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COMMONWEALTH v. POPE (03/27/73)

decided: March 27, 1973.

COMMONWEALTH, APPELLANT,
v.
POPE



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1970, No. 786, in case of Commonwealth of Pennsylvania v. Phillip Pope.

COUNSEL

James D. Crawford, Deputy District Attorney, with him Robyn Greene, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.

Jonathan Miller, Assistant Defender, with him Mike Hanford, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J., in Support of Affirmance. Hoffman and Spaulding, JJ., join in this opinion. Opinion by Watkins, J., in Support of Reversal. Wright, P. J., and Cercone, J., join in this opinion.

Author: Per Curiam

[ 225 Pa. Super. Page 253]

The six judges who heard and decided this appeal being equally divided, the order is affirmed.

Disposition

Order affirmed.

Opinion by Jacobs, J., in Support of Affirmance:

In this case involving section (e.2) of the Uniform Firearms Act,*fn1 the lower court sustained appellee's demurrer following a presentation of the Commonwealth's case. The evidence presented by the Commonwealth was to the effect that the appellee had been carrying a rifle with a 22-inch barrel on a street in Philadelphia. From the order sustaining the demurrer, the Commonwealth has appealed.

Because the evidence presented by the Commonwealth was not in conformity with the indictment, the lower court's order should be affirmed.

The indictment charges the appellee with carrying "a firearm, to wit, a rifle." A firearm is carefully defined in section (a) of the Uniform Firearms Act, 18 P.S. ยง 4628(a), and means, inter alia, "any rifle with a barrel less than fifteen inches." The caption of the indictment lists the charge as "Violation of The Uniform Firearm[s] Act -- Carrying a Firearm Without a

[ 225 Pa. Super. Page 254]

License." Since the statute defines "firearm" the statutory definition controls and it is plain that the appellee was charged with possession of the type of rifle which meets the statutory definition of a firearm, which is a rifle having a barrel of less than 15 inches. I agree with the following quotation from Judge Sloane's opinion in Commonwealth v. Booker, 19 Pa. D. & C.2d 139, 141 (1959): "In construing the meaning of an indictment charging a criminal violation of a statute, the definitions ...


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