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In Smith, the defendant argued that he could not be convicted for violating Section 6110.2 because the number was "fully legible and identifiable despite some scratch marks."
Summary of this case from Commonwealth v. FisherOpinion
No. 73 MAP 2018
11-20-2019
COMMONWEALTH of Pennsylvania, Appellee v. Shane C. SMITH, Appellant
OPINION
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.
On May 14, 2019, the Commonwealth filed an application to file a supplemental brief to address two additional cases it discovered during its preparation for oral argument. In deciding this case, this Court has considered the cases highlighted by the Commonwealth in its application, and so we find further briefing unnecessary. Accordingly, the Commonwealth's application is denied.
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. 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.
The original record in this case contains a copy of the photograph showing a close-up view of the manufacturer's number, which was introduced by the Commonwealth and identified as Exhibit C-4. While, in the Court's view, the manufacturer's number on the firearm is difficult to accurately discern based on the exhibit alone, as noted by Appellant, the Commonwealth conceded at trial that the number was legible despite the scratch marks. See Appellant's Brief at 13 (citing N.T. Trial, 2/24/17, at 9).
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). 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).
The Superior Court also cited, without discussion, its decision in Commonwealth v. Ford , 175 A.3d 985 (Pa. Super. 2017), discussed infra .
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 "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," 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.
Section 922(k) provides:
It shall be unlawful for any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered or to possess or receive any firearm which has had the importer's or manufacturer's serial number removed, obliterated, or altered and has, at any time, been shipped or transported in interstate or foreign commerce.
18 U.S.C. § 922(k).
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 , 627 Pa. 470, 101 A.3d 79, 87 (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 , 636 Pa. 207, 141 A.3d 1262, 1278 (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 , 599 Pa. 180, 961 A.2d 66, 74 (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). 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 manufacturer's number, and the Commonwealth does not suggest, nor did the lower courts conclude, that the number had been "changed."
A violation of Section 6110.2 is a second-degree felony. See 18 Pa.C.S. § 6110.2(b).
However, the lower courts did conclude that the scratch marks on Appellant's firearm resulted in an "altered" manufacturer's number. The Superior Court observed the term "altered" is not defined in the statute. Indeed, only the term "firearm" is defined in Section 6110.2. Therefore, the court considered the dictionary definition of the term, see 1 Pa.C.S. § 1903(a) (words of a statute shall be construed according to rules of grammar and according to their common and approved usage), noting that Merriam-Webster defines "alter" as "to make different without changing into something else." See https://www.merriam-webster.com/dictionary/alter. Based on this singular definition, the court concluded that: "[t]he picture shows that the manufacturer's number was ‘clearly abraded’ by multiple scratch marks, Trial [Court Opinion] at 7-8, which is sufficient to establish the number was altered, as it made the number ‘different without changing [it] into something else.’ " ( Shane) Smith , at 6.
Although the Superior Court relied on a particular definition of the term "alter" suggesting that something can be made "different" without "changing [it] into something else," a number of other sources provide definitions that are in tension with the one utilized by the Superior Court. For example, the American Heritage Dictionary defines "alter" as "[t]o change or make different." The American Heritage Dictionary at 99 (2nd ed. 1982). The New Shorter Oxford English Dictionary defines "alter" as to "[m]ake otherwise or different in some respect; change in characteristics, position, etc." The New Shorter Oxford English Dictionary at 60 (1993). Finally, Random House Webster's Unabridged Dictionary defines "alter" as "to make different in some particular, as size, style, course, or the like ... to change." Random House Webster's Unabridged Dictionary at 60 (2nd ed. 1987). In our view, these definitions undercut the Superior Court's construction of the term "alter" as making something "different" without "changing [it] into something else."
Indeed, Merriam-Webster defines the term "change" as, inter alia , "to make different in some particular," https://www.merriam-webster.com/dictionary/change, and the term "different" is defined as "partly or totally unlike in nature, form, or quality," and "not the same." https://www.merriam-webster.com/dictionary/different. These definitions indicate that the terms "alter" and "change" can be viewed as, essentially, synonymous, and, indeed, Merriam-Webster identifies "change" as a synonym of the term "alter." See https://www.merriam-webster.com/dictionary/alter. Moreover, in the context of Section 6110.2, which pertains to an identification number, it is reasonable to question how a number could be "made different" without actually changing it into a different number; in one natural sense, an alteration to a number means a change to the number.
