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COMMONWEALTH PENNSYLVANIA v. ARNOLD HITCHON (09/22/88)

filed: September 22, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
ARNOLD HITCHON, APPELLANT



Appeal from the Judgment of Sentence entered July 23, 1987 in the Court of Common Pleas of Bucks County, Criminal Division, No. 2313 of 1984.

COUNSEL

Stanley M. Shingles, Philadelphia, for appellant.

Stephen B. Harris, Assistant District Attorney, Warrington, for Com., appellee.

Beck, Kelly and Johnson, JJ.

Author: Kelly

[ 379 Pa. Super. Page 138]

Appellant, Arnold Hitchon, appeals the judgment of sentence entered on July 23, 1987. We affirm.

On October 1, 1986, appellant was convicted of possession of a prohibited offensive weapon. Timely post-verdict motions were filed, argued, and denied. Thereafter, on July 23, 1987, appellant was sentenced to a term of six months probation. This timely appeal followed.*fn1

On appeal, appellant contends that: (1) the evidence is insufficient to support the verdict; (2) Section 908 of the Penal Code is unconstitutionally vague and impermissibly shifts the burden of proof to defendant; (3) the submission to the jury of the issue of whether the object in question is a dagger, knife, razor or cutting instrument, constituted prejudicial error; and (4) a written advertisement relating to the implement was erroneously admitted into evidence.

[ 379 Pa. Super. Page 139]

FACTUAL HISTORY

While on patrol at approximately 12:10 p.m. on December 9, 1983, Captain Ronald Traenkle of the Bensalem Township Police Department observed a brown Oldsmobile parked illegally in front of a True Value hardware store. (N.T. 9/29/86 at 18). The vehicle was unoccupied with the motor running. (N.T. 9/29/86 at 18). Captain Traenkle parked his police car and observed the Oldsmobile and the hardware store for approximately five minutes. (N.T. 9/29/86 at 18). The officer then approached the Oldsmobile, copied down the registration number and radioed headquarters for a registration check. (N.T. 9/29/86 at 19). After receiving the information requested, Captain Traenkle entered the hardware store and twice called out in a loud voice "[w]ho is the owner of the vehicle parked in front of the doorway, the brown Oldsmobile?" (N.T. 9/29/86 at 20-22). Upon receiving no response, the officer commented to the store manager that he would have the vehicle towed away and began to exit the store. (N.T. 9/29/86 at 22). Before Captain Traenkle got out of the door, however, he was approached by appellant, who asked, "Which vehicle do you mean?" (N.T. 9/29/86 at 22). When Captain Traenkle pointed to the brown Oldsmobile, appellant admitted that it was his car. (N.T. 9/29/86 at 22). Captain Traenkle told appellant to meet him outside after he completed his purchase.

While appellant and Captain Traenkle were outside by the vehicle, Captain Kenneth Hopkins and Officers Holdren and Campellone arrived on the scene. (N.T. 9/29/86 at 25). After receiving appellant's consent to search the Oldsmobile, Captain Hopkins opened up the trunk of the car and leaned over to look inside. (N.T. 9/29/86 at 26-27). As Captain Hopkins did that, appellant walked towards the trunk, and as he did so, he passed in front of Captain Traenkle. (N.T. 9/29/86 at 27). As appellant walked passed him, Captain Traenkle observed the upper third of an item which he recognized to be a "Guard Father" protruding from appellant's right rear pants pocket. (N.T. 9/29/86 at 22-29). After removing the object from his

[ 379 Pa. Super. Page 140]

    pocket, Captain Traenkle placed appellant under arrest for possession of a prohibited offensive weapon.

At the police station, appellant was allowed to make a telephone call. (N.T. 9/29/86 at 61). Approximately ten to fifteen minutes later, a woman arrived at the station and handed appellant an advertisement. Upon receiving the advertisement, appellant said, "That's it." (N.T. 9/29/86 at 65-66). Appellant then gave the advertisement to Captain Traenkle who then made a copy of the advertisement and returned the original to the woman. (N.T. 9/29/86 at 66). The advertisement depicted an implement identical to the object seized from appellant. The object was identified as a "Guard Father," and described as a pen like instrument which, when its pocket-clip is depressed, a six inch long pointed steel shaft automatically ejects. According to the advertisement, the instrument was designed to be used as a "defensive" weapon. (Commonwealth Exhibits C-1, C-2).

I.

Appellant's first contention is that the evidence was insufficient to support the verdict. Upon review of the record and the applicable authority, we find this claim is without merit.

In evaluating the sufficiency of the evidence, we must view all of the evidence, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, as the verdict winner, in order to determine if the evidence was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984); Commonwealth v. Pearsall, 368 Pa. Super. 327, 534 A.2d 106 (1987); Commonwealth v. Hanes, 361 Pa. Super. 357, 522 A.2d 622 (1987); Commonwealth v. Reddix, 355 Pa. Super. 514, 513 A.2d 1041 (1986). Moreover, where the evidence is conflicting, it is the province of the fact finder to determine credibility; it is the prerogative of the fact finder to believe all, part, or none of the evidence presented. Commonwealth v. Pearsall, supra; Commonwealth v. Hanes, supra.

[ 379 Pa. Super. Page 141]

Section 908(a) of the Pennsylvania Crime Code states: "[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." 18 Pa.C.S.A. § 908(a). Section 908(c) defines an "offensive weapon" as "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, 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." 18 Pa.C.S.A. § 908(c). (Emphasis added). Thus, a jury could properly find appellant guilty of possessing a prohibited offensive weapon if they found either ...


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