Can I Beat a VUFA § 6106 Charge If I Didn’t Know About the Gun?

Zak Goldstein - Gun Charges Lawyer in Philadelphia — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Many people are arrested and charged with carrying a concealed firearm without a license (VUFA § 6106) even when the gun wasn’t actually on them. It may have been found in a car, a bag, or a house that actually belonged to someone else. In these cases, the prosecution proceeds based on the idea of constructive possession. But constructive possession can be confusing. Naturally, many clients ask:

“If the gun wasn’t mine, and I didn’t even know it was there, how can they charge me?”

The answer lies in a concept called constructive possession, and beating a VUFA 6106 charge in this situation often depends on whether the Commonwealth can prove that you knew about the gun and intended to control it.

1. What Is 18 Pa.C.S. § 6106?
Section 6106 makes it a crime to carry a concealed firearm without a valid license outside your home or place of business. If you actually have the gun on your person, and you don’t have a license, that’s a clear-cut 6106 violation. But many cases involve constructive possession, meaning the gun was not on the defendant directly. The statute also makes it a crime to have a gun in a car without a license. But again, if someone else left a gun in the car and you didn’t know about it, how were you supposed to avoid getting charged?

2. What Is Constructive Possession?
Constructive possession means that you didn’t physically have the gun on you, but you had:
- Knowledge that it was there, and
- The intent and ability to control it

It is not enough to just know about it or be near it. You have to known about it AND have the intent and power to control the gun. Constructive possession really means that the gun is basically yours - even if you don’t permanently or legally own it.

3. So How Do You Beat a Constructive Possession Case?
The key defense is lack of knowledge and control. Your lawyer’s goal is often to show reasonable doubt that you even knew the gun was there, let alone that you intended to possess it.

Potential defense strategies we may use could include:
- Shared access: The gun was in a car or home shared by multiple people, so it did not belong to the defendant.
- No fingerprints or DNA: There is no objective, forensic evidence tying you to the weapon.
- No incriminating statements: You didn’t admit to ownership or control. In fact, you may have expressed surprise that it was there and been very cooperative with the officer. For example, why would someone consent to a search if they knew the police were going to find an illegal gun?
- Bad stop or search: Your rights were violated during the stop, and we attorney can file a motion to suppress and ask the judge to exclude the evidence.

4. The Commonwealth Has the Burden of Proof
The DA must prove every element of the offense beyond a reasonable doubt. This means they must prove that you knowingly possessed the gun. If you never touched the weapon, never claimed it, and there’s no forensic or circumstantial evidence linking you to it, a judge or jury may find the case too weak to convict if the gun could have been possessed by someone else.

5. Real-Life Examples Where Constructive Possession Fails
Pennsylvania courts have repeatedly held that mere proximity to a gun is not enough. Examples of defense wins include:
- A gun under the seat in a car with multiple occupants
- A firearm found in a house where the defendant was merely present
- A bag with a gun placed near the defendant but with no evidence of ownership

Each of these scenarios presents an opportunity to argue that the Commonwealth failed to meet its burden.

6. Don’t Assume You Have to Plead Guilty
Just because you’re charged with a VUFA § 6106 violation doesn’t mean the case is open-and-shut. The law gives you the benefit of the doubt, and your lawyer’s job is to hold the Commonwealth to its burden of proving every element of the offense beyond a reasonable doubt.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Criminal Defense Lawyer Zak Goldstein Arguing in the PA Supreme Court — Goldstein Mehta LLC Criminal Defense Lawyers

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.

Zak Goldstein 4/13/25 Zak Goldstein 4/13/25

Can I Get a Gun Charge Expunged in Pennsylvania?

Criminal Defense Lawyer Zak Goldstein — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

If you were arrested for a gun charge in Philadelphia or anywhere in Pennsylvania, one of your first concerns may be: “Can I get this off my record?” Whether you’re worried about a background check for a job, a professional license, or future firearm rights, understanding expungement laws is critical. The ability to get the case expunged once it’s over may be an important factor for you in deciding how you want to try to resolve the case.

Here’s what you need to know about expunging a gun arrest or conviction in Pennsylvania:

1. Expungement After a Dismissal or Acquittal
If your gun charge was dismissed, withdrawn, or you were found not guilty at trial by a judge or a jury, you are likely eligible for expungement under 18 Pa.C.S. § 9122. In general, a criminal defendant has an absolute right to the expungement of a case that ended in an acquittal in Pennsylvania. In most cases, it is also possible to have a case expunged if the case was withdrawn or dismissed. The Philadelphia District Attorney’s Office typically does not contest the expungement of a dismissed gun charge. If they do contest it, then the court would hold a hearing on whether the expungement should be granted, but most dismissed and withdrawn cases can be expunged.

2. Expungement After ARD (Pre-Trial Diversion)
In some rare gun cases—usually where the defendant has no prior record and the case does not involve violence—the DA may offer ARD in order to resolve the case. Successful completion of the ARD program will lead to the expungement of the charges as ARD does not result in a conviction. ARD requires the defendant to serve a period of probation and may involve some other conditions, but at the end of the case, the charges will be be dismissed and expunged.

