J-A32030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

WILLIAM BATTLE

                            Appellant                 No. 1483 EDA 2016


            Appeal from the Judgment of Sentence March 31, 2016
                 in the Court of Common Pleas of Pike County
             Criminal Division at No(s): CP-52-CR-0000579-2014


BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                            FILED MARCH 09, 2017

        Appellant, William Battle, appeals from the judgment of sentence of

one to three years of incarceration, following a jury trial resulting in his

conviction for prohibited offensive weapons.1 We affirm.

        Upon entering the Pike County Administration Building in July 2014,

Appellant emptied his pockets in order to pass through the metal detector.

Among the items removed from Appellant’s pockets was a knife with a four-

inch blade and a switch on the handle.         This item was inspected by the

attending deputy, and Appellant was subsequently arrested and charged

with possession of a prohibited offensive weapon.
____________________________________________


1
    See 18 Pa.C.S. § 908.


* Retired Senior Judge assigned to the Superior Court.
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        Following a jury trial in January 2016, the Appellant was found guilty

of the aforementioned charge. At Appellant’s sentencing hearing on March

31, 2016, Appellant’s attorney made a motion for extraordinary relief

pursuant to Pennsylvania Rule of Criminal Procedure 704(b), arguing that 18

Pa.C.S. § 908 was unconstitutional. That same day, the lower court denied

Appellant’s motion and sentenced Appellant to one to three years of

incarceration. Appellant timely filed a motion for reconsideration of sentence

in April 2016, and after a hearing on the motion, the lower court denied

Appellant’s motion for reconsideration in May 2016.           Appellant timely

appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial

court issued a responsive opinion.

        Appellant presents the following question for our review:

        1.    Whether the Pennsylvania Crimes Code, in prohibiting the
        possession of automatic knives, violates the right to keep and
        bear arms as guaranteed by the Second Amendment to the
        United States Constitution?

Appellant’s Brief at 2.

        In his only issue, Appellant challenges the constitutionality of Section

908.2     Appellant acknowledges that the section categorically prohibits

possession of automatic knives but asserts that the prohibition infringes on a

law-abiding individual’s right to bear arms.        Appellant’s Brief at 8-11.


____________________________________________


2
    Appellant concedes that he possessed a weapon prohibited by Section 908.



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According to Appellant, he has a constitutional right to possess a switchblade

for the lawful purpose of self-defense. Id.

      In furtherance of his argument, Appellant relies on the United States

Supreme Court case District of Columbia v. Heller, 128 S. Ct. 2783

(2008) (recognizing an individual’s right to bear arms). Appellant’s Brief at

9.   However, Appellant’s reliance on Heller is misplaced, as offensive

weapons are not covered by the constitutional right to bear arms. Thus, we

disagree that the statute creates any impermissible limitation on an

individual’s constitutional right.

      The Second Amendment to the United States Constitution provides: “A

well regulated Militia, being necessary to the security of a free State, the

right of the people to keep and bear Arms, shall not be infringed.” U.S.

Const. amend. II. In its discussion of the Second Amendment, the Heller

Court explained that “the Second Amendment right, whatever its nature,

extends only to certain types of weapons,” those “typically possessed by

law-abiding citizens.” Heller, 128 S. Ct. at 2814-16 (citing United States

v. Miller, 59 S. Ct. 816, (1939)). This reflected a “historical tradition of

prohibiting the carrying of ‘dangerous and unusual weapons.’” Id. at 2817.

As such, the Constitutional right to bear arms affords no protection to

“weapons not typically possessed by law-abiding citizens for lawful

purposes.” Id. at 2815–16 (emphasis added).




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      Our Supreme Court has likewise recognized a limitation to the Second

Amendment. “While the right to bear arms enjoys constitutional protection,

like many other constitutional rights, it is not beyond regulation.” Lehman

v. Pennsylvania State Police, 839 A.2d 265, 273 (Pa. 2003). The right to

bear arms may be restricted in the exercise of the police power for the good

order of society and protection of the citizens. Id.

      It is apparent from a review of Section 908 that “offensive weapons,”

as defined in Pennsylvania, are atypical.    They are not possessed by law-

abiding citizens for lawful purposes and, thus, fall into the historical

prohibition recognized in Heller. The statute provides:

      § 908. Prohibited offensive weapons

      (a) Offense defined. -- 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. § 908(a). The statute defines an offensive weapon, including “a

dagger, knife, razor or cutting instrument, the blade of which is exposed in

an automatic way by switch, push-button, spring mechanism, or otherwise.”

18 Pa.C.S. § 908(c). This Court has emphasized:

         “[t]he class of weapons dealt with in Section 908 have no
         peaceful purpose, and their only conceivable use is for
         purposes which our society has found to be criminal. By
         enacting Section 908 the legislature has clearly stated that
         an ‘implement for the infliction of serious bodily
         injury which serves no common lawful purpose’ shall
         not be allowed to exist in our society.”




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Commonwealth Hitchon, 549 A.2d 946 (citing Commonwealth v.

Stewart, 495 A.2d 584, 593 (Pa. Super. 1985) (citation omitted)); see also

Commonwealth v. Ashford, 397 A.2d 420, 423 (Pa. Super. 1979)

(discussing a distinction between weapons that may have a conceivable

lawful purpose but not a common one.).

      Appellant was free to possess an instrument with a common lawful

purpose and use that instrument for the lawful purpose of self-defense.

Instead, Appellant possessed a switchblade.      While it is conceivable that

Appellant possessed a switchblade for self-defense, that is not the

switchblade’s common purpose. Hitchon, 549 A.2d at 946; Ashford, 397

A.2d at 423.    Accordingly, we reject Appellant’s constitutional claim; he is

entitled to no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/9/2017




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