Commonwealth v. Foster

CAVANAUGH, Judge,

concurring:

I concur in the result reached by the majority and supported by established precedent. However, I think the better rationale in approaching a case such as this is contained in the dissent of the late Justice McDermott in the case of Commonwealth v. Gonzalez, 515 Pa. 98, 527 A.2d 106 (1987).

In Gonzalez the Supreme Court reversed a judgment of sentence and discharged a defendant after he had been acquitted of murder and manslaughter but found guilty of possessing an instrument of crime. The majority found insufficient evidence to support the conviction in that the element of criminal intent was not established. The court found that “since the appellant did not commit a crime with the shotgun (appellant had shot to death a gang member ‘out of fear for his own and his family’s safety’) and no other evidence sufficient to support a finding of criminal intent” was presented, the conviction must be reversed. Id. at 103, 527 A.2d at 108.

Justice McDermott (joined by Justice Hutchinson) dissented stating that the crime of possessing an instrument of crime “by its nature does not require the successful completion of an *46independent criminal act. Merely because the jury found that at the moment appellant fired the gun his actions did not warrant a homicide conviction does not mean that for the period of time up to the final moment appellant could not be guilty of this possessory offense.” Id. at 104, 527 A.2d at 109.

In the case before us, appellant introduced a knife into an already volatile confrontation with her boyfriend, the decedent. The argument ended when he was stabbed to death. Appellant was tried, pled self-defense and was found not guilty of homicide. However, the jury did find' that all of the elements of the crime of possessing an instrument of crime, including, apparently, the element of intent, had been proven beyond a reasonable doubt. Were there not precedent for the decision reached by the majority, I would affirm the judgment of sentence.