Commonwealth v. Schilling
| Decision Date | 12 June 1981 |
| Citation | 288 Pa.Super. 359,431 A.2d 1088 |
| Parties | COMMONWEALTH of Pennsylvania, v. Martin SCHILLING, Appellant. |
| Court | Pennsylvania Superior Court |
Kent D. Mikus, Lancaster, for appellant.
Richard H. Horn, Asst. Dist. Atty., York, submitted a brief on behalf of Commonwealth, appellee.
Before CERCONE, President Judge, and WATKINS and MONTGOMERY, JJ.
This is an appeal from the judgment of sentence by a judge and jury on the charges of unlawful restraint, [1] rape, [2] involuntary deviate sexual intercourse, [3] indecent assault [4] and a violation of the Uniform Firearms Act. [5] After being sentenced to 31/2 to 7 years each on the rape and involuntary deviate sexual intercourse charges, such sentences to run concurrently, Mr. Schilling received a suspended sentence on the remaining convictions. This appeal follows.
On appeal Mr Schilling attacks several of his convictions on three theories: (1) he contends that his conviction under the Uniform Firearms Act for committing a crime with a firearm was improper because the gun in question did not meet the statutory definition of a "firearm;" (2) he contends that he was improperly convicted of "unlawful restraint" because he did not expose the victim to an actual danger of "serious bodily injury;" and (3) he contends that his convictions for the three sex crimes were improper because the Commonwealth failed to adequately prove the absence of a spousal relationship between Mr. Schilling and the victim. Finding Mr. Schilling's first and second contentions persuasive we vacate his convictions for unlawful restraint and for committing a crime with a firearm, but affirm his other convictions concerning rape and involuntary deviate sexual intercourse because we find his final contention to be without merit.
On the evening of August 3, 1977, Mr. Schilling and the prosecutrix, whom he met only three days before, went out on a date in Mr. Schilling's car. During the course of the evening appellant Schilling drove to a rural area and parked. The two talked for about half of an hour and thereafter engaged in petting and kissing. The prosecutrix asked to be taken home, but Mr. Schilling continued in an attempt to seduce her. The prosecutrix then insisted on going home, but Mr. Schilling responded by asking her if she would have intercourse with him. In an attempt to discourage his romantic advances, she told him that she was menstruating, Mr. Schilling, however, simply changed his request to one for oral intercourse. He suddenly pulled out a pistol from the glove compartment of his car and placed it to the prosecutrix's left temple. Out of fear for her life, she agreed to comply with anything Mr. Schilling requested. After the gun was placed in the back seat, the act of oral intercourse was consummated whereupon Mr. Schilling became remorseful and asked her to forgive him. Subsequently, Mr. Schilling put the gun into a holster in a compartment in front of the car and informed the prosecutrix that it was only a pellet gun. Testimony at trial indicated that the instrument in question was, in fact, a pellet gun operable on CO 2 cartridges. This type of gun is also referred to as an "air pistol."
Appellant Schilling's first assignment of error concerns his conviction under the Uniform Firearms Act for committing a crime with a firearm. The basis of this contention is that the lower court erred in ruling as a matter of law that the gun used by the defendant was a "firearm" under the Act. We find this contention to be persuasive and hold that a pellet or "B-B" gun is not contemplated as a "firearm" under the Uniform Firearms Act. [6] In Commonwealth v. Lowary, 463 Pa. 408, 345 A.2d 170 (1978) the Supreme Court of this Commonwealth specifically found that a spring-activated pellet gun was not a "firearm" under the Uniform Firearms Act. As the trial court, in its opinion, correctly points out, the act was amended effective after the pertinent date in the Lowary case so as to provide a definition of the term "firearm." See 18 Pa.C.S. § 6102. [7] The definition promulgated in this statutory amendment deals solely in terms of the barrel-length of the weapon in question. [8] Id. Nevertheless, contrary to the decision of the trial court, we are of the opinion that the efficacy of Lowary was not obviated by the intervening amendment concerning barrel-length. Rather, we hold that the Lowary common usage definition of the term "firearm" is generally applicable except that it is qualified by the length limitations specified in the statute. This is the only reasonable interpretation [9] of the statute for it would be absurd to hold that a "cap gun" or "water pistol" was intended to fall within the definition of a "firearm" simple by virtue of the fact that the length of the barrel on these children's toys is less than twelve inches.
