Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nos. 74-00-6929 and 74-11-577, in case of Commonwealth of Pennsylvania v. Vincent McNear.
John W. Packel, Assistant Defender, and Benjamin Lerner, Defender, for appellant.
David Fabe Michelman, 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 Van der Voort, J. Dissenting Opinion by Hoffman, J. Cercone and Spaeth, JJ., join in this dissenting opinion.
[ 238 Pa. Super. Page 178]
On the night of November 7, 1974, appellant in the company of two other men was walking down Wharton Street in Philadelphia at a rapid pace. Officer Hanratty who was riding in an unmarked police car stopped and got out of the car. Upon seeing the police officer, the appellant dropped a gun from his hand to the street in front of a parked car and walked away from it. Officer Hanratty apprehended the appellant and retrieved the gun. A check of the gun revealed that it was loaded and operable and from the serial number it was learned that it had been stolen in the preceding month of October.
Appellant was convicted of possessing an instrument of crime.*fn1 He filed this direct appeal claiming that a loaded pistol in operable condition is not an instrument of crime, arguing that a pistol is a weapon and that the Legislature never intended a weapon to be an instrument of crime.
[ 238 Pa. Super. Page 179]
The appellant wants us to twist plain English language so as to bring about a highly undesirable result. In resolving the issue raised by the appellant we are required to construe the language of legislative enactments according to their common and approved usage, Statutory Construction Act of November 25, 1970, P.L. 707, No. 230, added by Act of 1972, December 6, P.L. 1339, No. 290, § 3, 1 Pa. C.S. § 1903 (Appendix). A loaded pistol ready to be fired is clearly an instrument of crime. The appellant being caught in possession of such an instrument, the circumstances in which he was found carrying it in his hand in the public street at night time and his getting rid of it upon seeing the uniformed police officer constitute sufficient facts to support the trial judge's finding him guilty of possessing an instrument of crime.*fn2 There is no language in the Crimes Code excluding a loaded firearm or weapon from being an instrument of crime.
Dissenting Opinion by Hoffman, J.:
This appeal raises substantial issues concerning the interrelationship of §§ *fn9071 and *fn9082 of the Pennsylvania Crimes Code. Appellant was arrested for openly carrying a .22 caliber pistol and was subsequently convicted of violating § 907(a) of the Crimes Code, which makes it unlawful to possess an ...