Appeal from order of Municipal Court, Criminal Division, of Philadelphia, April T., 1974, No. 988, in case of Commonwealth of Pennsylvania v. Kenneth Ponds.
Douglas Riblet, Assistant Defender, with him John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.
Deborah E. Glass, Assistant District Attorney, with her Mark Sendrow and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J. Dissenting Opinion by Hoffman, J.
[ 236 Pa. Super. Page 109]
This appeal arises from appellant's conviction of possession of a sawed-off shotgun in violation of Section 908*fn1 of the Crimes Code.
At approximately 6:00 P.M. on April 6, 1974, a Philadelphia police officer, in response to a radio call, came upon appellant standing near the steps of a house holding a sawed-off shotgun. Appellant attempted to dispose of the shotgun, but it was retrieved by the police officer. Appellant was arrested and a live round of shot-gun ammunition was found in his coat pocket. At trial appellant testified that he had seen the shotgun, but denied both having possession of it and attempting to dispose of it.
Appellant now argues that the sawed-off shotgun was not a prohibited offensive weapon as defined by Section 908 because it was inoperable.*fn2 Therefore, the question we must now decide is whether the legislature intended an operability requirement to be included in Section 908 of the Crimes Code. The relevant parts of Section 908 are as follows:
"(a) Offense defined. -- A person commits a misdemeanor of the first degree if, except as authorized by law, he makes repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon. . . .
[ 236 Pa. Super. Page 110]
"(c) Definition. -- As used in this section 'offensive weapon' means any bomb, grenade, machine gun, sawed-off shotgun, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose."
As can be seen, the statute itself does not answer the question.
Appellant argues that the case of Commonwealth v. Layton, 452 Pa. 495 (1973) compels the conclusion that a sawed-off shotgun must be operable in order to violate Section 908. Layton involved the determination of whether a person in possession of an inoperable firearm may have been convicted under Section (d) of the Uniform Firearms Act which provided: "No person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm or have one in his possession or under his control."*fn3 The court in Layton reached the following conclusion: "The Act, however, was obviously intended to cover only objects which could cause violence by firing a shot. An object, therefore, which is incapable of firing cannot be a cause of violence within the intention of Section (d) of the Act. In this case, the parties agree that the object was not capable of firing -- inoperable. The appellant did not therefore violate Section (d) of the Act." 452 Pa. at 498. While we feel ...