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HomeMy WebLinkAboutCP-21-CR-0101-2003 COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ANTHONY RICHARD MAGARO CP-21-CR-101-2003 IN RE: PETITION OF DEFENDANT FOR RETURN OF PROPERTY OPINION AND ORDER OF COURT Bayley, J., December 9,2004:-- Defendant, Anthony Richard Magaro, was charged in an information with one count of terroristic threats, a misdemeanor of the first degree,1 and seventeen counts of harassment by communication or address, each a misdemeanor of the third degree. 2 All of the charges arise out of phone calls defendant made to his daughter on December 16, 2002. On December 18, 2002, officers of the East Pennsboro Township Police Department, pursuant to the authority in a search warrant, entered defendant's home and seized the following items. A. One brown plastic case with Marlin 30-30 model 336CS; B. One Crossman Air Gun model 2100 # 989221696; C. Daisy Model 880 Pellet Gun; D. Remington Fieldmaster Model 572 # A1565681; E. Leather case with Remington Wingmaster 870 12 gage [sic] # 984478V; F. 22 Caliber Revolver Model 922 HR.; G. 12 Gage [sic] Game Load Shells (4); 118 Pa.C.S. S 2706. 2 18 Pa.C.S. S 5504(a)(1). Since repealed by L. 2002, Act 218(4), eff. February 7, 2003, now 18 Pa.C.S. Section 2709. CP-21-CR-101-2003 H. 12 Gage [sic] Rifled Slug (5); I. 22 Caliber (I Large Box); J. Bank Records; K. Phone lists; L. An M8 Smoke HCB9-13 Smoke Grenade. On April 22, 2003, defendant entered a plea of guilty to one consolidated count of harassment by communication or address, graded a misdemeanor of the third degree, in satisfaction of all the charges against him. On May 20, 2003, following a pre-sentence investigation, defendant was sentenced to undergo imprisonment in the Cumberland County Prison for time served to six months. 3 He was paroled immediately on condition that he be and remain in good behavior. On August 20, 2004, pursuant to Pa.R.Crim.P. 588(A), defendant filed a petition for the return of his personal property seized from his home on December 18, 2002. The Commonwealth opposes the return of the weapons and ammunition seized as it has been reported by the Pennsylvania State Police that defendant is subject to a federal gun disability because of this conviction for harassment by communication or address.4 Hearings were conducted and the issue briefed. At 18 U.S.C.A. Section 922(d), the Federal Gun Control Act of 1968 provides: It shall be unlawful for any person to sell or otherwise dispose of 3 Defendant had served forty-two days in prison before being released on bail. He then received mental health treatment through the time he was sentenced. 4 The Uniform Firearm Act at 18 Pa.C.S. Section 6111 assigns investigative authority to the Pennsylvania State Police to determine if a reported misdemeanor conviction involved domestic violence and, therefore, constitutes a gun disability under the Federal Gun Control Act. -2- CP-21-CR-101-2003 any firearm or ammunition to any person knowing or having reasonable cause to believe that such person *** (9) has been convicted in any court of a misdemeanor crime of domestic violence. (Emphasis added.) Section 921 (a)(33)(A) defines "misdemeanor crime of domestic violence," to include "[a]n offense that. . . (i) is a misdemeanor under Federal or State law; and. . . (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim. . . . (Emphasis added.) In Pennsylvania State Police v. McPherson, 831 A.2d 800 (Pa. Commw. 2003), the Commonwealth Court of Pennsylvania stated: In Taylorv. United States, 495 U.S. 575,110 S.Ct. 2143,109 L. Ed.2d 607 (1990) and its progeny, the federal courts have constructed an analytical framework for determining whether a particular state conviction suffices as a predicate offense under a federal statute like the Gun Control Act. Under the Taylor approach, the court must first examine the federal statute to determine the elements necessary for a state crime to qualify as a predicate offense. Next, the court must examine the state conviction at issue to determine whether it contains those necessary elements. If it does, the federal statute is triggered; if it does not, the federal statute does not apply. In this regard, the proper analysis is "a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Id. at 600,110 S.Ct. 2143. Nonetheless, where the statutory definition of the prior offense describes both conduct which includes the required elements and conduct which does or may not, the court may look to documents in the state court record to determine whether the conviction necessarily encompassed them. (Footnotes omitted.) In the case sub judice, defendant pled guilty to a consolidated count of harassment by communication or address, 18 Pa.C.S. Section 5504(a)(1), which -3- CP-21-CR-101-2003 provided: A person commits the crime of harassment by communication or address when, with intent to harass, annoy or alarm another, the person: (1) Communicates to or about such other person any lewd, lascivious, threatening