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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OSCAR R. SASSE, JR. :
:
Appellant : No. 269 WDA 2019
Appeal from the Judgment of Sentence Entered December 10, 2018
In the Court of Common Pleas of Butler County Criminal Division at
No(s): CP-10-CR-0000376-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 15, 2020
Oscar R. Sasse, Jr. appeals from the judgment of sentence entered
following his jury trial convictions for attempt to make a false statement in
connection with the purchase or sale of a firearm and unsworn falsification to
authorities.1 Sasse argues the trial court erred in denying his motion in limine
to preclude the use of a prior conviction for disorderly conduct. He also claims
the convictions are infirm because the Commonwealth presented insufficient
evidence to support a finding that he acted knowingly or intentionally or that
he made a statement he did not believe to be true. We affirm.
In 2009, Sasse pled guilty to two counts of disorderly conduct
(“disorderly conduct conviction”). In January 2015, in a separate matter, a
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 907, 6111(g)(4)(ii), and 4904(b), respectively.
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court granted a petition for a protection from abuse order (“PFA”) against
Sasse and prohibited Sasse from, among other things, possessing or acquiring
firearms for a period of three years, until January 2018.
In May 2017, Sasse attempted to purchase a handgun from Sportsman
Supply in Summit Township in Butler County, Pennsylvania. Sasse completed
Pennsylvania State Police Application/Record of Sale (“PSP form”) and E-Form
4473 from the United States Department of Alcohol, Tobacco, and Firearms
(“ATF form”).
Sasse marked “no” in response to the question on the ATF form that
asked whether he was subject to an active PFA order: “Are you subject to a
court order restraining you from harassing, stalking, or threatening your child
or an intimate partner or child of such partner?” ATF Form, 11.h. The form
defined “Qualifying Restraining Orders” as:
Under 18 U.S.C. 922 firearms may not be sold to or received
by persons subject to a court order that: (A) was issued
after a hearing which the person received actual notice of
and had an opportunity to participate in; (B) retrains such
person from harassing, stalking, or threatening an intimate
partner or child of such intimate partner or person, or
engaging in other conduct that would place an intimate
partner in reasonable fear of bodily injury to the partner or
child; and (C)(i) includes a finding that such person
represents a credible threat to the physical safety of such
intimate partner or child; or (ii) by its terms explicitly
prohibits the use, attempted use, or threatened use of
physical force against such intimate partner or child that
would reasonably be expected to cause bodily injury. An
“intimate partner” of a person is: the spouse or former
spouse of the person, the parent of a child of the person, or
an individual who cohabitates or has cohabitated with the
person.
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ATF Form at 5.
Sasse also marked “no” in response to the ATF form question that asked
whether he had “ever been convicted in any court of a misdemeanor crime of
domestic violence[.]” Id. at 11.i (emphasis removed). The question informed
those completing the form to “[s]ee Instructions for Question 11.1.” Id.
(italics removed). Those instructions defined “misdemeanor crime of domestic
violence” as:
A Federal, State, local, or tribal offense that is a
misdemeanor under Federal, State, or tribal law and has as
an element the use or attempted use of physical force, or
the threatened use of a deadly weapon, committed by a
current or former spouse, parent, or guardian of the victim,
by a person with whom the victim shares a child in common,
by a person who is cohabitating with or has cohabited with
the victim as a spouse, parent, or guardian, or by a person
similarly situated to a spouse, parent or guardian of the
victim. The term includes all misdemeanors that have as an
element the use or attempted use of physical force or the
threatened use of a deadly weapon (e.g. assault and
battery), if the offense is committed by one of the defined
parties. (See Exception to 11.b-12.) A person who has been
convicted of a misdemeanor crime of domestic violence also
is not prohibited unless (1) the person was represented by
a lawyer or gave up the right to a lawyer; or (2) if the person
was entitled to a jury, was tried by a jury, or gave up the
right to a jury trial. Persons subject to this exception should
answer “no” to 11.1.
ATF Form, Instructions.
