Commonwealth v. Siiams
394 A.2d 992
Pa. Super. Ct.
1978
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COMMONWEALTH оf Pennsylvania, Appellant, v. Heasi B. H. SIIAMS, a/k/a Frank Small.

No. unknown

Superior Court of Pennsylvania.

Decided Nov. 17, 1978.

394 A.2d 992

Submitted Nov. 15, 1977.

riage of one of the parties, relocation, finances, health or other altered circumstances. It is thе court‘s responsibility under our controlling statute, 48 P.S. 92, to safeguard the “permanent welfare” of the child and it was for that reason that the trial court awarded custody of Jeffrey Phillips to his father “until further order of court“. If there should be a significant change in the circumstances of either party, this proceeding may be reopened.

We are assuming that liberal visitation rights will be granted to Meredith and that if they cannot be agreed upon by the parties, the trial court will grant them.

Affirmed.

PRICE, J., concurs in the result.

SPAETH, J., files a concurring opinion.

WATKINS, former President Judge, and HOFFMAN, J., did not рarticipate in the consideration or decision of this case.

SPAETH, Judge, concurring:

I join in the majority‘s opinion but wish to note that in my opinion “the judicial rule” for which the majority cites

, is no longer the law.

Charles W. Johns, Assistant District Attorney, and Robert E. Colville, ‍‌‌​​‌​‌​​‌‌‌‌​‌​‌​​​‌‌‌​‌​​​​​​‌​​​​‌‌‌​‌​‌​‌‌‌‌‍District Attorney, Pittsburgh, for Commonwealth, appellant.

Robert Shapiro, Assistant Public Defender, Pittsburgh, for appellee.

Before WATKINS, Prеsident Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

VAN der VOORT, Judge:

This is an appeal by the Commonwealth from an Order of the trial court granting appellee‘s motion in arrest of judgment. The appellee was tried on November 17, 1976, before a judge, after waiving trial by jury, and was convicted of a charge of carrying a firearm without a license. Following trial, appellee‘s motion in arrest of judgment was granted on December 15, 1976.

In an appeal from the granting of a motion in arrest of judgment, the reviewing court must determine whether the evidenсe presented by the prosecution was sufficient to support the verdict. In reaching a determination, the appellate court must review the record аnd all facts contained therein, together with all reasonable inferences arising therefrom, in the light most favorable to the Commonwealth.

. The same concеpts apply whether the fact finder was a jury or a judge sitting without a jury.
. Acting under such principles, we find that the lower court erred in granting the motion in arrest of judgment in the instant cаse.

The appellant was found guilty of a violation of the ‍‌‌​​‌​‌​​‌‌‌‌​‌​‌​​​‌‌‌​‌​​​​​​‌​​​​‌‌‌​‌​‌​‌‌‌‌‍Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 6106, which provides, in pertinent part: “No person shall carry a firearm in any vehicle or concealed on or about his person, except in his place of abode or fixed place of business, without a license therefor as рrovided in this subchapter.” The lower court, in arresting judgment, found that there had not been proof that the gun found on the appellant was in “operable” condition. The correctness of that finding is the sole issue disputed by the parties to this appeal.

The lower court relied upon the decision in

, where the Pennsylvania Supreme Court held that a person could not be convicted undеr a similar statute,1 if the object owned, possessed or controlled by the accused was not capable of firing a shot, and if he did not have under his control the means to convert the object into one capable of firing a shot. In Layton, it was stipulated that the pistol possessed by the accused could not have been fired at the time of the arrest. There was no evidence offered as to how the pistol could have been made operable in that case. In Layton, the Supreme Court explained that even though the object was not operable, a conviction might be sustained if the possessor had under his control the means to convеrt the object into one capable of firing a shot. The Court went on to state that an operable firearm may be said to be under the control of the allеged actor even though it is “. . . a malfunctioning assembled firearm or a disassembled firearm” (
) so long as the accused has under his control the means to convert the inоperable firearm into an operable firearm. The court stated that an “operable” status could be found if the weapon had a damaged part that was “. . . readily repairable” (
).

