Com. v. Bennet, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

JOSEPH PATRICK BENNETT : No. 516 WDA 2022

Appeal from the Judgment of Sentence Entered April 11, 2022

In the Court of Common Pleas of Washington County Criminal Division at

No(s): CP-63-CR-0000396-2020

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JOSEPH PATRICK BENNETT :

:

Appellant : No. 620 WDA 2022

Appeal from the Judgment of Sentence Entered April 11, 2022

In the Court of Common Pleas of Washington County Criminal Division at

No(s): CP-63-CR-0000396-2020

BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY BOWES, J.: FILED: May 16, 2023

Joseph Patrick Bennett (“Bennett”) and the Commonwealth of

Pennsylvania (“Commonwealth”) cross-appeal from the judgment of sentence

of twelve months of probation, which was imposed after the trial court

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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convicted Bennett of materially false written statement, unsworn falsification

to authorities, and statement under penalty, in connection with Bennett’s

attempted purchase of a firearm.1 We affirm.

On July 8, 2019, Bennett sought to purchase a .9mm pistol from Ace

Sporting Goods in Washington County, Pennsylvania. To do so, Bennett was

required to complete two applications, one federal and one state. Bennett

first completed the federal application by filling out Form 4473 from the

Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”). Of relevance to

this appeal, Question 11.c. asked the following:

c. Have you ever been convicted in any court of a felony, or any

other crime for which the judge could have imprisoned you for

more than one year, even if you received a shorter sentence

including probation? (See Instructions for Questions 11.c.)

Commonwealth’s Exhibit 1 (ATF Form 4473, 7/8/19, at 1) (emphasis in

original).

Bennett answered “yes” because in 2005, he had pled guilty to driving

under the influence (“DUI”) and involuntary manslaughter based upon a fatal

vehicular crash. Bennett had received a sentence of thirteen to sixty months

of incarceration for involuntary manslaughter and a concurrent term of forty-

eight hours to six months for DUI. He was deemed eligible for boot camp and

served approximately eleven months in jail, with the remainder of the

sentence being served on parole.

____________________________________________

1 This Court consolidated the above-captioned appeals as cross-appeals.

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Eric Flint, an employee of Ace Sporting Goods, oversaw Bennett’s

application process. Upon completing ATF Form 4473, Bennett handed it to

Mr. Flint. Although Mr. Flint did not recall the specific application, he testified

to his regular, unwavering practice wherein if an applicant answers yes to a

disqualifying question, such as Question 11.c., he asks the applicant to

confirm the answer. According to Bennett, at this point he explained the 2005

guilty plea to Mr. Flint and, based upon his explanation, Mr. Flint advised him

to change his answer to Question 11.c. to “no.” Mr. Flint, contrarily, testified

that he has never provided advice to an applicant on how to answer a

question, instead always referring applicants to the appendix within ATF Form

4473 for clarification. If an applicant decides to change an answer based upon

an initial misreading of the question or instructions, Mr. Flint testified that he

will advise the applicant to initial and date the change. Ultimately, Bennett

changed his answer to Question 11.c. to “no” and initialed and dated the

change. Using the answers from ATF Form 4473, Mr. Flint completed the state

application, Form SP 4113. After submitting the forms to the Pennsylvania

State Police (“PSP”) Instant Check System, Bennett’s application was denied.

As a result, no sale occurred.

Approximately five months later, Bennett was charged with materially

false written statement, unsworn falsification to authorities, and statement

under penalty. He proceeded to a nonjury trial and, after taking the matter

under advisement, the trial court convicted Bennett of all three charges. On

April 8, 2022, the trial court held a sentencing hearing, wherein it had the

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benefit of a pre-sentence investigation (“PSI”) report and five character

witnesses who testified on Bennett’s behalf. The court sentenced Bennett to

concurrent sentences of twelve months of probation at each count, with the

first six months of his probation for materially false written statement to be

served on electronic home monitoring (“EHM”).

Both the Commonwealth and Bennett filed post-sentence motions for

relief. The Commonwealth filed a motion to modify sentence alleging that the

court improperly sentenced Bennett below the sentencing guidelines for his

conviction of materially false written statement without proper justification.

Bennett sought relief in the form of judgment of acquittal as to his conviction

for materially false written statement based upon the Commonwealth’s failure

to prove that the firearm sought to be purchased had been moved in interstate

commerce. Additionally, Bennett argued that the evidence presented did not

support a finding of guilt as to any of the charges, and that the trial court

erred in sustaining a hearsay objection lodged by the Commonwealth.

On May 2, 2022, the Commonwealth filed a notice of appeal to this

Court.2 On May 3, 2022, the trial court denied both post-sentence motions.

____________________________________________

2 “A notice of appeal filed after the announcement of a determination but

before the entry of an appealable order shall be treated as filed after such

entry and on the day thereof.” Pa.R.A.P. 905. Therefore, we consider the

Commonwealth’s appeal as if filed the same day the trial court denied the

post-sentence motions, May 3, 2022.

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Thereafter, Bennett timely filed a notice of appeal. 3 The trial court did not

order the Commonwealth or Bennett to file concise statements pursuant to

Pa.R.A.P. 1925(b). Similarly, the trial court did not issue a Rule 1925(a)

opinion, instead relying upon its May 3, 2022 opinion and order disposing of

the parties’ post-sentence motions. Bennett raises the following issues for

our consideration:

I. Whether the Commonwealth failed to introduce sufficient

evidence to establish Appellant’s guilt for the offense of

Materially False Written Statement, 18 Pa.C.S.

§ 6111(g)(4)(ii), where it did not establish that Appellant

intentionally or knowingly made a false written statement

and failed to introduce sufficient evidence to establish

Appellant’s guilt for the offense of Unsworn Falsification to

Authorities, 18 Pa.C.S. §§ 4904(a)(1) and 4904(b), and

where it did not establish that Appellant either intended to

mislead a public servant or intentionally or knowingly made

a false statement which he did not believe to be true?

II. Whether the evidence was insufficient on all charges where

the Commonwealth failed to prove that the handgun that

was the subject of the attempted purchase was moved in

interstate or foreign commerce rendering 18 U.S.C. § 922

(the provision related to the question alleged to have been

falsely answered) inapplicable, and Appellant is not

otherwise precluded from owning or possessing a firearm

under Pennsylvania law?