On the PSP form, Sasse responded “no” to question 31, which asked,
“Have you ever been convicted of a crime enumerated in Section 6105(b), or
do any of the conditions under 6105(c) apply to you?” PSP form at A.1. The
question informed those completing the form to “read information on back
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prior to answering.” Id. (bold and capitalization omitted). The back of the
form stated that 18 Pa.C.S.A. § 6105(c) prohibits a person from possessing a
firearm if the person is subject to an active PFA or has been convicted of a
misdemeanor crime of domestic violence:
Section 6105(c):
Effective November 22, 1995, 18 Pa.C.S. § 6105(c) also
prohibits the following persons from possessing, using,
controlling, transferring, manufacturing, or obtaining a
license to possess, use, control, transfer, or manufacture a
firearm in the Commonwealth of Pennsylvania.
ARE YOU A PERSON WHO:
...
(6) is the subject of an active protection from abuse order
issued pursuant to 23 Pa.C.S.A. § 6108 (relating to relief),
which order provides for the relinquishment of firearms
during the period of time the order is in effect. This
prohibition shall terminate upon the expiration or vacation
of an active protection from abuse order or portion thereof
relating to the relinquishment of firearms; or
...
(9) is prohibited from possessing or acquiring a firearm
under 18 U.S.C. § 922(g)(9) (relating to unlawful acts) who
has been convicted in any court of a misdemeanor crime of
domestic violence by a person in any of the following
relationships (i) the current or former spouse, parent or
guardian of the victim; (ii) a person with whom the victim
shares a child in common; (iii) a person cohabits with or has
cohabitated with the victim as a spouse, parent, or
guardian; or (iv) a person similarly situated to a spouse,
parent, or guardian of the victim; then the relationship need
not be an element of the offense to meet the requirements
of this paragraph.
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PSP Form at A.2. Section 922(g)(9) prohibits those “who ha[ve] been
convicted in any court of a misdemeanor crime of domestic violence” from
possessing a firearm. 18 U.S.C. § 922(g)(9).
Sportsman Supply performed a background check, found Sasse was
unable to purchase a firearm, and denied his application. The Pennsylvania
State Instant Check System referred the matter to Pennsylvania State Trooper
Nathan L. Brown for investigation, who subsequently filed a criminal complaint
against Sasse.
Before trial, Sasse filed a motion in limine seeking to preclude admission
of, among other things, the use of his prior disorderly conduct conviction.
Following a hearing, the trial court denied the motion.
At Sasse’ jury trial, Trooper Brown testified that he investigated the
application forms completed by Sasse. N.T., 10/17/18, at 38. In doing so, he
discovered Sasse had an outstanding PFA order, and that he had previously
pled guilty to disorderly conduct. Id. at 38-39. Trooper Brown testified that
he spoke with Sasse, who told him that he thought the PFA had expired and
that he did not believe he was convicted of a misdemeanor crime of domestic
violence. Id. at 40.
Trooper Brown explained to the jury the forms that are completed prior
to the purchase of the gun, including the questions outlined above. Id. at 43-
45. He further testified that the ATF form includes a “certification” signed by
the applicant, which states:
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I certify that my answers in Section A are true, correct, and
complete. I have read and understand the notices,
instruction, and definitions on [the ATF Form]. I understand
that answering yes to question eleven(a) if I am not the
actual transferee/buyer is a crime punishable as a felony
under Federal law, and may also violate state and[/]or local
law. I understand that a person who answers yes to any of
the questions eleven(b) through eleven(i) or twelve(b)
through twelve(c) is prohibited from purchasing or receiving
a firearm. I understand that a person who answers yes to
question twelve(d)(one) is prohibited from receiving or
possessing a firearm unless the person answers yes to
question(d)(two) and provide the documentation required in
eighteen(c). I also understand that making any false oral or
written statement or exhibiting any false or misrepresented
identification with respect to this transaction is a crime
punishable as felony under Federal law and may also violate
State and/or local law. I further understand that the
repetitive purchase of firearms for purpose of resale for
livelihood and profit without a Federal firearms license is a
violation of federal law. See instructions for question
fourteen.