or obscene words or language, drawings or caricatures. This statute includes conduct which may not include the required elements for a federal gun disability under federal law. Defendant was charged in an information with violating this statute in that he did, on seventeen occasions, "with the intent to harass another, make a telephone call without intent of legitimate communication or address to or about such other person lewd, lascivious, threatening or obscene words or language, drawings or caricatures." The plea colloquy shows that when he entered his plea to one consolidated count, he specifically pled to the portion of the statute which includes threatening language. The facts upon which the plea was based are set forth in the plea colloquy: [a]t approximately 6:00 in the morning on the 16th of December 2002, the defendant placed six telephone calls from his home in East Pennsboro, Cumberland County, to his daughter. The calls used extreme, threatening, and obscene language. Again, at 2330 that same evening, the 16th, and continuing onto the morning of the 1 th, the defendant made eleven more calls that were obscene and threatening to the daughter. (Emphasis added.) The seventeen phone calls which formed the basis for the consolidated plea were recorded on the victim's answering machine. The following is a transcript: Messaqe 1 I'm sorry if I didn't return your call. I got your message loud and -4- CP-21-CR-101-2003 clear. Sorry I didn't get back to you until now but I was out (inaudible) getting fucked up and dealing drugs and shit and fucking people up and shit. I'm just going to give you fair warning, you are facing some very serious legal charges. I talked to a lawyer today. False reports both ways, defamation of character. I mean, it's awful heavy duty shit, man. So what I'm telling you, you little asshole, is don't you ever set foot on this property or my mother's property again. So I hope you die on that operating table because you're never going to have any motherfucking kids and you don't want no kids with that fucking fagging-ass bastard you married. So why don't you take him and yourself and go fucking jump in the fucking ocean. I fucking hate you, man. I fucking hate you. Don't ever fucking call me again. Never. If you ever show your face around here, I'll fucking mess it so goddamn ugly a fucking nigger wouldn't even want you. Fuck you. (Emphasis added. ) Messaqe 2 You're a lazy fucking little slut. I had a goddamn feeling the last time I looked at your fucking asshole old man, the fucking failure bastard, I could see in his eyes that he was fucking disgusted with you. I could see it in his fucking eyes, man. He knows what the fuck you are. You're a troublemaker. You're a prick. You ain't no goddamn daughter, and I ain't no goddamn father to you. Never. No. No, no. Never ever. I guarantee you this, I had my share of filling your goddamn mailbox up because I'm sick and tired of fucking trying to tell you how much I fucking hate you. I hope you die on that operating table, you goddamn lazy motherfucking asshole. I'm going to lay the cops on you, you motherfucking prick, and you're going to be getting letters from lawyers, too. You'd better get the fuck out of the country. You go to harass with your fucking old man, because he knows what a fucking asshole you are. Everybody does. Who would stoop that goddamn low to fuck their own goddamn father the way you have over all these years? And you know who your friends are? Sluts. Pigs. Fucking sluts. Birds of a feather flock together. When you start to fuck those goddamn cops when your old man ain't around. You motherfucking piece of shit. I'll tell you who a piece of shit is, fucking you, man. Fuck you. Messaqe 3 You lazy little prick bitch. I'm going to tell you something, you'd better throwaway that motherfucking house key because there's only one way you're going to get out of here, because all the doors are fucking -5- CP-21-CR-101-2003 boarded up and locked, secured. They're boarded up. I mean with fucking nails and boards. I'd be sleeping with all goddamn fucking guns. I'd be sleeping with my guns, bitch. The next motherfucker that kicks my door in is going to get blowed the fuck away. Why don't you call up the goddamn cops and tell them that, you motherfucking prick bitch asshole. Prick. You ain't nobody's goddamn daughter. You're a demon's fucking spawn, is what you are. You're a fucking demon seed, that's what you are. You motherfucking prick little bitch. I hope you die on that operating table. I wouldn't even waste my fucking time. You ain't going to have no goddamn kids. Nothing like you is fit to have a fucking kid. God won't allow it. You're a fucking devil, you are. (Emphasis added.) Messaqe 4 I'm waiting on you, you fucking lazy little slime. I'd be sleeping with my gun, bitch. I'm just waiting for the next motherfucker to bust in my door. I'm just waiting. Because I'll blow you the fuck away. You and your pigs. And you'd better give a second fuck to