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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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




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