____________________________________________

3 Bennett did not designate his appeal as a cross-appeal of the

Commonwealth’s appeal. Before this Court, however, Bennett asked this

Court to consolidate the appeals. This Court issued a rule to show cause order

as to whether Bennett’s appeal was a cross-appeal and, assuming that being

the case, whether the parties objected to Bennett being designated as the

Appellant/Cross-Appellee and the Commonwealth as the Appellee/Cross-

Appellant. Bennett confirmed the cross-appeal status of his appeal and

neither party objected to the proposed designations. Therefore, we

consolidated the two appeals as cross-appeals and so designated the parties.

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III. Whether 18 U.S.C. § 922(g)(1) is unconstitutional as

applied rendering Appellant’s prior involuntary

manslaughter conviction a non-disqualifying offense and

rendering his alleged false statement on the ATF form 4473

immaterial and not made with intent to mislead a public

servant?

IV. Whether the trial court erred in precluding as impeachment

evidence testimony of David Pegher and Appellant,

regarding statements and instructions given by Eric Flint to

change Appellant’s answer on ATF form 4473, on the

erroneous basis that the testimony was hearsay, where Flint

claimed that he would never instruct a person to change his

answer and the testimony not being offered for the truth of

the matter asserted by Flint?

Bennett’s first brief at 9-10.

For its part, the Commonwealth sets forth the following issues for our

review:

I. Should Appellant’s conviction be affirmed where adequate

record evidence supports it, the Second Amendment

argument is meritless and waived, and the impeachment

evidence was admitted at trial?

II. Did the sentencing court abuse its discretion by imposing a

sentence that was below the mitigated range of the

sentencing guidelines and inconsistent with the Sentencing

Code where it relied upon irrelevant and impermissible

factors, i.e., where the court (a) improperly questioned the

policy behind federal criminal firearms legislation; (b)

improperly discounted the seriousness of the state offenses

of which Appellant was convicted in contravention of state

law and the sentencing guidelines; (c) improperly

considered it mitigating that Appellant showed no remorse

and gave Appellant double credit for his lack of criminal

history; and (d) failed to cite valid reasons for deviating

from the guidelines and interjected its own sense of justice?

Commonwealth’s brief at 14 (capitalization altered).

Sufficiency of the Evidence – Mens Rea

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We begin with Bennett’s first sufficiency challenge, which we consider

within the following legal parameters. “In reviewing a challenge to the

sufficiency of the evidence, we 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) (citation omitted). We

observe that “[t]he facts and circumstances established by the

Commonwealth need not be absolutely incompatible with the defendant’s

innocence[.]” Id. Rather, any question of “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.

(citation omitted).

Bennett challenges the sufficiency of the evidence for the mens rea

element as to all three of his convictions. With regard to subsection (g) of

materially false written statement for which Bennett was convicted, the Crimes

Code provides:

(4) [a]ny person, purchaser or transferee commits a felony of the

third degree if, in connection with the purchase, delivery or

transfer of a firearm under this chapter, he knowingly and

intentionally:

....

(ii) makes any materially false written statement, including

a statement on any form promulgated by Federal or State

agencies[.]

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18 Pa.C.S. § 6111(g).

Section 4904, which governs his unsworn falsification to authorities and

statement under penalty convictions, provides in pertinent part as follows:

(a) In general.--A person commits a misdemeanor of the second

degree if, with intent to mislead a public servant in performing his

official function, he:

(1) makes any written false statement which he does not

believe to be true. . . .

(b) Statements “under penalty”.--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. The Crimes Code further provides as follows regarding the

relevant kinds of culpability:

(1) A person acts intentionally with respect to a material element

of an offense when:

(i) if the element involves the nature of his conduct or a

result thereof, it is his conscious object to engage in conduct

of that nature or to cause such a result; and

(ii) if the element involves the attendant circumstances, he

is aware of the existence of such circumstances or he

believes or hopes that they exist.

(2) A person acts knowingly with respect to a material element of

an offense when:

(i) if the element involves the nature of his conduct or the

attendant circumstances, he is aware that his conduct is of

that nature or that such circumstances exist; and

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(ii) if the element involves a result of his conduct, he is

aware that it is practically certain that his conduct will cause

such a result.

....

18 Pa.C.S. § 302(b).

According to Bennett, the evidence presented did not establish that he

intentionally or knowingly answered Question 11.c. falsely. See Bennett’s

brief at 24. Rather, Bennett maintains “that he did not intend to defraud

anyone and was confused by the question at issue.” Id. at 23 (citation

omitted). He further claims that the evidence was insufficient because it

equally supported a finding that he was confused by the question. In support,

Bennett relies on Kennedy, supra, and Commonwealth v. Bachner, 240

A.3d 925 (Pa.Super. 2020) (non-precedential decision). The Commonwealth,

on the other hand, finds those cases distinguishable and contends that the

evidence established Bennett’s mens rea. See Commonwealth’s brief at 30.

We begin with a discussion of Kennedy and Bachner. In Kennedy,

the appellant challenged the sufficiency of the evidence to support his

conviction of unsworn falsification to authorities in connection with the

Pennsylvania application in use at that time. When completing that form,

Kennedy answered the following questions in the negative:

29. Have you ever been convicted of a crime enumerated in

Section 6106(b), or do any of the conditions under Section

6105(c) apply to you? (READ INFORMATION ON BACK PRIOR TO

ANSWERING). ___ Yes ___ No

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30. Are you now charged with, or have you ever been convicted

of a crime punishable by imprisonment for a term exceeding one

year? (This does not include federal or state offenses pertaining

to antitrust, unfair trade practices, restraints of trade, or

regulation of business; or state offenses classified as

misdemeanors and punishable by a term of imprisonment not to

exceed two years). (READ BLOCK 30 INFORMATION ON BACK

PRIOR TO ANSWERING). ___ Yes ___ No

31. Have you ever been convicted of an offense under the act of

April 14, 1972 (P.L. 233, No. 64), known as The Controlled

Substance, Drug, Device and Cosmetic Act? ___ Yes ___ No

32. Are you an individual who, within the past ten years, has been

adjudicated a delinquent for a crime enumerated in Section 6105

(REFER TO INFORMATION ON BACK), or for an offense under The

Controlled Substance, Drug, Device, and Cosmetic Act? ___ Yes

___ No

Kennedy, supra at 733. After submitting the application, the reviewing

authorities learned that Kennedy had been convicted of possessing a small

amount of marijuana and drug paraphernalia.

