No. 679 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County, Criminal, at No. 1674-A of 1974.
Francis P. Burns, Assistant Public Defender, Wilkes-Barre, for appellant.
Thomas J. Glenn, Jr., Assistant District Attorney, and Patrick J. Toole, Jr., District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., dissents for the reasons stated in his dissenting opinion in Commonwealth v. Walton,
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After a jury trial, appellant was convicted of violating the prohibited offensive weapons section of the Crimes Code.*fn1
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Written post-verdict motions were denied, and appellant was sentenced to serve a term of imprisonment of one to four years eleven months twenty-nine days and to pay the costs of prosecution plus a fine of $500. Appellant was released on bail pending this appeal.
This case arises from the unintentional shooting death of Mary Ann Manna, age 15, by Joseph Ragoskey on May 9, 1974. Appellant first contends that the evidence was insufficient to convict him of the crime charged. We disagree.
"'[T]he test in determining if the evidence is sufficient to sustain a criminal conviction is, whether accepting as true all of the evidence of the Commonwealth, and all reasonable inferences arising therefrom, upon which the jury could properly have reached its verdict, [it was] sufficient in law to prove beyond a reasonable doubt that the appellant was guilty of the crime of which he stands convicted. See Commonwealth v. Wrona, 442 Pa. 201, 275 A.2d 78 (1971).' Commonwealth v. Burton, 450 Pa. 532, 534, 301 A.2d 599, 600 (1973). See also Commonwealth v. Elam, 221 Pa. Super. 315, 317, 293 A.2d 103, 104 (1972)." Commonwealth v. Gatto, 236 Pa. Super. 92, 95, 344 A.2d 566, 567 (1975).
Viewing the evidence in this light, the following was adduced at trial.
During the evening and early morning hours of May 8 and 9, 1974, Joseph Ragoskey, Jeffrey Pressler and appellant drove around the Hazelton area, stopping intermittently at a diner and their respective homes. At approximately 7:00 a. m. the men arrived at the home in which appellant lived with his parents. After eating breakfast, appellant's companions borrowed his car and left to purchase cigarettes. En route the two men met Mary Ann Manna and one of her friends and persuaded them to skip school. The foursome returned to appellant's house and entered the living room.
Mr. Ragoskey went into the dining area adjacent to the living room. When he returned, he was carrying a fourteen and one-half inch long sawed-off shotgun, which had been lying on a table. As he displayed the firearm to his friends,
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it discharged, fatally wounding Miss Manna. Appellant, who had been taking a shower, ran into the room, attempted to render assistance and subsequently telephoned for an ambulance.
At trial, Mr. Joseph Doland testified that in January of 1974 he had purchased the firearm because he and his family had been threatened by a motorcycle gang. One evening appellant and Mr. Doland went to a farmhouse which this gang regularly frequented. When they arrived, however, police officers were on the scene conducting a totally unrelated investigation. Fearing that the gun would be discovered, Mr. Doland threw it away in some bushes near the house.
Several days later, appellant informed Mr. Doland that someone, who appellant felt was irresponsible, had found the gun. Appellant believed he could retrieve the weapon for Mr. Doland. Mr. Doland stated that he did not want the gun any more but that appellant could retrieve it if he wished. About two weeks after this conversation, Mr. Doland met appellant and Mr. Ragoskey. Appellant showed Mr. Doland the shotgun which was unloaded. Mr. Doland once again told the men that he did not want the gun. The fatal accident occurred approximately one week after this meeting.
Immediately after the shooting, appellant and the other three witnesses agreed to fabricate a story in order to protect Mr. Ragoskey's status as a parolee. After the police pointed out the inconsistencies in their explanations of the relevant events, the three men requested a private conference. During this conversation, appellant admitted to his companions that earlier on the day Miss Manna was killed, he had loaded and cocked the weapon.
Appellant testified in his own behalf. He denied that he had cocked the weapon. He admitted, however, that he had obtained the gun about one week before the shooting. He further admitted that he loaded the gun on the morning of the incident allegedly because his life had been threatened by his brother-in-law a few weeks earlier.
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Under section 908(a) of the Crimes Code, "[a] person commits a misdemeanor of the first degree if, except as authorized by law, he . . . deals in, uses, or possesses any offensive weapon." Possession is an act sufficient to sustain a conviction under the Crimes Code "if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession." 18 Pa.C.S. § 301(c). The evidence in the instant case was clearly sufficient to prove ...