PA Supreme Court: VUFA 6106 Statute Does Not Allow Conviction Based on Co-Defendant's Possession of Gun
Criminal Defense Lawyers Demetra Mehta and Zak Goldstein
The Pennsylvania Supreme Court decided the case of Commonwealth v. Peters, holding that a defendant cannot be found guilty of the Uniform Firearm Act § 6106 when another person possessed the gun. This decision will likely only apply to a limited number of cases, but it is still significant because it reduces a defendant’s potential exposure for a conspiracy when that defendant did not possess the actual gun.
Commonwealth v. Peters
In August 2011, the defendant was involved in a relationship with the complainant. On the night in question, the defendant was visiting the victim at his apartment. The defendant was complaining that her father lacked rent money and was facing eviction. The complainant then showed her $700 in cash and stated that he would give the money to her father. Later that evening, the defendant and the complainant got into an argument and the victim renounced his earlier promise to assist the defendant’s father.
Shortly afterwards, the defendant left the residence and texted the complainant. The two exchanged text messages and the defendant texted him saying that he was “going to get it.” The defendant then returned to the residence and shortly thereafter let two individuals inside the complainant’s residence. One of them had a gun. When the complainant saw the man with the gun, he ran towards his bedroom. One of the individuals ransacked his room demanding the money, while the other pointed his gun at the complainant. Because they were unable to find any money, the one assailant shot the complainant. The shot pierced his jaw, tongue, and shoulder and caused the complainant to lose some teeth. The assailants eventually found the $700 and fled. The complainant was taken to the hospital and was released several days later.
The defendant was subsequently arrested and charged with attempted murder, conspiracy, robbery, aggravated assault, and violation of the uniform firearm act § 6106 (hereinafter “VUFA 6106”) which prohibits the possession of a concealed firearm without a license. At trial, the parties stipulated that the defendant did not possess a license. After the trial, the defendant was found guilty and sentenced to 13-30 years’ incarceration. The defendant then filed a timely appeal. For purposes of this article, only the appeal concerning her conviction under VUFA 6106 will be discussed.
The Superior Court’s Decision
The Superior Court denied the defendant’s appeal. The Court concluded that the defendant could have been found guilty under a constructive possession theory. In its opinion, the Superior Court recited the standard for constructive possession and then stated that the defendant “had the power to control the firearm.” Notably, as discussed later, the issue of concealment was not addressed by the Superior Court. The defendant then filed a petition for allowance of appeal with the Pennsylvania Supreme Court, which was granted for a limited review of whether the defendant could have been found guilty of VUFA 6106 under a constructive possession theory.
What is Constructive Possession?
Constructive possession is a legal fiction that permits a defendant to be convicted of a possessory crime when the defendant is not in physical possession of an item (i.e. the defendant is not holding the contraband). It is an inference arising from a set of facts that possession of contraband was more likely than not. The evidence must show a nexus between the accused and the item to sufficiently infer that the defendant had the power and intent to exercise dominion and control over it. Constructive possession is usually established by the totality of circumstances. It is important to remember though that mere presence or proximity to the contraband is not sufficient to convict a defendant under a constructive possession theory.
Appellate courts have previously held that it is possible for two people to constructively possess the same item(s). Usually, constructive possession comes into play in situations where the defendant is in the same proximity as the contraband (i.e. the defendant is in a car where contraband is found). In the instant case, the defendant was found guilty of VUFA 6106 when her co-conspirator brought the gun with him to the residence. There were not any facts in the record to suggest that she ever physically possessed the weapon.
The Pennsylvania Supreme Court’s Decision
The Pennsylvania Supreme Court granted the defendant’s appeal and reversed her conviction for VUFA 6106. The Court came to this decision after a very careful review of the record. Specifically, the Court found that the defendant had been found guilty as an accomplice liability theory because she did not actually participate in the shooting and robbery of the complainant.
The Court then analyzed the VUFA 6106 statute. To be convicted under VUFA 6106, a defendant must not only possess the firearm, but he/she must also conceal the weapon. The Court then stated that usually only the actual possessor of the firearm is capable of both concealment and possession. The Court went one step further and rejected the notion that the concealment on a different person can satisfy the concealment requirement for VUFA 6106. As such, the defendant’s conviction for VUFA 6106 is vacated, and she will be resentenced on the other charges.
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