J-S58039-16


                                  2016 PA Super 271

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SHANNON LEMOR WILLIAMS

                            Appellant                 No. 1895 MDA 2015


                     Appeal from the Order October 9, 2015
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0002349-2014


BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*

OPINION BY GANTMAN, P.J.:                         FILED DECEMBER 02, 2016

        Appellant, Shannon Lemor Williams, appeals from the order entered in

York County Court of Common Pleas, denying his motion to dismiss the

charge of persons not to possess a firearm.1 We affirm.

        The trial court set forth the relevant facts and procedural history of

this case as follows:

           The Commonwealth alleges that on March 19, 2014,
           [Appellant] physically assaulted the victim…and threatened
           her with a gun.         The Commonwealth has charged
           [Appellant] with, inter alia, person[s] not to possess a
           firearm, pursuant to 18 Pa.C.S. § 6105(a)(1), stemming
           from the March 19, 2014 incident, which occurred in York
           County. [Appellant] was also indicted in federal court on
           one count of possession of a firearm by a person
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1
    18 Pa.C.S.A. § 6105(a)(1).


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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          previously convicted of crime punishable by imprisonment
          to a term exceeding one year, pursuant to 18 U.S.C. §
          922(g)(1), based on the same incident. On April 7, 2015,
          [Appellant] was found not guilty of the federal charge
          following a jury trial. On July 13, 2015, [Appellant] filed
          the instant Motion to Dismiss the § 6105(a)(1) state
          charge [pursuant to 18 Pa.C.S.A. § 111,] due to his federal
          acquittal.

(Trial Court Opinion, filed October 9, 2015, at 1-2).      The court denied

Appellant’s motion to dismiss on October 9, 2015. Appellant filed a timely

notice of appeal on October 27, 2015.2 The court ordered Appellant to file a

concise statement of errors complained of on appeal per Pa.R.A.P. 1925(b),

and Appellant timely complied.

       Appellant raises the following issue on appeal:

          WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
          DENYING…APPELLANT’S MOTION TO DISMISS DUE TO 18
          PA.C.S. [§] 111?

(Appellant’s Brief at 4).

       Appellant argues the Pennsylvania and federal charges stemmed from

the same incident.          Appellant concedes the Pennsylvania and federal

statutes in question each require proof of a fact not required by the other.

Appellant contends, however, that the statutes are designed to prevent

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2
  A defendant is entitled to an immediate interlocutory appeal as of right
from an order denying a non-frivolous motion to dismiss pursuant to 18
Pa.C.S.A. § 111. Commonwealth v. Savage, 566 A.2d 272 (Pa.Super.
1989). Here, the court found Appellant’s motion was not frivolous as it
presented a good faith argument requiring statutory analysis. Therefore, we
have jurisdiction over Appellant’s interlocutory appeal. See id.



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substantially similar harms or evils, i.e., possession of firearms by people

who have been convicted of serious crimes.          Appellant concludes his

acquittal of the federal charge of unlawful acts compelled dismissal of the

Commonwealth’s charge of persons not to possess a firearm. We disagree.

      The issue of whether a criminal charge is barred under 18 Pa.C.S.A. §

111 presents a question of law subject to plenary review. Commonwealth

v. Calloway, 675 A.2d 743 (Pa.Super. 1996).         Section 111 provides in

relevant part:

         § 111. When prosecution barred                by    former
         prosecution in another jurisdiction

         When conduct constitutes an offense within the concurrent
         jurisdiction of this Commonwealth and of the United States
         or another state, a prosecution in any such other
         jurisdiction is a bar to a subsequent prosecution in this
         Commonwealth under the following circumstances:

            (1) The first prosecution resulted in an acquittal or in
            a conviction as defined in section 109 of this title
            (relating to when prosecution barred by former
            prosecution for same offense) and the subsequent
            prosecution is based on the same conduct unless:

                 (i) the offense of which the defendant was formerly
                 convicted or acquitted and the offense for which he
                 is subsequently prosecuted each requires proof of a
                 fact not required by the other and the law defining
                 each of such offenses is intended to prevent a
                 substantially different harm or evil[.]

18 Pa.C.S.A. § 111(1)(i).     The application of Section 111(1)(i) involves a

three-step analysis:

         The first inquiry is whether…the prosecution which the
         Commonwealth proposes to undertake involves the same

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        conduct for which the individual was prosecuted by the
        other jurisdiction. If the answer to this question is yes,
        then we must determine whether each prosecution
        requires proof of a fact not required by the other, and
        whether the law defining the Commonwealth offense is
        designed to prevent a substantially different harm or evil
        from the law defining the other jurisdiction’s offense. If
        the Commonwealth cannot satisfy both of these requisites,
        then the prosecution may not proceed.

Calloway, supra at 747. “[W]hen a defendant raises a non-frivolous prima

facie claim that a prosecution may be barred under 18 Pa.C.S.A. § 111, the

prosecution bears a burden to prove by a preponderance of the evidence

either that the ‘same conduct’ is not involved, or that a statutory exception

to the statutory bar on reprosecution applies.” Commonwealth v. Wetton,

591 A.2d 1067, 1070 (Pa.Super. 1991) (emphasis removed).

     Section 6105(a)(1) of the Pennsylvania Uniform Firearms Act states:

        § 6105. Persons not to possess, use, manufacture,
        control, sell or transfer firearms

        (a)   Offense defined.—

           (1) A person who has been convicted of an offense
           enumerated in subsection (b), within or without this
           Commonwealth, regardless of the length of sentence or
           whose conduct meets the criteria in subsection (c) shall
           not possess, use, control, sell, transfer or manufacture
           or obtain a license to possess, use, control, sell,
           transfer  or    manufacture       a   firearm   in   this
           Commonwealth.

