Opinion
No. 622 Western District Appeal 2006.
Filed: August 22, 2007.
Appeal from the Order Entered March 8, 2006, in the Court of Common Pleas of Erie County Criminal Division at No. 2340 of 2005.
BEFORE: FORD ELLIOTT, P.J., ORIE MELVIN AND TAMILIA, JJ.
¶ 1 The Commonwealth appeals the order dated March 7, 2006, and entered March 8, 2006, granting the defendant/appellee's (hereinafter "Baxter") motion for a new trial. We affirm.
¶ 2 On November 24 and 26, 2004, Baxter filled out two separate firearms applications at Gander Mountain, an outdoor sporting goods store. As a result of providing allegedly false information on his applications regarding his mental health and criminal histories, Baxter was charged with two counts each of unsworn falsification to authorities and violating the Uniform Firearms Act ("VUFA"). Following a jury trial held January 27, 2006, Baxter was found guilty of all counts. On February 6, 2006, Baxter filed a "motion for judgment of acquittal and/or motion for a new trial"; on March 8, 2006, the Honorable William R. Cunningham granted Baxter's motion for new trial. ¶ 3 On March 31, 2006, the Commonwealth filed a timely notice of appeal. On April 11, 2006, the Commonwealth was ordered to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and complied on April 24, 2006. Thereafter, the trial court filed an opinion.
18 Pa.C.S.A. § 6111(g)(4) ("Sale or transfer of firearms").
The Commonwealth may take an appeal as of right from an order granting a new trial where the Commonwealth claims that the trial court committed legal error. Pa.R.A.P. 311(a)(6).
¶ 4 The Commonwealth presents the following issue for this court's review:
This appeal presents the Court with an issue of first impression: 18 Pa.C.S.A. § 6111(g)(4) prohibits a person from intentionally making false statements in connection with a firearms purchase. 18 Pa.C.S.A. § 6111(b) lists the information a seller must obtain from a purchaser before transferring a firearm. The defendant twice provided a firearms dealer with false information as to his criminal record and mental health history while attempting to purchase a firearm. Do prosecutions for false statements concerning matters not listed in 18 Pa.C.S.A. § 6111(b) violate due process?
Commonwealth's brief at 4. We answer this question in the affirmative.
Two additional issues raised in the Commonwealth's Rule 1925(b) statement, regarding the weight and sufficiency of the evidence to prove the charges against Baxter, have been abandoned on appeal. The trial court states in its opinion that because the only relief afforded Baxter was a new trial and the case was not dismissed in its entirety, it is unnecessary to address the weight or sufficiency of the evidence. (Trial court opinion, 5/25/06 at 6.)
¶ 5 "Because this presents a pure question of law, our standard of review is de novo and the scope of our review is plenary." Commonwealth v. Dickson, ___ Pa. ___, ___, 918 A.2d 95, 100 (2007), citing Craley v. State Farm Fire Cas. Co., 586 Pa. 484, ___, 895 A.2d 530, 539 (2006). Before we begin our discussion, however, it is helpful to review the facts of this case in greater depth. On November 24, 2004, Baxter went to Gander Mountain to purchase a .380 caliber Bersa handgun. (Notes of testimony, 1/27/06 at 42.) The firearms salesman on duty that day, William Patrick Chapman ("Chapman"), gave Baxter two forms to fill out, Pennsylvania State Police Form SP 4-113 and the federal ATF Form 4473 ( Id.; Commonwealth's Exhibit 1.) The instant prosecution arose from Baxter's answers to two questions on the federal form. Question 12(c) on Form 4473 asks, "Have you been convicted in any court of a felony, or any other crime, for which the judge could have imprisoned you for more than one year, even if you received a shorter sentence including probation? (See Important Notice 6, Exception 1.)" (Commonwealth's Exhibit 1 (emphasis in original).) Baxter answered "No" to this question. The Commonwealth alleged that, in fact, Baxter had four prior convictions for simple assault, resisting arrest, driving under the influence, and welfare fraud, each punishable by up to two years' incarceration, and, therefore, his answer to Question 12(c) was false. (Notes of testimony, 1/27/06 at 68-69; Commonwealth's Exhibits 3-7.)
Department of the Treasury, Bureau of Alcohol, Tobacco Firearms.
