Commonwealth v. Smith

221 A.3d 631

COMMONWEALTH of Pennsylvania, Appellee

v.Shane C. SMITH, Appellant

No. 73 MAP 2018

Supreme Court of Pennsylvania.

Argued: May 16, 2019

Decided: November 20, 2019

OPINION

JUSTICE TODD

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, 2018 WL 2111007 (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 , ––– Pa. ––––, 199 A.3d 338 (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...