At his jury trial, Kennedy testified that he answered the questions to the

best of his knowledge and that the erroneous answer was a mistake. Id. at

734 (“His actions were the product of ‘confusion’ over when to reference the

back of the application in answering the questions.”). Specifically,

his response to Question 31 was influenced by the content of

Question 29, which directed him to the back of the application

before answering whether he had been convicted of any of the

thirty-five offenses under [§] 6105(b) or [§] 6105(c), which

prohibits licensure when, inter alia, a person has been convicted

of an offense under The Drug Act “punishable by a term of

imprisonment exceeding two years.”

[Kennedy] interpreted [§] (c)(2) of [§] 6105 to be applicable to

Questions 29 and 31. In other words, because [Kennedy] had

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not been convicted of anything that carried a term of over two

years, he answered no to Question 31.

Id. at 734 (emphasis in original).

On appeal, this Court found the applicable state form “to contain internal

inconsistencies, 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.” Id. Moreover, we found it “uncontroverted that the only

evidence reflective of the state of mind of the accused was generated by

[Kennedy], who stated unequivocally his actions were the product of confusion

and not a knowing intent to falsify information.” Id. Thus, the evidence of

Kennedy making a written false statement while not believing it to be true was

“so weak and inconclusive that, as a matter of law, no probability of fact can

be drawn from the combined circumstances.” Id. (citation omitted).

Accordingly, we vacated Kennedy’s judgment of sentence and reversed his

conviction because we concluded that “the jury ignored the unrefuted account

that [Kennedy’s] act of filling out [the form] was the product of a mistake and

not the knowing and intentional act of one seeking to deceive.” Id. (citation

and footnote omitted).

In Bachner, the defendant challenged the sufficiency of the evidence

to sustain his conviction for unsworn falsification to authorities in connection

with his completing the federal and state applications to purchase a firearm.

On ATF Form 4473, Bachner answered Question 11.c. “no,” but also wrote a

question mark and his initials next to the question. Bachner, supra (non-

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precedential decision at 2-3). On the state application, Bachner answered the

following in the negative:

[Question 32:] ARE YOU NOW CHARGED WITH, OR HAVE YOU

EVER BEEN CONVICTED OF A CRIME PUNISHABLE BY

IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR? THIS IS

THE MAXIMUM SENTENCE THAT YOU “COULD HAVE RECEIVED,”

NOT THE ACTUAL SENTENCE YOU DID RECEIVE. (THIS DOES NOT

INCLUDE FEDERAL OR STATE OFFENSES PERTAINING TO

ANTITRUST, UNFAIR TRADE PRACTICES, RESTRAINTS OF TRADE,

OR REGULATION OF BUSINESS; OR STATE OFFENSES

CLASSIFIED AS MISDEMEANORS AND PUNISHABLE BY A TERM OF

IMPRISONMENT NOT TO EXCEED TWO YEARS.) (READ

INFORMATION ON BACK PRIOR TO ANSWERING.)

Id. (non-precedential decision at 3). In 2013, Bachner had been convicted of

bribery and official oppression, and sentenced to three years of probation.

Thus, he should have answered yes to both questions. His application was

denied, and his appeal of that denial was to no avail. Thereafter, he was

charged with unsworn falsification to authorities and materially false written

statement based on the answers he submitted on the forms.

Bachner proceeded to a bench trial, where the Commonwealth

presented its entire case by stipulation to the forms, Bachner’s 2013

conviction, and the investigating officer’s affidavit of probable cause. Bachner

was the only witness at trial, and he testified to his confusion regarding the

questions and the impact of his convictions on his gun rights. The trial court

found Bachner guilty of unsworn falsification to authorities but not guilty of

materially false written statement.

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On appeal, we noted that due to Bachner’s felony bribery conviction, it

was undisputed that he should have answered “yes” to the above questions.

As it pertained to Bachner’s sufficiency challenge, “[t]he only issue for our

review therefore [wa]s whether the evidence was sufficient to establish that

Appellant did not believe his answers to be true when he answered ‘No’ to

both questions.” Id. (non-precedential decision at 11). In conducting this

review, we found Kennedy, supra, analogous.

[A]s with the appellant in Kennedy, 789 A.2d at 734, [Bachner]

was the sole witness, meaning that it was also “uncontroverted”

in the current case “that the only evidence of the state of mind of

the accused was generated by Appellant, who stated

unequivocally his actions were the product of confusion and not a

knowing intent to falsify information.” The Commonwealth

presented no direct evidence of [Bachner’s] intent or belief in

answering the questions, whereas [Bachner] testified that he

thought that his answers were “appropriate[.]” N.T. at 14.

Bachner, supra (non-precedential decision at 13-14). Bachner’s confusion

was evinced not only by his trial testimony, but by contemporaneously writing

a question mark next to Question 11.c. and, on cross-examination regarding

his comprehension of the language of 11.c., repeatedly stating that he did not

understand. Id. Additionally, we found that

[Bachner] had several reasons for answering “No” to ATF Form

Question 11.c. and PSP Form Question 32 in good faith. First, his

firearms license had been renewed subsequent to his 2013

convictions; in fact, the sheriff’s office had sent the renewal form

to him. Thus, he had no reason to believe that his 2013

convictions disqualified him from anything relating to firearms or

that he would not have the same rights as a normal citizen again.

Second, [Bachner] testified that he never knew what the penalty

could have been for bribery and official oppression, that no one

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ever told him, and that he couldn’t find it anywhere. If he

genuinely did not know that his convictions could have resulted in

imprisonment for more than one year—and the Commonwealth

presented no evidence challenging [Bachner’s] assertion, then his

answers to ATF Form Question 11.c. and PSP Form Question 32,

while misguided, were not deceitful.

Id. (non-precedential decision at 14) (cleaned up).

Thus, as in Kennedy, this Court concluded that the trial court had

“ignored the unrefuted account that [Bachner’s] incorrect answers on the ATF

Form and the PSP Form were the product of a mistake and not the knowing

and intentional act of one seeking to deceive.” Bachner, supra (non-

precedential decision at 15). We observed that he “may have been negligent

in answering—or failing to research how best to answer—ATF Form Question

11.c. and PSP Form Question 32, but there is insufficient evidence to support

a finding beyond a reasonable doubt that [Bachner] believed his written false

statements to be untrue.” Id. Therefore, we vacated his judgment of

sentence and reversed his convictions.