We note that Form 4473 Important Notice 6 provides, in pertinent part:
The transferee of a firearm should be familiar with 18 U.S.C. § 922. Generally, § 922 prohibits the shipment, transportation, receipt, or possession in or affecting interstate commerce of a firearm by one who: has been convicted of a misdemeanor crime of domestic violence; has been convicted of a felony, or any other crime, punishable by imprisonment for a term exceeding one year ( this does not include State misdemeanors punishable by imprisonment of two years or less). . . .
Commonwealth's Exhibit 1 at 3 (R.R. at 154a) (emphasis in original). All of Baxter's prior convictions were graded as second-degree misdemeanors and punishable by imprisonment of two years or less. (Commonwealth's Exhibits 3-5.)
¶ 6 Question 12(f) on Form 4473 asks, "Have you ever been adjudicated mentally defective ( which includes having been adjudicated incompetent to manage your own affairs) or have you ever been committed to a mental institution?" (Commonwealth's Exhibit 1 (emphasis in original).) Baxter also answered "No" to this question. At trial, the Commonwealth alleged that on May 2, 2001, Baxter was involuntarily committed to Hamot Medical Center in Erie, Pennsylvania; and that on three separate occasions in 2002 Baxter was involuntarily committed to St. Vincent Hospital in Erie, Pennsylvania for mental health treatment. (Notes of testimony, 1/27/06 at 69-70; Commonwealth's Exhibit 8.) Therefore, the Commonwealth alleged that Baxter's response to question 12(f) on federal Form 4473 was false.
¶ 7 Once Baxter completed the forms, Chapman phoned in the information to the Pennsylvania State Police, who initiated a background check. (Notes of testimony, 1/27/06 at 45-46.) Baxter's application was denied, allegedly because he had an outstanding warrant for a summary offense. ( Id. at 47, 86.)
¶ 8 Baxter went to the magisterial district judge's office to resolve the warrant issue and returned to Gander Mountain on November 26, 2004 to reapply. ( Id. at 86.) Jordan Mills ("Mills") was the salesman on duty that day. ( Id. at 56.) Again, Baxter filled out ATF Form 4473 and Pennsylvania State Police Form SP 4-113. ( Id. at 57-58, 63-64.) Again, Baxter answered "No" to questions 12(c) and 12(f) on the federal form. ( Id. at 60; Commonwealth's Exhibit 2.) Mills phoned Baxter's identifying information in to the state police for a background check, and again Baxter was denied. ( Id. at 60-61.) Mills testified that they are not given a reason for the denial over the phone; however, a prospective purchaser can request documentation to appeal the determination. ( Id. at 62.)
¶ 9 Together with two counts of unsworn falsification to authorities, the Commonwealth charged Baxter with two felony counts of VUFA under Section 6111 of the Act, which provides, in relevant part:
Any person, purchaser or transferee who in connection with the purchase, delivery or transfer of a firearm under this chapter knowingly and intentionally makes any materially false oral or written statement or willfully furnishes or exhibits any false identification intended or likely to deceive the seller, licensed dealer or licensed manufacturer commits a felony of the third degree.
¶ 10 Section 6111(b) of the Act delineates what information shall be included in the application/record of sale for purposes of conducting the criminal history, juvenile delinquency, and mental health records background check:
The form of this application/record of sale shall be no more than one page in length and shall be promulgated by the Pennsylvania State Police and provided by the licensed importer, licensed manufacturer or licensed dealer. The application/record of sale shall include the name, address, birthdate, gender, race, physical description and Social Security number of the purchaser or transferee, the date of the application and the caliber, length of barrel, make, model and manufacturer's number of the firearm to be purchased or transferred.
18 Pa.C.S.A. § 6111(b)(1). The application/record of sale, Form SP 4-113, is promulgated under Section 33.111 of the Pennsylvania Administrative Code. 37 Pa. Code § 33.111. As stated above, there is no allegation that Baxter gave false or misleading answers to any questions on the state police form required by Section 6111, including his name, address, date of birth, and Social Security number. Rather, the instant charges arise from his allegedly false answers to questions on the federal ATF Form 4473. We agree with Baxter and the trial court that this was a violation of Baxter's due process rights, as well as the separation of powers doctrine.
It is important to note at the outset that we do not find the statute itself unconstitutional, but rather the Commonwealth's application of it in this particular case.
