ARGUED: May 16, 2019
Appeal
from the Order of Superior Court dated May 8, 2018 at No.
1923 EDA 2017, affirming the judgment of sentence of the
Court of Common Pleas of Delaware County, Criminal Division
dated May 9, 2017 at No. CP-23-CR-4965-2016
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
JJ.
OPINION
TODD,
JUSTICE
In this
appeal by allowance, we consider whether the possession of a
firearm with a scratched, but still legible,
manufacturer's number is sufficient to sustain a
conviction for possession of a firearm with an
"altered" manufacturer's number in violation of
18 Pa.C.S § 6110.2. For the reasons that follow, we
reverse and remand.[1]
On June
12, 2016, Pennsylvania State Police troopers initiated a
traffic stop of a vehicle driven by Appellant Shane C. Smith
based on their observation that the license plate was not
illuminated, a violation of the Motor Vehicle Code.
See 75 Pa.C.S. § 4303 (general lighting
requirements). As the troopers approached the vehicle, they
observed furtive movements by the vehicle's occupants.
The troopers requested Appellant's license and
registration, at which point either Appellant or his
passenger opened the glovebox. When the glovebox was opened,
the troopers observed a plastic vial containing marijuana. A
subsequent search of the vehicle revealed a firearm,
ammunition, and a clip under the driver's seat. The
manufacturer's number on the firearm appeared to have
been scratched, but was still legible. Appellant was arrested
and charged with, inter alia, possession of a
firearm with an altered manufacturer's number in
violation of 18 Pa.C.S § 6110.2 ("No person shall
possess a firearm which has had the manufacturer's number
integral to the frame or receiver altered, changed, removed,
or obliterated.").
At
Appellant's stipulated bench trial, the Commonwealth
introduced photographs of the firearm, which showed that the
manufacturer's number had multiple scratch marks, but the
parties did not dispute that the number was still
legible.[2] Noting that "the serial number
showed clear signs of intentional tampering and wearing of
the serial number," and that "the area containing
the serial number . . . was clearly abraded," the trial
court determined that "the serial number had been, at a
minimum, altered from its original state." Trial Court
Opinion, 7/25/17, at 7-8. While Appellant argued that the
Commonwealth's evidence was insufficient to support his
conviction because the manufacturer's number was still
legible, the trial court rejected his argument, emphasizing
that "'obliteration' is not required to complete
the offense." Id. at 7. Accordingly, the trial
court convicted Appellant of, inter alia, violating
Section 6110.2, and sentenced him to a term of three to six
years incarceration for the offense.
Appellant
appealed his judgment of sentence to the Superior Court,
asserting that the evidence was insufficient to sustain his
conviction because the manufacturer's number, though
scratched, was legible to the naked eye and, thus, the
Commonwealth failed to establish that the number was
"altered, changed, removed, or obliterated," as
required by Section 6110.2. In support of his position,
Appellant relied on language from the Superior Court's
decision in Commonwealth v. (Darian) Smith, 146 A.3d
257 (Pa. Super. 2016), wherein the defendant, charged with
violating Section 6110.2, presented at trial the testimony of
an expert who opined that, because the manufacturer's
number on the firearm found in the defendant's
possession, though abraded, was legible under magnification,
the manufacturer's number was "not altered" for
purposes of Section 6110.2. On appeal from his conviction,
the Superior Court determined that the evidence was, in fact,
sufficient to support Darian Smith's conviction:
When considered in its entirety, the expert's testimony
confirms that the manufacturer's number on the firearm
had been mechanically abraded to such a degree that it was no
longer legible unless magnification was employed. The
degree of degradation of the number-rendering it illegible by
ordinary observation-satisfied the statutory requirement that
an alteration or change to the number be apparent on the
firearm. In this respect, the expert's opinion that
the number had not been "altered" because it was
unnecessary to use chemical means to enhance remnants of a
number ostensibly removed did not bear on the legal question
of culpability under Section 6110.2, for it was not for the
firearms expert to define any of the four discrete terms used
in the statute.