Bennett contends that the underlying case is akin to Bachner,

emphasizing that there was “no testimony to refute Bennett’s testimony that

he was confused about the question” and, as in Bachner, “the trial court did

not find Bennett’s testimony to lack credibility.” Bennett’s brief at 26. We

disagree. First, Bennett’s testimony was not unrefuted as the Commonwealth

presented the testimony of Mr. Flint. Moreover, unlike in Bachner where his

firearms license had been renewed following his disqualifying convictions,

there was no evidence that Bennett had been led to believe that he was

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entitled to possess a firearm notwithstanding his conviction. As to the court’s

credibility determinations, we do not have an explicit explanation from the

trial court in this regard, because Bennett did not raise this sufficiency

argument prior to this appeal and the trial court did not order a Rule 1925(b)

statement or author a responsive Rule 1925(a) opinion. While the court’s

credibility determinations are not dispositive given our standard of review, we

nonetheless note that in denying the parties’ post-sentence motions, the trial

court explained that it “hear[d Bennett’s] voice, albeit the [c]ourt found that

the Commonwealth met its burden of proof and did not accept [Bennett’s]

arguments.” Trial Court Order, 5/3/22, at 7 (emphasis added). In other

words, the court found Bennett’s testimony to lack credibility.

Indeed, upon review, we conclude that Bennett’s case is distinguishable

from Kennedy and Bachner, and is instead more akin to Commonwealth

v. Sasse, 226 A.3d 637 (Pa.Super. 2020) (non-precedential decision). Unlike

in Kennedy, the forms in Sasse did not contain internal inconsistencies, and

the evidence established that Sasse intended to provide false information on

the federal and state forms.

The Commonwealth established that Sasse answered “no” on the

ATF and PSP forms when asked whether he was subject to a PFA.

Further, he answered “no” when asked whether he had ever been

convicted of a misdemeanor crime of domestic violence. . . .

Sasse admitted to reading the forms, including the instructions.

Trooper Brown testified that Sasse told him that he believed the

PFA was for two, not three, years, and that he did not believe the

disorderly conduct conviction was a misdemeanor crime of

domestic violence. Sasse testified to the same at trial. However,

the jury heard testimony and received evidence establishing that

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the PFA was for three, not two years, and that Sasse was

convicted of disorderly conduct as a misdemeanor, and that he

knew the conduct underlying the conviction included fighting with

his former spouse. Such evidence is sufficient to establish that

Sasse intended to provide false information and that he knew the

answers to be false.

Sasse, supra (non-precedential decision at 19-20) (cleaned up).

In the instant case, Bennett testified that at the time he filled out ATF

Form 4473, he was aware that he had been sentenced to thirteen to sixty

months of incarceration for his misdemeanor conviction of involuntary

manslaughter. See N.T. Nonjury Trial, 6/10/21, at 159. Although he was

released early, he knew that he was on parole for the remainder of the sixty-

month sentence and that if he violated his parole he could spend the

remainder of his sentence in jail. Id. at 187-88. In fact, explicitly based upon

this knowledge that he could have and in fact did receive a sentence greater

than one year, Bennett initially correctly answered Question 11.c. “yes.” Id.

at 167. Moreover, on cross-examination, Bennett acknowledged that he

understood the question. Id. at 179.

Bennett attempted to impugn his understanding of Question 11.c. by

testifying that he believed the question was confusing because he did not have

a felony, he did not know his maximum sentence, and he was not sure if a

guilty plea counted as a conviction. Id. at 175, 179. According to Bennett,

after he turned in the form, Mr. Flint asked why he had answered “yes” to

Question 11.c. Id. at 168. Then, “based off of what I told him that I didn’t

have a felony and the sentence was basically – the time I served was

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less than a year that I could cross that off and change the answer to no and

initial, and then, I believe, he said something along the line of, like, we’ll send

it in and see what comes back[.]” Id. at 170 (emphasis added). Finally, he

maintains that he did not intend to defraud anyone and that he relied on

Mr. Flint in changing his answer because Mr. Flint had more experience with

ATF Form 4473 and the sale of firearms. Id. at 174, 176, 184.

However, Bennett’s version of events was not unrebutted, as it was in

Kennedy and Bachner. We conclude that an examination of the entirety of

the evidence, viewed in the light most favorable to the Commonwealth,

supported Bennett’s convictions. In particular, the Commonwealth

established that Bennett understood Question 11.c. and answered it honestly

and correctly at the outset because he could have and did receive a sentence

of greater than one year. It was only after he turned ATF Form 4473 into

Mr. Flint, who asked Bennett to confirm his disqualifying answer of “yes” to

Question 11.c., that Bennett changed his answer to “no.” Mr. Flint testified

that he never advised customers how to answer the forms, but instead would

confirm any disqualifying answers, refer customers to the appendix if they had

any questions, and advise them on how to change their answer if they wanted

to do so. Pursuant to this evidence, it was Bennett’s choice to change his

answer, despite knowing that he in fact had received a sentence of greater

than one year. The change does not evince confusion, but supports an intent

to deceive.

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Moreover, even if the trial court had credited Bennett’s testimony that

Mr. Flint did advise him to change his answer, that does not negate Bennett’s

mens rea. Indeed, Mr. Flint purportedly advised Bennett to answer “no” based

upon Bennett’s incorrect and self-serving recitation of his sentence being less

than one year, which is contrary to his testimony of what he understood his

sentence to have been and is belied by the fact that he had answered “yes”

to Question 11.c. in the first place.

Based on the foregoing, we conclude that the evidence was sufficient to

sustain Bennett’s convictions and that he answered “no” to Question 11.c. on

ATF Form 4473 when he knew the correct answer to be “yes,” to defraud the

system in applying to purchase a firearm. Appellant’s first sufficiency

challenge merits no relief.

Sufficiency of the Evidence – Interstate Commerce

Bennett next argues that the Commonwealth failed to sustain its burden

as to all charges because it did not establish that the firearm Bennett sought

to purchase “had a nexus with interstate or foreign commerce” and he was

not otherwise prohibited from possessing or purchasing a firearm pursuant to

18 Pa.C.S. § 6105. See Bennett’s brief at 27. Bennett relies on Navarro v.

Pennsylvania State Police, 212 A.3d 26 (Pa. 2019), in support. See

Bennett’s brief at 28. In Navarro, our Supreme Court held that when

declining to return a firearm on the basis of 18 U.S.C. § 922(g), the PSP must

establish that the firearm had moved in interstate or foreign commerce.

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Critically, Navarro concerns what the Commonwealth must prove before

denying access to a firearm, not what it must prove to sustain convictions

stemming from an applicant lying on ATF Form 4473 to purchase a firearm.

Simply put, Bennett ignores the critical fact that none of the crimes for which

he was convicted contains such an element. Therefore, the holding in

Navarro is not remotely pertinent.