¶ 11 As this is an issue of first impression in this Commonwealth, the trial court relied principally on a Florida intermediate appellate court case, State v. Watso, 788 So.2d 1026 (Fla.App. 2nd Dist. 2001). While Watso is, obviously, not controlling precedent in Pennsylvania, we find its reasoning in the face of substantially similar facts to be persuasive. A discussion of Watso follows.
¶ 12 Samuel C. Watso was charged with providing false information during the attempted purchase of a firearm in violation of Florida Statute 790.065(12). Similarly to Pennsylvania's Section 6111(b), Section 790.065(1)(a) lists the information to be provided to the firearms dealer, including the buyer's name, date of birth, gender, race, and Social Security number. Id. at 1027. Similarly to Pennsylvania's Section 6111(g)(4) of the UFA, Florida Statute Section 790.065(12) makes it a third-degree felony for the potential buyer to provide false information to the dealer: "Any potential buyer or transferee who willfully and knowingly provides false information or false or fraudulent identification commits a felony of the third degree. . . ." Id. at 1028, quoting § 790.065(12)(a), Fla. Stat. (Supp. 1998). As in the instant case, the charge against Watso was based on his allegedly false answer to a question on thefederal ATF form concerning whether he had ever been convicted of a felony. Id.
¶ 13 As does Baxter, Watso argued that he could not be prosecuted for a false answer to this particular question because the state legislature did not include the question in Section 790.065(1)(a) and therefore did not make a false answer to that question a crime under Section 790.065(12). Id. The Florida district court of appeal agreed and affirmed the trial court's order dismissing the charge, holding that any prosecution of a potential buyer based on allegedly false answers to additional questions on the ATF form, including whether the potential buyer has ever been convicted of a felony or has ever been committed to a mental institution, is unconstitutional as violative of due process and the separation of powers doctrine. Watso.
The grounds relied upon by the trial court in dismissing the charge, that the Florida Department of Law Enforcement ("FDLE") had failed to properly promulgate the form required to be completed before a firearms dealer can sell a firearm to a potential buyer in Florida by simply adopting the federal ATF form, was rejected by the appellate court in Watso.
¶ 14 "[A] criminal statute must give reasonable notice of the conduct which it proscribes to those who are subject to it." Commonwealth v. Noel, 579 Pa. 546, 550, 857 A.2d 1283, 1285 (2004), citing Commonwealth v. Barud, 545 Pa. 297, ___, 681 A.2d 162, 165 (1996). "A defendant must have fair notice that his conduct is criminal." Commonwealth v. Aircraft Service International Group, 917 A.2d 328, 330 (Pa.Super. 2007).
¶ 15 As in Watso, we determine that Baxter was not put on notice that his answers to the additional questions posed by the federal Form 4473 could subject him to criminal liability under Section 6111(g)(4). Section 6111(b) specifically lists the information a potential buyer must provide to the dealer on the Pennsylvania State Police Form SP 4-113. This list includes only the buyer's name, address, birthdate, gender, race, physical description, and Social Security number, as well as the date of application and caliber, barrel length, make, model, and serial number of the firearm to be purchased. 18 Pa.C.S.A. § 6111(b)(1). Nothing in Section 6111(b) requires the potential buyer to disclose his or her criminal or mental health background. Rather, the statutory scheme contemplates that the buyer will provide identifying information to the dealer, and the dealer will then request a criminal background check from the Pennsylvania State Police based on that information. 18 Pa.C.S.A. § 6111(b)(1.1)(iii). So that the criminal background check is not thwarted, Section 6111(g)(4) makes it a crime for the potential buyer to provide false identifying information.
¶ 16 The federal ATF Form 4473, which forms the basis for the instant prosecution, asks a series of questions about the potential buyer's background in addition to the identifying information authorized by Section 6111 and included on Form SP 4-113, such as whether the potential buyer has been dishonorably discharged from the armed forces; whether he or she is an unlawful user of, or addicted to, marijuana, or any depressant, stimulant, or narcotic drug, or any other controlled substance; whether he or she is an alien illegally in the United States; and whether he or she is subject to a restraining order. (Commonwealth's Exhibits 1 2.) None of this information is required by or authorized by Section 6111(b). Applying the Watso court's rationale to the facts of this case,
[N]othing in the statute puts the potential buyer on notice that he or she will be asked questions about his or her use of marijuana, his or her psychological background, or the circumstances surrounding his or her discharge from the armed forces. Moreover, nothing in the statute puts the potential buyer on notice that he or she will be asked to independently corroborate the criminal background check to be done by the [state police]. Because the potential buyer is not advised by the statute that answers to the [federal Form 4473's] additional questions could subject him or her to criminal prosecution, any prosecution under section [6111(g)(4)] for providing false answers to these additional questions constitutes a due process violation.
