J-S38014-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

NORMAN ROBINSON

                            Appellant                 No. 2064 MDA 2014


       Appeal from the Judgment of Sentence entered November 6, 2014
                 In the Court of Common Pleas of York County
               Criminal Division at No: CP-67-CR-0002111-2014


BEFORE: WECHT, STABILE, and MUSMANNO, JJ.

CONCURRING AND DISSENTING MEMORANDUM BY STABILE, J.:FILED OCTOBER 16, 2015

        I agree with the distinguished Majority that the evidence was sufficient

to support Appellant’s convictions. I disagree, however, that the trial court

abused its discretion in fashioning the jury instruction, necessitating a new

trial. Accordingly, I would affirm the judgment of sentence.

        At issue here is the proper interpretation of Section 6111(g)(4), 1 and

in particular, whether that statute applies only to completed purchases of

firearms—as contended by Appellant, or also to attempted purchases—as

argued by the Commonwealth. The Majority finds both interpretations are

reasonable, and therefore that the statute is ambiguous.          Because this

ambiguity should have been resolved in Appellant’s favor, the Majority

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1
    18 Pa.C.S.A. § 6111(g)(4).
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concludes that the trial court erred in interpreting the statute broadly,

consistent with the Commonwealth’s suggestion. Majority Memorandum, at

11-12.

      In my opinion, Section 6111(g) is not ambiguous, as it clearly includes

in its scope attempted purchases of firearms. Section 6111(g), in relevant

part, provides:

      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.A. § 6111(g)(4). (emphasis added).       I find this statute’s use of

the terms “any person” and “in connection with” to be unambiguous so as to

include persons like Appellant, who was charged with and convicted of

making a materially false statement in connection with his attempted

purchase of a firearm. With respect to the use of the term “any person,” I

agree with the trial court’s statutory analysis that this term includes persons,

in addition to purchasers and/or transferees:

      As we stated at the Appellant’s trial, the inclusion of “any
      person” [in Section 6111(g)(4)] clearly means the statute


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      intends to differentiate between actual purchasers and any other
      person, who in our mind is any other person who is not an actual
      purchaser or transferee. If the legislature’s intent was only to
      include purchasers and transferees then it would not have
      included the phrase “any person.”

Trial Court Opinion, 1/12/15, at 9. (Reference to Notes of Testimony

omitted.)   This interpretation of the term “any person” within § 6111(g)(4)

is consistent with our rules of statutory construction that require we give full

meaning and effect to all words of a statute. 1 Pa. C.S.A. §1921(a).

      I similarly find interpretation of the term “in connection with” to be

unambiguous.     The common and approved usage of this term we are

obligated to employ, see 1 Pa.C.S.A. §1903(a), does not suggest it is a

limiting term such that a violation only is deemed to occur when a purchase,

delivery, or transfer is actually completed.   The term “in connection with”

connotes activity that is in conjunction with or in reference to a purchase,

delivery, or transfer of a firearm.   See Webster’s New College Dictionary

(2009).     Providing materially false information in connection with the

attempt to purchase a firearm is precisely activity conducted in conjunction

with or in reference to the purchase of a firearm. Any other interpretation,

as the Majority admits, would lead to the absurd result the General

Assembly meant to criminalize a false written statement on an application

when a purchase is completed, but not when a background check catches

the falsehood before the purchase is concluded. Majority Memorandum, at

10-11. See also 1 Pa.C.S.A. §1922(1) (in ascertaining legislative intent it is


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presumed the general Assembly did not intend an absurd result). Certainly,

linguistic machinations can be employed to create ambiguity in almost any

statutory provision, but our rules of construction guide us to reasonable

constructions. Because I believe the construction urged by Appellant is not

reasonable, I cannot agree with the Majority’s opening premise that the

interpretations by both parties are reasonable so as to open the door to find

ambiguity in this statute in order to permit application of the rule of lenity.

Majority Memorandum, at 11.         After applying well-settled principles of

statutory construction to § 6111(g)(4), I cannot conclude the statute results

in ambiguity as maintained by the Majority, and therefore, would find no

error in the challenged jury charge by the trial court.    Other of our cases

also supports the conclusion no error was committed by the trial court.

