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Pennsylvania State Police v. Swinehart5/7/2003
onviction of such a crime shall be determined in accordance with the law of the jurisdiction in which the proceedings were held. Any conviction which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter, unless such pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms. 18 U.S.C. § 921(a)(20)(emphasis added).
Therefore, in determining whether a person has a disqualifying conviction, the federal courts must look to state law to determine what constitutes a conviction. Furthermore, the law of the state of conviction, not federal law, determines restoration of civil rights unless the state of conviction has not fully restored the right of its citizen to possess firearms, whereupon that citizen shall not be relieved of his federal firearms disability. Id. at 1097-98 (citations omitted) (emphasis added in part and deleted in part).
In Grogan, the applicant sought and obtained an exemption from the trial court, and we held that it had the effect of relieving both state and federal firearms disabilities. In the case sub judice, the parties agree that the state statute, itself, does not list tax fraud as an enumerated offense, but that it was a state crime punishable by up to three years imprisonment. It, therefore, comes within the ambit of Section 922(g) of the Gun Control Act. Thus, we agree with the ALJ that, but for the trial court's order, Swinehart's application would have been correctly denied.
We now come to the question of what effect Judge Allison's order has on this proceeding. The PSP argue that the order has no effect on Swinehart's firearms disability because it fails to grant him any relief. They also assert that they were not a party in the common pleas court proceeding, which involved only the District Attorney and Swinehart. We note that the PSP made a similar argument in Rush, but conceded there that they were without standing to challenge the matter, even if they had been given notice in the context of the admissibility of a previously court-ordered expungement of a certain portion of the applicant's criminal history. Accord Commonwealth v. J.H., 563 Pa. 248, 759 A.2d 1269 (2000) (Supreme Court held that the PSP were without standing to contest the propriety or underlying merits of a lower court expungement order filed under the Criminal History Record Information Act, 18 Pa. C.S. §§ 9101-9183, because they were not an aggrieved party, since they were without "a sufficient interest in the subject matter," and they were not required to be notified until after the entry of the expungement order); see also Pennsylvania State Police v. Paulshock, 789 A.2d 309 (Pa. Cmwlth. 2001) (citing J.H. for the proposition that the PSP could not attack an expungement order in the context of a relief from firearms disability case), petition for allowance of appeal granted, 571 Pa. 711, 812 A.2d 1232 (2002). Further, the Court, in J.H., rejected the notion that forcing the PSP to follow the trial court's expungement order would cause it to violate its statutory mandate.
We hold that the PSP have waived their right to challenge the court's order. Unlike criminal history challenges brought in an expungement context, Section 6105(e) of the Pennsylvania Firearms Act, 18 Pa. C.S. § 6105(e), permits the Commissioner of the PSP to become a party in a case where relief from disability is sought in the trial court. Here, however, the Commissioner did not take advantage of the opportunity to do so and, consequently, did not appeal Judge Allison's order. Therefore, the PSP are estopped
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