Appeal from the Judgment of Sentence of the Court of Common Pleas of Westmoreland County, Criminal Division No. 104 January Term 1975. No. 233 April Term 1976.
Dante G. Bertani, Public Defender, Alfred B. Bell, Asst. Public Defender, Greensburg, for appellant.
James J. Conte, Greensburg, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Spaeth, J., joins.
[ 244 Pa. Super. Page 145]
This is an appeal from a judgment of sentence on the ground that the evidence adduced at trial varied substantially from the charge set forth in the indictment.
On January 13, 1975, the grand jury of Westmoreland County returned a bill of indictment against appellant on charges of receiving stolen property,*fn1 possessing instruments of crime,*fn2 and former convict not to own [possess] a firearm.*fn3 On February 26, 1975, the lower court suppressed
[ 244 Pa. Super. Page 146]
all physical evidence seized by the police pursuant to the search warrant executed in this case on October 25, 1974. The physical evidence consisted of a .38 caliber Smith & Wesson revolver and some tools. On March 26, 1975, after a non-jury trial, appellant was found guilty of receiving stolen property and former convict not to possess a firearm. Subsequently, the court en banc granted appellant's motion to arrest judgment on the charge of receiving stolen property, but sustained appellant's conviction of the firearms violation.
Appellant's argument on this appeal is based upon the fact that the indictment charging appellant with the crime of former convict not to possess a firearm included the allegation that the possession of the revolver occurred "on or about" October 25, 1974, in a 1970 Dodge Sedan, while the proof at trial showed possession of the revolver on the previous day of October 24, 1974 at an automobile repair shop. The variance occurred because the suppression order barred proof of possession of the firearm on October 25, 1974. Appellant contends that this variance between the allegation contained in the indictment and the proof at trial was so substantial and so great as to prove a different crime than the one charged in the indictment. We disagree.
The crime upon which appellant was charged, indicted, and convicted appears at Section 6105 of the Crimes Code as follows:
" Former convict not to own a firearm, etc.
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."
The element concerning a prior conviction for a crime of violence was established by stipulation at the opening of the Commonwealth's case. The effect of the stipulation was that appellant admitted that he had been ...