J-A15008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

 KEVIN J. COLL, JR.

                             Appellant              No. 1928 MDA 2016


              Appeal from the Judgment of Sentence July 7, 2016
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0003923-2015


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                     FILED NOVEMBER 02, 2017

       Kevin J. Coll, Jr. appeals from the July 7, 2016 judgment of sentence

entered in the Luzerne County Court of Common Pleas following his

convictions for making a materially false statement in connection with the

purchase of a firearm and unsworn falsification to authorities – statement

under penalty.1 We affirm.

       This matter arises from Coll’s attempted purchase of a firearm from a

gun shop located in Butler Township, Luzerne County on March 13, 2015. As
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       118 Pa.C.S. § 6111(g)(4)(ii) and 4904(b), respectively. We note that,
while the criminal information and the sentencing order indicate that Coll was
charged with and convicted of violating 19 Pa.C.S. § 6111(g)(4)(i), which
makes it a crime to make a materially false oral statement in connection with
the purchase of a firearm, the case was tried and the jury was instructed on
the charge of making a materially false written statement in connection with
the purchase of a firearm, 18 Pa.C.S. § 6111(g)(4)(ii). On appeal, Coll has
not raised any issue based on this discrepancy.
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part of the purchase, Coll completed Bureau of Alcohol, Tobacco, Firearms and

Explosives (“ATF”) Form 4473. Question 11.i of the form asked whether Coll

had ever been convicted in any court of a misdemeanor crime of domestic

violence.      In response, Coll answered “No.”        The gun shop conducted a

background check of Coll, which he failed.            Coll then completed a form

challenging the results of his background check. The challenge form asked

whether Coll had previously been arrested, to which he responded

affirmatively. Coll later received a letter from the Pennsylvania State Police

(“PSP”) indicating that his challenge had been rejected because of a previous

crime of domestic violence.2

       The PSP forwarded Coll’s information to the Butler Township chief of

police, informing him that Coll had attempted to purchase a firearm when he

was forbidden by law from doing so.              The chief assigned Officer Robert

Brighthaupt to investigate. Officer Brighthaupt contacted Coll, and later met

with him. Coll told Officer Brighthaupt that he remembered being arrested for

a domestic offense, but that he had pled guilty to a simple assault charge.

Coll admitted that, in 2009, he pled guilty to one count of misdemeanor simple

assault.      The victim of the assault was, at the time of the crime, Coll’s

girlfriend.


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       2Coll testified that the letter he received from the PSP stated that his
challenge was rejected because he had been previously charged with a crime
of domestic violence. N.T., 5/10/16, at 81. The certified record does not
contain a copy of the letter from the PSP.

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       On May 10, 2016, a jury convicted Coll of making a materially false

statement and unsworn falsification to authorities. On July 7, 2016, the trial

court sentenced Coll to 1 year less 1 day to 2 years less 2 days of incarceration

for the materially false statement conviction, followed by 1 year of probation

for the unsworn falsification conviction. On July 11 and 12, 2016, Coll filed

post-sentence motions, which the trial court denied on October 31, 2016. On

November 18, 2016, Coll filed a notice of appeal.

       Coll raises the following issues on appeal:

           1. Was there sufficient evidence established at trial to
           support the conviction of Count 1 of the Information, i.e. 18
           Pa[].C.S. Section 6111(g)(4)(i)?[3]

           2. Was there sufficient evidence established at trial to
           support the conviction of Count 2 of the Information, i.e. 18
           Pa.C.S. Section 4904(b)?

Coll’s Br. at 3 (suggested answers omitted).

       We apply the following standard of review to sufficiency of the evidence

claims:

               We must determine whether the evidence admitted at
           trial, and all reasonable inferences drawn therefrom, when
           viewed in a light most favorable to the Commonwealth as
           verdict winner, support the conviction beyond a reasonable
           doubt. Where there is sufficient evidence to enable the trier
           of fact to find every element of the crime has been
           established beyond a reasonable doubt, the sufficiency of
           the evidence claim must fail.


____________________________________________


       While Coll’s first issue cites subsection (i), Coll’s argument is based on
       3

the premise that he was convicted for making a materially false written
statement.

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             The evidence established at trial need not preclude every
         possibility of innocence and the fact-finder is free to believe
         all, part, or none of the evidence presented. It is not within
         the province of this Court to re-weigh the evidence and
         substitute our judgment for that of the fact-finder. The
         Commonwealth’s burden may be met by wholly
         circumstantial evidence and any doubt about the
         defendant’s guilt is to be resolved by the fact[-]finder unless
         the evidence is so weak and inconclusive that, as a matter
         of law, no probability of fact can be drawn from the
         combined circumstances.

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016)

(quoting Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa.Super.2012)).

