J-S38014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

NORMAN ROBINSON

                        Appellant                   No. 2064 MDA 2014


        Appeal from the Judgment of Sentence of November 6, 2014
               In the Court of Common Pleas of York County
            Criminal Division at No.: CP-67-CR-0002111-2014


BEFORE: WECHT, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                         FILED OCTOBER 16, 2015

      Norman Robinson appeals the November 6, 2014 judgment of

sentence.    Because the trial court abused its discretion by giving an

inaccurate jury instruction, we vacate the judgment of sentence and remand

for a new trial.

      Robinson was charged with, and found guilty of, making a materially

false written statement in connection with the purchase of a firearm, 18

Pa.C.S.A. § 6111(g)(4)(ii). The trial court provided the following summary

of the evidence that was developed at trial:

      The Commonwealth presented testimony that showed [that,]
      back in February of 2013, [Robinson] attempted to purchase a
      handgun at a gun show held at the York Expo Center in York
      County, Pennsylvania. Tyler Brightbill, the Commonwealth’s first
      witness, was operating a booth for Treeline Sports. . . . Mr.
      Brightbill explained the general process an individual must go
      through in order to purchase a gun in the state of Pennsylvania.
      He explained that[,] for a long gun[,] an individual must fill out
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     one form, but for a handgun[,] two forms are required. After
     the potential buyer fills out the form(s), it is the job of the seller
     to verify the buyer’s identity by comparing the picture on the
     identification card provided with the person standing in front of
     him. The seller records all the information from the identification
     card on the form and then calls an 800 number, which is known
     as the PICS system. After entering the information into the PCIS
     system, the seller will then be notified whether the buyer is
     approved. If the buyer is approved, the seller is given an
     approval number, which is recorded on the form and the
     transaction is completed.

     With respect to [Robinson], Mr. Brightbill was unable to
     specifically recall the interaction because of the number of
     people he dealt with at the York gun show. However, he was
     shown the forms [that Robinson] filled out that day and he did
     testify that it was his signature on those forms, which led him to
     conclude that he was the one dealing with [Robinson] that day.
     Mr. Brightbill performed all the necessary steps discussed above,
     but he was informed by the PICS system that [Robinson’s]
     application had been denied.          On cross-examination, Mr.
     Brightbill indicated that he did not remember anything out of the
     ordinary from the gun show, so he assumed [Robinson] just
     walked away after being denied.

     The Commonwealth’s last witness was Detective Jeffrey Snell
     from the West Manchester Township Police Department. He
     testified that he was contacted by the Pennsylvania State Police
     Firearms Division regarding a possible case of deceptive
     practices with respect to the purchase of a firearm. During his
     investigation, Detective Snell spoke with Tyler Brightbill, who
     told him, like he told the jury, he was unable to specifically
     remember the transaction with [Robinson].

     In the process of his investigation, Detective Snell found that
     [Robinson] was convicted of more than one felony in New
     Jersey. While reviewing the forms filled out by [Robinson],
     Detective Snell noticed that [Robinson] checked “no” to
     questions relating to felony convictions. Because [Robinson]
     was seeking to purchase a handgun he was required to fill out
     two forms, which contained a combined three questions
     regarding felony convictions. Question 11c of the federal form
     asked, “Have you ever been convicted in any court of a felony
     and any other crime for which the Judge could have imprisoned
     you for more than one year, even if you received a shorter

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     sentence including probation?” Question 31 of the Pennsylvania
     state form asked, “Have you ever been convicted of a crime
     enumerated in Section 6105(b), or do any of the following
     conditions under [Section] 6105(c) apply to you?”       Lastly,
     Question 32 of the state form asked, “Are you now charged with
     or have you ever been convicted of a crime punishable by
     imprisonment for a term exceeding one year?”        [Robinson]
     checked “no” to all three questions.