Rather, Bennett’s qualms with ATF Form 4473, and the requirement of

an interstate commerce nexus when an applicant is otherwise not prohibited

from possessing a firearm pursuant to § 6105, is really a challenge to the

PSP’s conclusion that Bennett was disqualified from purchasing a firearm. See

Trial Court Order, 5/3/22, at 16 (“The result of [Bennett’s] application is

immaterial to the crimes for which he was convicted. Again, this argument is

better fit for an appeal of the denial to purchase a firearm, not a conviction

for making false statements on the application to do so.”). As noted, Bennett

did not appeal the denial of his firearm application and the propriety of the

basis for that denial simply is not before us. Accordingly, he is not entitled to

relief on this claim.

Unconstitutionality of 18 U.S.C. § 922(g)(1) as applied to Bennett

Next, Bennett argues that § 922(g)(1) is unconstitutional as applied to

him and violative of his Second Amendment rights, such that his prior

conviction would not be a disqualifying offense and, as a consequence, his

false statement on ATF Form 4473 would not be material or made with intent

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to mislead a public servant. See Bennett’s brief at 30, 32. The

Commonwealth urges us to find Bennett’s constitutional arguments waived for

failure to preserve them at trial and, moreover, for failing to notify the United

States Attorney General of the challenge. See Commonwealth’s brief at 38-

39. Bennett did not respond to the Commonwealth’s waiver argument in his

second brief. Upon review, we agree with the Commonwealth and conclude

that Bennett has waived this issue by failing to preserve it at trial.4 See

Commonwealth v. Little, 903 A.2d 1269, 1272 (Pa.Super. 2006) (“While a

claim that a statute is unconstitutional certainly may result in a court’s refusal

to apply the statute as written, such a claim must be raised and preserved at

trial; it cannot be raised for the first time on appeal. Pa.R.A.P. 302(a).”).

Hearsay

Finally, Bennett argues that “[t]he trial court erred in sustaining the

Commonwealth’s hearsay objection to testimony of David Pegher where the

statement was not being introduced for its truth and was admissible

impeachment evidence” against Mr. Flint. Bennett’s brief at 33-34. We review

this claim mindful of the following.

____________________________________________

4 Even if not waived, we observe that, once again, whether Bennett should

be disqualified from owning a firearm is not an issue before this Court. As

aptly observed by the Commonwealth, Bennett “could have honestly answered

Question 11.c. of the ATF Form and then sued to vindicate his asserted Second

Amendment rights once he was denied a firearm. [Bennett] instead chose to

attempt to game the system and has waited until now, after that attempt

failed and he stands convicted to raise his purported rights before this Court.”

Commonwealth’s brief at 42.

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The admissibility of evidence is a matter addressed solely to the

discretion of the trial court, and may be reversed only upon a

showing that the court abused its discretion. For there to be abuse

of discretion, the [trial] court must have ignored or misapplied the

law, exercised its judgment for reasons of partiality, prejudice,

bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Johnson, 179 A.3d 1105, 1119-20 (Pa.Super. 2018)

(cleaned up).

As our Supreme Court has summarized: “Hearsay is a statement, other

than one made by the declarant while testifying at the trial or hearing, offered

in evidence to prove the truth of the matter asserted. Hearsay evidence is

not admissible except as provided by the Pennsylvania Rules of Evidence, [the

Pennsylvania Supreme] Court, or by statute.” Commonwealth v. McCrae,

832 A.2d 1026, 1034 (Pa. 2003) (cleaned up). “An out-of-court statement is

not hearsay when it has a purpose other than to convince the fact finder of

the truth of the statement.” Commonwealth v. Busanet, 54 A.3d 35, 68

(Pa. 2012).

Here, Bennett sought to have Mr. Pegher testify to the statements he

heard Mr. Flint make to Bennett after Bennett initially turned in ATF Form

4473. As detailed infra, the Commonwealth objected on hearsay grounds,

Bennett claimed the testimony was admissible pursuant to the present-sense-

impression exception, and the trial court sustained the objection. On appeal,

Bennett argues for the first time that the evidence was admissible to impeach

Mr. Flint’s testimony “that he would never advise anyone to change their

answer when completing ATF Form 4473[.]” Bennett’s brief at 34. As Bennett

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solely sought to introduce the statements as impeachment evidence and not

for the truth of the matter asserted, he contends that the statements were

not hearsay and were instead admissible. Id. In other words, having

abandoned the present-sense-impression exception asserted at trial, Bennett

now contends that he did not seek to admit Mr. Flint’s statements through

Mr. Pegher’s testimony for their underlying truth, but “to establish that the

statements by Flint were made.” Id. at 35. “Had Pegher been allowed to

testify to the specific contents of Flint’s conversation with Bennett, it would

have shown that Bennett was being truthful and significantly undermined

Flint’s testimony.” Id. at 37.

The trial court, in rejecting this argument in Bennett’s post-sentence

motion, observed that Bennett was permitted to testify to the statements

purportedly made by Mr. Flint. See Trial Court Order, 5/3/22, at 10. The

Commonwealth, in its brief, observes that Bennett did not offer the testimony

as impeachment evidence at trial, but instead asked a “question which called

for details of a conversation between two other individuals that had spurious

impeachment value.” Commonwealth’s brief at 46. Moreover, the

Commonwealth emphasizes that “the relevant impeachment evidence was

admitted” and “[t]he trial court did not sustain the objection with respect to

testimony regarding whether Mr. Flint directed [Bennett] to change his answer

on the ATF Form.” Id.

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At trial, the following exchange occurred during Mr. Pegher’s direct

examination:

[Defense counsel]: Were you present when [Bennett] filled

[out ATF Form 4473]?

[Mr. Pegher]: I was in the direct vicinity, yes.

[Defense counsel]: And what occurred?

[Mr. Pegher]: From my recollection of this, when

[Bennett] turned the form back in, [Mr.

Flint] had done a quick inspection of the

form and had noted a specific section

where he had a question about one of

[Bennett’s] answers on the form.

....

[Counsel approached with Form 4473.]

[Defense counsel]: I’m going to show you what has been

previously marked as Commonwealth’s

Exhibit 1. Did you have an opportunity to

see that form on July 8, 2019?

[Mr. Pegher]: Aside from, you know, [Bennett] filling

out the form and handing it to him, I

didn’t directly inspect the form myself, no.

[Defense counsel]: Okay. But there was some question about

the way he answered one of the

questions, and did you hear what the

confusion and/or issue was about?

