Petitioner : : V. : No. 1451 CD 2014 : Submitted: January 23

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Craig D. Murphy, : Petitioner : : v. : No. 1451 C.D. 2014 : Submitted: January 23, 2015 Pennsylvania State Police, : Respondent :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION PER CURIAM FILED: May 15, 2015

Craig D. Murphy (Applicant) petitions for review of an order of an Administrative Law Judge (ALJ) of the Office of Attorney General (Attorney General), affirming the Pennsylvania State Police’s (PSP) denial of his application to purchase a firearm. PSP denied the application due to Applicant’s prior convictions for theft by unlawful taking and tampering with records. We now affirm. In 2005, Applicant was charged with theft by unlawful taking, 18 Pa. C.S. § 3921(b); forgery (third degree felony), 18 Pa. C.S. § 4101(a); criminal attempt,1 18 Pa. C.S. § 901; tampering with records or identification (first degree

1 Criminal attempt is graded and has the same degree “as the most serious offense which is attempted,” unless certain mitigating circumstances exist. 18 Pa. C.S. § 905. misdemeanor), 18 Pa. C.S. § 4104; false swearing (second degree misdemeanor), 18 Pa. C.S. § 4903; unsworn falsification to authorities (second degree misdemeanor), 18 Pa. C.S. § 4904; and securing execution of documents by deception (second degree misdemeanor), 18 Pa. C.S. § 4114. (Certified Record (C.R.), App. F, Ex. 1 at 10, 13.) The charge for forgery was nolle prossed, and the charge for criminal attempt was withdrawn. (Id. at 10.) The record is unclear with regard to the circumstances surrounding the type and degree of the charge(s) relating to unlawful taking. The record reveals that a third degree felony charge for theft by unlawful taking was nolle prossed and that Applicant pled guilty to a charge of theft by unlawful taking, which, according to his criminal history record sheet and the docket sheet, was graded as a first degree misdemeanor. (Id. at 10, 12-13, 21-22.) Applicant pled guilty to all of the remaining first and second degree misdemeanor charges. (Id. at 13.) Applicant later petitioned the Allegheny County Court of Common Pleas (trial court) for expungement of his entire criminal record. On August 3, 2010, the trial court issued a partial expungement order, which expunged the records related to Applicant’s nolle prossed third degree felony charges of theft by unlawful taking and forgery. (Id. at 9.) In so doing, the trial court noted that “[t]he charge of M1 theft may not be expunged as [Applicant] pled guilty to said charge.”2 (Id. (emphasis in original).)

2 Pursuant to 18 Pa. C.S. § 3903, pertaining to grading of theft offenses, the crime of theft by unlawful taking may be graded as a misdemeanor or felony of the first, second, or third degree, depending on the value or type of property taken and other circumstances. The record is unclear regarding whether the charge for first degree misdemeanor theft by unlawful taking represents an original charge, a later reduction of an earlier charge for third degree felony theft by unlawful taking, or charge in addition to the third degree felony theft by unlawful taking. The (Footnote continued on next page…)

Applicant sought approval to purchase a firearm, which PSP denied on September 27, 2013. (Id. at 1.) Applicant filed a Pennsylvania Instant Check System (PICS) Challenge Form, alleging that his entire criminal record had been expunged, and, thus, he was not prohibited from owning a firearm under state or federal law. (Id. at 2-7.) On November 27, 2013, PSP denied Applicant’s challenge and explained that Applicant’s convictions for theft by unlawful taking and tampering with records or identification were prohibiting convictions under federal law. (Id. at 35.) Applicant appealed PSP’s denial of his challenge, and, on July 17, 2014, an ALJ conducted a hearing. During the hearing, PSP presented the testimony of Stephanie Dunkerley, a legal assistant supervisor in the PICS Challenge Unit. (C.R., App. F at 8-9.) Ms. Dunkerley testified that Applicant was denied approval for the purchase of a firearm due to his two first degree misdemeanor convictions. (Id. at 10-11.) Ms. Dunkerley further testified that first degree misdemeanors are punishable by up to five years in prison, which triggers a federal prohibition against the possession of a firearm under Section 922 of the Gun Control Act.3 (Id. at 13.) The ALJ affirmed PSP’s initial decision to deny Applicant the ability to purchase a firearm, and Applicant appealed to this Court.

(continued…) lack of clarity surrounding the circumstances of this charge and proper grading, however, is not raised by the parties and does not affect our analysis. This is because Applicant was also convicted of tampering with records or identification, which itself is a first degree misdemeanor charge. 3 18 U.S.C. § 922.

