J-S72007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

CRAIG D. MURPHY,

                            Appellant                        No. 113 WDA 2014


               Appeal from the Order Entered November 25, 2013
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-MD-0005804-2013


BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED DECEMBER 22, 2014

        Appellant, Craig D. Murphy, appeals from the order denying his

Application for Relief from Disabilities Pursuant to 18 Pa.C.S. § 6105(d)

(hereinafter “Restoration Petition”). Appellant argues that he was entitled to

relief under Section 6105(d), and that the denial of his Restoration Petition

violated state and federal law and infringed upon several of his state and

federal constitutional rights. After careful review, we affirm.

         Appellant filed his Restoration Petition on November 6, 2013, and the

trial court promptly held a hearing to consider it on November 25, 2013.

Following    that   hearing,     Appellant’s   Restoration    Petition   was   denied.

Appellant filed a timely notice of appeal on December 24, 2013. The trial

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*
    Retired Senior Judge assigned to the Superior Court.
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court appointed counsel to represent Appellant for his appeal, however,

Appellant’s subsequent request to proceed pro se on appeal was granted on

June 9, 2014. Appellant then filed a timely Pa.R.A.P. 1925(b) statement on

July 9, 2014.     The trial court issued its Rule 1925(a) opinion on July 18,

2014.

        Appellant now presents the following questions for our review:

        I.    Whether the lower court erred in denying the Appellant's
        Application for Relief from Disabilit[i]es [p]ursuant to 18 Pa.C.S.
        § 6105(d)[,] where … Appellant's right to appeal any underlying
        convictions has expired pursuant to 18 Pa.C.S. § 6105(d)(1)?

        II.   Whether the lower court order violated the Appellant's
        second (2nd), Tenth [(10th),] and Fourteenth (14th) amendment
        [r]ights (equal protection and due process rights) of the U.S.
        Constitution …, and the Civil Rights Restoration Act § 42 U.S.C. §
        2000d-4a(1)(A)(B), and Article 1 § 21 of the Pennsylvania
        Constitution without a compelling government interest?

        III. Whether the Appellant has state or federal firearm[]s
        restriction[s] or disabilities flowing from prior Pennsylvania State
        convictions if applicable being that the Appellant's convicting
        jurisdiction is the Commonwealth of Pennsylvania pursuant to 18
        U.S.C. § 921(a)(20)(A)(B) and such convictions if any were
        expunged and were not punishable by a term exceeding one
        year?

        [IV]. Whether the lower court had the authority and ability to
        restore … Appellant's civil rights to firearms as this
        Commonwealth is … Appellant's convicting jurisdiction and …
        Appellant has not been convicted of any federal offenses and …
        Appellant's core civil rights though irrelevant were substantially
        restored?

        [V]. Whether the Appellant's prior convictions if any are per se
        violations pertaining to antitrust violations, unfair trade
        practices, restraints of trade, or other similar offenses relating to
        the regulation of business practices pursuant to state or federal
        law and are pari materia to criminal violations of Pennsylvania
        State Law?

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J-S72007-14



Appellant’s Brief at 10-11.

      Appellant’s claims are confusingly stated; however, after reviewing

Appellant’s entire brief, it is apparent that the questions presented for our

review are aptly distilled as follows:

      1) Did the trial court err when it determined that Appellant was
      not eligible for relief under 18 Pa.C.S. § 6105(d)?

      2) Has Appellant been denied his rights under the 2nd, 10th, and
      14th amendments to the United States Constitution, Article 1 §
      21 of the Pennsylvania Constitution, state and federal law,
      including the Civil Rights Restoration Act, because no other
      avenue exists for Appellant to seek restoration of his right to
      possess a firearm?

      We begin by addressing the first of the restated claims, wherein

Appellant challenges the trial court’s denial of his Restoration Petition under

Section 6105(d).     On May 2, 2005, Appellant pled guilty to, inter alia,

tampering with records or identification, 18 Pa.C.S. § 4104, and theft of

immovable property, 18 Pa.C.S. § 3921(b), both graded as first degree

misdemeanors. Pennsylvania law provides that “[a] crime is a misdemeanor

of the first degree if it is so designated in this title or if a person convicted

thereof may be sentenced to a term of imprisonment, the maximum of

which is not more than five years.” 18 Pa.C.S. § 106(b)(6).