     Detective Snell completed his investigation and determined that
     [Robinson] was being deceptive in his attempts to purchase a
     firearm because he had been convicted of more than one felony
     and did not disclose this fact on the application. On cross-
     examination, Detective Snell stated that he did not interview
     [Robinson] as part of his investigation. He also testified that
     [Robinson] did not attempt to purchase a firearm under a fake
     identity. The Commonwealth rested.

     [Robinson] was the only witness for the defense. He explained
     that back in February of 2013, his son-in-law invited him to the
     York gun show. [Robinson] decided to go because it sounded
     fun and he had never attended a gun show before. While there,
     [Robinson] wanted to see if he would be able to legally obtain a
     firearm. He pointed to a gun and the seller provided him with
     two forms to fill out. [Robinson] testified that he filled out the
     forms to the best of his ability, but he was confused by a few
     questions; however, he did not ask for clarification. With respect
     to the questions regarding his prior record[, Robinson] explained
     that he assumed the questions were related to a prior record in
     Pennsylvania, not the entire country. Once [Robinson] was
     informed he was denied[,] he walked away.

     On cross-examination, [Robinson] reiterated that he was
     attempting to “do something legally.” When asked if this meant
     he was aware that it might not be legal for him to have [a] gun,
     [Robinson] stated he did not think that his record from 19 years
     ago in New Jersey would “carry over” into Pennsylvania.
     [Robinson] also admitted that neither form stated that the felony
     conviction had to occur in Pennsylvania. He again stated that he
     “didn’t think it would be a crime for [him] trying to do something
     legally.” In fact, [Robinson] testified that he did not even have
     the money to purchase the gun. He indicated that he did not
     read the certification and warning that stated providing false or
     misleading information was a crime.


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Trial Court Opinion (“T.C.O.”), 1/12/2015, at 2-5 (citations to record and

footnote omitted).

      After deliberations, the jury returned a guilty verdict. On November 6,

2014, Robinson was sentenced to three to seven years’ imprisonment. On

December 3, 2014, Robinson filed a notice of appeal. On December 5, 2014,

the trial court ordered Robinson to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).         Robinson timely

complied. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a) on

January 12, 2015.

      Robinson raises two issues for our review:

      1. Whether the evidence was insufficient to find [Robinson]
         guilty of violating 18 Pa.C.S.A. § 6111(g)(4) relating to the
         sale or transfer of firearms, where the evidence failed to
         establish that [Robinson] knowingly and intentionally made a
         materially false written statement when he attempted to
         purchase a firearm?

      2. Whether the trial court provided a jury instruction relating to
         the sale or transfer of firearms, which failed to sufficiently and
         accurately apprise the jury of the law it must consider in
         rendering its decision?

Robinson’s Brief at 6.

      Robinson first challenges the sufficiency of the evidence to sustain his

conviction. Our standard of review for such a claim is well-settled:

      [O]ur applicable standard of review is “whether the evidence
      admitted at trial, and all reasonable inferences drawn from that
      evidence, when viewed in the light most favorable to the
      Commonwealth as verdict winner, was sufficient to enable the
      factfinder to conclude that the Commonwealth established all of
      the elements of the offense beyond a reasonable doubt.”

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      Commonwealth v. Eichinger, 915 A.2d 1122, 1130 (Pa.
      2007). Additionally, when examining sufficiency issues, “we
      bear in mind that: the Commonwealth’s burden may be
      sustained by means of wholly circumstantial evidence; the entire
      trial record is evaluated and all evidence received against the
      defendant considered; and the trier of fact is free to believe all,
      part, or none of the evidence when evaluating witness
      credibility.” Commonwealth v. Markman, 916 A.2d 586, 598
      (Pa. 2007).

Commonwealth v. Crabill, 926 A.2d 488, 490-91 (Pa. Super. 2007).