On appeal,4 Applicant raises several issues. Applicant first contends he is not prohibited from possessing a firearm under state law and, thus, PSP cannot rely on federal law to bar him from possessing a firearm. He also argues that the federal “civil rights exception” should apply, or, alternatively, that the federal “business offenses exception” should apply. Next, Applicant argues that because he could not have been sentenced to imprisonment for a term exceeding two years, federal law does not preclude him from possessing a gun. Applicant also argues that his first degree misdemeanor convictions have been expunged. He further contends that PSP may not contest the expungement of his criminal history record. Finally, Applicant argues that his first degree misdemeanor convictions do not constitute predicate offenses under the Gun Control Act.5

4 Our review is limited to determining whether necessary findings are supported by substantial evidence, whether an error of law was committed, or whether constitutional rights were violated. Freeman v. Pa. State Police, 2 A.3d 1259, 1260 n.2 (Pa. Cmwlth. 2010). 5 Applicant also raises a number of procedural issues. Applicant first contends that PSP has waived its various arguments by not raising them below. Issues not raised before the government unit are waived. Pa. R.A.P. 1551. Here, however, PSP has not raised any issues. Rather, PSP is simply responding to Applicant’s arguments. Thus, PSP has not waived its arguments. Applicant also contends that PSP’s brief should be stricken as untimely filed. This Court, however, has already denied Applicant’s request to strike PSP’s brief as untimely by order date December 30, 2014. We decline to revisit this decision. Applicant also appears to argue that PSP’s brief should be stricken because it does not comply with Pennsylvania Rule of Appellate Procedure 124, which requires a 14 pt. font size for briefs. Although some of the text in PSP’s brief does appear to be of a smaller size than required by the rule, “[t]he prothonotary of an appellate court may accept any nonconforming papers.” Pa. R.A.P. 124(b). The PSP’s brief was accepted, and we thus reject Applicant’s argument that PSP’s brief should be stricken because PSP used the incorrect font size.

As noted above, Applicant first argues that because his convictions for theft by unlawful taking and tampering with records are not listed in Section 6105(b) of the Pennsylvania Uniform Firearms Act of 1995 (Uniform Firearms Act)6 as crimes that would bar the possession of a firearm, PSP may not apply federal law to bar him from possessing a firearm. In other words, Applicant appears to take the position that PSP could not “disapprove” his purchase of a firearm absent a disqualifying conviction contained in Section 6105(b). PSP, however, in fulfilling its duties under the Uniform Firearms Act, is charged with the duty to administer the provisions of the Uniform Firearms Act. Section 6111.1(a) of the Uniform Firearms Act, 18 Pa. C.S. § 6111.1(a). Pursuant to Section 6111.1(b)(1)(i) of the Uniform Firearms Act, 18 Pa. C.S. § 6111.1(b)(1)(i), upon the receipt of a request for a criminal history record check, PSP immediately shall review its “criminal history and fingerprint records to determine if the potential purchaser . . . is prohibited from receipt of possession of a firearm under Federal or State law.” (Emphasis added.) PSP must then inform the licensee making the inquiry “that the potential purchase . . . is prohibited” or “provide the licensee with a unique approval number.” Section 6111.1(b)(1)(iii) of the Uniform Firearms Act, 18 Pa. C.S. § 6111.1(b)(1)(iii). Here, PSP determined that Applicant was prohibited from possessing a firearm under federal law, specifically, Section 922(g) of the Gun Control Act. As a result, PSP did not issue

6 18 Pa. C.S. § 6105(b). Section 6105(b) of the Uniform Firearms Act provides a list of offenses that would disqualify an individual from being able to possess, use, manufacture, control, sell or transfer a firearm in Pennsylvania.

5 licensee a unique approval number.7 PSP’s actions were consistent with its duties under the Uniform Firearms Act, and PSP did not improperly apply federal law to bar Applicant from possessing a firearm. Applicant next contends that the federal civil rights exception should apply. Section 922(g) of the Gun Control Act provides: It shall be unlawful for any person – (1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Section 921(a)(20) of the Gun Control Act, 18 U.S.C. § 921(a)(20), provides an exception to this rule: The term “crime punishable by imprisonment for a term exceeding one year” does not include-- (A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices, or (B) any State offense classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less. What constitutes a conviction of such a crime shall be determined in accordance with the law of the jurisdiction

7 A licensed importer, manufacturer, or dealer may not sell or deliver any firearm to another person until he has “[r]eceived a unique approval number for that inquiry” from PSP. Section 6111(b)(4) of the Uniform Firearms Act, 18 Pa. C.S. § 6111(b)(4).

in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.