Id. at 45-46. The PSP form contains a similarly-worded “verification,” where
the applicant “verif[ies] the facts that [he or she] set forth in blocks 5-33 . . .
.” PSP Form at no. 34.
Trooper Brown then testified about Sasse’s disorderly conduct
conviction. He said that in January 2010, the court sentenced Sasse for two
convictions for disorderly conduct, graded as misdemeanors of the third
degree under 18 Pa.C.S.A. § 5503(a)(1). N.T., 10/17/18, at 52. He stated
Section 5503(a) requires proof that the defendant had engaged in “fighting or
threatening or in violent or tumultuous behavior.” Id. at 69. The
Commonwealth admitted into evidence the guilty plea and sentencing order
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for the disorderly conduct convictions. Trooper Brown testified that the victim
in the disorderly conduct conviction was Sasse’s former wife. Id. at 55.
Trooper Brown also testified regarding the PFA issued against Sasse and
the Commonwealth admitted a copy of the PFA into evidence. He testified that
the PFA was obtained by Charlene Cook. Id. at 56. Trooper Brown testified
that the PFA stated that Sasse was provided with reasonable notice and an
opportunity to be heard and that the PFA prohibited Sasse from “abus[ing],
harass[ing], stalk[ing,] threaten[ing,] or attempt[ing] to use physical force
that would cause bodily injury to” Cook. Id. at 58. It further evicted Sasse
from the residence where Cook lived and prohibited Sasse from having contact
with Cook. Id. 59. The order further prohibited Sasse from “possessing,
transferring or acquiring any firearms for the duration of the order.” Id. at 60.
Trooper Brown testified that the effective date of the PFA was January 13,
2015, and that it would expire on January 13, 2018. Id. at 57, 61. He stated
Sasse was served with the PFA. Id. at 58. Trooper Brown testified that when
he interviewed Sasse, Sasse admitted that he filled out the PSP and ATF forms.
Id. at 62-63.
On cross-examination, Trooper Brown conceded that a conviction for
disorderly conduct does not necessarily include domestic violence. Id. at 69.
After the Commonwealth rested, Sasse made a motion for acquittal,
arguing that the Commonwealth failed to establish Sasse acted with the
requisite mental state. Id. at 83-84. The trial court denied the motion. Id. at
85.
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Sasse then testified in his own defense. He said that Cook was the
mother of two of his children, and they had been in an “on and off relationship
for over ten years.” Id. at 87. He stated that he believed that the PFA order
had restricted him for two years, not three years. Id. at 90-91. He said he
attempted to purchase the firearm more than two years from the issuance of
the PFA. Id. at 91. He further testified that he did not believe that his
disorderly conduct conviction was a misdemeanor crime involving domestic
violence that would disqualify him from possessing a firearm. Id. at 92-93.
Sasse testified that Trooper Brown left his contact information with
Cook, and asked that Sasse contact him, which Sasse did. Id. at 97. He
testified that he answered Trooper Brown’s questions honestly and did not try
to evade any question. Id. at 99. He further stated that he did not have any
intent to purchase or obtain a firearm through deceit. Id. at 99-100.
During cross-examination, Sasse testified that he read the information
on the ATF and PSP forms, including the information on the back of the forms.
Id. at 102. He testified that he had two children with Cook, who was the victim
of the disorderly conduct conviction. Id. at 107. As to the events that led to
the conviction, Sasse agreed that he came home one night, took the blanket
off Cook, and asked where her phone was. Id. at 112. He followed her to the
bathroom, broke the phone, and said, “[I]f you’re not going to use it then why
have it.” Id. at 112. Although he did not admit that he hit Cook, he stated
that they “were involved in a little bit of altercations where it was mutual
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between the both of us. Little combative. Yes, I do admit that.” Id. at 113. He
further testified that he and Cook “engaged in fighting” that night. Id. at 114.
