A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose
Click for majority OpinionJ-92-2010mo
Click for concurring OpinionJ-92-2010co

The Supreme Court of Pennsylvania has decided the appeal of COMMONWEALTH of Pennsylvania v. Mark Brooks CLEGG, Appellant, No. 18 MAP 2010, 2011 WL 3570056 (Aug. 16, 2011), an appeal from an Order of the Superior Court, 984 A.2d 1009, No. 1722 MDA 2008, reversing and remanding an Order of the Perry County Court of Common Pleas, Criminal Division, at No. CP–50–CR–133–2008. The Justices were CASTILLE, SAYLOR, EAKIN, BAER, TODD, McCAFFERY, and ORIE MELVIN. The Opinion was written by Justice BAER.

The Appellant possessed a firearm and had a prior conviction for attempted burglary. The Uniform Firearms Act, 18 Pa.C.S. § 6105, prohibits an individual from possessing a firearm if he has been previously convicted of an offense set forth in the statute as a “qualifying offense”. In this case the Court determined that attempted burglary is not a qualifying offense.

Section 6105 provides, in relevant part:

§ 6105. Persons not to possess, use, manufacture, control, sell or transfer 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.

(b) Enumerated offenses.—The following offenses shall apply to subsection (a):

[38 listed offenses, including]

Section 3502 (relating to burglary).

Importantly, § 3502 does not define burglary in a way that would also include attempted burglary. Thus the Superior Court’s order was reversed, and the trial court’s order dismissing the § 6105 charge was reinstated.

Mr. Chief Justice Castille, Mr. Justice Saylor, Madame Justice Todd and Mr. Justice McCaffery joined the Opinion.


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