“SCRATCHED, BUT LEGIBLE” is not “ALTERED” when it comes to firearm serial numbers.

The PA Supreme Court has held that the possession of a firearm with a scratched, but still legible, manufacturer’s number is not 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. 

After a vehicle stop and subsequent search of the vehicle Smith was driving, State Police found 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. 

Smith was arrested and charged with 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 Smith’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. 

The trial court convicted Smith, noted that “the serial number showed clear signs of intentional tampering and wearing of the serial number,” and “the area containing the serial number . . . was clearly abraded.” Therefore, it was the trial court’s opinion that “the serial number had been, at a minimum, altered from its original state.”

Smith appealed to the Superior Court which “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.’ ” 

After Smith appealed to the PA Supreme Court, that Court disagreed with the lower courts, noting that the term “alter,” as used in Section 6110.2, is capable of multiple reasonable interpretations, and, therefore, is ambiguous. As such, the Court looked to the “occasion and necessity for the statute, the mischief to be remedied, and the object to be obtained,” concluding that “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.” And, in cases such as the one at issue, “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.”

Lastly, the Court also concluded that under the rule of lenity, penal statutes must be strictly construed in favor of the person charged with a crime by the government, reiterating that “no individual [should] be forced to speculate, at peril of indictment, whether his conduct is prohibited.” As applied to Smith’s case, this means that “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.” 

Accordingly, because the original manufacturer’s number on Smith’s firearm was, “notwithstanding the scratch marks, still legible to the naked eye,”  the Supreme Court reversed the order of the Superior Court, vacated Smith’s conviction and judgment of sentence for violating Section 6110.2, and remanded the matter to the Superior Court for remand to the trial court for resentencing on the remaining charges. 

CASE LINK:

Commonwealth v. Smith, No. 73 MAP 2018 (Pa. 11/20/2019)

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