Watso, 788 So.2d at 1029-1030.
¶ 17 We agree with the reasoning in Watso and adopt it as our own. Baxter was not put on fair notice by the statute that false answers to any additional questions such as those set forth in the ATF Form 4473 could potentially expose him to criminal prosecution under Pennsylvania law. Therefore the statute, as applied by the Commonwealth in the instant case, violated due process.
¶ 18 We reject the Commonwealth's argument that by its plain language, the statute applies to "any materially false oral or written statement" and so informs persons of ordinary intelligence that any false statement, whether oral or written, can potentially give rise to criminal liability. (Commonwealth's brief at 13.) To be "material," the allegedly false statement must relate to one of the pieces of identifying information delineated in Section 6111(b); e.g., date of birth, Social Security number, address, etc. To the extent the Commonwealth argues that a dealer is free to ask whatever additional questions it wishes and that while the potential buyer is not legally obligated to answer, any false answer subjects him or her to criminal liability under Section 6111(g)(4) (Commonwealth's brief at 13-14), we reject such an argument out of hand as going well beyond the scope of the statute. For example, while the federal government might be interested in whether or not Baxter was dishonorably discharged from the military or is an illegal alien, such information is well beyond the purview of Section 6111 and a false answer cannot subject Baxter to criminal prosecution thereunder.
As in Watso, we express no opinion as to whether Baxter's allegedly false answers to questions on the ATF Form 4473 could subject him to federal prosecution. Id. at 1030 n. 1. See 18 U.S.C. § 922(a)(6).
¶ 19 We also agree with the trial court that the Commonwealth's prosecution of Baxter violated separation of powers, as only the legislature has the authority to expand the scope of the questions required by statute on a firearms application. (Trial court opinion, 5/25/06 at 5.) The legislature cannot delegate to the executive branch power to declare what acts shall constitute criminal offense, nor may any other branch of government usurp the legislature's authority to define a crime in Pennsylvania. Pennsylvania Constitution, Art. 2, Section 1.
¶ 20 "[T]he [Commonwealth] has, in effect, attempted to expand the scope of criminal conduct under section [6111(g)(4)] by making it a third-degree felony to provide false answers to these additional questions. This is an unconstitutional usurpation of the legislature's function." Watso, supra at 1029. As the trial court states, the dealer can ask whatever questions in addition to those on the Pennsylvania form it wants to, including the information sought by the ATF; while a potential buyer's answers to these "additional" questions might serve as a legitimate basis for denying purchase, they do not, and cannot, constitute a crime under Section 6111(g)(4). (Trial court opinion, 5/25/06 at 6.)
¶ 21 In addition to Watso, the trial court also relied on this court's decision in Commonwealth v. Kennedy, 789 A.2d 731 (Pa.Super. 2001). In that case, Brooks T. Kennedy appealed his judgment of sentence for unsworn falsification to authorities after allegedly giving a false answer to a question on his Cumberland County application for a Pennsylvania license to carry firearms. After first finding the evidence insufficient to support Kennedy's conviction, we stated,
Additionally, we note that 18 Pa.C.S.A. § 6105[] lists the exclusive criteria to evaluate a person's qualifications to possess or use a firearm. Specific mention is made of violations of The Drug Act, with the proviso that punishment must exceed two years to preclude possession or use a firearm. For Cumberland County to endorse a form imposing an additional criterion, i.e., listing any violation of The Drug Act vis-à-vis violations of The Drug Act carrying a penalty in excess of two years, subverts the clear intention of the Legislature in establishing a framework regulating the issuance of a license to carry a firearm pursuant to Section 6105. This will not be permitted where a statute occupies the area of law to the exclusion of all other enactments.
"Persons not to possess, use, manufacture, control, sell or transfer firearms."