      Robinson was convicted pursuant to 18 Pa.C.S.A. § 6111(g)(4)(ii),

which states as follows:

      Any person, purchaser or transferee commits a felony of the
      third degree if, in connection with the purchase, delivery or
      transfer of a firearm under this chapter, he knowingly and
      intentionally:

                                  *    *    *

      (ii) makes any materially false written statement, including a
      statement on any form promulgated by Federal or State
      agencies[.]

18 Pa.C.S.A. § 6111(g)(4).

      Specifically, Robinson argues that the evidence was insufficient to

demonstrate that he acted knowingly or intentionally.       In support of his

argument, he cites his testimony that he did not understand or completely

read some of the questions, that he believed the forms only sought

information about Pennsylvania convictions, and that he did not review the

directions on the form. Robinson’s Brief at 20-25.

      Here, the jury heard Robinson’s testimony that he did not read the

form or understand that his New Jersey convictions would require him to


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answer yes to certain questions. The jury also saw the forms that Robinson

filled out. The state form included the following question:

      Are you now charged with, or have you ever been convicted of a
      crime punishable by imprisonment for a term exceeding one
      year? This is the maximum sentence that you “could have
      received,” not the actual sentence you did receive. (This does
      not include federal or state offenses pertaining to antitrust,
      unfair trade practice, restraints of trade, or regulation of
      business or state offenses classified as misdemeanors and
      punishable by a year of imprisonment not to exceed two years)
      (Read information on back prior to answering).

Pennsylvania State Police Application/Record of Sale, Exh. 2 at 1.          The

question specifically mentions federal crimes, which contradicts Robinson’s

claim that he believed only Pennsylvania convictions were reportable.

      Further, both forms include verifications that a false statement is

punishable as a felony, and the federal form’s verification states that a

person convicted of a felony is prohibited from purchasing a firearm.

Robinson admitted that he filled out the forms and that he signed the

verifications.   Viewing that evidence in the light most favorable to the

Commonwealth, the jury could have concluded that Robinson knew he was

ineligible to purchase a firearm and, therefore, that he knowingly provided

false information in an attempt to skirt those prohibitions. Because the jury

is free to reach its own conclusions about credibility and to believe all, some,

or none of Robinson’s testimony, the evidence sufficed to prove that

Robinson acted knowingly or intentionally.

      Next, Robinson challenges the court’s jury instructions.


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       When reviewing a challenge to part of a jury instruction, we
       must review the jury charge as a whole to determine if it is fair
       and complete. A trial court has wide discretion in phrasing its
       jury instructions, and can choose its own words as long as the
       law is clearly, adequately, and accurately presented to the jury
       for its consideration. The trial court commits an abuse of
       discretion only when there is an inaccurate statement of the law.

Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008).

       Robinson argues that the trial court inserted language into the statute

when instructing the jury.        At the close of the first day of trial, the court

began discussing the jury instructions that it would deliver.            Notes of

Testimony (“N.T.”), 10/6-7/2014, at 100.          The Commonwealth suggested

that “in connection with” the purchase of a gun should be explained to the

jury so they understood that the crime could be committed even though the

purchase was not completed. Id. Robinson’s counsel argued that an actual

purchase was required as an element of the crime.1 Id. at 101. The trial

judge concluded that the language of the statute was broad enough to

include potential purchasers. Id. at 103. The Commonwealth proposed a

jury instruction that would include the following statement: “The term ‘in

connection with’ includes a completed purchase, delivery, or transfer of a

firearm as well as an attempt to purchase, deliver, or transfer a firearm.”

Commonwealth’s Proposed Jury Instruction.           Robinson requested that the



____________________________________________


1
      Robinson also moved for a judgment of acquittal upon that same
basis. Id. at 101. The motion was denied. Id. at 103-04.



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court give the standard instruction, which tracked the language of the

statute. Id. at 105. The trial court took the issue under advisement.

