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decided: December 24, 1977.



Robert M. Hanak, Reynoldsville, for appellant.

J. Kipp Lukehart, Dist. Atty., Brookville, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Manderino, J., filed a dissenting opinion.

Author: Pomeroy

[ 475 Pa. Page 476]


Appellant, James M. Hardick, was convicted after a jury trial of possession of instruments of crime*fn1 and was sentenced to imprisonment for a term of two years to five years.*fn2 The Superior Court affirmed without opinion and

[ 475 Pa. Page 477]

    we allowed the present appeal to examine Hardick's contention that the Commonwealth failed to sustain its burden of proving that the instruments were possessed with the requisite criminal intent. We shall affirm.

The record discloses that on October 4, 1973, at approximately 12:30 A.M., a Pennsylvania state trooper, Robert E. Miller, observed the appellant, on a well-lit street in a commercial area of Punxsutawney, demonstrating to an unidentified individual a suction device known as a "tinplate". This was being done by applying the device to the door of Hardick's automobile, and showing its suction ability by way of a lifting motion applied to the device which resulted in a rocking of the vehicle. Later that morning, the appellant was arrested for an unrelated burglary incident, in connection with which he gave a written authorization to Trooper Miller and Joseph Volpe, Chief of Police of Punxsutawney, to search his automobile. During that search the police confiscated the tin-plate as well as a hacksaw blade, a drill bit and a metal punch. The finding of these instruments precipitated the lodging of the present charge against appellant.

At trial, Chief Volpe stated that he was familiar with the tin-plate; he said it was a specialized tool commonly used by professional burglars to crack safes. Using a blackboard, Volpe illustrated how the tin-plate is attached by its suction cups to the face of the safe door after the combination dial has been removed. The drill bit is placed in the disc of the tin-plate and driven through the door of the safe with a hammer in order to release the tumblers and open the lock. Volpe further testified that he was aware of no other use for such a device. Trooper Miller stated that the hacksaw blade and drill bit were for use on heavy metal and agreed with Volpe that the tin-plate, to his knowledge, had no other purpose than safe-cracking. The defendant presented no evidence, but rather sought to impeach Trooper Miller with his prior testimony in which the officer had indicated such a device might be used for the repair of dented automobiles.

[ 475 Pa. Page 478]

As he did in the trial court, Hardick now alleges that this evidence failed to establish, as required by 18 Pa.C.S.A. ยง 907 (see n.1, supra), that defendant intended to use the instruments for criminal purposes. Section 907 of the Crimes Code provides in relevant part:

"(a) Criminal instruments generally. -- A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.

"(c) Definitions. -- As used in this section the following words and phrases shall have the meanings given to them in this subsection:

'Instrument of crime.'

(1) Anything specially made or specially adapted for criminal use; or

(2) anything commonly used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have."

It is clear from this statutory language that two requirements must be met before one can be convicted under this section: (1) possession of criminal instruments by the defendant; and (2) an intent to use the tools for some criminal purpose. Commonwealth v. Allen, 466 Pa. 474, 353 A.2d 452 (1976). The Crimes Code provision is simply a recodification in general terms of the former crime of possessing burglary tools, defined in some detail by the Penal Code of 1939.*fn3 See

[ 475 Pa. Page 479]

S.W.2d 938; Com. v. Tivnon, supra, 8 Gray 375, 74 Mass. 375, 69 Am.Dec. 248; O'Neill v. State, supra, 105 Neb. 824, 182 N.W. 503; People v. Taranto, 2 Ill.2d 476, 119 N.E.2d 221. Such general intent need not be proved by direct evidence, but may be indicated by the circumstances surrounding the possession. State v. Kappen, supra, 191 Iowa 19, 180 N.W. 307; State v. Furlong, 216 Iowa 428, 249 N.W. 132; Kitts v. State, 153 Neb. 784, 46 N.W.2d 158; State v. Salernitano, 27 N.J.Super. 537, 99 A.2d 820." 178 Pa. Super. at 334-35, 116 A.2d at 111-12. (Footnote omitted.)

The question to be resolved in this appeal, then, is whether the circumstances surrounding the seizure of the instruments is sufficient to give rise to the inference that the tools in Hardick's possession were possessed for criminal purposes.

Viewing the evidence as we must in a light most favorable to the Commonwealth and granting to the Commonwealth the benefit of all reasonable inferences arising from the evidence, see Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976); Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971), the testimony presented at trial established the following: (1) a tin-plate is a specialized tool used in burglarizing safes; (2) the tin-plate here involved was found along with other tools which would normally be necessary when using the tin-plate for safe-cracking purposes; (3) the instruments were found in an automobile (as opposed to a home or shop) in a commercial area of Punxsutawney at a time when the commercial establishments would not be open for business; and (4) the appellant gave an evasive answer when asked why he had possession of the tin-plate.*fn4 While the proof offered by the prosecution might have been more extensive, we cannot say that the facts established were insufficient to give rise to a supportable conclusion on the part of the fact finder that beyond a

[ 475 Pa. Page 481]

    reasonable doubt the instruments were possessed by Hardick with an intent to employ them criminally.*fn5

The order of the Superior Court is affirmed.

MANDERINO, Justice, dissenting.

The majority correctly states that to convict an accused of possession of instruments of crime, the prosecution must prove not only possession but also must prove intent to use the tools for some criminal purpose. Intent cannot be inferred from mere possession, otherwise there would be no need for a separate intent requirement. In this case, the prosecution may have proved possession but proved nothing more, hence appellant's conviction should be reversed.

The prosecution's evidence, which sought to establish that a tin-plate is used to open safes, went solely to the first element of the crime charged -- possession of instruments of crime. Whereas the evidence might establish that a tinplate is such an instrument, it certainly does not establish intent to use it criminally. Appellant was in no way acting in a furtive or clandestine manner, was demonstrating the instrument in plain view of anyone interested, and was not acting in any way to indicate that a property crime was imminent. Every citizen who transports tools in a city at night, tools that conceivably could be used to gain entrance

[ 475 Pa. Page 482]

    to another person's private property, cannot be convicted of a crime. The prosecution must prove beyond a reasonable doubt that the individual intended to use those tools for a criminal purpose. I think the prosecution's evidence in this case fails to meet that standard of proof. I therefore dissent.

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