J-S68025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

ROBERT DEAN ROBINSON

                            Appellant                 No. 78 WDA 2016


          Appeal from the Judgment of Sentence November 19, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0006516-2015


BEFORE: SHOGAN, J., SOLANO, J., and STRASSBURGER, J.*

DISSENTING MEMORANDUM BY SOLANO, J.:              FILED FEBRUARY 9, 2017

        I respectfully dissent, because, based on my review of the record, and

consonant with Commonwealth v. Kennedy, 789 A.2d 731, 732 (Pa.

Super. 2001), I find merit to Appellant’s sufficiency claim. I would vacate

Appellant’s judgment of sentence and reverse his conviction.

        In seeking to renew his firearms license, Appellant completed an

Application for a Pennsylvania License to Carry Firearms, Form SP 4-127

(10-2012), which asks the applicant on the first page to answer a series of

questions in its Paragraph 30, which reads in relevant part:



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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APPLICANTS ARE DETERMINED TO BE ELIGIBLE FOR A LICENSE TO CARRY
FIREARMS    BASED  UPON   CRITERIA   SET  FORTH    WITHIN   THE
PENNSYLVANIA UNIFORM FIREARMS ACT (18 PA.C.S. CHAPTER 61)
§ 6105, DEALING WITH INDIVIDUALS NOT TO POSSESS FIREARMS AND
§ 6109, DEALING WITH THE ISSUANCE OF A LICENSE TO CARRY
FIREARMS.
30. DO YOU MEET ANY OF THE FOLLOWING PROHIBITING
    CRITERIA UNDER 18 PA.C.S. § 6109(e)(1)? CHECK YES OR NO
    IN THE BOX BY EACH QUESTION:
      B. HAVE YOU EVER 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 (CSDDCA)? (AS
         PROVIDED IN 18 PA.C.S. § 6109(e)(1)(II), ANY         □ YES   □ NO
         PENNSYLVANIA DRUG CONVICTION UNDER THE
         CSDDCA IS PROHIBITING FOR A LICENSE TO
         CARRY.)
      C. HAVE YOU EVER BEEN CONVICTED OF A CRIME
         ENUMERATED IN § 6105(b), OR DO ANY OF THE
         CONDITIONS UNDER § 6105(c) APPLY TO YOU?             □ YES   □ NO
         (READ INFORMATION ON BACK PRIOR TO
         ANSWERING)
      E. HAVE YOU EVER BEEN INVOLUNTARILY COMMITTED
         TO A HOSPITAL/HEALTH CARE FACILITY FOR A
         MENTAL    HEALTH   CONDITION    OR   OTHER           □ YES   □ NO
         TREATMENT, OR ADJUDICATED INCOMPETENT/
         INCAPACITATED?
      G. 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 YOU
         COULD HAVE RECEIVED, NOT THE ACTUAL
         SENTENCE YOU DID RECEIVE. (IT DOES NOT
         INCLUDE    FEDERAL   OR  STATE    OFFENSES           □ YES   □ NO
         PERTAINING TO ANTITRUST, UNFAIR TRADE
         PRACTICES,   RESTRAINTS  OF    TRADE,   OR
         REGULATION OF BUSINESS; OR STATE OFFENSES
         CLASSIFIED AS MISDEMEANORS AND PUNISHABLE
         BY A TERM OF IMPRISONMENT NOT EXCEEDING
         TWO YEARS.)

Commonwealth Exhibit 4 (emphasis in original; Questions 30.A., D., F., H.,

I., and J. omitted), at 1.   The information on the back of the form lists

categories of persons prohibiting from carrying a firearm under Sections

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6105(a) and (c) of the Uniform Firearms Act. See id. at 2. The list under

Section 6105(c), which is referenced in Question 30.C. of the form, states:

        . . . § 6105(c) also prohibits the following persons from
        possessing, using, controlling, transferring, manufacturing,
        or obtaining a license to possess, use, control, transfer, or
        manufacture a firearm in the Commonwealth of
        Pennsylvania.

        ARE YOU A PERSON WHO:

        1. . . . ; or

        2. 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; or . . . .

Id. (emphasis in original). Appellant checked “NO” to each of the questions

in Paragraph 30.

     The trial court convicted Appellant of violating 18 Pa.C.S. § 4904(b),

which provides:

     Statements “under penalty”. — A person commits a
     misdemeanor of the third degree if he makes a written false
     statement which he does not believe to be true, on or
     pursuant to a form bearing notice, authorized by law, to the
     effect that false statements made therein are punishable.

