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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                 Appellee                  :
                                           :
                  v.                       :
                                           :
ROBERT DEAN ROBINSON,                      :
                                           :
                Appellant                  :   No. 78 WDA 2016

        Appeal from the Judgment of Sentence November 19, 2015,
            in the Court of Common Pleas of Allegheny County,
           Criminal Division at No(s): CP-02-CR-0006516-2015

BEFORE: SHOGAN, SOLANO, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED FEBRUARY 9, 2017

      Robert Dean Robinson (Appellant) appeals from the judgment of

sentence entered November 19, 2015, after he was convicted of one count

of unsworn falsification to authorities relating to his application to obtain a

firearm license. Upon review, we affirm.

      We summarize the facts underlying this case based upon the affidavit

of probable cause, which was entered into evidence by stipulation at trial.

See N.T., 11/19/2015, at 5. On October 21, 2014, Appellant completed an

Allegheny County application for a Pennsylvania license to carry firearms.

Appellant checked the box marked “no” to the following relevant questions:

           30. Do you meet any of the following prohibiting criteria
      under 18 Pa.C.S. § 6109(e)(1)? []

                 B. Have you ever been convicted of an offense
            under the … Controlled Substance, Drug, Device and


*Retired Senior Judge assigned to the Superior Court.
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            Cosmetic Act (CSDDCA)? (As provided in 18 Pa.C.S.
            § 6109(e)(1)(ii), any Pennsylvania drug conviction
            under the CSDDCA is prohibiting for a license to
            carry).

                                         ***

                  E. Have you ever been involuntarily committed
            to a hospital/health care facility for a mental health
            condition or other treatment, or adjudicated
            incompetent/incapacitated?

Application for a Pennsylvania License to Carry Firearms, Commonwealth’s

Exhibit 4 (unnecessary capitalization omitted).

      In addition, Appellant signed the following certification:

             33. I have never been convicted of a crime that prohibits
      me from possessing or acquiring a firearm under Federal or
      State law. I am of sound mind and have never been committed
      to a mental institution or mental health care facility. I hereby
      certify that the statements contained herein are true and correct
      to the best of my knowledge and belief. I understand that if I
      knowingly make any false statements herein, I am subject to
      penalties prescribed by law. I authorize the sheriff, or his
      designee … to inspect only those records or documents relevant
      to information required for this application. If I am issued a
      license and knowingly become ineligible to legally possess or
      acquire firearms, I will promptly notify the sheriff of the county
      in which I reside…. This certification is made subject to both the
      penalties of § 4904 of the Crimes Code, 18 Pa.C.S., relating to
      unsworn falsifications to authorities and the Uniform Firearms
      Act.

Id.

      Appellant’s application was processed, which included a query to the

Pennsylvania Instant Check System (PICS). The PICS returned a denial of

the application because Appellant had prior mental health commitments.

Per policy, the clerk then queried the National Crime Information Center


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database and learned that Appellant had several criminal charges filed

against him in the past.

      Specifically, in 2007, Appellant pled guilty to three offenses of the

Controlled Substance, Drug, Device, and Cosmetics Act: two counts of

possession of a controlled substance and one count of possession of drug

paraphernalia.    Appellant was placed on probation without verdict by

agreement.1

      Appellant was then arrested on May 13, 2011 by the Plum Borough

Police Department and charged with possession of a controlled substance

and disorderly conduct.    Those charges were nolle prossed.      On May 29,

2011, the Pennsylvania State Police charged Appellant with two counts of

possession of a controlled substance and one count of possession of drug

paraphernalia. On February 8, 2012, Appellant pled guilty to one count of

possession of a controlled substance.      He was sentenced to one year of

probation.

      On November 22, 2013, the New Kensington Police charged Appellant

with theft. That case did not have a disposition. In addition, the NCIC check




1
  “[T]he court may place a person on probation without verdict if the person
pleads nolo contendere or guilty to any nonviolent offense under this act and
the person proves he is drug dependent.” 35 P.S. § 780-117. “Upon
fulfillment of the terms and conditions of probation, the court shall discharge
such person and dismiss the proceedings against him.” Id. at (3). The
record does not reflect whether these charges were actually dismissed after
successful completion of probation.


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revealed a probation/parole detainer from Crawford County from April 3,

2012 to April 3, 2013.

      Based on this information, Detective Ronald N. Stokes, Jr., an officer

with the Allegheny County Sheriff’s Department, began an investigation, and

Appellant was charged with one count of unsworn falsification to authorities.

A non-jury    trial   was held on November       19, 2015.      At trial, the

Commonwealth presented its case by stipulation, entering into evidence the

aforementioned affidavit of probable cause, Appellant’s certified convictions

from 2007 and 2012, Appellant’s involuntary commitment in 2011, and the

application filled out by Appellant.

      Appellant called his father, Robert Robinson, Sr., to testify. Robinson

testified that he helped Appellant fill out the application at issue. Robinson

testified that Appellant had a permit to a carry a weapon, it was about to

expire, and that is why Appellant was filling out a new application. 2

Robinson testified that he “was under the impression that … [Appellant] had

signed himself in and wasn’t committed” for mental health treatment. N.T.,

11/19/2015, at 9.     Robinson also testified that he knew Appellant had been

charged with and convicted of drug possession in 2007 and 2012.

      Appellant testified that he was “a little iffy” about a few things on the

application, and “should have looked into to it further since all of this

happened.” Id. at 17. However, he “figured [he] was renewing it, so … it

2
  According to Appellant, the permit had already expired when he applied for
the new one. N.T., 11/19/2015, at 16.


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was all right.” Id.   Appellant testified that he asked Robinson whether he

had been committed involuntarily, and Robinson told Appellant he was not.

