Schaffer, P.J. v. York County Sheriff's Department ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PAUL JOSEPH SCHAFFER, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
YORK COUNTY SHERIFF’S DEPARTMENT,
APPEAL OF: PENNSYLVANIA STATE
POLICE
Appellant No. 1351 MDA 2014
Appeal from the Order Entered July 11, 2014
In the Court of Common Pleas of York County
Civil Division at No(s): 2014-SU-001473-49
BEFORE: BOWES, ALLEN, and LAZARUS, JJ.
MEMORANDUM BY BOWES, J.: FILED MAY 05, 2015
The Pennsylvania State Police, on behalf of the York County Sheriff’s
Department (“Sheriff’s Office”), appeals the July 11, 2014 order, granting
Appellee Paul Joseph Schaffer reinstatement of his right to own a firearm.
We reverse.
Appellee instituted this action on April 23, 2014, by petitioning to
restore his right to obtain a firearms license pursuant to 18 Pa.C.S. § 6105.
Section 6105 of the Pennsylvania Crimes Code outlines who may not
possess, use, manufacture, control, sell or transfer firearms. That lengthy
statute lists numerous offenses that prevent a person from owning a
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firearm. It also sets forth procedures for obtaining restoration of a person’s
rights to own a firearm.
Appellee averred the following in his petition. He formerly had a
firearms license. On June 11, 2007, Appellee was charged with driving
under the influence of alcohol, a misdemeanor, and with four counts of
endangering the welfare of a child, which were graded as third-degree
felonies. The charges arose when Appellee was driving while under the
influence of alcohol, with a blood alcohol content over .16%, with his four
children in his vehicle. Appellee attached a docket sheet outlining the
charges against him. The offenses were: 1) one count of DUI, general
impairment, first offense, 75 Pa.C.S. § 3802(a)(1); 2) one count of DUI
highest rate of alcohol, first offense, 75 Pa.C.S. § 3802(c); and 3) four
counts of endangering the welfare of children, 18 Pa.C.S. § 4304(a)(1).
After the charges were filed, the Sheriff’s Office served Appellee with
notice that his firearms license was revoked and that he would be
prosecuted under the Uniform Firearms Act if found in possession of a
firearm. Appellee thereafter relinquished his license to the Sheriff’s Office.
At issue herein are the child endangerment charges. Those were
originally listed as third-degree felony counts, but later reduced to first-
degree misdemeanors. Section 4304 (a) states that child endangerment is
committed when, “A parent, guardian or other person supervising the
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welfare of a child under 18 years of age, or a person that employs or
supervises such a person, commits an offense if he knowingly endangers the
welfare of the child by violating a duty of care, protection or support.” The
grading of § 4304 is contained in subsection (b), which provides: “An offense
under this section constitutes a misdemeanor of the first-degree. However,
where there is a course of conduct of endangering the welfare of a child, the
offense constitutes a felony of the third-degree.” Since the DUI was a single
incident, Appellee’s offenses for child endangerment were reduced from
third-degree felonies to first-degree misdemeanors since he did not engage
in a course of conduct. Neither DUI nor child endangerment is listed as an
enumerated offense that prevents a person from owning a firearm under 18
Pa.C.S. § 6105.
The matter proceeded to a hearing.1 At the hearing, Appellant
conceded that Appellee was not prohibited under Pennsylvania law from
owning a gun. However, it asserted that federal law prohibited restoration
of Appellee’s right to own a gun. The trial court disagreed, and, on July 11,
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1
In his petition for restoration of his right to carry a firearm, Appellant
relied upon 18 Pa.C.S. § 6105(f), which pertains to people who cannot own a
gun due to an involuntary commitment. The trial court then permitted
Appellee to proceed under subsection (d), which relates to people who
cannot own a gun based upon their commission of a crime.
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2014, it granted Appellee’s peition. This appeal followed. Appellant raises
these questions on appeal:
A. Was the Appell[ee] prohibited from purchasing or possessing
firearms, or obtaining a license to carry concealed firearms, as a
result of his Pennsylvania Misdemeanor of the First-degree
convictions?
