Unlawful Possession of a Concealed Firearm Requires Intentional Concealment

 Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Scott, holding that the charge of unlawful possession of a concealed firearm in violation of 18 Pa.C.S. § 6106 requires the Commonwealth to prove that the defendant intentionally, knowingly, or recklessly concealed the firearm. Thus, if the firearm became concealed by accident, then a criminal defendant would potentially have a defense at trial.

Commonwealth v. Scott

In Scott, police received a report of domestic violence in Westmoreland County. Detectives responded to the residence, and they eventually came into contact with the defendant. Officers asked the defendant to raise his hands so that they could see them, and then they arrested him for domestic violence. The officers next frisked the defendant for weapons. During the frisk, police found a Sig Sauer handgun in a holster that was located under the defendant’s t-shirt. The t-shirt was not tucked in. Instead, it was loose and hanging over the gun so that the gun was completely concealed.  

The defendant testified that although the t-shirt was in fact concealing the firearm at the time of his arrest, he had not concealed the gun on purpose. Instead, he testified that earlier in the day his t-shirt was tucked in. At the same time, he was wearing a hooded sweatshirt, and when he took the hoodie off, the hoodie must have pulled his t-shirt out of his waistband. Thus, he testified that he accidentally concealed the gun and did not realize that it had been concealed.

The defendant also had an Act 235 Certification, which generally allows security guards to carry concealed firearms in the course of performing their duties. Police agreed that the defendant told them he was going to be returning to work shortly as a security guard for a pawn shop in Pittsburgh. He also planned to drive to a qualification shooting course later in the day for his seasonal job as a public safety officer with a local amusement park. The defendant did not, however, have a license to carry a concealed firearm, and he was obviously not at work at the time of his arrest.

The Trial Court's Ruling 

The trial court found that Act 235 did not give the defendant the right to carry the firearm while not on duty and that the statute did not distinguish between an accidental concealment and intentional concealment of a gun. Accordingly, the trial court convicted the defendant of Possessing a Concealed Firearm without a license to carry in violation of 18 Pa.C.S. § 6106.

Possession of a Concealed Firearm in Philadelphia

Outside of Philadelphia, § 6106 is a misdemeanor of the first degree when a defendant does not have any other record and is not facing any other charges. In Philadelphia, § 6106 is almost always charged as a felony of the third degree because there is a separate crime of carrying a firearm on the streets of Philadelphia (18 Pa.C.S. § 6108). § 6108 is almost always charged along with § 6106, making § 6106 a felony of the third degree instead of a misdemeanor because 6106 is only a misdemeanor when the defendant is otherwise eligible to carry a gun. Pennsylvania appeals courts have consistently ruled that a defendant is not otherwise eligible for purposes of the statute when they are charged with an additional offense at the same time. Following the conviction, the trial court sentenced the defendant to 7 – 14 months of incarceration.

The Defendant's Appeal

The defendant promptly appealed his conviction. On appeal, he argued first that the Act 235 Permit gave him the right to carry the firearm without a permit. Second, he argued that the trial court erred in finding that § 6106 was a strict liability offense, meaning an accidental concealment would not provide a defense. The Superior Court rejected the first argument, but it agreed with the second. Therefore, the Superior Court reversed the defendant’s conviction.

What is an Act 235 Certification? 

With respect to the Act 235 Certification, the Court quickly rejected the defendant’s claim. Section 6106 makes it unlawful for a defendant to “carr[y] 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.” Section 6106 contains a number of exceptions to this general requirement, but possession of an Act 235 Certification is not one of them.

Instead, Act 235 requires privately employed agents who carry lethal weapons to attend an educational and training program established by the State Police Commissioner and provides for them to receive ‘certification’ when the program is satisfactorily completed. Thus, Act 235 provides additional requirements that a private security guard must meet in order to carry a gun at work; it does not give a private security guard the right to carry a gun when off-duty. Further, none of the other exceptions to 6106 such as those for law enforcement officers or private security guards applied to the defendant because the defendant was clearly not on duty at the time of his arrest despite his vague plans to go to work and training classes later in the day.

Section 6106 Requires Knowing, Intentional, or Reckless Concealment of a Gun 

With respect to the second claim, however, the Superior Court agreed with the defendant and reversed his conviction. The Court ruled that Section 6106 does require the Commonwealth to prove a mens rea. Although the statute itself contains no mens rea requirement and appears to be satisfied solely by the possession of a concealed firearm, the Pennsylvania Crimes Code contains a general provision that in the absence of a specified mens rea in a statute, a court should read in a default mens rea of recklessness. Recklessness involves the conscious disregard of a known risk. Thus, in order to prove a violation of the statute, the Commonwealth must show that a defendant knowingly, intentionally, or recklessly concealed the firearm. Here, the defendant testified that the concealment occurred by accident, and the trial court stated on the record that it probably believed him. Therefore, the Superior Court reversed the defendant’s conviction and remanded it for a new trial.  

Philadelphia Criminal Defense Lawyers for Gun Charges and Weapons Offenses

 Philadelphia Criminal Defense Lawyers

Philadelphia Criminal Defense Lawyers

If you are charged with the illegal possession of a gun or other weapons offense, you need an experienced criminal defense attorney to evaluate your case, investigate for potential defenses, and provide you with all of the options. There are often defenses to gun charges ranging from motions to suppress, constructive possession, and accidental concealment. Our defense lawyers have successfully defended thousands of clients. Call 267-225-2545 now for a complimentary 15-minute criminal defense strategy session.