Commonwealth v. Ponds

Superior Court of Pennsylvania

Commonwealth v. Ponds

345 A.2d 253, 236 Pa. Super. 107, 1975 Pa. Super. LEXIS 1679

CourtSuperior Court of Pennsylvania

DecidedSeptember 22, 1975

DocketAppeal, 260

StatusPublished

Cited by34 cases

This text of 345 A.2d 253 (Commonwealth v. Ponds) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Commonwealth v. Ponds, 345 A.2d 253, 236 Pa. Super. 107, 1975 Pa. Super. LEXIS 1679 (Pa. Ct. App. 1975).

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Opinion by

Cercone, J.,

This appeal arises from appellant’s conviction of possession of a sawed-off shotgun in violation of Section 908¹ of the Crimes Code.

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.² Therefore, the question we must now decide is whether the legislature intended an operability requirement to be included in Section 908 of the Crimes Code. The relevant parts of Section 908 are as follows:

“(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]*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.”³ The court in Layton reached the following conclusion: “The Act, however, was obviously intended to cover only objects which could cause violence by firing a shot. An object, therefore, which is incapable of firing cannot be a cause of violence within the intention of Section (d) of the Act. In this case, the parties agree that the object was not capable of firing — inoperable. The appellant did not therefore violate Section (d) of the Act.” 452 Pa. at 498. While we feel that Layton correctly resolved the operability problem under the Uniform Firearms Act, after consideration of the above mentioned, and other, statutes and the purposes behind such statutes, we feel that the operability rule in Layton should not be ap[111]*111plied to Section 908. The use of different standards of operability for different legislation is not unreasonable in light of the different purposes behind the legislation. A similar result was reached by the New York courts in the case of People v. DeWitt, 285 App. Div. 1157, 140 N.Y.S.2d 190 (1955), where it was held that although an inoperable pistol was not a firearm under the New York firearm statute, possession of such inoperable pistol could nevertheless be prohibited by a dangerous weapon statute.⁴

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”⁵ shall not be allowed to exist in our society.

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.⁶ Can a sawed-off shotgun be said to be any less objectional, disagreeable or obnoxious because it is inoperable? Section 908 reflects a strong public policy to dissuade persons from carrying and brandishing weapons or any “objects” which have [112]*112the appearance or characteristics of an offensive weapon. Much sorry experience has taught members of our society to be inclined to accept such objects for what they appear to be. To establish a violation of the statute prohibiting the carrying of a sawed-off shotgun, it is sufficient to show that the weapon possessed the outward appearance and characteristics of a sawed-off shotgun.

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.⁷ Section 907⁸ of the Crimes Code demonstrates this point. 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.”⁹ 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.

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[113]*113lature did not intend to impose the operability requirement to Section 908, which it imposed in the preceding section. The legislature in Section 908 was not interested in the operability of a sawed-off shotgun, but merely in its possession. The fact that a sawed-off shotgun is at a given time inoperable does not discount the danger which the legislature intended to prevent. The mere possession of an item identifiable as a sawed-off shotgun, even though inoperable, is still an ominous presence, and has no place nor possible use in the community and should be prohibited.

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Opinion by

Cercone, J.,

This appeal arises from appellant’s conviction of possession of a sawed-off shotgun in violation of Section 908¹ of the Crimes Code.

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.² Therefore, the question we must now decide is whether the legislature intended an operability requirement to be included in Section 908 of the Crimes Code. The relevant parts of Section 908 are as follows:

“(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]*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.”³ The court in Layton reached the following conclusion: “The Act, however, was obviously intended to cover only objects which could cause violence by firing a shot. An object, therefore, which is incapable of firing cannot be a cause of violence within the intention of Section (d) of the Act. In this case, the parties agree that the object was not capable of firing — inoperable. The appellant did not therefore violate Section (d) of the Act.” 452 Pa. at 498. While we feel that Layton correctly resolved the operability problem under the Uniform Firearms Act, after consideration of the above mentioned, and other, statutes and the purposes behind such statutes, we feel that the operability rule in Layton should not be ap[111]*111plied to Section 908. The use of different standards of operability for different legislation is not unreasonable in light of the different purposes behind the legislation. A similar result was reached by the New York courts in the case of People v. DeWitt, 285 App. Div. 1157, 140 N.Y.S.2d 190 (1955), where it was held that although an inoperable pistol was not a firearm under the New York firearm statute, possession of such inoperable pistol could nevertheless be prohibited by a dangerous weapon statute.⁴

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”⁵ shall not be allowed to exist in our society.

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.⁶ Can a sawed-off shotgun be said to be any less objectional, disagreeable or obnoxious because it is inoperable? Section 908 reflects a strong public policy to dissuade persons from carrying and brandishing weapons or any “objects” which have [112]*112the appearance or characteristics of an offensive weapon. Much sorry experience has taught members of our society to be inclined to accept such objects for what they appear to be. To establish a violation of the statute prohibiting the carrying of a sawed-off shotgun, it is sufficient to show that the weapon possessed the outward appearance and characteristics of a sawed-off shotgun.

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.⁷ Section 907⁸ of the Crimes Code demonstrates this point. 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.”⁹ 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.

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[113]*113lature did not intend to impose the operability requirement to Section 908, which it imposed in the preceding section. The legislature in Section 908 was not interested in the operability of a sawed-off shotgun, but merely in its possession. The fact that a sawed-off shotgun is at a given time inoperable does not discount the danger which the legislature intended to prevent. The mere possession of an item identifiable as a sawed-off shotgun, even though inoperable, is still an ominous presence, and has no place nor possible use in the community and should be prohibited.

For the above reasons we hold that the offensive weapons prohibited by Section 908 are prohibited whether they are operable or inoperable.¹⁰

Accordingly the decision of the lower court is affirmed.

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345 A.2d 253, 236 Pa. Super. 107, 1975 Pa. Super. LEXIS 1679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ponds-pasuperct-1975.

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