Id. at 734-735 n. 3 (emphasis in original).
See 18 Pa.C.S.A. § 6105(c)(2) (prohibiting persons convicted of an offense under The Drug Act or equivalent statute punishable by a term of imprisonment exceeding two years from possessing, using, etc. a firearm). We recognize that since the Kennedy court had already decided the evidence was insufficient to support the conviction for unsworn falsification, as all the evidence pointed to Kennedy's having made a simple mistake rather than an intentional falsehood ( id. at 734), the passage quoted above could be characterized as dicta; however, we find the language persuasive and applicable to the case sub judice.
¶ 22 The Commonwealth states that separation of powers is not implicated because unlike Kennedy, Pennsylvania did not promulgate the Form 4473's in which the allegedly false statements appeared. (Commonwealth's brief at 8 n. 4.) We agree that Kennedy is not directly on point; however, it stands for the proposition that the Commonwealth, in this case the Erie County district attorney's office, cannot expand the scope of a criminal statute beyond that expressly authorized by the legislature. The Commonwealth has effectively "endorsed" the federal Form 4473 by charging Baxter for providing allegedly false information thereon. In doing so, the Commonwealth operates outside the statutory framework formulated by the legislature for conducting background checks to determine who is eligible to purchase firearms in Pennsylvania.
¶ 23 We hold that Baxter could not be prosecuted under Section 6111(g)(4) for giving allegedly false answers to questions not designed to elicit the information required by Section 6111(b).
¶ 24 Order affirmed.
¶ 25 Orie Melvin, J. files a Dissenting Opinion.
¶ 1 I respectfully dissent. I conclude that the plain language of 18 Pa.C.S.A. § 6111(g)(4), when read in conjunction with the Uniform Firearms Act of 1995 ("UFA"), 18 Pa.C.S.A. § 6101 et seq., as a whole, clearly places a person on notice that making any materially false statement in connection with the purchase of a firearm — including on the Bureau of Alcohol, Tobacco and Firearms Transaction Record ("ATF 4473") — will subject that person to prosecution by this Commonwealth for a felony of the third degree. Accordingly, I would hold that the prosecution of Appellant here was not constitutionally infirm and would reverse the trial court's order granting a new trial and affirm the verdict.
¶ 2 It is well settled that "when the judiciary is required to resolve an issue concerning the elements of a criminal offense, its task is fundamentally one of statutory interpretation, and its overriding purpose must be to ascertain and effectuate the legislative intent underlying the statute." Commonwealth v. Reaser, 851 A.2d 144, 148 (Pa.Super. 2004), appeal denied, 581 Pa. 674, 863 A.2d 1145 (2004). See also 1 Pa.C.S.A. § 1921(a) (providing that "[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly" and that "[e]very statute shall be construed, if possible, to give effect to all its provisions."). Further, "strict construction does not require that the words of a criminal statute be given their narrowest meaning or that the lawmaker's evident intent be disregarded." Commonwealth v. Duncan, 456 Pa. 495, 497, 321 A.2d 917, 919 (1974) (internal quotation omitted).
¶ 3 To ascertain and effectuate our General Assembly's intention here, it is first necessary to understand the broader context in which the two statutory sections involved ( 18 Pa.C.S.A. §§ 6111(b)(1) and 6111(g)(4)) exist. In general, federal law requires that background checks on potential gun purchasers (such as Appellee) be conducted pursuant to the Brady Handgun Violence Prevention Act, 18 U.S.C.A. §§ 921 et seq. ("Brady Act"). The Brady Act required the Attorney General to establish a "National Instant Criminal Background Check System (NICS) to be contacted by any licensed importer, licensed manufacturer, or licensed dealer of firearms for information as to whether the transfer of a firearm to any person . . . would be in violation of Federal or state law." 28 C.F.R. § 25.1 (1998). The Brady Act further mandates that a licensed firearms seller must have a purchaser complete ATF form 4473 in order for the seller to determine if it may lawfully sell or deliver the firearm. See 18 U.S.C.A. § 923. Pursuant to 18 U.S.C. § 922, the purchaser must answer "no" to all of the questions (except the first) on ATF 4473 and pass a background check in order to complete the sale. In Pennsylvania, a licensed firearms seller must obtain this required federal background check through the Pennsylvania State Police, which serves as the point of contact ("POC") for the implementation of the Brady Act in our Commonwealth. Under the Brady Act and the UFA, the mandate of the State Police as the POC is to conduct the required background checks to ensure that firearms are not purchased by prohibited persons.
