Commonwealth v. Ponds
Commonwealth v. Ponds
Opinion of the Court
Opinion by
This appeal arises from appellant’s conviction of possession of a sawed-off shotgun in violation of Section 908
At approximately 6:00 P.M. on April 6, 1974, a Philadelphia police officer, in response to a radio call, came upon appellant standing near the steps of a house holding a sawed-off shotgun. Appellant attempted to dispose of the shotgun, but it was retrieved by the police officer. Appellant was arrested and a live round of shot-gun ammunition was found in his coat pocket. At trial appellant testified that he had seen the shotgun, but denied both having possession of it and attempting to dispose of it.
Appellant now argues that the sawed-off shotgun was not a prohibited offensive weapon as defined by Section 908 because it was inoperable.
“(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. . . .
*110 “(c). Definition. — As used in this section ‘offensive weapon’ means any bomb, grenade, machine gun, sawed-off shotgun, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose.”
As can be seen, the statute itself does not answer the question.
Appellant argues that the case of Commonwealth v. Layton, 452 Pa. 495 (1973) compels the conclusion that a sawed-off shotgun must be operable in order to violate Section 908. Layton involved the determination of whether a person in possession of an inoperable firearm may have been convicted under Section (d) of the Uniform Firearms Act which provided: “No person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm or have one in his possession or under his control.”
The section of the Uniform Firearms Act considered in Layton is very limited in scope in that it relates to a person who has been convicted of a crime of violence and “intended to cover only objects which could cause violence by firing a shot.” Commonwealth v. Layton, supra. Thus, operability of a firearm was a requirement under that section. However, the purpose behind Section 908 is much broader. The weapons dealt with in Section 908 have no peaceful purpose, and their only conceivable use is for purposes which our society has found to be criminal. By enacting Section 908 the legislature has clearly stated that an “implement for the infliction of serious bodily injury which serves no common lawful purpose”
The broad purpose behind Section 908 can be seen in the general class of weapons which it prohibits, i.e., offensive weapons. Offensive has been defined as objectionable, disagreeable and obnoxious.
The strength of this legislative prohibition is demonstrated by the fact that one can be convicted of violation of Section 908 for mere possession of the prohibited items even if there is no intent to employ such items criminally.
Further comparison of Sections 907 and 908 shows legislative intent which goes directly to the specific question involved in this case. Section 907 defines “weapon” as follows: “Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have. The term includes a firearm which is not loaded or lacks a clip or other component to render it immediately operable, and components which can readily be assembled into a weapon.”
Thus, for a weapon to come under the prohibition of Section 907 it must be operable, i.e., “readily capable of lethal use.” There is no such requirement spelled out in Section 908, and we therefore conclude that the legis
For the above reasons we hold that the offensive weapons prohibited by Section 908 are prohibited whether they are operable or inoperable.
Accordingly the decision of the lower court is affirmed.
. Act of December 6, 1972, P.L. 1482, §1, 18 Pa.C.S. §908.
. At trial the Commonwealth stipulated that the sawed-off shotgun was inoperable in that it had a defective trigger mechanism and that it was missing numerous functional and nonfunctional parts.
. Act of June 24, 1939, P.L. 872, §628 (d), as amended, 18 P.S. 4628(d). Now Act of December 6, 1972, P.L. 1482, §1, 18 Pa.C.S. §6105.
. See also People v. Simmons, 124 Misc. 28, 207 N.Y.S. 56 (1924).
. Act of December 6, 1972, P.L. 1482, §1, 18 Pa.C.S. §908.
. See 67 C.J.S. Offensive at pp. 88-89; Black’s Law Dictionary 1233 (4th ed. 1951).
. See American Law Institute, Model Penal Code, Reprint of Tentative Drafts Nos. 11-13 at p. 68 (1960).
. Act of December 6, 1972, P.L. 1482, §1, 18 Pa.C.S. §907.
. Id.
. The conclusion reached in the instant case is in accord with the recent decision of the California Court of Appeals in the case of People v. Favalora, 42 Cal. App. 3d 988, 117 Cal. Rptr. 291 (1974).
Dissenting Opinion
Dissenting Opinion by
The sole issue in the instant case is whether an inoperable sawed-off shotgun is an offensive weapon under §908 of the Crimes Code.
Section 908 of the Crimes Code provides: “(a) ... 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) ... As used in this section ‘offensive weapon’ means any bomb, grenade, machine gun, sawed-off shotgun, firearm specially made or specially adapted for concealment of silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instru
In Commonwealth v. Layton, 452 Pa. 495, 307 A.2d 843 (1973), the Supreme Court held that Section (d) of the Uniform Firearms Act,
Similarly, it appears that the “mischief to be remedied” by §908 was the harm caused by those in possession of offensive weapons. Section 908 points to specific instruments — .bombs, grenades, etc. — all of which share one characteristic, the capability of inflicting
In support of its reading of §908, the Majority contrasts §908 with §907: “The strength of this legislative prohibition is demonstrated by the fact that one can be convicted of violation of Section 908 for mere possession of the prohibited items even if there is no intent to employ such items criminally.... Under Section 907 it is unlawful for one to possess an instrument of crime or a firearm or other weapon concealed upon his person ‘with intent to employ it criminally.’ There is no such requirement under Section 908. This clearly indicates that the legislature intended to prohibit the items enumerated in Section 908 from being in free circulation in the community.” (Emphasis added). The Majority can so conclude only by ignoring §908 (b) : “It is a defense under this section for
Under §907, a person must have an intent to employ a weapon criminally; under §908, that person must have an intent to use the weapon unlawfully — a frail basis on which to find a legal distinction.
Thus, I disagree with the Majority’s statement that “ [t] he mere possession of an item identifiable as a sawed-off shotgun, even though inoperable is still an ominous presence, and has no place or possible use in the community....” I believe that the statute is explicit: the offender must possess the weapon with an intent to use it unlawfully and that the weapon is one that can cause serious bodily injury. Mere possession of an inoperable sawed-off shotgun should not be sufficient to sustain a conviction.
Therefore, the judgment of sentence should be reversed.
. Act of Dec. 6, 1972, P.L. 1482, §1.
. Act of June 24, 1939, P.L. 872, §628 (d), as amended, 18 P.S. 4628 (d) (now 18 Pa. C.S. §6105).
. Here, as in Layton, the Commonwealth stipulated that the weapon was inoperable.
. The Majority states that “[t]he broad purpose behind Section 908 can be seen in the general class of weapons which it prohibits, i.e., offensive weapons.” My disagreement is that the class of weapons prohibited all can cause “serious bodily injury,” as specifically stated in the statute. The Majority relies on Black’s Law Dictionary to define “offensive” (“objectionable, disagreeable and obnoxious”) rather than the explicit language of the statute to define the general class of prohibited weapons.
. The issue is not raised, and therefore, we do not consider the constitutionality of requiring the defendant to prove that his intent was lawful. But see, Commonwealth v. Rose, 467 Pa. 380, 321 A.2d 880 (1974).
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