Conviction for Possession of Firearm with Obliterated Serial Number Requires Intentional Modification of Serial Number

The Pennsylvania Superior Court has just announced its decision in Commonwealth v. Ford, holding that a defendant may not be found guilty of 18 Pa.C.S. § 6110.2 (Possession of Firearm with Altered Manufacturer’s Number) when the numbers were altered through natural corrosion instead of intentional action. This decision protects individuals who own older firearms which have faded serial numbers. In Philadelphia, firearms offenses are taken very seriously, and prosecutors will often pursue severe sentences for defendants convicted of gun charges. If you are charged with possessing a firearm with an obliterated serial number or any offense involving a gun, it is crucial that you contact an attorney who is familiar with the law and is willing to fight for you.   

Commonwealth v. Ford

In Ford, Philadelphia Police Officers received radio calls for a person bleeding and a person with a gun at 2010 Wilmot Street. The officers went to the backyard of that address, but no one was there. As they proceeded through an alleyway onto Ditman Street, the officers were then directed by bystanders to 4663 Ditman Street. While standing on the porch of that address, one of the officers heard screaming coming from inside the house. Based on the screaming, the high crime level in the neighborhood, and the radio call, the officers decided to knock on the door. When no one answered, the police entered the property without a warrant.  

Once inside, the officers saw the defendant put an object which turned out to be a gun on the kitchen chair next to him. Officers promptly arrested the defendant after recovering the .38 caliber silver handgun. When officers looked at the gun, they could not see the manufacturer’s serial number. Because all modern firearms are required by law to have a serial’s number, the officers arrested the defendant and charged him with various Violations of the Uniform Firearms Act, including 18 PA C.S.A. § 6110.2 (possession of a firearm with an obliterated or altered serial number) and 18 PA C.S.A. § 6105 (possession of a firearm by a felon).

The defendant filed a Motion to Suppress, alleging that the gun should be suppressed because the police did not have a warrant when they entered the property. The Commonwealth responded that the officers were acting under the exigent circumstances exception. The exigent circumstances exception permits police to enter a house without a warrant under very limited circumstances – essentially, there must be a bonafide emergency or they must be in hot pursuit of a fleeing felon. After the officers testified to the reasons for entering without a warrant and argument from counsel, the trial court denied the Motion to Suppress. On appeal, the Superior Court affirmed, finding that though the police officers did not obtain a search warrant to enter the defendant’s home, the officers had probable cause and that there were exigent circumstances that warranted police entering his home given the radio call, the screaming, and the high crime nature of the area.

After the Motion to Suppress was denied, the defendant proceeded to trial by way of bench trial. Both the Commonwealth and the defense agreed that the serial number of the firearm had been obscured by corrosion as opposed to having been intentionally obliterated by the defendant. Nonetheless, the trial court found the defendant guilty of both possession of a gun by a felon and possession of a gun with an obliterated serial number, and the court sentenced him to a lengthy state sentence. The defendant appealed, arguing both that the trial court should have granted the Motion to Suppress and that the obliterated firearm statute does not make it illegal to possess a firearm where the serial number naturally wore away over the years and was not intentionally removed.

What is § 6110.2 (possession of a gun with an obliterated serial number)?

§ 6110.2 is one of several statutes that collectively form the Pennsylvania Uniform Firearms Act. In Philadelphia, charges brought under the Act are commonly referred to as VUFA charges, or Violations of the Uniform Firearms Act. § 6110.2 makes it illegal to possess a firearm which has the manufacturer’s number integral to the frame or receiver altered, changed, removed or obliterated.” Further, unlike some of the other VUFA statutes, § 6110.2 does not require that the firearm be operable. Also, it is not a defense to § 6110.2 that the defendant possessed the gun at his or her residence or place of business, making the statute very different from § 6106 (possessing a concealed firearm or a firearm in a car without a license to carry) and § 6108 (possessing a firearm on the streets of Philadelphia). Further, § 6110.2 has recklessness as its mens rea, making it easier for prosecutors to prove as this is a lesser mens rea than other offenses (i.e. specific intent, where a defendant specifically intended to commit a particular crime) and thus easier for the Commonwealth to prove. So, typically, § 6110.2 can be difficult to defend if a defendant is not successful at the suppression hearing.   

The Superior Court Restricts § 6110.2

The issue in Ford was whether possessing a firearm with the serial number that had merely corroded would be sufficient for a conviction under § 6110.2. The Superior Court concluded that it would not. In making its decision, the Superior Court employed statutory interpretation to determine what the General Assembly intended when it passed § 6110.2. As previously stated, it is illegal to possess a firearm when the manufacturer’s number is either altered, changed, removed or obliterated. Throughout Ford, the Superior Court emphasized that it would not “add” to § 6110.2, by quoting Commonwealth v. Johnson, 26 A.3d 1078, 1090 (Pa. 2011) holding that “although one is admonished to listen attentively to what a statute says; one must also listen attentively to what it does not say.”   

The Superior Court began its analysis by consulting the Crimes Code. § 6102 is the definitions section of the VUFA statutes, however “altered,” “changed,” “removed” or “obliterated” are not defined in this section. The Superior Court then turned to Webster’s Dictionary for guidance. They summarized their findings as follows:

[W]e consult[ed] the dictionary, which defines (1) “alter” as “to cause to become different in some particular characteristic (as measure, dimension, course, arrangement, or inclination) without changing it into something else,” (2) “change” as “to make different . . . in some particular but short of conversion into something else . . . [or] to make over to a radically different form, composition, state, or disposition,”; (3) “remove” means “to get rid of as by moving” as in eradicate or eliminate, and is synonymous with erase; and (4) “obliterate” as “1 : to remove from significance and bring to nothingness : as a: to make undecipherable or imperceptible by obscuring, covering, or wearing or chipping away . . . b: to remove utterly from recognition . . . or c (1): to remove from existence : make nonexistent : destroy utterly all traces, indications, significance of . . . (2) to cause to disappear[.]”  

            Based on this analysis, the Superior Court held that natural corrosion did not fall within the definitions of altered, changed, removed, or obliterated. Therefore, the defendant should not have been found guilty of § 6110.2. Because the defendant’s conviction for § 6110.2 ran concurrent to his § 6105 conviction and was identical to it, the Superior Court then vacated the defendant’s sentence for § 6110.2, but did not remand it for resentencing.

VUFA Cases and Weapons Offenses

Goldstein Mehta LLC Philadelphia Criminal Defense Lawyers

Goldstein Mehta LLC Philadelphia Criminal Defense Lawyers

If you are charged with a VUFA offense, you need an attorney who has the knowledge and expertise to fight your case. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.