Nevertheless, as there is support for both Appellant's more narrow interpretation of the term "alter" - wherein a manufacturer's number which has been scratched, but is still legible, is not "altered" because the number remains the same - and the Commonwealth's broader interpretation - wherein a manufacturer's number that remains legible, but is less clear as a result of scratches to the number, is "altered," see Harris , 720 F.3d at 503 (concluding that a serial number that remains legible, but has been made less legible , has been "altered" for purposes of the federal statute) - we hold that the term "alter," as used in Section 6110.2, is capable of multiple reasonable interpretations, and, therefore, is ambiguous. See A.S. v. Pennsylvania State Police , 636 Pa. 403, 143 A.3d 896, 906 (2016) (when a statutory term, read in context with the overall statutory framework in which it appears, has at least two reasonable interpretations, the term is ambiguous). Thus, we look to the statutory construction factors identified above to determine the proper interpretation of the term.
Like the Superior Court below, the Harris court adopted the definition of the word "alter" as making something "different without changing into something else," and contrasted the meaning of the term with the meaning of "obliterate."
We reject Appellant's continued reliance on the language of the Superior Court's decision in (Darian) Smith for the proposition that, as long as the manufacturer's number is perceivable to the naked eye, no violation of Section 6110.2 occurs. Contrary to Appellant's suggestion, a careful reading of (Darian) Smith reveals that the Superior Court therein did not establish a per se rule that, in order to support a conviction under Section 6110.2, the degradation of a manufacturer's number must be such that the number is illegible with the naked eye. Rather, as observed by the Superior Court in the instant case, the court in (Darian) Smith merely held that the fact that the manufacturer's number could not be ascertained by the naked eye was, in that particular case, sufficient to satisfy the requirement that the number had been altered or changed.
With regard to the occasion and necessity for the statute, the mischief to be remedied, and the object to be obtained, the Superior Court in Ford aptly recognized that the manufacturer's serial number on a firearm is an important tool used by police officers in identifying the owner of weapons used in criminal offenses. 175 A.3d at 992. To safeguard this important tool, the legislature prohibits individuals from altering, changing, removing, or obliterating the numbers, see 18 Pa.C.S. § 6117(a), and from possessing firearms which have had the manufacturer's number altered, changed, removed or obliterated, id. § 6110.2.
In cases such as the one sub judice , where a manufacturer's number on a firearm bears scratch marks, or gouges, but remains legible, the underlying object of Section 6110.2 is not frustrated or impeded. If the General Assembly's intent in enacting Section 6110.2 - a possessory offense - was to do more than insure that the manufacturer's serial number on a firearm remains legible so that police officers can identify the owners, it could have used the terms "deface," "mar," or "disfigure." Alternatively, the General Assembly could have used the term "obscure," to apply to a situation in which the manufacturer's number has been made more difficult to read, but is still legible. These considerations militate in favor of an interpretation of the term "alter" as requiring that the number be changed in some material way, or in a manner which renders the number illegible, in order to support a conviction thereunder.
Although cited by the Commonwealth, we find aspects of the decisions in Adams and Harris to support this conclusion. In Adams , the court explained that the purpose of 18 U.S.C. § 922(k), which prohibits an individual from possessing a firearm with a "removed, obliterated, or altered" manufacturer's serial number:
aims to punish one who possesses a firearm whose principal means of tracing origin and transfers in ownership-its serial number-has been deleted or made appreciably more difficult to make out. Considering the evident purpose, it is hard to see why anything more than a significant impairment
should be required; nothing in language or purpose suggests that the alteration must make tracing impossible or extraordinarily difficult.
* * *
[T]here is a kind of materiality requirement implicit in the statute , but also one implicitly understood by jurors. This is especially so because ... any change that makes the serial number appreciably more difficult to discern should be enough, assuming always that the defendant made the change or is otherwise aware of it.
Adams , 305 F.3d at 34 (emphasis added). In Adams , the federal agent testified that he was able to read the manufacturer's number with difficulty , and the court itself, after examining the firearm at oral argument, noted that at least one of the six digits could have been read as two different numbers. Id. at 35.
