Commonwealth vs. Perry

 

COMMONWEALTH vs. PERRY

No. CP-38-CR-995-2012

 

Crimes – Offensive Weapon – Machete – Circumstances-of-the-Possession Test – Investigatory Stop – Terry – Reasonable Suspicion – Limitations – Motion to Suppress – Marijuana.

 

1. 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.
2. An offensive weapon is defined as 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.
3. It is useful to distinguish between those weapons which are offensive in themselves, meaning that the universal experience within our society has been that these weapons are used only in furtherance of crime, and those that can be used offensively, in the hands of one inclined to do so, but also have recognized uses of a socially acceptable nature.
4. A circumstances-of-the-possession test is inappropriate in determining whether the implement in question serves a common lawful purpose.
5. The Court held that there because no “under-the-circumstances” test applied to Section 908)c) , this Section of the Criminal Code was not violated and that the Prohibited Offensive Weapon charge against Defendant must be dismissed.
6. If, during the course of a valid investigatory stop, an officer observes unusual and suspicious conduct on the part of the individual which leads him to reasonably believe that the suspect may be armed and dangerous, the officer may conduct a pat-down of the suspect’s outer garments for weapons.
7. In order to justify a frisk under Terry, the officer must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.  Such a frisk, permitted without a warrant and on the basis of reasonable suspicion less than probable cause, must always be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.
8.  The police must point to specific and articulable facts indicating the person they intend to frisk may be armed and dangerous; otherwise, the talismanic use of the phrase “for our own protection” becomes meaningless.  Accordingly, general safety statements by police officers are not sufficient to conduct a frisk incident to an investigatory stop.
9. The Court believed that the possession of a machete while walking down a city street at 4:45 a.m., with an angry, determined look was a reasonable basis for conducting a Terry pat-down.  Accordingly, it held that the officer conducted a legal search of Defendant’s person and it denied Defendant’s Motion to Suppress evidence of the bag of marijuana found by the officer.

Defendant’s Pre-Trial Motion and Petition for Habeas Corpus Relief.  C.P. of Lebanon County, Criminal Division, No. CP-38-CR-995-2012.

 

R. Scot Feeman, Esquire, for Commonwealth

Elizabeth Judd, Esquire, for Defendant

 

AND NOW, this 13^th day of December, 2012, after careful consideration of the record, Defendant’s Pretrial Motion and Petition for Habeas Corpus Relief, the testimony and exhibits submitted at the pre-trial hearing on September 26, 2012, and the Commonwealth’s Brief in opposition to Defendant’s Motion, Defendant’s Petition for Habeas Corpus Relief as to the Charge of Prohibited Offensive Weapons is HEREBY GRANTED and Defendant’s Motion to Suppress is HEREBY DENIED.  Call of the List is scheduled for December 20, 2012. Trial is set for January 7, 2013.

 

OPINION BY JONES, JR., J.:

1. I.                   FACTUAL  AND PROCEDURAL HISTORY

 

On June 6, 2012, at approximately 4:45 a.m. Lebanon City police were called to a disturbance in the area of 9^th and Mifflin Streets.  Upon arrival, Officer Lear noted that a group of males began to disperse, but did not completely leave the area.  Officer Lear radioed Officer Boyle for assistance.  Officer Lear explained to Officer Boyle he believed the men were looking for items such as weapons or contraband.  After monitoring the area for approximately thirty (30) minutes, Officer Boyle left the area to attend to another case.

After Officer Boyle was out of the area, Cornelius Perry (hereinafter “Defendant”) approached Officer Lear and asked if a group of guys were in the area of 9^th Street.  Officer Lear replied in the affirmative and asked Defendant if he knew them.  He then asked for the Defendant’s name, which Defendant provided, but then refused to provide Officer Lear with identification.      Defendant told Officer Lear he did not want to speak to him and walked away.  Officer Lear radioed Officer Boyle that he had brief contact with a “suspicious male.”  At the pre-trial hearing, Officer Lear was not clear if he had given Officer Boyle a more detailed description or if Defendant had already walked into Officer Boyle’s line of sight.

Officer Boyle saw Defendant walking with his head down, a determined look on his face.  The Officer also noted that the Defendant was carrying an object in his right hand that he was concealing within his walking stride.  As the Defendant got closer, Officer Boyle recognized the item as a large machete, approximately two (2) feet long.  Officer Boyle stopped his marked patrol vehicle and yelled for the Defendant to stop and drop the knife.  The Defendant complied with all commands and was taken into custody.  After the Defendant was handcuffed, Officer Boyle conducted a pat down of the Defendant.  The Officer felt a crunchy item in the Defendant’s pocket and the Defendant told him was a lighter and to just pull it out.  Officer Boyle removed the item which proved to be a bag of marijuana.  Defendant was charged with one (1) count of Prohibited Offensive Weapons and one (1) count of violating the Controlled Substance, Drug, Device & Cosmetic Act.

On August 22, 2012, Defendant filed an Omnibus Pre-Trial Motion in the nature of habeas corpus, requesting that the Prohibited Offensive Weapons charge against him be dismissed.  A Pre-trial hearing was held before this Court and the parties were instructed to file briefs regarding this matter no later than 4:30 p.m. on October 31, 2012.  The Commonwealth has filed a brief in support of its position, the Defense rested on the cases and arguments presented at the hearing, and the matter is now ripe for disposition.

 

1. II.                DISCUSSION

 

1. a.      Prohibited Offensive Weapons

Defendant has been charged with Possession of a Prohibited Offensive Weapon, 18 Pa.C.S.A. § 908(a), which provides:

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.

