Philadelphia Criminal Defense Blog

Zak Goldstein 3/19/24 Zak Goldstein 3/19/24

Attorney Goldstein Obtains Dismissal of Bucks County Felony Charges for Making a Materially False Statement in Connection with a Firearm Purchase

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, obtained the full dismissal of felony charges at the preliminary hearing for a client who was charged in Bucks County with allegedly making a materially false statement on the background check application that he filled out in an attempt to buy a firearm.

In the case of Commonwealth v. M.S., prosecutors alleged that M.S. went to a gun show in Bucks County to try to buy a gun and provided false information about his criminal record on the form.

How does the background check process work when buying a gun in Pennsylvania?

Every purchase of a firearm in Pennsylvania requires the purchaser to fill out two background check forms – one for the Pennsylvania State Police and one for the ATF. The state police form asks a number of questions such as whether the purchaser is ineligible to buy a gun due to certain prior convictions (generally those enumerated in the felon in possession of a firearm statute, 18 Pa.C.S. § 6105) as well as questions about prior 302 mental health commitments and convictions for domestic violence.

The ATF form asks whether the purchaser has ever been convicted of a crime punishable by more than a year in jail. For state court misdemeanors, the definitions section on the back of the form clarifies that the question only applies to a state court misdemeanor punishable by more than two years in jail, meaning that a non-domestic violence misdemeanor of the second degree in Pennsylvania is not a problem, but a first degree misdemeanor is. Notably, the forms also require the purchaser to confirm that they are purchasing the gun for themselves rather than someone else. There is an exception where the purchaser seeks to purchase it for a close family member who is legally eligible to own a firearm (such as a spouse or child).

In this case, the police claimed that M.S. lied on the form by checking off that he did not have a conviction for a crime punishable by more than a year because he had a misdemeanor of the first degree theft conviction from more than thirty years ago. Technically, according to the language of the form and the federal law (18 U.S.C. § 922(g)), this M1 theft conviction made M.S. ineligible to possess a firearm.

What happens if you fail the background check when trying to buy a gun?

The gun seller ran M.S. through the State Police background check system, the system recognized his old conviction, and he was not permitted to purchase the firearm. Most people do not realize, however, that the system then notifies the state police about the attempted purchase, and the state police frequently file felony charges under 18 Pa.C.S. § 6111. The ATF could also file federal charges along with the U.S. Attorney’s Office. § 6111 makes it a felony to make a materially false statement on either the state police or ATF background check forms. In order to prove a violation of the statute, however, the Commonwealth has to show 1) that the defendant was the person who actually filled out the form, 2) that the statement was in fact false, 3) that the statement was material, meaning important, and 4) that the defendant knew it was false and did not just make a mistake.

Obviously, the questions are confusing. The state form asks about crimes listed in § 6105, and people often do not know exactly of what they were convicted, particularly where the conviction is older. For someone who has a prior robbery or aggravated assault, there is probably not going to be a strong argument that the person was confused. But where someone has an old misdemeanor or a few DUIs, they may well have not realized that they were ineligible to possess a firearm.

Similarly, the federal form asks whether the person was convicted of a crime punishable by more than a year in prison, and the form then actually defines that as a state court misdemeanor punishable by more than two years in prison. This question is particularly confusing as a non-lawyer is very unlikely to know how much time they could have received for an old, less serious conviction. Again, for a robbery or an aggravated assault, there is not going to be as strong of a mistake defense, but for an old misdemeanor theft conviction, it is not unreasonable to suggest that someone could have been unaware of the gradation of the conviction or how much time that gradation could have carried if they did not actually receive the maximum or any jail time at all.

In this case, M.S.’s old theft conviction carried up to five years in prison, making him ineligible to possess a firearm under federal law. It did not make him ineligible under state law. Accordingly, the police charged him with lying on the ATF form, which is a felony.

M.S. retained Attorney Goldstein for the preliminary hearing. On the day of the hearing, the Commonwealth offered to reduce the charges to a third-degree misdemeanor of unsworn falsification for a one year period of probation. M.S. rejected the offer and decided to have a preliminary hearing. The police officer testified that he received a package from the state police indicating that M.S. had tried to buy a gun, M.S. was ineligible due to the old theft conviction, and that theft conviction was punishable by up to five years. The police officer also confirmed that he spoke with M.S., and M.S. admitted to trying and failing to buy the gun for self-defense purposes. He said he did not realize the theft conviction made him ineligible.

