Commonwealth v. Smith, S., Aplt.

[J-54-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 73 MAP 2018
:
Appellee : Appeal from the Order of Superior
: Court dated May 8, 2018 at No. 1923
: EDA 2017, affirming the judgment of
v. : sentence of the Court of Common
: Pleas of Delaware County, Criminal
: Division dated May 9, 2017 at No.
SHANE C. SMITH, : CP-23-CR-4965-2016
:
Appellant : ARGUED: May 16, 2019
OPINION
JUSTICE TODD DECIDED: November 20, 2019
In this appeal by allowance, we consider whether the possession of a firearm with
a scratched, but still legible, manufacturer’s number is sufficient to sustain a conviction
for possession of a firearm with an “altered” manufacturer’s number in violation of 18
Pa.C.S § 6110.2. For the reasons that follow, we reverse and remand.1
On June 12, 2016, Pennsylvania State Police troopers initiated a traffic stop of a
vehicle driven by Appellant Shane C. Smith based on their observation that the license
plate was not illuminated, a violation of the Motor Vehicle Code. See 75 Pa.C.S. § 4303
(general lighting requirements). As the troopers approached the vehicle, they observed
1 On May 14, 2019, the Commonwealth filed an application to file a supplemental brief to
address two additional cases it discovered during its preparation for oral argument. In
deciding this case, this Court has considered the cases highlighted by the Commonwealth
in its application, and so we find further briefing unnecessary. Accordingly, the
Commonwealth’s application is denied.
furtive movements by the vehicle’s occupants. The troopers requested Appellant’s
license and registration, at which point either Appellant or his passenger opened the
glovebox. When the glovebox was opened, the troopers observed a plastic vial
containing marijuana. A subsequent search of the vehicle revealed a firearm,
ammunition, and a clip under the driver’s seat. The manufacturer’s number on the firearm
appeared to have been scratched, but was still legible. Appellant was arrested and
charged with, inter alia, possession of a firearm with an altered manufacturer’s number in
violation of 18 Pa.C.S § 6110.2 (“No person shall possess a firearm which has had the
manufacturer’s number integral to the frame or receiver altered, changed, removed, or
obliterated.”).
At Appellant’s stipulated bench trial, the Commonwealth introduced photographs
of the firearm, which showed that the manufacturer’s number had multiple scratch marks,
but the parties did not dispute that the number was still legible.2 Noting that “the serial
number showed clear signs of intentional tampering and wearing of the serial number,”
and that “the area containing the serial number . . . was clearly abraded,” the trial court
determined that “the serial number had been, at a minimum, altered from its original
state.” Trial Court Opinion, 7/25/17, at 7-8. While Appellant argued that the
Commonwealth’s evidence was insufficient to support his conviction because the
manufacturer’s number was still legible, the trial court rejected his argument, emphasizing
that “’obliteration’ is not required to complete the offense.” Id. at 7. Accordingly, the trial
2 The original record in this case contains a copy of the photograph showing a close-up
view of the manufacturer’s number, which was introduced by the Commonwealth and
identified as Exhibit C-4. While, in the Court’s view, the manufacturer’s number on the
firearm is difficult to accurately discern based on the exhibit alone, as noted by Appellant,
the Commonwealth conceded at trial that the number was legible despite the scratch
marks. See Appellant’s Brief at 13 (citing N.T. Trial, 2/24/17, at 9).
[J-54-2019] - 2
court convicted Appellant of, inter alia, violating Section 6110.2, and sentenced him to a
term of three to six years incarceration for the offense.
Appellant appealed his judgment of sentence to the Superior Court, asserting that
the evidence was insufficient to sustain his conviction because the manufacturer’s
number, though scratched, was legible to the naked eye and, thus, the Commonwealth
failed to establish that the number was “altered, changed, removed, or obliterated,” as
required by Section 6110.2. In support of his position, Appellant relied on language from
the Superior Court’s decision in Commonwealth v. (Darian) Smith, 146 A.3d 257 (Pa.
