Com. v. Ngow
| Decision Date | 11 January 1995 |
| Citation | 539 Pa. 294,652 A.2d 305 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Ly NGOW, Appellant. |
| Court | Pennsylvania Supreme Court |
Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.
The issue in this case is whether a baseball bat which has not been specially made or adapted for criminal use, can be an instrument of crime as defined by 18 Pa.C.S. § 907(c)(2).
Ngow was convicted of aggravated and simple assault, indecent assault, recklessly endangering another person, possessing an instrument of crime and criminal conspiracy. He was sentenced to concurrent terms of eight to twenty-three months on all charges except the instrument of crime charge, on which he was sentenced consecutively to one year probation, 16 Pa.D. & C.4th 598.
The convictions arose from an incident in which Ngow and four other youths exited a car and brutally attacked a man and a woman walking on the street. The male victim of the attack was punched, kicked and beaten with a baseball bat while the woman looked on.
Section 907 of the Crimes Code provides:
(a) Criminal instruments generally. A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.
* * * * * *
(c) Definitions. As used in this section the following words and phrases shall have the meanings given to them in this subsection:
"Instrument of Crime."
(1) Anything specially made or specially adapted for criminal use; or
(2) Anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.
The trial court found that a baseball bat is an instrument of crime based on a newspaper article published in the Philadelphia Inquirer and based upon a review of Pennsylvania caselaw in which it found that in a forty-six year period from 1935 to 1981, six cases were reported of baseball bats being used in assaults, whereas in the next ten year period there were twenty reported cases.
Superior Court affirmed, holding that the evidence was sufficient to support the determination that a baseball bat is an instrument of crime, 422 Pa.Super. 578, 619 A.2d 1374. Judge Del Sole, dissenting, pointed out that the panel which was deciding this case was bound by prior cases, including Commonwealth v. Senyszyn, 266 Pa.Super. 480, 405 A.2d 535 (1979), in which the court stated that a baseball bat "is not an instrument of crime."
Since this case does not involve the question of whether the baseball bat was specially adapted for criminal use, section 907(c)(1), the applicable part of the statute is section 907(c)(2). In order to be convicted under this subsection, the Commonwealth must prove the following elements: (1) possession of an instrument; (2) commonly used for criminal purposes; (3) under circumstances not manifestly appropriate for lawful use; (4) with the intent to employ it criminally. There is no disagreement that three of the four elements have been established beyond a reasonable doubt; the only question in the case is whether there is evidence which establishes element (2), that a baseball bat is commonly used for criminal purposes.
It is axiomatic that each element of a crime must be established beyond a reasonable doubt in order for a person to be convicted of that crime. One of the elements of the crime of possessing instruments of crime is that the instrument in question is "commonly used for criminal purposes." Contrary to the view of the Commonwealth and of the trial court, such proof may not consist of what one hears on the news, and it may not consist, without more, of raw numbers of cases during a given time period in which baseball bats were used in assaults. Rather, the court must have before it evidence concerning the proportionality of criminal use. Specifically, the question should take the form:...
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Robertson v. Pa Attorney Gen.
...of instrument of crime was modified, apparently in response to the Pennsylvania Supreme Court's decision in Commonwealth v. Ngow, 539 Pa. 294, 652 A.2d 305 (1995), by deleting "commonly" from the definition of instrument of the crime. Consequently, the amended definition read:(2) anything u......
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Com. v. Magliocco
...legal sufficiency of evidence to sustain a conviction for PIC where, as here, the defendant used a baseball bat. See Commonwealth v. Ngow, 539 Pa. 294, 652 A.2d 305 (1995) (Filed 1/11/95). The Court held that the Commonwealth could not sustain its burden of proof to show that a baseball bat......
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Com. v. Vida
...bats were "commonly used" for criminal purposes. Commonwealth v. Ngow, 539 Pa. 294, 652 A.2d 305, 306 (1995). In a concurring opinion in Ngow, one of the justices agreed with his colleagues that reversal was required, but suggested that the problem posed by the case be addressed by the legi......
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Com. v. Magliocco
...for criminal purposes such that it could qualify as an instrument of crime under the second cited definition. See Commonwealth v. Ngow, 539 Pa. 294, 652 A.2d 305 (1995). The Ngow Court held that the Commonwealth must present evidence of the proportionality of the criminal use of baseball ba......