        After the close of evidence, the trial court revisited the issue. Again,

Robinson’s counsel sought the standard instruction.            Id. at 137. The trial

court    decided   not   to   give   either   the   standard    instruction   or   the

Commonwealth’s suggested instruction. Instead, the trial court inserted the

words “or attempted to do so” into the standard instruction. The trial court

also added a definition of attempt. It then noted both parties’ objections for

the record. Id. at 138. The court ultimately instructed the jury as follows:

        To find [Robinson] guilty of an offense under the Firearms Act,
        you must find that the following three elements have been
        proven beyond a reasonable doubt:

        First, that [Robinson] purchased, delivered, or transferred a
        firearm or attempted to do so;

        Second, that in connection with such purchase, delivery, or
        transfer, or attempt to do that, [Robinson] made a materially
        false written statement, including a statement on any form
        promulgated by the federal or state government;

        Third, that [Robinson] did so knowingly and intentionally.

        A person acts intentionally when it is his or her conscious object
        or purpose to engage in the conduct prohibited by law. A person
        acts knowingly when they are aware that their conduct is not in
        conformity with the law of the Commonwealth.           And with
        regard to attempt, one attempts to do something when
        one intends to do a particular act and then takes a
        substantial step toward accomplishing that act.

Id. at 161-62 (emphasis added).         The trial court then repeated the three

elements to the jury. Id. at 162-63.



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       Robinson argues that, by not using the standard jury instruction, the

trial court provided the jury with an inaccurate statement of the law.

Robinson asserts that the jury could have been confused by the insertion of

the attempt language. Robison’s Brief at 26-28.

       The trial court found that the statutory language required a broad

reading that included attempt.          In explaining its bases for including that

language, the trial court highlights the phrase “[a]ny person, purchaser or

transferee,” and argues that “any person” would be unnecessary surplusage

if the legislature only intended to include purchasers and transferees. Thus,

the trial court concluded that attempted purchases must be encompassed by

the law. T.C.O. at 8-9. The Commonwealth argues that “in connection with

the purchase” was broad enough to include attempted purchases and not

just completed purchases. N.T. at 100.

       To resolve Robinson’s challenge, we must examine the statutory

language of section 6111(g).2

       The principal objective of interpreting a statute is to effectuate
       the intention of the legislature and give effect to all of the
       provisions of the statute.           1 Pa.C.S.A. § 1921(a);
       Commonwealth v. Drummond, 775 A.2d 849, 855-56 (Pa.
       Super. 2001) (en banc) (stating that appellate courts must
       evaluate each section of a statute because there is a
____________________________________________


2
     Neither of the two cases cited in the concurring and dissenting
memorandum directly addresses the issue that we confront in this
case. They hold no value other than to note that other people have been
prosecuted for providing false information in connection with an attempted
purchase of a firearm.



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         presumption that the legislature intended for the entire statute
         to be operative). “In construing a statute to determine its
         meaning, courts must first determine whether the issue may be
         resolved by reference to the express language of the statute,
         which is to be read according to the plain meaning of the words.”
         In re Jacobs, 936 A.2d 1156, 1163 (Pa. Super. 2007) (quoting
         Commonwealth v. Lopez, 663 A.2d 746, 748 (Pa. Super.
         1995)). When analyzing particular words or phrases, we must
         construe them “according to rules of grammar and according to
         their common and approved usage.” 1 Pa.C.S.A. § 1903(a).
         “Words of a statute are to be considered in their grammatical
         context.” Drummond, 775 A.2d at 856 (citation omitted).
         “Furthermore, we may not add provisions that the General
         Assembly has omitted unless the phrase is necessary to the
         construction of the statute.” Id. (citation omitted); see also
         Jacobs, 936 A.2d at 1163 (stating that “[t]his Court does not
         have the authority to insert a word or additional requirement
         into a statutory provision where the legislature has failed to
         supply it”). A presumption also exists that the legislature placed
         every word, sentence and provision in the statute for some
         purpose and therefore courts must give effect to every word.
         Commonwealth v. Ostrosky, 909 A.2d 1224, 1232 (Pa. 2006).