A jury convicted Sasse of attempt to make a false statement in
connection with the purchase or sale of a firearm and unsworn falsification to
authorities. The trial court sentenced Sasse to 15 to 30 months’ incarceration
for the criminal attempt conviction and imposed no further penalty for the
conviction for unsworn falsification to authorities.
Sasse filed a post-sentence motion, which the trial court denied. Sasse
filed a timely Notice of Appeal.
Sasse raises the following issues:
I. Whether the trial court abused its discretion, or erred as
a matter of law, when it denied [Sasse’s] pre-trial motion in
limine excluding any evidence regarding his prior conviction
for disorderly conduct used to support the Commonwealth’s
prosecution?
II. Whether the trial court abused its discretion, or erred as
a matter of law, when it denied [Sasse’s] trial and post-trial
motions for judgment of acquittal and post-sentence motion
for a new trial?
III. Whether the Commonwealth presented sufficient
evidence to prove beyond a reasonable doubt that [Sasse]
was guilty of criminal attempt to purchase a firearm and
providing unsworn falsification to authorities?
Sasse’s Br. at 10 (unnecessary capitalization omitted; italics added). In his
second issue, Sasse argues that the court erred in denying the post-sentence
motion that challenged the denial of the motion in limine and erred in denying
his motions for judgment of acquittal, which challenged the sufficiency of the
evidence. Because the arguments raised in the second issue overlap with the
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arguments raised in the first and third issues, we will not separately address
the second issue.
I. Admission of Evidence
In his first issue, Sasse claims that the trial court erred in denying his
motion to preclude the Commonwealth from admitting his disorderly conduct
conviction. He argues the conviction did not meet the criteria of a
misdemeanor crime of domestic violence. He further claims the conviction was
irrelevant and that, if relevant, any probative value was outweighed by the
prejudicial effect.
We review a trial court decision regarding the admissibility of evidence
for an abuse of discretion. Commonwealth v. Cox, 115 A.3d 333, 336
(Pa.Super. 2015) (en banc). We will reverse an order admitting evidence only
“upon a showing that the trial court abused its discretion.” Id. (quoting
Commonwealth v. Collins, 70 A.3d 1245, 1251–1252 (Pa.Super. 2013)).
“An abuse of discretion is not a mere error in judgment but, rather, involves
bias, ill will, partiality, prejudice, manifest unreasonableness, or
misapplication of law.” Id. (quoting Collins, 70 A.3d at 1251-52).
A. Whether Disorderly Conduct Can Be a Disqualifying Offense
Sasse first maintains that the disorderly conduct conviction does not
qualify as a misdemeanor crime of domestic violence and therefore was
inadmissible.
The ATF form definition of “misdemeanor crime of domestic violence”
tracks the definition contained in 18 U.S.C. § 921(33)(A). Further, the PSP
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form asks whether the person has been “prohibited from possessing or
acquiring a firearm under 18 U.S.C. § 922(g)(9).” PSP Form at A2. Section
922(g)(9) prohibits a person from purchasing a firearm if he or she “has been
convicted in any court of a misdemeanor crime of domestic violence.” 18
U.S.C. § 922(g)(9). The term “misdemeanor crime of domestic violence” is
defined as follows:
[T]he term “misdemeanor crime of domestic violence”
means an offense that--
(i) is a misdemeanor under Federal, State, or Tribal
law; and
(ii) has, as an element, the use or attempted use of
physical force, or the threatened use of a deadly
weapon, committed by a current or former spouse,
parent, or guardian of the victim, by a person with
whom the victim shares a child in common, by a
person who is cohabiting with or has cohabited with
the victim as a spouse, parent, or guardian, or by a
person similarly situated to a spouse, parent, or
guardian of the victim.
18 U.S.C. § 921(33)(A) (footnote removed). Therefore, a misdemeanor crime
of domestic violence includes misdemeanors where an element of the offense
is the use or attempted use of physical force, or threatened use of a deadly
weapon, and where the victim is, among other things, a current or former
spouse, someone who is cohabitating with the defendant, or someone who
shares a child with the defendant.