your pigs and you'd better fucking come silently. You'd better come silently, like a thief in the night. Because I'll be ready for you motherfuckers next time. There ain't no goddamn key in this world that's going to fit my door no more. You hear me, you motherfucking little bitch? Bitch. Motherfucker you. I fucking hate you. You'd better get the fuck out of this country, you goddamn little fucking bitch. I fucking hate you, man. I fucking hate you. I'll be waiting for you, motherfucker. I'll be waiting for you. I'll be waiting for your fucking pigs. I'm ready now, motherfucker. I learned a lesson. I learned a lesson, what it's like to spawn a fucking demon fucking seed. That's what you are. You call your brother a liar, a fucking theft. What the fuck are you? I'm going to destroy the demon spawn. Come busting through my door now, you motherfucking pigs. Come on. I'm waiting for you motherfuckers. I'm ready. I always got one eye open, motherfucker. I'm waiting for you. Come on. Come on. (Emphasis added.) Messaqe 5 Do you know what a .12 guage [sic] fucking buckshot shotgun does to your face, bitch? Well, I'll tell you what it does. There ain't no key in this goddamn world that's going to fit my doors no more for you. No more. I'm sleeping with my guns, bitch. If you ever step foot on my house, my property, if you go anywhere near my (inaudible) and I'm -6- CP-21-CR-101-2003 going to fucking destroy you. You want to go to the police and have them land on me again? You're a dead motherfucker. That's what you are. I'm waiting on you, fucking demon spawn. I'm waiting on you. I'm waiting on you with my finger on the trigger. (Emphasis added.) Messaqe 6 I'm waiting for you, you dumb little bitch. I'm waiting for you. I got my finger on the trigger, bitch. I'm waiting for you and your motherfucking SWAT team. You'd better get a fucking fuck to that SWAT team because it might be the last time you ever see them. I got to tell you this, you're out of about a half a million dollars. And as like you say, oh, I don't give a fuck. Well, you will give a fuck, because that retarded motherfucker you're married to is going to wind up dead in fucking Iraq. You'd better have a goddamn good insurance policy on the motherfucker, I'll tell you that. There ain't no goddamn key in this world that's going to fit my doors no more, because my doors are boarded up, because they were busted down with the motherfucking SWAT team. Do you fucking fuck the SWAT team? Well, I'll tell you, you better start, and you better come around with them the next time, because you're going to need their protection with their goddamn little smoke bombs and their little pop guns and their BB pistols, because I'm going to fucking destroy you and them. I'm waiting for you, motherfucker. I got my finger on the trigger. Come powdered and fit your key in my door and see what the fuck happens to you, you motherfucking little piece of shit. Come on. Come on. I'm waiting for you, mother fucker. (Emphasis added.) Messaqe 7 Doesn't anybody ever fucking call you and leave messages, man? Because I'm getting tried of trying to fill up your motherfucking mailbox. Oh, there was one thing I forgot to tell you. Your filthy little SWAT team, after they were done busting me to the floor and skinning my arms off, they tussled me and banged my head against the floor and walking out of here, they're lucky they were still alive. With their nifty little digital camera they took pictures of the fuck bush who written on my kitchen wall. I suppose you probably told them about that too because I figured you're married to a bush sucker. You are a bush sucker, aren't you? You motherfucking little bitch. I just want to tell you that because I thought it might make you laugh. But I tell you this, I'll light your goddamn smile about 12 fucking inches if you ever walk in my door again. (Emphasis added. ) -7- CP-21-CR-101-2003 Messaqe 8 You don't have many friends, do you? Well, I can understand why. You fuck your own goddamn father, don't you? You asshole. Don't ever call me, don't ever fucking set foot on GD's farm again. I guarantee you when I'm gone, those chips I'm taking with me, so you motherfuckers better work 24 hours a fucking day, because I will give you nothing. You motherfucking pricks. Messaqe 9 I feel sorry for you, you filthy little motherfucking pig. You know, something you should have and you never had, and that's a brother and a father. I pity you, you fucking filthy little pig. I wish you were fucking dead. (Emphasis added.) Messaqe 1 0 Why don't you just get rid of your telephone, asshole, because you ain't got no motherfucking friends in this world anymore. I'll tell you what, how about tomorrow morning at 6 a.m. I'll call up the SWAT team and let them come in and fucking throw you on the floor and handcuff you for nothing. Let me tell you something, you motherfucking little slut. You're going to pay for this. You motherfuckers are all going to pay. Now, you try to get into my house with your key one