HOLLIDAYSBURG - A Frankstown Township woman in court for buying a gun used in three homicides committed by her boyfriend nearly a year ago wants to appeal a Blair County judge's decision upholding the criminal charges against her - prior to the trial of her case.
Brenda Elaine Shultz, 52, was charged by state police earlier this year with making a straw purchase of a handgun for Jeffrey Lee Michael, who during the early morning of Dec. 21, 2012, killed a woman decorating a church for Christmas plus two of his neighbors.
Michael died in an ensuing shootout with Pennsylvania State Police troopers who were dispatched to the Juniata Valley Road area of Frankstown Township in response to the killings.
Testimony before Blair County Judge Elizabeth Doyle in September indicated that Shultz had been interviewed by investigators in the wake of the killings, and she allegedly admitted to purchasing a .45-caliber handgun in 2011 at a Hollidaysburg gun shop for Michael.
Michael, according to the police investigation, believed he could not buy a gun because of two prior protection-from-abuse orders, and he supposedly went to the shop with Shultz and paid for the gun.
She, however, is charged with filling out papers stating that she was the "actual buyer" of the handgun.
According to charges, she was a "straw purchaser," or someone acting in place of the real owner of the gun.
That's where the case becomes complicated, according to Shultz's Blair County attorney, Lucas Kelleher.
He made the point Tuesday that Shultz is not admitting she bought the gun. That will have to be proven in court.
But, before even getting to the point of trial, Kelleher is arguing the charges should be dismissed because, as it turns out, Michael was not a person prohibited from owning a gun.
Any PFAs against him had been terminated prior to the purchase of the gun, so in essence, Shultz was buying a gun for a person legally able to own a weapon.
Doyle in opinions issued in September and October refused to dismiss the straw purchase charges contending that Shultz had lied on both state and federal gun purchase forms by stating she was the actual owner of the gun.
The judge in October also upheld the constitutionality of the laws.
In mid-November, Doyle rejected another petition by Kelleher requesting dismissal of the charges.
Now Kelleher wants to take the unusual step of appealing the Judge's ruling to Pennsylvania Superior Court prior to trial of the case.
His argument is based on a case entitled 'Abramski versus the United States' that will focus on the question of whether a straw purchase charge can be brought against a person if they buy a firearm for another person who is lawfully permitted to have a gun.
The issue will be argued in the U.S. Supreme Court in January, Kelleher said, and if the highest court in the land determines that making a straw purchase for a person who is lawfully entitled to a firearm is not a "materially false written statement," then, he believes, the charges against Shultz will have to be dismissed.
Decisions have been made in five federal circuit courts - the Fourth, Fifth, Sixth, Ninth and Eleventh - coming to different conclusions on the question, which is why the U.S. Supreme Court will take up the question.
Kelleher said he can't simply appeal Doyle's various rulings made in the Shultz case.
In a petition Tuesday, he has asked the judge to confirm that the Shultz's case involves a "substantial" question of law, which is language that would allow him to ask the Superior Court to accept the appeal prior to trial.
If she won't certify the Shultz case as one that involves a substantial legal question, he will then have to ask the Superior Court to tell her to place the acceptable language in her order.
In either scenario, the Superior Court may or may not want to review the law in the Shultz case prior to trial, said Kelleher, meaning the trial in Blair County would go forward.
As it stands now, the Shultz case is scheduled for trial review before the Blair County Court of Common Pleas.