Super. 2016), wherein the defendant, charged with violating Section 6110.2, presented
at trial the testimony of an expert who opined that, because the manufacturer’s number
on the firearm found in the defendant’s possession, though abraded, was legible under
magnification, the manufacturer’s number was “not altered” for purposes of Section
6110.2. On appeal from his conviction, the Superior Court determined that the evidence
was, in fact, sufficient to support Darian Smith’s conviction:
When considered in its entirety, the expert's testimony
confirms that the manufacturer's number on the firearm had
been mechanically abraded to such a degree that it was no
longer legible unless magnification was employed. The
degree of degradation of the number—rendering it illegible by
ordinary observation—satisfied the statutory requirement that
an alteration or change to the number be apparent on the
firearm. In this respect, the expert's opinion that the number
had not been “altered” because it was unnecessary to use
chemical means to enhance remnants of a number ostensibly
removed did not bear on the legal question of culpability under
Section 6110.2, for it was not for the firearms expert to define
any of the four discrete terms used in the statute.
(Darian) Smith, 146 A.3d at 264 (emphasis added).
In the instant case, Appellant argued to the Superior Court that, pursuant to the
above language in (Darian) Smith, in order to sustain a conviction under Section 6110.2,
the Commonwealth was required to present evidence that the manufacturer’s number
[J-54-2019] - 3
was illegible to the naked eye. The Superior Court rejected Appellant’s construction of
(Darian) Smith, and affirmed his judgment of sentence in a unanimous, unpublished
memorandum opinion. Commonwealth v. (Shane) Smith, 1923 EDA 2017 (Pa. Super.
filed May 8, 2019). In doing so, the court explained:
[Darian] Smith held that there was sufficient evidence to
establish the number had been changed or altered, even
though the expert testified it had not been “altered.” [Darian]
Smith did not require the Commonwealth to establish the
number was unreadable with the naked eye to establish a
violation of Section 6110.2.
Id. at 5.
The Superior Court then considered the meaning of the language “altered,
changed, removed, or obliterated,” as set forth in Section 6110.2, and observed that
Merriam-Webster’s Dictionary defines “alter” as “to make different without changing into
something else.” Id. at 6 (quoting https://www.merriam-webster.com/dictionary/alter).3
The court concluded that, as the manufacturer’s number on the gun was “clearly abraded”
by multiple scratch marks, the evidence was sufficient to establish the number had been
altered, as the number was made “different without changing [it] into something else.” Id.
(alterations original).
Appellant filed a petition for allowance of appeal, and this Court granted review to
consider the following issue, as framed by Appellant:
Can a person be convicted of possession of a firearm with
altered manufacturer’s number under 18 Pa.C.S.A. § 6110.2
where the evidence clearly shows that the registration number
at issue is fully legible and identifiable despite some scratch
marks?
Commonwealth v. (Shane) Smith, 199 A.3d 338 (Pa. 2018) (order).
3The Superior Court also cited, without discussion, its decision in Commonwealth v. Ford,
175 A.3d 985 (Pa. Super. 2017), discussed infra.
[J-54-2019] - 4
Before us, Appellant renews his argument that the evidence was not sufficient to
support his conviction for possession of a firearm with an altered manufacturer’s number
because, despite having some scratches, the prosecutor conceded at trial that the
manufacturer’s number on the gun was legible. Appellant contends that the rationale of
the Superior Court in (Darian) Smith makes it “abundantly clear” that no violation of
Section 6110.2 occurs if the manufacturer’s number, “though abraded in some manner,
is fully decipherable and perceivable to the naked eye.” Appellant’s Brief at 12-13.
Appellant additionally highlights the underlying purpose of Section 6110.2, as
articulated by the Superior Court in Ford, supra. In Ford, the Superior Court reversed the
defendant’s conviction under Section 6110.2 because the manufacturer’s number on the
gun had become illegible due to corrosion by natural causes, as opposed to an intentional
act. In doing so, the court explained:
Firearm serial numbers are an important tool because they
help police officers identify the owner of weapons used in
criminal offenses. To ensure that serial numbers remain intact
on firearms, the legislature has prohibited persons from
defacing these markings, see 18 Pa.C.S. § 6117(a), and from
purchasing or obtaining defaced firearms, see 18 Pa.C.S. §
6110.2.
