Commonwealth v. HallCommonwealth v. Hall
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- Before:
- Cercone
This is аn appeal from an adjudication of delinquency and order of commitment. 1 We now reverse and discharge appellant because оf insufficient evidence.
Appellant was stopped on a street in Philadelphia at approximately 3:00 a.m. on the morning of May 8, 1978 by one Officer Flynn. Aрpellant and a companion were briefly questioned whereupon the companion left with the officer’s permission but appellant was arrested. A delinquency petition charging him with possession of an instrument of crime
2
and possession of a prohibited offensive weapon
3
was
Appellant contends that the evidence was insufficient to show that he viоlated the Crimes Code section on which the delinquency adjudication was based. Section 907 “Possession of instruments of crime” reads:
(a) Criminal instruments generally.—A person commits a misdemeanor of the first degree if he possesses any instrument of crime with intent to employ it criminally.
(b) Possession of weapon.—A рerson commits a misdemeanor of the first degree if he possesses a firearm or other weapon concealed upon his person with intеnt to employ it criminally.
(c) Definitions.—As used in this section the following words and phrases shall have the meanings given to them in this subsection:
“Instrument of crime.”
(1) Anything specially made or sрecially adapted for criminal use; or
(2) anything commonly used for criminal purposes and possessed by the actor under circumstances not mаnifestly appropriate for lawful uses it may have.
“Weapon.” Anything readily capable of lethal use and possessed under circumstances not manifestly appropriate for lawful uses which it may have. The term includes a firearm which is not loaded or lacks a clip or other compоnent to render it immediately operable, and components which can readily be assembled into a weapon.
Reading the evidence in the light most favorable to the verdict winner, the facts of the case at bar are these. At about 3:00 a.m. on the night in question Officer Flynn heard loud noises, as if someone were shouting, coming from the Raymond Rosen Project, which was but a short distance away. Upon his arrival at the scеne he observed two young males shouting to a third male who was at the window in a nearby building. Officer Flynn approached the two and began to question them аbout their presence on the street at such a late hour. The first young man responded with his name and address and was directed to return home for violаtion of the curfew law when he admitted to being a juvenile. The officer then questioned the second young man, appellant, who was less cooрerative. He appeared to be intoxicated and refused to supply the officer with his name and address, although he did claim to be twenty-onе. Because of appellant’s appearance this claim of majority appeared to be false. Officer Flynn then turned appellant around to frisk him. Upon doing so he saw protruding from appellant’s rear pocket a state store price list wrapped around an ordinary steak knife. About a half an inch of the blade of that knife was exposed above the top edge of the folded price list. Appellant was immediately arrested. The question before us is whether this is enough evidence to
Let us consider the question first under Section 907(a). Appellant concеdes that the evidence was sufficient to show that the steak knife was an “instrument of crime.” Steak knives, however, are not “specially made or specially adopted for criminal use.”
In
Commonwealth v. Moore,
259 Pa. Superior Ct. 560, 393 A.2d 967 (1978) wе held that the evidence was insufficient to show that the juvenile defendant in that case had intended to use an unsheathed knife, the handle of which protrudеd from his waistband, in any criminal manner. There, as here, there was no attempt to use the weapon, let alone successful use of it, nor any attemрt to reach for it. This is not a situation like that in
Commonwealth v. Thornton,
494 Pa. 164, 430 A.2d 1168 (1981). In that case the defendant had a knife wrapped in newspaper concealed in his trousers which he then used to kill another young man who had been taunting him. The Court concluded there, as it has elsewhere,
Reversed and appellant discharged.
Notes
. This case was reassigned to this writer on June 21, 1982.
.
.
. The order of commitment was vаcated on the same day the instant appeal was filed, pending our disposition of the matter.
. Cf. Commonwealth v. Moore, 259 Pa. Superior Ct. 560, 393 A.2d 967 (1978).
. See Commonwealth v. Keaton, 276 Pa.Super. 518, 419 A.2d 578 (1980) (evidence which established that defendant intentionally stabbed and killed his victim was sufficient to support convictions for murder in the first degree and possession of an instrument of crime); Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978) (evidence which estаblished that defendant intentionally stabbed and killed victim with a knife during a fight was sufficient to support convictions for voluntary manslaughter and possession of an instrument of crime); Commonwealth v. Allen, 466 Pa. 474, 353 A.2d 452 (1976) (evidence that, during the course of a violent domestic quarrel, defendant armed himself with a knife and, immediately thereafter, fatally stabbed his wife was sufficient to prove that he intended to employ the knife criminally).