      Although Pennsylvania law does not impose any firearms restriction for

these convictions, federal law does:

      (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;

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J-S72007-14


                                               …

        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). Thus, because Appellant’s record tampering and theft

convictions were crimes “punishable by imprisonment for a term exceeding

one year,” he was subjected to the firearms disability imposed by 18 U.S.C.

§ 922(g).

        Although 18 U.S.C. § 925(c) provides a means to remove the disability

imposed by 18 U.S.C. § 922(g), there is apparently no practical way to seek

relief under Section 925(c) at this time due to budget constraints imposed

upon the Bureau of Alcohol, Tobacco, Firearms and Explosives division of the

Department of Justice.1 Consequently, Appellant attempted to seek relief in
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1
    Federal law provides that:

        (c) A person who is prohibited from possessing, shipping,
        transporting, or receiving firearms or ammunition may make
        application to the Attorney General for relief from the disabilities
        imposed by Federal laws with respect to the acquisition, receipt,
        transfer, shipment, transportation, or possession of firearms,
        and the Attorney General may grant such relief if it is established
        to his satisfaction that the circumstances regarding the disability,
        and the applicant's record and reputation, are such that the
        applicant will not be likely to act in a manner dangerous to public
        safety and that the granting of the relief would not be contrary
        to the public interest. Any person whose application for relief
        from disabilities is denied by the Attorney General may file a
        petition with the United States district court for the district in
        which he resides for a judicial review of such denial. The court
        may in its discretion admit additional evidence where failure to
        do so would result in a miscarriage of justice. A licensed
(Footnote Continued Next Page)


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state court under 18 Pa.C.S. § 6105(d).           Section 6105(d) provides as

follows:

      (d) Exemption.--A person who has been convicted of a crime
      specified in subsection (a) or (b) or a person whose conduct
      meets the criteria in subsection (c)(1), (2), (5), (7) or (9) may
      make application to the court of common pleas of the county
      where the principal residence of the applicant is situated for
                       _______________________
(Footnote Continued)

      importer, licensed manufacturer, licensed dealer, or licensed
      collector conducting operations under this chapter, who makes
      application for relief from the disabilities incurred under this
      chapter, shall not be barred by such disability from further
      operations under his license pending final action on an
      application for relief filed pursuant to this section. Whenever the
      Attorney General grants relief to any person pursuant to this
      section he shall promptly publish in the Federal Register notice
      of such action, together with the reasons therefor.

18 U.S.C. § 925(c).       However, the United States Justice Department
provides the following response to those seeking restoration of federally
imposed firearms disabilities:

      Under the provisions of the Gun Control Act of 1968 (GCA),
      convicted felons and certain other persons are prohibited from
      possessing or receiving firearms. The GCA provides the Attorney
      General with the authority to grant relief from this disability
      where the Attorney General determines that the person is not
      likely to act in a manner dangerous to the public safety and
      granting relief would not be contrary to the public interest. The
      Attorney General delegated this authority to ATF.

      Since October 1992, however, ATF’s annual appropriation has
      prohibited the expending of any funds to investigate or act upon
      applications for relief from Federal firearms disabilities submitted
      by individuals. As long as this provision is included in current
      ATF appropriations, the Bureau cannot act upon applications for
      relief from Federal firearms disabilities submitted by individuals.

http://www.atf.gov/firearms/faq/general.html#firearms-relief.



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J-S72007-14


     relief from the disability imposed by this section upon the
     possession, transfer or control of a firearm. The court shall grant
     such relief if it determines that any of the following apply:

        (1) The conviction has been vacated under circumstances
        where all appeals have been exhausted or where the right
        to appeal has expired.

        (2) The conviction has been the subject of a full pardon by
        the Governor.

        (3) Each of the following conditions is met:

           (i) The Secretary of the Treasury of the United
           States has relieved the applicant of an applicable
           disability imposed by Federal law upon the
           possession, ownership or control of a firearm as a
           result of the applicant's prior conviction, except that
           the court may waive this condition if the court
           determines that the Congress of the United States
           has not appropriated sufficient funds to enable the
           Secretary of the Treasury to grant relief to applicants
           eligible for the relief.

