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COMMONWEALTH v. GATTO (09/22/75)

decided: September 22, 1975.

COMMONWEALTH
v.
GATTO, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lackawanna County, No. 1397 of 1973, in case of Commonwealth of Pennsylvania v. David Gatto.

COUNSEL

Vito P. Geroulo, Assistant Public Defender, for appellant.

Anthony J. Popeck, Assistant District Attorney, and Paul R. Mazzoni, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 236 Pa. Super. Page 94]

This appeal arises from appellant's conviction of possession of a prohibited offensive weapon.*fn1 In the early morning of October 24, 1975, at approximately 3:30 a.m., two Scranton police officers observed appellant removing a long shiny object from the trunk of an automobile and placing it in the front seat. Appellant then sped away from the area at a high rate of speed and, after being pursued for several blocks, was pulled over. When one of the officers approached the car, there was in plain view the tip of a large shiny knife, which was approximately 30 inches long. After being tried and found guilty by a jury of possession of an offensive weapon, appellant filed motions for a new trial and in arrest of judgment which were denied. Appellant now appeals to this court raising three issues.

First, appellant contends that the Commonwealth's evidence was not sufficient in law to warrant the guilty verdict. More specifically, appellant claims that the evidence was insufficient to show that he had knowledge of the knife's presence. This claim is based on the fact that the officers could not testify without doubt that the object transferred from the trunk to the front seat was the knife in question.

[ 236 Pa. Super. Page 95]

"As we have repeatedly said the test in determining if the evidence is sufficient to sustain a criminal conviction is, whether accepting as true all of the evidence of the Commonwealth, and all reasonable inferences arising therefrom, upon which the jury could properly have reached its verdict, was it sufficient in law to prove beyond a reasonable doubt that the appellant was guilty of the crime of which he stands convicted. See Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971)." Commonwealth v. Burton, 450 Pa. 532, 534 (1973). See also Commonwealth v. Elam, 221 Pa. Superior Ct. 315, 317 (1972).

Applying this test to the instant case, it is clear that the fact that the knife was in plain view in the front seat is sufficient evidence from which the jury could infer that appellant knew of the knife's presence.

Appellant states his second issue as follows: "The activity of David Gatto falls under Section 312*fn2 of the new criminal code in that this was a de minimis infraction wherein the defendant did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense." This issue raises two questions: (1) does Section 908 require that intent to employ the weapon criminally be proven; and, (2) does the weapon in question fall under the prohibition of Section 908. The first question is easily answered. The Comments to the Model Penal Code*fn3 clearly state that mere possession of an item prohibited by Section 908, even if there is no intent to employ such item criminally, is sufficient to convict one of violation of Section 908. See also Commonwealth v. Ponds, 236 Pa. Superior Ct. 107 (1975).

[ 236 Pa. Super. Page 96]

The second question, whether the weapon falls under Section 908, is not as easily resolved. Section 908 defines ...


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