We have not yet considered whether a misdemeanor conviction for
disorderly conduct can constitute a misdemeanor crime of domestic violence
that would bar the purchase of a firearm. However, the Commonwealth Court
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has addressed the issue on several occasions when determining whether the
Pennsylvania State Police properly disqualified individuals with disorderly
conduct convictions from possessing firearms.
In Pennsylvania State Police v. McPherson, the Commonwealth
Court of Pennsylvania addressed whether a conviction for misdemeanor
disorderly conduct could constitute a misdemeanor crime of domestic
violence.2 831 A.2d 800, 801 (Pa.Cmwlth.Ct. 2003). It noted that, under
Section 5503(a)(1), a person is guilty of disorderly conduct “if, with intent to
cause public inconvenience, annoyance or alarm, or recklessly creating a risk
thereof, he: (1) engages in fighting or threatening, or violent or tumultuous
behavior.” Id. at 807 (quoting 18 Pa.C.S.A. § 5503(a)(1)). It concluded that
“both ‘fighting’ and ‘violent behavior’ include as a necessary element the use
or attempted use of physical force.” Id. It then concluded that “[e]ven if we
were to assume, arguendo, that ‘threatening’ and ‘tumultuous behavior’ may
not involve physical force,” the crime at issue did involve physical force, as
the appellant pled guilty to charges that he “did push or shove [the victim] to
the ground.” Id. The court concluded the “evidence clearly support[ed] the
conclusion that [the appellant] pled guilty to a portion of the statute which
includes the use of physical force as an element,” and thus was disqualified
under federal law from purchasing a firearm. Id.
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2Although decisions of the Commonwealth Court are not binding upon this
Court, “such decisions provide persuasive authority.” Commonwealth v.
Hunt, --- A.3d ----, 2019 WL 4783495, at *7 n.6 (Pa.Super. Oct. 1, 2019).
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Similarly, in Wolak v. Pennsylvania State Police, 898 A.2d 1176,
1179 (Pa.Cmwlth.Ct. 2006), the Commonwealth court again determined that
a disorderly conduct conviction constituted a misdemeanor crime of domestic
violence. It noted that “disorderly conduct has components that could fit within
the federal definition of a crime of domestic violence (i.e., subparagraphs
(a)(1) and (4)), [and] also has components that do not (i.e., subparagraphs
(a)(2) and (3)).” Id. The court then looked to the documents in the record of
the underlying conviction to determine whether the appellant’s disorderly
conduct conviction constituted a misdemeanor crime of domestic violence. Id.
The court concluded that the factual averments in support of the recklessly
endangering another person count, which was changed to a disorderly conduct
count, included an averment that the appellant fired a firearm in the direction
of his estranged wife. Id. at 1180. The court concluded that the administrative
law judge did not err in concluding that this conviction disqualified the
appellant from possession of a firearm. Id. at 1181.
We agree with the reasoning in McPherson and Wolak, and conclude
that a misdemeanor conviction for disorderly conduct may constitute a
conviction for a misdemeanor crime of domestic violence. Therefore, such a
conviction may stand as a bar to possession of a firearm, if the facts of the
conviction establish the individual was convicted of using or attempting to use
physical force against, among other individuals, a current or former spouse,
someone who is cohabitating with the defendant, or someone who shares a
child with the defendant. The court did not err in concluding that a conviction
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for disorderly conduct can constitute a misdemeanor crime of domestic
violence.
B. Whether the Trial Court Erred in Admitting the Conviction.
Sasse claims his prior disorderly conduct conviction was not relevant
because “it had no bearing on whether [Sasse] knowingly and intentionally
made a false statement or made a written false statement which he did not
believe to be true.” Sasse’s Br. at 19. He claims the prior conviction “relates
to whether or not the written statements were in fact false and have no
bearing on whether [Sasse] believed them to be false, which is the real issue.”
