Philadelphia Criminal Defense Blog

Zak Goldstein 9/23/21 Zak Goldstein 9/23/21

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

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.

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Zak Goldstein 9/8/21 Zak Goldstein 9/8/21

PA Supreme Court: Parent Does Not Commit Endangering Welfare of a Child by Allowing Child to Ride in Uber Without Car Seat

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Howard, holding that a person does not commit the crime of Endangering the Welfare of a Child (“EWOC”) by allowing her child to ride in a ride-share without a car seat. This decision is significant because so many people rely on Ubers, Lyfts, Taxis, and other ride-sharing services. It should be noted that a parent can still be found guilty of EWOC if there are other facts presented (i.e. the parent was aware that the driver had been driving unsafely). However, a defendant cannot be found guilty simply because their child was not in a car seat while riding in a ride-sharing car even if the car later gets into an accident.

Commonwealth v. Howard

The defendant was riding in a taxi with her child. While driving near Pittsburgh, Pennsylvania, the taxi was involved in a three-vehicle accident. Specifically, the taxi driver rear-ended the car in front of her which then hit another vehicle. It should be noted, there was no evidence to suggest that the driver was driving in an unsafe or reckless manner before the accident occurred. At the time of the accident, the defendant was sitting in the front passenger seat of the vehicle and the child was sitting in the back seat, on the passenger side. There was no car seat in the vehicle and none of the occupants were wearing seatbelts. Thankfully, none of the individuals involved sustained serious injuries.

A Police Officer then arrived on scene. While speaking with the defendant, the defendant told the officer that “she had feared that her daughter would fly from the back seat and hit the windshield.” Based on this conversation and the above-mentioned facts, the officer arrested the defendant. The defendant was later charged with reckless endangerment of another person (“REAP”) and EWOC. The defendant elected to proceed by a bench trial. At the conclusion of the trial, the defendant was convicted of both charges. The trial court imposed a sentence of one-year probation for the crime of EWOC and no further penalty for the crime of REAP. The defendant then filed a timely appeal to the Pennsylvania Superior Court arguing that the evidence was insufficient to sustain her convictions.

The Pennsylvania Superior Court’s Opinion

A divided Pennsylvania Superior Court reversed her conviction for the crime of REAP finding that her actions did not rise to the level of criminal recklessness. However, the Superior Court affirmed her conviction for EWOC. In making its decision, the Superior Court reviewed the EWOC statute. In its analysis of the statute it found that a defendant is guilty of EWOC when:

1) he or she is “aware of his or her duty to protect the child; 2) is aware that the child is in circumstances that threaten the child’s physical or psychological welfare; and 3) has either failed to act or has taken actions so lame and meager that such actions cannot reasonably be expected to protect the child’s physical or psychological welfare.”

Based on its review of the statute and the facts of the defendant’s case, the Superior Court found that because the defendant knew the vehicle did not have a car seat and “knowingly failed to fasten her daughter’s seatbelt,” she was consequently guilty of EWOC. Further, the Superior Court found that EWOC does not require that a child be in imminent threat of physical harm, but “only requires proof of circumstances that could threaten the child’s physical or psychological welfare.” Undeterred, the defendant then filed a petition of allowance of appeal with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the defendant’s case. On appeal, the Pennsylvania Supreme Court agreed to decide whether a parent riding in a taxi (or using a similar ride-sharing service) without a car seat is sufficient to support a conviction for EWOC.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the defendant’s conviction. The Pennsylvania Supreme Court began its analysis by reviewing the EWOC statute. Based on its analysis of the statute, the Court stated that to convict a defendant of EWOC the Commonwealth must prove that a parent was aware that their conduct endangered the welfare of the child and it was not sufficient to prove that a parent is merely aware of their duty of care to their child. Further, the Court must determine whether the parental conduct at issue “offends the common sense of community and the sense of decency, propriety, and the morality which most people entertain.”

The Pennsylvania Supreme Court found that the defendant’s actions did not offend “the common sense of community.” In the instant case, there was no evidence that the driver was engaged in unsafe or reckless driving prior to rear ending the other car. Further, the Commonwealth presented no evidence (other than the absence of a car seat) that the defendant’s conduct in allowing her child to drive in a taxi without a car seat endangered the welfare of her child. Finally, the Pennsylvania Supreme Court reviewed the Motor Vehicle Code and found that the defendant could only have been found guilty of a summary offense if she had actually been driving the vehicle. The Pennsylvania Supreme Court therefore reversed her conviction for the first-degree misdemeanor charge given that the Pennsylvania General Assembly had already deemed this conduct to be a summary offense at worst.

