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COMMONWEALTH v. LEE (03/27/73)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 27, 1973.

COMMONWEALTH
v.
LEE, APPELLANT

Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1971, No. 662, in case of Commonwealth of Pennsylvania v. Clyde Lee.

COUNSEL

Anne Johnson, Mike Hanford and Jonathan Miller, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.

James J. Wilson and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Cercone, J.

Author: Cercone

[ 224 Pa. Super. Page 18]

Defendant contends in this appeal that his conviction under the Uniform Firearms Act*fn1 was improper since the Commonwealth did not prove that the gun involved was operable or could be made operable by the exercise of reasonable repairs. For support of this contention defendant relies on this writer's dissenting opinion in Com. v. Layton, 220 Pa. Superior Ct. 435 (1972) (Hoffman and Spaulding, JJ., join), allocatur granted. Although defendant correctly sets forth the argued-for rule of operability presented in the Layton dissent, that rule, even if controlling, would not be applicable under the facts of this case. The Layton dissent would not require, as this defendant seems to contend,

[ 224 Pa. Super. Page 19]

    that the Commonwealth establish operability as an essential element in the prosecution under the Act, nor would it place upon the Commonwealth the burden of proving operability or the state of repairability of a "firearm" based upon a defendant's mere allegation of inoperability. The Commonwealth complies with the language of the Act by presenting sufficient evidence of prohibited conduct with respect to a "firearm" which would constitute a prima facie violation of the Act. Therefore, any pistol or revolver meeting the stated dimensions and commonly understood as the article it purports itself to be is sufficient to sustain a prosecution under the Act. Any such pistol or revolver would continue to qualify as a "firearm" unless and until evidence is presented by either side establishing the inoperability of the gun involved. Only then, when the issue of inoperability is thus introduced into evidence, would we place upon the Commonwealth the additional requirement of proving that the gun could be made operable by the exercise of reasonable repairs. Unlike the Layton case,*fn2 no such issue of inoperability was ever raised and no evidence to establish inoperability was ever presented.

Accordingly, in consideration of this and all other assignments of error, judgment of sentence is affirmed.

Disposition

Judgment of sentence affirmed.


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