No. 919 October Term 1979, Appeal from the Judgments of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Information Nos. 1664-1667 January Session, 1976.
Elias B. Landau, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Brosky, Wickersham and Eagen, JJ.*fn* Wickersham, J., files a dissenting opinion.
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On December 20, 1975, at approximately 10 a. m., Clarence Cobb, an employee of Tech Hi-Fi, located at 84th and Ogontz Avenue, in Philadelphia, was waiting on a customer in the store's sound room when two strangers, later identified as the appellant, Alfred Dill, and Henry Walls, entered the store, pulled out guns, and announced a holdup. When they were informed another employee, Wade Warren, was in the store, Dill went to the restroom and ordered him, at gunpoint, to come out and join the others in the sound room. The two employees and the customer were then ordered to lie on the floor; their hands were tied and their mouths taped. Dill and Walls removed Warren's watch and Cobb's keys from their persons. Then, while Cobb and Warren watched, Dill and Walls began to remove stereo equipment from the storeroom and display room and place it into a U-Haul van parked in front of the store. During this time, another customer entered the store and was tied up. After Dill and Walls loaded the van, they locked the store door and left. Warren gained his release immediately and went to the store's front window. He saw Dill and Walls driving away in a U-Haul van with a white license plate. He then called the police.
At approximately 11 a. m. on the same day, Officers Joyce and Garvin stopped a U-Haul van with a white license plate as a result of a police radio broadcast. The officers removed
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Dill and Walls from that van. A large amount of money was found on Dill's person, and a gun was discovered as a result of a frisk of Walls' person. Another gun was found inside the van along with many pieces of stereo equipment. Dill and Walls were taken back to the Tech Hi-Fi store where they were identified by Warren and Cobb.
In a joint non-jury trial with Walls, Dill was convicted of two counts of robbery, one count of possession of an instrument of crime-generally, one count of possession of an instrument of crime-weapon and one count of conspiracy. Post-verdict motions were denied, and sentences were imposed. Dill failed to file a timely appeal but later, in post-conviction relief proceedings, he was permitted to file an appeal "nunc pro tunc."
Dill asserts five assignments of error. He first claims the court erred in denying a demurrer to the charges of possession of an instrument of crime-generally and possession of an instrument of crime-weapon because the Commonwealth failed to present evidence of operability of the weapon in question. This issue is improperly framed because Dill did not rest following the adverse ruling but instead chose to put in a defense.*fn1 Nonetheless, we will consider the claim as challenging the sufficiency of the evidence to support the conviction of these offenses.*fn2
The Commonwealth argues that the specific issue advanced, i. e. failure to establish operability, was not properly preserved for review because it was not raised in written post-verdict motions. However, sufficiency of the evidence was raised in post-verdict motions; therefore, the issue is properly before us.
Since no evidence of operability was presented at trial, the precise issue is whether operability must be proven to sustain convictions under 18 Pa.C.S.A. § 907. Dill was convicted under two subsections, (a) and (b), of this statute. Subsection (a) states that a person commits a misdemeanor
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of the first degree "if he possesses any instrument of crime with intent to employ it criminally." "Instrument of crime" is defined in subsection (c) as, inter alia, " anything commonly used for criminal purposes." Clearly a firearm would fit into this category without regard to its operability. Similarly, subsection (b) states a person commits a misdemeanor of the first degree "if he possesses a firearm or other weapon concealed upon his person with intent to employ it criminally." Subsection (c) defines a weapon to include a firearm which is not operable. Therefore, we conclude a showing of operability was not necessary to sustain the charges.
Next, Dill complains the court erred in failing to declare a mistrial when the assistant district attorney began to cross-examine Dill's co-defendant, Walls, with a post-arrest statement made by Walls which had been suppressed pretrial. In this context, Dill argues the prosecution is guilty of misconduct which deprived him of a fair trial. The record reveals this occurred during the cross-examination of Walls:
"Q. Do you remember talking to the police after you got arrested?
A. Talking to them? I remember talking to them.
Q. Do you remember giving them a ...