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COMMONWEALTH PENNSYLVANIA v. DAVID LEE MOSER (06/08/84)

filed: June 8, 1984.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DAVID LEE MOSER



No. 286 Harrisburg 1982, Appeal from the Order of the Court of Common Pleas of Adams County, Criminal, at No. CC-72-82.

COUNSEL

Roy A. Keefer, Assistant District Attorney, Gettysburg, for Commonwealth, appellant.

John D. Kuhn, Public Defender, Gettysburg, for appellee.

Wickersham, Del Sole and Montemuro, JJ.

Author: Montemuro

[ 328 Pa. Super. Page 238]

The Commonwealth takes this appeal from the order of the Court of Common Pleas of Adams County granting the appellee's motion to quash the information. We conclude that the lower court erred in doing so.

The facts relevant to the present appeal are as follows: On January 29, 1982, Don Jeffries, a parole officer, was notified that one Gina Sheely had been cut with a knife by the appellee, David Lee Moser, a parolee under the supervision of Jeffries. Jeffries conducted an interview with Ms. Sheely on February 2, 1982. She told Jeffries that she had lived with the appellee until October, 1981, that appellee had "cut her clothes on several occasions during domestic quarrels, and that appellee was in possession of a long, black rifle and had gone hunting." Jeffries was aware that the appellee possessed a knife in connection with his employment.

On February 4, 1982, Jeffries went to the appellee's apartment. The appellee was not present, but Jeffries gained access into the apartment from the landlord. While at the apartment, Jeffries conducted a thorough search. He found a hunting knife with a six-inch blade and an overall length of ten-inches; a box of ammunition; and a hunting rifle in the bedroom closet. He then returned to the room and discovered, inside a bureau drawer, a sawedoff

[ 328 Pa. Super. Page 239]

    rifle.*fn1 The rifle is the subject of the prosecution which engendered the present appeal. Additionally, two CO[2] pistols were discovered.

The appellee was arrested on February 15, 1982 and charged with possession of a prohibited offensive weapon*fn2 i.e., the sawed-off rifle. Counsel for the appellee filed a pre-trial motion to suppress the sawed-off rifle, alleging an illegal search and seizure by Jeffries, and a pre-trial motion to quash the information; contending that, as a matter of law, the sawed-off rifle was not a prohibited offensive weapon.

After a hearing on July 7, 1982, the lower court made findings of fact. On August 11, 1982, the lower court issued an order denying the appellee's motion to suppress, but granted the motion to quash the information. The lower court concluded that the sawed-off rifle was not a prohibited ...


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