(Emphasis added.) Applicant appears to argue that he has retained his civil rights and, thus, under the civil rights exception, his misdemeanor convictions should not be considered convictions for the purposes of Section 922(g)(1) of the Gun Control Act. The purpose of Section 921(a)(20) of the Gun Control Act is “to give federal effect to state statutes that ‘restore’ the civil rights of convicts when they are granted a pardon, have their convictions expunged, or have their civil rights restored.” U.S. v. Essig, 10 F.3d 968, 975 (3d Cir. 1993). If a convict can demonstrate that these rights have been restored, his convictions will not be considered convictions for the purposes of Section 922(g)(1) of the Gun Control Act, and state law will govern the convict’s right to possess a firearm. Id. at 976; U.S. v. Leuschen, 395 F.3d 155, 159 (3d Cir.), cert. denied, 544 U.S. 1041 (2005). The three core civil rights which indicate that a convict has had his or her civil rights fully restored are the right to vote, the right to hold public office, and the right to sit on a jury. Essig, 10 F.3d at 975. The Third Circuit has held that all three rights must be intact for a convict to demonstrate that his civil rights have been restored. Leuschen, 395 F.3d at 159-60. Not all of these rights have been restored to Applicant. A citizen of the Commonwealth is qualified to serve as a juror unless the citizen “has been convicted of a crime punishable by imprisonment for more than one year and has not been granted a pardon or amnesty therefor.” 42 Pa. C.S. § 4502(a)(3). Here,

Applicant has been convicted of two first degree misdemeanors, which are punishable by imprisonment for up to five years. 18 Pa. C.S. § 106(b)(6). Upon his conviction, Applicant was thus deprived of the right to serve as a juror. There is no evidence that this right has ever been restored to him. Applicant has lost one of the three core civil rights identified by the Third Circuit and, thus, the federal civil rights exception does not apply. Applicant next argues that the business offenses exception provided in Section 921(a)(20)(A) of the Gun Control Act applies because his first degree misdemeanor convictions for theft by unlawful taking and tampering with records are similar to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices. This Court, interpreting federal law, has explained: To determine if an offense is similar to an antitrust violation, unfair trade practice, or restraint of trade, a court must consider whether the primary purpose of the convicting statute is to protect consumers and competition from economic harm, and whether the government must prove an effect on consumers and competition as an element of the offense.

Boniella v. Commonwealth, 958 A.2d 1069, 1074 (Pa. Cmwlth. 2008), appeal denied sub nom. In re Taurus Handgun, 966 A.2d 551 (Pa. 2009). “[I]f a violation of a statute is not dependent upon whether it has an effect on competition, it does not fall within the ‘business offenses’ exception.” Id. Neither of Applicant’s first degree misdemeanor convictions requires proof of an effect on consumers or competition as an element of the offense. The statute pertaining to theft by unlawful taking provides, in relevant part: “A person is guilty of theft if he unlawfully transfers, or exercises unlawful control over, immovable property of another or any interest therein with intent to benefit himself

8 or another not entitled thereto.” 18 Pa. C.S. § 3921(b). The statute pertaining to tampering with records provides: “A person commits a misdemeanor of the first degree if, knowing that he has no privilege to do so, he falsifies, destroys, removes or conceals any writing or record, or distinguishing mark or brand or other identification with intent to deceive or injure anyone or to conceal any wrongdoing.” 18 Pa. C.S. § 4104(a). Further, the primary purpose of these statutes is not to protect consumers and competition, but rather to protect property and to prevent fraud. We, therefore, reject Applicant’s argument that his first degree misdemeanor convictions fall under the business offenses exception. Applicant next argues that under the Sentencing Guidelines, 204 Pa. Code §§ 303.1 to 303.18, he could not have been sentenced to imprisonment for a term exceeding two years. He essentially argues that he could not have received a sentence in excess of two years for a first-time, non-violent offense. It is well-settled, however, that “the [Gun Control] Act’s use of the term ‘punishable by imprisonment’ goes to the maximum allowable term of imprisonment, not the term to which the person was sentenced or actually served.” Ray v. Office of Attorney Gen., 65 A.3d 473, 475 (Pa. Cmwlth. 2013). “That is why we have consistently held that a conviction for a first degree misdemeanor prohibits the possession of firearms pursuant to Section 922(g)(1) of the [Gun Control] Act.” Id. Further, this Court has specifically rejected the argument that the Sentencing Guidelines are relevant to Section 922(g)(1) of the [Gun Control] Act: “[T]he Sentencing Guidelines are not determinative of the amount of time for which a crime is ‘punishable’ for the purposes of Section 922(g)(1) of the [Gun Control] Act.” Id. Applicant was convicted of two first degree misdemeanors which were punishable

