dissenting:
Appellant contends that 18 Pa. C.S. § 908(b) imposes an unconstitutional burden by requiring him to disprove criminal intent by a preponderance of the evidence. I agree and would, therefore, vacate the judgment of sentence and order the appellant discharged.
On May 8, 1975, a Philadelphia police officer observed appellant on foot in central Philadelphia in possession of a sword cane and arrested appellant for possession of a prohibited offensive weapon. 18 Pa. C.S. § 908.1 At a trial without a jury in the Philadelphia Court of Common Pleas on August 22, 1975,2 appellant testified that at the time of the arrest, he was en route to his mother's apartment from a center city store where he had purchased the sword cane as an antique. The lower court found appellant guilty of violating § 908 and imposed a sentence of one year probation. Appellant filed oral post-verdict motions on the record at the conclusion of the trial pursuant to Rule 1123(b), Pa.R.Crim.P.; 19 P.S. Appendix; Commonwealth v. Erhart, 248 Pa.Super. 481, 375 A.2d 342 (1977).
Appellant asserts that the lower court improperly concluded that mere possession of an “offensive weapon” consti*62tutes a violation of § 908. More specifically, he contends that because possession with unlawful intent is an element of § 908, the Commonwealth must prove such intent beyond a reasonable doubt. Appellant further maintains that the fact that he introduced evidence of innocent possession does not shift the burden of proof. The Majority rejects this contention and states: “The primary concern of the statute is the nature of the weapon, not the intention of its possessor. The statute requires the Commonwealth to show no broader intent than the intent to possess the sword cane, which intent appellant does not dispute here.” I believe this conclusion is in error as a matter of statutory interpretation and constitutional law.
In Commonwealth v. Ponds, 236 Pa.Super. 107, 345 A.2d 253 (1975), we construed the requirements of § 908 to decide whether possession of an inoperable sawed-off shotgun violated the statute. The Majority found a violation, asserting that:
"The legislature in Section 908 was not interested in the operability of a sawed-off shotgun, but merely in its possession. The fact that a sawed-off shotgun is at a given time inoperable does not discount the danger which the legislature intended to prevent. The mere possession of an item identifiable as a sawed-off shotgun, even though inoperable, is still an ominous presence, and has no place nor possible use in the community and should be prohibited." Comm. v. Ponds, supra, 236 Pa.Super. at 113, 345 A.2d 253 at 256. In dissent, I noted that the class of prohibited weapons was explicitly defined in § 908(c) as "other implement[s] for the infliction of serious bodily injury which serve no common lawful purpose." Thus, the relevant harm proscribed by § 908 is the use of such weapons to cause serious bodily injury, not merely the possession of such weapons. Commonwealth v. Ponds, supra, 236 Pa.Super. at 115, 345 A.2d at 257. (Dissenting Opinion by Hoffman, J.). Therefore, I concluded that in order to violate § 908 "the offender must possess the weapon with an intent to use it unlawfully and. . . the weapon [must be] one that can cause serious *63bodily injury. Mere possession of an inoperable sawed-off shotgun should not be sufficient to sustain a conviction." Commonwealth v. Ponds, supra, 236 Pa.Super. at 116, 345 A.2d at 258. (Dissenting Opinion by Hoffman, J.).
The Majority's construction of § 908 errs for another reason. To assert that one can be convicted of a § 908 violation for mere possession of an offensive weapon — here, a sword cane — ignores the statutory defense created by § 908(b).3 Section 908(b) implies the existence of a mens rea requirement in the completed offense of § 908(a) because it allows a defendant to exculpate himself by negativing the intent to use the weapon unlawfully. In Commonwealth v. Adams, 245 Pa.Super. 431, 369 A.2d 479 (1976), Judge Spaeth, in a Concurring Opinion which I joined, noted the probable existence of a mens rea requirement:
"If [the appellant] defends under § 908(b) by saying that he possessed it `solely as a curio,' is he, or is he not, saying that he possessed it without mens rea? If he is saying that he possessed it without mens rea, a rather curious situation is created: A defendant guilty under § 908(a), which under Ponds . . . does not require proof of mens rea, may exculpate himself by proving under § 908(b) that he did not have mens rea, in other words, that he did not have what the Commonwealth was not required to prove he had." Commonwealth v. Adams, supra, 245 Pa.Super. at 438, 369 A.2d at 483 (Concurring Opinion by Spaeth, J.).