18 Pa.C.S. § 4904(b) (emphasis added).      To convict Appellant under this

provision, the Commonwealth had to prove beyond a reasonable doubt that

when Appellant checked “NO” in answering the questions in Paragraph 30 of

the form, his answers were false and Appellant did not believe his answers

to be true. The record does not contain such proof.


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      At trial, the Commonwealth presented its case entirely by stipulations.

The parties’ stipulated to Appellant’s certified convictions in 2007 and 2011

for possession of a controlled substance under Section 13(a)(16) of the

Controlled Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780-

113(a)(16), and, on that basis, the court held that Appellant was untruthful

in answering Question 30.B. regarding prior drug convictions.    The parties

also stipulated that Appellant was involuntarily committed to a mental health

facility in 2011, and on that basis the court held that Appellant was

untruthful in answering Question 30.E.      The Commonwealth presented no

direct evidence of Appellant’s intent or belief in answering the questions.

The only two witnesses at the hearing were the two witnesses called by

Appellant — his father, Robert Dean Robinson, Sr.; and Appellant himself —

and they testified that there was no intent to lie.

      With respect to the questions on the form about prior drug convictions,

Appellant testified that he “was a little confused. I must have misread the

question. I assumed that I had to have been convicted and served over a

year in prison.” N.T., 11/19/15, at 20. Appellant said he “wish[ed he] had

properly asked an attorney about it,” although he testified that when he

completed the application form, he believed he was being honest. Id. at 21.

      Of course, the trial court was not required to believe Appellant’s

denials.   But it was required to base its conviction on evidence that

Appellant believed he was lying when he completed the form.         The only

evidence supporting conviction was that Appellant knew he had been

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convicted of possessing drugs in 2011 and nevertheless had answered “NO”

to Question 30.B. on the form.     But Commonwealth v. Kennedy, which

reversed a conviction on facts very similar to those here, establishes that

knowledge of a past drug conviction is not in itself sufficient to prove an

intentional violation of Section 4904(b).

      Appellant had several reasons for answering “NO” to Question 30.B. in

good faith. First, his application sought a renewal of his license. Appellant

testified that he was charged with his first drug offense in 2007, but was

able to obtain a concealed carry permit two years after that.            N.T.,

11/19/15, at 18. Appellant was seeking to renew that permit when he filed

the application at issue in 2014. He admitted that when he was completing

the application, “[t]here were a few things I was a little iffy about,” and he

added, with hindsight, “I should have looked into it further since all of this

happened.” He concluded: “I figured I was renewing it, so I figured it was

alright.” Id. at 17.

      Second, Appellant’s 2007 conviction resulted in probation without a

verdict, a result that the Majority characterizes as “similar to the ARD

program.”    The ARD — “accelerated rehabilitative disposition” — program

provides for the dismissal of charges and expungement of a criminal record

once the program is successfully completed. See generally Pa. R. Crim. P.

319,320.    Appellant testified that he “was under the impression from my

attorney — he told me since I got ARD for it that it wouldn’t be on my

criminal record.”      N.T., 11/19/15, at 17-18.    He therefore reasonably

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believed that it did not count as a conviction. Appellant added, ”They must

have changed the rules since that or something.” Id.

      Third, Trial Exhibits 2 and 3 include Appellant’s criminal informations,

pleas, and sentences in 2007 and 2011 for possession of a controlled

substance. Both of those exhibits state that the maximum penalty Appellant

could have received for the offenses was “1 yr.” Appellant’s 2011 conviction

resulted in a sentence of just one year of probation.      Thus, if the prior

convictions that would disqualify Appellant from carrying a firearm required

potential punishment of one year or more, Appellant’s prior convictions

would not be disqualifying.

      It is here that Appellant’s confusion about the form is relevant.

Question 30.B. asked whether Appellant had ever been convicted of an

offense under the Controlled Substance, Drug, Device and Cosmetic Act and

said that under Section 6109(e) of the Uniform Firearms Act, “any

Pennsylvania drug conviction under [that statute] is prohibiting for a license

to carry.” But then Question 30.C. asked whether Appellant had ever been

convicted of a crime listed in Section 6105(c) of the Uniform Act and

instructed him, in bold type, to “read [the] information on back prior to

answering.”   The information on the back of the form told him that a

disqualifying offense under that provision was “an offense under the . . .

Controlled Substance, Drug, Device and Cosmetic Act . . . that may be

punishable by a term of imprisonment exceeding two years [emphasis

added].” Then, Question 30.G. asked whether he had been “convicted of a

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crime punishable by imprisonment for a term exceeding one year

[emphasis added].” Appellant interpreted all of this to mean that if he was

not imprisoned for more than a year — which he was not — his prior

convictions were not disqualifying.

