This is in Chester County, PA, which is the outer edges of the Philadelphia suburbs. The defense is claiming the suppressor isn't prohibited under PA law because it doesn't make the gun silent as described in the "Prohibited offensive weapons" statute - "firearm specially made or specially adapted for concealment or silent discharge".
http://www.dailylocal.com/WebApp/app..._Story_1219781
O’Neill charges debated in court
ATTORNEY ASKS JUDGE TO DISMISS ILLEGAL POSSESSION OF PROHIBITIVE OFFENSIVE WEAPONS CHARGES
WEST CHESTER — When is a silencer not a silencer?
That is essentially the question that a defense attorney for the father of a Willistown teenager who shot and killed a friend at a drinking party put to Common Pleas Court Judge James P. Mac-Elree II in a hearing Wednesday. He asked the judge to throw out charges of illegal possession of prohibitive offensive weapons filed against him in the wake of the deadly shooting.
The case could not have been assigned to a judge more conversant in the language of firearms.
MacElree, a bit of an amateur gun enthusiast, spent the hearing peppering both defense attorney Vincent DiFabio and Assistant District Attorney John Pavloff with questions that showed his knowledge of silencers, noise suppressors, flash suppressors, subsonic ammunition and even the occasional sawed-off shotgun.
He opined on various reasons for threading the barrel of a rifle, such as what the prosecution is alleging was the case with the two .22-caliber rifles found in a walk-in closet at the home of Sean O’Neill Sr. on Pony Trail Lane in the sumer of 2006, and mused that even a grenade — typically thought of as the classic illegal weapon — could be used legitimately for self-defense.
In the end, however, he took no action on the petition DiFabio filed in the case, although he remarked that he was inclined to dismiss it. He said he would research the matter further and issue a ruling before February, when the case is scheduled for trial.
“My gut feeling is that (the evidence against O’Neill) may be enough to hold him at a preliminary hearing, but not enough to get (the prosecution) past a trial,” he said during the 30-minute hearing.
O’Neill Sr., 47, a former restaurant owner from Willistown, filed a motion in court Friday contending that the prosecution erred in filing charges that he owned rifles illegally equipped for silencers. The motion follows a preliminary hearing in September at which District Magisterial Judge Gwenn S. Knapp ordered him held on charges of illegal use or possession of a prohibited offensive weapon.
The weapons were found in a search of the O’Neill home in the wake of the fatal shooting of 17-year-old Scott Sheridan at a drinking party held at the home by Sean O’Neill Jr. on Sept. 1, 2006, while his parents were away at the New Jersey Shore. O’Neill Jr., now 19, had shot and killed Sheridan during drunken horseplay with a .45-caliber gun he took from his parents’ bedroom.
The guns state police took from O’Neill Sr. included a Marlin Model 980 .22-caliber rifle, with an attached Parker Hale silencer, and a Ruger Model 77 rifle whose barrel had been threaded to accept a silencer.
According to the petition asking to have the charges dismissed, the prosecution is resting its case against Sean O’Neill Sr. on a report conducted by the U.S. Bureau of Alcohol, Tobacco and Firearms (ATF). That reports states that in test firing the Marlin rifle with the silencer attached, the noise level of the gunshot was reduced from 149.90 decibels to 133.34 and thus was classified as a prohibited weapon under federal law because it “muffled” or “diminished the report of a portable firearm.”
However, DiFabio said state law in Pennsylvania does not include the same language as the federal statute.
The Pennsylvania statute, he said, refers to “silent discharge,” and since the ATF report shows that there was only a minimal reduction in sound by the silencer and not anything like complete silence, there is nothing to show that the guns were illegal.
“Your defense is that it’s a defective silencer and it doesn’t count?” MacElree asked.
No, said DiFabio. “My defense is that it’s not a silencer” under the state statute. “I don’t believe that (the prosecution) is able to make out ... that this is a weapon made for silent discharge,” he said.
But MacElree questioned what an actual silent discharge would be, noting studies that he said showed that there is always some noise present, and that a decibel-measuring device in an empty room would still pick up some ambient noise.
Pavloff argued that in passing the legislation barring silencers as prohibited weapons, the General Assembly could not have meant to point to a device that rendered a gunshot totally silent, no matter what the language. “That is an assumption that is impossible,” he said. “Silence in this context can’t mean the total absence of noise.”
MacElree agreed. “Anyone who knows anything about suppressors knows the concept is not to silence (a gunshot) but to change the way it sounds,” he said. “Not that it is silent.”
DiFabio noted that the guns would have met the federal definition for an illegal weapon, since the noise was muffled with the device, but was unable to answer MacElree when the judge asked why the case was not being prosecuted federally. DiFabio said the case was initially handled by federal agents, but that they “kicked back” the case to the Chester County District Attorney’s Office in April.
O’Neill Sr. did not attend the hearing Wednesday. DiFabio said that his client had had two operations for back problems in the past 10 months and that he was getting an MRI Wednesday. He is free on bail pending the outcome of his case.
O’Neill Sr. and his wife, Eileen O’Neill, are the former owners of Maggie O’Neill’s Irish Pub & Restaurant in Drexel Hill. They have been sued by Sheridan’s family for the fatality.
Sean O’Neill Jr. was sentenced to serve time in a juvenile placement facility in western Pennsylvania after a county judge ruled he could not be tried as an adult in the matter.
To contact staff writer Michael P. Rellahan, send an e-mail to
mrellahan@dailylocal.com.