Thompson v. Pennsylvania Board of Probation & Parole
Thompson v. Pennsylvania Board of Probation & Parole
Opinion of the Court
Elliott Thompson (Petitioner) petitions for review of an order of the Pennsylvania Board of Probation and Parole (Board), dated June 3,1999, denying his request for administrative relief from an order recommitting him as a technical parole violator to serve an additional 12 months of his original sentence.
On December 21, 1993, Petitioner was sentenced to two concurrent sentences of 4-10 years for the charges of Robbery that he committed with a handgun and Criminal Conspiracy in the Court of Common Pleas of Philadelphia County and, on August 21, 1997, he was released on parole.
On January 13, 1998, Petitioner was arrested and charged with three technical violations of parole, viz. (1) a violation of condition 5A, use of marijuana; (2) a violation of condition 7, consumption of alcohol; and (3) a violation of condition 5B, owner
By a revocation decision mailed March 19, 1998, the Board recommitted Thompson as a technical parole violator for violating all three parole conditions and ordered him to serve 12 additional months of his original sentence. On March 27, 1998, Petitioner filed an administrative appeal in which he argued that he did not violate condition 5B because he had not possessed a weapon. By a determination mailed June 3, 1999, the Board denied Petitioner’s administrative appeal. This appeal followed.
On appeal,
Petitioner cites three cases where this Court has held the following: that a 3}é inch folding knife was a weapon, Michael; that the possession of nunchakus
The Board, on the other hand, argues that Petitioner’s water gun, which was wrapped in black electrical tape, did constitute an instrument of offensive or defensive combat. The Board states in its brief that, “[t]he plastic handgun covered with black electrical tape that [Petitioner] possessed was an instrument of offensive or defensive combat because, by possessing it, he had an apparent ability to exert deadly force against another that would have helped him prevail in offensive or defensive combat.” (Board’s brief at 6.) (Emphasis added.)
We agree with the Board that the water gun’s apparent ability to be used as a weapon of deadly force against another is
In addition, the Board cites two federal cases in which the courts found that a fake gun, and a concealed hand which mimics a gun, are dangerous weapons because they look like real guns. See United States v. Dixon, 982 F.2d 116 (3rd Cir. 1992), cert. denied, 508 U.S. 921, 113 S.Ct. 2371, 124 L.Ed.2d 276 (1993); Coston v. Zimmerman, 725 F.Supp. 846 (E.D.Pa. 1989). We agree with the Superior Court and the federal courts that a realistically looking fake gun, water pistol or toy gun has such an appearance as to render it a dangerous or offensive weapon because of the reaction it may cause. We believe the reasoning and analysis of the cases relied on by the Board are applicable to the present case. Because the mere possession of a water pistol by an individual gives that individual the apparent ability to exert deadly force on another, we hold that the possession of it constitutes an offensive weapon for purposes of parole condition 5B.
Order affirmed.
ORDER
NOW, September 28, 2000, the order of the Pennsylvania Board of Probation and Parole in the above-captioned matter is hereby AFFIRMED.
. The term “toy gun” and “water gun” are used interchangeably in this Opinion. The Petitioner, in fact, possessed a water gun, which is a toy gun.
. This Court's standard of review of the Board’s recommitment order is limited to determining whether the Board’s adjudication is supported by substantial evidence, whether an error of law has been committed, or whether the parolee’s constitutional rights have been violated. Moroz v. Pennsylvania Board of Probation & Parole, 660 A.2d 131 (Pa.Cmwlth. 1995).
. In his brief, Petitioner argues at length that a water gun is not a firearm, by relying on a dictionary definition of firearm and the definition of a firearm as found in the Crimes Code, 18 Pa.C.S § 6102. We agree with Petitioner that a water gun does not constitute a firearm for purposes of violating parole condition 5B. We are left, nonetheless, with the determination of whether a water gun constitutes a weapon as defined in parole condition 5B.
. Nunchakus are a martial arts fighting device that consists of two pieces of wood held together by a chain.
. Act of June 24, 1939, P.L. 872, Section 705, formerly 18 P.S. § 4705 provided, in pertinent part, "[w]however, being armed with an offensive weapon or instrument, robs or assaults with intent to rob another ... is guilty of a felony.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.