      In Kennedy, we reversed a conviction for unsworn falsification to

authorities because the defendant’s negative answer to the question whether

he had “ever been convicted of an offense under . . . The Controlled

Substance, Drug, Device and Cosmetic Act?” even though he had previously

been convicted of possessing drugs was “the product of ‘confusion’” by the

defendant about the wording of the questions on the form. 789 A.2d at 733-

734. We explained:

          It is Appellant’s position that his response to Question 31 was
      influenced by the content of Question 29, which directed him to
      the back of the application before answering whether he had
      been convicted of any of the thirty-five offenses under Section
      6105(b) or Section 6105(c), which prohibits licensure when,
      inter alia, a person has been convicted of an offense under The
      Drug Act “punishable by a term of imprisonment exceeding two
      years.”

         Appellant interpreted subsection (c)(2) of Section 6105 to be
      applicable to Questions 29 and 31. In other words, because
      Appellant had not been convicted of anything that carried a term
      of over two years, he answered no to Question 31. . . .
      Appellant was aware of the consequences of answering the
      questions falsely and he acknowledged not acting with intent to
      mislead the public servant reviewing his application. Rather, he
      asserts he answered the questions and signed the form at the
      end thereof (pursuant to Section 4904’s unsworn falsification to
      authorities) to the best of his knowledge.

         Appellant testified to making a “mistake” by interpreting
      Question 31 to prohibit possession of a license to carry a firearm
      to persons convicted of violating The Drug Act, provided the

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     imposition of imprisonment exceeded two years. His actions
     were the product of “confusion” over when to reference the back
     of the application in answering the questions.

        We read Form SP 4-127 (2-98) to contain internal
     inconsistencies, which leaves the reader in a quandary when to
     examine the back of the document in advance of answering
     questions on the face of the application. For example, three of
     the first four questions (Nos. 29, 30 and 32) direct the applicant
     to the information on the back of the form prior to supplying an
     answer. On each of the three occasions, paragraph (2) of
     Section 6105(c) lists the prohibited offense of violating The Drug
     Act as conduct sufficient to deny licensure, provided the drug
     offense is punishable by a term of imprisonment in excess
     of two years.

        Herein, it is uncontroverted that the only evidence reflective
     of the state of mind of the accused was generated by Appellant,
     who stated unequivocally his actions were the product of
     confusion and not a knowing intent to falsify information. Thus,
     evidence of Appellant (in answering Question 31) “mak[ing] any
     written false statement . . . not believ[ing it] to be true” is so
     weak and inconclusive that, as a matter of law, no probability of
     fact can be drawn from the combined circumstances.
     Commonwealth v. Libonati, 346 Pa. 504, 31 A.2d 95, 95
     (1943). Accordingly, we hold that the jury ignored the unrefuted
     account that Appellant's act of filling out Form SP 4-127 (2-
     98) was the product of a mistake and not the knowing and
     intentional act of one seeking to deceive. Cf. Mano v. Madden,
     738 A.2d 493 (Pa. Super. 1999) en banc (impermissible for a
     jury to ignore uncontroverted testimony of the events allowed
     for award of new trial).

Id. at 734–735 (emphasis in original).

     The Majority concludes that in this case, “Question 30(B) does not

implicate the ‘internal inconsistencies’ found in Kennedy because that

question on the form comes ahead of the only question on the page

(Question 30(C)) that asks the applicant to look at the back of the form for

additional information.”   Majority at 9.   But the inconsistencies here are


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similar to those in Kennedy.1 There were multiple questions on the form,

and Appellant was required to read and answer all of them. To do so, he

had to read the back of the form, as Question 30.C. instructed.                And a

review of the back of the form showed that a drug crime had to be subject

to “imprisonment exceeding two years.”               This requirement would seem

devoid of sense if, under Question 30.B., a conviction of any drug crime was

disqualifying, even if the sentence did not involve such a term of

imprisonment. Confusion here, as in Kennedy, was understandable.

       Notably,    the   trial   court   did   not   expressly   address   Appellant’s

credibility.   Rather, the trial court stated that the certified 2007 and 2011

drug convictions to which the parties stipulated were sufficient to support

Appellant’s conviction.      See Trial Court Opinion, 2/23/16, at 5.         Although

proof of the convictions shows that Appellant may have not been eligible to

renew his permit, it does not prove Appellant’s state of mind when he

completed the application or, as required by the statute, that he acted with a

belief that he was lying. I therefore conclude that the evidence of his prior

convictions was insufficient to convict him under Section 4904(b).




