Commonwealth v. Baxter

Dissenting OPINION BY

FORD ELLIOTT, P.J.

¶ 1 I respectfully dissent. There is no allegation that Baxter gave false or misleading answers to any questions on the state police form required by Section 6111, including his name, address, date of birth, and Social Security number. Rather, these charges arise from his allegedly false answers to questions on the federal ATF Form 4473. I would reject the Commonwealth’s argument that by its plain language, the statute applies to “any materially false oral or written statement” and so informs persons of ordinary intelligence that any false statement, whether oral or written, potentially gives rise to criminal liability. In my view, to fall within the boundaries of the statute, the allegedly materially false statement must relate to one of the pieces of identifying information *475delineated in Section 6111(b); e.g., date of birth, Social Security number, address, etc.

¶2 To the extent the Commonwealth argues that any false answer on either the state or federal form subjects a potential gun purchaser to criminal liability under Section 6111(g)(4), I would reject such an argument out of hand as going well beyond the scope of the statute. While federal authorities may ask whether Baxter was dishonorably discharged from the military or has ever renounced U.S. citizenship, questions which appear on Form 4473, such information is well beyond the purview of Section 6111 and a false answer cannot subject him to criminal prosecution thereunder.12

¶ 3 “[A] criminal statute must give reasonable notice of the conduct which it proscribes to those who are subject to it.” Commonwealth v. Noel, 579 Pa. 546, 550, 857 A.2d 1283, 1285 (2004), citing Commonwealth v. Barud, 545 Pa. 297, 303-305, 681 A.2d 162, 165 (1996). “A defendant must have fair notice that his conduct is criminal.” Commonwealth v. Aircraft Service International Group, 917 A.2d 328, 330 (Pa.Super.2007).

¶ 4 I would find that Baxter was not put on fair notice that his answers to the additional questions posed by the federal Form 4473 could subject him to criminal liability under Section 6111(g)(4). Section 6111(b) specifically lists the information a potential buyer must provide to the dealer on the Pennsylvania State Police Form SP 4-113. This list includes only the buyer’s name, address, birthdate, gender, race, physical description, and Social Security number, as well as the date of application and caliber, barrel length, make, model, and serial number of the firearm to be purchased. 18 Pa.C.S.A. § 6111(b)(1). Nothing in Section 6111(b) requires the potential buyer to disclose his or her criminal or mental health background. Rather, the statutory scheme contemplates that the buyer will provide identifying information to the dealer, and the dealer will then request a criminal background check from the Pennsylvania State Police based on that information. 18 Pa.C.S.A. § 6111(b)(l.l)(iii). So that the criminal background check is not thwarted, Section 6111(g)(4) makes it a crime for the potential buyer to provide false identifying information.

¶5 In State v. Watso, 788 So.2d 1026 (Fla.App. 2nd Dist.2001), the Florida intermediate appellate court, in the face of substantially similar facts, held that state prosecution of a potential buyer based on allegedly false answers to additional questions on the ATF form, including whether the potential buyer has ever been convicted of a felony or has ever been committed to a mental institution, is unconstitutional as violative of due process and the separation of powers doctrine. While the majority chooses to dismiss Watso, I find its reasoning to be persuasive.13 Applying the Watso court’s rationale to the facts of the case sub judice:

[Njothing in the statute puts the potential buyer on notice that he or she will be asked questions about his or her use *476of marijuana, his or her psychological background, or the circumstances surrounding his or her discharge from the armed forces. Moreover, nothing in the statute puts the potential buyer on notice that he or she will be asked to independently corroborate the criminal background check to be done by the [state police]. Because the potential buyer is not advised by the statute that answers to the [federal Form 4473’s] additional questions could subject him or her to criminal prosecution, any prosecution under section [6111(g)(4)] for providing false answers to these additional questions constitutes a due process violation.

Watso, 788 So.2d at 1029-1030.

¶ 6 In my opinion, Baxter was not put on fair notice by the statute that false answers to any additional questions such as those set forth in the ATF Form 4473 could potentially expose him to criminal prosecution under Pennsylvania law. Therefore the statute, as applied by the Commonwealth in this case, violated due process. In addition, I note that pursuant to the rules of lenity and strict construction, any ambiguity must be resolved in Baxter’s favor. The rule of lenity is a rule that ensures “fairness to persons subject to the law by requiring penal statutes to give clear and unequivocal warning in language that people generally would understand, as to what actions would expose them to liability for penalties and what the penalties would be.” See Commonwealth v. Reaser, 851 A.2d 144, 149 (Pa.Super.2004), appeal denied, 581 Pa. 674, 863 A.2d 1145 (2004) (citation omitted).

¶ 7 I would also agree with the trial court’s conclusion that the Commonwealth’s prosecution of Baxter violated separation of powers, as only the Legislature has authority to expand the scope of the questions required by statute on a firearms application. (Trial court opinion, 5/25/06 at 5.) The Legislature cannot delegate to the executive branch power to declare what acts shall constitute criminal offense, nor may any other branch of government usurp the Legislature’s authority to define a crime in Pennsylvania. Pennsylvania Constitution, Art. 2, Section 1.

¶ 8 “[T]he [Commonwealth] has, in effect, attempted to expand the scope of criminal conduct under section [6111(g)(4)] by making it a third-degree felony to provide false answers to these additional questions. This is an unconstitutional usurpation of the legislature’s function.” Watso, supra at 1029. As the trial court states, a firearms dealer can ask whatever questions in addition to those on the Pennsylvania state police form it wants to, including information sought by the ATF; while a potential buyer’s answers to these “additional” questions might serve as a legitimate basis for denying purchase, they do not constitute a crime under Section 6111(g)(4). (Trial court opinion, 5/25/06 at 6.) The Commonwealth has effectively endorsed the federal Form 4473 by charging Baxter for providing allegedly false information thereon. In doing so, the Commonwealth operates outside the statutory framework formulated by the Legislature for conducting background checks to determine who is eligible to purchase firearms in Pennsylvania.

¶ 9 For the above reasons, I would hold that Baxter could not be prosecuted under Section 6111(g)(4) for giving allegedly false answers to questions not designed to elicit the information required by Section 6111(b). Therefore, I am compelled to dissent.14

¶ 10 BENDER, J. joins.

. Of course, false answers to questions on the ATF Form 4473 could perhaps subject Baxter to federal prosecution. See 18 U.S.C. § 922(a)(6).

. The Florida statute provides, “Any potential buyer or transferee who willfully and knowingly provides false information or false or fraudulent identification commits a felony of the third degree....” Watso at 1028, quoting § 790.065(12)(a), Fla. Stat. (Supp.1998). As in the instant case, the charge against Watso was predicated on his allegedly false answer to a question on the federal ATF form concerning whether he had ever been convicted of a felony. Id.

. I acknowledge that there is a proposed amendment to Section 6111(g)(4) that would make it a third-degree felony for a prospective purchaser of a firearm to make "any materially false written statement, including a statement on any form promulgated by Federal or State agenciesH.B. 1845 of 2007 (emphasis added). This amendment, if enacted, would prospectively clarify the offense as defined by Section 6111(g). However, this obviously would not affect my disposition of the matter sub judice.