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 The charge for forgery was nolle prossed, and the charge for criminal attempt was withdrawn.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…) 2 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. 3 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. 4 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.