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Freeman v. Pennsylvania State Police

June 30, 2010

TERRY L. FREEMAN, PETITIONER
v.
PENNSYLVANIA STATE POLICE, RESPONDENT



The opinion of the court was delivered by: Judge Simpson

Submitted: April 23, 2010

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

Terry L. Freeman (Applicant) petitions for review from an order of an Administrative Law Judge (ALJ) of the Office of the Attorney General that sustained a decision of the Pennsylvania State Police (PSP) denying his application to purchase and carry a firearm. The basis for the denial is Section 6105 of the Pennsylvania Uniform Firearms Act of 1995 (Uniform Firearms Act), 18 Pa. C.S. §6105 (Persons not to possess, use, manufacture, control, sell or transfer firearms), which precludes a person convicted of a prohibited offensive weapon violation or similar out-of-state violation from purchasing a firearm in Pennsylvania.

In this appeal, Applicant argues his New York conviction for criminal possession of a weapon in the fourth degree, Section 265.01 (1) of the Penal Law of the State of New York, N.Y. Penal Law 265.01, is not an offense equivalent to a prohibited offensive weapons violation in Pennsylvania. Upon review, we affirm.

In April 1986, Applicant pled guilty to criminal possession of a weapon in the fourth degree in New York (N.Y. Penal Law §265.01) and paid the associated fine and surcharge. The Information states Applicant did intentionally, knowingly, and unlawfully possess a weapon, specifically a billy, while driving a motor vehicle.

In April 2008, a sporting goods store in Pennsylvania barred Applicant from purchasing a firearm after review of the Pennsylvania Instant Check System revealed the 1986 weapon conviction. Based on this information, Applicant's license to carry permit issued in Westmoreland County, Pennsylvania, was revoked. Applicant submitted his Pennsylvania Instant Check System Challenge Form. Thereafter, PSP confirmed his denial based on the disqualifying conviction. Applicant appealed to the Office of the Attorney General, which appointed an ALJ to conduct a hearing.

At hearing, PSP submitted certified copies of the Information/Complaint and Dispositional Report from Applicant's conviction in New York, as well as information regarding the Pennsylvania Instant Check System Challenge. PSP offered the dictionary definition of "billy" and testimony regarding its meaning.

Applicant represented himself at the hearing. During the hearing, Applicant raised various challenges to the New York conviction. Both parties produced copies of Section 265.01 (1) of the Penal Law of the State of New York.

After hearing, the ALJ sustained PSP's denial of Applicant's request for reinstatement of his firearms privileges. In the opinion, the ALJ properly determined Applicant could not collaterally attack his underlying criminal conviction.*fn1 The ALJ analyzed the New York statute and reviewed Applicant's conviction for possession of a billy. The ALJ further analyzed 18 Pa. C.S. §908 (relating to "Prohibited offensive weapons") to determine whether the item in Applicant's possession that gave rise to the New York conviction was properly classified as a prohibitive offensive weapon in Pennsylvania. Ultimately, the ALJ found that PSP sustained its burden of supporting the denial of reinstatement of Applicant's firearm privileges. Applicant, now represented by counsel, appeals to this Court.

On appeal,*fn2 Applicant argues his New York conviction of criminal possession of a weapon in the fourth degree is not equivalent to a conviction in Pennsylvania for prohibited offensive weapons, 18 Pa. C.S. §908.

In support of his position, Applicant argues this is a case of statutory construction, and, as such, he contrasts N.Y. Penal Law §265.01 and 18 Pa. C.S. §908. Applicant maintains N.Y. Penal Law §265.01 is broader than 18 Pa. C.S. §908. Applicant distinguishes the New York section from the Pennsylvania provision by highlighting Pennsylvania's common lawful purpose exception and lack of "billy" being specifically included in the list of prohibited weapons. Applicant highlights additional examples, such as firearms and knives, in an attempt to show the statutes are not exactly the same. Applicant also directs our attention to the other subsections of N.Y. Penal Law §265.01, such as the school grounds prohibition and mental health disqualifications, and their Pennsylvania counterparts. Applicant further addresses the penalties for violation of both laws.

PSP responds that Applicant's conviction under N.Y. Penal Law §265.01(1) is equivalent to a conviction under 18 Pa.C.S. §908 because the elements of the crimes are identical. PSP asserts that a billy is an implement for the infliction of serious bodily harm that serves no common lawful purpose under 18 Pa. C.S. §908. This assertion is primarily based on the definition of billy set forth by the Supreme Court of New York prior to Applicant's conviction. Significantly, in People v. Talbert, 107 A.2d 842, 844 (N.Y. App. Div. 1985), the court stated,

In our view, based on the manner in which the statute is set forth, the term "billy" must be strictly interpreted to mean a heavy wooden stick with a handle grip, which from its appearance, is designed to be used to ...


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