      The crime of making a materially false statement in connection with the

purchase of a firearm is defined as:

         (4) Any 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:

              (i) makes any materially false oral statement;

              (ii) makes any materially false written
              statement, including a statement on any form
              promulgated by Federal or State agencies; or

              (iii) willfully furnishes or exhibits any false
              identification intended or likely to deceive the
              seller, licensed dealer or licensed manufacturer.

18 Pa.C.S. § 6111(g)(4).

      The crime of unsworn falsification to authorities – statement under

penalty is defined as:

         (b) 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.

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18 Pa.C.S. § 4904(b).

     Here, the Commonwealth charged Coll with violating both sections

6111(g)(4) and 4904(b) because he responded “No” to Question 11.i on ATF

Form 4473, which asked: “Have you ever been convicted in any court of a

misdemeanor crime of domestic violence?” See N.T., 5/20/16, at 24. The

form defines a misdemeanor crime of domestic violence as follows:

           Question 11.i. Definition of Misdemeanor Crime of
        Domestic Violence: A Federal, State, local, or tribal
        offense that is a misdemeanor under Federal, State, or tribal
        law and has, as an element, the use or attempted use of
        physical force, or the threatened use of a deadly weapon,
        committed by a current or former spouse, parent, or
        guardian of the victim, by a person with whom the victim
        shares a child in common, by a person who is cohabiting
        with, or has cohabited with the victim as a spouse, parent,
        or guardian, or by a person similarly situated to a spouse,
        parent, or guardian of the victim. The term includes all
        misdemeanors that have as an element the use or
        attempted use of physical force or the threatened use of a
        deadly weapon (e.g., assault and battery), if the offense is
        committed by one of the defined parties. (See Exception to
        11.c and 11.i.) A person who has been convicted of a
        misdemeanor crime of domestic violence also is not
        prohibited unless: (1) the person was represented by a
        lawyer or gave up the right to a lawyer; or (2) if the person
        was entitled to a jury, was tried by a jury, or gave up the
        right to a jury trial. Persons subject to this exception should
        answer “no” to 11.i.

Cmwlth.’s Ex. 1 at 4.

     The definition in ATF Form 4473 parallels the definition of a

“misdemeanor crime of domestic violence” in the Federal Gun Control Act. 18




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U.S.C. § 921(a)(33)(A).4

       Coll contends that because a “girlfriend” does not fall into any of the

relevant relationship categories, the Commonwealth failed to prove that he

had been previously convicted of a crime of domestic violence. Therefore, Coll

argues that the evidence was insufficient to support his convictions because

he did not make a false statement when he responded “no” to the question of

whether he had ever been convicted of a misdemeanor crime of domestic



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       Pennsylvania prohibits possession or acquisition of a firearm by a
       4

person who is subject to the federal prohibition. See 18 Pa.C.S. § 6105(c)(9)
Furthermore:

           If the offense which resulted in the prohibition under 18
           U.S.C. § 922(g)(9) was committed, as provided in 18 U.S.C.
           § 921(a)(33)(A)(ii) (relating to definitions), by a person in
           any of the following relationships:

                 (i) the current or former spouse, parent or
                 guardian of the victim;

                 (ii) a person with whom the victim shares a child
                 in common;

                 (iii) a person who cohabits with or has cohabited
                 with the victim as a spouse, parent or guardian;
                 or

                 (iv) a person similarly situated to a spouse,
                 parent or guardian of the victim;

           then the relationship need not be an element of the offense
           to meet the requirements of this paragraph.

18 Pa.C.S. § 6105(c)(9).




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violence.5

       Although Coll claims that the Commonwealth was required to establish

one of the relationships in 18 Pa.C.S. § 6105(c)(9), see supra n.4, we

observe that Coll was not convicted of possession of a firearm pursuant to

section 6105, but rather, of making a false statement on ATF Form 4473. We

have previously held that the General Assembly’s intent in section 6111(g)(4)

“was to provide authority for the prosecution of persons who make any

materially false statement in connection with the purchase of a firearm in this

Commonwealth.” Commonwealth v. Baxter, 956 A.2d 465, 472 (Pa.Super.

2008) (emphasis in original).         Further, we held that “any knowingly false

statement given by a person in connection with the purchase of a firearm –

even if given in response to the questions on the federal form – is ‘material’”

and subjects that person to prosecution under section 6111(g)(4).            Id.

Accordingly, because we must evaluate whether the evidence was sufficient

to establish that Coll made a false statement on ATF Form 4473, our analysis

is based on the definition of a “misdemeanor crime of domestic violence”

contained in the form.




____________________________________________


       5We observe that “Pennsylvania law does not separately classify simple
assault convictions based on the identity of the defendant’s victim or include
a relationship element in the statute.” D’Alessandro v. Pennsylvania State
Police, 937 A.2d 404, 411 (Pa. 2007).


