In the case of Commonwealth v. Drapaniotis the Court of Appeals reversed the defendant’s conviction of larceny of a .38 caliber gun because the evidence was insufficient to prove that the gun was operable.  The facts are as follows:   The defendant stole two guns owned by the defendant’s father and then sold or traded them to support her consumption of drugs.  Under each of the governing statutes-larceny of a firearm and unlawful possession of a firearm without a license, a conviction “requires proof that the subject firearm was operable” as defined by statute, i.e., that “it was a firearm ‘from which a shot or bullet can be discharged.’” “The sole issue on appeal  was … whether the Commonwealth met its burden of proof on operability of the .45 and the .38 by sufficient and competent evidence. Because the two firearms were never recovered following the defendant’s selling or trading of them, there was no ballistics analysis…. Thus, proof of operability rested on the trial testimony” of the defendant’s father. In his testimony, the father asserted that he had test fired the .45 at a shooting range. He also stated that he had never fired the .38, which was new when he bought it, but that the dealer who sold him that gun had said that “‘it worked.’”

In its decision, the Court first found that the testimony of the defendant’s father that he had test fired the .45 constituted “sufficient competent evidence, including as to operability,” to support the defendant’s convictions regarding that gun. However, there was insufficient competent evidence of operability of the .38, where the only evidence on the subject (the dealer’s assertion that the gun “‘worked’”) was introduced solely “because defense counsel failed to object to what was clearly objectionable: its double hearsay nature and lack of foundation.” “There was no way,” opined the Court, “to know why, how, or whether the salesman had test fired the .38, whether he had some manufacturer’s report of test firing, or whether he was just assuming that a new gun like the .38 ‘worked.’”