175 A.3d at 992.
Appellant offers that, because the manufacturer’s number on the firearm found in
his vehicle was fully legible, the condition of the gun did not impede law enforcement’s
ability to identify the weapon and, thus, he did not violate the purpose of the statute.
Appellant further suggests that, if the Superior Court’s broad interpretation of Section
6110.2 is permitted to stand, innocent behavior, such as accidentally dropping the gun on
the ground, will be criminalized if such behavior results in scratches or scuff marks on the
manufacturer’s number.
[J-54-2019] - 5
In response to Appellant’s arguments, the Commonwealth emphasizes that
Section 6110.2 does not require the manufacturer’s number to be “fully indecipherable or
illegible” in order to support a conviction thereunder. Commonwealth’s Brief at 15. The
Commonwealth asserts that, if the legislature had intended to require the manufacturer’s
number be “unreadable or obliterated,” it would “have included the additional
requirements in the statute or would only have used the terms remove or obliterate.” Id.
at 15-16. The Commonwealth further maintains that, in the instant case, the evidence
was sufficient to support Appellant’s conviction for possession of a firearm with an altered
manufacturer’s number because, “even though the scratches did not fully remove the
number,” the numbers “were changed because they looked different even though they
had not been changed into something else.” Id. at 15. The Commonwealth contends
that “the markings on the gun were undoubtedly made by human hand in an attempt to
scratch off the number to make it unidentifiable and unable to be traced.” Id.
Finally, and as noted supra note 1, the Commonwealth offers in support of its
position two federal appellate court decisions, United States v. Harris, 720 F.3d 499 (4th
Cir. 2013), and United States v. Adams, 305 F.3d 30 (1st Cir. 2002). In Harris, the circuit
court held that, under the federal sentencing guidelines, for purposes of a sentence
enhancement for possession of a firearm with an “altered or obliterated serial number,”
see U.S.S.G. § 2K2.1(b)(4)(B), “gouges and scratches” on the manufacturer’s number
that rendered it “less legible,” but not illegible, constituted an alteration. 720 F.3d at 503.
In Adams, the circuit court held that evidence of a “badly scratched,” but still legible,
manufacturer’s number was sufficient to support the appellant’s conviction under 18
U.S.C. § 922(k) for possessing a firearm which had the manufacturer's serial number
“removed, obliterated, or altered,”4 and, further, that the trial judge was not required to
4 Section 922(k) provides:
[J-54-2019] - 6
instruct the jury that, in order to convict the appellant, it must find that the change was
material. 305 F.3d at 33.
With the parties’ arguments in mind, we note that the instant case presents an
issue of statutory interpretation, which is a pure question of law. Thus, our standard of
review is de novo, and our scope of review is plenary. SEPTA v. City of Philadelphia,
101 A.3d 79, 87 (Pa. 2014). The overriding object of all statutory interpretation “is to
ascertain and effectuate the intention of the General Assembly” in enacting the statute at
issue. 1 Pa.C.S. § 1921(a). Accordingly, we are required to interpret a statute so as to
give effect to all of its provisions, “if possible.” Id. If statutory language is “clear and free
from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its
spirit.” Id. § 1921(b). Hence, when the words of a statute have a plain and unambiguous
meaning, it is this meaning which is the paramount indicator of legislative intent.
However, in situations where the words of a statute “are not explicit,” the
legislature’s intent may be determined by considering any of the factors enumerated in
Section 1921(c). Commonwealth v. Giulian, 141 A.3d 1262, 1278 (Pa. 2016). These
factors include: (1) the occasion and necessity for the statute; (2) the circumstances under
which it was enacted; (3) the mischief to be remedied; (4) the object to be attained; (5)
the former law, if any, including other statutes upon the same or similar subjects; (6) the
consequences of a particular interpretation; (7) the contemporaneous legislative history;
It shall be unlawful for any person knowingly to transport, ship,
or receive, in interstate or foreign commerce, any firearm
which has had the importer's or manufacturer's serial number
removed, obliterated, or altered or to possess or receive any
firearm which has had the importer's or manufacturer's serial
number removed, obliterated, or altered and has, at any time,
been shipped or transported in interstate or foreign
commerce.