more time, you and them pigs. You just start to fuck them pigs, you goddamn little bastard, because I'll fuck you to the end of this earth. Messaqe 11 Why don't you dress up in the boots and the helmet and your painted goddamn little fucking smoke gun pop gun? Why don't you fucking crawl in on people and fucking twist their necks and break their fucking backs and throw them on the floor like the goddamned pigs that you call to fuck your father and fuck your brother. You motherfucker, you. I'll be glad when you're fucking dead. I'll be glad when you're fucking dead. Do you understand what I'm saying? I'll be glad when you're fucking dead. (Emphasis added.) Messaqe r121 Do you want to come over and see what it's like to be terrorized by a SWAT team, of the fucking police? You wanna? Come on over. I'll show you what it's like. I'll show you what it's like to have the skin tore off your arms and you have knots on your head to be buried your face in the -8- CP-21-CR-101-2003 floor, windows busting out of your house, your doors kicked in. I thank you. I thank you very much, daughter. I don't ever want to fucking see you again as long as I live. Messaqe r131 Why don't you answer the phone, you goddamn filthy little fucking slime. Why don't you come over and see what the SWAT team did to me, did to my house. You filthy little slime. Don't you ever show your face around here again. Never, ever, ever. I hope you fucking die on that operating table. I'm going to make a special fucking prayer, I hope you fucking die, you filthy little fucking slime. Messaqe r141 You goddamned filthy little swine. You are that fucking demon spawn. You are the demon spawn. I'll be glad when you're fucking dead. Don't you ever come around me or my mother again. I don't ever want to fucking see you again. You know what I mean? Never, ever, ever. You are the demon spawn. You. I'll be glad when you're dead. Messaqe r151 You're the filthy little bitch. You're the demon spawn. You. Nobody but you. Don't you ever fucking show your face around here again. I'm waiting for you. Don't ever fucking show your face around here again. I'll be glad when you're dead. You are the demon spawn. Nobody else. You. You, you filthy little swine. You are the demon spawn. (Emphasis added.) Messaqe r161 You filthy fucking slime. You're as dead, you're as dead as a doornail, you filthy little fucking slime. You're as dead as the fucking pigs that busted me up and busted up my house. Don't you ever show your goddamned face around here again. I will fucking destroy you. You are the demon fucking spawn. I just want to see if you have a fucking crust(?) to fucking talk to me again. You don't need a goddamn key to walk in, just walk in the doors that the cops busted down, you goddamned demon spawn you. You filthy fucking slime. I'll be glad when you're dead. Messaqe r171 Goddamned you. God fucking damn you. Goddamned you. Goddamned you. I'll be glad when you're dead, you filthy little fucking slime. Goddamned you. Goddamned you. (Emphasis added.) -9- CP-21-CR-101-2003 This record shows that defendant threatened the use of a deadly weapon against his daughter. As in Pennsylvania State Police v. McPherson, supra, in which the Commonwealth Court concluded that a plea to disorderly conduct involved behavior that the Pennsylvania State Police properly reported as a misdemeanor crime of domestic violence under the federal definition, we conclude here that defendant's plea of guilty to a consolidated count of harassment by communication or address, a misdemeanor of the third degree, is properly reported as a misdemeanor crime of domestic violence under the federal definition. The federal statute prohibits the police from disposing, in this case transferring back to defendant, his weapons and ammunition seized on December 18, 2002.5 ORDER OF COURT AND NOW, this day of December, 2004, the petition of defendant, Anthony Richard Magaro, for the return of weapons and ammunition seized from him on December 18, 2002, IS DENIED. The bank records and phone list seized from him shall be returned. By the Court, Edgar B. Bayley, J. 5 The Commonwealth does not suggest that it is entitled to forfeit the weapons. We believe that such items can be turned over to a non-sham transferee of defendant, and if that transferee is a purchaser the proceeds shall go to defendant. -10- CP-21-CR-101-2003 John C. Dailey, Esquire Assistant District Attorney Paul B. Orr, Esquire F or Defendant :sal -11- COMMONWEAL TH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ANTHONY RICHARD MAGARO CP-21-CR-101-2003 IN RE: PETITION OF DEFENDANT FOR RETURN OF PROPERTY ORDER OF COURT AND NOW, this day of December, 2004, the petition of defendant, Anthony Richard Magaro, for the return of weapons and ammunition seized from him on December 18, 2002, IS DENIED. The bank records and phone list seized from him shall be returned. By the Court, Edgar B. Bayley, J. John C. Dailey, Esquire Assistant District Attorney Paul B. Orr, Esquire F or Defendant :sal