Pennsylvania Act 2000-116 — CRIMES CODE (18 PA.C.S.) - OMNIBUS AMENDMENTS

Act text

CRIMES CODE (18 PA.C.S.) - OMNIBUS AMENDMENTS
                 Act of Dec. 20, 2000, P.L. 831, No. 116              Cl. 18
                             Session of 2000
                               No. 2000-116

     SB 1173

                                  AN ACT

     Amending Title 18 (Crimes and Offenses) of the Pennsylvania
        Consolidated Statutes, reenacting provisions on manufacture,
        disposition, use or possession of devices for
        telecommunications theft; providing for the offense of
        discharge of a firearm into an occupied structure; and
        further providing for sale or illegal use of certain
        solvents.

        The General Assembly of the Commonwealth of Pennsylvania
     hereby enacts as follows:

        Section 1.  Section 910 of Title 18 of the Pennsylvania
     Consolidated Statutes is reenacted to read:
      § 910.  Manufacture, distribution, use or possession of devices
                for theft of telecommunications services.
        (a)  Offense defined.--Any person commits an offense if he:
            (1)  makes, distributes, possesses, uses or assembles an
        unlawful telecommunication device or modifies, alters,
        programs or reprograms a telecommunication device designed,
        adapted or which can be used:
                (i)  for commission of a theft of telecommunication
            service or to disrupt, transmit, decrypt, acquire or
            facilitate the disruption, transmission, decryption or
            acquisition of any telecommunication service without the
            consent of the telecommunication service provider; or
                (ii)  to conceal or to assist another to conceal from
            any telecommunication service provider or from any lawful
            authority the existence or place of origin or of
            destination of any telecommunication; or
            (2)  sells, possesses, distributes, gives or otherwise
        transfers to another or offers, promotes or advertises for
        sale any:
                (i)  unlawful telecommunication device, or plans or
            instructions for making or assembling the same, under
            circumstances evidencing an intent to use or employ such
            unlawful telecommunication device, or to allow the same
            to be used or employed for a purpose described in
            paragraph (1), or knowing or having reason to believe
            that the same is intended to be so used, or that the
            aforesaid plans or instructions are intended to be used
            for making or assembling such unlawful telecommunication
            device; or
                (ii)  material, including hardware, cables, tools,
            data, computer software or other information or
            equipment, knowing that the purchaser or a third person
            intends to use the material in the manufacture of an
            unlawful telecommunication device.
        (b)  Grading.--
            (1)  Except for violations of this section as provided
        for in paragraph (2) or (3), an offense under this section is
        a misdemeanor of the first degree.
            (2)  An offense under this section is a felony of the
        third degree if:
                (i)  the defendant has been convicted previously
            under this section or convicted of any similar crime in
            this or any Federal or other state jurisdiction; or
                (ii)  the violation of this section involves at least
            ten, but not more than 50, unlawful telecommunication
            devices.
            (3)  An offense under this section is a felony of the
        second degree if:
                (i)  the defendant has been convicted previously on
            two or more occasions for offenses under this section or
            for any similar crime in this or any Federal or other
            state jurisdiction; or
                (ii)  the violation of this section involves more
            than 50 unlawful telecommunication devices.
            (4)  For purposes of grading an offense based upon a
        prior conviction under this section or for any similar crime
        pursuant to paragraphs (2)(i) and (3)(i), a prior conviction
        shall consist of convictions upon separate indictments or
        criminal complaints for offenses under this section or any
        similar crime in this or any Federal or other state
        jurisdiction.
            (5)  As provided for in paragraphs (2)(i) and (3)(i), in
        grading an offense under this section based upon a prior
        conviction, the term "any similar crime" shall include, but
        not be limited to, offenses involving theft of service or
        fraud, including violations of the Cable Communications
        Policy Act of 1984 (Public Law 98-549, 98 Stat. 2779).
        (b.1)  Separate offenses.--For purposes of all criminal
     penalties or fines established for violations of this section,
     the prohibited activity established herein as it applies to each
     unlawful telecommunication device shall be deemed a separate
     offense.
        (b.2)  Fines.--For purposes of imposing fines upon conviction
     of a defendant for an offense under this section, all fines
     shall be imposed in accordance with section 1101 (relating to
     fines).
        (c)  Restitution.--The court shall, in addition to any other
     sentence authorized by law, sentence a person convicted of
     violating this section to make restitution under section 1106
     (relating to restitution for injuries to person or property) or
     42 Pa.C.S. § 9721(c) (relating to sentencing generally).
        (c.1)  Forfeiture of unlawful telecommunication devices.--
     Upon conviction of a defendant under this section, the court
