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COMMONWEALTH v. LAYTON (03/30/72)

decided: March 30, 1972.

COMMONWEALTH
v.
LAYTON, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Dec. T., 1970, No. 148, in case of Commonwealth of Pennsylvania v. Robert Layton.

COUNSEL

Harold Yaskin, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

Deborah E. Glass, Assistant District Attorney, with her Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Dissenting Opinion by Cercone, J. Hoffman and Spaulding, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 220 Pa. Super. Page 436]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Cercone, J.:

Defendant, Robert Layton, was indicted by the grand jury on a charge of unlawful possession of a firearm after having been convicted of a crime of violence (burglary).

At trial, it was shown that on October 15, 1970 the police arrived at defendant's home in response to a call from defendant's wife. The defendant opened the door, saw the police, and slammed the door. The arresting officer then entered and observed defendant with a gun at his side, which in the officer's estimation, defendant was trying to make work. After an abbreviated confrontation, the officer disarmed defendant of a .22 caliber revolver loaded with six live rounds and one spent shell. The Commonwealth stipulated that the pistol could not have been fired at the time it was found in defendant's possession.

Defendant was found guilty and after denial of post-trial motions, he was sentenced to a term of imprisonment of six to twelve months in the county prison and was ordered to pay a fine of $250. This appeal followed.

The question before us in this appeal is to what extent a firearm must be operable in order to fall within the provisions of the Uniform Firearms Act which ...


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