Commonwealth v. Appleby

856 A.2d 191, 2004 Pa. Super. 322, 2004 Pa. Super. LEXIS 2770
Superior Court of Pennsylvania·Decided August 19, 2004·Published·Cited by 16 cases

Opinion

OPINION BY HUDOCK, J.:

¶ 1 This appeal is from a judgment of sentence imposed on Appellant after a jury convicted him of persons not to possess, use, manufacture, control, sell or transfer firearms. 1 He was sentenced to no less than twenty-one months and no more than sixty months of incarceration. Appellant filed timely post-trial motions and complied with Rule 1925; this appeal followed. We affirm.

¶ 2 Appellant served time for an aggravated assault with a deadly weapon 2 conviction from March 6, 2002, to January 28, 2008; he was then released from Wayne County Prison on parole. Two weeks later on February 11, 2003, Officers of the Wayne County Probation and Parole Department, acting on an informant’s tip, searched Appellant’s residence and found a Rossi .38 Special Handgun in a bedroom closet. Police promptly arrested Appellant.

¶ 3 Appellant alleges four errors by the trial court for our review. The first three were raised in his omnibus pretrial motion; the fourth, at trial by objection. They include denial of Appellant’s motion to quash the information, motion to suppress evidence of the handgun, and motion for a continuance; and allowing the Commonwealth to question Appellant at trial about material from a psychiatric evaluation he requested before his sentencing for the aggravated assault conviction.

¶ 4 Appellant admits that a weapon was found in his residence. He concedes that the jury determined his ownership of the weapon. Nonetheless, he argues that the information against him should have been quashed because he was not afforded the sixty day grace period allowed by 18 Pa. C.S.A. section 6105 for convicted persons to dispose of weapons. The aggravated assault conviction of July 25, 2002, rendered Appellant ineligible to possess a firearm. 18 Pa.C.S.A. § 6105(b). He was incarcerated for that crime from the date of his arrest on March 6, 2002, until his parole release on January 28, 2003, six months after the conviction. Appellant claims “he could not have possibly disposed of the firearm in question while incarcerated, and that the sixty (60) day *194 period must run from the date of his release.” Appellant’s Brief at 7. We disagree.

¶ 5 Section 6105, 18 Pa.C.S.A., reads as follows:

(a) Offense defined.-
(1) 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 á license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.
(2) A person who is prohibited from possessing, using, controlling, selling, transferring or manufacturing a firearm under paragraph (1) or subsection (b) or (c) shall have a reasonable period of time, not to exceed 60 days from the date of the imposition of the disability under this subsection, in which to sell or transfer that person’s firearms to another eligible person who is not a member of the prohibited person’s household.
(b) Enumerated offenses. — The following offenses shall apply to subsection (a):
Section 2702 (relating to aggravated assault).

¶ 6 As the Commonwealth points out, the question before this Court is when does “the date of the imposition of the disability” occur, so as to begin the 60 day grace period? This appears to be an issue of first impression, given the lack of precedent on the definition of “imposition of the disability.” We agree with the trial court’s treatment of the issue in its Opinion in Support of Order denying Appellant’s omnibus pretrial motion, August 28, 2003: 3

Although [Appellant] would like this Court to define the time of “imposition of this [sic] disability” as the time that the [Appellant] was released from prison, Commonwealth correctly points to Commonwealth v. Cozzone, 406 Pa.Super. 42, 593 A.2d 860 (1991), wherein the Superior Court explained that “ ‘A prior conviction means “previously convicted” as defined in 42 Pa.C.S.A. § 2154(a)’ 204 Pa.Code § 303.7(g). There the legislature defined ‘previously convicted’ to include ‘any finding of guilt .... Whether or not sentence has been imposed ... prior to the commission of the current offense’.” [sic] This Court must conclude that “imposition of the disability” must commence at the time of conviction. As Defendant does not dispute possession of the firearms within 60 days of conviction, his argument must fail,

Trial Court Opinion, 10/28/03, at 2. Under section 6501, conviction of an enumerated offense (including aggravated assault) imposes upon a defendant the disability to possess, use, control, sell, transfer or manufacture a firearm — not a guilty plea, not sentencing, not release from prison, but conviction. While the Supreme Court of Pennsylvania has examined the term “convicted” in various cases, see, Com. ex. rel. McClenachan v. Reading, 336 Pa. 165, 169, 6 A.2d 776, 778 (1939) (“[’C]onvieted’ can mean only a final judgment of sentence and not merely a verdict of guilty rendered by a jury... In interpreting a stat *195 ute using the word ‘conviction’ the court has held that the strict legal meaning must be applied except where the intention of the legislature is obviously to the contrary.”) and Commonwealth v. Travaglia, 502 Pa. 474, 497-98, 467 A.2d 288, 299 (1983), cert. denied, 467 U.S. 1256, 104 S.Ct. 3547, 82 L.Ed.2d 850 (1984) (“By including offenses committed contemporaneously with the offense in issue, the legislature clearly indicated its intention that the term ‘convicted’ not require final imposition of sentence, but cover determinations of guilt as well.”), we find no case defining “convicted” as including release from prison. Appellant’s request for such a definition is unsupportable.

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Commonwealth v. Appleby, 856 A.2d 191, 2004 Pa. Super. 322, 2004 Pa. Super. LEXIS 2770 (Pa. Ct. App. 2004).

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