PA Supreme Court: Partial Concealment May Not Be Enough to Convict for Carrying a Gun Without a Permit

Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Montgomery, holding that partial concealment may not be sufficient to convict a defendant of carrying a firearm without a license (“VUFA 6106”). This is a significant decision because prior to this, trial and appellate courts would hold that even the slightest concealment was sufficient to convict a defendant of VUFA 6106. Now, courts will employ a totality of the circumstances test to determine whether a defendant was knowingly, intentionally, or recklessly concealing the firearm from ordinary observation. 

Commonwealth v. Montgomery

A Philadelphia Police Officer was on patrol when he observed the defendant messing with what he believed to be the handle of a gun in his waistband. The defendant then entered a nearby store. Upon leaving the store, the defendant saw the officer and then re-entered the store. The officer proceeded to follow the defendant into the store. The officer searched the store and located a firearm on the top of a rack of potatoes, a couple of feet away from where the defendant was standing. At that time, the only other individuals in the store were a cook, two other employees, and a customer. Upon finding the gun, the officer stopped the defendant in the middle of the store and asked if the firearm belonged to him, to which the defendant said it did not. The officer did not believe the defendant and arrested him. The defendant was subsequently charged with carrying a firearm on the public streets of Philadelphia (“VUFA 6108”) and VUFA 6106. 

At the defendant’s preliminary hearing, the trial court dismissed the VUFA 6106 charge based on a lack of evidence. The Commonwealth then refiled the VUFA 6106 charge, but it was again dismissed. In its decision, the trial court held that the Commonwealth had failed to present sufficient evidence to establish a prima facie case of carrying a firearm without a license. Specifically, the trial court found that there was not sufficient evidence presented at the preliminary hearing to show that the defendant concealed the gun because the officer never testified that he saw the defendant with the gun in his hand and that he only believed that the handle he saw was that of a gun. The Commonwealth then filed an interlocutory appeal to the Pennsylvania Superior Court. 

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court. The Superior Court held that “any concealment, even partial, is sufficient to satisfy the concealment element of [VUFA 6106].” The defendant then filed a petition for allowance of appeal to have the Pennsylvania Supreme Court hear the case. The Court agreed to hear the case. 

What is VUFA 6106? 

A person is guilty of VUFA 6106 if: 

(1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.

(2) A person who is otherwise eligible to possess a valid license under this chapter but carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.

The Pennsylvania Supreme Court’s Decision  

The Pennsylvania Supreme Court reversed the trial court. The defendant argued that the evidence showed that his firearm was never placed out of sight or shielded from vision. Additionally, he argued that if the Pennsylvania Legislature had intended to criminalize partial concealment it would have said specifically said so in the statute. However, it did not do so and thus the VUFA 6106 statute must be strictly read to require full concealment. 

The Pennsylvania Supreme Court agreed with the defendant that partial concealment may not be sufficient to convict a defendant of VUFA 6106. However, the Pennsylvania Supreme Court declined to hold that total concealment is necessary to convict a defendant of VUFA 6106. As such, the Pennsylvania Supreme Court adopted a rule stating that a defendant is “concealing” a firearm “when, viewed in the totality of the circumstances, he or she carries the firearm in such a manner as to hide the firearm from ordinary observation; absolute invisibility to others is not required.”

Applying this new rule to the facts of this case, the Pennsylvania Supreme Court found that there was sufficient evidence to establish a prima facie case of concealment. In making its decision, the Pennsylvania Supreme Court stated that because the officer saw what he believed to be the handle of a handgun in the defendant’s waistband; the defendant immediately re-entered the store after making eye contact with the officer; and because the gun was found within feet of where he was standing there was sufficient evidence to make a prima facie finding that the defendant had concealed the handgun. Obviously, this does not mean that the defendant will be found guilty at trial, but he will be forced to stand on trial on the charge of VUFA 6106. And although this defendant’s case will proceed, it is still a very helpful opinion for defendants who are charged with gun crimes despite the police claiming that they were able to see the gun.

Facing Criminal Charges? We Can Help. 

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 in cases involving charges such as Conspiracy, 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.