When it comes to “instruments of crime,” most people immediately imagine a gun or some other firearm. In Pennsylvania, however, the crime of “possessing an instrument of crime” isn’t exclusively reserved for guns and firearms. Under Section 907(a) a person commits a misdemeanor of the first degree if he or she possesses any instrument of crime with the intent to employ it criminally. Under subsection (b) of this criminal statute, a person is also guilty of a misdemeanor of the first degree if he or she “possesses a firearm or other weapon concealed upon his person with the intent to employ it criminally”. To convict a person under subparagraphs a or b the District Attorney or Prosecutor must prove beyond a reasonable doubt the following elements:
- Possession of an instrument;
- An instrument that is commonly used for criminal purposes;
- The instrument isn’t being used for a lawful purpose;
- The intent to employ criminally.
This criminal statute applies to more than just firearms and guns. Unlike crimes under Pennsylvania’s Uniform Firearms Act (a.k.a. VUFA offenses), the Commonwealth of Pennsylvania doesn’t even need to establish beyond a reasonable doubt that the firearm or gun was actually functional or capable of being made functional. Further, under subparagraph (a), the Commonwealth can convict someone without proving actual possession – constructive possession is enough. The prosecution only has to prove that the accused person had the intent and the ability to control the item in question. While this criminal statute applies to more than just guns and firearms, Pennsylvania courts have held that the following items are not instruments of crime:
- A pair of scissors
- A table
- Broom handle
- Tire iron
- Baseball bat
- Unsheathed hunting knife
It is important to keep in mind that we are talking about possession here. In these situations the defendant or the accused was found in mere possession of these items. It is possible for the prosecution to meet its burden where the facts in the case can establish more than a mere possession beyond a reasonable doubt (swinging the baseball bat or tire iron.) Despite Pennsylvania Courts finding that such things like a baseball bat or a pair of scissors aren’t instruments of crime it all depends on the circumstances surrounding their use. Finally, a crime of possession of an instrument of crime doesn’t merge for the purposes of sentencing for crimes such as aggravated assault committed with that instrument or weapon and crimes involving the possession of a firearm without a license. This criminal statute also doesn’t merge for the crime of robbery or conspiracy to commit robbery. This is a very important point because the conviction under this section can increase the criminal penalty that a person could face if they are convicted. Merger means that a judge can’t sentence a person for both offenses. For instance, a crime of robbery merges with a crime of theft and the crime of aggravated assault merges with the crime of simple assault. If a person is convicted of robbery and theft or of aggravated assault and simple assault a judge can sentence them for both crimes but only the more serious one. Merger only apples when the two crimes derive from the same incident. I have discussed the concept of merger in previous articles on criminal conspiracy and violations of the Uniform Firearms Act under Section 6105, 6106, 6108, and 6110.2 (a.ka. VUFA crimes). If you have additional questions regarding instruments of crime, guns, or other firearms in Pennsylvania or New Jersey I encourage you to watch my videos or read one of my books or my monthly newsletter. You may also call the office to schedule an appointment.