No. 744 January Term, 1977, Appeal from Order of the Court of Common Pleas of Delaware County, Criminal Division, at No. 2724 A, B, C of 1977.
D. Michael Emuryan, Asst. Dist. Atty., for appellant.
Michael R. Sweeney, Media, for appellee.
Eagen, C. J., and Roberts, Nix, Manderino and Larsen, JJ. O'Brien, J., and Former Justice Pomeroy, did not participate in the decision of this case.
Appellee George David Mason was arrested and brought to trial on several charges, including alteration of a firearm in violation of section 6117 of the Pennsylvania Crimes Code, 18 Pa.C.S.A. § 6117. After the Commonwealth presented its case to the jury, the trial court sustained appellee's demurrer to all charges. The court held, with respect to the alteration charge, that the Commonwealth had not introduced evidence on each element of the offense sufficient to prove appellee's guilt beyond a reasonable doubt under section 6117 and, alternatively, that the "presumption" of section 6117(b) is arbitrary and therefore violates due process. The Commonwealth appeals only the demurrer to the alteration charge.*fn1 We affirm the demurrer on the ground that insufficient evidence was introduced to establish beyond a reasonable doubt that the defendant violated section 6117 of the Crimes Code. In light of our holding, we do not address the constitutionality of the presumption. Mt. Lebanon v. County Bd. of Elections, 470 Pa. 317, 322, 368 A.2d 648, 650 (1977).
The parties have submitted an agreed statement of record. See Pa.R.A.P. 1924. They agree that on November 17, 1976,
appellee, then a police officer with the Nether Providence Police Department of Delaware County, sold to a United States Treasury Department undercover agent a .32 caliber revolver. At the time of the sale, appellee noted that the gun's serial numbers had been removed. The Commonwealth's evidence established that the gun had been manufactured in the 1930s or 1940s. The Commonwealth's expert witness testified that he could not determine when the gun's serial numbers had been obliterated.
To establish its case, the Commonwealth relies on the "presumption" in section 6117(b) of the Crimes Code. Section 6117 of the Crimes Code provides:
"Altering or obliterating marks of identification.
(a) Offense defined. -- No person shall change, alter, remove, or obliterate the name of the maker, model, manufacturer's number, or other ...