9 by imprisonment for up to five years. Accordingly, we reject Applicant’s argument that he could not have been sentenced to a term in excess of two years. Applicant also argues that his first degree misdemeanor convictions have been expunged. Contrary to Applicant’s assertions, however, the trial court only issued a partial expungement order. (C.R. App. F, Ex. 1 at 9.) The order specifically provides for the expungement of records pertaining to Applicant’s nolle prossed forgery and felony theft by unlawful taking charges. All of the records pertaining to the charges to which Applicant pled guilty, including the first degree misdemeanor charges at issue here, were not expunged. The trial court even noted that the first degree misdemeanor theft by unlawful taking charge could not be expunged because Applicant had pled guilty.8 Accordingly, we reject Applicant’s argument that his first degree misdemeanor convictions were expunged.9 Applicant next argues that PSP may not contest the expungement of his criminal history record. In support of this argument, Applicant cites Commonwealth v. J.H., 759 A.2d 1269 (Pa. 2000). In J.H., our Supreme Court held that PSP did not have standing to challenge the propriety of an expungement

8 To the extent that Applicant argues that the partial expungement order was falsified, we note that Applicant did not object to the order’s admission at the hearing before the ALJ. (C.R., App. F at 14.) As noted above, issues not raised below are considered waived. Applicant’s argument concerning the authenticity of the trial court’s partial expungement order is, therefore, waived. 9 Applicant also appears to argue that because his criminal history was expunged, the ALJ erred in considering his first degree misdemeanor convictions. Applicant further contends that PSP erroneously retained criminal history which had been expunged. Because it is clear that Applicant’s convictions were not expunged, we reject these arguments.

10 order. Here, however, PSP is not challenging the propriety of the trial court’s partial expungement order. Rather, PSP is relying on the partial expungement order to prove that Applicant’s first degree misdemeanor convictions were not expunged. We thus reject Applicant’s argument. Finally, Applicant argues that his first degree misdemeanor convictions do not constitute predicate offenses under the Gun Control Act. In support of this argument, Applicant cites Taylor v. United States, 495 U.S. 575 (1990). In Taylor, the United States Supreme Court considered the meaning of the term “burglary” for the purposes of sentence enhancement under the Anti-Drug Abuse Act, 18 U.S.C. § 924(e). In so doing, the Court developed a framework for determining when state convictions constitute predicate offenses under federal law. This Court described the Taylor approach in Pennsylvania State Police v. McPherson, 831 A.2d 800 (Pa. Cmwlth. 2003), as follows: Under the Taylor approach, the court must first examine the federal statute to determine the elements necessary for a state crime to qualify as a predicate offense. Next, the court must examine the state conviction at issue to determine whether it contains those necessary elements. If it does, the federal statute is triggered; if it does not, the federal statute does not apply. In this regard, the proper analysis is “a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” [Taylor, 495 U.S. at] 600.

McPherson, 831 A.2d at 806. Applicant argues that under federal law, his convictions would have qualified as Class A misdemeanors. Class A misdemeanors are punishable by a term of imprisonment of one year or less, and, thus, Applicant appears to argue that his convictions do not qualify for the purposes of Section 922(g)(1) of the Gun Control Act.

Applicant misconstrues the applicability of the test developed in Taylor. The Taylor approach is applicable when a federal statute refers to a “generic crime,” such as burglary. Conviction for “a crime punishable by imprisonment for a term exceeding one year” is not a generic crime, the elements of which must be evaluated under the Taylor test. See Section 922(g)(1) of the Gun Control Act. We thus reject Applicant’s argument. Accordingly, we affirm the ALJ’s order.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Craig D. Murphy, : Petitioner : : v. : No. 1451 C.D. 2014 : Pennsylvania State Police, : Respondent :

PER CURIAM

O R D E R

AND NOW, this 15th day of May, 2015, the order of the Administrative Law Judge of the Office of Attorney General is AFFIRMED.