Commonwealth v. Yaple

Superior Court of Pennsylvania

Commonwealth v. Yaple

357 A.2d 617, 238 Pa. Super. 336, 1976 Pa. Super. LEXIS 1711

Superior Court of Pennsylvania·Decided February 2, 1976·No. Appeal, 371·Published·Cited by 13 cases

Opinions

Opinion by

Cercone, J.,

Appellant was convicted, on December 20, 1974 in a non-jury trial of simple assault¹ and of two violations of the Uniform Firearms Act² which prohibits a convict from possessing a firearm and prohibits the carrying of a concealed firearm without a license. Post verdict motions were denied on January 27,1975, and on January 30,1975, appellant was sentenced.

Appellant now appeals to this court arguing first that his convictions under the Uniform Firearms Act were improper because the Commonwealth failed to prove the existence of an operable firearm. Appellant contends that because no firearm was introduced into evidence there was no proof of an operable firearm and, therefore, Commonwealth v. Layton, 452 Pa. 495 (1973), mandates that his convictions be set aside. Appellant’s reliance on Layton is, however, misplaced. In Layton it was stipulated that the weapon in question was inoperable; here there is no such stipulation. Furthermore, the court in Layton points out that there need not be direct proof of operability. Layton states at page 498: “A reasonable fact finder may, of course, infer operability from an object which looks like, feels like, sounds like or is like, a firearm. Such an inference would be reasonable without direct proof of operability.” In the instant case such an inference of operability was reasonably based on the testimony of the victim.

The only other matter worthy of discussion is appellant’s contention that the Commonwealth failed to prove his violation of §6106 (carrying a firearm without a license) because it did not prove the absence of a license. [339] While it is true that Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975), now requires that the Commonwealth prove the absence of a license, appellant’s case is not governed by McNeil. In Commonwealth v. Williams, 237 Pa. Superior Ct. 91, 95 (1975), our Court held that McNeil would be given only prospective application. Since appellant’s case was tried prior to McNeil the burden was on the defendant to prove that he had a license if, in fact, he did have one. Since he offered no such proof his conviction of §6106 was proper.

Affirmed.

Footnotes

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Opinion by

Cercone, J.,

Appellant was convicted, on December 20, 1974 in a non-jury trial of simple assault¹ and of two violations of the Uniform Firearms Act² which prohibits a convict from possessing a firearm and prohibits the carrying of a concealed firearm without a license. Post verdict motions were denied on January 27,1975, and on January 30,1975, appellant was sentenced.

Appellant now appeals to this court arguing first that his convictions under the Uniform Firearms Act were improper because the Commonwealth failed to prove the existence of an operable firearm. Appellant contends that because no firearm was introduced into evidence there was no proof of an operable firearm and, therefore, Commonwealth v. Layton, 452 Pa. 495 (1973), mandates that his convictions be set aside. Appellant’s reliance on Layton is, however, misplaced. In Layton it was stipulated that the weapon in question was inoperable; here there is no such stipulation. Furthermore, the court in Layton points out that there need not be direct proof of operability. Layton states at page 498: “A reasonable fact finder may, of course, infer operability from an object which looks like, feels like, sounds like or is like, a firearm. Such an inference would be reasonable without direct proof of operability.” In the instant case such an inference of operability was reasonably based on the testimony of the victim.

The only other matter worthy of discussion is appellant’s contention that the Commonwealth failed to prove his violation of §6106 (carrying a firearm without a license) because it did not prove the absence of a license. [339] While it is true that Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975), now requires that the Commonwealth prove the absence of a license, appellant’s case is not governed by McNeil. In Commonwealth v. Williams, 237 Pa. Superior Ct. 91, 95 (1975), our Court held that McNeil would be given only prospective application. Since appellant’s case was tried prior to McNeil the burden was on the defendant to prove that he had a license if, in fact, he did have one. Since he offered no such proof his conviction of §6106 was proper.

Affirmed.

Footnotes

Commonwealth v. Yaple, 357 A.2d 617, 238 Pa. Super. 336, 1976 Pa. Super. LEXIS 1711 (Pa. Ct. App. 1976).

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