(Darian) Smith, 146 A.3d at 264 (emphasis added).
In the
instant case, Appellant argued to the Superior Court that,
pursuant to the above language in (Darian) Smith, in
order to sustain a conviction under Section 6110.2, the
Commonwealth was required to present evidence that the
manufacturer's number was illegible to the naked eye. The
Superior Court rejected Appellant's construction of
(Darian) Smith, and affirmed his judgment of
sentence in a unanimous, unpublished memorandum opinion.
Commonwealth v. (Shane) Smith, 1923 EDA 2017 (Pa.
Super. filed May 8, 2019). In doing so, the court explained:
[Darian] Smith held that there was sufficient
evidence to establish the number had been changed or altered,
even though the expert testified it had not been
"altered." [Darian] Smith did not require
the Commonwealth to establish the number was unreadable with
the naked eye to establish a violation of Section 6110.2.
Id. at 5.
The
Superior Court then considered the meaning of the language
"altered, changed, removed, or obliterated," as set
forth in Section 6110.2, and observed that
Merriam-Webster's Dictionary defines "alter" as
"to make different without changing into something
else." Id. at 6 (quoting
https://www.merriam-webster.com/dictionary/alter).[3] The court concluded
that, as the manufacturer's number on the gun was
"clearly abraded" by multiple scratch marks, the
evidence was sufficient to establish the number had been
altered, as the number was made "different without
changing [it] into something else." Id.
(alterations original).
Appellant
filed a petition for allowance of appeal, and this Court
granted review to consider the following issue, as framed by
Appellant:
Can a person be convicted of possession of a firearm with
altered manufacturer's number under 18 Pa.C.S.A. §
6110.2 where the evidence clearly shows that the registration
number at issue is fully legible and identifiable despite
some scratch marks?
Commonwealth v. (Shane) Smith, 199 A.3d 338 (Pa.
2018) (order).
Before
us, Appellant renews his argument that the evidence was not
sufficient to support his conviction for possession of a
firearm with an altered manufacturer's number because,
despite having some scratches, the prosecutor conceded at
trial that the manufacturer's number on the gun was
legible. Appellant contends that the rationale of the
Superior Court in (Darian) Smith makes it
"abundantly clear" that no violation of Section
6110.2 occurs if the manufacturer's number, "though
abraded in some manner, is fully decipherable and perceivable
to the naked eye." Appellant's Brief at 12-13.
Appellant
additionally highlights the underlying purpose of Section
6110.2, as articulated by the Superior Court in
Ford, supra. In Ford, the Superior
Court reversed the defendant's conviction under Section
6110.2 because the manufacturer's number on the gun had
become illegible due to corrosion by natural causes, as
opposed to an intentional act. In doing so, the court
explained:
Firearm serial numbers are an important tool because they
help police officers identify the owner of weapons used in
criminal offenses. To ensure that serial numbers remain
intact on firearms, the legislature has prohibited persons
from defacing these markings, see 18 Pa.C.S. §
6117(a), and from purchasing or obtaining defaced firearms,
see 18 Pa.C.S. § 6110.2.
175 A.3d at 992.
Appellant
offers that, because the manufacturer's number on the
firearm found in his vehicle was fully legible, the condition
of the gun did not impede law enforcement's ability to
identify the weapon and, thus, he did not violate the purpose
of the statute. Appellant further suggests that, if the
Superior Court's broad interpretation of Section 6110.2
is permitted to stand, innocent behavior, such as
accidentally dropping the gun on the ground, will be
criminalized if such behavior results in scratches or scuff
marks on the manufacturer's number.
In
response to Appellant's arguments, the Commonwealth
emphasizes that Section 6110.2 does not require the
manufacturer's number to be "fully indecipherable or
illegible" in order to support a conviction thereunder.
