IN THE INTEREST OF: R.A.F., a Minor Appeal of: R.A.F., a Minor
No. 1755 MDA 2015
Superior Court of Pennsylvania.
Submitted June 13, 2016 Filed September 21, 2016
149 A.3d 63
Edward M. Marsico, Jr., Assistant District Attorney, and Joseph P. Cardinale, Jr., Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
* Former Justice specially assigned to the Superior Court.
OPINION BY BOWES, J.:
R.A.F., a minor, appeals from the August 12, 2015 dispositional order adjudicating him delinquent for, inter alia, conduct constituting possession of a prohibited offensive weapon. We affirm.
On May 20, 2015, Harrisburg Police Officer Michael Rudy and Probation Officer Sean Hamor of the Dauphin County Adult Probation Office, members of the Street Crimes Unit, were conducting nighttime surveillance in the area of 2100 North 4th Street in Harrisburg, Pennsylvania, due to reports of vandalism and individuals carrying firearms in the vicinity. The officers were conducting surveillance at 2110 North 4th Street. Their attention was drawn to two individuals, later identified as Appellant and A.E.,1 who were walking from the West side of 4th Street towards Atlas Alley. From fifty feet away, Probation Officer Hamor and Officer Rudy watched as Appellant and A.E. crossed the alley and entered the backyard of an abandoned property. The two juveniles rummaged through the tall grass for a brief moment until Appellant bent over and arose with a shotgun. Probation Officer Hamor, with the assistance of binoculars, saw Appellant load the shotgun with three shells before handing it to A.E. A.E. wrapped his hooded sweatshirt around the shotgun and started to walk. Then he handed the shotgun back to Appellant, who removed the sweatshirt and slipped the gun down his right pant leg. Appellant donned A.E.‘s hooded sweatshirt to conceal the weapon. The two juveniles left the abandoned property, walked through the alley, and crossed a nearby church parking lot. Officer Rudy radioed for additional police, who apprehended A.E. and Appellant. A search of Appellant yielded the shotgun.
The Commonwealth sought to have Appellant adjudicated delinquent based on conduct constituting possession of drug paraphernalia, person in possession of a controlled substance, possession of a firearm by a minor, possession of a firearm with an altered serial number, and possession of a prohibited offensive weapon pursuant to
At the adjudication, State Police Trooper Michael Fortley, a firearm and tool mark examiner, testified that both the stock of the shotgun and the barrel were visibly shortened. He added that the barrel of the shotgun was eighteen and nine-sixteenths inches long and the overall length of the shotgun was thirty-one and three-quarter inches. The stock end had either been shortened or removed. The expert testified that in his experience, there was no “common, lawful purpose to alter a firearm in that manner.” N.T., 8/12/15, at 58. The Trooper test-fired the weapon and determined that it was fully functional. He also reported that someone had unsuccessfully attempted to obliterate the weapon‘s serial number.
On August 12, 2015, Appellant was adjudicated delinquent. Appellant filed a post-dispositional motion on August 21, 2015,
- In prosecutions for possessing a sawed-off shotgun in violation of
18 Pa. C.S. § 908 (prohibited offensive weapons), should the elements of the offense be based on the specific reference to “sawed-off shotgun” in the statutory definition of “offensive weapon“—“sawed-off shotgun with a barrel length less than 18 inches“—rather than the general reference pertaining to a “firearm specially made or specially adapted for concealment or silent discharge?” - Even if an actor can be prosecuted for possessing a sawed-off shotgun under the general provision of the statutory definition of “offensive weapon” at
18 Pa.C.S. § 908 , the evidence was insufficient to prove that juvenile consciously disregarded a substantial and unjustifiable risk that he was possessing a firearm made or adapted for concealment? [sic]
See Appellant‘s brief at 5 (underlining and unnecessary capitalization omitted).
Appellant frames his issues as challenges to the sufficiency of the evidence supporting his adjudication based on conduct constituting possession of a prohibited offensive weapon. “The standard we apply when reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favor-able to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt.” Commonwealth v. Smith, 956 A.2d 1029, 1035 (Pa.Super.2008) (en banc). We examine the entire record and consider all evidence actually received, giving the verdict winner the benefit of all reasonable inferences to be drawn from the evidence, and mindful that the Commonwealth may sustain its burden with wholly circumstantial evidence. Id.
Appellant‘s first issue is predicated on the interpretation of the offensive weapon statute,
The criminal statute at issue is
Any bomb, grenade, machine gun, sawed-off shotgun with a barrel less than 18 inches, 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, any stun gun, stun baton, taser or other electronic or electric weapon or other implement for the infliction of serious bodily injury which serves no common lawful purpose.
When construing statutes, our goal is to ascertain and effectuate the intention of the legislature. In performing that function, certain principles of statutory construction apply. We presume “that the General Assembly intends the entire statute to be effective and certain,” and thus construe a statute to give effect to all of its provisions.
Notwithstanding the provisions of
1 Pa. C.S. § 1933 (relating to particular controls general) or any other statute to the contrary, where the same conduct of a defendant violates more than one criminal statute, the defendant may be prosecuted under all available statutory criminal provisions without regard to the generality or specificity of the statutes.
