J-S53013-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                     : IN THE SUPERIOR COURT OF
                                                  :      PENNSYLVANIA
                    Appellant                     :
                                                  :
            v.                                    :
                                                  :
BRADLEY KOMPA,                                    :
                                                  :
                    Appellee                      : No. 1912 WDA 2013

              Appeal from the Order entered November 1, 2013,
                Court of Common Pleas, Washington County,
              Criminal Division at No. CP-63-CR-0000898-2013

BEFORE: DONOHUE, OLSON and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                             FILED SEPTEMBER 19, 2014

       In this appeal, the Commonwealth of Pennsylvania appeals from the

order of court granting the writ of habeas corpus filed by Appellee, Bradley

Kompa (“Kompa”). Following our review, we affirm.

       In February 2013, Kompa was charged with making a false statement

in   connection    with    the   purchase    of    a   firearm   under    18   Pa.C.S.A.

§ 6111(g)(4)(ii).       Following the preliminary hearing, the local magistrate

held the charge for trial. Kompa subsequently filed a writ for habeas corpus

and,   following    a    hearing,   the   trial   court   granted   the    writ.    The

Commonwealth sought reconsideration of this ruling, which the trial court

ultimately denied.




*Retired Senior Judge assigned to the Superior Court.
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      This timely appeal follows, in which the Commonwealth asks only

whether the trial court erred in granting Kompa’s writ of habeas corpus.

Appellant’s Brief at 7.

            When reviewing a trial court's decision to grant a
            habeas corpus petition, we will not reverse the trial
            court's decision absent a manifest abuse of
            discretion. Commonwealth v. Kohlie, [] 811 A.2d
            1010[, 1013] [Pa. Super. 2002]. In order to
            constitute an abuse of discretion, the record must
            disclose that the trial court exercised manifestly
            unreasonable judgment or based its decision on ill
            will, bias or prejudice. Commonwealth v.
            Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002).

Commonwealth v. Carbo, 822 A.2d 60, 63 (Pa. Super. 2003).

      The purpose of a pre-trial writ of habeas corpus is to challenge the

finding from the preliminary hearing that the Commonwealth has prima facie

evidence that the accused has committed the crime of which he has been

accused.    Carbo, 822 A.2d at 67.       We have previously described the

Commonwealth’s burden in this regard as follows:

            The Commonwealth's burden at a preliminary
            hearing is to establish at least prima facie that a
            crime has been committed and that the accused is
            the one who committed it. This means that at a
            preliminary hearing, the Commonwealth must show
            the presence of every element necessary to
            constitute each offense charged and the defendant's
            complicity in each offense. Proof beyond a
            reasonable doubt is not required, nor is the criterion
            to show that proof beyond a reasonable doubt is
            possible if the matter is returned for trial. However,
            proof, which would justify a trial judge submitting
            the case to the jury at the trial of the case, is
            required. Inferences reasonably drawn from the



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            evidence of record which would support a verdict of
            guilty are to be given effect, and the evidence must
            be read in the light most favorable to the
            Commonwealth's case. Prosecutorial suspicion and
            conjecture are not evidence and are unacceptable as
            evidence.

Commonwealth v. Owen, 580 A.2d 412, 414 (Pa. Super. 1990).

      The crime with which Kompa was charged provides that,

            [a]ny 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 … 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)(ii).

      The Commonwealth claims that Kompa made a false statement when

he answered the following question, which was contained on a form he was

required to fill out to purchase the gun: “Are you an unlawful user of or

addicted to marijuana or any depressant, stimulant, narcotic drug or any

other controlled substance?”     The trial court granted Kompa’s writ upon

finding that “the Commonwealth offered no evidence that [Kompa] was

addicted to drugs or an unlawful user of drugs at the time of the purchase.”

Trial Court Opinion, 3/21/14, at 5. 1 Following our review of the record, we

agree.


1
  In the trial court, there was debate about whether the salient question on
Form 4473 is intended to elicit whether the applicant is under the influence
of a controlled substance at the time he or she fills out the form, or habitual
drug use. See N.T., 4/8/13, at 8-10, 25; N.T., 8/16/13, at 3. The


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      At the preliminary hearing, the only evidence offered was a federal

form (“Form 4473”) that Kompa filled out in connection with the purchase of

the handgun and the testimony of Detective Joseph Bielevicz. The evidence

of   record,   when   considered    in    the   light   most   favorable   to   the

Commonwealth, reveals the following. On July 26, 2010, Kompa purchased

a handgun at Pfronger’s Firearms in Washington County. In connection with

the purchase of the firearm, Kompa filled out the requisite state and federal

paperwork, including the Form 4473.         Form 4473 contained the question,

“Are you an unlawful user of or addicted to marijuana or any depressant,

stimulant, narcotic drug or any other controlled substance?”               Kompa

answered “no” to this question.      In 2011, the handgun was recovered in

connection with a crime committed in Allegheny County. N.T., 4/8/13, at 4.

In the course of investigating the crime, Detective Bielevicz discovered that

Kompa was the registered owner of the firearm.           N.T., 4/8/13, at 4.     In

January 2012, he spoke with Kompa, who was living in Florida, by

telephone.     Id. at 5, 12.2   Detective Bielevicz testified that during their

conversation, Kompa acknowledged buying the handgun and recalled filling

out the requisite paperwork. Id. at 6. The Detective further testified that



Commonwealth maintains that the question is intended to inquire about
regular drug use. See Appellant’s Brief at 13-14. However, as discussed
infra, we find that there was insufficient evidence to establish a prima facie
showing under either interpretation.
2
  Detective Bielevicz did not record this call or make notes about their
conversation. N.T., 4/8/13, at 14-15.


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when he asked Kompa about his use of illegal drugs, Kompa stated that he

had been a “near constant” user of various substances since high school,

and that for a period of a year and a half, he loaned his car to various people

in exchange for heroin. Id. at 11-12.3 Detective Bielevicz asked Kompa if

he was using heroin when he bought the gun, and Kompa responded that he

“thought he was clean at the time[.]”       Id. at 11. The Detective read the

question at issue from the form to Kompa and asked if he remembered how

he answered it; Kompa replied that he did not. Id. The parties stipulated

that if called, the owner of Pfronger’s would testify that “had [Kompa] been

under the influence of anything at that particular point, he would not have

sold him the firearm.” N.T., 10/25/13, at 4.

         We find no abuse of discretion with the trial court’s conclusion that

even when viewed in the light most favorable to the Commonwealth, this

evidence does not establish that Kompa answered the question, “Are you an

unlawful user of or addicted to marijuana or any depressant, stimulant,

narcotic drug or any other controlled substance” falsely.     Kompa admitted

that he was a “near constant” user of drugs for many years, but also stated

that he was not using drugs when he purchased the gun. “Near constant” is

not the same as “constant;” it means that there were periods of time during

which he was not using drugs. The man who sold Kompa the gun testified

that he would not have done so if Kompa appeared to be under the


3
    The record does not specify when this year and a half period occurred.


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influence.   Thus, the Commonwealth has not put forth any evidence that

Kompa was an addict or in a period of drug use at the time he bought the

gun, nor that he was under the influence of a controlled substance when he

filled out Form 4473. Plainly, there is no evidence from which an inference

that Kompa was an addict or using drugs at the time he filled out the Form

4473 could be drawn. Such a conclusion would be pure conjecture, and that

is not sufficient to establish a prima facie case. Owen, 580 A.2d at 414.

      Order affirmed.

      Platt, J. joins the Memorandum.

      Olson, J. files a Dissenting Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/19/2014




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