B. Did the trial court lack subject matter jurisdiction to grant the
Appell[ee] relief in this case?
Appellant’s brief at 4.
Herein, we are construing whether a statutory enactment prevents
Appellee from legally owning a firearm. Statutory construction is a question
of law and our standard of review is de novo. Commonwealth v.
Martorano, 89 A.3d 301 (Pa.Super. 2014). Since Appellee can legally own
a firearm under Pennsylvania law, Appellant opposes the grant of relief
under federal law. Specifically, 18 U.S.C. § 922(g)(1)2 prohibits a person
from possessing firearms if that person was “convicted in any court of, a
crime punishable by imprisonment for a term exceeding one year[.]” There
is an exception to this prohibition in 18 U.S.C. § 921(a)(20)(B), which
outlines that “[t]he term ‘crime punishable by imprisonment for a term
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2
We are aware that portions of this section have been struck down as
unconstitutional, but subsection (g) remains intact. Appellee has not argued
that the federal law unconstitutionally impinges on his Second Amendment
right to bear arms.
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exceeding one year’ does not include . . . any State offense classified by the
laws of the State as a misdemeanor and punishable by a term of
imprisonment of two years or less.”
As outlined supra, § 4304(a) is graded as a first-degree misdemeanor.
A first-degree misdemeanor is punishable by a maximum term of five years.
18 Pa.C.S. § 1104(a). (“A person who has been convicted of a misdemeanor
may be sentenced to imprisonment for a definite term which shall be fixed
by the court and shall be not more than . . . [f]ive years in the case of a
misdemeanor of the first-degree.”). Even though Appellee’s crimes carried a
five rather than two year maximum, the trial court herein concluded that
Appellee’s child endangerment offense carried a maximum of two years
imprisonment. It relied entirely upon the 1972 official comment to § 4304
which states, “Present law provides penalties ranging from three years or
less. The maximum under the new provision would be 2 years.”
When construing a statute, the courts are permitted to consider the
official comments to the statute. Nevertheless, those comments are given
effect only to the extent that they are consistent with the statute’s text.
Commonwealth v. Moran, 104 A.3d 1136, 1145 (Pa. 2014). Specifically,
1 Pa.C.S. § 1939 (emphasis added) provides,
The comments or report of the commission, committee,
association of other entity which drafted a statute may be
consulted in the construction or application of the original
provisions of the statute if such comments or report were
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published or otherwise generally available prior to the
consideration of the statute by the General Assembly, but the
text of the statue shall control in the event of conflict
between its text and such comments or report.
It is apparent from our review of the record that the trial court failed
to apprehend that there was an amendment to § 4304 in 1988. That
amendment “changed the prescribed penalty from a misdemeanor of the
second-degree to a misdemeanor of the first-degree.” Historical and
Statutory Notes (Act 1988-158 legislation). A second-degree misdemeanor
is, in fact, punishable by up to two years imprisonment rather than five
years imprisonment. 18 Pa.C.S. § 1104(a). Thus, in 1972, the year of the
comment relied upon by the trial court, the maximum penalty was two
years. However, in 1988, the grading of reckless endangerment was
changed to a first-degree misdemeanor, with a five year maximum
sentence.
Appellee committed the child endangerment crimes after the 1988
amendments. Hence, the crimes in question were punishable by up to five
years, and 18 U.S.C. § 922(20)(G) did not apply. Appellee is prohibited
from owning a firearm under federal law. Accordingly, the trial court lacked
the authority to order reinstatement of Appellee’s right to a firearm license.
Pennsylvania State Police v. Paulshock, 836 A.2d 110, 116 (Pa. 2003)
(common pleas court cannot “remove a federal firearms disability in a
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proceeding filed pursuant to 18 Pa.C.S. 6105” for restoration of the right to
own a firearm).
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/5/2015
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