ATF 4473 provides that every question must be answered "no" except for the first question which asks if the purchaser is the actual purchaser acquiring the firearm.
28 C.F.R. § 25.6(a) (1998) indicates that each state makes the determination as to how a licensed dealer is to initiate the background checks. Pursuant to 18 Pa.C.S.A. § 6111.1, the General Assembly has designated the Pennsylvania State Police to serve as the POC.
¶ 4 ATF Form 4473 asks a number of questions about the purchaser's background — for example, whether the purchaser has been convicted of a felony or a crime carrying a sentence of one-year incarceration or more, has ever been adjudicated mentally defective or committed to a mental institution, is an illegal alien, has been convicted of a crime relating to domestic violence, or is a fugitive from justice. In 18 Pa.C.S.A. § 6105 (Persons not to possess, use, manufacture, control, sell or transfer firearms), our General Assembly identifies the persons not permitted in this Commonwealth to possess, use, control, sell, transfer or manufacture a firearm. Section 6105(a) provides the basic prohibition. Subsection 6105(b), in turn, enumerates 37 specific criminal offenses (in addition to any equivalent offense), which render the person subject to the prohibition contained in Section 6105(a). Section 6105(c) further identifies "criteria" that render the person subject to the prohibition in Section 6105(a). Notable for our purposes here is that Section 6105(c) provides that the following persons are subject to the prohibition: a fugitive from justice (6105(c)(1)); a person convicted of an offense under the Controlled Substance, Drug, Device and Cosmetic Act, or any equivalent federal statute (6105(c)(2)); a person adjudicated as an incompetent or who has been involuntarily committed to a mental institution (6105(c)(4)); an illegal alien (6105(c)(5)); and a person who has been convicted of an offense related to domestic violence (6105(c)(6) and (9)). It is evident that the enumerated offenses and prohibited criteria set forth in Section 6105(b) and (c) closely track the criteria set forth under federal law and elicited by ATF 4473.
18 Pa.C.S.A. § 6105(a)(1) provides: "A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth."
I recognize that Section 6105(c) does not include dishonorable discharge as a prohibited criteria and that ATF 4473 elicits information as to that criteria.
¶ 5 It is against this background that Section 6111(g)(4) must be read. This provision provides:
(4) Any person, purchaser or transferee who in connection with the purchase, delivery or transfer of a firearm under this chapter knowingly and intentionally makes any materially false oral or written statement or willfully furnishes or exhibits any false identification intended or likely to deceive the seller, licensed dealer or licensed manufacturer commits a felony of the third degree.
18 Pa.C.S.A. § 6111(g)(4) (emphasis added). This statutory provision is broadly worded. Further, when I read the UFA as a whole, I glean that the General Assembly's intention was to prohibit certain persons (including Appellee) from possessing a firearm within this Commonwealth. Critically, I have found no evidence that the General Assembly intended for Section 6111(g)(4) to be read solely in conjunction with Section 6111(b)(1) (which, I note, purports to identify duties of the seller, not the purchaser), and to authorize prosecution only for false statements pertaining to the identifying information required to be provided by Section 6111(b)(1). Therefore, I conclude that the General Assembly's intention was to provide authority for prosecution of persons who make any materially false statement in connection with the purchase of a firearm in this Commonwealth.
¶ 6 Furthermore, I believe that any knowingly false statement given by a person in connection with the purchase of a firearm — even if given in response to the questions on ATF 4473 — is "material" and would subject that person to prosecution. Limiting the Commonwealth to prosecuting only those persons who provide false identifying information in answer to the Pennsylvania form ignores the Commonwealth's duty as a POC for the Brady Act and the General Assembly's obvious intention in enacting the UFA and, specifically, Section 6111(g)(4).
I note there have already been prosecutions under Section 6111(g)(4) for false statements provided on the federal form in connection with a firearm purchase in this Commonwealth. See Commonwealth v. Emmil, 866 A.2d 420 (Pa.Super. 2005) (affirming order denying suppression following conviction pursuant to 18 Pa.C.S.A. § 6111(g)(4) for making false statements to authorities in connection with a firearm purchase); see also Commonwealth v. Turner, 70 Pa. D. C.4th 19 (Pa. Com. Pl. 2004).