      In Commonwealth v. Baxter, 956 A.2d 465 (Pa. Super 2008) (en

banc), appeal denied, 968 A.2d 1280 (Pa. 2009), defendant was granted a

new trial on the grounds that prosecution under Section 6111(g)(4) violated

his due process rights and the separation of powers doctrine because the

defendant provided untruthful answers in response to a federal form, not a

state form. This Court explained:

      [T]he trial court found that because § 6111(b) specifically lists
      only identifying information as being required from a
      prospective purchaser, [defendant] was not put on fair notice
      by § 6111(g)(4) that false statements to any additional
      questions (such as those on the federal form) could subject him
      to prosecution in this Commonwealth. Consequently, the trial
      court concluded that § 6111(g)(4), as applied in this case to
      support a state prosecution, violated due process. Further, the

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     trial court found it was violative of the separation of powers
     doctrine because the Commonwealth, in effect, endorsed the
     federal form’s additional questions by charging [defendant] for
     providing allegedly false information thereon. In doing so, the
     trial court concluded the Commonwealth operated outside the
     statutory framework formulated by the legislature for conducting
     background checks.

Baxter, 469-70 (footnote omitted) (emphasis added).

     Upon review, we disagreed with the trial court and concluded:

     [P]rosecution under Section 6111(g)(4) is not dependent solely
     upon the prospective purchaser of a firearm providing false
     information as to his or her identifying information as listed in
     Section 6111(b)(1).    Rather, the plain language of Section
     6111(g)(4), when taken in proper context of the statute as a
     whole, clearly places prospective purchasers on notice that
     they will be subject to prosecution for a third degree felony if
     they make any oral or written materially false statement in
     connection with that attempted purchase of a firearm.

Id. at 474 (emphasis added).

     Similarly, in Commonwealth v. Emmil, 866 A.2d 420 (Pa. Super.

2004), defendant was convicted of making false statements to authorities in

connection with an attempted firearm purchase.                 Id. at 421.

Specifically, the conduct giving rise to the prosecution and conviction of

defendant in Emmil was summarized as follows:

           On August 1, 2003, [defendant] attempted to
           purchase a firearm at Rightnour MFG Co. in Centre
           County.     To effect transfer of the firearm,
           [defendant] was required by Commonwealth law to
           complete a Firearm Transaction Record and undergo
           a background check. On the Firearm Transaction
           Record there is a question asking if the applicant has
           ever been adjudicated mentally defective or
           committed to a mental institution. [Defendant]
           responded in the negative, then signed the form

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               acknowledging that all statements on the form were
               true and correct and that he could be punished by
               law if he had falsified any information on the form.

               The form was then transferred to the PA State Police
               to run the background check on [defendant].
               Through the PA Instant Check System it was
               discovered that [defendant] had been involuntarily
               committed under Section 7302 of the [Mental Health
               Procedures Act, 50 P.S. §§ 7101 et seq.] and
               involuntarily committed for psychiatric treatment
               under Section 7303 by the Centre County Mental
               Health/Mental Retardation Office.

      Trial Court Opinion, 2/17/04, at 1-2.

      [Defendant] was subsequently charged with violating two
      provisions of the Crimes Code: Section 4904 (relating to
      unsworn falsification to authorities) and Section 6111(g)(4)
      (relating to making false statements in connection with the
      purchase of a firearm), 18 Pa.C.S.A. §§ 4904 and 6111,
      respectively. He filed a motion to suppress evidence which the
      trial court denied after a hearing. Upon his convictions Appellant
      was sentenced to a 6-month term of probation.

Emmil, 866 A.2d at 421 (emphasis added).          On appeal, we affirmed the

convictions.

      As Baxter and Emmil demonstrate, this Court has consistently

interpreted Section 6111(g)(4) to cover prospective (attempted) purchases

of firearms. As such, the trial court did not err in clarifying for the jury that

the crime at issue here included not only completed transactions but also

prospective (attempted) purchases.

      Based on the express and unambiguous language of the statute, I

believe the Majority erroneously concludes that Section 6111(g)(4) is

ambiguous. I also believe the trial court’s instruction, which did instruct that

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the jury must find Appellant acted knowingly and intentionally, accurately

and adequately reflected the law and did not constitute an abuse of

discretion or error of law.2

       In light of the foregoing, I would affirm the judgment of sentence.




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2
   As the Majority recognizes, “A trial court has wide discretion in phrasing
its jury instructions, and can choose its own words as long as the law is
clearly, adequately, and accurately presented to the jury for its
consideration.” Majority Memorandum, at 7 (quoting Commonwealth v.
Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008)). Further:

       Our standard of review for the trial court's instructions to a jury
       is well established. When reviewing a challenge to part of a jury
       instruction, we must review the jury charge as a whole to
       determine if it is fair and complete. Reversible error occurs only
       where there is an abuse of discretion or an inaccurate statement
       of the law.

Commonwealth v. Hanford, 937 A.2d 1094, 1097 (internal citations,
quotations and brackets omitted).



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