Additionally,   Appellant   “was   under   the   impression   that   [he]   wasn’t

[committed involuntarily] and that [he] checked [himself] into the hospital.”

Id.

      With respect to the criminal charges, Appellant testified that his

attorney had told him that since Appellant “got [Accelerated Rehabilitative

Disposition program (ARD)] for [the drug charges] it wouldn’t be on [his]

criminal record.” Id. at 18. In addition, Appellant testified that he “was a

little confused” in answering questions about his criminal history, and he

“assumed [he] had to have been convicted and [have] served over a year in

prison.” Id. at 20.

      Based on the foregoing, the trial court convicted Appellant of unsworn

falsification to authorities and sentenced him to one year of probation. The

trial court specifically found that Appellant had falsely answered question

30(B), supra. Appellant timely filed a notice of appeal, and both Appellant

and the trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant sets forth one question for our review: “Was the

evidence insufficient in that it was uncontroverted that the evidence

reflective of [Appellant’s] state of mind was his own testimony and that of

[Robinson], who both stated unequivocally that [Appellant’s] actions were




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the product of confusion and not a knowing intent to falsify information?”

Appellant’s Brief at 5.

      We set forth our well-settled standard of review for a challenge to the

sufficiency of the evidence to sustain a conviction. “[W]e must determine

whether the evidence, and all reasonable inferences deducible therefrom,

viewed in the light most favorable to the Commonwealth as the verdict

winner, are sufficient to establish all the elements of the offense beyond a

reasonable doubt. Commonwealth v. Kennedy, 789 A.2d 731, 732 (Pa.

Super.   2001).      “The   facts   and   circumstances   established   by   the

Commonwealth need not be absolutely incompatible with the defendant’s

innocence, but the question of any doubt is for the fact finder unless the

evidence is so weak and inconclusive that, as a matter of law, no probability

of fact can be drawn from the combined circumstances.” Id.

      Appellant was convicted of unsworn falsification, which provides the

following, in relevant part: “A person commits a misdemeanor of the third

degree if he makes a written false statement which he does not believe to be

true, on or pursuant to a form bearing notice, authorized by law, to the

effect that false statements made therein are punishable.” 18 Pa.C.S.

§ 4904(b).

      Appellant argues that the “uncontroverted evidence reflecting on

[Appellant’s] state of mind was his own testimony that his actions were the

product of confusion and not a knowing intent to falsify information.”



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Appellant’s Brief at 20. Appellant claims that this situation is similar to that

in Kennedy, supra.

      In that case, Kennedy was charged with violating section 4904 after

answering “no” to certain questions on an application to carry firearms. On

that application, questions 29, 30, and 32 required Kennedy to look at the

back of the form for additional information about criminal charges, but

question 31 did not.    Kennedy was convicted for answering question 31

falsely. Kennedy testified that he mistakenly looked to the back of the form

for question 31, and therefore answered it incorrectly. This Court concluded

that the form had “internal consistencies, which leaves the reader in a

quandary when to examine the back of the document in advance of

answering questions on the face of the application.” 789 A.2d at 734. Thus,

this Court reversed the conviction because Kennedy’s actions were “the

product of a mistake and not the knowing and intentional act of one seeking

to deceive.” Id.

      Here, Appellant testified that he, too, was “confused” about some of

the questions. First, Appellant testified that he was confused about question

30(G).3



3
  Question 30(G) states: “Are you now charged with, or have ever been
convicted of a crime punishable by imprisonment for a term exceeding one
year? This is the maximum sentence you could have received, not the
actual sentence you did receive.” Application for a Pennsylvania License to
Carry Firearms, Commonwealth’s Exhibit 4 (unnecessary capitalization
omitted).


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            Q. Were you asked in the form if you had been convicted
      of a crime that subjected you to a penalty of greater than one
      year of incarceration? Do you remember that question?

            A. Yes. That’s where I was a little confused. I must have
      misread the question. I assumed that I had to have been
      convicted and served over a year in prison.

N.T., 11/19/2015, at 20.

      Appellant also testified he was confused about Question 30(B), which

states: “Have you ever been convicted of an offense under the … Controlled

Substance, Drug, Device and Cosmetic Act (CSDDCA)? (As provided in 18

Pa.C.S. § 6109(e)(1)(ii), any Pennsylvania drug conviction under the

CSDDCA is prohibiting for a license to carry).” Appellant testified that he did

not believe his 2007 situation was relevant because he believed that he

received ARD for that conviction.4 However, Appellant’s testimony about the

2011 charges and 2012 conviction do not reveal any confusion on

Appellant’s part.

           [Commonwealth:] Then moving to 2011, you were before
      Judge Mark Stevens. Do you recall that?

              [Appellant:] Yes.

              [Commonwealth:] You pled guilty to possession of drugs in
      2011.

              [Appellant:] Yes.

N.T., 11/19/2015, at 22-23.


4
  Appellant is correct to some degree, because probation without verdict is
similar to the ARD program, and therefore is not a conviction.



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      Accordingly, Appellant knew he had been convicted of a drug-related

crime and should have answered “yes” to question 30(B).              Because

Appellant answered “no,” we hold the evidence is sufficient to sustain

Appellant’s conviction.   Moreover, Question 30(B) does not implicate the

“internal inconsistencies” found in Kennedy because that question on the

form comes ahead of the only question on the page (Question 30(C)) that

asks the applicant to look at the back of the form for additional information.

Based on the foregoing, we hold the evidence is sufficient to sustain

Appellant’s conviction for unsworn falsification to authorities.5

      Judgment of sentence affirmed.

      Judge Shogan joins.

      Judge Solano files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/9/2017




5
  Because the evidence was sufficient to sustain Appellant’s conviction based
upon his criminal record, we need not reach any issues with respect to the
involuntary mental health commitment.


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