Unlawful Possession of a Concealed Firearm Requires Intentional Concealment

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

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.  

PA Supreme Court: Parole Agents May Frisk You Even If You Are Not On Parole

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Mathis, holding that a parole agent may detain and frisk a non-parolee visitor to the parolee’s home while performing a routine home inspection if the parole agent acts on reasonable suspicion that the visitor is engaged in criminal activity and armed.

Commonwealth v. Mathis - Can a Parole Agent Search Someone Who Is Not On Parole During a Routine Home Visit? 

In Mathis, parole agents conducted a routine check of a parolee’s home which was located in a high crime area in Dauphin County. When they arrived, they immediately recognized the strong odor of marijuana throughout the home. As they walked through the house, they observed the defendant, Mathis, receiving a hair cut from the parolee who they were there to check up on. The parolee identified the parole agents to the defendant, and the agents then questioned the parolee as to why the house smelled like marijuana. The agents also found an ashtray full of marijuana roaches in the front room, but they did not see anyone smoking marijuana. 

While one of the agents questioned the parolee, the other agent monitored Mathis. Mathis repeatedly got up from his chair and walked to the kitchen, apparently checking text messages on his cell phone. The parole agents asked him to stop using the cell phone while they were there because he seemed nervous. They asked him to leave until they finished speaking with the parolee. Mathis began to leave, and as he gathered his belongings, one of the agents noticed that he picked up his jacket as if holding it up to his body like a football or a baby. Mathis appeared to try to put his body in between the agents and the jacket, and he continued to hold it in a strange manner. The agents also noticed a bulge coming from the jacket which was roughly the size and shape of a gun. 

The agents became concerned for their safety, so they asked Mathis if they could pat him down. He refused, but one of the agents reached out and touched the jacket. The agent immediately felt what he believed to be a firearm. They then handcuffed Mathis, patted him down, recovered a bag of marijuana from between his feet, and recovered a handgun from the jacket. Because Mathis was prohibited from possessing a firearm due to his prior criminal record, the agents called the police. The police arrived, recovered the gun, and charged Mathis with gun charges, marijuana charges, and possessing drug paraphernalia.

Motion to Suppress

Mathis filed a pretrial motion to suppress the gun, arguing that the parole agents had no right to search him because he was not on parole. The trial court denied the motion to suppress, found him guilty of drug possession and gun possession, and sentenced him to thirty-two to sixty-four month’s imprisonment. Mathis appealed, and the Superior Court affirmed.

The Pennsylvania Supreme Court reviewed the case and upheld the decision of the Superior Court. The Court concluded that parole agents may conduct a Terry frisk under these circumstances for their own safety. Although parole agents may not act as police officers with respect to non-offenders or private citizens, they do have the right to protect themselves.

Parole agents are required to supervise offenders in part by conducting routine, unannounced home visits, thus risking exposure to a variety of potentially dangerous unknowns. Interactions with non-offenders are often going to occur during home visits, and parole agents have an obligation to make sure that the parolee is not living or associating with people who have been convicted of certain criminal offenses.

Parole agents are also legally classified as “peace officers,” giving them the power to make a lawful arrest upon reasonable suspicion of a felony and the authority to use deadly force to protect themselves and carry firearms. Because a parole agent has the authority to use deadly force for the protection of himself or herself and others, the agent has the authority to prevent the need for deadly force in the first place by conducting a Terry frisk when necessary.

Finally, the Court noted that the purpose of the Terry frisk is not to conduct an investigation or find evidence; instead, it is merely to check for deadly weapons so that the officer can do his or her job without fear of bodily injury. Accordingly, the Supreme Court concluded that a parole agent may conduct a frisk for weapons so long as the agent has reasonable suspicion to do so. Reasonable suspicion requires “specific and articulable facts” that criminal activity is afoot, and the authority to frisk also requires that the officer or agent have reason to believe that the suspect is armed and dangerous. 

There Are Still Limits On Probation and Parole Searches

Unfortunately, the Mathis Court's decision serves to eliminate important privacy rights for anyone who associates with someone who is on state parole. If someone has the bad luck to be present at a parolee's residence when agents show up to conduct an unannounced search, that person will now be at risk of being searched by parole agents despite the fact that they are not even on parole. This is particuclarly true for anyone who lives with someone who is on state parole; that person will now have substantailly reduced privacy rights just by virtue of who they live with. However, some protections remain in that the parole agents are still required to have reasonable suspicion and cannot conduct a search for general investigatory purposes. Therefore, motions to suppress will likely still be brought in many of these cases.

Facing criminal charges? We can help.

Goldstein Mehta LLC Criminal Defense Attorneys

If you are facing criminal charges, we can help. Our Philadelphia Criminal Defense Lawyers have successfully defended thousands of cases. We offer a free, 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding defense attoreny today. 

Feds Limit Definition of Fugitive of Justice and Allow More People with Arrest Warrants to Purchase Firearms

Criminal Defense Lawyer Zak T. Goldstein, Esq.