18 U.S.C. § 922(k).
[J-54-2019] - 7
and (8) legislative and administrative interpretations of such statute. 1 Pa.C.S. § 1921(c).
Moreover, in determining legislative intent, it is presumed that the General Assembly does
not intend a result that is absurd, impossible of execution, or unreasonable. Id. § 1922(a).
Finally, we note that, under the rule of lenity, penal statutes must be strictly construed in
favor of the defendant. Commonwealth v. Fithian, 961 A.2d 66, 74 (Pa. 2008) (where an
ambiguity exists in a penal statute, it should be interpreted in the light most favorable to
the accused).
Section 6110.2 provides: “No person shall possess a firearm which has had the
manufacturer's number integral to the frame or receiver altered, changed, removed or
obliterated.” 18 Pa.C.S. § 6110.2(a).5 The Commonwealth is correct that, under this plain
language, it is not necessary that the manufacturer’s number be “removed” or
“obliterated” in order to support a conviction. Rather, the Commonwealth may also
establish a violation of Section 6110.2 by demonstrating that the manufacturer’s number
has been “altered” or “changed.” There is no dispute that the manufacturer’s number
that appeared on Appellant’s firearm was the same as the original manufacturer’s
number, and the Commonwealth does not suggest, nor did the lower courts conclude,
that the number had been “changed.”
However, the lower courts did conclude that the scratch marks on Appellant’s
firearm resulted in an “altered” manufacturer’s number. The Superior Court observed the
term “altered” is not defined in the statute. Indeed, only the term “firearm” is defined in
Section 6110.2. Therefore, the court considered the dictionary definition of the term, see
1 Pa.C.S. § 1903(a) (words of a statute shall be construed according to rules of grammar
and according to their common and approved usage), noting that Merriam-Webster
defines “alter” as “to make different without changing into something else.” See
5 A violation of Section 6110.2 is a second-degree felony. See 18 Pa.C.S. § 6110.2(b).
[J-54-2019] - 8
https://www.merriam-webster.com/dictionary/alter. Based on this singular definition, the
court concluded that: “[t]he picture shows that the manufacturer’s number was ‘clearly
abraded’ by multiple scratch marks, Trial [Court Opinion] at 7-8, which is sufficient to
establish the number was altered, as it made the number ‘different without changing [it]
into something else.’” (Shane) Smith, at 6.
Although the Superior Court relied on a particular definition of the term “alter”
suggesting that something can be made “different” without “changing [it] into something
else,” a number of other sources provide definitions that are in tension with the one utilized
by the Superior Court. For example, the American Heritage Dictionary defines “alter” as
“[t]o change or make different.” The American Heritage Dictionary at 99 (2nd ed. 1982).
The New Shorter Oxford English Dictionary defines “alter” as to “[m]ake otherwise or
different in some respect; change in characteristics, position, etc.” The New Shorter
Oxford English Dictionary at 60 (1993). Finally, Random House Webster’s Unabridged
Dictionary defines “alter” as “to make different in some particular, as size, style, course,
or the like . . . to change.” Random House Webster’s Unabridged Dictionary at 60 (2nd
ed. 1987). In our view, these definitions undercut the Superior Court’s construction of the
term “alter” as making something “different” without “changing [it] into something else.”
Indeed, Merriam-Webster defines the term “change” as, inter alia, “to make
different in some particular,” https://www.merriam-webster.com/dictionary/change, and
the term “different” is defined as “partly or totally unlike in nature, form, or quality,” and
“not the same.” https://www.merriam-webster.com/dictionary/different. These definitions
indicate that the terms “alter” and “change” can be viewed as, essentially, synonymous,
and, indeed, Merriam-Webster identifies “change” as a synonym of the term “alter.” See
https://www.merriam-webster.com/dictionary/alter. Moreover, in the context of Section
6110.2, which pertains to an identification number, it is reasonable to question how a
[J-54-2019] - 9
number could be “made different” without actually changing it into a different number; in
one natural sense, an alteration to a number means a change to the number.
