Recently, in Commonwealth v. Giordano, 2015 PA Super 167, the Pennsylvania Superior Court published an opinion by Judge Wecht (who is currently running for PA Supreme Court) holding that although a school administration building was not defined in the statute as part of an “elementary or secondary publicly-funded educational institution” and no case law existed as to whether an administration building could constitute an “elementary or secondary publicly-funded educational institution,” Mr. Giordano could be convicted for violating Section 912 by bringing a sword into an administration building.
Section 912 provides
(a) Definition. — Notwithstanding the definition of “weapon” in section 907 (relating to possessing instruments of crime), “weapon” for purposes of this section shall include but not be limited to any knife, cutting instrument, cutting tool, nun- chuck stick, firearm, shotgun, rifle and any other tool, instrument or implement capable of inflicting serious bodily injury.
(b) Offense defined. — A person commits a misdemeanor of the first degree if he possesses a weapon in the buildings of, on the grounds of, or in any conveyance providing transportation to or from any elementary or secondary publicly-funded educational institution, any elementary or secondary private school licensed by the Department of Education or any elementary or secondary parochial school.
(c) Defense. — It shall be a defense that the weapon is possessed and used in conjunction with a lawful supervised school activity or course or is possessed for other lawful purpose.
As stated in the opinion, “Giordano asserts that the Commonwealth proved only that he carried a weapon into the administration building, which is neither an elementary nor a secondary educational institution.” The court acknowledged that “[w]e have found no precedent that defines “elementary or secondary publicly-funded education institution for purposes of the statute” and that “[t]herefore, we must construe those terms using our interpretive canons. After reviewing several dictionary definitions of “education institution” and secondary school, the court declares
Here, the administration building does not provide the first four to eight years of a child’s formal education nor does it off a general, technical, vocational, or college-preparatory curricula. However, we must also consider that the General Assembly does not intend an absurd result.
Hold on, the court acknowledges that it doesn’t fit any of the dictionary definitions, so to accomplish the court’s desired result, they declare that because “homebound instruction is provided in the building,” it constitutes an elementary or secondary publicly-funded educational institution? This sure sounds like judicial activism to me, especially when the court is determining whether there was sufficient evidence to convict Mr. Giordano of a misdemeanor of the 1st degree.
Mr. Giordano also argues that Section 912 is not a strict liability crime and therefore, consistent with prior holdings of the Commonwealth Court, requires that the Commonwealth prove that he had the mens rea to commit a crime. The court agreed with Mr. Giordano that the Commonwealth had to establish that he acted intentionally, knowingly or recklessly. However, the court, once again seemingly motivated by its own desired ends, found that since Mr. Giordano knew that a weapon could not be brought into a school building, the mens rea was established. While there is no dispute that Mr. Giordano knew he could not bring his sword into a school building, the court seems completely oblivious to the first several pages of its opinion, where it acknowledged that the statute did not specify that an administration building was part of an elementary or secondary publicly-funded educational institution and that no case law existed to place Mr. Giordano on notice that an administration building may constitute an elementary or secondary publicly-funded educational institution. If a statute is so vague as it does not place an individual on notice that his/her conduct may be prohibited, then the statute is unconstitutional for violating due process and the individual cannot be charged for violating it. Commonwealth v. Baxter, 2008 PA Super 200, 956 A.2d 465, 468-469 (Pa. Super. 2008) (en banc).
Additionally, there is no mention of whether Mr. Giordano argued that the defense found in subsection (c) applied. As there is an exception for other lawful purpose and nothing in the opinion establishes that he had an unlawful purpose, it would seem that subsection (c) would have applied.
It is truly disheartening when our courts permit the ends to justify the means. While it may not have been wise of Mr. Giordano to carry a sword into the administration building, such does not make it unlawful.