This Court relied upon
In Commonwealth v. Kriegler, 127 A.3d 840 (Pa.Super.2015), this Court invoked
This Court concluded that the general-specific rule had been abrogated in this context by
With the foregoing legal principles in mind, we turn to Appellant‘s premise that “firearms specially made or adapted for concealment or silent discharge” is a general provision. Appellant contends that if that provision is construed to include sawed-off shotguns, it would encompass every sawed-off shotgun and render the specific sawed-off shotgun provision a nullity. Moreover, Appellant maintains that, by specifically defining only sawed-off shotguns with barrels less than eighteen inches in length as offensive weapons, the legislature intended to exclude sawed-off shotguns with longer barrels from the definition of offensive weapons entirely. Appellant‘s brief at 7. He contends that the two provisions conflict irreconcilably, and that the specific-general rule still has vitality, inter alia, “in interpreting definitions of statutory terms.” Appellant‘s brief at 23.
The Commonwealth counters that the sawed-off shotgun provision and the firearm specially altered for purposes of concealment provision of the offensive weapons statute are both specific provisions, that they are consistent and complement each other, and that
Preliminarily, we reject Appellant‘s characterization of the instant prosecution as one for possession of “a sawed-off shotgun in violation of
We discern legislative intent first by examining the language of the statute itself.4 Commonwealth v. Vega-Reyes, 131 A.3d 61, 63 (Pa.Super.2016) (en banc). Only where the statutory language is not explicit do we go beyond the face of the text to ascertain legislative intent beyond the face of the text. Id.
In 1994,
We find that the two definitions are specific, that on the facts herein we can construe them to give effect to both, and further, there is no irreconcilable conflict that would implicate the specific-general rule. The provision defining a sawed-off shotgun with a barrel not exceeding eighteen inches as an offensive weapon was not applicable since the barrel measured eighteen and nine-sixteenths inches in length. However, the shotgun was a firearm altered in another manner. The stock end of the firearm was shortened, which reduced its overall length and width and made it easier to conceal. Nothing in the statute suggests that the legislature, by adding the maximum barrel requirement in the shotgun provision, intended to foreclose prosecution for possession of a sawed-off shotgun with a stock end shortened to facilitate concealment. Appellant‘s argument ignores the fact that the shortening of the stock end of the shotgun herein constituted an alteration and modification to a firearm that, together with proof that its purpose was to facilitate concealment, could support the court‘s finding that it constituted an offensive weapon.
Furthermore, we agree with the Commonwealth that the two provisions are not irreconcilable and the specific-general rule is not implicated.5 The weapon at issue was not a sawed-off shotgun with a barrel less than eighteen inches in length, an enumerated offensive weapon. It was, however, a firearm with a shortened stock end that the Commonwealth proved was adapted for purposes of concealment. The two provisions can therefore be reconciled.
Moreover, culpability under the adapted firearm definition required proof of an additional element that the sawed-off shotgun provision did not. The Commonwealth offered expert testimony that the shotgun was a functional firearm and that its stock end as well as its barrel were shortened. Testimony was introduced that Appellant loaded the firearm, initially wrapped it a sweatshirt, then hid it in his pant leg, and donned the sweatshirt. N.T., 8/12/15, at 52-53, 56. From this evidence, one could reasonably find that Appellant possessed a loaded and operational firearm that was specially adapted for purposes of concealment. We find no merit in Appellant‘s contention that he could not be adjudicated delinquent when he possessed a firearm that met the definition of an offensive weapon under the statute.
Appellant‘s second issue is a challenge to the sufficiency of the evidence of mens rea supporting his adjudication of delinquency.6 Specifically, he contends that the Commonwealth failed to present evidence that he possessed an offensive weapon intentionally, knowingly, or with reckless disregard of a substantial and unjustifiable risk to others. Appellant‘s brief at 25. He maintains that “intentionally” or
The Commonwealth counters that the eyewitness testimony of Officer Rudy and Probation Officer Hamor supplied sufficient proof that Appellant either intentionally or knowingly possessed a firearm specially adapted for purposes of concealment. The officers observed Appellant and his cohort looking through the tall grass, as if searching for an item. Appellant picked up the shotgun with the shortened stock and barrel and loaded it with 20-gauge birdshot that he already had in his possession. The Commonwealth cites the reasoning of the trial court: “The [juveniles] would have us imagine that it was just pure happenstance that one or two of them would have shells on their person to load a 20 gauge shotgun. That confluence of happenstance is beyond any reasonability.” Commonwealth‘s brief at 13-14 (quoting Adjudicating Court Opinion, 3/31/16, at 5). Appellant then hid the weapon in his pant leg and put on a jacket to further conceal the firearm. N.T., 8/12/15, at 9-11.
We agree with the trial court that the Commonwealth adduced sufficient evidence to prove the requisite mens rea. One can reasonably infer from the testimony of the officers that Appellant and A.E. knew where the sawed-off shotgun was hidden, and that they intentionally retrieved it, loaded it, and took possession of it. See Commonwealth v. Giordano, 121 A.3d 998, 1006 (Pa.Super.2015) (defendant‘s conviction of prohibited offensive weapon upheld where he knew he had a sword and that it was not permitted on school property). Their efforts to conceal the shotgun permit the reasonable inference that they were aware of its unlawful nature. Certainly, the act of loading the firearm refuted Appellant‘s claim, which the juvenile court was free to reject, that the two juveniles merely found the weapon and intended to turn it over to police. We therefore find sufficient evidence to sustain Appellant‘s adjudication of delinquency for conduct amounting to possession of a prohibited offensive weapon.
Dispositional order affirmed.
COMMONWEALTH of Pennsylvania, Appellant v. John Richard VETTER, III
No. 1400 MDA 2015
Superior Court of Pennsylvania.
Submitted March 14, 2016 Filed September 27, 2016 Reargument Denied December 6, 2016
(c) Culpability required unless otherwise provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly, or recklessly with respect thereto.