Commonwealth's Brief at 15. The Commonwealth asserts
that, if the legislature had intended to require the
manufacturer's number be "unreadable or
obliterated," it would "have included the
additional requirements in the statute or would only have
used the terms remove or obliterate." Id. at
15-16. The Commonwealth further maintains that, in the
instant case, the evidence was sufficient to support
Appellant's conviction for possession of a firearm with
an altered manufacturer's number because, "even
though the scratches did not fully remove the number,"
the numbers "were changed because they looked different
even though they had not been changed into something
else." Id. at 15. The Commonwealth contends
that "the markings on the gun were undoubtedly made by
human hand in an attempt to scratch off the number to make it
unidentifiable and unable to be traced." Id.
Finally,
and as noted supra note 1, the Commonwealth offers
in support of its position two federal appellate court
decisions, United States v. Harris, 720 F.3d 499
(4th Cir. 2013), and United States v. Adams, 305
F.3d 30 (1st Cir. 2002). In Harris, the circuit
court held that, under the federal sentencing guidelines, for
purposes of a sentence enhancement for possession of a
firearm with an "altered or obliterated serial
number," see U.S.S.G. § 2K2.1(b)(4)(B),
"gouges and scratches" on the manufacturer's
number that rendered it "less legible," but not
illegible, constituted an alteration. 720 F.3d at 503. In
Adams, the circuit court held that evidence of a
"badly scratched," but still legible,
manufacturer's number was sufficient to support the
appellant's conviction under 18 U.S.C. § 922(k) for
possessing a firearm which had the manufacturer's serial
number "removed, obliterated, or altered,
"[4] and, further, that the trial judge was
not required to instruct the jury that, in order to convict
the appellant, it must find that the change was material. 305
F.3d at 33.
With
the parties' arguments in mind, we note that the instant
case presents an issue of statutory interpretation, which is
a pure question of law. Thus, our standard of review is
de novo, and our scope of review is plenary.
SEPTA v. City of Philadelphia, 101 A.3d 79, 87 (Pa.
2014). The overriding object of all statutory interpretation
"is to ascertain and effectuate the intention of the
General Assembly" in enacting the statute at issue. 1
Pa.C.S. § 1921(a). Accordingly, we are required to
interpret a statute so as to give effect to all of its
provisions, "if possible." Id. If
statutory language is "clear and free from all
ambiguity, the letter of it is not to be disregarded under
the pretext of pursuing its spirit." Id. §
1921(b). Hence, when the words of a statute have a plain and
unambiguous meaning, it is this meaning which is the
paramount indicator of legislative intent.
However,
in situations where the words of a statute "are not
explicit," the legislature's intent may be
determined by considering any of the factors enumerated in
Section 1921(c). Commonwealth v. Giulian, 141 A.3d
1262, 1278 (Pa. 2016). These factors include: (1) the
occasion and necessity for the statute; (2) the circumstances
under which it was enacted; (3) the mischief to be remedied;
(4) the object to be attained; (5) the former law, if any,
including other statutes upon the same or similar subjects;
(6) the consequences of a particular interpretation; (7) the
contemporaneous legislative history; and (8) legislative and
administrative interpretations of such statute. 1 Pa.C.S.
§ 1921(c). Moreover, in determining legislative intent,
it is presumed that the General Assembly does not intend a
result that is absurd, impossible of execution, or
unreasonable. Id. § 1922(a). Finally, we note
that, under the rule of lenity, penal statutes must be
strictly construed in favor of the defendant.
Commonwealth v. Fithian, 961 A.2d 66, 74 (Pa. 2008)
(where an ambiguity exists in a penal statute, it should be
interpreted in the light most favorable to the accused).
Section
6110.2 provides: "No person shall possess a firearm
which has had the manufacturer's number integral to the
frame or receiver altered, changed, removed or
obliterated." 18 Pa.C.S. § 6110.2(a).[5] The
Commonwealth is correct that, under this plain language, it
is not necessary that the manufacturer's number be
"removed" or "obliterated" in order to
support a conviction. Rather, the Commonwealth may also
establish a violation of Section 6110.2 by demonstrating that
the manufacturer's number has been "altered" or
"changed." There is no dispute that the
manufacturer's number that appeared on Appellant's
firearm was the same as the original ...