Philadelphia Criminal Defense Blog
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.
Facing Criminal Charges? We Can Help.
Philadelphia 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.
PA Superior Court Reduces Double Jeopardy Protections in Philadelphia Felony Cases
Philadelphia Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Superior Court has decided the case of Commonwealth v. Johnson, holding that the double jeopardy protections provided to the citizens of Philadelphia by the Pennsylvania Supreme Court’s decision in Commonwealth v. Perfetto simply do not apply to felony charges. The Supreme Court previously held that police could not file separate traffic court cases and criminal charges when a traffic stop leads to an arrest for more serious charges. This wrongly-decided decision completely undermines the Supreme Court’s ruling and allows prosecutors to subject defendants to the expense, stress, and dual penalties associated with two separate prosecutions arising from the same incident.
Commonwealth v. Johnson
A Philadelphia police officer stopped the defendant for careless driving and discovered that he had been driving with a suspended license. The police removed the defendant from the vehicle, patted him down, and found some heroin. They arrested him and charged him with Possession with the Intent to Deliver (“PWID”) and knowing and intentional possession of a controlled substance (“K&I). They also cited him for driving on a suspended license.
Before the defendant went to trial on the PWID and K/I charges in the Court of Common Pleas, the defendant was found guilty of driving with a suspended license in the Municipal Court of Philadelphia. Consequently, the defendant filed a motion to dismiss his drug case under 18 Pa. C.S.A. § 110 (“Rule 110”), which provides double jeopardy protections to citizens of Pennsylvania. Specifically, the defendant argued that the Commonwealth should have tried the defendant for the driving with a suspended license charge and his PWID charge at the same time because they arose out of the same incident. Per the defendant, the failure to do this not only violated his rights under Rule 110, but also his right against Double Jeopardy under both the Pennsylvania and Federal Constitutions.
The trial court denied the defendant’s motion to dismiss. The trial court opined that because Philadelphia has a separate traffic court, the traffic citation can be disposed of without violating a defendant’s Double Jeopardy rights. The defendant then filed an interlocutory appeal arguing that the trial court improperly denied his motion to dismiss. While his appeal was pending, the Pennsylvania Supreme Court decided the case of Commonwealth v. Perfetto. Perfetto, which will be discussed in more detail, was factually similar to this case. Therefore, in his appeal, the defendant argued that Perfetto should control and the felony charges should be dismissed.
Is Philadelphia’s Court System Different from Other Court Systems in Pennsylvania?
Yes. A quick refresher on Philadelphia’s court system will be necessary to fully understand the Johnson decision. When a defendant is charged with a felony in Philadelphia, he or she will first usually have a preliminary hearing in Municipal Court. If the Municipal Court judge finds that the Commonwealth provided sufficient evidence to establish a prima facie case for the charges filed against the defendant, then the case will be transferred to the Court of Common Pleas for further proceedings including trial. The defendant cannot have his felony cases heard in the Philadelphia Municipal Court (unless it is a first offense marijuana PWID). The defendant also cannot plead to a felony, with the exception of the aforementioned crime, in Municipal Court.
If a defendant is only charged with misdemeanors or summaries, including traffic citations, then the defendant will not receive a preliminary hearing. Instead, the case will go straight to trial before a Municipal Court judge. It is difficult for the defendant to demand a jury at this stage, and there are no jury trials in the Municipal Court. If the defendant is found guilty of any of the charges filed against him or her, the defendant then has the right to a de novo appeal in the Court of Common Pleas. If the defendant chooses to de novo appeal his case, the defendant will get a new trial on the remaining charges. If the defendant wants to, he can also elect to have a jury trial once the case reaches the Common Pleas level. Most defendants do not appeal to the Court of Common Pleas, but this system often benefits the defense because the Commonwealth actually has to convict a defendant twice in order to obtain a final conviction.
What happened in Commonwealth v. Perfetto?