Dismissal of the Charges

Attorney Goldstein then argued for dismissal of the charges. First, under the recent Third Circuit Court of Appeals case of Range v. Attorney General, a lifetime prohibition on gun ownership for someone convicted of an old state court misdemeanor appears to be unconstitutional. There, the Third Circuit, in an en banc, opinion, held that Range should be permitted to buy a gun because his only conviction was a nearly thirty year old conviction for M1 food stamp fraud. Given how minor the conviction was, a lifetime prohibition on gun ownership violated the Second Amendment.

This case was extremely similar except the conviction was older and Range had sued for an injunction allowing him to buy a gun rather than argued that he could not be prosecuted. Attorney Goldstein argued that the statement on the form, even if not true, was not material because M.S. would have been eligible to possess a gun under the Range decision.

Second, Attorney Goldstein also argued that M.S. had clearly been confused by the wording on the form. Misdemeanor theft is not a bar to gun ownership under 18 Pa.C.S. § 6105, and M.S. had not actually received any time in prison. He had also been cooperative with the police and told them he had made a mistake. If he had been trying to buy a gun illegally, he could have purchased it on the street or lied to the police. Accordingly, it was very unlikely that he knew he had been convicted of a state court misdemeanor punishable by more than two years in jail. He did not actually get any jail time, and he did not even receive more than two years of probation.

Fortunately, the Magisterial District Justice agreed with the defense arguments and dismissed all charges. Instead of facing trial on felony charges in the Court of Common Pleas, M.S., who had not been arrested in over thirty years, can return to work and continue being a law-abiding citizen. This case, however, highlights the importance of being very careful when filling out these forms. If you have any doubts about whether you are eligible to possess a firearm, you should not use the form to “test” that eligibility. Instead, you should speak with a lawyer about your prior record. Additionally, if you have filled out the form and made a mistake, you should speak with an attorney right away before the police come calling. An attorney may be able to help you head off the investigation or help you with responding to it in order to avoid charges and prosecution for a felony offense. The form should never be used as a way to test whether or not you are eligible to buy a gun as answering the questions incorrectly can lead to felony charges.

Facing criminal charges or appealing a criminal case? We can help.

Criminal Defense Attorney Zak T. Goldstein, Esquire

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 dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.

Zak Goldstein 3/12/24 Zak Goldstein 3/12/24

Attorney Goldstein Published in PACDL’s For the Defense Magazine on Differences in Federal and State Constitutional Protections

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire was recently published in the Pennsylvania Association of Criminal Defense Lawyer’s For the Defense Magazine. Attorney Goldstein’s article focused on the differences between the protections provided by the Pennsylvania and United States Constitutions and the practical impact those differences may have on the litigation of motions to suppress and other challenges to improper seized evidence in state and federal court. Read more here.

Facing criminal charges or appealing a criminal case? We can help.

Zak Goldstein 3/6/24 Zak Goldstein 3/6/24

Attorney Goldstein Wins Motion to Suppress Firearm in Philadelphia

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire recently won a motion to suppress a firearm in the case of Commonwealth v. R.M.

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

In R.M., three police officers were patrolling Northwest Philadelphia in plainclothes and an unmarked car. They claimed that they saw the defendant driving a car with illegal window tint on all of the windows, so they pulled the car over. When the police approached the car, the defendant was cooperative with them and provided them with all of the paperwork for the vehicle. Nonetheless, one of the officers testified that he could immediately observe the magazine of a gun sticking out from underneath the mat underneath the driver’s feet. The officer asked the defendant if there were any guns or drugs in the car, and when the defendant denied having a gun in the car, the officers pulled him out of the car and searched it. The officers claimed that they only frisked the area around the driver’s seat for officer safety because they could see the magazine and the defendant had denied having a gun in the car. Of course, they did recover a gun and an extended magazine. They claimed to have recovered it from underneath the floor mat. The police arrested R.M., and prosecutors charged him with violations of the uniform firearms act (VUFA) under sections § 6105, § 6106, and § 6108. VUFA § 6105 is a particularly serious charge as it is typically graded as a first-degree felony.

R.M. retained Attorney Goldstein. Following the preliminary hearing, Attorney Goldstein filed a motion to suppress the firearm. Attorney Goldstein argued that police had illegally pulled R.M. over for no real reason and searched the car based on a hunch rather than any actual observation of a magazine or gun.

The Philadelphia Court of Common Pleas held a hearing on the motion to suppress. Attorney Goldstein cross-examined the arresting officer extensively on the fact that the officer had not been wearing a body camera even though most Philadelphia Police officers now wear body cameras, the officers failed to comply with virtually all of the police directives governing the behavior of plainclothes officers, the fact that the officers would not have even able to write a ticket for the window tint because they did not have a computer in their car and would have needed uniformed officers to come to the scene, and the absurdity of the story that the gun just happened to be sticking out in plain view.

