No. 53 Harrisburg, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, Criminal Division, at No. 1423 CD 79
Larry A. Kalikow, Assistant Public Defender, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Brosky, Beck and McEwen, JJ.
[ 302 Pa. Super. Page 198]
Appellant was charged with possession of prohibited offensive weapons, and cruelty to animals. Following denial of his motion to suppress, a jury trial was held. Appellant was found guilty of possession of a prohibited offensive weapon, namely, a pipe bomb. Post-verdict motions were subsequently filed and denied, and appellant was sentenced to three years probation. This appeal followed.
The central issue for our determination is whether the evidence presented established a violation of 18 Pa.C.S. § 908. The court below found that the evidence was sufficient. We agree.
Appellant's central contention on appeal is that the evidence was insufficient to sustain a verdict of guilty under 18 Pa.C.S. § 908 on the ground that appellant was not shown to possess an "offensive weapon" within the meaning of the statute. In this regard, he further argues that his motion to suppress evidence should not have been denied. Finally, appellant contends that his trial counsel was ineffective for failing to preserve for review certain objections to the judge's charge to the jury.
The facts are as follows. On August 26, 1979, Jacob Franklin, Code Enforcement Officer, received a call from a friend, Mrs. Roberta Wagner, to the effect that her dog had been shot. Mrs. Wagner lived in a three-story apartment building at 2109 Herr Street. Shortly after Mr. Franklin arrived at Mrs. Wagner's apartment building, the police
[ 302 Pa. Super. Page 199]
arrived. Mrs. Wagner testified at the suppression hearing that the police stated to her that they wanted to go inside the apartment building to look for spent shells in connection with the shooting. She stated that she gave the police officers her permission, as a tenant, to enter the basement. Thereafter, Jacob Franklin and Officer Ralph Franklin, patrolman, entered the basement, looked around, then exited. Officer Franklin testified that when they returned to the outside, the landlord of the building, Mr. Vergot, came over to ask what was going on. Franklin explained about the shooting, and requested permission to re-enter the building, which Mr. Vergot granted. Officer Franklin, Mr. Vergot, and another officer then returned to the basement. Inside a part of the basement was a workbench, which Mr. Vergot explained had been placed there by his nephew, who was a tenant. Mr. Vergot, a plumber, stated that appellant worked for him in his plumbing business, and that plumbing supplies were stored near the work bench. On or near the workbench, the police officers noticed an assortment of military weapons and other items, including more than 600 rounds of ammunition; 25 live grenades; smoke and tear gas; 2 quarter-pound blocks of TNT; cans of smokeless powder; and an 18-inch length of pipe with a recoupler reduced by taping to receive a grenade fuse which had been screwed into it. Near the bench was a locker containing military uniforms bearing the name "Devlin." Mr. Vergot indicated that appellant was a Marine Corps reservist. Appellant was subsequently charged with possession of a prohibited offensive weapon.
Under 18 Pa.C.S. § 908, a person commits a misdemeanor of the first degree if, except as authorized by law, he . . . "possess any offensive weapon." Subsection (c) states:
As used in this section "offensive weapon" means any bomb . . . or other implement for the infliction of serious bodily injury ...