[Mr. Pegher]: Yes, I did.

[Defense counsel]: Okay. What was discussed between Mr.

Bennett and Mr. Flint?

[Mr. Pegher]: So there was a discussion about one of the

answers involving [Bennett’s] criminal

background history, and after that there

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was an at-length discussion between [Mr.

Flint] and [Bennett] about the specifics.

[Defense counsel]: I want you to give us specifics of what you

heard and what was said by Mr. Flint and

Mr. Bennett during this discussion.

[Mr. Pegher]: Okay. What I understand is that

[Bennett] had given him a detailed

background about the incident that

occurred to him when he was 19 years of

age –

[Objection sidebar]

[Commonwealth]: And I’m going to object again, Your

Honor. This is all hearsay. This is now

what Mr. Bennett is saying to the

salesperson. This is exactly why we’re

here today. Mr. Bennett can testify to

what he said –

[Defense counsel]: Well, then, you know what, I’ll ask Mr.

Pegher to step down. I’ll put Mr. Bennett

on, and then I’ll call him.

The Court: Sure.

[Commonwealth]: Well, I’m still going to object to him –

[Defense counsel]: It’s a corroborate witness.

The Court: Hold on, gentlemen. One at a time,

please.

[Commonwealth]: Your Honor, I’m not asking to waste time.

If Your Honor is going to allow him to

testify, I am lodging an objection, but if

you’re going to allow him to testify

differently if he is called after Bennett as

opposed to before, then I’d rather –

The Court: Well, to the extent that – let’s take

another step down the road. To the

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extent that Mr. Bennett is here and, I

suppose, he is going to testify, that’s fine.

[Defense counsel]: He’s an eyewitness.

The Court: He’s an eyewitness. But not what Mr. Flint

said. That’s hearsay.

[Defense counsel]: Mr. Flint has already testified. He’s

allowed to undermine and testify. Mr.

Flint’s indication is I don’t remember

anything. He was available. He’s

testified. This is an eyewitness to their

witness’s own statements. He’s permitted

to testify.

[Commonwealth]: But the hearsay rule is an exception to the

eyewitness – if you’re an eyewitness, it’s

relevant testimony. You can testify to

what you saw. The exception being what

you heard. What kind of assertions were

made in your presence because the policy

is that we don’t want people to testify to

what other persons said. Those persons

can come and can testify to their

recollection. What Mr. Flint said is

absolutely hearsay. I think what Mr.

Bennett said is also, for this witness to

testify –

[Defense counsel]: I just want to make sure that this is clear

on the record. It’s the Commonwealth’s

assertion that an eyewitness is not

permitted to testify in contradiction to

what their own witness testified to. That’s

their assertion today.

[Commonwealth]: Hearsay is not admissible without an

exception. What’s the exception?

The Court: Right. What’s the exception.

[Defense counsel]: We’ll say present sense impression. He’s

listening to what Mr. Flint is describing

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and telling Mr. Bennett to do upon being

proffered a form with a question answered

yes if he knows will preclude the sale of a

firearm.

The Court: To the extent what Mr. Flint maybe

directed him to do, yes, but not word for

word. I won’t allow word for word.

[Turning back to the direct examination.]

[Defense counsel]: What did Mr. Flint direct Mr. Bennett to do

after submission of the form with the

question 11c answered yes?

[Mr. Pegher]: After the discussion the direction of [Mr.

Flint] was to amend an answer on the

form, initial next to it and date the form

and to turn it back in so that he could run

it through the criminal background check

system.

....

[Mr. Pegher]: The ultimate result that came back was

that he was denied.

[Defense counsel]: Okay. But you heard – or you were

present when Mr. Flint directed Mr.

Bennett to change the answer?

[Mr. Pegher]: I was, yes.

[Defense counsel]: Okay. Did Mr. Bennett explain any

confusion or state that he was confused

by the question?

[Mr. Pegher]: He did, yes.

[Defense counsel]: And he gave, your indication is, a specific

description of the incident that occurred in

2005 in regard to his car accident?

[Mr. Pegher]: Yes, he did. A detailed explanation of his

particular situation, what he was charged

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with, things of that nature, and asked for

clarification about what that meant in

relation to the question on the form.

[Defense counsel]: And the chronology of this is the form is

handed in. It’s then given back to Mr.

Bennett because he’s not going to pass.

This discussion occurs. He’s directed to

change the answer, and then he’s denied.

[Mr. Pegher]: That is correct.

N.T. Nonjury Trial, 6/10/21, at 130-137. Subsequently, during Bennett’s

direct examination, he relayed specific details regarding the conversation he

had with Mr. Flint and Mr. Flint’s direction to change his answer to “no” for

Question 11.c. See id. at 168-170.

As discussed supra, Bennett contends on appeal that the trial court

should have admitted the testimony as impeachment evidence against

Mr. Flint. However, a review of the certified record reveals that Bennett

argued the testimony was admissible pursuant to the present-sense-

impression exception to the rule against hearsay, not that it was non-hearsay

admissible as impeachment evidence. Since Bennett did not timely raise the

impeachment issue during the trial, he has waived that claim on appeal. See

Commonwealth v. Mollett, 5 A.3d 291, 311 (Pa.Super. 2010); Pa.R.A.P.

302(a) (“Issues not raised in the trial court are waived and cannot be raised

for the first time on appeal.”).

Even if not waived, we agree with the Commonwealth and the trial court

that any error in sustaining the objection was harmless because the court in

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fact did hear the alleged conversation between Bennett and Mr. Flint both

through Mr. Pegher’s testimony, as outlined above, and in more detail during

Bennett’s testimony. Simply stated, Bennett was permitted to impeach

Mr. Flint’s testimony that he did not advise Bennett as to how to answer

Question 11.c. during both Mr. Pegher’s testimony and his own. That the

court did not credit this version of events does not negate the fact of its

admission. Accordingly, even if not waived, Bennett is not entitled to relief on

this claim.

Discretionary Aspects of Sentencing

Turning to the Commonwealth’s appeal, it argues that the trial court

abused its discretion when it sentenced Bennett below the sentencing

guidelines and relied on impermissible factors. See Commonwealth’s brief at

49. Such a claim challenges the discretionary aspects of Bennett’s sentence,

which we review pursuant to the following legal principles.

It is well-settled that, with regard to the discretionary aspects of

sentencing, there is no automatic right to appeal.

