J-S04014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY HARVEY :
:
Appellant : No. 705 EDA 2016
Appeal from the Judgment of Sentence February 29, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009209-2014
BEFORE: SHOGAN, OTT, JJ., and STEVENS, P.J.E.*
CONCURRING STATEMENT BY STEVENS, P.J.E.: FILED MARCH 29, 2017
I join the well-reasoned Majority but write separately to express my
concerns about the current state of the law relative to Possessing
Instruments of Crime, 18 Pa.C.S.A. § 907(a), (d).
We have no choice but to be bound by the precedent set by this Court
in Commonwealth v. Williams, 808 A.2d 213, 215 (Pa.Super. 2002) which
held that a walkie-talkie was not an instrument of crime because it was not
used in the crime itself, but rather only facilitated the drug sales.
The law must recognize that technology advances provide the criminal
element with many means of communication, such as cell phone, instant
messaging, twitter, email, and private Facebook messages, for example.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S04014-17
To allow a specific means of communication, such as a cell phone, to
be used to “facilitate” a crime but not be considered an “instrument of
crime” frustrates legislative intent and is a distinction without a difference.
Clearly, the telephone used to facilitate the delivery of cocaine herein
should qualify as an instrument of crime “possessed by the actor under
circumstances not manifestly appropriate” for lawful uses. A telephone IS
an instrument of crime when it is used as part and parcel of a drug deal or
other crime.
I urge the legislature to amend 18 Pa.C.S.A. § 907 to allow for cell
phones and other instruments of technology to be “instruments of crime”
when used for an illegal purpose and specifically include language that using
such instruments to “facilitate” a crime comes under the definition of
instruments of crime.
-2-