Our review of the record in the instant case, with all reasonable inferences being considered in the light most favorable to the Commоnwealth, leads us to the conclusion that there was sufficient evidence to show that the firearm was capable of firing a shot by means within the control of the ‍‌‌​​‌​‌​​‌‌‌‌​‌​‌​​​‌‌‌​‌​​​​​​‌​​​​‌‌‌​‌​‌​‌‌‌‌‍appellee. The testimony supporting this conclusion was adduced when a weapons expert for the Allegheny County Crimes Laboratory testified. While this expert stated that the derringer-type pistol taken from the appellee was “inoperable“, he also explained what he meant by his use of that term and also explained how he easily made what he called a “repair” so that the pistol would shoot a bullet. Thus, the expert, testified:

“Okay. To make the repair, there is a pin called the barrel pivot pin. That has to hold onto a plate which also holds onto the grips. It‘s called a grip plate. If this plate is not in line with the barrel pivot pin, then, when one pulls the trigger, the breech face moves away from the firing pin. Now, when the hammer falls, it does not hit the rounds hard enough to discharge. To discharge the weapon, the plate has to rest against the barrel pivot pin in a correct position, and it has to be held onto the barrel pivot pin tightly. So what I did is I grabbed a рair of pliers and held onto the plate, so that there was a good contact between the pivot pin and the plate, and then test fired the weapon.”

Further questions and answers by the prosecuting attorney and the firearms expert were as follows:

Q In your testimony, then, with respect to your repair of this gun, you did not have to supply any parts to make this gun operable; is that right?

A That is correct.

Q Did you have to alter any parts as the gun was submitted to you?

A Not alter the parts, just to apply pressure against the barrel pin so that the barrel pin, barrel pivot pin holds tightly to the plate.

Q . . . would it be fair to say that when you say inoperable in this case, that you actually meant ‍‌‌​​‌​‌​​‌‌‌‌​‌​‌​​​‌‌‌​‌​​​​​​‌​​​​‌‌‌​‌​‌​‌‌‌‌‍malfunctioning, or would that be any difference in the use of those terms in your field?

A It would be—well, there is a malfunction, in the fact that the barrel pivot pin is not held against these twо side plates. It is inoperable because of that

Q Malfunction?

A Malfunction.

We hold that it was clearly possible for the trier of fact in this case, based upon the testimony quoted abоve, and the record as a whole, to infer and conclude that the weapon in the instant case was capable of firing a shot, by means available to thе appellee and was not “inoperable” under the guidelines set forth in Layton.

The Order granting the appellee‘s motion in arrest of judgment is vacated and the verdict reinstated. The case is remanded to the trial court for sentencing.

SPAETH, J., files a dissenting opinion.

WATKINS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this casе.

SPAETH, Judge, dissenting:

The statute forbids one to “carry a firearm.” The majority acknowledges that this means an operable firearm. Of course we must read the record in the light most favorable to the Commonwealth, but that doesn‘t mean we read it to say what it doesn‘t say.

The expert said the firearm was inoperable. (N.T. 40). He then said he could render it оperable by using pliers. (N.T. 35-36) (At one point he expressed the opinion that hand pressure would be sufficient, but he admitted he had not tried to fire the firearm using only hand pressure. (N.T. 43-45)) He also said that “someone who knows very little about guns” might not recognize that the firearm could be made operable by applying pressure to the barrel рin. (N.T. 40-41)

If you can make the firearm you are carrying fire only after squeezing it with pliers—assuming you know what is wrong with the firearm and know how to use pliers ‍‌‌​​‌​‌​​‌‌‌‌​‌​‌​​​‌‌‌​‌​​​​​​‌​​​​‌‌‌​‌​‌​‌‌‌‌‍to fix it—the firearm is inoperablе—unless perchance you are carrying not only the firearm but also the pliers, which the evidence here does not show.

The lower court was correct in grаnting the motion to arrest, and its order should be affirmed.

Notes

1
1. The conviction in Layton was under Section (d) of the Uniform Firearms Act. Act of June 24, 1939, P.L. 872, § 628(d) as amended, 18 P.S. 4628(d) (now 18 Pa.C.S. § 6105), which prohibits one previously convicted of а crime of violence from owning, possessing or controlling a firearm. A comparison between that section and § 6106 reveals no distinction between the two as to the definition of “firearm“. Thus, we find the Layton holding applicable to § 6106 as well as § 6105.