An appellant challenging the discretionary aspects of a sentence

must invoke this Court’s jurisdiction by satisfying a four-part test

. . . to determine: (1) whether the appellant has filed a timely

notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the

issue was properly preserved at sentencing or in a motion to

reconsider and modify sentence, see Pa.R.Crim.P. 720; (3)

whether the appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f);

and (4) whether there is a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code, 42

Pa.C.S. § 9781(b).

The determination of what constitutes [a] substantial question

must be evaluated on a case-by-case basis. A substantial

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question exists only when the appellant advances a colorable

argument that the sentencing judge’s actions were either: (1)

inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie

the sentencing process.

Commonwealth v. McCain, 176 A.3d 236, 240 (Pa.Super. 2017) (cleaned

up).

Here, the Commonwealth filed a timely notice of appeal, preserved the

issue in a post-sentence motion for reconsideration, and included a Rule

2119(f) statement within its brief. In its Rule 2119(f) statement, the

Commonwealth argues that the trial court: (1) “deviated from the sentencing

guidelines such that the sentence imposed is excessively lenient and

unreasonable[;]” (2) failed to provide a contemporaneous written statement

of reasons for the deviation; and (3) the reasons given at the sentencing

hearing were “inadequate and irrelevant.” Commonwealth’s brief at 26. More

specifically, the Commonwealth contends that “it was improper for the

sentencing court to . . . consider it mitigating that [Bennett] showed no

remorse, . . . fail to cite valid reasons for deviating from the guidelines, and

interject its own sense of justice.” Id.5 The Commonwealth has raised a

____________________________________________

5 The Commonwealth also argued that the trial court imposed Bennett’s

sentence as a result of improperly questioning the policy of the federal Gun

Control Act, disagreeing with the assigned offense gravity score for materially

false written statement, “improperly discounting the seriousness of the

offenses of which [Bennett] was convicted[,]” and double-counting Bennett’s

lack of criminal history. See Commonwealth’s brief at 56-64. However, the

Commonwealth did not raise these arguments before the trial court and,

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substantial question. See McCain, supra at 241 (holding that the

Commonwealth raised a substantial question where it alleged that McCain’s

sentence failed to protect the public and was an “unreasonable departure from

the mitigated range of the sentencing guidelines”). Having invoked this

Court’s jurisdiction, we turn to the merits.

This Court’s review of a trial court’s sentencing determination is based

upon an abuse of discretion standard. Id. “An abuse of discretion may not

be found merely because an appellate court might have reached a different

conclusion, but requires a result of manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous.” Id. (cleaned up).

The Sentencing Code provides in pertinent part as follows:

[T]he court shall follow the general principle that the sentence

imposed should call for total confinement that is consistent with

[§] 9725 (relating to total confinement) and the protection of the

public, the gravity of the offense as it relates to the impact on the

life of the victim and on the community, and the rehabilitative

needs of the defendant. The court shall also consider any

guidelines for sentencing . . . adopted by the Pennsylvania

Commission on Sentencing[.] . . . In every case where the court

imposes a sentence or resentence outside the guidelines . . . , the

court shall provide a contemporaneous written statement of the

____________________________________________

consequently, they are waived. See Pa.R.A.P. 302(a); Pa.R.Crim.P. 721

Comment (“Under Rule 721, the Commonwealth’s motion for modification of

sentence is optional, as long as any discretionary sentencing issue is properly

preserved at the time sentence was imposed. Before forgoing trial court

review and proceeding with a direct appeal, the attorney for the

Commonwealth must therefore be sure that the record created at the

sentencing proceeding is adequate for appellate review of the issue, or the

issue may be waived.”).

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reason or reasons for the deviation from the guidelines to the

commission, as established under [§] 2153(a)(14) (relating to

powers and duties). Failure to comply shall be grounds for

vacating the sentence or resentence and resentencing the

defendant.

42 Pa.C.S. § 9721(b). As for our review of the trial court’s application of these

principles, § 9781(d) provides that we must consider the following:

(1) The nature and circumstances of the offense and

the history and characteristics of the defendant.

(2) The opportunity of the sentencing court to

observe the defendant, including any presentence

investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d). This Court may conclude that a sentence is

unreasonable based upon a review of the factors set forth in

[§] 9781(d), or based upon a finding that the trial court did not

give proper consideration to the general sentencing standards

stated in [§] 9721(b).

McCain, supra at 241 (cleaned up). Finally, “[i]f the sentencing court

imposes a sentence that deviates significantly from the guideline

recommendations, it must demonstrate that the case under consideration is

compellingly different from the ‘typical’ case of the same offense or point to

other sentencing factors that are germane to the case before the court.”

Commonwealth v. Robertson, 874 A.2d 1200, 1213 (Pa.Super. 2005)

(citation omitted).

Here, the trial court explained its intention to impose a reduced sentence

as follows:

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[Bennett’s attorney] alluded to the fact that these cases are

very problematic, and I would have to agree. I’m not sure if I see

any more cases that are more problematic than cases where

somebody wants to purchase a firearm and they’re rejected, for

whatever reason. It’s a long form. I know many defendants have

said it’s confusing. For whatever reason, there’s no doubt that

there is litigation over these matters.

And I find it very important to note when I was thinking

about crafting a sentence, and of course, taking into consideration

I had today, what was really the intent of this legislation under

the Federal Gun Control Act, which was passed in 1968. And our

United States Supreme Court has actually delivered several

opinions on this. And they say the following, and this is from

Dickerson v. New Banner Institute, 460 U.S. 103 (1983). And

this case actually was overturned, but for other reasons, so it has

nothing [to] do with this. This is a more recent pronouncement.

They say the following: “This followed from the statute’s

plain language and from a legislative history that, as we have

repeatedly observed, makes clear that, ‘Congress sought to rule

broadly to keep guns out of hands of those who have

demonstrated that they may not be trusted to possess a firearm

without becoming a threat to society.’”

And when they passed this law, unlike a somewhat, for lack

of a better term, companion law in the Commonwealth of

Pennsylvania, but when the federal government did this, they did

not specifically list those crimes, which they said are crimes

whereby someone cannot be trusted to possess a firearm without

becoming a threat to society.

They defined it as either a felony, and then it was later

amended for certain reasons, to misdemeanors or crimes where

you could be punished by more than one year. But nevertheless,

the intent was for the purpose I just mentioned, and I find that to

be very important in delivering a decision today.

