J-S28003-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PAUL JOSEPH SCHAFFER,                          IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                       Appellee

                       v.

YORK COUNTY SHERIFF’S DEPARTMENT,

APPEAL OF: PENNSYLVANIA STATE
POLICE

                       Appellant                   No. 1351 MDA 2014


               Appeal from the Order Entered July 11, 2014
               In the Court of Common Pleas of York County
                Civil Division at No(s): 2014-SU-001473-49


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY BOWES, J.:                              FILED MAY 05, 2015

     The Pennsylvania State Police, on behalf of the York County Sheriff’s

Department (“Sheriff’s Office”), appeals the July 11, 2014 order, granting

Appellee Paul Joseph Schaffer reinstatement of his right to own a firearm.

We reverse.

     Appellee instituted this action on April 23, 2014, by petitioning to

restore his right to obtain a firearms license pursuant to 18 Pa.C.S. § 6105.

Section 6105 of the Pennsylvania Crimes Code outlines who may not

possess, use, manufacture, control, sell or transfer firearms. That lengthy

statute lists numerous offenses that prevent a person from owning a
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firearm. It also sets forth procedures for obtaining restoration of a person’s

rights to own a firearm.

      Appellee averred the following in his petition.      He formerly had a

firearms license.   On June 11, 2007, Appellee was charged with driving

under the influence of alcohol, a misdemeanor, and with four counts of

endangering the welfare of a child, which were graded as third-degree

felonies.   The charges arose when Appellee was driving while under the

influence of alcohol, with a blood alcohol content over .16%, with his four

children in his vehicle.     Appellee attached a docket sheet outlining the

charges against him.       The offenses were: 1) one count of DUI, general

impairment, first offense, 75 Pa.C.S. § 3802(a)(1); 2) one count of DUI

highest rate of alcohol, first offense, 75 Pa.C.S. § 3802(c); and 3) four

counts of endangering the welfare of children, 18 Pa.C.S. § 4304(a)(1).

      After the charges were filed, the Sheriff’s Office served Appellee with

notice that his firearms license was revoked and that he would be

prosecuted under the Uniform Firearms Act if found in possession of a

firearm. Appellee thereafter relinquished his license to the Sheriff’s Office.

      At issue herein are the child endangerment charges.           Those were

originally listed as third-degree felony counts, but later reduced to first-

degree misdemeanors. Section 4304 (a) states that child endangerment is

committed when, “A parent, guardian or other person supervising the


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welfare of a child under 18 years of age, or a person that employs or

supervises such a person, commits an offense if he knowingly endangers the

welfare of the child by violating a duty of care, protection or support.” The

grading of § 4304 is contained in subsection (b), which provides: “An offense

under this section constitutes a misdemeanor of the first-degree. However,

where there is a course of conduct of endangering the welfare of a child, the

offense constitutes a felony of the third-degree.” Since the DUI was a single

incident, Appellee’s offenses for child endangerment were reduced from

third-degree felonies to first-degree misdemeanors since he did not engage

in a course of conduct. Neither DUI nor child endangerment is listed as an

enumerated offense that prevents a person from owning a firearm under 18

Pa.C.S. § 6105.

       The matter proceeded to a hearing.1        At the hearing, Appellant

conceded that Appellee was not prohibited under Pennsylvania law from

owning a gun. However, it asserted that federal law prohibited restoration

of Appellee’s right to own a gun. The trial court disagreed, and, on July 11,



____________________________________________


1
    In his petition for restoration of his right to carry a firearm, Appellant
relied upon 18 Pa.C.S. § 6105(f), which pertains to people who cannot own a
gun due to an involuntary commitment. The trial court then permitted
Appellee to proceed under subsection (d), which relates to people who
cannot own a gun based upon their commission of a crime.



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2014, it granted Appellee’s peition. This appeal followed. Appellant raises

these questions on appeal:

       A. Was the Appell[ee] prohibited from purchasing or possessing
       firearms, or obtaining a license to carry concealed firearms, as a
       result of his Pennsylvania Misdemeanor of the First-degree
       convictions?

