Commonwealth v. McNear

353 A.2d 39, 238 Pa. Super. 177, 1975 Pa. Super. LEXIS 2577

• Court: Superior Court of Pennsylvania
• Decided: December 22, 1975
• Docket: Appeal, 1473
• Status: Published

Opinions

Opinion by

Van der Voort, J.,

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.¹ He filed this direct appeal claiming that a loaded pistol in operable condition is not an instrument of crime, arguing that a pistol is a weapon and that the Legislature never intended a weapon to be an instrument of crime.

The appellant wants us to twist plain English language so as to bring about a highly undesirable result. In resolving the issue raised by the appellant we are required to construe the language of legislative enactments according to their common and approved usage, Statutory Construction Act of November 25, 1970, P.L. 707, No. 230, added by Act of 1972, December 6, P.L. 1339, No. 290, §3, 1 Pa. C.S. §1903 (Appendix). A loaded pistol ready to be fired is clearly an instrument of crime. The appellant being caught in possession of such an instrument, the circumstances in which he was found carrying it in his hand in the public street at night time and his getting rid of it upon seeing the uniformed police officer constitute sufficient facts to support the trial judge's finding him guilty of possessing an instrument of crime.² There is no language in the Crimes Code excluding a loaded firearm or weapon from being an instrument of crime.

Order affirmed.

1 . 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.

2 . 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.”