Likewise, the Harris court, in holding that a serial number "that is not illegible but is less legible than it would be without the gouges and scratches," 720 F.3d at 503 (emphasis original), falls within 18 U.S.C. § 922(k), relied on several decisions which involved an "alteration" that rendered the number illegible to the naked eye. See Harris , 720 F.3d at 503-04 (citing United States v. Carter , 421 F.3d 909, 910, 916 (9th Cir. 2005) ("partially defaced" serial number that was not discernable to the naked eye, but was detectable via microscopy, is "altered" for purposes of sentence enhancement, as serial number was "materially changed in a way that makes accurate information less accessible."); United States v. Jones , 643 F.3d 257 (8th Cir. 2011) (filed-off serial number that was invisible to the naked eye, but became visible when an acid solution was applied, was sufficiently "altered" for purposes of federal sentencing enhancement); United States v. Justice , 679 F.3d 1251, 1254 (10th Cir. 2012) (explaining that, while crime lab was able to detect serial number after smoothing the metal surface and applying acid and water, "sentencing guidelines are to govern the practical world, not the world of metaphysical certainty. What matters is what is ‘perceptible,’ not what can be discerned by sophisticated and scientific techniques.")); but see United States v. Perez , 585 F.3d 880, 885 (5th Cir. 2009) (relying on Carter , supra , in holding that serial number which "appeared to be altered and partially obliterated," but was still readable, had been "materially changed in a way that made its accurate information less accessible"). The Harris court recounted that the district court in that case was unable to read the manufacturer's number, and that there was no evidence in the record as to how the police ultimately discerned the manufacturer's number. 720 F.3d at 504.
As noted above, in the instant case, the Commonwealth conceded at trial that the manufacturer's number on Appellant's firearm was legible despite the scratch marks. Thus, in contrast to Adams , Harris , and the other federal cases cited above, the scratch marks did not materially change the number in a way that made its accurate information less accessible, or render the number illegible to the naked eye.
Finally, we reiterate that, under the rule of lenity, Section 6110.2, as a penal statute, must be strictly construed in favor of the Appellant. Fithian, 961 A.2d at 74. As the United States Supreme Court explained in Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979), the application of the rule of lenity is "not merely a convenient maxim of statutory construction," but, rather, "is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited." Id. at 112, 99 S.Ct. 2190. Here, a citizen should not have to guess whether possession of a firearm with a scratched, but still legible, manufacturer's number constitutes a second-degree felony.
For all of the above reasons, we hold that, in order to establish that a manufacturer's number was "altered" for purposes of Section 6110.2, the Commonwealth must establish that the number was changed in a material way, such as by making it look like a different number, or that it was rendered illegible, in whole or in part, to the naked eye.
As the original manufacturer's number on Appellant's firearm was, notwithstanding the scratch marks, still legible to the naked eye, we reverse the order of the Superior Court, vacate Appellant's conviction and judgment of sentence for violating Section 6110.2, and remand the matter to the Superior Court for remand to the trial court for resentencing.
Order reversed. Case remanded. Jurisdiction relinquished.
Chief Justice Saylor and Justices Baer, Donohue and Wecht join the opinion.
Justice Wecht files a concurring opinion.
Justice Mundy files a dissenting opinion.
Justice Dougherty did not participate in the consideration or decision of this case.
JUSTICE WECHT, Concurring
I join the Majority's fine Opinion.
As used in Section 6110.2, the term "alter" is ambiguous. As the Majority notes, some dictionaries propose narrow definitions of the word, while others propose broad ones. The resulting muddle brings to mind Judge Learned Hand's wisdom that "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." Consistent with Hand's interpretive spirit, the Majority astutely investigates the skullduggery that Section 6110.2 is seeking to remedy.
"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).
See Maj. Op. at 636–38.
Cabell v. Markham , 148 F.2d 737, 739 (2d. Cir.), aff'd 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945).
Relying upon the perception that the legislature designed the statute to ensure that serial numbers are legible in order to identify owners of guns, and further applying the rule of lenity, the Majority concludes that the Commonwealth did not prove that the serial number was "altered" in this case. The Majority aptly references the canon of statutory construction which invites us to presume that the General Assembly does not intend "absurd" or "unreasonable" results. Pursuant to Section 6117, the act of altering, changing, removing, or obliterating a gun's serial number is a crime. As such, Section 6117 requires that someone act with intent, knowledge, or recklessness in altering the serial number.
