Commonwealth v. Sow

860 A.2d 154, 2004 Pa. Super. 377, 2004 Pa. Super. LEXIS 3309
CourtSuperior Court of Pennsylvania
DecidedSeptember 28, 2004
StatusPublished
Cited by8 cases

This text of 860 A.2d 154 (Commonwealth v. Sow) is published on Counsel Stack Legal Research, covering Superior 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. Sow, 860 A.2d 154, 2004 Pa. Super. 377, 2004 Pa. Super. LEXIS 3309 (Pa. Ct. App. 2004).

Opinion

OPINION BY

LALLY-GREEN, J.:

¶ 1 Appellant, Abou Sow, appeals from the judgment of sentence entered on January 22, 2003, following his conviction for trademark counterfeiting under 18 Pa. C.S.A. § 4119. Appellant argues that the trial court should have barred the prosecution because federal law preempts § 4119. [155]*155We disagree, and hold that federal law does not preempt § 4119. Accordingly, we affirm.

¶ 2 The trial court summarized the factual and procedural history of the case as follows:

This appeal follows Appellant’s conviction on January 22, 2003, on two counts of Trademark Counterfeiting (F-3), in violation of [18 Pa.C.S.A.] § 4119. Appellant was before this Court, sitting without a jury, and stipulated to the following facts at trial:
On July 24, 2001, officers from the 16th district went to the area of 5400 Chester Ave in Philadelphia, and approached a stand that Appellant was working with clothing and movies on it. Officer Ruley approached Appellant and asked him the price of the movies, to which Appellant responded eight bucks for one, and two movies for the price of fifteen [sic]. At that time Appellant opened the door to a van parked directly behind him, inside which Officer Ruley observed numerous additional CD’s and movies on videotape. The Officer then asked for a CD, which Appellant pulled out — from the artist titled Jada Kiss [sic]. Officer Ruley then asked for the price of everything — the two videotapes and CD — and was quoted twenty-two dollars by Appellant. Officer Ruley gave Appellant twenty-five dollars and was given three dollars back in change, along with the movies and CD that had been placed in a black plastic bag. Officer Ruley left the area and returned to his backup, where a representative from the motion picture and recording industry determined the items were counterfeit. Backup officers went to the stand, arrested Appellant, took into custody the items on the table, and procured a search warrant for the van. Upon executing the warrant, police recovered (including the items on the stand) 561 movies on video tape, 294 compact discs, and 152 cassette tapes, all later determined by experts from the Recording Industry Association of America (RIAA) to be counterfeit.
Appellant was found guilty and sentenced to a negotiated term of three years reporting probation for both counts of trademark counterfeiting, for an aggregate sentence of six years probation. [Earlier in the case, the trial court denied Appellant’s petition to bar the instant prosecution on the ground that § 4119 is preempted by federal trademark law.] This timely appeal follows.

Trial Court Opinion, 10/24/2003, at 1-2.1

¶ 3 Appellant raises one issue on appeal:

Did not the trial court err in denying defense counsel’s Motion to Bar Prosecution under 18 Pa.C.S.A. § 4119, as Federal law preempts the statute, either in its totality or at a minimum as applied to the facts and circumstances of this particular case and Appellant?

Appellant’s Brief at 3.

¶ 4 Appellant argues that the trial court should have barred the instant prosecution because federal law preempts § 4119. Because this issue presents a pure question of law, we employ a plenary scope of review and a de novo standard of review. Commonwealth v. Bradley, 575 Pa. 141, 834 A.2d 1127, 1131 n. 2 (2003).

¶ 5 We begin with a brief discussion of the statute at issue.2 Under § 4119, “any [156]*156person who knowingly manufactures, uses, displays, advertises, offers for sale, sells or possesses with intent to sell or distribute any items or services bearing or identified by a counterfeit mark shall be guilty of the crime of trademark counterfeiting.” 18 Pa.C.S.A. § 4119(a). The statute defines a “counterfeit mark” in relevant part as any unauthorized reproduction or copy of a trademark. 18 Pa.C.S.A. § 4119(i). A person who possesses more than 25 counterfeit items may be presumed to possess them with the intent to sell or distribute. 18 Pa.C.S.A. § 4119(b).

¶ 6 Trademark counterfeiting is generally graded as a first-degree misdemeanor. 18 Pa.C.S.A. § 4119(c)(1). The statute also provides for fines, seizure of the counterfeit items, and seizure of equipment used in connection with the trademark counterfeiting operation. 18 Pa.C.S.A. § 4119(f).

¶ 7 We now turn to the issue of preemption. Recently, our Supreme Court summarized the law of preemption as follows:

The Supremacy Clause of the United States Constitution prohibits states from enacting laws that are contrary to the laws of our federal government: “This Constitution and the Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const, art. VI, cl.2. It is through this clause that the United States Congress may preempt state law. In determining whether a state regulation is preempted by federal law, we start “with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless it [is] the clear and manifest purpose of Congress.” Cipollone v. Liggett Group, 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)(eiting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)).
There are three ways in which a state law may be preempted. First, state law may be preempted where the United States Congress enacts a provision which expressly preempts the state enactment. Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm’n, 461 U.S. 190, 204, 103 S.Ct. 1713, 75 L.Ed.2d 752 (1983). Likewise, preemption may be found where Congress has legislated in a field so comprehensively that it has implicitly expressed an intention to occupy the given field to the exclusion of state law. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 299-300, 108 S.Ct. 1145, 99 L.Ed.2d 316 (1988). Finally, a state enactment will be preempted where a state law conflicts with a federal law. Id. Such a conflict may be found in two instances, when it is impossible to comply with both federal and state law, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), or where the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941).

Office of Disciplinary Counsel v. Marcone, — Pa.—, 855 A.2d 654, 664, 2004 Pa. Lexis 1865, * 23-24 (2004); see also, Werner v.

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Bluebook (online)
860 A.2d 154, 2004 Pa. Super. 377, 2004 Pa. Super. LEXIS 3309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-sow-pasuperct-2004.