           (ii) A period of ten years, not including any time
           spent in incarceration, has elapsed since the most
           recent conviction of the applicant of a crime
           enumerated in subsection (b), a felony violation of
           The Controlled Substance, Drug, Device and
           Cosmetic Act or the offense which resulted in the
           prohibition under 18 U.S.C. § 922(g)(9).

18 Pa.C.S. § 6105(d).

     The trial court determined that Appellant was not eligible to apply for

relief under Section 6105(d). To be eligible to relief under Section 6105(d),

one must have been “convicted of a crime specified in subsection (a) or

(b)[,]” and/or “meet[] the criteria in subsection (c)(1), (2), (5), (7) or

(9)[.]” Id. Section 6105(b) provides a list of enumerated crimes, none of




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which are crimes that triggered Appellant’s federal firearms disability.2

Section 6105(a) specifies that the firearms disability imposed by Section

6105(a) also applies to additional persons listed in Section 6105(c). None of

the provisions of Section 6105(c) apply to Appellant or the offenses which

triggered his federally imposed firearms disability.   Accordingly, we agree

with the trial court that Appellant is not in the class of persons who may

seek relief under Section 6105(d).

       Appellant argues that he is entitled to relief under Section 6105(d)

because his right to appeal his disabling convictions has expired. He reaches

this conclusion by reading certain parts of Section 6105(d) without reference

to any other parts of that provision, and by misconstruing an awkwardly

worded phrase therein. Appellant focuses his argument on this snapshot of

Section 6105(d):

       The court shall grant such relief if it determines that any of the
       following apply:

          (1) The conviction has been vacated under circumstances
          where all appeals have been exhausted or where the right
          to appeal has expired.

18 Pa.C.S. § 6105(d).

       In doing so, Appellant ignores the preceding language, which defines

the class of individuals who may seek relief from firearms disabilities under

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2
  Although 18 Pa.C.S. § 3921 appears in 18 Pa.C.S. § 6105(b), only a
“second felony offense” under that provision is considered an enumerated
offense that triggers the firearms ban contained in Section 6105(a)(1).



                                           -7-
J-S72007-14



Section 6105(d). As noted above, Appellant does not fall within that class,

and is therefore not eligible for relief under Section 6105(d). Furthermore,

Appellant misconstrues Section 6105(d)(1) when he claims that the trial

court shall grant relief when the right to appeal from the disabling

convictions has expired.   Section 6105(d)(1) does not provide such broad

relief. Instead, it provides relief when “[t]he conviction has been vacated[,]”

but not until “all appeals have been exhausted or where the right to appeal

has expired.” Thus, the prevailing party in the order vacating the disabling

conviction may not seek restoration under Section 6105(d) until the

Commonwealth has had the opportunity to appeal the vacating order.

Appellant’s alternative interpretation of the statute is absurd, providing

identical relief where 1) a conviction has been vacated and the appeals from

the vacating order have been exhausted; and 2) where the conviction has

not been vacated and no appeal is taken.          The clear intent of Section

6105(d) is to provide relief when a disabling offense has been vacated. We

conclude, therefore, that the trial court did not err when it denied Appellant’s

Restoration Petition.

      Appellant’s remaining claims, collectively restated above, assert the

violation of multiple state and federal constitutional rights, as well as state

and federal law, as a result of the trial court’s denial of his Restoration

Petition. Our review of Appellant’s initial petition, and the hearing conducted

on November 25, 2013, reveals that Appellant did not raise any of these

claims in the trial court. See Restoration Petition, 11/16/13, ¶¶ 1-4; and

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J-S72007-14



see N.T., 11/25/13, 2-7. Instead, Appellant raised these claims for the first

time in his Rule 1925(b) statement.              See Appellant’s Rule 1925(b)

statement, 7/9/14, at 2 (unnumbered). Accordingly, these claims have been

waived. See Pa.R.A.P. 302 (“Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”).3

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




____________________________________________


3
  We, like Appellant, are troubled that the federal government has defunded
the only available remedy for relief from firearms disabilities imposed
pursuant to 18 U.S.C. § 922(g). However, Appellant’s right to possess a
firearm has not been curtailed by 18 Pa.C.S. § 6105 and, thus, it is not at all
surprising, nor does it trouble us, that Section 6105 does not provide a
remedy for this injustice.



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