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Zak Goldstein 9/2/21 Zak Goldstein 9/2/21

PA Superior Court: Exposing Genitals in Public Place Sufficient for Indecent Exposure Conviction Even If No One Around

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Rudolf, holding that there is sufficient evidence to convict a defendant of indecent exposure when there is evidence that a defendant exposed his or her genitals in a public place. This decision seems somewhat surprising as the statute seems to require that there at least be a risk that someone else would encounter the person before criminal liability should attach.

Commonwealth v. Rudolf

A Lower Windsor Township Police officer was on patrol in a marked police car. At approximately 4:00 AM, he drove past an area with a large parking lot, boat launch, park, and a children’s playground. The officer saw the defendant standing by himself in the playground wearing a bright yellow sleeveless shirt and no pants. He was able to see the defendant’s genitalia. The officer then got out of his vehicle and began to move his spotlight toward the defendant. The defendant noticed the officer and then ran behind a tree. The officer then began to yell at the defendant. Eventually, after an unknown period of time, the defendant sat down at a picnic table and appeared to be putting on shorts.

The officer then began speaking with the defendant. The defendant told the officer that he was in the park to work out, but the officer did not observe any fitness equipment nearby. However, the officer did notice that the defendant had a giant bottle of lotion with him. The officer then told the defendant to leave the area. However, about a half an hour later the same officer saw the defendant about 600 yards away. The officer again told the defendant to leave the area. Later on, the defendant was arrested and charged with open lewdness and indecent exposure.

The defendant elected to proceed by jury trial. At trial, the above facts were placed into the record. The defendant testified on his behalf at trial. He testified that he drove to the playground to work out. Specifically, he would use “the monkey bars for pull-ups,…sit-ups, and leg raises, and that kind of stuff.” As he began to change his shorts, he noticed a light coming rom a car about a half a mile away. Because he was in a “compromising situation” he hid behind a bush. The defendant also stated that he was not naked the second time he saw the officer, but instead was wearing “pretty skimpy” running shorts. Additionally, the defense called a private detective who photographed the views of the playground at 4:00 AM and testified that it was incredibly dark and difficult to capture anything on film.

At the conclusion of the trial, the jury returned a verdict of guilty for the charges of open lewdness and indecent exposure. The case proceeded immediately to sentencing where the trial court imposed 12 months’ probation for the charge of open lewdness and a concurrent sentence of 24 months’ probation for indecent exposure. The defendant did not file any post-sentence motions. The defendant’s attorney then withdrew from the case. The defendant then filed a pro se notice of appeal. The defendant later hired an attorney to represent him on appeal. The defendant raised two issues on appeal. For purposes of this blog, only the issue of whether the evidence was sufficient to support his conviction for indecent exposure will be addressed.

What is Indecent Exposure?

18 Pa. C.S.A. § 3127 is the statute that governs the crime of indecent exposure. It states:

(a) Offense defined.--A person commits indecent exposure if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm.
(b) Grading.--If the person knows or should have known that any of the persons present are less than 16 years of age, indecent exposure under subsection (a) is a misdemeanor of the first degree. Otherwise, indecent exposure under subsection (a) is a misdemeanor of the second degree.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court affirmed the defendant’s conviction for indecent exposure. On appeal, the defendant argued that the Commonwealth failed to meet its burden because it did not establish that other persons were present or that he knew or should have known that his conduct was “likely to offend, affront, or alarm.” Specifically, the defendant argued that because where he was changing was “incredibly dark” and there was no one present other than the police officer that he had “no reason to believe that such conduct would likely to offend, affront, or alarm anyone.”

The Superior Court was not persuaded by this argument. The Superior Court reviewed 18 Pa. C.S.A. § 3127 and found that once the Commonwealth has shown that the act occurs in a public place, then it is not required to show that other people were present or that the actor knew or should have known that their conduct was likely to offend, affront, or alarm. In the instant case, it was undisputed that the defendant was in a public playground. Therefore, because the defendant’s actions took place in a public setting, the Commonwealth did not have to prove that he knew or should have known that his conduct was likely to offend, affront, or alarm. The defendant also did not get relief on his other claim. Consequently, the defendant’s convictions will stand and he will be forced to serve his probation sentence.