Nevertheless, as there is support for both Appellant’s more narrow interpretation
of the term “alter” − wherein a manufacturer’s number which has been scratched, but is
still legible, is not “altered” because the number remains the same − and the
Commonwealth’s broader interpretation − wherein a manufacturer’s number that remains
legible, but is less clear as a result of scratches to the number, is “altered,” see Harris,
720 F.3d at 503 (concluding that a serial number that remains legible, but has been made
less legible, has been “altered” for purposes of the federal statute)6 − we hold that the
term “alter,” as used in Section 6110.2, is capable of multiple reasonable interpretations,
and, therefore, is ambiguous. See A.S. v. Pennsylvania State Police, 143 A.3d 896, 906
(Pa. 2016) (when a statutory term, read in context with the overall statutory framework in
which it appears, has at least two reasonable interpretations, the term is ambiguous).
Thus, we look to the statutory construction factors identified above to determine the
proper interpretation of the term.7
With regard to the occasion and necessity for the statute, the mischief to be
remedied, and the object to be obtained, the Superior Court in Ford aptly recognized that
6 Like the Superior Court below, the Harris court adopted the definition of the word “alter”
as making something “different without changing into something else,” and contrasted the
meaning of the term with the meaning of “obliterate.”
7 We reject Appellant’s continued reliance on the language of the Superior Court’s
decision in (Darian) Smith for the proposition that, as long as the manufacturer’s number
is perceivable to the naked eye, no violation of Section 6110.2 occurs. Contrary to
Appellant’s suggestion, a careful reading of (Darian) Smith reveals that the Superior Court
therein did not establish a per se rule that, in order to support a conviction under Section
6110.2, the degradation of a manufacturer’s number must be such that the number is
illegible with the naked eye. Rather, as observed by the Superior Court in the instant
case, the court in (Darian) Smith merely held that the fact that the manufacturer’s number
could not be ascertained by the naked eye was, in that particular case, sufficient to satisfy
the requirement that the number had been altered or changed.
[J-54-2019] - 10
the manufacturer’s serial number on a firearm is an important tool used by police officers
in identifying the owner of weapons used in criminal offenses. 175 A.3d at 992. To
safeguard this important tool, the legislature prohibits individuals from altering, changing,
removing, or obliterating the numbers, see 18 Pa.C.S. § 6117(a), and from possessing
firearms which have had the manufacturer’s number altered, changed, removed or
obliterated, id. § 6110.2.
In cases such as the one sub judice, where a manufacturer’s number on a firearm
bears scratch marks, or gouges, but remains legible, the underlying object of Section
6110.2 is not frustrated or impeded. If the General Assembly’s intent in enacting Section
6110.2 − a possessory offense − was to do more than insure that the manufacturer’s
serial number on a firearm remains legible so that police officers can identify the owners,
it could have used the terms “deface,” “mar,” or “disfigure.” Alternatively, the General
Assembly could have used the term “obscure,” to apply to a situation in which the
manufacturer’s number has been made more difficult to read, but is still legible. These
considerations militate in favor of an interpretation of the term “alter” as requiring that the
number be changed in some material way, or in a manner which renders the number
illegible, in order to support a conviction thereunder.
Although cited by the Commonwealth, we find aspects of the decisions in Adams
and Harris to support this conclusion. In Adams, the court explained that the purpose of
18 U.S.C. § 922(k), which prohibits an individual from possessing a firearm with a
“removed, obliterated, or altered” manufacturer’s serial number:
aims to punish one who possesses a firearm whose principal
means of tracing origin and transfers in ownership−its serial
number−has been deleted or made appreciably more difficult
to make out. Considering the evident purpose, it is hard to
see why anything more than a significant impairment should
be required; nothing in language or purpose suggests that the
[J-54-2019] - 11
alteration must make tracing impossible or extraordinarily
difficult.
