No. 186 October Term, 1978, Criminal Action - Appeal from judgment of sentence of the Court of Common Pleas, Delaware County entered September 23, 1977 at No. 7104B of 1976.
Robert F. Pappano, Chester, for appellant.
Robert M. DiOrio, Assistant District Attorney, Media, submitted a brief for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Spaeth, J., concurs in the result. Hoffman, J., did not participate in the consideration or decision of this case.
[ 259 Pa. Super. Page 405]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Delaware County by the defendant-appellant, Daniel Shore, after conviction in a non-jury trial of the charge of altering or obliterating marks of identification on a firearm. 18 Pa.C.S.A. § 6117. The defendant was fined $100 and sentenced to a term of 11 and 1/2 to 23 months in prison as the result of the conviction.
The defendant challenges the sufficiency of the evidence. On November 24, 1976, the defendant was arrested in a shop in Marcus Hook, Pennsylvania. The police had gone to the shop with an arrest warrant for the defendant on an unrelated charge. When they arrived the defendant was talking on the telephone. When he saw the police he handed a pistol to another person who was behind the counter. Upon
[ 259 Pa. Super. Page 406]
examination of the weapon, it was discovered that the serial numbers had been altered or obliterated.
The Pennsylvania Crimes Code, 18 Pa.C.S.A. § 6117, provides:
"(a) Offense defined. -- No person shall change, alter, remove, or obliterate the name of the maker, model, manufacturer's number, or other mark of identification on any firearm.
"(b) Presumption. -- Possession of any firearm, upon which any such mark shall have been changed, altered, removed, or obliterated, shall be prima facie evidence that the possessor had changed, altered, removed, or obliterated the same." 1972, Dec. 6, P.L. 1482, No. 334, § 1, eff. June 6, 1973.
The defendant argues that the Crimes Code makes it a crime to "alter, remove, etc." such a number but does not make it a crime to possess such a weapon and therefore the Commonwealth did not prove its case when it presented the above testimony. He argues that the Commonwealth should have had to prove that the defendant was the one who ...