J-S55034-16


                                  2016 PA Super 187

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

DARIAN SMITH

                            Appellant                         No. 2207 EDA 2015


              Appeal from the Judgment of Sentence July 20, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0007896-2014


BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

CONCURRING OPINION BY LAZARUS, J.:                          FILED AUGUST 25, 2016

        I concur because I agree with the result the majority has reached. I

write separately, however, to note that my analysis would be different

regarding whether the gun had an “altered” manufacturer’s number in

accordance with 18 Pa.C.S. § 6110.2(a).

        The majority indicates that the expert’s opinion that the number had

not been “altered” should be discounted because the value of his testimony

was limited to reporting the means of discerning the number and did not

include defining the terms used in the statute to describe an “altered”

number.      The terms include that the firearm’s number has been “altered,

changed, removed or obliterated.”              Id.   The firearms expert testified that

the number had not been altered. Indeed, because the number could still be

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S55034-16



discerned via magnification, in a strict sense, the number was not altered,

changed, or removed.

      I note, however, that one definition of “obliterate” is “to make

undecipherable or imperceptible by obscuring or wearing away.”            Merriam

Webster Dictionary, http://www.merriam-webster.com/dictionary/obliterate.

Under this definition, “obliterated” in the statute means that the number had

been made indecipherable or imperceptible. This definition aptly describes

what occurred in the instant matter, since the number had been ground

away to such an extent that it was not perceivable by the naked eye. Using

this definition of “obliterated” differentiates it from the term “removed,”

thereby giving full effect to the words of the statute. See Commonwealth

v. McCoy, 962 A.2d 1160, 1168 (Pa. 2009) (“When there is an

interpretation available that gives effect to all of the statute’s phrases and

does not lead to an absurd result, that interpretation must prevail.”).

Furthermore, as the majority implies, this type of effort to obscure a gun’s

manufacturer’s number is clearly contemplated by section 6110.2(a).

      It is with this analysis in mind that I concur with the majority.

      Judge Dubow joins this Concurring Opinion.




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