And so what I’ve learned today, and more than just from

today, . . . is that I do not believe that a standard range sentence

is appropriate here. Because even though I did find that the

Commonwealth met their burden of proof, and that there should

be a conviction, but the sentence under the circumstances that we

have before us today, the goals would not be achieved. Based

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upon the definition as our Supreme Court has found, that is that

they may not be trusted to possess a firearm without becoming a

threat to society. And from what I have seen, that apparent threat

is not present for a standard range sentence.

Mr. Bennett was convicted, due to a crime that occurred

when he was 19 years old. And this, what happened now, is 16

years later. He has lived, at least from all the evidence I can see,

an exemplary life.

Whether Congress wants to make a determination of the

prior crime that he committed as one that falls under the category

that they legislated, it’s interesting that they don’t legislate what

those specific crimes are. It’s a very broad brush, and that is a

bit concerning to this court when it hears about the facts of a

particular defendant. And it’s unlike our state law, which the

legislature has discussed the specific crimes which somebody

would not be eligible for and laid them out.

Today is not the time to debate, and I agree with [the

Commonwealth], the conviction. I did what I had to do based

upon what was presented to me. That’s the consequence of the

trial, and now I have to do what I think is right, based upon what

I read in the PSI, and the arguments I’ve heard today.

And that is, despite the fact that [Bennett] does not believe

that he committed a crime, all defendants are entitled to have

their trial, and just because a jury of 12 persons or a judge

convicts them does not require them to tell me at a sentencing

hearing that they’re sorry or remorseful.

What it does require at this proceeding is that the defendant

respect the law, respect the process. And from what I can tell,

[Bennett] has done that.

I do not believe that, for all of these reasons I’ve stated in

no particular order, but certainly as a whole, that incarceration

serves the purpose whereby they, according to the Supreme

Court, and they, meaning Mr. Bennett, may not be trusted to

possess a firearm without becoming a threat to society. The law

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says he can’t. But the punishment, I don’t think, by incarcerating

achieves anything more than just the conviction.[6]

Nevertheless, I did find him guilty, and [the] following

sentence will be imposed[.]

N.T. Sentencing, 4/8/22, at 60-64 (citations and capitalization altered). In its

opinion denying the Commonwealth’s post-sentence motion, the court further

explained the reasoning for its deviation from the sentencing guidelines:

1. [Bennett] only had a prior record score of 1;

2. The prior record score came from a crime (involuntary

manslaughter) he committed when he was only 19 years of age,

and 15 years had passed since that time until [Bennett] was

charged herein;

3. At the sentencing hearing, it was apparent to the court that

[Bennett] was truly sorrowful and remorseful of his crime that

killed his friend . . . ;

4. [Bennett] has live[d] an exemplary life since being released

from boot camp at a State Correctional Institute. [Bennett has]

been a productive member of society; he completed his college

education and is currently a regional account manager in

southwestern Pennsylvania for Verizon via a series of promotions;

5. The legislative history of the federal Gun Control Act, as noted

repeatedly by the United States Supreme Court, was that

“Congress sought to rule broadly – to keep guns out of the hands

of those who have demonstrated that they may not be trusted to

possess a firearm without becoming a threat to society.”

Dickerson, supra at 112 (citing Lewis v. United States, 445

U.S. 55, 63 (1980) (emphasis added)).

____________________________________________

6 We observe that Bennett was convicted of lying on a federal form, not of

illegally possessing a firearm. While not an abuse of discretion, we deem it

prudent to note the flaw in the court’s reasoning that a lesser sentence was

warranted, in part, because Bennett did not fit Congress’s definition of

someone deemed untrustworthy to possess a firearm.

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6. Although involuntary manslaughter qualifies as a serious crime

for purposes of placing him within the class of persons historically

excluded from Second Amendment protections, [Bennett’s]

lifestyle for the last 15 years does not demonstrate to this court

that he is a “threat to society” for sentencing purposes;

7. That the standard range punishment associated with such a

conviction was, therefore, ill-suited and would not serve any

greater purpose tha[n] a probationary sentence with [EHM].

Trial Court Order, 5/3/22, at 6 (cleaned up).

Upon review of the certified record, it is clear that the trial court

considered Bennett’s PSI report and the sentencing guidelines before

explaining its reasoning for deviating from the sentencing guidelines. See

N.T. Sentencing, 4/8/22, at 59-60. The sentencing guidelines for materially

false written statement, based on Bennett’s prior record score of one and

offense gravity score of eight, called for a standard range minimum sentence

of twelve to eighteen months, with the aggravated and mitigated range

minimum sentences being increased or decreased up to nine months,

respectively.7 The trial court sentenced Bennett to twelve months of probation

with the first six months on EHM.

The Commonwealth argues that the court improperly found Bennett’s

lack of remorse or responsibility to be a mitigating factor and did not provide

sufficient justification for its downward deviation from the sentencing

____________________________________________

7 We note that the sentencing guidelines are not included in the certified

record. The trial court announced the guidelines during the sentencing

hearing, see N.T. Sentencing, 4/8/22, at 59, and no party has disputed the

accuracy of that recitation.

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guidelines. Our review of the certified record reveals that the trial court

properly considered the PSI report, the sentencing guidelines, and the

statutory factors. While at first blush it may appear that the trial court would

have imposed a reduced sentence for anyone convicted pursuant to the Gun

Control Act, which would unquestionably be an abuse of discretion, in fact, the

trial court’s explanation reveals that its deviation from the sentencing

guidelines was tailored to an examination of the specifics of Bennett’s

disqualifying involuntary manslaughter conviction and his particularized

history thereafter. Indeed, the trial court’s deviation from the sentencing

guidelines was pursuant to an effort to impose a sentence individualized to

Bennett in light of the PSI report, the sentencing guidelines, the nature of the

offense, and the particularized needs of Bennett. Compare Commonwealth

v. Bernal, 200 A.3d 995, 998 (Pa.Super. 2018) (discussing remand of case

for resentencing where the record indicated that the trial judge “had been

determined to impose the maximum sentences permitted by statute,

regardless of the guidelines” (cleaned up)), with Commonwealth v. Walls,

926 A.2d 957, 967 (Pa. 2007) (indicating sentencing court was permitted to

sentence offender outside of the guidelines based upon specific details of the

crimes at issue that were not “subsumed within the sentencing guidelines”).

Accordingly, we discern no abuse of discretion in the trial court’s

conclusion that prison time was not necessary in this particular case.

Conclusion

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Based on the foregoing, we conclude that neither Bennett nor the

Commonwealth has raised an issue meriting relief on appeal. Accordingly, we

affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/16/2023

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