Id. at 24. He further claims evidence of the prior conviction was “highly
prejudicial because it led the jury to believe that [Sasse’s] prior conviction of
disorderly conduct prohibited him from acquiring a firearm, when that
determination had never been previously made.” Id.
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super. 2015) (en banc)
(citing Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008)). Evidence is
not admissible unless it is relevant. Pa.R.E. 402. “Evidence is relevant if it
logically tends to establish a material fact in the case, tends to make a fact at
issue more or less probable or supports a reasonable inference or presumption
regarding a material fact.” Tyson, 119 A.3d at 358 (citing Commonwealth
v. Drumheller, 808 A.2d 893, 904 (Pa. 2002)); see also Pa.R.E. 401. A court
“may exclude relevant evidence if its probative value is outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
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misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Pa.R.E. 403.
We discern no abuse of discretion in the admission of the prior
conviction. Sasse was charged in this case with, among other things, falsely
responding that he did not have a misdemeanor conviction for a domestic
violence crime. Sasse claims that, even if the conviction constitutes a
misdemeanor crime of domestic violence, it was not relevant because the
issue was whether Sasse knowingly or intentionally provided false information.
Whether Sasse actually had a prior conviction tends to make whether he
knowingly or intentionally provided false information regarding the same more
or less likely, and is therefore relevant to his intent. Further, regardless of
whether it was relevant to his mens rea, it is relevant to the actus reas, as
the Commonwealth must establish an underlying conviction for a
misdemeanor crime of domestic violence exists in order to establish that
Sasse’s response that he had no such conviction was false.
II. Sufficiency of the Evidence
Sasse argues the Commonwealth failed to present sufficient evidence to
support the mens rea element of the convictions. He claims it did not establish
he knowingly and intentionally made a false statement or that he made a
statement that he did not believe to be true. He argues the forms are
confusing, as they contain four pages of instructions for two pages of
questions and cite numerous sections of Pennsylvania and Federal law. Id. at
30.
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Sasse distinguishes Wolak, 898 A.2d at 1180-81, where the
Commonwealth court found that a conviction for disorderly conduct may
constitute a disqualifying crime of domestic violence, arguing that a criminal
conviction requires that the applicant have the requisite state of mind to falsify
the answer. He argues that although the Commonwealth presented evidence
that Sasse was convicted of disorderly conduct as a misdemeanor, and the
victim was his former wife, the Commonwealth did not establish the
underlying conduct and, therefore, did not establish that the conduct was
fighting and threatening, or merely tumultuous. He argues there has never
been a factual finding that the disorderly conduct conviction is a disqualifying
offense. He argues the testimony from both Trooper Brown and his own
testimony establish the answers were a mistake.
When reviewing a sufficiency of the evidence claim, we must determine
whether, when viewed in a light most favorable to the verdict winner, the
evidence at trial and all reasonable inferences therefrom are sufficient for the
trier of fact to find that each element of the crime charged is established
beyond a reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150,
152 (Pa.Super. 2003). “The Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence.” Commonwealth v. Brown, 23 A.3d 544, 559
(Pa.Super. 2011) (en banc) (quoting Commonwealth v. Hutchinson, 947
A.2d 800, 805-06 (Pa.Super. 2008)). Further, when addressing the sufficiency
of the evidence, we “consider all the evidence at trial, not only that contained
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in the Commonwealth’s case in chief.” Commonwealth v. Kuhn, 475 A.2d
103, 106 (Pa.Super. 1984) (quoting Commonwealth v. Ilgenfritz, 353 A.2d
387, 388 (Pa. 1976)).
The jury convicted Sasse of committing unsworn falsification to
authorities and attempt to make a false statement in connection with the
purchase or sale of a firearm.
