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.
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
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.
As he did in the trial court, Hardick now alleges that this evidence failed to establish, as required by 18 Pa.C.S.A. § 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 ...