***
[T]here is a kind of materiality requirement implicit in the
statute, but also one implicitly understood by jurors. This is
especially so because . . . any change that makes the serial
number appreciably more difficult to discern should be
enough, assuming always that the defendant made the
change or is otherwise aware of it.
Adams, 305 F.3d at 34 (emphasis added). In Adams, the federal agent testified that he
was able to read the manufacturer’s number with difficulty, and the court itself, after
examining the firearm at oral argument, noted that at least one of the six digits could have
been read as two different numbers. Id. at 35.
Likewise, the Harris court, in holding that a serial number “that is not illegible but
is less legible than it would be without the gouges and scratches,” 720 F.3d at 503
(emphasis original), falls within 18 U.S.C. § 922(k), relied on several decisions which
involved an “alteration” that rendered the number illegible to the naked eye. See Harris,
720 F.3d at 503-04 (citing United States v. Carter, 421 F.3d 909, 910, 916 (9th Cir. 2005)
(“partially defaced” serial number that was not discernable to the naked eye, but was
detectable via microscopy, is “altered” for purposes of sentence enhancement, as serial
number was “materially changed in a way that makes accurate information less
accessible.”); United States v. Jones, 643 F.3d 257 (8th Cir. 2011) (filed-off serial number
that was invisible to the naked eye, but became visible when an acid solution was applied,
was sufficiently “altered” for purposes of federal sentencing enhancement); United States
v. Justice, 679 F.3d 1251, 1254 (10th Cir. 2012) (explaining that, while crime lab was able
to detect serial number after smoothing the metal surface and applying acid and water,
“sentencing guidelines are to govern the practical world, not the world of metaphysical
certainty. What matters is what is ‘perceptible,’ not what can be discerned by
sophisticated and scientific techniques.”)); but see United States v. Perez, 585 F.3d 880,
[J-54-2019] - 12
885 (5th Cir. 2009) (relying on Carter, supra, in holding that serial number which
“appeared to be altered and partially obliterated,” but was still readable, had been
“materially changed in a way that made its accurate information less accessible”). The
Harris court recounted that the district court in that case was unable to read the
manufacturer’s number, and that there was no evidence in the record as to how the police
ultimately discerned the manufacturer’s number. 720 F.3d at 504.
As noted above, in the instant case, the Commonwealth conceded at trial that the
manufacturer’s number on Appellant’s firearm was legible despite the scratch marks.
Thus, in contrast to Adams, Harris, and the other federal cases cited above, the scratch
marks did not materially change the number in a way that made its accurate information
less accessible, or render the number illegible to the naked eye.
Finally, we reiterate that, under the rule of lenity, Section 6110.2, as a penal
statute, must be strictly construed in favor of the Appellant. Fithian, 961 A.2d at 74. As
the United States Supreme Court explained in Dunn v. United States, 442 U.S. 100
(1979), the application of the rule of lenity is “not merely a convenient maxim of statutory
construction,” but, rather, “is rooted in fundamental principles of due process which
mandate that no individual be forced to speculate, at peril of indictment, whether his
conduct is prohibited.” Id. at 112. Here, a citizen should not have to guess whether
possession of a firearm with a scratched, but still legible, manufacturer’s number
constitutes a second-degree felony.
For all of the above reasons, we hold that, in order to establish that a
manufacturer’s number was “altered” for purposes of Section 6110.2, the Commonwealth
must establish that the number was changed in a material way, such as by making it look
like a different number, or that it was rendered illegible, in whole or in part, to the naked
eye.
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As the original manufacturer’s number on Appellant’s firearm was, notwithstanding
the scratch marks, still legible to the naked eye, we reverse the order of the Superior
Court, vacate Appellant’s conviction and judgment of sentence for violating Section
6110.2, and remand the matter to the Superior Court for remand to the trial court for
resentencing.
Order reversed. Case remanded. Jurisdiction relinquished.
Chief Justice Saylor and Justices Baer, Donohue and Wecht join the opinion.
Justice Wecht files a concurring opinion.
Justice Mundy files a dissenting opinion.
Justice Dougherty did not participate in the consideration or decision of this case.
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