For a more detailed analysis, please refer to our previous blog about Commonwealth v. Perfetto. For purposes of this blog, only a brief summary of the decision will be given. Commonwealth v. Perfetto is a Pennsylvania Supreme Court that was decided earlier this year. This case was significant because it held that if a defendant is charged with both a criminal case and a traffic case (and the defendant is acquitted or found guilty of his traffic case before his criminal case was resolved), then Rule 110 would prohibit the subsequent prosecution of the criminal case because of Double Jeopardy. This case is very significant because so many defendants were given a traffic citation after they were arrested for their underlying criminal case.
Because of Perfetto, defendants used Rule 110 to dismiss not only misdemeanor cases, but felony cases too. It is important to note that the facts of Perfetto only involved a Municipal Court case (i.e. a case that has a maximum penalty of five years or less). Perfetto did not involve a felony case and its holding also did not explicitly address whether it applied to felony cases. More specifically, Perfetto did not address whether 18 Pa. C.S.A. § 112 (hereinafter “Rule 112”) was applicable. As discussed later, this would prove to be decisive for the Superior Court.
What is Rule 112?
Rule 112 states that a subsequent prosecution is not barred by a former prosecution if the former prosecution was before a court which lacked jurisdiction over the defendant or the offense. In its appeal, the Commonwealth argued that the defendant’s motion should not be granted on the PWID charge because the Municipal Court could not hear the defendant’s case because the charge has a maximum penalty of more than five years. In its brief, the Commonwealth conceded that the K/I charge should have been dismissed because the Municipal Court did have jurisdiction to hear that particular charge.
The Superior Court’s Decision
The Pennsylvania Superior Court held that the K/I charge was properly dismissed, but the defendant must face trial for the PWID charge. The Superior Court opined that a defendant cannot obtain Double Jeopardy relief for his felony case when his traffic case is resolved. The reason is because of Rule 112. Specifically, because a defendant cannot have a trial for a felony charge in Municipal Court (unless it is a marijuana PWID as previously discussed), Rule 112 is implicated. Therefore, because Rule 112 is implicated, the defendant’s Double Jeopardy rights were not implicated when a defendant resolves his traffic court case. As such, for now, the defendant will have to face trial on his remaining PWID charge. This case is likely to receive review by an en banc of the Superior Court and/or the Supreme Court.
Facing Criminal Charges? We Can Help.
Philadelphia 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, Possession with the Intent to Deliver, 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.
PA Superior Court: Trial Court Properly Permitted Commonwealth to Inform Jury Confidential Informant Had Died
Philadelphia Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Superior Court decided the case of Commonwealth v. Caulk. The court held that the trial court properly permitted the Commonwealth to explain that the confidential informant in the case had died so that the jury would not question why the confidential informant did not testify. The defendant had objected to the introduction of this evidence because defense counsel believed that the jury would likely suspect that the defendant had been involved in the informant’s death.
Commonwealth v. Caulk
On March 21, 2016 and April 20, 2016, Pennsylvania State Troopers Bromberg and Garcia conducted controlled drug purchases from the defendant through a confidential informant. Before the first controlled buy on March 21, 2016, Trooper Bromberg thoroughly searched the informant and his vehicle to make sure there were no secret compartments in the vehicle where he could hide weapons, contraband, or money. Trooper Bromberg gave the informant $4,800 in United States currency, which he instructed the informant to purchase 125 grams of cocaine from the defendant. The informant also had a recording device in his pocket.
The controlled buy took place on Lindbergh Boulevard in Philadelphia. A Jeep with Connecticut license plates pulled behind the informant’s car, and Trooper Bromberg, watching from nearby, recognized the defendant exiting the driver’s side of the Jeep. The defendant entered the passenger’s side of the informant’s vehicle and met with the informant for about one minute before returning to the Jeep. Nobody else approached or was inside the informant’s vehicle. The recording device in the informant’s pocket recorded his conversation with the defendant. The defendant and the informant’s voices could be heard on the recording.
Following the transaction, the informant drove to a pre-arranged location where he met with the troopers. He made no stops and had no contact with anyone else between the controlled drug buy and the post-buy meeting with the troopers. The troopers had the informant under surveillance during the entire trip. At the pre-arranged location, troopers searched the defendant and found a large plastic bag containing cocaine that the informant purchased with the $4,800. The Pennsylvania State Police crime lab determined that the bag contained 124.5 grams of cocaine.
