Does a gun have to work for the DA to prove a Violation of the Uniform Firearms Act?  

One potential defense to certain gun charges in Pennsylvania is that the gun did not actually work. Pennsylvania law makes it illegal to carry or possess a firearm under certain circumstances. First, it is usually illegal under 18 Pa.C.S. Section 6106 to carry a gun in a concealed manner or in a car without a concealed carry permit. Second, it is illegal under 18 PA.C.S. Section 6108 to carry a gun on the streets of Philadelphia without a permit. Third, it is illegal under 18 Pa.C.S. Section 6105 for someone who has been convicted of certain crimes (including a number of different felonies and misdemeanors) to have a gun at all. A violation of section 6106 is usually a felony of the third degree. A violation of section 6108 is a misdemeanor of the first degree, and a violation of section 6105 is usually a first-degree felony which can carry up to twenty years in jail.

In cases involving violations of sections 6106 and 6108, it could be a defense to the charges that the Commonwealth cannot prove that the gun was operable – meaning that it actually worked or was able to fire a shot without significant repairs.

In cases involving violations of sections 6105 (the felon in possession statute), the Commonwealth does not have to prove that the gun actually worked as it is illegal for a felon to carry even a broken gun. This is because the 6105 statute uses a different definition of a firearm. 6106 and 6108, however, have been interpreted by the Pennsylvania Supreme Court to require that the gun actually works. However, the DA does not have to prove that the gun worked in every case. Instead, either the prosecution or the defense must have introduced some evidence at trial that the gun was not operable, and then the burden shifts to the prosecution to prove that the gun was operable beyond a reasonable doubt.

In a case called Commonwealth v. Layton, the Pennsylvania Supreme Court first held that a gun must be operable in order for the prosecution to find a violation of section 6106 or 6108. However, operable does not necessarily mean that the gun could fire a shot at the time it was recovered. Instead, a gun is also operable if “the alleged actor had under his control the means to convert the object into one capable of firing a shot.” Thus, “an operable firearm may be said to be under the control of the alleged actor even though it is a malfunctioning assembled firearm or a disassembled firearm, if the alleged actor has under his control the means to convert the inoperable firearm into an operable firearm.” “For example, a reasonable fact finder might conclude, under all of the circumstances, that an operable firearm was under the control of the actor even though the stock, barrel, trigger housing group, or firing mechanism were in different rooms in the same apartment or might infer control if a damaged part were readily repairable.” In the Layton case, the gun was not capable of firing a shot and the defendant did not have anything in his possession which could be used to repair it, so the Supreme Court reversed the defendant’s conviction. In more recent cases such as In Re S.H., the Superior Court has found that guns were not operable when they had broken firing pins.

Although operability requires either that the gun be able to fire a shot or that the defendant had under his control the means to convert the object into one capable of firing a shot, the Commonwealth can still obtain a conviction if it can prove that the gun could be made capable of firing a shot relatively easily. For example, in various cases, the Superior Court has held that a gun which requires minor repairs in order to fire a shot can still be operable.

In Commonwealth v. Siiams, the Superior Court held that a gun was still operable for purposes of 6106 and 6108 even though the firearms examiner had to twist a key piece of the gun back into place with pliers in order to get it to fire. Likewise, in Commonwealth v. Gainer, the gun was found to be operable where the examiner testified that he had to file down a metal burr that had formed inside the pistol which prevented a round from chambering. The burr, however, could be removed within a matter of seconds or minutes by using an ordinary manual file. Even though there was no evidence that the defendants in these cases could have actually performed these repairs themselves, the Superior Court concluded that the weapons were readily repairable using easily available means and that they did not require adding new parts to the gun. Therefore, the court found that the guns were operable. Likewise, in Commonwealth v. Stevenson, the Superior Court held that where a gun was able to fire a shot as submitted but had a firing pin which would immediately fall out and have to be re-inserted, the gun was operable because it could fire the shot at the time it was submitted.

In general, these cases mean that if the defense can introduce some evidence that a gun did not work at the time that it was recovered, and the Commonwealth then fails to show beyond a reasonable doubt that the gun could be easily repaired without necessarily adding new parts, a court may acquit the defendant of violations of sections 6106 and 6108. It is important to remember that operability is not a defense to a violation of section 6105 because a felon may not possess even a broken gun, and unless there is first some evidence that the gun did not work, the Commonwealth may not have to prove operability at all.  

Can I be convicted of gun charges if the police never found the gun?

Another issue that frequently comes up relating to operability is when the police claim that the defendant committed a crime such as robbery or assault with a firearm but the police never actually recovered the gun. In other words, if a defendant is charged with robbing a store with an object that looks like a gun, but the defendant never fired the gun and the police never recovered it during their investigation, does the Commonwealth have to prove that it was actually a gun instead of a replica in order to obtain a conviction for gun charges or a sentencing enhancement for using a deadly weapon?

In general, the answer to this question is usually not. The Commonwealth typically does not have to prove that the gun used in a robbery was actually a gun. Instead, appellate courts have heard that even if the gun was never fired, a conviction can be obtained so long as the object in question sufficiently looked like a real gun. Thus, if a witness describes a grey firearm that looked like a revolver, that could be enough for the DA to obtain a conviction for a gun charge.

In some cases, however, there could be a defense to the gun charges if the witnesses cannot really describe the object or if there is conflicting testimony as to what it looked like. Therefore, it is still often worth cross-examining witnesses on why they believed the object to be a gun. If they are not really sure whether it was a gun or a replica, or if there was something weird about it that suggests that it might not be real, then the Commonwealth could be unable to meet its burden beyond a reasonable doubt. However, because the defense must introduce some evidence of operability in order to shift the burden to the Commonwealth, this will not always be a defense. Therefore, it is not necessarily illegal to have a broken gun without a license in Pennsylvania, but it is still risky because the Commonwealth could potentially obtain a conviction if the gun can be fixed with minor repairs or if the gun is never recovered.

Facing criminal charges? We can help.

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 successful outcomes in cases involving charges such as Possession with the Intent to Deliver, Violations of the Uniform Firearms Act, Aggravated Assault, Rape, and Murder. 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.