     may, in addition to any other sentence authorized by law, direct
     that the defendant forfeit any unlawful telecommunication
     devices in the defendant's possession or control which were
     involved in the violation for which the defendant was convicted.
        (c.2)  Venue.--An offense under subsection (a) may be deemed
     to have been committed at either place where the defendant
     manufactures or assembles an unlawful telecommunication device
     or assists others in doing so or the places where the unlawful
     telecommunication device is sold or delivered to a purchaser, in
     accordance with section 102 (relating to territorial
     applicability). It shall be no defense to a violation of
     subsection (a) that some of the acts constituting the offense
     occurred outside of this Commonwealth.
        (d)  Civil action.--
            (1)  Any person aggrieved by a violation of this section
        may bring a civil action in any court of competent
        jurisdiction.
            (2)  The court may:
                (i)  grant preliminary and final injunctions to
            prevent or restrain violations of this section;
                (ii)  at any time while an action is pending, order
            the impounding, on such terms as it deems reasonable, of
            any unlawful telecommunication device that is in the
            custody or control of the violator and that the court has
            reasonable cause to believe was involved in the alleged
            violation of this section;
                (iii)  award damages as described in subsection
            (d.1);
                (iv)  in its discretion, award reasonable attorney
            fees and costs, including, but not limited to, costs for
            investigation, testing and expert witness fees, to an
            aggrieved party who prevails; or
                (v)  as part of a final judgment or decree finding a
            violation of this section, order the remedial
            modification or destruction of any unlawful
            telecommunication device involved in the violation that
            is in the custody or control of the violator or has been
            impounded under subparagraph (ii).
        (d.1)  Types of damages recoverable.--Damages awarded by a
     court under this section shall be computed as either of the
     following:
            (1)  Upon his election of such damages at any time before
        final judgment is entered, the complaining party may recover
        the actual damages suffered by him as a result of the
        violation of this section and any profits of the violator
        that are attributable to the violation and are not taken into
        account in computing the actual damages. In determining the
        violator's profits, the complaining party shall be required
        to prove only the violator's gross revenue, and the violator
        shall be required to prove his deductible expenses and the
        elements of profit attributable to factors other than the
        violation.
            (2)  Upon election by the complaining party at any time
        before final judgment is entered, that party may recover in
        lieu of actual damages an award of statutory damages of
        between $250 to $10,000 for each unlawful telecommunication
        device involved in the action, with the amount of statutory
        damages to be determined by the court, not the jury, as the
        court considers just. In any case where the court finds that
        any of the violations of this section were committed
        willfully and for purposes of commercial advantage or private
        financial gain, the court in its discretion may increase the
        award of statutory damages by an amount of not more than
        $50,000 for each unlawful telecommunication device involved
        in the action.
            (3)  For purposes of all civil remedies established for
        violations of this section, the prohibited activity
        established in this section applies to each unlawful
        telecommunication device and shall be deemed a separate
        violation.
        (e)  Definitions.--As used in this section, the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Manufacture of an unlawful telecommunication device."  To
     produce or assemble an unlawful telecommunication device or to
     modify, alter, program or reprogram a telecommunication device
     to be capable of acquiring, disrupting, receiving, transmitting,
     decrypting or facilitating the acquisition, disruption, receipt,
     transmission or decryption of a telecommunication service
     without the consent of the telecommunication service provider or
     to knowingly assist others in those activities.
        "Telecommunication device."  Any type of instrument, device,
     machine or equipment which is capable of transmitting,
     acquiring, decrypting or receiving any telephonic, electronic,
     data, Internet access, audio, video, microwave or radio
     transmissions, signals, communications or services, including
     the receipt, acquisition, transmission or decryption of all such
     communications, transmissions, signals or services over any
     cable television, telephone, satellite, microwave, radio or
     wireless distribution system or facility, or any part, accessory
     or components thereof, including any computer circuit, security
     module, smart card, software, computer chip, electronic
     mechanism or other component, accessory or part which is capable
     of facilitating the transmission, decryption, acquisition or
     reception of all such communications, transmissions, signals or
     services.
        "Telecommunication service."  The meaning given to it in
     section 3926 (relating to theft of services) and also any