Before the second controlled buy on April 20, 2016, Trooper Bromberg searched the informant’s vehicle to ensure that there were no drugs, contraband, weapons or money on the informant’s person or in his vehicle. Troopers gave the informant another $4,800 with pre-recorded serial numbers. The informant again possessed a recording device. At the last minute, the location of the controlled drug buy changed from Lindbergh Boulevard in Philadelphia to Fifth and Welsh Street in Chester, Pa. The Drug Enforcement Agency performed aerial surveillance in addition to the troopers’ ground surveillance. This entire transaction was videotaped. The video showed the defendant driving a white Mitsubishi and was waiting at the new location for the informant. The informant exited his vehicle and entered the defendant’s vehicle and they drove around and then returned to the new meetup location. Although the conversation was recorded and there was ambient noise, there was no conversation, no phone calls, and no mention of cocaine distribution.
At the conclusion of the meeting, the defendant drove away but was arrested by a Chester police officer. The informant drove away in his vehicle directly to a meeting with the troopers, who recovered a bag containing 124.64 grams of cocaine that the informant purchased with the pre-recorded currency. There was no other money, drugs, or contraband found on the informant’s person or in his vehicle.
The defendant was subsequently charged with two counts of Possession with the Intent to Deliver (hereinafter “PWID”). Prior to trial the Commonwealth sought a continuance which was granted. Shortly after this, the informant was murdered. The defendant filed a motion in limine to preclude any reference to the informant’s death. The trial court denied his motion. During the trial, Trooper Broomberg testified that the informant could not testify because he was deceased. The Commonwealth did not present any evidence concerning the cause of his death. Additionally, the Commonwealth played the various tape recordings and video that was generated during the troopers’ surveillances.
The defendant also testified on his own behalf and denied selling drugs to the informant. Additionally, his attorney argued that the Commonwealth’s case failed without the testimony of the informant. The jury disagreed and the defendant was found guilty of two counts of PWID and sentenced to 100-240 months of imprisonment. The defendant then filed a timely appeal. On appeal, the defendant raised several issues. Only the issue of whether the trial court improperly denied his motion in limine will be addressed in this article.
What is a Motion in Limine?
A motion in limine is a motion that either the defense attorney or prosecutor can file before trial to keep out or introduce certain evidence. Usually, these are only done when a defendant elects to have a jury trial, but they may also be used in bench trials. Defense attorneys will frequently file these before trials because they not only want to keep out harmful evidence, but also they want to know what evidence will actually be presented to the jury. Additionally, defense attorneys file motions in limine to avoid objecting to specific evidence in front of the jury. The reason this is significant is because a defense attorney may not want to give the impression that they are trying to hide something from the jury. As such, this is usually a strategic decision by the defense.
The Superior Court’s Decision
The Superior Court denied the defendant’s appeal. The Superior Court found that the trial court did not abuse its discretion when it denied the defendant’s motion in limine concerning the informant’s death. The reason was because the trial court did not allow the Commonwealth to introduce the cause of his death and thus the defendant’s argument that he was prejudiced was not supported by the record. Additionally, the Superior Court found that the jury could have blamed the Commonwealth for the informant’s absence and this would have unfairly prejudiced the Commonwealth. Because the Superior Court found that the trial court did not abuse its discretion and the Superior Court did not grant any of the defendant’s other arguments, he will not get a new trial and will be forced to serve his sentence.
Facing Criminal Charges? We Can Help.
Criminal Defense Lawyers Demetra Mehta and Zak Goldstein
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.
PA Superior Court: Double Jeopardy Protections Do Not Prevent Multiple Prosecutions for Unrelated but Similar Burglaries and Thefts
Criminal Defense Lawyer Zak Goldstein
The Pennsylvania Superior Court decided the case of Commonwealth v. Jefferson, holding that a defendant is not entitled to Double Jeopardy relief when he pleads guilty to cases that were not part of the same criminal episode as his remaining open cases. This is not a surprising decision given the facts of these particular cases. Nonetheless, these cases highlight another tool that defense attorneys can use to fight the charges against their clients.