____________________________________________


1
  Although this Court does not have the benefit of reviewing the form
completed by the appellant in Kennedy, the form completed by Appellant in
this case was also a “Form SP 4-127.” The form at issue in Kennedy had a
date of “(2-98),” while Appellant’s Form SP 4-127 appears to have been
revised and shows a date of “(10-2012).”



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      I reach the same conclusion regarding Appellant’s incorrect answer to

Question 30.E. relating to involuntary commitment to a health care facility.

Appellant’s father, Mr. Robinson, testified that he assisted Appellant when he

was filling out the application.        N.T., 11/19/15, at 7.   He stated that

Appellant “had an incident up in Meadville and that was why he was asking

me to help him fill out the form.” Id. at 8. Appellant’s counsel asked Mr.

Robinson “specifically” whether Appellant “was ever committed or if he was

voluntarily signed in.” Id. at 7. The following exchange occurred:

      MR. ROBINSON: [Appellant] was doing drugs and alcohol, and
      we had to call the police to take him up to the hospital because
      he was acting a little nutty.

      DEFENSE COUNSEL:         How long did he stay in the hospital?

      MR. ROBINSON: I think he was in there for three days. I had to
      go and get him.

      DEFENSE COUNSEL:         Did you get him in Meadville?

      MR. ROBINSON: Well, actually he was up in Erie. He was at
      Millcreek Hospital in Erie. . . . I was with him whenever they ran
      him up there, and I was with him when the nurses and doctors
      were with him. I was under the impression that when I left that
      he had signed himself in and he wasn’t committed, but
      something must have happened after I left. He was pretty out
      of it.

      DEFENSE COUNSEL:         But based on your conversation about
      that, how did you tell him to answer the question on the form?

      MR. ROBINSON: I read it, and I said, “Robert, you signed
      yourself in when we [were] up in Erie.”

Id. at 8-9.

      Appellant testified as follows:



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       I asked my father if I was 302’d,[2] and he told me, “No.” I was
       under the impression that I wasn’t 302’d and that I checked
       myself into the hospital. . . . It was a bad part of my life. . . . I
       didn’t have a completely accurate recollection, but I figured if
       anyone knew if I was 302’d, then it would be the person that
       302’d me. . . . He told me to the best of his knowledge that I
       ended up checking myself into the hospital. . . .

N.T., 11/19/15, at 17-18. When questioned by his attorney as to whether

he believed he was “being honest” when he “filled out that form,” Appellant

responded, “Yes, sir, I did.” Id. at 21.

       In discounting Appellant’s testimony regarding his mental health

commitment, the trial court stated that it was “impossible to understand how

either [Appellant] or his father could be confused as to whether or not he

was involuntarily committed.” Trial Court Opinion, 2/23/16, at 5. However,

in the next sentence, the trial court conceded that Appellant “had no

independent recollection of how he was committed other than the fact that

he was committed.”         Id. at 5-6.         The trial court then stated that it “is

difficult to believe that the Pennsylvania State Police is providing cab service

for individuals who are seeking to be voluntarily committed.” Id. at 6. This

statement disregards the undisputed testimony of Appellant’s father, who

expressed his belief that Appellant decided to voluntarily commit himself

after they arrived at the hospital.              Police respond to various types of

situations and do their best when they try to resolve crises. Here, Appellant

____________________________________________


2
 Appellant used the term “302’d” to refer to an involuntary commitment
under Section 302 of the Mental Health Procedures Act, 50 P.S. § 7302.



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needed to be committed to a mental health facility, so the police transported

him to a hospital. That was an appropriate action, and it has no bearing on

whether Appellant agreed voluntarily to commit himself once he arrived at

the hospital.

      Viewing the evidence in a light most favorable to the Commonwealth

as the verdict winner, I conclude that the evidence was insufficient to

support a finding beyond a reasonable doubt that Appellant believed his

written false statements to be untrue, as required by 18 Pa.C.S. § 4904(b),

because the evidence was so “weak and inconclusive that, as a matter of

law, no probability” of Appellant’s intent to deceive can be drawn from the

combined circumstances. Kennedy, 789 A.2d at 734. Appellant may have

been negligent in answering — or failing to research how best to answer —

the questions on his application to renew his firearm license, but there is

insufficient evidence that he made the false statements with a belief that

they were untrue.

      Because I would vacate Appellant’s judgment of sentence and reverse

his conviction, I respectfully dissent.




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