¶ 7 I am further unwilling to adopt the rationale of State of Florida v. Watso, 788 So.2d 1026 (Fla.Dist.Ct.App. 2001), to decide this issue of first impression, especially when the Florida statute implicated therein is similar to but not as expansive in scope as Section 6111(g)(4). The Florida statute, Fla. Stat. Ann. § 790.065(12)(a), provided that "[a]ny potential buyer or transferee who willfully and knowingly provides false information or false or fraudulent identification commits a felony of the third degree[.]" Noticeably missing from this statutory provision are any of the expansive phrases found in our statute, such as "in connection with the purchase" and "any materially false oral or written statement." It is settled law that "[w]hen construing a statute, . . . [this court] must begin with a presumption that our legislature did not intend any statutory language to exist as mere surplusage." Wiernik v. PHH U.S. Mortg. Corp., 736 A.2d 616, 621 (Pa.Super. 1999), appeal denied, 561 Pa. 700, 751 A.2d 193 (2000). I believe that imposing the narrow view embraced in Watso serves only to impermissibly narrow and limit our statute as written in a manner that ignores what I believe to be the General Assembly's obvious intention.
I would instead find persuasive the reasoning of the Supreme Court of New Hampshire in State of New Hampshire v. Brown, ___ A.2d ___, 2007 WL 1791648 (issued June 22, 2007), which permitted prosecution under a broadly worded state law for false statements provided on ATF 4473. In Brown, the defendant falsely responded to Question 12.i on ATF 4473 and was charged with giving false information to secure a firearm under the New Hampshire statute, N.H. Rev. Stat. Ann. § 159:11. This statute provided that "[a]ny person who, in purchasing or otherwise securing delivery of a pistol, revolver, or other firearm, gives false information or offers false evidence of his identity, shall be guilty of a misdemeanor for the first offense, and be guilty of a class B felony for any subsequent offense." When the defendant in Brown sought to plead guilty, the trial court rejected the plea, ruling that "[N.H. Rev. Stat. Ann. § ] 159:11 only criminalizes conveying false information that is pertinent to the acquisition of a firearm under New Hampshire law." Id. at *1. The State appealed, and the Supreme Court of New Hampshire recognized as the question before it "whether [N.H. Rev. Stat. Ann. § ] 159:11 criminalizes conveying false information in the purchase or acquisition of a pistol, revolver, or other firearm whether or not the false information pertains to New Hampshire gun acquisition laws." Id. In reviewing the statute, the Brown court recognized that "the legislature used plain language to criminalize the provision of false information in obtaining a firearm" and reasoned therefore that "the statute does not limit the type of information that it criminalizes when conveyed in the acquisition of a firearm." Id. Accordingly, the Brown court held that "the plain language of [N.H. Rev. Stat. Ann. § ] 159:11 criminalizes conveying false information, including information upon a federal form that is false based upon federal definitions of the form's terms." Id. I believe this rationale, as opposed to that in Watso, more closely applies to Section 6111(g)(4) as written and is more in line with our General Assembly's intention.
¶ 8 I further reject any reliance here on the factually distinguishable case of Commonwealth v. Kennedy, 789 A.2d 731 (Pa.Super. 2001). In Kennedy, this Court determined that the Pennsylvania form used (SP 4-127
"Application for a Pennsylvania License to Carry Firearms") improperly expanded the scope of Section 6105(c)(2) by prohibiting a person having any violation of The Controlled Substance, Drug, Device and Cosmetic Act (Act) from securing a gun permit when the statutory provision prohibited only those persons whose violation of the Act carried a penalty in excess of two years. See id. at 734 n. 3. Thus, this Court stated that the form improperly expanded the scope of the statute and subverted the General Assembly's clear intention. Id. Here, however, Section 6111(g)(4) is broadly worded and, in my opinion, authorizes the Commonwealth to pursue criminal prosecution for any materially false statements provided in connection with the purchase of a firearm. As such, the Commonwealth is not expanding the scope of the criminal statute and operating outside the statutory framework as in Kennedy; rather, it is exercising authority expressly given to it by the General Assembly.
¶ 9 Accordingly, I dissent.