J-S78022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAQUAN MOODY :
:
Appellant : No. 696 WDA 2017
Appeal from the Judgment of Sentence April 11, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0006070-2016
BEFORE: OLSON, J., DUBOW, J., and STRASSBURGER*, J.
JUDGMENT ORDER BY DUBOW, J.: FILED JANUARY 04, 2018
Appellant, Jaquan Moody, appeals from the Judgment of Sentence of
two years’ probation entered by the Allegheny County Court of Common
Pleas following his conviction after a bench trial of unlawful possession of a
Prohibited Offensive Weapon.1 After careful review, we reverse.
A recitation of the facts is unnecessary for our disposition. Appellant
filed a timely notice of appeal. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Were Appellant’s state and federal due process rights
violated when he was convicted of the crime of possession
of a Prohibited Offensive Weapon, 18 Pa.C.S. § 908, based
on insufficient evidence (given that a .32-caliber revolver
____________________________________________
1
18 Pa.C.S. § 908.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S78022-17
is not an offensive weapon under Crimes Code § 908(c),
thus making Appellant’s possession of such a firearm not
an act that is criminalized by § 908)?
2. Should this Court reject any argument from the
Commonwealth, if it is made, asserting that Appellant
should be judicially estopped from asserting the
insufficiency of the evidence of the crime of unlawful
possession of a Prohibited Offensive Weapon (“POW”) due
to the fact that his own attorney requested that the trial
court convict of the crime of POW in lieu of convicting him
of the charged crime of 18 Pa.C.S. § 6106 Unlawful
Possession of a Concealed Unlicensed Firearm (with
rejection of any such argument being appropriate due to
the fact that Appellant gained no benefit from his
attorney’s erroneous argument, nor was there any harm to
the Commonwealth, since the Commonwealth’s evidence
was also insufficient to establish the § 6106 charge given
the absence of evidence of the barrel or overall length
element of that offense)?
Appellant’s Brief at 3.
First, Appellant contends the evidence was insufficient to establish that
he committed the crime of possession of a Prohibited Offensive Weapon
because his possession of a .32-caliber Smith & Wesson Iver Johnson
revolver is not a “prohibited offensive weapon.” See Appellant’s Brief at 16.
The Commonwealth and the trial court concede the weapon did not meet the
statutory definition and they argue that the Judgment of Sentence should be
reversed. We agree.
We review challenges to the sufficiency of the evidence by considering
“whether viewing all the evidence admitted at trial in the light most
favorable to the verdict winner, there is sufficient evidence to enable the
fact-finder to find every element of the crime beyond a reasonable doubt.”
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Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014) (citation
omitted).
The legislature has failed to include handguns within the definition of
prohibited offensive weapons. The Crimes Code defines “prohibited
offensive weapons” as follows:
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.
18 Pa.C.S. § 908(c).
This Court in In re R.B.G., 932 A.2d 166 (Pa. Super. 2007), “vacate[d
the a]ppellant's adjudication of delinquency with regard to Section 908”
noting that “[t]he juvenile court and the Commonwealth concede[d] that the
evidence presented was insufficient to support Appellant's adjudication
under Section 908 because handguns specifically have been held by our
Supreme Court, as well as this Court, not to be prohibited offensive weapons
under Section 908.” Id. at 169, citing Commonwealth v. Harper, 403
A.2d 536, 540 (Pa. 1979) (holding .32-caliber automatic pistol is not a
prohibited offensive weapon), and Commonwealth v. Rose, 401 A.2d
1148, 1159 (Pa. Super. 1979) (holding .32-caliber Smith & Wesson pistol is
not a prohibited offensive weapon).
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In the case sub judice, Appellant possessed a .32-caliber Smith &
Wesson Iver Johnson revolver, which is not a “prohibited offensive weapon.”
See In re R.B.G., 932 A.2d at 169. Therefore, the evidence presented was
insufficient to sustain Appellant’s conviction under Section 908. See
Melvin, 103 A.3d at 39. Accordingly, we reverse the Judgment of Sentence.
Judgment of Sentence reversed. Case remanded. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2018
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Com. v. Moody, J.
Combined Opinion