Summary
rejecting claim that evidence was insufficient to sustain VUFA conviction because Commonwealth could not prove operability in absence of weapon
Summary of this case from Commonwealth v. GodwinOpinion
November 17, 1975.
February 2, 1976.
Criminal Law — Possession of firearm by convict — Uniform Firearms Act — Lack of direct proof of operability of firearm — Operability reasonably inferred.
1. In this case the defendant was convicted of a violation of the Uniform Firearms Act which prohibits a convict from possessing a firearm, and of other offenses. The firearm was not introduced into evidence at the trial. It was Held that the conviction was proper as an inference of operability was reasonably based on the testimony of the victim.
2. There need not be direct proof of operability of a firearm in order to sustain a conviction of unlawful possession of a firearm.
3. A reasonable fact finder may infer operability from an object which looks like, feels like, sounds like or is like, a firearm and such an inference would be reasonable without direct proof of operability. Criminal Law — Carrying concealed firearm without a license — Commonwealth v. McNeil, 461 Pa. 709 (1975) to be applied prospectively only — Burden of proof on Commonwealth to prove absence of a license.
4. Commonwealth v. McNeil, 461 Pa. 709 (1975) places the burden of proof on the Commonwealth to establish the absence of a license.
5. Commonwealth v. McNeil, supra, is to be applied prospectively only.
6. In cases tried prior to Commonwealth v. McNeil, supra, the burden is on the defendant to establish that he had a license to carry a firearm.
HOFFMAN, J., filed a concurring opinion, in which SPAETH, J., joined.
Submitted November 17, 1975.
Before WATKINS, P.J., JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT, and SPAETH, JJ.
Appeal, No. 371, April T., 1975, from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Nov. T., 1974, No. 6414A, in case of Commonwealth of Pennsylvania v. Richard Yaple. Judgment of sentence affirmed.
Indictment charging defendant with simple assault, violation of the Uniform Firearms Act, unlawfully carrying a firearm without a license and related offenses. Before RIDGE, J., without a jury.
Finding of guilty of assault and violation of the Uniform Firearms Act and judgment of sentence entered thereon. Defendant appealed.
Lester G. Nauhaus, Trial Defender, John J. Dean, Chief, Appellate Division, and Ralph J. Cappy, Public Defender, for appellant.
Charles W. Johns, Robert L. Campbell, and Robert L. Eberhardt, Assistant District Attorneys, John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.
Appellant was convicted on December 20, 1974 in a non-jury trial of simple assault and of two violations of the Uniform Firearms Act which prohibits a convict from possessing a firearm and prohibits the carrying of a concealed firearm without a license. Post verdict motions were denied on January 27, 1975, and on January 30, 1975, appellant was sentenced.
Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 2701.
Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 6105 and § 6106.
Appellant now appeals to this court arguing first that his convictions under the Uniform Firearms Act were improper because the Commonwealth failed to prove the existence of an operable firearm. Appellant contends that because no firearm was introduced into evidence there was no proof of an operable firearm and, therefore, Commonwealth v. Layton, 452 Pa. 495 (1973), mandates that his convictions be set aside. Appellant's reliance on Layton is, however, misplaced. In Layton it was stipulated that the weapon in question was inoperable; here there is no such stipulation. Furthermore, the court in Layton points out that there need not be direct proof of operability. Layton states at page 498: "A reasonable fact finder may, of course, infer operability from an object which looks like, feels like, sounds like or is like, a firearm. Such an inference would be reasonable without direct proof of operability." In the instant case such an inference of operability was reasonably based on the testimony of the victim.
The only other matter worthy of discussion is appellant's contention that the Commonwealth failed to prove his violation of § 6106 (carrying a firearm without a license) because it did not prove the absence of a license. While it is true that Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975), now requires that the Commonwealth prove the absence of a license, appellant's case is not governed by McNeil. In Commonwealth v. Williams, 237 Pa. Super. 91, 95 (1975), our Court held that McNeil would be given only prospective application. Since appellant's case was tried prior to McNeil the burden was on the defendant to prove that he had a license if, in fact, he did have one. Since he offered no such proof his conviction of § 6106 was proper.
Affirmed.
I agree that appellant was properly convicted of simple assault and possession of a firearm by a person convicted of a crime of violence. In regard to appellant's conviction for possession of a concealed firearm without a license, I continue to adhere to the view expressed in my Dissenting Opinion in Commonwealth v. Williams, 237 Pa. Super. 91, 96, 346 A.2d 308, 311 (1975), that the Commonwealth has the burden of proving the absence of a license by virtue of the definitional provisions of the new Crimes Code, and that the retroactivity of Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975), is an issue only in cases arising under the 1939 Penal Code. However, I believe that evidence of a prior conviction provides a sufficient basis to enable the fact-finder to infer that appellant did not have a license.
Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S.A. § 2701.
Act of December 6, 1972, supra; 18 Pa.C.S.A. § 6105.
Act of December 6, 1972, supra; 18 Pa.C.S.A. § 6106.
SPAETH, J., joins in this concurring opinion.