See Maj. Op. at 639–40.
Id. at 636–37. "In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used: (1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable."
1 Pa.C.S. § 1922.
"No person shall change, alter, remove, or obliterate the manufacturer's number integral to the frame or receiver of any firearm which shall have the same meaning as provided in section 6105 (relating to persons not to possess, use, manufacture, control, sell or transfer firearms)."
18 Pa.C.S. § 6117(a).
See Commonwealth v. Ford , 175 A.3d 985, 993 (Pa. Super. 2017) (stating that section 6117 "prohibits a person from intentionally defacing manufacturer's numbers"); Commonwealth v. Shore , 259 Pa.Super. 404, 393 A.2d 889, 890-91 (1978) (discussing whether the Commonwealth sufficiently proved "guilty knowledge" to show violation of prior version of Section 6117 when, upon police officers' arrival, the defendant handed a gun with an altered serial number to another person).
Neither an accidental act, nor normal wear and tear, nor natural corrosion that obscures or otherwise marks the serial number of gun, constitutes a criminal act pursuant to Section 6117. By contrast, under the interpretation employed by the lower courts here, the mere possession of a gun with similar defects would be a criminal act pursuant to Section 6110.2. It would be plainly absurd for the General Assembly to criminalize the mere possession of such a marked-up gun while simultaneously allowing that actually (so long as unintentionally) causing those marks would not itself be illegal.
As well, such a counterintuitive interpretation would have the apparent effect of rendering Section 6110.2 essentially a strict liability crime, inasmuch as mere possession (regardless of the possessor's mental state) of a weapon with an altered, but legible, serial number (regardless of the cause) would be a criminal act. Generally, strict liability crimes are disfavored in Pennsylvania. While it is within the General Assembly's power to enact such offenses, this Court has demanded some clear statement or other affirmative evidence to indicate legislative determination to dispense with the prevailing requirement of scienter . There is of course no such statement or evidence here.
See, e.g., Commonwealth v. Gallagher , 592 Pa. 262, 924 A.2d 636, 639 (2007) ("[T]he imposition of absolute liability for a crime is generally disfavored and an offense will not be considered to impose absolute liability absent some indication of a legislative directive to dispense with mens rea. ")
Most general rules are qualified by particular exceptions. This Court accordingly has recognized statutes in which our General Assembly has created strict liability crimes. Such crimes are generally regulatory or related to public welfare. Commonwealth v. Moran , 629 Pa. 68, 104 A.3d 1136, 1149 (2014). See, e.g., Pennsylvania Liquor Control Bd. v. TLK, Inc. , 518 Pa. 500, 544 A.2d 931, 932 (1988) ("A violation of the Liquor Code or its attendant laws and regulations places a liquor license in jeopardy on a basis of strict liability.... This is due to the legislative mandate in the Liquor Code."); Commonwealth v. Koczwara , 397 Pa. 575, 155 A.2d 825, 829 (1959) (holding that certain sections of the Liquor Code did not require a mens rea when the legislature included terms such as "knowingly" and "willfully" in some provisions, but not in others).
While this Court has not addressed the issue of the mens rea applicable to Section 6110.2, the Superior Court has held that 18 Pa.C.S. § 302 (providing definitions of and minimum requirements for levels of culpability) applies to Section 6110.2 and that the statute requires that a defendant have knowledge of the alteration, change, removal or obliteration of the serial number. See Commonwealth v. Jones , 172 A.3d 1139, 1145 (Pa. Super. 2017).
As the Majority notes, no one should have to guess whether a particular activity is illegal. Upon reading the statute at bar, few would suspect that to merely possess a gun which bears a scratched, though legible, serial number is to commit a crime. Moreover, such manifest uncertainty might easily be replicated among police officers, leading to a patent risk of arbitrary and inconsistent law enforcement. Under such a rubric, any citizen, whether police or civilian, would be compelled simply to guess as to whether a scratched, though legible, serial number violates the statute and constitutes a crime. Instead of requiring citizens to speculate, and to do so at peril to their liberty, the Majority correctly focuses the inquiry on whether or not the serial number is legible, which relates soundly to the purpose of Section 6110.2.