Learn more about the ARD program in Philadelphia.

3. Convictions for Gun Charges Cannot Be Expunged
Pennsylvania does not allow for the expungement of criminal convictions for gun charges (or any other criminal charge) unless you were convicted of a summary offense or you obtain a Governor’s pardon. Convictions generally cannot be expunged. However, it may be possible to obtain a partial expungement if you were only convicted of some of the charges. For example, if you were charged with VUFA § 6106 (carrying a concealed firearm without a license, which is usually a felony) and VUFA § 6108 (carrying a firearm on the streets of Philadelphia, which is a misdemeanor), but you were only convicted of the misdemeanor, you may qualify to have the felony “redacted” or expunged. This could make your record better as the court would order the destruction of any reference to the fact that you were originally charged with a felony.

4. A Pardon May Be the Only Option After a Conviction
For convicted individuals, a pardon may be the only route to eventual expungement of the charges. Pardons are difficult to obtain and rarely granted, but if you were convinced of the charges in your case and the charges were were not summary offenses, then a pardon would be the only way to remove the charges from your record.

5. You May Still Be Eligible to Seal Some Non-Gun Offenses
Other non-violent misdemeanors might be sealable under the Clean Slate Law. Gun charges typically cannot be sealed, but other misdemeanor offenses (and even some low level felonies) may qualify for a limited access order. A limited access order is not quite as good as an expungement, but it does decrease the odds that your record will show up on a background check.

Don’t Guess—Get Legal Advice Before You File
Expungement is a powerful tool, but it’s not available in every case. If you’re unsure whether your gun charge qualifies—or if you want help getting it off your record—call us today. We’ll review your case for free and help you take the right steps.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Zak T. Goldstein, Esquire Criminal Defense Lawyer in the Supreme Court — Goldstein Mehta LLC Criminal Defense Lawyers

Zak Goldstein 2/9/25 Zak Goldstein 2/9/25

Attorney Goldstein Wins Motion to Suppress Firearm

Philadelphia Criminal Defense Lawyer Zak Goldstein — Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, recently won a motion to suppress a firearm in the case of Commonwealth v. J.C. In J.C., the client was charged with carrying a firearm on the streets of Philadelphia (VUFA § 6108), possession of a concealed firearm without a license (VUFA § 6106), possession of a controlled substance (K&I), and possession of a firearm by a prohibited person (VUFA § 6105). Prosecutors claimed that J.C. had a firearm in the glovebox of his car and marijuana in a bag sitting on the back seat of the vehicle.

Attorney Goldstein filed a motion to suppress the physical evidence in the Philadelphia Court of Common Pleas, arguing that the police improperly searched J.G.’s car without first obtaining a search warrant. Although they later obtained a search warrant before actually removing the gun from the vehicle, the police had already seen the gun due to the initial search before they obtained the warrant.

At a hearing on the motion, the Commonwealth called one of the arresting officers to testify as to the circumstances of the stop and search. The officer testified that they attempted to pull J.C. over for window tint. He initially pulled over right away, but then he started driving again for about half of a block. The police then pulled behind him again and waited for backup. As they were sitting and waiting for backup, they observed J.C. moving around the car in a furtive manner as if he were reaching for something, attempting to conceal something, or about to take off. They also believed that he was going to flee based on the way he was looking around.

Accordingly, once backup arrived, the police surrounded the car. J.C. repeatedly asked why they had stopped him and why they were trying to search the car. He provided them with his driver’s license, and he insisted that he had the registration and insurance paperwork on his phone. The police began to pull him out of the car, and he did not immediately go with them, so they then tased him. Once they tased him, they put him in handcuffs, arrested him, and took him to the hospital for medical treatment. After he was out of the car and had been tased, the officer looked in the glove box and saw a gun. The police then held the vehicle until detectives arrived and obtained a search warrant. At that point, they recovered the gun and the marijuana. J.C. had a criminal record which prohibited him from carrying a firearm, and he also did not have a license to carry.

Attorney Goldstein moved to suppress the evidence, arguing that the initial warrantless search of the vehicle was unconstitutional under the Pennsylvania Constitution and tainted the search warrant which the police obtained later. Attorney Goldstein also argued that the police did not have exigent circumstances for the search that would justify failing to get the warrant first.

Through cross-examination and body camera footage, Attorney Goldstein established that the police had not seen J.C. do anything other than drive a car that may have had window tint, he pulled over on command, he moved the car only about half a block before pulling over again, he told them that he had moved not to flee but because he was blocking traffic, and that they could not see in the car to see if he was actually doing anything while they were waiting for backup. Additionally, J.C. did not attempt to flee, he did not drive away, the police did not see any contraband in the vehicle, and he gave them his driver’s license. Accordingly, there was no actual reason to believe he was armed and dangerous. Further, once J.C. was out of the car and had been tased and arrested, the police were obviously not going to let him get back in the car. Instead, they had to take him to the hospital. Accordingly, under the recent case of Commonwealth v. Camacho, any exigent circumstances which might have justified a “frisk” of the vehicle and checking the glove box for a weapon had dissipated.