It, therefore, seems illogical to deny the existence of an intent requirement in § 908(a) when the basis for the statutory exception in § 908(b) is proof that one lacked the intent to use the weapon unlawfully.
An analysis of 18 Pa. C.S. § 1034 also leads me to the conclusion that proof of possession alone is insufficient to *64sustain a conviction for violating § 908. Section 103 defines an "element of an offense" as: "Such conduct or such attendant circumstances or such result of conduct as: . . (3) negatives an excuse or justification for such conduct. . . ." Because the § 908(b) defense provides such an "excuse or justification: for carrying an allegedly offensive weapon, then proof of conduct or circumstances negativing that "excuse or justification", thereby showing an unlawful use or purpose, is an element of the offense. Commonwealth v. Williams, 237 Pa.Super. 91, 98-99, 346 A.2d 308, 312 (1975) (Concurring and Dissenting Opinion by Hoffman, J., in which Spaeth, J. joined).
The conclusion that mens rea is an element of § 908(a) necessitates an examination of who bears the burden of proof as to this element. In Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959), our Supreme Court stated that:
“It is because of this never-shifting burden upon the Commonwealth to prove every essential element of the charge it makes against the defendant that it cannot logically be said that the Commonwealth has the burden to prove the presence of such element while the defendant, at the same time, has the burden of proving its absence.”
Commonwealth v. Bonomo, supra, 396 Pa. at 230, 151 A.2d at 445-46. In Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974), the Pennsylvania Supreme Court relied on state evidentiary law for its holding that the Commonwealth has an unshifting burden to prove all elements of a crime beyond a reasonable doubt. The source of this burden is not limited to Pennsylvania evidentiary principles. The United States Supreme Court has held that the Due Process Clause mandates the same conclusion.5 Mullaney v. Wilbur, 421 *65U.S. 684, 704, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
Because the Commonwealth bears the burden of proving all elements of a crime beyond a reasonable doubt, I conclude, therefore, that the requirement of § 908(b) that appellant prove by a preponderance of the evidence that he possessed the sword cane as a curio or antique and, hence, without unlawful intent, misplaces the burden of proof. Further, in compelling appellant to disprove the requisite mens rea for a violation of § 908(a), § 908(b) violates due process.
Therefore, because appellant constitutionally cannot be compelled to negate an element of the offense and because the Commonwealth produced no evidence beyond mere possession of the sword cane, I would hold that the Commonwealth has failed to sustain its burden of proof.
I would vacate the judgment of sentence and order appellant discharged.
. The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa. C.S. § 908.
“908. (a) A person commits a misdemeanor of the first degree if, except as authorized by law, he makes repairs, sells, or otherwise deals in, uses, or possesses any offensive weapon. .
“(c) As used in this section ‘offensive weapon’ means any bomb, grenade, machine gun, sawed-off shotgun, 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, or other implement for the infliction of serious bodily injury which serves no common lawful purpose.”
. The Common Pleas action was a trial de novo from an adjudication of guilt by the Philadelphia Municipal Court following a hearing on June 9, 1975.
. “(b) It is a defense under this section for the defendant to prove by a preponderance of evidence that he possessed or dealt with the weapon solely as a curio or in a dramatic performance, or that he possessed it briefly in consequence of having found it or taken it from an aggressor, or under circumstances similarly negativing any intent or likelihood that the weapon would be used unlawfully.” The Crimes Code, supra; 18 Pa. C.S. § 908(b).
. The Crimes Code, supra; 18 Pa. C.S. § 103.
. In fact, the Pennsylvania Supreme Court, in Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975) noted that "[a]lthough our decision in Rose was arrived at as a matter of state evidentiary law, 457 Pa. at 386, 321 A.2d at 883, it would appear that the result may also have been required by the Fourteenth Amendment of the Constitution of the United States. Mullaney v. Wilbur, 421 U.S. 684, 95 *65S.Ct. 1881, 44 L.Ed.2d 508 [1975]. . . ." Commonwealth v. Cropper, supra, 463 Pa. at 535, 345 A.2d at 648, n. 6.