Maj. Op. at 639–40.
The Majority's emphasis upon legibility informs its rule that "the Commonwealth must establish that the [serial] number was changed in a material way" in order to prove that the number was altered for purposes of Section 6110.2. The Majority explains that a material change would be one that renders the serial number illegible when viewed unaided or would be one that has caused all or some parts of the original serial number to appear to show different numbers or letters. These explanations should suffice, if imperfectly, to put both citizens and law enforcement officers on reasonable notice as to what Section 6110.2 actually criminalizes.
Maj. Op. at 639–40.
Id.
As always, the General Assembly is free to bring us greater clarity through more careful draftsmanship.
JUSTICE MUNDY, Dissenting
Section 6110.2(a) of the Crimes Code prohibits an individual from "possess[ing] 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). The majority construes the term "altered" in isolation and finds it sufficiently ambiguous to warrant application of the rule of lenity. Majority Op. at 637–38, 639–40. I respectfully disagree that the word "altered" is ambiguous when read in conjunction with the other terms used in the statute. Therefore, I dissent.
In Section 6110.2(a), the word "altered" is followed by three additional terms – "changed, removed or obliterated." Immediately apparent is the legislature's inclusion of the word "changed." If the legislature intended for the word "altered" to be read as synonymous with "changed," including the latter would be redundant and illogical. Also noteworthy is the order of the four terms used in the statute, which describe increasingly apparent degrees of defacement. The use of the word "altered" in conjunction with words such as "changed, removed or obliterated" suggests that "altered" encompasses more subtle acts of tampering where the manufacturer's number remains discernable, but has clearly been made different from its original state.
The majority discounts the lower court's reliance on the definition of "alter," which means "to make different without changing into something else." Majority Op. at 637 (citing https://www.merriam-webster.com/dictionary/alter). Instead, the majority consults several additional definitions of "alter" and ultimately concludes that "[t]hese definitions indicate that the terms ‘alter’ and ‘change’ can be viewed as, essentially, synonymous[.]" Majority Op. at 637. This conclusion is flawed because it considers the term "alter" in isolation, rather than within the statute itself. See Commonwealth v. Giulian , 636 Pa. 207, 141 A.3d 1262, 1267 (2016) (explaining statutory words must be read "with reference to the context in which they appear") (citations omitted); see also A.S. v. Pennsylvania State Police , 636 Pa. 403, 143 A.3d 896, 906 (2016) (citing Yates v. United States , 574 U.S. 528, 135 S. Ct. 1074, 1082, 191 L.Ed.2d 64 (2015) ("In law as in life, however, the same words, placed in different contexts, sometimes mean different things.") (citation omitted)). Accordingly, I find the term "altered" unambiguous because the only reasonable meaning in context is "to make different without changing into something else." Thus, I would not resort to alternative principles of statutory interpretation. See 1 Pa.C.S. § 1921(b) ("When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.").
However, because the majority focuses heavily on the object of the statute, I find it necessary to note that my interpretation is not adverse to the statute's purpose of "help[ing] police officers identify the owner of weapons used in criminal offenses." Commonwealth v. Ford , 175 A.3d 985, 992 (Pa. Super. 2017). The majority essentially holds that criminal liability does not attach to possessing a firearm whose manufacturer's number has been deliberately vandalized but is nonetheless discernable. I do not believe the legislature intended such a result considering any obviously intentional attempt to remove a firearm's manufacturer number – whether or not the number is ultimately legible – makes discerning the number increasingly difficult than it would be absent any markings.
Applying the definition of "alter" meaning "to make different without changing into something else," I find the evidence sufficient to support Smith's conviction. At trial, the Commonwealth admitted a photograph of the firearm which depicted obvious signs that the manufacturer's number had been tampered with, despite remaining visible. These markings included repeated scratches and abrasions solely to the number and nowhere else on the weapon. See N.T., 8/9/16, at 10. In light of this evidence, the trial court concluded that "the serial number had been, at a minimum, altered from its original state." Trial Ct. Op., 7/25/17, at 8. This conclusion is wholly consistent with the meaning of "altered." Accordingly, I dissent.