Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County, at Miscellaneous No. 76-00-0637 Municipal Court No. 75-11-3356. No. 1265 October Term, 1976.
John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, President Judge, and Price, J., dissent.
[ 246 Pa. Super. Page 489]
Appellant contends that he should be discharged because the Commonwealth failed to establish all of the elements of the offenses charged. We agree and, therefore, order appellant discharged.
On November 27, 1975, at 10:30 a. m., two uniformed police officers and two plainclothes detectives arrived at appellant's home in Philadelphia. They knocked at the door and appellant opened it. A detective told appellant that he would like to ask appellant some questions about a crime that had occurred two weeks earlier. Appellant invited the officers into the house. While inside the house, the detective asked appellant if he would accompany the officers to the police administration building and answer the questions at that location. Appellant agreed to do so. Because appellant was attired only in a pair of trousers, the detective asked him if he would like to get dressed. Appellant, followed by one of the officers, ascended to the third floor of the house to finish dressing. Appellant entered a bedroom, picked up his wallet from the nightstand, put on a shirt that was hanging on the back of the doorknob inside the room, and sat down on
[ 246 Pa. Super. Page 490]
the single bed to put on his shoes and socks that were on the floor next to the bed. The officer testified that as appellant reached down to pick up a sock, he (the officer) noticed a .38 caliber Smith & Wesson revolver located approximately two feet from appellant's right hand. The officer stated he retrieved the gun, examined it, and discovered that it contained five live shells. The officer arrested appellant and charged him with possessing a prohibited offensive weapon,*fn1 possessing an instrument of crime,*fn2 and former convict not to own a firearm.*fn3
On January 12, 1976, the Municipal Court of Philadelphia denied appellant's motion to suppress evidence and thereafter the court found appellant guilty of possessing an instrument of crime and possessing a prohibited offensive weapon.*fn4 The court sentenced appellant to two years probation on each charge; the probation terms were to run concurrently. Appellant filed a petition for a writ of certiorari to the court of common pleas. The lower court denied the petition on March 11, 1976. On March 24, 1976, a writ of certiorari issued from our Court to the court of common pleas.*fn5
Appellant contends that a revolver is not an offensive weapon within the meaning of § 908. Section 908, prohibiting offensive weapons, defines the offense 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. . . .
[ 246 Pa. Super. Page 491]
(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 ...