       B. Did the trial court lack subject matter jurisdiction to grant the
       Appell[ee] relief in this case?

Appellant’s brief at 4.

       Herein, we are construing whether a statutory enactment prevents

Appellee from legally owning a firearm. Statutory construction is a question

of law and our standard of review is de novo.              Commonwealth v.

Martorano, 89 A.3d 301 (Pa.Super. 2014). Since Appellee can legally own

a firearm under Pennsylvania law, Appellant opposes the grant of relief

under federal law.      Specifically, 18 U.S.C. § 922(g)(1)2 prohibits a person

from possessing firearms if that person was “convicted in any court of, a

crime punishable by imprisonment for a term exceeding one year[.]” There

is an exception to this prohibition in 18 U.S.C. § 921(a)(20)(B), which

outlines that “[t]he term ‘crime punishable by imprisonment for a term


____________________________________________


2
   We are aware that portions of this section have been struck down as
unconstitutional, but subsection (g) remains intact. Appellee has not argued
that the federal law unconstitutionally impinges on his Second Amendment
right to bear arms.



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exceeding one year’ does not include . . . any State offense classified by the

laws of the State as a misdemeanor and punishable by a term of

imprisonment of two years or less.”

      As outlined supra, § 4304(a) is graded as a first-degree misdemeanor.

A first-degree misdemeanor is punishable by a maximum term of five years.

18 Pa.C.S. § 1104(a). (“A person who has been convicted of a misdemeanor

may be sentenced to imprisonment for a definite term which shall be fixed

by the court and shall be not more than . . . [f]ive years in the case of a

misdemeanor of the first-degree.”). Even though Appellee’s crimes carried a

five rather than two year maximum, the trial court herein concluded that

Appellee’s child endangerment offense carried a maximum of two years

imprisonment. It relied entirely upon the 1972 official comment to § 4304

which states, “Present law provides penalties ranging from three years or

less. The maximum under the new provision would be 2 years.”

      When construing a statute, the courts are permitted to consider the

official comments to the statute. Nevertheless, those comments are given

effect only to the extent that they are consistent with the statute’s text.

Commonwealth v. Moran, 104 A.3d 1136, 1145 (Pa. 2014). Specifically,

1 Pa.C.S. § 1939 (emphasis added) provides,

         The comments or report of the commission, committee,
      association of other entity which drafted a statute may be
      consulted in the construction or application of the original
      provisions of the statute if such comments or report were

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      published or otherwise generally available prior to the
      consideration of the statute by the General Assembly, but the
      text of the statue shall control in the event of conflict
      between its text and such comments or report.

      It is apparent from our review of the record that the trial court failed

to apprehend that there was an amendment to § 4304 in 1988.              That

amendment “changed the prescribed penalty from a misdemeanor of the

second-degree to a misdemeanor of the first-degree.”           Historical and

Statutory Notes (Act 1988-158 legislation). A second-degree misdemeanor

is, in fact, punishable by up to two years imprisonment rather than five

years imprisonment. 18 Pa.C.S. § 1104(a). Thus, in 1972, the year of the

comment relied upon by the trial court, the maximum penalty was two

years.   However, in 1988, the grading of reckless endangerment was

changed to a first-degree misdemeanor, with a five year maximum

sentence.

      Appellee committed the child endangerment crimes after the 1988

amendments. Hence, the crimes in question were punishable by up to five

years, and 18 U.S.C. § 922(20)(G) did not apply.       Appellee is prohibited

from owning a firearm under federal law. Accordingly, the trial court lacked

the authority to order reinstatement of Appellee’s right to a firearm license.

Pennsylvania State Police v. Paulshock, 836 A.2d 110, 116 (Pa. 2003)

(common pleas court cannot “remove a federal firearms disability in a



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proceeding filed pursuant to 18 Pa.C.S. 6105” for restoration of the right to

own a firearm).

     Order reversed. Case remanded. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2015




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