Commonwealth v. Morris, 958 A.2d 569, 578-79 (Pa. Super. 2008)

(citations modified); see Key Sav. & Loan Ass’n v. Louis John, Inc., 549

A.2d 988, 991 (Pa. Super. 1988) (“[The court] is without authority to insert

a word into a statutory provision where the legislature has failed to supply

it.”).

         The Commonwealth and Robinson offer reasonable interpretations of

the phrase “in connection with the purchase” of a gun. Thus, we have no

difficulty concluding that the term “in connection with the purchase” is

ambiguous. The trial court, attempting to given meaning to every word of

the statute, focused upon the phrase “any person, purchaser or transferee,”

in defining the phrase to avoid rendering any of the statute’s language as


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mere surplusage. It is also fair to say that it would be an absurd result to

conclude that the General Assembly meant to criminalize the false written

statement on an application for a gun when the purchase was completed,

but not when the background check system caught the falsehood before the

purchase concluded. See Commonwealth v. Hooks, 921 A.2d 1199, 1205

(Pa. Super. 2007) (“General Assembly does not intend a result that is

absurd, impossible of execution or unreasonable.”); 1 Pa.C.S.A. § 1922.

      However,     we   must    weigh    these   considerations   of   statutory

interpretation against the rule of lenity.

      [P]enal statutes are to be strictly construed. See 1 Pa.C.S.
      § 1928(b)(1); Commonwealth v. Wooten, 545 A.2d 876, 879
      (Pa. 1988). The need for strict construction does not require
      that the words of a penal statute be given their narrowest
      possible meaning or that legislative intent be disregarded, see
      Wooten, 545 A.2d at 880; Commonwealth v. Gordon, 515
      A.2d 558, 561 (Pa. 1986); Commonwealth v. Duncan, 321
      A.2d 917, 919 (Pa. 1974), nor does it override the more general
      principle that the words of a statute must be construed
      according to their common and approved usage, see 1 Pa.C.S.
      § 1903(a). It does mean, however, that where ambiguity exists
      in the language of a penal statute, such language should be
      interpreted in the light most favorable to the accused. See
      Wooten, 545 A.2d at 879. More specifically, where doubt exists
      concerning the proper scope of a penal statute, it is the accused
      who should receive the benefit of such doubt.                 See
      Commonwealth v. Allsup, 392 A.2d 1309, 1311 (Pa. 1978);
      see also Rewis v. United States, 401 U.S. 808, 812, 9 (1971)
      (observing that “ambiguity concerning the ambit of criminal
      statutes should be resolved in favor of lenity”). Significantly, a
      court may not achieve an acceptable construction of a penal
      statute by reading into the statute terms that broaden its scope.




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Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001) (some citations

and footnote omitted; some citations modified).

     Keeping these principles in mind, we must resolve the ambiguities in

the statute in favor of Robinson.   Here, Robinson was not charged with a

criminal attempt.   See 18 Pa.C.S.A. § 901.        Instead, the trial court

construed the statute broadly to include attempted purchase within its

language.   In doing so, the trial court added terms to the statute that

broadened its scope relative to more narrow available interpretations, which

it had no authority to do. See Booth, supra. Because the trial court failed

to resolve the ambiguity in the statute in favor of Robinson and inserted

words into the statute, the jury instruction did not convey an accurate

statement of the law.      Instead, the court broadened the statute, which

increased the likelihood that Robinson would be convicted by the jury.

Moreover, the jury deliberated about and convicted Robinson of a crime that

was incorrectly defined.   No such conviction can stand, and no error that

produces such a conviction is harmless. Thus, we must vacate Robinson’s

judgment of sentence and remand for a new trial.




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      Judgment of sentence vacated.    Remand for new trial.   Jurisdiction

relinquished.

      Judge Musmanno joins the memorandum.

      Judge Stabile files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2015




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