Commonwealth v. McNear
Commonwealth v. McNear
Opinion of the Court
Opinion by
On the night of November 7, 1974, appellant in the company of two other men was walking down Wharton Street in Philadelphia at a rapid pace. Officer Hanratty who was riding in an unmarked police car stopped and got out of the car. Upon seeing the police officer, the appellant dropped a gun from his hand to the street in front of a parked car and walked away from it. Officer Hanratty apprehended the appellant and retrieved the gun. A check of the gun revealed that it was loaded and operable and from the serial number it was learned that it had been stolen in the preceding month of October.
Appellant was convicted of possessing an instrument of crime.
Order affirmed.
. Appellant was charged also with receiving stolen property, possessing a prohibited weapon and carrying an unlicensed firearm. After trials in the Municipal Court and in the Court of Common Pleas of Philadelphia County, appellant was adjudged guilty of but the single offense of possessing an instrument of crime. He was acquitted of the other charges.
. The pertinent provision of the Crimes Code reads as follows:
“907. POSSESSING INSTRUMENTS OF CRIME
(a) Criminal instruments generally. — A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.”
Dissenting Opinion
Dissenting Opinion by
This appeal raises substantial issues concerning the interrelationship of §§907
On November 7, 1974, Officer James Hanratty, in uniform while riding in an unmarked car, observed three men walking down Wharton Street, Philadelphia, at a rapid pace. One of the three men, the appellant, was carrying a .22 caliber pistol in his right hand. As Officer Hanratty got out of his car, the appellant dropped the gun in front of a parked car and continued on his way. Officer Hanratty quickly apprehended the appellant and retrieved the gun. The police checked the serial number of the weapon and determined that it had been stolen in October, 1974.
Appellant was indicted on charges of receiving stolen property, possessing a prohibited offensive weapon, possessing an instrument of crime, and carrying an unlicensed firearm. At appellant's trial in Municipal Court on December 17, 1974, the court granted appellant’s demurrer to the charge of receiving stolen property, but found appellant guilty of the three remaining charges. On December 26, 1974, appellant filed a writ of certiorari to the Court of Common Pleas of Philadelphia County. The Court of Common Pleas on certiorari reversed appellant’s conviction for possessing a prohibited offensive weapon and carrying an unlicensed firearm, but affirmed appellant’s conviction for possessing an instrument of crime. This appeal followed.
The arguments advanced by both the appellant and the appellee reflect confusion as to the purpose and applicability of §§907 and 908.1, therefore, find it necessary to determine the interrelationship of these sections. In order to determine the legislative intent as to the applicability of §§907 and 908, reference will be made both
I am mindful of our role in construing statutory provisions as recently set forth by our Supreme Court in Commonwealth v. Pope, 455 Pa. 384, 388-389, 317 A.2d 887, 889, (1974): “A court may not alter, under the guise of ‘construction’, the express language and intent of the Legislature. See, e.g., Commonwealth v. Rieck Investment Corp., 419 Pa. 52, 213 A.2d 277 (1965) ; Calvert Distillers Corp. v. Board of Finance & Revenue, 376 Pa. 476, 103 A.2d 668 (1954) ; Commonwealth v. One 1939 Cadillac Sedan, 158 Pa. Superior Ct. 392, 45 A.2d 406 (1946). While it is true that penal statutes must be strictly construed, 1 Pa. S. §1928 (b)(1) (Special Pamphlet 1973), the principle of strict construction does not permit a court to delete a clear and specific crime from the criminal code. A statute must be construed, if possible, to give effect to all its provisions, making the entire statute effective and certain. Id. §§1921 (a), 1922(2); see Lynch v. Owen J. Roberts School District, 430 Pa. 461, 244 A.2d 1 (1968) ; Whitemarsh Township Authority v. Elwert, 413 Pa. 329, 196 A.2d 843 (1964) ; Sherwood v. Elgart, 383 Pa. 110, 117 A.2d 899 (1955).”
I. SCOPE OF §908
Appellant was convicted of violating §908 in the Municipal Court. The Court of Common Pleas, however, reversed this conviction. Although this decision is not
Section 908 of the Crimes Code is entitled “Prohibited offensive weapons”. It reads, in part, as follows:
“§908. Prohibited offensive weapons
(a) Offense defined. — A person commits a misdemeanor of the first degree if, except as authorized by law, he makes repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon ....
(c) Definition. — As used in this section ‘offensive weapon’ means any bomb, grenade, machine gun, sawed-off shotgun ... or other implement for the infliction of serious bodily injury which serves no common lawful purpose.”
Section 908 of the Crimes Code is derived from §5.07 of the Model Penal Code and encompasses offenses formerly contained in §§416,
The application of §908 is clear. Because the weapons prohibited in §908 have no common lawful purpose, possession in and of itself is enough to violate the section.