Attorney Goldstein also called the vehicle’s passenger as a witness. She testified that the police had pulled the car over shortly after she and the driver left a gas station, immediately removed them from the vehicle, and searched the car extensively before finding the gun. She denied that it could have been in plain view.

As the police had not actually seen R.M. do anything illegal and the gun was likely not actually in plain view prior to the search, the trial court found the officers not credible and granted the motion to suppress the gun. Credibility rulings generally cannot be appealed, so the Commonwealth then withdrew the charges. R.M. will be eligible to have them expunged.

The Plain View Exception

Notably, whether the police can search a car without a search warrant if they see contraband in plain view is still debatable. In this case, the officers claimed that they could see the magazine of the gun in plain view. A magazine on its own is not illegal, and having one in a car does not give the police probable cause or reasonable suspicion to search or frisk the car with or without a warrant, but the presence of the magazine along with the defendant’s alleged denial that he had a gun in the car likely would have given the police the ability to search the car. A false denial would tend to suggest that the defendant actually had a gun but was not allowed to have it. The Superior Court has found that the police may conduct a warrantless search of a vehicle when they see contraband in plain view, but the Pennsylvania Supreme Court has granted review in that case and may reach a different conclusion. Either way, the trial judge found that the plain view exception did not apply in this case because the officers were not credible.

This case highlights the importance of retaining an attorney who will conduct a thorough investigation, who will locate and prepare witnesses to testify credibly for the defense, who will be familiar with the case law and police directives in order to show that the police either did not follow required procedures or the law during a search, and who can effectively cross-examine officers and other witnesses to challenge their credibility at motions and trial.

Facing criminal charges or appealing a criminal case? We can help.

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esquire

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. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.

Zak Goldstein 9/26/23 Zak Goldstein 9/26/23

Not Guilty: Attorney Goldstein Obtains Full Acquittal in Rape Case

Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire, recently obtained a full acquittal in a rape case. In Commonwealth v. P.S., the defendant was charged in Philadelphia with rape of a child and related charges for allegedly assaulting his biological daughter. According to the complainant, the assaults began when she was between the ages of 3 - 5 and continued until she was about 13 or 14. She did not report them until she was around 16, but prosecutors arrested P.S. and charged him with a number of sex crimes.

P.S. retained Attorney Goldstein to defend against the allegations. Attorney Goldstein investigated the case, obtained discovery from the District Attorney’s Office, and learned that the complainant’s mother, from whom the client had separated shortly before the allegations were first made in Family Court, had been claiming that P.S. assaulted the complainant for years. Attorney Goldstein investigated further and obtained family court transcripts which showed that the complainant had told judges that the assaults did not actually happen and that there was a lengthy history of litigation over child custody and child support. The family court records showed that the complainant’s mother had made these unfounded allegations supposedly on behalf of her daughter anytime she wanted to deny P.S. from having custody, but she had continued to let him see her and had never gone to the police. This behavior obviously did not make sense if the mother believed that child abuse was actually occurring.

P.S. proceeded to trial before a judge in the Philadelphia Court of Common Pleas. The complainant testified that P.S. assaulted her, but her testimony differed wildly from what she had told social workers in a videotaped interview which took place at the Philadelphia Children’s Alliance. Through cross-examination, Attorney Goldstein was able to show that P.S.’s story had changed repeatedly, she had previously told a judge that the assaults did not actually happen, all of her medical exams had been totally normal, and her mom had been telling her that her father had molested her since she was about three years old. Finally, when the complainant’s mother testified, it quickly became clear that she had fabricated the allegations by insisting that these horrible things happened only after she began suing P.S. for child custody and child support.

The trial judge promptly acquitted P.S. at the end of the one day waiver trial. The judge found that the allegations were fabricated and that the complainant’s mother had essentially traumatized her daughter and put her up to making the allegations. Instead of facing decades in prison and a lifetime of Megan’s Law registration, P.S. has now been found not guilty and will be eligible to have the charges expunged.

Allegations of child abuse and child sexual assault are among the most serious possible charges and the most difficult to defend. Judges and juries often have a difficult time believing that children could lie about something so horrible. Fortunately, our attorneys are experienced in investigating these cases and cross-examining the complainants and witnesses in order to effectively fight back against false charges. We have won many of these cases at preliminary hearings, at trial, on appeal, and in PCRA litigation.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

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. We have also won criminal appeals and PCRAs in state and federal court. 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.