J-S03006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 HORACE L. JACKSON                        :
                                          :
                    Appellant             :   No. 811 EDA 2017

          Appeal from the Judgment of Sentence February 2, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0011377-2015


BEFORE:    BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

CONCURRING AND DISSENTING MEMORANDUM BY STEVENS, P.J.E.:

FILED MAY 01, 2018

      While I join the portions of the Majority’s decision affirming the denial

of Appellant’s suppression claim and his challenges to the sufficiency of the

evidence supporting his convictions for robbery and attempted theft, I

disagree with the Majority’s reversal of Appellant’s conviction for Possessing

an Instrument of Crime (PIC).     Therefore, I respectfully dissent from that

portion of this decision.

      Pursuant to Section 907 of the Crimes Code, an individual may be

convicted of PIC if “he possesses any instrument of crime with intent to employ

it criminally.” 18 Pa.C.S.A. § 907(a). Section 907(d) defines “instrument of

crime” as “(1) [a]nything specially made or specially adapted for criminal use[,

or] (2) [a]nything used for criminal purposes and possessed by the actor



____________________________________
* Former Justice specially assigned to the Superior Court.
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under circumstances not manifestly appropriate for lawful uses it may have.”

18 Pa.C.S.A. § 907(d).

      As noted by the Majority, this Court found that a toy gun, which was

altered to appear like an operable firearm, constituted an “instrument of

crime” as it had been “specially adapted for criminal use.” Commonwealth

v. Brown, 23 A.3d 544, 561 (Pa.Super. 2011). See also Commonwealth

v. Brunson, 938 A.2d 1057, 1062 (Pa.Super. 2007) (finding that a plastic

soda bottle can be deemed an instrument of crime).

      Although the Majority finds the Commonwealth failed to “establish that

Appellant did anything to actively simulate or give the impression that he had

[a] gun” or an instrument of crime, it is not necessary that a defendant employ

the instrument of crime to be convicted of PIC. In fact, our Supreme Court

has emphasized that “PIC, by its definition, is an inchoate crime, meaning that

a defendant only has to intend to employ the instrument of crime criminally;

a defendant need not actually employ it or complete an associated crime.”

Commonwealth v. Moore, 628 Pa. 103, 123, 103 A.3d 1240, 1252 (2014)

(emphasis added).     The “touchstone of liability” for a PIC conviction is the

actor’s criminal purpose, “which may be inferred from the circumstances

surrounding the possession.” Commonwealth v. Andrews, 564 Pa. 321,

337, 768 A.2d 309, 317–18 (2001).

      In this case, Appellant approached the victim, demanded his wallet and

cell phone, and repeatedly threatened to shoot the victim. When confronted

with these threats, the victim observed that Appellant was holding a black

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object at his side, in such a manner that made the victim believe that Appellant

was holding a firearm. The trial court made a finding of fact that the hidden

object was a rolled up hat that Appellant concealed at his side to simulate a

gun in furtherance of the robbery.      Even though the victim had extensive

experience with firearms in the armed forces, the victim could not ascertain

whether Appellant was holding a weapon.

      Based on these facts, it was reasonable for the trial court to infer that

Appellant’s blatant threats to shoot the victim and concealment of the object

demonstrated his intent to use the object to coerce the victim into giving up

his property. Merely because the trial court found the object was a rolled up

hat does not obviate the trial court’s conclusion that Appellant’s use of the hat

in such a manner to simulate a gun could result in a criminal conviction.

      As a result, the trial court did not err in convicting Appellant of PIC after

finding Appellant possessed an item specially adapted for criminal use and

intended to use the instrument of crime to further his attempt to rob the

victim. For this reason, I dissent.




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