Commonwealth v. Ashford
Commonwealth v. Ashford
Opinion of the Court
This is an appeal from judgment of sentence for possessing a prohibited offensive weapon.
Section 908(a) of the Pennsylvania Crimes Code states: “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.” Section 908(c) defines an “offensive weapon” as “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.” (Emphasis added.) We must therefore decide, first, whether the knife had a blade “exposed in an automatic way,” and second, if it did not, whether it was an
1
A close reading of section 908(c) and of the relevant case law will show that the knife did not have a blade “exposed in an automatic way.” It is to be assumed that the legislature uses words in their standard, or accepted, sense. Vitolins Unempl. Compensation Case, 203 Pa.Super. 183, 199 A.2d 474 (1964); Ross Unempl. Compensation Case, 192 Pa.Super. 190, 159 A.2d 772 (1960). Webster’s New World Dictionary of the American Language defines “automatic” as: “Done without conscious thought or volition, as if mechanically, or from force of habit 2) moving, operating, etc. by itself; regulating itself.” A blade that must be exposed by a flick of the wrist, as the arresting officer testified, is not exposed “as if mechanically” or “by itself.” Furthermore, the phrase “exposed in an automatic way” must be read in its context which is: “exposed in an automatic way by switch, push-button, spring mechanism, or otherwise” (emphasis added). The legislature thus proscribed four categories of automatic knives, the first three categories being described specifically, the last, generally. The rule of construction applicable to such a statute is well settled. In Butler Fair and Ag. Assn. v. Butler Sch. Dist., 389 Pa. 169, 178, 132 A.2d 214, 219 (1957), the Supreme Court said: “General expressions used in a statute are restricted to things and persons similar to those specifically enumerated in the language preceding the general expressions” (quoting Frederick’s Estate, 333 Pa. 327, 331, 5 A.2d 91, 93 (1939)). Likewise, in Commonwealth v. Simmons, 211 Pa.Super. 344, 348, 236 A.2d 563, 565 (1967), we said that “[i]n construing a statute, general expressions must be restricted to things and persons similar to those specifically enumerated in preceding language.” Thus the legislature’s use of “otherwise” after “switch, push-button, [and] spring mechanism” shows that by “otherwise” the legislature referred to knives that were opened by some sort of mechanism — not a “switch”, “push-button”, or “spring” mechanism, but still, a mechanism.
It should also be noted that we have held that Section 908 imposes strict liability. Thus in Commonwealth v. Ponds, 236 Pa.Super. 107, 345 A.2d 253 (1975), a majority of this court, stating that “the class of 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,” held that the Commonwealth need not prove that the defendant intended to employ the offensive weapon criminally. See also Commonwealth v. Gatto, 236 Pa.Super. 92, 344 A.2d 566 (1975). Every penal statute must be strictly construed, Commonwealth v. Cunningham, 248 Pa.Super. 219, 375 A.2d 66 (1977); this is particularly true when the statute imposes strict liability.
2
In Commonwealth v. Gatto, supra, we were given the opportunity to interpret the phrase, “implement for the infliction of serious bodily injury which serves no common lawful purpose.” There, the appellant had been convicted under Section 908(c) because he had been carrying a knife about 30 inches long. We applied a “reasonable construction to the phrase in question,” and concluded that “under the circumstances of this case ... a thirty inch knife
From this examination of cases it will be observed that Smith, McHarris, Fisher and Gatto can, and therefore should, be read as consistently holding that the key inquiry in a Section 908(c) case is whether the item in question has common lawful purpose; an object similar to brass knuckles or a 30 inch knife, may have a conceivable lawful purpose but' not a common one. This inquiry into common lawful purpose is sufficient; there is no need to inquire further, by considering the particular circumstances of the case. Inquiry into the particular circumstances is necessary in a case arising under Section 907, which states that “A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally”, and defines “Instrument of crime” as “(2) anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.” See generally, Commonwealth v. McHarris, supra, 246 Pa.Super. at 493, 371 A.2d at 944. This case, however, does not arise under Section 907 but under Section 908(c).
When we ask whether the knife here did or did not have a common lawful purpose^ we discover that the Commonwealth offered no evidence that enables us to decide the point; the only evidence possibly relevant was appellant’s testimony that he used the knife while working on his motorcycle. We are not in a position to find as a matter of judicial notice that the knife had no common lawful purpose, for a fact may only be noticed judicially when it is indisputable. See Wells v. Pittsburgh Board of Public Education, 31
The judgment of sentence is reversed, and appellant is ordered discharged.
. Pa.Crimes Code, 18 Pa.C.S.A. § 908 (1973).
. Webster’s New World Dictionary of the American Language (College Edition 1960) defines a “switchblade” as: “A large jackknife having a blade that opens rapidly when a button or other device on the handle is pressed.”
. In Walton we stated that a “sword cane looks like an ordinary cane but is in fact a sword with a sheath made to look like the lower part of a cane.” 252 Pa.Super. at 56, 380 A.2d at 1278 n.1.
Dissenting Opinion
dissenting:
A flick of the wrist which brings into play an automatic springing out of a blade is in my opinion an action close enough in time to the pushing of a button as to bring the knife within the definition of a prohibited offensive weapon under the provision of the Pa.Crimes Code, 18 Pa.C.S.A. Section 908 (1973). A flick of the wrist necessitates no physical touching of any part of the knife to bring the blade into automatic use and since it can happen almost simultaneously with the push of a button, I find such a knife, that can be so operated, falls within the terms of Section 908.
Dissenting Opinion
dissenting:
The knife here in question has a lock which, when released allows the blade to be snapped open by a flick of the wrist. While the officer who testified said that it was not a “switch blade”, he demonstrated the manner in which it could be opened as it supported in the record (N.T. 28, 29). The court below found that this satisfied the definition of Section
. Pa.Crimes Code, 18 Pa.C.S.A. Section 908 (1973).
Reference
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- COMMONWEALTH of Pennsylvania v. Lonnie ASHFORD, Appellant
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- 27 cases
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- Published