Sufficient Evidence to Support Conviction for Possession of Firearm with Altered Manufacturer’s Number

Commonwealth v. Smith, 2018 WL 2111007 (Pa. Super. 2018) (unreported), allocatur granted Dec. 18, 2018, appeal docket 73 MAP 2018

Following a traffic stop, Shane Smith was charged with possession of a firearm with an altered manufacturer’s number.  During the bench trial, the Commonwealth admitted as an exhibit a photograph of the firearm at issue showing that the manufacturer’s number was legible but had multiple scratch marks on it. The trial court concluded the manufacturer’s number was “clearly abraded” and found Smith guilty of possession of a firearm with altered manufacturer’s number and sentenced smith to three to six years on the charge. Smith was also sentenced for other crimes including possession of a firearm without a license, receipt of stolen property, and possession of a controlled substance.

Smith appealed to Superior Court arguing that the Commonwealth’s evidence showed the manufacturer’s number was completely legible and had not been altered, changed, removed, or obliterated in any fashion, and thus was insufficient to prove all elements of 18 Pa.C.S. § 6110.2:

§ 6110.2.  Possession of firearm with altered manufacturer’s number.

(a)  General rule.–No person shall possess a firearm which has had the manufacturer’s number integral to the frame or receiver altered, changed, removed or obliterated.

Specifically, Smith argued that the Commonwealth must present evidence that the manufacturer’s number is illegible to the naked eye to sustain a conviction for possession of a firearm with an altered manufacturer’s number.

The Superior Court affirmed, basing its decision on statutory construction and the dictionary definition of “altered”:

Section 6110.2 prohibits the possession of a gun where the manufacturer’s number has been “altered, changed, removed or obliterated.” The trial court found that the manufacturer’s number was “altered.” Trial Ct. Op., at 8. Because “altered” is not defined by statute, we look to its dictionary definition to determine its plain meaning. Merriam-Webster’s Dictionary defines “alter” as “to make different without changing into something else.” Merriam-Webster’s Dictionary,; see also Commonwealth v. Ford, 175 A.3d 985, 992 (Pa.Super. 2017).

The picture shows that the manufacturer’s number was “clearly abraded” by multiple scratch marks, Trial Ct. Op. at 7-8, which is sufficient to establish the number was altered, as it made the number “different without changing [it] into something else.”

Slip Op. at 6.

The Pennsylvania Supreme Court granted allocatur on the following issue:

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?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.