     service provided by any radio, telephone, cable television,
     satellite, microwave or wireless distribution system or
     facility, including, but not limited to, any and all electronic,
     data, video, audio, Internet access, telephonic, microwave and
     radio communications, transmissions, signals and services.
        "Telecommunication service provider."  The meaning given to
     it in section 3926 (relating to theft of services) and includes
     any person or entity providing any telecommunication service,
     including, but not limited to, any person or entity owning or
     operating any cable television, satellite, telephone, wireless,
     microwave or radio distribution system or facility.
        "Unlawful telecommunication device."  The meaning given to it
     in section 3926 (relating to theft of services) and includes any
     telecommunication device which is capable of or has been
     altered, designed, modified, programmed or reprogrammed, alone
     or in conjunction with another telecommunication device or
     devices so as to be capable of facilitating the disruption,
     acquisition, receipt, transmission or decryption of a
     telecommunication service without the consent or knowledge of
     the telecommunication service provider. In addition to the
     examples listed in section 3926, the term includes, but is not
     limited to, any device, technology, product, service, equipment,
     computer software or component or part thereof, primarily
     distributed, sold, designed, assembled, manufactured, modified,
     programmed, reprogrammed or used for the purpose of providing
     unauthorized disruption of, decryption of, access to or
     acquisition of any telecommunication service provided by any
     cable television, satellite, telephone, wireless, microwave or
     radio distribution system or facility.
        Section 2.  Title 18 is amended by adding a section to read:
      § 2707.1.  Discharge of a firearm into an occupied structure.
        (a)  Offense defined.--A person commits an offense if he
     knowingly, intentionally or recklessly discharges a firearm from
     any location into an occupied structure.
        (b)  Grading.--An offense under this section shall be a
     felony of the third degree.
        (c)  Defense.--It is a defense to prosecution under this
     section that:
            (1)  the person discharging the firearm was a law
        enforcement officer engaged in the performance of his
        official law enforcement duties; or
            (2)  the person discharging the firearm was engaged in a
        hunting activity; and
                (i)  the discharge of the firearm took place from a
            location where the hunting activity is lawful; and
                (ii)  the passage of the projectile from the firearm
            into the occupied structure was not intentional, knowing
            or reckless.
        (d)  Definitions.--As used in this section, the following
     words and phrases shall have the meanings given to them in this
     subsection:
        "Firearm."  Any weapon which is designed to or may readily be
     converted to expel any projectile by the action of an explosion
     or the frame or receiver of any such weapon.
        "Occupied structure."  Any structure, vehicle or place
     adapted for overnight accommodation of persons or for carrying
     on business therein, whether or not a person is actually
     present.
        Section 3.  Section 7303 of Title 18 is amended to read:
      § 7303.  Sale or illegal use of certain solvents and noxious
                substances.
        (a)  Offense defined.--No person shall, for the purpose of
     causing a condition of intoxication, inebriation, excitement,
     stupefaction, or the dulling of his brain or nervous system,
     intentionally smell or inhale the fumes from any noxious
     substance or substance containing a solvent having the property
     of releasing toxic vapors or fumes.
        (b)  Exception.--Subsection (a) of this section shall not
     apply to the inhalation of any anesthesia for medical or dental
     purposes.
        (c)  Possession prohibited.--No person shall, for the purpose
     of violating subsection (a) of this section, use, or possess for
     the purpose of so using, any noxious substance or substance
     containing a solvent having the property of releasing toxic
     vapors or fumes.
        (d)  Sale prohibited.--No person shall sell at retail, or
     offer to sell, to any other person any tube or other container
     of any noxious substance or substance containing a solvent
     having the property of releasing toxic vapors or fumes, if he
     has reasonable cause to suspect that the product sold, or
     offered for sale, will be used for the purpose set forth in
     subsection (a) of this section.
        (e)  Grading.--Any person who violates any provision of this
     section shall be guilty of a misdemeanor of the third degree.
        (f)  Definition.--As used in this section, the phrase "any
     noxious substance or substance containing a solvent having the
     property of releasing toxic vapors or fumes" shall mean any
     substance containing one or more of the following chemical
     compounds: acetone, acetate, benzene, butyl alcohol, cyclohexyl
     nitrite, ethyl alcohol, ethylene dichloride, gaseous or liquid
     fluorocarbons, isopropyl alcohol, methyl alcohol, methyl ethyl
     ketone, nitrous oxide, pentachlorophenol, petroleum ether, or
     toluene.
        Section 4.  This act shall take effect as follows:
            (1)  The amendment or addition of 18 Pa.C.S. §§ 2707.1
        and 7303 shall take effect in 60 days.
            (2)  The remainder of this act shall take effect
        immediately.

     APPROVED--The 20th day of December, A. D. 2000.

     THOMAS J. RIDGE