II. SCOPE OF §907 (a)
Appellant was convicted of violating §907 (a) in the Municipal Court, and the Court of Common Pleas affirmed. Section 907 reads, in part, as follows:
“§907. Possessing instruments of crime
(a) Criminal instruments generally. — A person commits a misdemeanor of the first degree if he possesses an instrument of crime with intent to employ it criminally.
*184 (b) Possession of weapon. — A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally.
(c) Definitions. — As used in this section the following words and phrases shall have the meanings given to them in this subsection: ... ‘Weapon.’ Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have....”
In order to understand the applicability of §907, I must confront the question of whether §907 (a) applies to weapons. Section 907 is a combination of §§904
“Criminal Instruments Generally. A person commits a misdemeanor ... if he possesses any instrument of crime with purpose to employ it criminally. Instrument of crime means:
(a) anything specially made or specially adapted for criminal use; or
(b) anything commonly used for criminal purposes and possessed by the actor under circumstances which do not negative unlawful purpose.
Presumption of Criminal Purpose from Possession of Weapon. If a person possesses a firearm or other weapon on or about his person, in a vehicle occupied by him, or otherwise readily available for use, it shall be presumed that he had the purpose to employ it criminally...
Section 907 of the Crimes Code is significantly different in that it distinguishes between the possession of criminal instruments generally (§907 (a) ) and the possession of weapons (§907 (b)). The legislature evidently determined that weapons should not be included with other instruments of crime as was the case in both the Proposed Crimes Code for Pennsylvania and the Model Penal Code. Thus, §907 (a) does not apply to weapons. Section 907(b), therefore, was specifically drafted to remove weapons from the general classification of instruments of crime. Thus, appellant who possessed a weapon, not an instrument of crime, could not be convicted of violating §907 (a).
Cercone and Spaeth, JJ., join in this dissenting opinion.
. Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §907.
. Act of December 6, 1972, supra, 18 Pa. C. S. §908.
. Because I find that §907 (a) does not apply to weapons, I need not reach the issue of the sufficiency of the evidence.
. American Law Institute, Model Penal Code, Keprint of Proposed Official Draft (1962).
. American Law Institute, Model Penal Code, Reprint of Tentative Drafts Nos. 11-13 (1960).
. Proposed Crimes Code for Pennsylvania, Joint State Government Commission (1967).
. Act of June 24, 1939, P.L. 872, §416; April 4, 1956, P.L. (1955) 1383, §1, 18 P.S. §4416.
. Act of June 24, 1939, supra, §417, 18 P.S. §4417.
. Act of June 24, 1939, supra, §626, 18 P.S. §4626.
. Act of June 24, 1939, supra, §629, 18 P.S. §4629.
. But see §908(b) which provides: “It is a defense under this section for the defendant to prove by a preponderance of evidence that he possessed or dealt with the weapon solely as a curio or in a dramatic performance, or that he possessed it briefly in consequence of having found it or taken it from an aggressor, or under circumstances similarly negativing any intent or likelihood that the weapon would be used unlawfully.”
. Act of June 24, 1939, supra, §904, 18 P.S. §4904.
. Appellant could have been properly convicted only of violating §6108 of the Uniform Firearms Act. In discussing the issue of carrying a weapon openly, our Supreme Court in Commonwealth v. Pope, supra, at 387-388, 317 A.2d at 889, noted that “[i]n 1968, the General Assembly created two new crimes [§§628 (e) (1) and 628(e) (2) of the Uniform Firearms Act] involving the carrying of weapons. It proscribed both the open and concealed carrying of all firearms, rifles, or shotguns during ‘an emergency proclaimed by a municipal or governmental executive’ anywhere in the Commonwealth or ‘at any time upon the public streets or upon any public property in a city of the first class’ . . . .” Section 628(e) (1) and 628(e) (2) have been reenacted in the new Crimes Code §§6107 and 6108 respectively. Our legislature, however, has determined that it is lawful to openly carry a weapon in every part of this Commonwealth where those two sections are inapplicable.
It is noteworthy that when the drafters of §5.06 of the Model Penal Code rejected the concealed weapons approach adopted by our legislature in §907 of the Crimes Code, they stated: “It has been argued in favor of the concealed weapons legislation that concealment manifests criminal or anti-social purpose. . . . Sometimes, it is said that the legislative intent is to require weapons to be carried openly so that others will realize the necessity of circumspect behavior to avoid dangerous encounters, and be better prepared to meet violent attack if it comes. However appropriate such a
I recognize that weapons in §907 have common lawful purposes. By enabling such weapons to be carried openly, however, the legislature has created a “loophole” for those desiring to use such weapons criminally. It is legal for the potential criminal to openly possess the weapon he will use to commit a crime, while it is illegal for him to conceal the same weapon. I urge the legislature to remedy this situation.
Reference
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