Com. v. Kompa, B. ( 2014 )


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  • J-S53013-14
    ON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellant
    v.
    BRADLEY KOMPA,
    Appellee                    No. 1912 WDA 2013
    Appeal from the Order Entered November 1, 2013
    In the Court of Common Pleas of Washington County
    Criminal Division at No(s): CP-63-CR-0000898-2013
    BEFORE: DONOHUE, OLSON and PLATT,* JJ.
    DISSENTING MEMORANDUM BY OLSON, J.:              FILED SEPTEMBER 19, 2014
    Because I believe that the Commonwealth established a prima facie
    case regarding a materially false statement made in connection with the
    purchase of a firearm, I respectfully dissent.
    As set forth by the learned majority, in order to establish a prima facie
    case for trial, the Commonwealth has the following burden:
    [T]he Commonwealth must show sufficient probable cause
    that the defendant committed the offense, and the evidence
    should be such that if presented at trial, and accepted as
    true, the judge would be warranted in allowing the case to
    go to the jury. When deciding whether a prima facie case
    was established, we must view the evidence in the light
    most favorable to the Commonwealth, and we are to
    consider all reasonable inferences based on that evidence
    which could support a guilty verdict. The standard clearly
    does not require that the Commonwealth prove the
    accused's guilt beyond a reasonable doubt at this stage.
    The prima facie case merely requires evidence of the
    existence of each element of the crime charged. The weight
    and credibility of the evidence is not a factor at this stage.
    * Retired Senior Judge assigned to the Superior Court.
    J-S53013-14
    Commonwealth v. McCullough, 
    86 A.3d 901
    , 905 (Pa. Super. 2014)
    (citations, brackets, and original emphasis omitted).
    The Commonwealth charged Kompa with making a materially false
    statement in connection with the purchase of a firearm, which is statutorily
    defined as:
    (4) Any person, purchaser or transferee commits a felony of
    the third degree if, in connection with the purchase, delivery
    or transfer of a firearm under this chapter, he knowingly
    and intentionally:
    * *      *
    (ii) makes 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).
    The Commonwealth charged Kompa after he purchased a firearm and
    answered “no” to the following question on the purchase form: “Are you an
    unlawful user of, or addicted to marijuana or any depressant, stimulant,
    narcotic drug, or any other controlled substances?”     In concluding that a
    prima facie case was not established, the trial court determined:
    Notably, [Kompa] never stated that he was addicted to
    drugs at the time he purchased the firearm, which was
    corroborated by the statement of [the firearm dealer] that
    he would not have sold the firearm if [Kompa] had been
    under the influence. Additionally, [Kompa] never stated
    that his answer was false.
    The Commonwealth failed to set forth a prima facie case
    that [Kompa] intentionally or knowingly made a false
    statement in connection with the purchase of a firearm.
    While the Commonwealth may benefit from the standard of
    review at that procedural juncture, the Commonwealth
    -2-
    J-S53013-14
    offered no evidence that [Kompa] was addicted to drugs or
    an unlawful user of drugs at the time of the purchase.
    Trial Court Opinion, 3/21/2014, at 5 (record citation omitted).
    In affirming the trial court’s determination, the learned majority
    states:
    Kompa admitted he was a “near constant” user of drugs for
    many years, but also stated that he was not using drugs
    when he purchased the gun. “Near constant” is not the
    same as “constant;” it means that there were periods of
    time during which he was not using drugs. The man who
    sold Kompa the gun testified that he would not have done
    so if Kompa appeared to be under the influence. Thus, the
    Commonwealth has not put forth any evidence that Kompa
    was an addict or in a period of drug use at the time he
    bought the gun, nor that he was under the influence of a
    controlled substance when he filled out [the sales] form.
    Majority Memorandum, at 5-6.
    My review of the record reveals otherwise. At the preliminary hearing,
    the Commonwealth called the investigating officer, Officer Joseph Bielevicz,
    who testified as follows:
    I told [Kompa] that I had reviewed his history, and it
    was clear to me that he was a drug user. And I asked him
    if he agreed with that. And he told me that he had used a
    variety of drugs since high school, starting with marijuana,
    moving on to cocaine and various types of pills, and he said
    that he had begun using heroin over a year ago, which at
    that time would have put that at January, 2011.
    When I asked him if he was using heroin at the time
    that he bought the gun, he said that he thought he was