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       First, we conclude that the first three relationships categories listed on

ATF form 4473 are not dispositive here, because: (1) there was no evidence

that Coll was, at the time, the victim’s current or former spouse, parent, or

guardian; (2) there was no evidence that Coll and the victim shared a child;

and (3) there was no evidence that, if Coll and the victim lived together, it

was in Coll’s capacity as the victim’s spouse, parent, or guardian. Therefore,

this case turns on whether, at the time of the assault, Coll was “similarly

situated” to a spouse, parent, or guardian of the victim.6

       Because the definition of a “misdemeanor crime of domestic violence”

in ATF Form 4473 corresponds to the definition found in 18 U.S.C. §

921(a)(33)(A) as applied in 18 U.S.C. § 922(g)(9), we look to previous

statutory interpretations of those sections for guidance. In Buster v. United

States, 447 F.3d 1130 (8th Cir. 2006), the United States Court of Appeals for

the Eighth Circuit held that a live-in girlfriend could qualify as a person




____________________________________________


       We reject Coll’s argument that this Court should look to the standards
       6

for common law marriage to determine whether he was “similarly situated” to
a spouse of the victim. First, the General Assembly abolished common law
marriage effective January 1, 2005. See In re Estate of Carter, 159 A.3d
970, 974 (Pa.Super. 2017). Second, individuals in a judicially recognized
common law marriage are not “similarly situated” to spouses in this
Commonwealth; they are, in fact, spouses. See id. (“[A] common law
marriage is a marriage by the express agreement of the parties without
ceremony . . . .”) (quoting In re Estate of Manfredi, 159 A.2d 697, 700 (Pa.
1960)).


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similarly situated to a spouse pursuant to 18 U.S.C. §§ 922(g)(9) and

921(a)(33)(A)(ii). The Buster Court stated:

        Two of our sister circuits have addressed the issue before
        us, with one holding a “live-in girlfriend” qualifies as a
        domestic relationship for purposes of sections 922(g)(9)
        and 921(a)(33)(A)(ii), and the other assuming as much.
        United States v. Shelton, 325 F.3d 553, 563 (5th
        Cir.2003) (“‘Live-in girlfriend’ indicates living together with
        the implication that the two were having sexual relations.
        Accordingly, [the defendant]’s admission was sufficient
        evidence to prove the victim was similarly situated to a
        spouse in the context of [section 921(a)(33)(A)(ii)].”);
        United States v. Denis, 297 F.3d 25, 31 (1st Cir.2002)
        (assuming defendant’s “live-in girlfriend” was similarly
        situated to a spouse for purposes of sections 922(g)(9) and
        921(a)(33)(A)(ii)).

            We agree with the First and Fifth Circuits and hold abuse
        perpetrated on a live-in girlfriend is domestic abuse
        committed “by a person similarly situated to a spouse” for
        purposes of sections 922(g)(9) and 921(a)(33)(A)(ii). Cf.
        United States v. Cuervo, 354 F.3d 969, 998 (8th
        Cir.2004)     (holding    sufficient   evidence     supported
        defendant’s conviction under section 922(g)(9) where
        evidence showed defendant and victim “shared an intimate
        personal relationship”), vacated on other grounds sub nom.,
        Norman v. United States, 543 U.S. 1099, 125 S.Ct. 1049,
        160 L.Ed.2d 994 (2005), Schoenauer v. United States,
        543 U.S. 1099, 125 S.Ct. 1050, 160 L.Ed.2d 994 (2005);
        see also White v. Dep’t of Justice, 328 F.3d 1361, 1369
        (Fed.Cir.2003) (holding defendant was “a person similarly
        situated to a spouse” under section 921(a)(33)(A)(ii) where
        defendant and victim cohabited as boyfriend and girlfriend
        continuously for almost a year and intermittently for several
        months).

Buster, 447 F.3d at 1133.




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       Here, there is no dispute that the victim of Coll’s misdemeanor simple

assault was his girlfriend.7 Further, Chief Brian Buglio of the West Hazelton

Borough Police Department, who arrested Coll for the previous simple assault,

testified that Coll and his girlfriend lived together at the time of the assault.

N.T., 5/10/16, at 53. While Chief Buglio admitted that he could not recall from

where he obtained their address information, he testified that such

information was in the criminal complaint against Coll. Id. at 54. The jury,

as fact-finder, was free to believe all, part, or none of the evidence.      See

Rodriguez, 141 A.3d at 525. Because there was evidence Coll lived with his

girlfriend, who was the victim of the simple assault, a jury could conclude that

Coll was a person “similarly situated” to a spouse of the victim. Therefore,

the Commonwealth presented sufficient evidence from which a jury could find

that his response on ATF Form 4473 was materially false. Thus, we conclude

that the evidence was sufficient to support both convictions.

       Judgment of sentence affirmed.




____________________________________________


       7 While Coll contends that there was only “some very modest evidence”
at trial that the victim was Coll’s girlfriend, Coll himself conceded this fact at
trial. N.T., 5/10/16, at 82.


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J-A15008-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2017




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