In general, the police must obtain a search warrant prior to searching a car. There are some exceptions, however. For example, the police may conduct a “frisk” of the passenger compartment of a vehicle for weapons when they have conducted a legal stop and they have reasonable suspicion to believe that the suspect is engaged in criminal activity and armed and dangerous. The frisk cannot be a search for evidence; instead, it is a search for weapons for officer safety purposes during the stop. Nervousness alone does not justify the frisk of a car, but nervousness along with furtive movements or other strange behavior may sometimes justify a frisk.

In this case, however, any need to conduct the frisk before obtaining a warrant ended when J.C. was removed from the car, tased, handcuffed, and arrested. At that point, even if he had initially posed some sort of threat to the officers’ safety, the threat had ended, and there was nothing preventing the officers from simply waiting until detectives could obtain a warrant. The trial judge agreed and granted the motion to suppress. The Commonwealth then withdrew the charges.

Facing criminal charges or appealing a criminal case in Pennsylvania?

Criminal Defense Lawyer Zak T. Goldstein, Esquire — Goldstein Mehta LLC Criminal Defense Lawyers

Zak Goldstein 1/9/25 Zak Goldstein 1/9/25

PA Superior Court: Police Need a Good Reason for a K9 Sniff, and the Commonwealth Must Actually Prove Inevitable Discovery with Evidence

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the cases of Commonwealth v. Brinson and Commonwealth v. Flamer, holding that nervousness alone does not justify prolonging a traffic stop to bring a drug dog to the scene to have the dog smell the car for drugs. The Court also held that the mere fact that the police could have towed the car did not establish that the police would have inevitably discovered the contraband as the Commonwealth introduced no evidence or testimony that the police in fact would have towed the car and conducted an inventory search.

The Facts of the Case

A Philadelphia police officer conducted a traffic stop of a car after seeing the car fail to stop at a stop sign. Flamer was driving, and Brinson was in the passenger seat. During the stop, the officer felt that both men seemed nervous. Therefore, he called for a K9 unit. The dog alerted to the presence of narcotics, leading to a search of the car. Officers searched the car and discovered a firearm with an altered serial number and oxycodone pills.

The Commonwealth charged Brinson and Flamer with various offenses, including illegal possession of a firearm (VUFA) and controlled substances. Both defendants filed motions to suppress the evidence, arguing the stop was unlawfully prolonged without sufficient reasonable suspicion. The trial court granted the motion to suppress, finding that the police did not have reasonable suspicion to detain the defendants and extend the stop until a drug dog arrived. The court also found that the Commonwealth failed to show that the police would have inevitably discovered the contraband by towing the vehicle and conducting an inventory search. The prosecution appealed.

The Superior Court Appeal

The Superior Court affirmed. It agreed with the trial court on both issues, finding that the police did not have reasonable suspicion and that the Commonwealth failed to prove inevitable discovery with actual testimony or evidence. The Court addressed both issues:

Prolonged Traffic Stop:
- The Court held that the stop, which extended 10–15 minutes before the K-9 unit was summoned, exceeded its permissible scope. The officer lacked specific and articulable facts (reasonable suspicion) to justify extending the stop beyond its original purpose of addressing a traffic violation.
- Nervous behavior alone was insufficient to establish the necessary reasonable suspicion for detaining the defendants, extending the stop, and bringing a dog to the scene to conduct the search. The officer claimed he smelled marijuana, as well, but he did not smell the marijuana until later in the stop. Therefore, the officer’s detection of the marijuana odor occurred after the stop should have reasonably concluded, further undermining the justification for the K-9 search.
Inevitable Discovery Doctrine:
- The Commonwealth argued that the evidence would have been discovered during an inventory search following impoundment due to lack of insurance. However, the court found this exception inapplicable. The Commonwealth failed to establish that the police unequivocally would have towed the car and found the contraband. Instead, the Commonwealth showed only that the police could have towed the car, which was not enough. The inevitable discovery doctrine is very limited under Pennsylvania law and rarely operates other excuse the failure to comply with the warrant requirement. The police testimony established that towing decisions were discretionary, and the officer failed to establish or present a clear policy regarding inventory searches. The absence of a concrete policy establishing that the car would have in fact been towed defeated the inevitable discovery claim.

The court reiterated that police must demonstrate reasonable suspicion based on a totality of circumstances and that any extension of a traffic stop must align with the mission of the stop. This is a great decision for privacy rights in terms of limiting the inevitable discovery doctrine. It is not enough to show that the police could have eventually conducted a legal search - the Commonwealth has to show that an eventual legal search was a true inevitability, not merely that it could have happened even had the police not violated the defendant’s rights by conducting an illegal search.

Facing criminal charges or appealing a criminal case in state or federal court in Pennsylvania? We can help.

Zak-Goldstein-Defense-Attorney — Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges or under investigation by the police, we can help. We have successfully defended thousands of clients against criminal charges in courts throughout Pennsylvania and New Jersey. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. Our award-winning Philadelphia criminal defense lawyers offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attorney today.