Com. v. Gatto

• Decision Date: 22 September 1975
• Citation: 344 A.2d 566,236 Pa.Super. 92
• Parties: COMMONWEALTH of Pennsylvania v. David GATTO, Appellant.
• Court: Pennsylvania Superior Court

Page 566

344 A.2d 566

236 Pa.Super. 92

COMMONWEALTH of Pennsylvania v. David GATTO, Appellant.

Superior Court of Pennsylvania.

Sept. 22, 1975.

Vito P. Geroulo, Asst. Public Defender, Scranton, for appellant.

Paul R. Mazzoni, Dist. Atty., Scranton, for appellee.

Before WATKINS, P.J. and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

CERCONE, Judge:

This appeal arises from appellant's conviction of possession of a prohibited offensive weapon. ¹ In the early morning of October 24, 1975, at approximately 3:30 a.m., two Scranton police officers observed appellant removing a long shiny object from the trunk of an automobile and placing it in the front seat. Appellant then sped away from the area at a high rate of speed and after being pursued for several blocks was pulled over. When the officer approached the car there was in plain view the tip of a large shiny knife, which was approximately 30 inches long. After being tried and found guilty by a jury of possession of an offensive weapon, appellant filed motions for a new trial and in arrest of judgment which were denied. Appellant now appeals to this court raising three issues.

First appellant contends that the Commonwealth's evidence was not sufficient in law to warrant the guilty verdict. More specifically appellant claims that the evidence was insufficient to show that he had knowledge of the knife's presence. This claim is based on the fact that the officers could not without doubt testify that the object transferred from the trunk to the front seat was the knife in question.

'As we have repeatedly said the test in determining if the evidence is sufficient to sustain a criminal conviction is, whether accepting as true all of the evidence of the Commonwealth, and all reasonable inferences arising therefrom, upon which the jury could properly have reached its verdict, was it sufficient in law to prove beyond a reasonable doubt that the appellant was guilty of the crime of which he stands convicted. See Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971).'

Commonwealth v. Burton, 450 Pa. 532, 534, 301 A.2d 599, 600 (1973). See also Commonwealth v. Elam, 221 Pa.Super. 315, 316, 293 A.2d 103 (1972). Applying this test to the instant case it is clear that the fact that the knife was in plain view in the front seat is sufficient evidence from which the jury could infer that appellant knew of the knife's presence appellant states his second issue as follows: 'The activity of David Gatto falls under Section 312 ² of the new criminal code in that this was a de minimis infraction wherein the defendant did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense.' This issue raises two questions: (1) does Section 908 require that intent to employ the weapon criminally be proven, and (2) does the weapon in question fall under the prohibition of Section 908. The first question is easily answered. The Comments to the Model Penal Code ³ clearly state that mere possession of an item prohibited by Section 908, even if there is no intent to employ such item criminally, is sufficient to convict one of violation of Section 908. See also Commonwealth v. Ponds,--- Pa.Super. ---, 345 A.2d 253 (1975).

The second question, whether the weapon falls under Section 908, is not as easily resolved. Section 908 defines offensive weapons as follows:

'(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, pushbutton, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose.'

It could be argued that the weapon in question is a knife and is therefore prohibited by Section 908 but this would be a strained reading of this statute. The items 'knife, razor, or cutting instrument' are modified by the phrase 'the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise.' If any other reading were given to this statute a butter knife, or a pack of razor blades would have to be considered offensive weapons. Common sense tells us that this clearly was not the legislative intent. ⁴ Therefore if the 30 inch knife is prohibited by Section 908 it must be included under the phrase 'or other implement for the infliction of serious bodily injury which serves no common lawful purpose.' It is clear that the weapon can be used for the infliction of serious bodily injury and therefore we are faced only with the question of whether such weapon serves any common lawful purpose. This phrase is new and has as yet not been interpreted in Pennsylvania. At the outset it might appear that we have the option of interpreting 'serves no common lawful purpose' several ways: (1) it could be so strictly construed that no item would be prohibited by the phrase for, if one looks long enough, a common lawful purpose could be found for everything, metal knuckles, for instance, could be used to crack walnuts; (2) it could be so loosely construed that all items would be prohibited by the phrase; or (3) it could be given a...