J-S53013-14

ON-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
            In the Court of Common Pleas of Washington County
            Criminal Division at No(s): CP-63-CR-0000898-2013


BEFORE: DONOHUE, OLSON and PLATT,* JJ.

DISSENTING MEMORANDUM BY OLSON, J.:              FILED SEPTEMBER 19, 2014

      Because I believe that the Commonwealth established a prima facie

case regarding a materially false statement made in connection with the

purchase of a firearm, I respectfully dissent.

      As set forth by the learned majority, in order to establish a prima facie

case for trial, the Commonwealth has the following burden:

        [T]he Commonwealth must show sufficient probable cause
        that the defendant committed the offense, and the evidence
        should be such that if presented at trial, and accepted as
        true, the judge would be warranted in allowing the case to
        go to the jury. When deciding whether a prima facie case
        was established, we must view the evidence in the light
        most favorable to the Commonwealth, and we are to
        consider all reasonable inferences based on that evidence
        which could support a guilty verdict. The standard clearly
        does not require that the Commonwealth prove the
        accused's guilt beyond a reasonable doubt at this stage.

        The prima facie case merely requires evidence of the
        existence of each element of the crime charged. The weight
        and credibility of the evidence is not a factor at this stage.

* Retired Senior Judge assigned to the Superior Court.
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Commonwealth v. McCullough, 86 A.3d 901, 905 (Pa. Super. 2014)

(citations, brackets, and original emphasis omitted).

      The Commonwealth charged Kompa with making a materially false

statement in connection with the purchase of a firearm, which is statutorily

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:
                                   * *      *
            (ii) 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 charged Kompa after he purchased a firearm and

answered “no” to the following question on the purchase form: “Are you an

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

narcotic drug, or any other controlled substances?”     In concluding that a

prima facie case was not established, the trial court determined:

            Notably, [Kompa] never stated that he was addicted to
        drugs at the time he purchased the firearm, which was
        corroborated by the statement of [the firearm dealer] that
        he would not have sold the firearm if [Kompa] had been
        under the influence. Additionally, [Kompa] never stated
        that his answer was false.

            The Commonwealth failed to set forth a prima facie case
        that [Kompa] intentionally or knowingly made a false
        statement in connection with the purchase of a firearm.
        While the Commonwealth may benefit from the standard of
        review at that procedural juncture, the Commonwealth

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          offered no evidence that [Kompa] was addicted to drugs or
          an unlawful user of drugs at the time of the purchase.

Trial Court Opinion, 3/21/2014, at 5 (record citation omitted).

      In affirming the trial court’s determination, the learned majority

states:

          Kompa admitted 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 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 [the sales] form.

Majority Memorandum, at 5-6.

      My review of the record reveals otherwise. At the preliminary hearing,

the Commonwealth called the investigating officer, Officer Joseph Bielevicz,

who testified as follows:

              I told [Kompa] that I had reviewed his history, and it
          was clear to me that he was a drug user. And I asked him
          if he agreed with that. And he told me that he had used a
          variety of drugs since high school, starting with marijuana,
          moving on to cocaine and various types of pills, and he said
          that he had begun using heroin over a year ago, which at
          that time would have put that at January, 2011.

              When I asked him if he was using heroin at the time
          that he bought the gun, he said that he thought he was
          clean at the time, but he seemed unsure.

             He did agree that since high school he has been a near
          constant user of one type of controlled substance or
          another.


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            He also acknowledged that for over a year and a half1 he
         had loaned his car out to various people in exchange for
         heroin.

N.T., 4/8/2013, at 11-12.

       On cross-examination, the following exchange occurred:

         [Defense counsel:] [I]sn’t it true that Mr. Kompa said that
         he thought he was clean at the time, and he didn’t think
         that he had done anything wrong, correct?

         [Officer Bielevicz:]      Yes.

         [Defense counsel:]        At that time you didn’t believe him, did
         you?

         [Officer Bielevicz:] Well, it wasn’t a matter of believing.
         It was a matter of the definition of what a drug user and
         addicted to drugs was.

            I mean he was questioning whether he had used
         [narcotics] recently, prior to the time of purchase. But it
         doesn’t negate the fact that he was addicted to drugs,
         which is what he told me.

Id. at 15-18.

       The trial court and majority focus on the fact that Kompa believed that

he was “clean” at the time of the purchase, thus indicating that he had not

used narcotics recently.           Upon review, however, the Commonwealth

presented evidence that Kompa was “unsure” if he was “clean at the time”


____________________________________________


1
   Officer Bielevicz testified he interviewed Kompa on January 14, 2012.
N.T., 4/8/2013, at 14. Kompa purchased the firearm on July 26, 2010. Id.
at 12. Thus, Kompa admitted to lending his car in exchange for heroin as
early as July 14, 2010.



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he purchased the firearm.      He also acknowledged that he was a “near

constant” user of controlled substances since high school. The majority tries

to distinguish “near constant” use with “constant” use, but it is a distinction

without a difference.    The question on the form asked if Kompa was “an

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

narcotic drug, or any other controlled substances.”             Without even

reaching whether Kompa was addicted to controlled substances, he admitted

that he was a “near constant” user, but an unlawful user nonetheless.

Furthermore, Kompa also admitted that, at the time of the gun purchase, he

was lending his car to people in exchange for heroin. Thus, regardless of

whether he thought he might have been clean at the precise moment that

he completed the form and purchased the gun, Kompa’s admitted pervasive

drug use before and after the purchase of the firearm show his unlawful use

of narcotics during the relevant period.          Accordingly, when Kompa

represented that he was not using or addicted to narcotics on the firearm

form, the Commonwealth set forth a prima facie case that Kompa

intentionally or knowingly made a false statement in connection with the

purchase of a firearm.

      Moreover, the trial court and majority erroneously buttress their

position with stipulated evidence that the firearms dealer did not recall that

Kompa was visibly intoxicated at the time of the purchase.      Primarily, the

parties stipulated that the owner of the firearm shop “would not have been

able to identify Mr. Kompa as the person who actually purchased the

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firearm.” N.T., 10/25/2013, at 3. Instead, the parties stipulated that “had

Mr. Kompa been under the influence of anything at that point, he would not

have sold him the firearm.”       Id. at 4. A dearth of evidence of visible

intoxication is not confirmation of the absence of regular narcotic use or the

lack of an addiction to drugs. Certainly, one can be addicted to narcotics, or

a habitual user of controlled substances, without showing outward signs of

intoxication. Likewise, a drug user can have periods of lucidity or could feign

sobriety. Thus, reliance on the fact that Kompa appeared sober to the clerk

at the time of the firearm purchase was flawed.

      Viewing   the   evidence    in    the   light   most   favorable    to   the

Commonwealth, I believe that the Commonwealth established a prima facie

case against Kompa for making a materially false statement in connection

with the purchase of a firearm.        Knowing that he was a regular user of

narcotics at the time he bought the firearm, Kompa averred that he was not.

The Commonwealth set forth evidence of the existence of each element of

the crime charged.    The weight and credibility of the evidence is not a factor

at this stage and should be decided at trial.   Hence, I would reverse the trial

court’s grant of habeas corpus and remand for additional proceedings.

      For all of the foregoing reasons, I respectfully note my dissent.




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