    clean at the time, but he seemed unsure.
    He did agree that since high school he has been a near
    constant user of one type of controlled substance or
    another.
    -3-
    J-S53013-14
    He also acknowledged that for over a year and a half1 he
    had loaned his car out to various people in exchange for
    heroin.
    N.T., 4/8/2013, at 11-12.
    On cross-examination, the following exchange occurred:
    [Defense counsel:] [I]sn’t it true that Mr. Kompa said that
    he thought he was clean at the time, and he didn’t think
    that he had done anything wrong, correct?
    [Officer Bielevicz:]      Yes.
    [Defense counsel:]        At that time you didn’t believe him, did
    you?
    [Officer Bielevicz:] Well, it wasn’t a matter of believing.
    It was a matter of the definition of what a drug user and
    addicted to drugs was.
    I mean he was questioning whether he had used
    [narcotics] recently, prior to the time of purchase. But it
    doesn’t negate the fact that he was addicted to drugs,
    which is what he told me.
    Id. at 15-18.
    The trial court and majority focus on the fact that Kompa believed that
    he was “clean” at the time of the purchase, thus indicating that he had not
    used narcotics recently.           Upon review, however, the Commonwealth
    presented evidence that Kompa was “unsure” if he was “clean at the time”
    ____________________________________________
    1
    Officer Bielevicz testified he interviewed Kompa on January 14, 2012.
    N.T., 4/8/2013, at 14. Kompa purchased the firearm on July 26, 2010. Id.
    at 12. Thus, Kompa admitted to lending his car in exchange for heroin as
    early as July 14, 2010.
    -4-
    J-S53013-14
    he purchased the firearm.      He also acknowledged that he was a “near
    constant” user of controlled substances since high school. The majority tries
    to distinguish “near constant” use with “constant” use, but it is a distinction
    without a difference.    The question on the form asked if Kompa was “an
    unlawful user of, or addicted to marijuana or any depressant, stimulant,
    narcotic drug, or any other controlled substances.”             Without even
    reaching whether Kompa was addicted to controlled substances, he admitted
    that he was a “near constant” user, but an unlawful user nonetheless.
    Furthermore, Kompa also admitted that, at the time of the gun purchase, he
    was lending his car to people in exchange for heroin. Thus, regardless of
    whether he thought he might have been clean at the precise moment that
    he completed the form and purchased the gun, Kompa’s admitted pervasive
    drug use before and after the purchase of the firearm show his unlawful use
    of narcotics during the relevant period.          Accordingly, when Kompa
    represented that he was not using or addicted to narcotics on the firearm
    form, the Commonwealth set forth a prima facie case that Kompa
    intentionally or knowingly made a false statement in connection with the
    purchase of a firearm.
    Moreover, the trial court and majority erroneously buttress their
    position with stipulated evidence that the firearms dealer did not recall that
    Kompa was visibly intoxicated at the time of the purchase.      Primarily, the
    parties stipulated that the owner of the firearm shop “would not have been
    able to identify Mr. Kompa as the person who actually purchased the
    -5-
    J-S53013-14
    firearm.” N.T., 10/25/2013, at 3. Instead, the parties stipulated that “had
    Mr. Kompa been under the influence of anything at that point, he would not
    have sold him the firearm.”       Id. at 4. A dearth of evidence of visible
    intoxication is not confirmation of the absence of regular narcotic use or the
    lack of an addiction to drugs. Certainly, one can be addicted to narcotics, or
    a habitual user of controlled substances, without showing outward signs of
    intoxication. Likewise, a drug user can have periods of lucidity or could feign
    sobriety. Thus, reliance on the fact that Kompa appeared sober to the clerk
    at the time of the firearm purchase was flawed.
    Viewing   the   evidence    in    the   light   most   favorable    to   the
    Commonwealth, I believe that the Commonwealth established a prima facie
    case against Kompa for making a materially false statement in connection
    with the purchase of a firearm.        Knowing that he was a regular user of
    narcotics at the time he bought the firearm, Kompa averred that he was not.
    The Commonwealth set forth evidence of the existence of each element of
    the crime charged.    The weight and credibility of the evidence is not a factor
    at this stage and should be decided at trial.   Hence, I would reverse the trial
    court’s grant of habeas corpus and remand for additional proceedings.
    For all of the foregoing reasons, I respectfully note my dissent.
    -6-
    

Document Info

Docket Number: 1912 WDA 2013

Filed Date: 9/19/2014

Precedential Status: Precedential

Modified Date: 10/30/2014