Commonwealth v. Clegg, No. 18 MAP 2010 (Pa. August 16, 2011)
After a hunting incident in which he was found possessing two firearms, Clegg was charged with violating the Uniform Firearms Act because of his previous conviction for attempted burglary. The Perry County Court of Common Pleas dismissed the charge, and the Commonwealth appealed this decision to the Pennsylvania Superior Court.
The Superior Court reversed and remanded the case concluding that attempted burglary qualified as an offense under the Act’s savings clause. Clegg then appealed to the Pennsylvania Supreme Court.
Because statutory interpretation is a question of law, the Pennsylvania Supreme Court exercised a de novo standard of review.
Section 6105 (a) of the Pennsylvania Crimes Code defines the offense for persons possessing firearms:
(1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.
Subsection (b) enumerates 38 offenses including “Section 3502 (relating to burglary).” The list is followed by the “savings clause”:
Any offense equivalent to any of the above-enumerated offenses under the prior laws of this Commonwealth or any offense equivalent to any of the above-enumerated offenses under the statutes of any other state or of the United States.
The Court stated that the statute was unambiguous and turned its attention to the list of enumerated offenses, specifically to the crime of burglary found in Section 3502:
A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
The Court noted that burglary is defined as a completed act, not an attempt. In fact, attempt is a separate crime codified elsewhere in the Crimes Code. Section 6105 does not expressly address attempt. The Court also found that the parenthetical descriptions in the statute, such as “(relating to burglary),” were merely for convenience and did not imply the inclusion of the crime of attempt.
Concerning the savings clause, the Court explained that the prior statute’s inclusion of attempted burglary does not make it the equivalent of burglary under the current version.
Relying on Commonwealth v. Hoke, the Court also pointed out that clear and unambiguous penal statutes must not be interpreted broadly against a defendant’s interests “under the pretext of pursuing its spirit.”
In reversing the Superior Court, the Pennsylvania Supreme Court concluded that the inchoate (incomplete) crime of attempt (including attempted burglary) does not qualify as an offense under the Uniform Firearms Act. [Justice Eakin wrote a concurring opinion in which he stated that the inchoate crimes of criminal conspiracy and criminal solicitation also do not qualify as offenses under Section 6105.]