Commonwealth v. Jefferson
The defendant had multiple cases involving theft and burglary-related charges. The facts of each one will be discussed in the subsequent paragraphs. The first case occurred on October 19, 2015. On that date, a witness observed the defendant and another individual in the backyard of a home located on Rittenhouse Street in Philadelphia. The witness, who lived in the neighborhood and knew the homeowner, did not recognize the two men. After a brief conversation, the defendant and the other individual entered a vehicle and left. The witness called 911 to report the incident and provided the number on the license plate to the authorities. Additionally, upon inspection of the home, the homeowner noticed that there were pry marks along the metal frame of the door. The defendant did not have permission to be inside the homeowner’s residence. The defendant was subsequently charged with attempted burglary, criminal mischief, and conspiracy.
The second case involved an incident that took placed on Mansfield Avenue in Philadelphia. The resident of the property in question observed the defendant and another individual break into this home. This resident saw his basement door open which caused him to run outside to flag down a police officer. After finding an officer, he jogged back home and observed the defendant running across the awnings of his home as well as nearby buildings. He also noticed that a black SUV (the same car that was used in the Rittenhouse burglary), which was later to be determined stolen, was parked in the driveway of his residence. The defendant was charged with two separate dockets: the first was burglary, criminal mischief, and other charges, the second docket was for receipt of stolen property, and unauthorized use of a motor vehicle.
While the defendant was awaiting trial on the above cases, he was subsequently charged with six separate dockets with one count of criminal mischief at each case. These charges stemmed from the previously mentioned flight from the Mansfield Avenue residence which resulted in the defendant damaging six awnings during his escape. This resulted in thousands of dollars in damage to these residences. The defendant pleaded guilty to all six of these criminal mischief cases.
After the defendant pleaded guilty to these six other cases, he filed motions seeking to bar prosecution of the more serious burglary cases. The defendant argued that prosecution was barred by 18 Pa.C.S. § 110(1)(ii) which prohibits subsequent prosecutions for cases that arise from the same criminal episode. The trial court denied his motion, with the exception of the criminal mischief charge in the Mansfield burglary case. The defendant then filed an interlocutory appeal arguing that the trial court improperly denied his motion to dismiss the remaining cases against him. On appeal, the Commonwealth conceded that the Mansfield burglary should be dismissed pursuant to Rule 110 because the flight from the burglary, which damaged the awnings, was part of the same criminal incident. However, the Commonwealth argued that the stolen car and the Rittenhouse burglary cases should not be dismissed because they were not related to the Mansfield burglary..
What is Rule 110?
Rule 110 is Pennsylvania’s statute that prohibits multiple prosecutions that arise from the same criminal episode. In other words, it is the codified version of both the Pennsylvania and United States Constitutions’ prohibition against Double Jeopardy. There is a four-part test to determine whether subsequent prosecution should be barred:
The former prosecution must have resulted in an acquittal or conviction;
The current prosecution is based upon the same criminal conduct or arose from the same criminal episode as the former prosecution;
The prosecutor was aware of the instant charges before the commencement of the trial on the former charges; and
The current offense occurred within the same judicial district as the former prosecution.
If all of these elements are met, then the case should be dismissed. As a practical matter, attorneys usually only litigate the second element because the other elements are easy to determine whether they have been satisfied. In the instant case, the Commonwealth only argued that the second element had not been satisfied, meaning the Commonwealth argued that the incidents were unrelated.
The Superior Court’s Decision
The Superior Court denied the defendant’s appeal. The Superior Court held that there was no logical relationship between the Rittenhouse burglary case, the stolen car, and the awnings cases. The awnings cases were the result of the defendant fleeing the scene from the Mansfield burglary. As such, it had no connection to the Rittenhouse burglary. Further, the Superior Court rejected the defendant’s argument that the use of the same stolen car in both burglaries connected the incidents for purposes of triggering double jeopardy protections. Therefore, the defendant will have to face trial for both the Rittenhouse burglary and the stolen car cases.
Facing criminal charges? We can help.
Criminal Defense Lawyers Demetra Mehta and Zak Goldstein
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.