No. 2336 October Term, 1977, Appeal from the denial by the Court of Common Pleas of Philadelphia County (Miscellaneous No. 77-00-7323) of a Writ of Certiorari to the Municipal Court of Philadelphia County at M.C. 77-05-2349.
John W. Packel, Assistant Public Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, and Edward G. Rendell, District Attorney, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, President Judge, concurs in the result. Spaeth, J., files a dissenting opinion, in which Cercone, J., joins. Hoffman, J., did not participate in the consideration or decision of this case.
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This is an appeal from the judgment of sentence of the Court of Common Pleas of Philadelphia County, by the
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defendant-appellant, Jared Wymes, after being found guilty of charges of Possessing Instruments of Crime (18 Pa.C.S.A. § 907) and Possessing Prohibited Offensive Weapons (18 Pa.C.S.A. § 908). He was sentenced to two years probation.
Certiorari was taken to the Court of Common Pleas, Criminal-Trial Division, under the authority of § 26 of the Schedule to Article 5 of the Pennsylvania Constitution and General Court Regulation 73-8. The court below granted the writ as to 18 Pa.C.S.A. § 907 and denied it as to 18 Pa.C.S.A. § 908.
The defendant was arrested on May 20, 1977 in a Philadelphia subway near Broad and Hunting Park Station at approximately 10:40 P.M. He was found to be in possession of a butcher knife with a 7" blade. The knife was wrapped in paper and was in his back pocket.
Section 908 of the Code reads, inter alia: "or other implement for the infliction of serious bodily harm which serves no common lawful purpose." The court below held the knife was a prohibitive offensive weapon under this section.
The court below relied on Commonwealth v. Gatto, 236 Pa. Super. 92, 344 A.2d 566 (1975). In that case the weapon was a "thirty inch knife". This court held:
"Therefore, if the 30 inch knife is prohibited by Section 908 it must be included under the phrase 'or other implement for the infliction of serious bodily injury which serves no common lawful purpose.' It is clear that the weapon can be used for the infliction of serious bodily injury and therefore we are faced ...