John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Steven H. Goldblatt and Deborah E. Glass, Assistant District Attorneys, 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., dissents and would discharge. Price, J., dissents and would affirm both counts. Watkins, former President Judge, did not participate in the consideration or decision of this case.
[ 253 Pa. Super. Page 281]
This appeal arises from appellant's conviction of possession of an instrument of a crime with the intent to employ it criminally, and possession of a prohibited offensive weapon. Crimes Code, 18 Pa. C.S. §§ 907(a) and 908 (1973).
On May 25, 1975, at approximately 10:45 P.M., an off-duty Philadelphia policeman, Officer Edward Bracey, took his friend, Ms. Patricia Evans, home to her apartment. As they were leaving the car, Bracey and Evans were forced into her apartment at gunpoint by two men. Armed with revolvers, the gunmen ordered Officer Bracey and Ms. Evans to lie face down. During the course of the robbery, one of the guns discharged. Immediately, one of the robbers exclaimed, "I shot myself!" and both fled. Appellant was later apprehended and identified at a hospital while being treated for a gunshot wound of his foot.
Appellant voluntarily waived his right to a jury trial, and the Honorable Merna Marshall found him guilty of robbery, possession of an instrument of a crime with the intent to employ it criminally, and possession of a prohibited weapon.
[ 253 Pa. Super. Page 282]
Appellant filed post-verdict motions which were denied. Challenging only the latter two convictions, appellant raises two issues on appeal: first, whether, in light of subsection 907(b) of the Crimes Code, his conviction under subsection 907(a) is valid; and second, whether a revolver-type handgun is an "offensive weapon" under § 908 of the Crimes Code.
Section 907 of the Crimes Code reads, in part, as follows:
"§ 907. Possessing instruments of crime.
(a) Criminal instruments generally. -- A person commits a misdemeanor of the first degree if he possesses an instrument of crime ...