# Commonwealth v. Evans

> Supreme Court of Pennsylvania · April 19, 1985 · 343 Pa. Super. 118

URL: https://www.frixlaw.com/law-library/cases/9762429

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Reid EVANS, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** April 19, 1985
- **Citations:** 343 Pa. Super. 118; 494 A.2d 383; 1985 Pa. Super. LEXIS 7144
- **Precedential status:** Published
- **Opinion:** Concurrence by Brosky
- **Judges:** Brosky, Wieand, McEwen
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9762429

## Opinion text

BROSKY, Judge,
concurring:
I agree that the conviction for second degree murder and conspiracy should be affirmed and that the sentence for prohibited offensive weapons should be vacated. However, I believe the issue of whether the prohibited offensive weapons sentence must be vacated merits further discussion.
*135 The Commonwealth cites the recent case of Commonwealth v. Brown, 336 Pa.Super. 628 , 486 A.2d 441 (1984), for the proposition that 18 Pa.C.S. § 906 does not require that the prohibited offensive weapons sentence be vacated. In Brown , the defendant had been sentenced for attempted burglary, conspiracy, and prohibited offensive weapons. A panel of this Court vacated the conspiracy sentence, holding that under Section 906 the attempted burglary and conspiracy convictions merged as both offenses were the result of “conduct designed to commit or to culminate in the commission of the same crime,” see 18 Pa.C.S. § 906. The Brown court also held that the sentence imposed for prohibited offensive weapons could stand because the record indicated that the defendant’s possession of the weapon was not designed to culminate in the commission of a burglary. However, the panel also noted in dicta that “in Commonwealth v. Zappacosta, 265 Pa.Super. 71 , 401 A.2d 805 (1979), this Court held that Section 906 was intended to apply only to the offenses of conspiracy, solicitation and attempt,” Brown , 336 Pa.Superior Ct. at 635, 486 A.2d at 445 .
The Commonwealth now argues that Brown is precedent for the proposition that Section 906 was intended to apply only to conspiracy, solicitation and attempt and, therefore, that the sentence for prohibited offensive weapons should be allowed to stand. I find the Commonwealth’s argument to be most disingenuous.
As noted above, the statement in Brown relied upon by the Commonwealth is not binding precedent, but merely dicta. Furthermore, the language in the sole case relied on in that dicta, Zappacosta , was itself dicta. There, as in Brown , the court held that the two inchoate offenses charged had not involved conduct designed to culminate in the commission of the same crime. There, as in Brown , the court nevertheless went on to state that Section 906 was meant to apply only to conspiracy, solicitation and attempt. 1
*136 Aside from relying solely on dicta, the Commonwealth’s argument flies in the face of the plain words of Section 906 that “[a] person may not be convicted of more than one offense defined by this chapter for conduct designed to commit or to culminate in the commission of the same crime.” These words admit of no possible limitation to the offenses of conspiracy, solicitation and attempt and, indeed, cases both prior and subsequent to Zappacosta have established that Section 906 means precisely what it says. See, e.g., Commonwealth v. Gonzales, 297 Pa.Super. 66 , 443 A.2d 301 (1982) (Section 906 prohibits convictions of both conspiracy and possessing instruments of crime); Commonwealth v. Turner, 290 Pa.Super. 428 , 434 A.2d 827 (1981) (Section 906 prohibits convictions of both criminal attempt and possessing instruments of crime); Commonwealth v. Crocker, 256 Pa.Super. 63 , 389 A.2d 601 (1978) (same); see also, Burkoff, Criminal Offenses and Defenses in Pa., p. 159 (Zappacosta suggestion was obiter dictum, Superior Court has clearly established that Section 906 applies to all offenses enumerated in Chapter 9 of the Crimes Code).
Considering the dicta relied on by the Commonwealth, the numerous cases holding contrary to that dicta, and the express language of Section 906, I must conclude that that section does not apply only to the offenses of conspiracy, solicitation and attempt. Since I find that Section 906 can also prohibit a conviction for the inchoate offense of prohibited offensive weapons, I agree that the judgment of sentence for prohibited offensive weapons must be vacated.
. I note that Brown is the only appellate decision to have ever cited Zappacosta .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9762429. Public record. Not legal advice.