NO. 451 APRIL TERM, 1977, Appeal from the Order of the Court of Common Pleas, Criminal Division, of Allegheny County at No. CC7606411A.
Charles W. Johns, Assistant District Attorney, and Robert E. Colville, District Attorney, Pittsburgh, for Commonwealth, appellant.
Robert Shapiro, Assistant Public Defender, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a dissenting opinion. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 260 Pa. Super. Page 411]
This is an appeal by the Commonwealth from an Order of the trial court granting appellee's motion in arrest of judgment. The appellee was tried on November 17, 1976, before a judge, after waiving trial by jury, and was convicted of a charge of carrying a firearm without a license. Following trial, appellee's motion in arrest of judgment was granted on December 15, 1976.
In an appeal from the granting of a motion in arrest of judgment, the reviewing court must determine whether the evidence presented by the prosecution was sufficient to support the verdict. In reaching a determination, the appellate court must review the record and all facts contained therein, together with all reasonable inferences arising therefrom, in the light most favorable to the Commonwealth. Commonwealth v. Allen, 227 Pa. Super. 157, 324 A.2d 437 (1974). The same concepts apply whether the fact finder was a jury or a judge sitting without a jury. Commonwealth v. Nelson, 245 Pa. Super. 33, 369 A.2d 279 (1976). Acting under such principles, we find that the lower court erred in granting the motion in arrest of judgment in the instant case.
The appellant was found guilty of a violation of the Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 6106, which provides, in pertinent part: "No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as provided in this subchapter." The lower court, in arresting judgment, found that there had not been proof that the gun found on the appellant was in "operable" condition. The correctness of that finding is the sole issue disputed by the parties to this appeal.
The lower court relied upon the decision in Commonwealth v. Layton, 452 Pa. 495, 307 A.2d 843 (1973), where the
[ 260 Pa. Super. Page 412]
Pennsylvania Supreme Court held that a person could not be convicted under a similar statute,*fn1 if the object owned, possessed or controlled by the accused was not capable of firing a shot, and if he did not have under his control the means to convert the object into one capable of firing a shot. In Layton, it was stipulated that the pistol possessed by the accused could not have been fired at the time of the arrest. There was no evidence offered as to how the pistol could have been made operable in that case. In Layton, the Supreme Court explained that even though the object was not operable, a conviction might be sustained if the possessor had under his control the means to convert the object into one capable of firing a shot. The Court went on to state that an operable firearm may be said to be under the control of the alleged actor even though it is ". . . a malfunctioning assembled firearm or a disassembled firearm" (452 Pa. at 499, 307 A.2d at 845) so long as the accused has under his control the means to convert the inoperable firearm into an operable firearm. The court stated that an "operable" status could be found if the weapon had a damaged part that was ". . . readily repairable" (452 Pa. at 499, 307 A.2d 843).
Our review of the record in the instant case, with all reasonable inferences being considered in the light most favorable to the Commonwealth, leads us to the conclusion that there was sufficient evidence to show that the firearm was capable of firing a shot by means within the control of the appellee. The testimony supporting this conclusion was adduced when a weapons expert for the Allegheny County Crimes Laboratory testified. While this expert stated that ...