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COMMONWEALTH PENNSYLVANIA v. RODNEY EVERETT (04/02/82)

filed: April 2, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
RODNEY EVERETT, APPELLANT



No. 2055 PHILADELPHIA, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 74-09-2199/2202, 74-10-1024/1026.

COUNSEL

William P. James, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hester, Rowley and Montgomery, JJ.

Author: Hester

[ 297 Pa. Super. Page 325]

The appellant, Rodney Everett, a/k/a Clifford Frazier, was tried before a jury in Philadelphia on charges of robbery, criminal conspiracy, possession of an instrument of a crime and of a prohibited offensive weapon for two separate incidents. A guilty verdict on all Bills of Indictment was returned on June 11, 1975 and again on June 19, 1975. On May 6, 1976, Motions for a New Trial and in Arrest of Judgment were denied and the appellant was then sentenced to 12 years probation for one robbery conviction; 6 to 12 years for the other robbery conviction; separate 3 1/2 to 7 year terms for each conspiracy conviction; 2 1/2 to 5 years for possession of an instrument of a crime and 2 1/2 to 5 years for possessing a prohibited offensive weapon. On August 13, 1980, a petition for relief under the Post Conviction Hearing Act was granted to the extent of permitting appellant to petition the Pennsylvania Superior Court for the right to appeal, nunc pro tunc, from the judgment of sentence. The petition was denied in all other respects. This appeal from the verdicts, entered June 11, 1975 and June 19, 1975, was filed September 2, 1980.

The appellant's long and well-prepared brief began with the assertion that the handgun used by the appellant's co-defendant in the robbery of Mrs. Koch (hereinafter "first trial") was not an offensive weapon as defined in Section 908 of 18 Pa.C.S.A. We agree. The offense set forth in Section 908(a) is defined as follows:

A person commits a misdemeanor of the first degree if, except as authorized by law, he makes repairs, sells, or otherwise deals in, uses, or possesses any offensive weapons.

The term "offensive weapon" is further defined in Section 908(c): . . . any bomb, grenade, machine gun, sawed-off shotgun, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument,

[ 297 Pa. Super. Page 326]

    the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, or other implement for the infliction of serious bodily injury which serves no common lawful purpose.

The handgun used by the appellant's co-defendant is not specifically enumerated in Section 908(c); nor is it properly labelled an "other instrument for the infliction of serious bodily injury." The purpose of Section 908 is to preclude the use of weapons which can serve no purpose other than to serve some criminal design. Commonwealth v. McHarris, 246 Pa. Super. 488, 371 A.2d 941 (1977). Certainly, the intent of the Pennsylvania legislature in enacting Section 908 was not to deny police officers and registered hunters the means to serve their lawful, necessary and recreational purposes. Consequently, we reverse the guilty verdict returned on the bill for possession of a prohibited offensive weapon.

The appellant proceeds with his contention that the evidence introduced at the first trial was insufficient to prove the remaining charges. Of course, it is well-established that upon review of the sufficiency of the evidence to sustain a verdict, all reasonable inferences are drawn favorable to the Commonwealth. Commonwealth v. Roux, 465 Pa. 482, 350 A.2d 867 (1976); Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d ...


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