The issue, therefore, becomes whether or not the specific CO 2 operated B-B gun used in the instant case is a "firearm" as defined in the Lowary common usage sense. The B/B gun used in the Lowary case was a spring-activated one which the court held did not fall within the meaning of the term "firearm" as it is commonly used. However, the Supreme Court expressly left open the question of whether or not guns operable by other means may be considered "firearms" under the act:
(T)he definition of firearm may not be necessarily limited to those weapons from which a shot is dispersed by gunpowder alone. Weapons using some propellant other than gunpowder might also be properly classified as a firearm. Those activated by mechanical means such as springs, however, are not firearms within the statute.
Commonwealth v. Lowary, 463 Pa. at 411, 345 A.2d at 171. Being mindful of this language, we nevertheless find that the CO 2 B-B gun does not fall within the common and approved usage of the term "firearm." Rather, this type of B-B gun is more like a spring-type B-B gun than an actual "firearm" as that term is commonly used and understood.
This conclusion is supported when the other sections of Title 18 are read in pari materia [10] with the Uniform Firearms Act. In this regard, we observe that "the Legislature has explicitly recognized that a B-B gun is not a firearm." Commonwealth v. Lowary, 226 Pa.Super. 115, 117, 313 A.2d 317, 318 (1973) (). That is, 18 Pa.C.S. § 6304, pertaining to the sale and use of "air rifles" defines this term as: "any air gun, air pistol, spring gun, spring pistol, B-B gun, or any implement that is not a firearm, which impels a bullet of any kind with a force that can reasonably be expected to cause bodily harm." (emphasis added). Thus, the Legislature provided that "B-B guns," "air pistols" and "spring guns", are not "firearms." In addition, the entire section on "air rifles" sets out rules and regulations for their sale, transfer, use, discharge and possession. 18 Pa.C.S. § 6304. This is another indication that a B-B gun or air pistol is not a "firearm" because the sections of the Uniform Firearms Act dealing with the carrying of firearms without a license, 18 Pa.C.S. § 6106, the requirement that former convicts are not allowed to own firearms, 18 Pa.C.S. § 6105, the persons to whom delivery of a firearm shall not be made, 18 Pa.C.S. § 6110, the sale of firearms, 18 Pa.C.S. § 6111, and the requirement that retail dealers be licensed, 18 Pa.C.S. §§ 6112, 6113, would otherwise overlap and contradict the previously mentioned rules and restrictions of 18 Pa.C.S. § 6304. Surely, this is not what the Legislature intended.
Since a CO 2 operated pellet gun is not a "firearm" under the Uniform Firearms Act, we conclude that appellant Schilling was erroneously convicted for committing a crime with a firearm in violation of 18 Pa.C.S. § 6103. We, therefore, reverse his conviction for this offense.
The second contention made by the defendant is that he was improperly convicted of "unlawful restraint" because he never exposed the prosecutrix to serious bodily injury. As appellant Schilling correctly points out, the Crimes Code section with which he was charged clearly requires a showing of this element:
§ 2902. Unlawful restraint
A person commits a misdemeanor of the first degree if he knowingly:
(1) restrains another unlawfully in circumstances exposing him to risk of serious bodily injury;
18 Pa.C.S. § 2902(1).
In addition, it is crucial to note that Mr. Schilling was not charged with subsection two of this crime which is committed when the accused knowingly "(2) holds another in a condition of involuntary servitude." Id. at § 2902(2). Clearly, subsection one requires the Commonwealth to prove as part of its prima facie case that the defendants put another in actual danger of serious bodily injury. See, e. g., Commonwealth v. Trowbridge, 261 Pa.Superior 109, 395 A.2d 1337 (1978). Subsection two, however, has no such requirement, but instead requires proof of a condition of involuntary servitude.
In Trowbridge, this Court noted that with respect to the crime of recklessly endangering another person that mere apparent ability to inflict harm is not enough to support a conviction for this crime. It was held that an actual danger of harm must be shown. Although Trowbridge did not deal with the same crime we have here, it is important with respect to the fact that the Commonwealth had to prove an actual danger of serious bodily injury with regard to the pointing of an air rifle. In Trowbridge we held that the Commonwealth must prove either that the gun was loaded or that the surrounding circumstances were inherently dangerous in order to sufficiently show an actual danger of serious bodily injury. As was the case in Trowbridge, the Commonwealth here has not proven that the gun was...
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