is in effect for the rest of

---

7 This Court may affirm the decision of the trial court if it is correct on any

basis. See Commonwealth v. Rosendary, 313 A.3d 236, 242 n.5 (Pa.
Super. 2024).

-9-
J-S31032-25

Pennsylvania. See Commonwealth v. Sumpter, 340 A.3d 977, 981 (Pa.

Super. 2025) (analyzing the constitutionality of Section 6108 “insofar as it

prohibits the unlicensed open carry of firearms on public streets and public

property in the city of Philadelphia,” but declining to “address the overlap

between § 6108 and § 6106, insofar as both statutes criminalize unlicensed

concealed carry within the city of Philadelphia and therefore subject violators

in Philadelphia to two convictions for that offense”); see also

Commonwealth v. Hell, 1533 EDA 2024, 2025 WL 2612075, at *5 n.7 (Pa.

Super. filed Sept. 10, 2025) (unpublished mem.) (explaining that Sumpter

applied to cases involving unlicensed open carry in Philadelphia, but not

concealed carry);8 Commonwealth v. Woods, 701 EDA 2024, 2025 WL

3141726, at *2 n.3 (Pa. Super. filed Nov. 10, 2025) (unpublished mem.)

(same).

However, here, Appellant pled guilty to violating Section 6108 for

carrying a concealed firearm. Therefore, the Sumpter decision, which

applies solely to open carry permits, does not affect Appellant’s conviction for

carrying a concealed firearm. Further, to the extent Appellant claims that he

may be entitled to relief in the future, it is well settled that courts remain

bound by existing precedent that is in effect during the litigation, including

any changes in applicable law unless explicitly designated in the applicable

legislation. Therefore, the trial court did not have the authority to provide an

---

8 See Pa.R.A.P. 126(b) (stating this Court may rely on unpublished decisions

of this Court filed after May 1, 2019, for their persuasive value).

• 10 - J-S31032-25

open-ended, indefinite opportunity for Appellant to appeal based on future

changes in the law. See Commonwealth v. Reed, 107 A.3d 137, 143 (Pa.

Super. 2014) (stating that we are bound by existing precedent until such time

it is overturned).

Accordingly, Appellant is not entitled to relief. See Commonwealth v.

Carthon, 3208 EDA 2022, 2025 WL 2218956, at *2 (Pa. Super. filed Aug. 5,

2025) (unpublished mem.) (rejecting the argument that Section 6108 is

unconstitutional because the appellant was a person between the ages of

eighteen and twenty who could not obtain a license to carry a firearm in public

in Philadelphia, and further concluding that the prohibition on firearms for

individuals between eighteen and twenty one years of age was consistent with

the United States’ historical tradition of regulating firearms, and, therefore,

the prohibition was constitutional), petition for allowance of appeal filed, 351

EAL 2025 (Pa. Sept. 4, 2025); see also Commonwealth v. Rosario, 342

A.3d 770, 774-79 (Pa. Super. 2025) (rejecting a challenge by a twenty-year-

old appellant claiming that Section 6106 violates the Second Amendment of

the United States Constitution and Article 1, Section 21 of the Pennsylvania

Constitution by infringing upon the right of eighteen-to-twenty-year-olds to

carry a firearm in a vehicle in public, and holding that Section 6106(a)(1), as

applied to the appellant was consistent with the United States’ historical

tradition of regulating firearms); Commonwealth v. Williams, 341 A.3d

144, 150-59 (Pa. Super. 2025) (holding that Section 6106 and Section 6109

are consistent with the United States’ historical tradition of regulating

• 11 - J-S31032-25

firearms, and therefore both Sections 6106 and 6109 were constitutional as

applied to the appellant), petition for allowance of appeal filed, 395 MAL 2025

(Pa. July 31, 2025). Accordingly, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed. Jurisdiction relinquished.

Date: 3/4/2026

• 12 -