18 Pa.C.S.A. § 6105(a)(1).

     The federal “unlawful acts” statute provides in relevant part:

        § 922. Unlawful acts


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                                      *     *     *

          (g)    It shall be unlawful for any person—

          (1) who has been convicted in any court of, a crime
          punishable by imprisonment for a term exceeding one
          year;

                                      *     *     *

          to ship or transport in interstate or foreign commerce, or
          possess in or affecting commerce, any firearm or
          ammunition; or to receive any firearm or ammunition
          which has been shipped or transported in interstate or
          foreign commerce.

18 U.S.C. § 922(g)(1).

     Instantly, the Pennsylvania and federal charges were both based on

the same conduct of Appellant.            Therefore, to prosecute Appellant for a

violation of Section 6105(a)(1), the Commonwealth had to establish (1) the

Pennsylvania and federal charges each require proof of a fact not required

by the other; and (2) the law defining each offense is intended to prevent a

substantially different harm or evil.           See Calloway, supra.      The federal

“unlawful acts” statute requires proof that the defendant (1) possessed or

transported a firearm or ammunition; (2) possessed or transported the

firearm   or    ammunition   in   a   manner       that   affected   interstate/foreign

commerce; and (2) has been convicted of any crime punishable by

imprisonment for a term exceeding one year. See 18 U.S.C. § 922(g)(1).

By contrast, the Pennsylvania statute requires proof that the defendant (1)

possessed, used, controlled, sold, transferred, or manufactured a firearm (or


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obtained a license to do any of the foregoing activities); and (2) has been

convicted of a specific type of offense listed in Section 6105(b) or 6105(c),

or meets one of the miscellaneous conditions set forth in Section 6105(c). 3

See 18 Pa.C.S.A. § 6105(a)(1). Thus, each statute requires proof of a fact

not required by the other.            See 18 Pa.C.S.A. § 111(1)(i).   Appellant

concedes this first element of proof.

       With respect to the harms which the statutes are intended to prevent,

the trial court reasoned:

          The Pennsylvania Supreme Court addressed the purpose of
          18 Pa.C.S. § 6105 in Commonwealth v. Gillespie[, 573
          Pa. 100, 105, 821 A.2d 1221, 1224 (2003), cert. denied,
          540 U.S. 972, 124 S.Ct. 442, 157 L.Ed.2d 320 (2003)],
          when it stated, “[t]he current version of [Section] 6105
          also expanded the class of convictions from “crime[s] of
          violence” to include certain potentially violent crimes. …
          The clear purpose of [Section] 6105 is to protect the public
          from convicted criminals who possess firearms, regardless
          of whether the previous crimes were actually violent….”

          In support of the intent for the federal offense, the
          Commonwealth cites to section 18 U.S.C. § 922(q) for
          evidence of what harm the statute was intended to
          [prevent]. Section 922(q) addresses crime as being a
          “pervasive, nationwide problem” that is exacerbated at the
          local level “by the interstate movement of drugs, guns,
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3
  Appellant was previously convicted of possession with intent to deliver a
controlled substance, which meets the criteria of Section 6105(c)(2). See
18 Pa.C.S.A. § 6105(c)(2) (applying prohibition on firearm possession to: “A
person who has been convicted of an offense under the act of April 14, 1972
(P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and
Cosmetic Act, or any equivalent Federal statute or equivalent statute of any
other state, that may be punishable by a term of imprisonment exceeding
two years”).



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        and criminal gangs.” The statute heavily addresses the
        impact that interstate movement of firearms has on
        schools around the country. It explicitly states that the
        “occurrence of violent crime in school zones has resulted in
        a decline in the quality of education in our country,” and
        that Congress has the power to “ensure the integrity and
        safety of the Nation’s schools by enactment of this
        subsection.” The [c]ourt finds that the federal offense is
        broader in scope with reference to the intent to control the
        interstate movement of firearms at a national level, with a
        special focus on protecting the safety of those around
        school zones.

        The federal statute also discusses the problem of the ease
        of firearm movement through interstate commerce and the
        fearful effect it can produce in citizens to travel through
        certain areas due to violent crime and gun violence. The
        federal prohibition applies regardless of the type of offense
        as long as the offense is punishable by a term of
        imprisonment exceeding one year. The state offense is
        also concerned with public safety but enumerates
        particular offenses that are intended to target individuals
        who have violent or potentially violent prior offenses.
        While both statutes enshrine the general recognition that
        guns in the hands of convicted criminals can lead to crime,
        the state statute is focused principally upon locally denying
        access to persons who have committed potentially violent
        offenses as well as actual violent offenses in order to
        minimize future physical harms to citizens within the
        Commonwealth of Pennsylvania.

        The federal statute focuses more broadly and seeks to
        prevent much broader national social and economic harms,
        including the adverse impact upon the nation’s educational
        system and the chilling effect upon interstate commerce.
        As such, the state and federal laws, while generally
        seeking to reduce crime, intend to prevent substantially
        different harms of a different scope.

(Trial Court Opinion at 4-6) (footnotes omitted). We agree with the court’s

analysis. The Pennsylvania statute and the federal statute each (1) requires

proof of a fact the other does not; and (2) targets harms that differ

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substantially in scope.    Therefore, the court properly denied Appellant’s

motion to dismiss.        See 18 Pa.C.S.A. 111(1)(i); Calloway, supra.

Accordingly, we affirm.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2016




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