Commonwealth v. Clegg

27 A.3d 1266, 611 Pa. 468, 2011 Pa. LEXIS 1906
CourtSupreme Court of Pennsylvania
DecidedAugust 16, 2011
Docket18 MAP 2010
StatusPublished
Cited by7 cases

This text of 27 A.3d 1266 (Commonwealth v. Clegg) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Clegg, 27 A.3d 1266, 611 Pa. 468, 2011 Pa. LEXIS 1906 (Pa. 2011).

Opinions

OPINION

Justice BAER.

The Uniform Firearms Act, 18 Pa.C.S. § 6105, prohibits an individual from possessing a firearm if he has been previously convicted of an offense set forth in the statute (a “qualifying offense”).1 In this case we determine whether attempted [470]*470burglary is a qualifying offense. The Superior Court found that it was. We reverse.

The factual and procedural history of the case is straightforward. In February 2008, a Wildlife Conservation Officer of the Pennsylvania Game Commission found Appellant Mark Brooks Clegg in possession of two rifles during a hunting incident. Appellant had a prior conviction for attempted burglary. The Commonwealth charged Appellant with a violation of § 6105, along with summary violations of the Game and Wildlife Code. Appellant filed an omnibus pretrial motion to dismiss the § 6105 charge. At a hearing on the motion, Appellant argued that the trial court should dismiss the charge because § 6105 does not list attempted burglary as a qualifying offense. The trial court agreed and dismissed the § 6105 charge on August 28, 2008. The Commonwealth appealed to the Superior Court.

The Superior Court reversed and remanded for further proceedings. The majority of the court noted that § 6105(b) does not expressly list attempted burglary (or attempt generally) as a qualifying offense. The majority found, however, that attempted burglary qualified under the savings clause. The savings clause provides that “[a qualifying offense is] any offense equivalent to any of the above-enumerated offenses under the prior laws of this Commonwealth^]” 18 Pa.C.S. § 6105(b). The majority reasoned that attempted burglary was a qualifying offense under a prior law of the Commonwealth, namely a version of the Act in effect prior to 1995. Specifically, former § 6105 prohibited a person who has been convicted of a “crime of violence” from possessing a firearm; former § 6102 defined a “crime of violence” as one of 12 crimes (including burglary), “or an attempt ... to commit ... the same[.]” Thus, the majority found that under the prior version of § 6105, attempted burglary constituted a crime of violence, and a crime of violence was a qualifying offense permitting the invocation of § 6105. The majority then reasoned that this interpretation made “attempted burglary — a crime of violence” the equivalent of a “burglary” under the current version of § 6105, and accordingly included attempted [471]*471burglary as if it was an enumerated offense under the current version of § 6105.

Judge Cleland dissented. He reasoned that the Legislature expressed its intent when it extensively revised § 6105 in 1995, and omitted attempt from the list of qualifying offenses. Judge Cleland further noted that in other, related statutes, the Legislature expressly mentioned attempt, when attempt was to be included within the ambit of such other provisions:

“We are to give words in a statute their plain and ordinary meaning, and construe them according to their common and accepted usage.” Commonwealth v. Teeter, 961 A.2d 890, 896 (Pa.Super.2008)(en banc) (citing 1 Pa. C.S.A. § 1903; additional citation omitted). Further, penal statutes are to be construed strictly. 1 Pa.C.S.A. § 1928(b)(1). The provisions of 18 Pa.C.S.A. § 6105(a) direct that a person convicted of any of the 38 specified offenses enumerated in § 6105(b) shall not possess, use or control a firearm. Burglary is one of those defined offenses; attempted burglary is not. Strictly construing § 6105, as we are obligated to do, it is clear attempted burglary is not an offense to which the provisions of § 6105(a) apply.
In adopting the Pennsylvania Uniform Firearms Act of 1995,18 Pa.C.S.A. § 6105 et seq., the Legislature appears to have comprehensively dealt with this subject. In identifying the enumerated crimes that define the offense of persons not to possess firearms under § 6105, the Legislature did not resort to general language such as “crime of violence.” Instead it specifically listed 38 crimes. It seems to me unlikely that a statute drawn in such detail would sweep inchoate offenses into the ambit of the statute’s coverage by resorting to the vehicle of a savings clause.
Section 6103, which addresses crimes committed with firearms, specifically provides that it applies to “any person [who] commits or attempts to commit a crime enumerated in § 6105 ... when armed with a firearm.” 18 Pa.C.S.A. § 6103 (emphasis added). Section 6104, in addressing evidence of intent, also makes specific reference to “a person [472]*472... committing or attempting to commit a crime.... ” 18 Pa.C.S.A. § 6104 (emphasis added). Section 6105, by contrast, makes no such specific reference to convictions for an attempt to commit any of the offenses listed in § 6105(b). If this is an oversight, then, in my view, the remedy should be a legislative amendment rather than a strained reading of the savings clause.

Super. Ct. Mem. Op. (Cleland, J., dissenting) at 1-3. Appellant sought our review, noting that the question of whether inchoate crimes should be included within the ambit of § 6105 is an issue of first impression and public importance. We agreed, and granted review to determine “whether attempted burglary is one of the offenses for which a prior conviction qualifies a person, who owns, operates, or possesses a firearm, for prosecution under 18 Pa.C.S. § 6105 (former convict not to possess a firearm).”

Appellant argues that the Superior Court erred in finding attempted burglary to be a qualifying offense. First, Appellant argues that the statute is clear and unambiguous, because it lists a large number of qualifying offenses, but not the crime of attempt. Appellant notes that the Legislature expressly included attempt in a prior version of the statute, but omitted it from the current version. Appellant asserts that if the Legislature had wished to include attempt in the current version, it could have simply imported that language from the prior version. In a similar vein, Appellant notes that when the Legislature passed the current version of § 6105, it also amended sections 6103 and 6104, and those sections expressly include attempt. Next, Appellant contends that the savings clause does not apply because under the prior laws of the Commonwealth, attempted burglary is not an offense “equivalent” to burglary (or any other offense on the § 6105 list).

Anticipating one of the Commonwealth’s arguments asserted below, Appellant rejects the contention that when the Legislature added parenthetical expressions such as “ § 3502 (relating to burglary)”, after designating the statutory section of a qualifying offense, it intended to incorporate attempted burglary into the pertinent list of specified crimes. Through[473]*473out his brief, Appellant stresses that the statute should be read strictly, because a contrary reading that adds “attempt” to all substantive offenses would effectively double the number of qualifying offenses sub silentio2 Appellant argues that it is the province of the Legislature, not this Court or any reviewing court, to amend the statute if it sees fit. Appellant concludes that “any potentially absurd results [from a strict construction] are irrelevant because the language of the statute is clear and unambiguous.” Appellant’s Brief at 16.

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Bluebook (online)
27 A.3d 1266, 611 Pa. 468, 2011 Pa. LEXIS 1906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-clegg-pa-2011.