In Re Rbg

932 A.2d 166
CourtSuperior Court of Pennsylvania
DecidedAugust 22, 2007
StatusPublished

This text of 932 A.2d 166 (In Re Rbg) 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.

Bluebook
In Re Rbg, 932 A.2d 166 (Pa. Ct. App. 2007).

Opinion

932 A.2d 166 (2007)

In the Interest of R.B.G., a Minor,
Appeal of R.B.G., Appellant.

Superior Court of Pennsylvania.

Filed August 22, 2007.

*167 Jeffery A. Rowe, York, for appellant.

Hugh S. Rebert, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: FORD ELLIOTT, P.J., TODD, and COLVILLE[*], JJ.

OPINION BY TODD, J.:

¶ 1 R.B.G., a minor, appeals the August 17, 2006 dispositional order, entered by the Honorable Joseph C. Adams of the York County Court of Common Pleas, following R.B.G.'s adjudication of delinquency on charges of possession of a small amount of marijuana,[1] possession of drug paraphernalia,[2] possession of a firearm by a minor,[3] possession of instruments of crime — criminal instruments generally,[4] possession of instruments of crime — possession of weapon,[5] prohibited offensive weapon,[6] and firearm not to be carried without a license.[7] Upon review, we affirm in part, reverse in part, and remand.

¶ 2 The uncontroverted facts of this matter, as revealed by the adjudication hearing transcript, are as follows. R.B.G. was charged with the above offenses when, on July 15, 2006, his father, while looking in the trunk of the family car, discovered a pistol, a knit ski mask, and brown gardening gloves in the outside pocket of R.B.G.'s guitar case. At the hearing, R.B.G.'s father testified that R.B.G. had borrowed the car the previous evening. R.B.G.'s father stated that, upon discovering the items in the trunk, he took them into the house and questioned R.B.G. about them. R.B.G. told his father that he needed the items for his own protection and that he had purchased the handgun from someone for $40. R.B.G.'s father testified that, during the course of his conversation with R.B.G., R.B.G. became extremely angry and agitated. R.B.G.'s father then contacted the police.

¶ 3 Corporal Keith Dyke of the Northern York Regional Police Department was dispatched to the residence. He testified that he spoke privately with R.B.G. in his room, who admitted that the gun belonged to him and that he used it for protection. R.B.G. also admitted that he had used the gun for target practice in a rural area. He *168 further admitted that the reason he had the ski mask and gloves was that he was contemplating committing a robbery, but had not done so.

¶ 4 As a result of R.B.G.'s admissions, Corporal Dyke suggested to R.B.G.'s father that the father search R.B.G.'s bedroom for additional contraband. R.B.G.'s father did so and found a marijuana pipe, expended cartridge rounds for the handgun, and a small amount of marijuana in a baggie. He turned this additional evidence over to the police.

¶ 5 Following the adjudication hearing, the juvenile court adjudicated R.B.G. delinquent of each of the aforementioned offenses. On August 17, 2006, at a disposition hearing, the juvenile court placed R.B.G. in the New Castle Secure Program and assessed fees and court costs against him. R.B.G. timely appealed, presenting the following questions for our consideration, which we have paraphrased:

I. Whether the evidence was sufficient to support Appellant's adjudication of delinquency for possession of instruments of crime, 18 Pa.C.S.A. § 907(b)?
II. Whether the evidence was sufficient to support Appellant's adjudication of delinquency for prohibited offensive weapons, 18 Pa.C.S.A. § 908?
III. Whether the evidence was sufficient to support Appellant's adjudication of delinquency for a firearm not to be carried without a license, 18 Pa.C.S.A. § 6106, as the statute does not render Appellant ineligible to carry a firearm based upon his age, and whether 18 Pa. C.S.A. § 6110.1 should apply?

(Appellant's Brief at 4.)

¶ 6 When presented with a claim that the evidence was insufficient to sustain an adjudication,

an appellate court, viewing all the evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth as the verdict winner, must determine whether the evidence was sufficient to enable the fact finder to find that all of the elements of the offenses were established beyond a reasonable doubt.

Commonwealth v. Hawkins, 549 Pa. 352, 366, 701 A.2d 492, 499 (1997). Furthermore, "[t]he Commonwealth may sustain its burden by proving the crime's elements with evidence which is entirely circumstantial and the trier of fact, who determines credibility of witnesses and the weight to give the evidence produced, is free to believe all, part, or none of the evidence." Commonwealth v. Brown, 701 A.2d 252, 254 (Pa.Super.1997) (citations omitted).

¶ 7 Appellant first argues that, because he was not found to have concealed any instruments of crime upon his person, the evidence was insufficient to sustain the adjudication of delinquency for the offense of possessing instruments of crime, 18 Pa. C.S.A. § 907(b), which provides:

(b) Possession of weapon. — A person commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally.

8 Pa.C.S.A. § 907(b).

¶ 8 The juvenile court and the Commonwealth concede that the evidence was insufficient to support Appellant's adjudication under Section 907(b) because no evidence was presented that the handgun at issue was concealed on Appellant's person. (Juvenile Court Opinion, 10/12/06, at 4[8]; Commonwealth Brief at 7.) Indeed, *169 the evidence presented was to the contrary. Accordingly, we vacate Appellant's adjudication of delinquency with regard to Section 907(b).

¶ 9 Appellant next argues that the evidence was insufficient to support his adjudication of delinquency for prohibited offensive weapons, 18 Pa.C.S.A. § 908, because a handgun does not fall within the definition of such weapons under this section. Section 908 defines "offensive weapons" as:

Any bomb, grenade, machine gun, sawed-off shotgun with a barrel less than 18 inches, 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 purpose of the infliction of serious bodily injury which serves no common lawful purpose.

18 Pa.C.S.A. § 908(c).

¶ 10 The juvenile court and the Commonwealth concede that the evidence presented was insufficient to support Appellant's adjudication under Section 908 because handguns specifically have been held by our Supreme Court, as well as this Court, not to be prohibited offensive weapons under Section 908. See Commonwealth v. Harper, 485 Pa. 572, 580, 403 A.2d 536, 540 (1979); Commonwealth v. Rose, 265 Pa.Super. 159, 180, 401 A.2d 1148, 1159 (1979). Furthermore, the juvenile court reasoned, and we agree, that because the handgun at issue here could be carried for a lawful purpose, Appellant was improperly charged and adjudicated delinquent under Section 908 on this additional basis.

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In the Interest of R.B.G.
932 A.2d 166 (Superior Court of Pennsylvania, 2007)

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Bluebook (online)
932 A.2d 166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-rbg-pasuperct-2007.