Lehman v. PA State Police (Concurring Opinion)
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[J-185-2002] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT MICHAEL S. LEHMAN, Appellant v. PENNSYLVANIA STATE POLICE, Appellee : : : : : : : : : : : : : : : 60 MAP 2002 Appeal from the Order of the Commonwealth Court entered 8-17-2001 at No. 2446 CD 2000, which affirmed the Order of the Office of the Attorney General dated 10-2-2000 ARGUED: December 4, 2002 CONCURRING OPINION MR. JUSTICE NIGRO DECIDED: DECEMBER 30, 2003 As Appellant's only constitutional challenge to 18 U.S.C. § 922(g)(1) that is currently before this Court is whether the statute violates constitutional ex post facto prohibitions and I agree with the majority's ultimate conclusion that the statute does not violate those prohibitions, I am constrained to also agree with the majority that this Court cannot currently afford Appellant any constitutional relief. However, I feel compelled to note that, as an equitable matter, I do not believe that Appellant should be prohibited from possessing a hunting rifle when his only criminal offense of record was that of stealing a $3.38 case of beer over forty years ago and any such crime, if committed today, would not constitute a felony that would give rise to a state or federal disability. See 18 Pa.C.S. §§ 3903(b)(2), 106(b)(8) (together classifying theft of less than $50 as a third degree misdemeanor with potential imprisonment of one year or less.) It simply strikes me as unfair that an individual who stole a case of beer anytime after the enactment of the 1972 Crimes Code is free to possess a hunting rifle today, whereas Appellant, who committed the very same crime, but did so in the even more remote past and has lived a completely crime-free life since, is statutorily prohibited from doing so. [J-185-2002] - 2
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