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Zak Goldstein 8/24/21 Zak Goldstein 8/24/21

PA Superior Court: Consecutive Probation May Not Be Revoked While Defendant Still on Parole

The Pennsylvania Superior Court has decided the case of Commonwealth v. Simmons, holding that a trial court may not anticipatorily revoke a defendant’s probation sentence. This decision is a huge win for defendants. As a practical matter, if a defendant receives a jail sentence, they often receive a probation sentence that runs consecutive to their jail sentence. When they are released from prison, they are technically on parole, but have not yet begun serving their probation sentence. Simmons holds that if a defendant violates his or her parole, they cannot also be punished for violating their probation at the same time because they have not yet begun serving the probation sentence. Consequently, the worst-case scenario for a defendant is to receive the balance of their back time for their violation. This is significant because as a practical matter this means a defendant can usually only receive a county sentence for their violation, instead of a state sentence.

Commonwealth v. Simmons

In 2017, the defendant pleaded guilty to firearms not to be carried without a license and carrying firearms on the public streets of Philadelphia. The defendant was subsequently sentenced to a term of six to 23 months in jail, followed by three years’ probation. At some point, the trial court amended his sentence to have the probation sentence run concurrently to this jail sentence. It is unclear when this occurred, but it occurred more than 30 days after his sentencing hearing.

A few months after his sentencing, the defendant was arrested again and charged with firearms not to be carried without a license and possession of a controlled substance. The arrest occurred while the defendant was on parole, but before the term of the probation of his case had begun. On his new case, the defendant pleaded guilty to firearms not to be accrued without a license and possession of a controlled substance. The defendant was sentenced to six to 23 months’ incarceration, followed by three years’ probation. As a result of these new convictions, the judge on his original case anticipatorily revoked his probation and sentenced him to a term of two and one-half to five years in prison.

The Defendant’s Appeal

The defendant filed a timely appeal. The defendant argued that the trial court erred when it found that he had violated a condition of his probation because it had not yet begun. In other words, the defendant argued that he could not have violated his probation when his probation had not officially started. Additionally, the defendant argued that the trial court illegally modified his sentence, as the trial court did not have jurisdiction to modify his sentence more than 30 days after its imposition.

Initially, the defendant was unsuccessful and the Pennsylvania Superior Court denied his appeal. Undeterred, the defendant filed for an application for re-argument en banc and the Pennsylvania Superior Court agreed to rehear his appeal.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court’s decision. In making its decision, the Superior Court reviewed the relevant sentencing statutes governing the imposition and revocation of an order of probation. It also reviewed prior appellate decisions concerning these issues. In its analysis, the Superior Court determined that a trial court is permitted to enter an order of probation and that it can impose this order consecutively or concurrently. Additionally, a trial court is permitted to terminate a defendant’s supervision at any time, but it can only revoke an order of probation when there is proof that the defendant violated the specified conditions of his probation. Finally, the Superior Court also found that prior precedent permitted trial courts to anticipatorily revoke a defendant’s probationary sentence.

As a preliminary matter, the Superior Court found that the trial court improperly changed the probation tail on the defendant’s sentence to run concurrently to his incarceration sentence from consecutively. Next, after reviewing the statutes and the relevant case, the Superior Court held that the case law that allowed anticipatory revocations of probation was “incorrect” and that they “contravene[d] the plain language of the relevant statutes.” The Superior Court stated that “under the Sentencing Code, a sentence of total confinement and a consecutive order of probation may not be aggregated and viewed as one.” Therefore, a defendant cannot be found to violate the terms of his probation before his probation begins.

So what does this all mean? The easiest way to explain it is to use the defendant’s case. Remember, on his first case, the defendant received a sentence of six to 23 months’ incarceration, followed by three years’ reporting probation. When the defendant picked up his new case, he was on parole and had not begun his probation sentence. Consequently, because of the Superior Court’s decision, the worst punishment he can now receive is the balance of his back time (i.e. the 23 months minus how much time he has served in jail). In the instant case, because the defendant was illegally sentenced (and because he received a sentence that exceeded his original sentence), he will get a new sentencing hearing. Had he been found in violation once the probation started, he would have been facing the maximum on the charge for which he was on probation. For an F3, that would be up to seven years in state prison.

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