18 Pa.C.S.A. § 908(a).

 

An “offensive weapon” is defined as:

 

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.A. § 908(c). (emphasis added)

 

The instant case involves a twenty-three (23) inch machete, which has a fixed blade.  Because the machete does not fit in the listed prohibited weapons, the Commonwealth must show that the machete serves no “common lawful purpose.”  Based on the evidence and case law presented at the pre-trial hearing, we find the Commonwealth cannot establish a prima facie case that a machete is a prohibited offensive weapon.

In interpreting section 908 our Superior Court has stated that:

[I]t is useful to distinguish between those weapons which are offensive in themselves, meaning that the universal experience within our society has been that these weapons are used only in furtherance of crime, and those that can be used offensively, in the hands of one inclined to do so, but also have recognized uses of a socially acceptable nature.

 

Commonwealth v. Karlson, 674 A.2d 249, 252 (Pa. Super. 1996)

The Commonwealth argues that the phrase “common lawful purpose” must be time and place contingent.   In support of their argument, the Commonwealth relies on Commonwealth v. Gatto, 344 A.2d. 566 (Pa.Super. 1975).  In Gatto, the Superior Court held that driving around Scranton during the early morning hours with a thirty (30) inch knife resting on the passenger seat constituted a violation of the Prohibited Offensive Weapons Statute.  The Court reasoned that while a thirty (30) inch blade could reasonably be used for a lawful purpose in the jungles of South America, the same blade did not have a lawful purpose on the streets of Scranton during the early morning hours.

However, recent decisions by the Superior Court have rejected the “under the circumstances” interpretation.  The Pennsylvania Supreme Court was confronted with the question of whether a “Wyoming” knife (a thirteen (13) inch blade) was a prohibited offensive weapon under section 908. After considering sections 907 and 908 of the Crimes Code and the Court’s decision in Gatto, the Court concluded that on a charge of violating section 908(c), a circumstances-of-the-possession test was inappropriate in determining whether the instrument served a common lawful purpose.  Commonwealth v. Artis, 418 A.2d 644, 646 (Pa.Super. 1980) (citing Commonwealth v. Fisher, 400 A.2d 1284 (1979).  In Fisher, the Court stated that to add the words “under the circumstances” to the language of the section increased its scope beyond what had been intended by the legislature.”  Commonwealth v. Fisher, 400 A.2d 1284, 1288 (1979).   See also: Commonwealth v. Cartagena, 393 A.2d 350 (1978); Commonwealth v. Ashford, 397 A.2d 420 (Pa.Super. 1979).

The 23 inch machete which Defendant possessed in the instant case has a common, lawful purpose.  Machetes can be used for clearing brush, splitting firewood, fishing, and many other lawful activities.  Because we find there is no “under-the-circumstances” test, Section 908(c) was not violated and the Prohibited Offensive Weapon charge must be dismissed.

 

1. b.       Suppression of Marijuana

Defendant has also requested this Court suppress the marijuana found in the Defendant’s left front pant pocket after a pat down.  As stated by this Court during the Pre-trial hearing, we find that the pat down search of the Defendant, resulting in the discovery of the bag of marijuana, was supported by reasonable suspicion.   Our Supreme Court has provided the following guidance regarding Terry pat-downs:

If, during the course of a valid investigatory stop, an officer observes unusual and suspicious conduct on the part of the individual which leads him to reasonably believe that the suspect may be armed and dangerous, the officer may conduct a pat-down of the suspect’s outer garments for weapons. In order to justify a frisk under Terry, the officer must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Such a frisk, permitted without a warrant and on the basis of reasonable suspicion less than probable cause, must always be strictly limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.

 

Commonwealth v. E.M., 735 A.2d 654, 659 (Pa. 1999). The police must “point to specific and articulable facts indicating the person they intend to frisk may be armed and dangerous.” Commonwealth v. Preacher, 827 A.2d 1235, 1239 (Pa.Super.2003) (quoting Commonwealth v. Patterson, 591 A.2d 1075 (Pa.Super.1991). Otherwise, the “talismanic use of the phrase ‘for our own protection’ . . . becomes meaningless.” Preacher, 827 A.2d at 1239. Accordingly, general “safety statements” by police officers are not sufficient to conduct a frisk incident to an investigatory stop.

In the case at hand, Officer  Boyle testified that he saw the Defendant walking down the street at 4:45 a.m. with an angry, determined look on his face, a purposeful stride, and a machete in his hand.  Although Defendant dropped the knife as soon as directed, Officer Boyle noticed a “fight or flight” look on the Defendant’s face and was concerned because there was ample room to flee.  Officer Boyle testified that he was concerned for his safety because “if there is one weapon, you presume there are more.”  Officer Boyle then handcuffed the Defendant and completed the pat down, where he felt something crunchy in the Defendant’s left front pocket.  When he asked the Defendant what the item was, the Defendant stated it was his lighter and to pull it out and see.  Officer Boyle pulled the item out and found it to be a bag of marijuana.

The sole justification of a Terry frisk is the protection of the police, and the search must be limited to that “which is necessary for the discovery of weapons which might be used to harm the officer and others nearby.” E.M., 735 A.2d at 661. We believe that the possession of a machete while walking down a city street at 4:45 a.m., with an angry, determined look is a reasonable basis for conducting a Terry pat-down.  Accordingly, we find that Officer Boyle conducted a legal search of Defendant’s person and the Motion to Suppress is denied.  An Order will be entered consistent with the foregoing.