No. 115 October Term, 1976, Appeal from Judgment of Sentence Imposed August 22, 1975 in the Court of Common Pleas, Trial Division, Criminal Section, County of Philadelphia, at No. 1716 June Term, 1975.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion. Spaeth, J., files a dissenting opinion.
[ 252 Pa. Super. Page 56]
On May 8, 1975, at approximately 6:50 P.M., Terrance O'Neil, a Philadelphia police officer, observed Rozell Walton, appellant, in possession of a sword cane.*fn1 Officer O'Neil, seized the cane and arrested Walton for possession of an offensive weapon.*fn2 Appellant was found guilty in a non-jury trial. After denial of post-trial motions, he was sentenced to one year probation. This appeal followed.
Appellant contends, first, that a sword cane is not an offensive weapon within the meaning of Section 908(c), Crimes Code, which provides:
"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, pushbutton,
[ 252 Pa. Super. Page 57]
spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose."
We agree with appellant that the words "knife, razor, or cutting instrument" do not include a sword cane, since we held in Commonwealth v. Gatto, 236 Pa. Super. 92, 344 A.2d 566 (1975) that this phrase is modified by the words following it, "the blade of which is exposed in an automatic way." The blade of a sword cane is exposed by pushing a metal button on its side which releases a catch, allowing one to remove the sword from the lower part of the cane. The question, therefore, is whether a sword cane can be considered an "implement for the infliction of serious bodily injury which serves no common lawful purpose." We find that it can. Its capacity to inflict serious bodily injury is beyond dispute, and even imagination run rampant fails to suggest any common lawful purpose for it.*fn3
Appellant also contends that the phrase "no common lawful purpose" is unconstitutionally vague. It should be observed at the outset that such a contention must be decided in the context of the conduct of the party making it. As the court said in Commonwealth v. Heinbaugh, 467 Pa. 1, 4-5, 354 A.2d 244, 245-46 (1976):
"Absent the assertion of an infringement of First Amendment freedoms, the specificity of a statute must be measured against the conduct in which the party challenging the statute has engaged.
A criminal statute must give reasonable notice of the conduct which it proscribes to a person charged with violating its interdiction. Statutes which are so vague that they fail to provide such notice violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution."
[ 252 Pa. Super. Page 58]
The Heinbaugh decision cited Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926) for the following principle:
"That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary motions of fair play and the settled rules of law. And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law."
The question here is not whether the wording of the statute leaves gray areas, but whether appellant's conduct falls within such an area. We hold that it does not. The words "common lawful purpose," standing alone, might be considered vague, but when the entire phrase "or other implement for the infliction of serious bodily injury which serves no common lawful purpose" is considered, the meaning of the statute is clear: possession of an instrument the sole purpose of which is the infliction of bodily injury is forbidden. The conclusion that a sword cane is such an ...