To support a conviction for unsworn falsification to authorities, the
Commonwealth must establish that a defendant “ma[de] a written false
statement which he does not believe to be true, on or pursuant to a form
bearing notice, authorized by law, to the effect that false statements made
therein are punishable.” 18 Pa.C.S.A. § 4904(b). To support a conviction under
Section 6111(g)(4)(ii), the Commonwealth must establish a defendant “in
connection with the purchase, delivery or transfer of a firearm under this
chapter . . . knowingly and intentionally . . . ma[de] any materially false
written statement, including a statement on any form promulgated by Federal
or State agencies” 18 Pa.C.S.A. § 6111(g)(4)(ii). Further, a person commits
an attempt “when, with intent to commit a specific crime, he does any act
which constitutes a substantial step toward the commission of that crime.” 18
Pa.C.S.A. § 901(a). The intent to commit a specific crime “may be inferred
from the actions of the defendant in light of all attendant circumstances.”
Commonwealth v. Chance, 458 A.2d 1371, 1374 (Pa.Super. 1983);
Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa.Super. 2001)).
The Crimes Code defines knowingly and intentionally as follows:
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(b) Kinds of culpability defined.--
(1) A person acts intentionally with respect to a material
element of an offense when:
(i) if the element involves the nature of his conduct or
a result thereof, it is his conscious object to engage in
conduct of that nature or to cause such a result; and
(ii) if the element involves the attendant
circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
(2) A person acts knowingly with respect to a material
element of an offense when:
(i) if the element involves the nature of his conduct or
the attendant circumstances, he is aware that his
conduct is of that nature or that such circumstances
exist; and
(ii) if the element involves a result of his conduct, he
is aware that it is practically certain that his conduct
will cause such a result.
18 Pa.C.S.A. § 302(b)(1)-(2).
In Commonwealth v. Kennedy, 789 A.2d 731 (Pa.Super. 2001), this
Court concluded that there was insufficient evidence to support a conviction
for unsworn falsification to authorities. There, the defendant responded no to
the question asked whether he had “ever been convicted of an offense under
the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled
Substance, Drug, Device and Cosmetic Act?” Id. at 733. The defendant
testified that he interpreted the form, and its instructions, as only prohibiting
those whose prior convictions were for crimes that carried a term of
imprisonment of two years or more, and his conviction did not carry such a
term. Id. at 734. This Court concluded that the form “contain[ed] internal
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inconsistencies, which leaves the reader in a quandary when to examine the
back of the document in advance of answering questions on the face of the
application.” Id. Because of the inconsistencies and the defendant’s testimony
as to how he misinterpreted the form, we concluded the Commonwealth
presented insufficient evidence to support the conviction. Id. at 734-35.
Here, unlike in Kennedy, the forms did not contain inconsistencies and
were not misleading. The Commonwealth established that Sasse answered
“no” on the ATF and PSP forms when asked whether he was subject to a PFA.
Further, he answered “no” when asked whether he had ever been convicted
of a misdemeanor crime of domestic violence. The ATF form defined
“misdemeanor crime of domestic violence” as has a crime that has “as an
element the use or attempted use of physical force, or the threatened use of
a deadly weapon, committed by a current or former spouse, parent, or
guardian of the victim, by a person with whom the victim shares a child in
common, by a person who is cohabitating with or has cohabited with the victim
as a spouse. . . .” ATF Form. The PSP form referenced 18 U.S.C. § 922, and
included the classification of the victims that would classify a crime as a crime
of domestic violence. PSP Form. Sasse admitted to reading the forms,
including the instructions. Trooper Brown testified that Sasse told him that he
believed the PFA was for two, not three, years, and that he did not believe the
disorderly conduct conviction was a misdemeanor crime of domestic violence.
Sasse testified to the same at trial. However, the jury heard testimony and
received evidence establishing that the PFA was for three, not two years, and
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that Sasse was convicted of disorderly conduct as a misdemeanor, and that
he knew the conduct underlying the conviction included “fighting” with his
former spouse. Such evidence is sufficient to establish that Sasse intended to
provide false information and that he “knew the answer[s] to be false.”
Judgment of sentence affirmed.
Judge Murray joins the Memorandum.
Judge Colins notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/2020
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