Commonwealth v. Walton

380 A.2d 1278, 252 Pa. Super. 54, 1977 Pa. Super. LEXIS 2969

Opinions

CERCONE, Judge:

On May 8, 1975, at approximately 6:50 P.M., Terrance O’Neil, a Philadelphia police officer, observed Rozell Walton, appellant, in possession of a sword cane.¹ Officer O’Neil, seized the cane and arrested Walton for possession of an offensive weapon.² Appellant was found guilty in a non-jury trial. After denial of post-trial motions, he was sentenced to one year probation. This appeal followed.

Appellant contends, first, that a sword cane is not an offensive weapon within the meaning of Section 908(c), Crimes Code, which provides:

“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, pushbut- ton, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose.”

We agree with appellant that the words “knife, razor, or cutting instrument” do not include a sword cane, since we held in Commonwealth v. Gatto, 236 Pa.Super. 92, 344 A.2d 566 (1975) that this phrase is modified by the words following it, “the blade of which is exposed in an automatic way.” The blade of a sword cane is exposed by pushing a metal button on its side which releases a catch, allowing one to remove the sword from the lower part of the cane. The question, therefore, is whether a sword cane can be considered an “implement for the infliction of serious bodily injury which serves no common lawful purpose.” We find that it can. Its capacity to inflict serious bodily injury is beyond dispute, and even imagination run rampant fails to suggest any common lawful purpose for it.³

Appellant also contends that the phrase “no common lawful purpose” is unconstitutionally vague. It should be observed at the outset that such a contention must be decided in the context of the conduct of the party making it. As the court said in Commonwealth v. Heinbaugh, 467 Pa. 1, 4-5, 354 A.2d 244, 245-46 (1976):

“Absent the assertion of an infringement of First Amendment freedoms, the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged.

A criminal statute must give reasonable notice of the conduct which it proscribes to a person charged with violating its interdiction. Statutes which are so vague that they fail to provide such notice violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.”

The Heinbaugh decision cited Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926) for the following principle:

“That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary motions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.”

The question here is not whether the wording of the statute leaves gray areas, but whether appellant’s conduct falls within such an area. We hold that it does not. The words “common lawful purpose,” standing alone, might be considered vague, but when the entire phrase “or other implement for the infliction of serious bodily injury which serves no common lawful purpose” is considered, the meaning of the statute is clear: possession of an instrument the sole purpose of which is the infliction of bodily injury is forbidden. The conclusion that a sword cane is such an instrument requires no guesswork, and appellant’s claim to the effect that he was unfairly surprised by the application of the statute is unfounded.

The third issue appellant raises concerns Section 908(b), Crimes Code, which states:

“It is a defense under this section for the defendant to prove by a preponderance of evidence that he possessed or dealt with the weapon solely as a curio or in a dramatic performance, or that he possessed it briefly in consequence of having found it or taken it from an aggressor, or under circumstances similarly negativing any intent or likelihood that the weapon would be used unlawfully.”

It was this provision that appellant relied on at trial; he testified that he had purchased the sword cane as an antique and was carrying it home when he was arrested. The trial court rejected his story. Appellant now contends that the court erred in placing the burden of proving possession as a curio upon him, because Section 908(b) is unconstitutional insofar as it requires him to prove such possession.

The Commonwealth, of course, has the burden of proving beyond a reasonable doubt every fact necessary to constitute the crime charged. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The question, therefore, is whether in order to establish the offense defined in Section 908, the Commonwealth had the burden of proving beyond a reasonable doubt that appellant did not possess the sword cane as a curio.

The legislature gives us a succinct definition of the crime that makes no reference to the exception (note 2, supra). Section 908 simply commands that an "`implement for the infliction of serious bodily injury which serves no common lawful purpose' shall not be allowed to exist in our society." Commonwealth v. Ponds, 236 Pa.Super. 107, 111, 345 A.2d 253, 255 (1975). The primary concern of the statute is the nature of the weapon, not the intention of its possessor.⁴ The statute requires the Commonwealth to show no broader intent than the intent to possess the sword cane, which intent appellant does not dispute here. A defendant who invokes the curio exception seeks to avoid conviction by adding an ingredient to the otherwise criminal conduct, instead of "subtracting" one by attempting to persuade the court that an essential fact is missing from the Commonwealth's case. Hence, the exception does not negate a material element of the offense set forth in Section 908(a), and the defendant may therefore be required to prove it. Cf. Commonwealth v. Stoffan, 228 Pa.Super. 127, 323 A.2d 318 (1974).

Appellant points out that the general definitions section of the Crimes Code, Section 103, defines the term “element of an offense” as including, “Such conduct or such attendant circumstances or such a result of conduct as . negatives an excuse or justification for such conduct.” Since, appellant asserts, the curio defense is an excuse or justification for possession of an offensive weapon, and Section 103 defines the negation of an excuse or justification as an element of the offense, the Commonwealth has the burden of negating the curio defense beyond a reasonable doubt. We disagree. Even if we accepted the premises of appellant’s syllogism as true for the sake of argument, appellant at best only demonstrates that Sections 103 and 908(b) are contradictory. However, this apparent contradiction is readily resolved in the Commonwealth’s favor by the Statutory Construction Act, 1 Pa.C.S. § 1933 (Supp.1977),⁵ which provides in pertinent part:

“Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision . . ..”

Since Section 908(b) refers explicitly to the offense of possession of an offensive weapon and is as specific concerning the burden of proof as it could be, it controls in that regard over appellant’s interpretation of Section 103.

Appellant’s final argument, that the officer’s observation of him in possession of the cane was insufficient to provide probable cause for the arrest, is without merit and need not be discussed.

Judgment of sentence affirmed.

HOFFMAN, J., files a dissenting opinion. SPAETH, J., files a dissenting opinion.

Footnotes

1

. 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.

2

. Act of December 6, 1972, P.L. 1482, §1,18 Pa.C.S. 908 (hereinafter referred to as Crimes Code), which provides: “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.”

3

. Appellant’s brief is highly critical of our decision in Gatto, supra, in which we held a thirty-inch knife to fall within the prohibition of Section 908. Counsel imaginatively hypothesizes several legitimate uses, mostly culinary, for that knife, but gives us not a single example of a lawful use for a sword cane.

4

. Both dissenting opinions assert that by allowing the curio defense the legislature impliedly makes criminal intent an element of the offense. The fallacy in this argument is that a person might possess one of the described weapons without intending to use it for criminal or decorative or dramatic purposes. One might purchase a sword cane with the notion of using it to carve a leg of lamb; one might also impulsively purchase it for no particular reason. In either case the defense would be unavailable. The curio defense does not require the disproving of criminal intent but rather the establishing of a specific intent to use the item for a narrow purpose deemed acceptable by the legislature.

5

. Act of November 25, 1970, P.L. 707, No. 230, added December 6, 1972, P.L. 1339, No. 290, § 3, immed. effective.