Both Pennsylvania and United States law make it illegal for a fugitive from justice to purchase or possess a firearm. In order to enforce this prohibition, the FBI maintains a database of people who are ineligible to purchase a firearm that includes people who the FBI believes to have active arrest warrants. Until recently, the ATF and the FBI used different criteria in determining who met the definition of a fugitive from justice. The FBI has traditionally used a broader definition which included anyone with an active arrest warrant. The ATF, however, adopted a more limited reading of the phrase and defined a “fugitive from justice” as a person who both had a warrant for their arrest and traveled to a different state from the state in which the warrant was issued. Thus, the use of the ATF’s definition would result in fewer people being included in the Government’s database of prohibited persons.

Recently, the Department of Justice adopted the ATF’s more limited reading of the term and ordered that the FBI remove anyone who has not crossed state lines from the database. Accordingly, the FBI removed tens of thousands of people with active warrants for their arrest from the database, and those people may now be able to pass a federal background check when attempting to purchase a gun. This also means that those people will no longer be prohibited by federal law from purchasing or possessing a gun unless they meet some other criteria which would lead to a prohibition on firearms ownership.

Although this change in definition will allow many people to successfully purchase a firearm, some will remain ineligible to actually possess a firearm. For example, federal law makes it illegal to sell a gun to someone who is ineligible to possess the gun under the state law in effect at the location of the sale. Pennsylvania law also makes it illegal for a fugitive from justice to possess a gun, and Pennsylvania courts may not decide to follow the same definition as the Justice Department. Pennsylvania appellate courts do not appear to have defined the term fugitive from justice for purposes of the state version of the Uniform Firearms Act, but the courts have suggested that the definition includes the requirement that someone leave another state for purposes of extradition procedures. Further, a governmental agency’s interpretation of a statute is not always binding on the courts, and courts could conclude that fugitive from justice has the broader meaning initially taken by the FBI. Finally, federal law also makes it illegal for a person with pending criminal charges which are punishable by more than a year in prison to possess a firearm.

The change in definitions has resulted in the removal of tens of thousands of people from the FBI’s database, but it does not necessarily mean that all of the people removed are eligible to possess a firearm. This means that if you may have an active arrest warrant, you should speak with an attorney before attempting to purchase a gun even if you have not crossed state lines. You should also speak with an attorney about clearing up the warrant. Likewise, if you are facing federal or state charges alleging that you possessed a gun illegally because you were a fugitive from justice, you should contact a criminal defense lawyer immediately as the government may now have additional difficulty in proving those charges.

Award-Winning Philadelphia Criminal Defense Lawyers for Gun Charges and Weapons Offenses

Goldstein Mehta LLC Criminal Defense Lawyers

If you are under investigation for a crime or facing criminal charges, we can help. Our award-winning Philadelphia criminal defense attorneys have successfully defended thousands of clients. We offer a free, 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to speak with one of our experienced and understanding defense lawyers today.

Source: Washington Post

Can My Probation Officer Search My Cell Phone?

Probation and Parole Searches of Cell Phones

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Murray, rejecting the defendant’s challenge to his conviction on corpus delicti grounds and holding that a probation officer or parole agent may search a probationer’s cell phone without a search warrant.

Commonwealth v. Murray

In Murray, the defendant was charged with possession of a firearm by a prohibited person in violation of 18 Pa.C.S. § 6105. Murray’s Pennsylvania State Parole Agent became suspicious that Murray may have been involved in criminal activity after the Agent visited Murray’s group home for a home visit and Murray was not present. When Murray next reported to the parole office, the agent asked him about his living situation and why he had moved without permission. Murray explained that he had been threatened by a housemate with a gun. Murray told the agent that he wrestled the gun away from the housemate and gave it to another acquittance.

Because Murray admitted to possessing a firearm, the agent took him into custody and proceeded to read the text messages on his cell phone. The agent found two incriminating text messages which had been sent right before Murray reported. One told a friend: “Yo, Kel if you didn’t hear from me by tonight I am locked up. So, my stuff is over 1247 West Huntingdon Street.” The other stated: “And the thing I was telling you about that I took from the bully is in the bathroom right under the tub.”

Of course, parole agents went to search the group home at 1246 West Huntingdon Street and found a gun under the tub in the bathroom. The agents then called the police and gave the gun to the police. The police then charged Murray with possessing a firearm as a felon.

Murray moved to exclude the statements made to the parole agent regarding the gun and also moved to suppress the results of the warrantless search of his cell phone. The trial court denied both motions. Murray was convicted of the gun charge and sentenced to 4.5 – 9 years in prison.

On appeal, Murray raised two main issues. First, he argued that the Commonwealth failed to satisfy the corpus delicti rule because it failed to show that a crime had been committed prior to introducing the statements made by Murray. Second, he argued that the parole agent should have been required to get a warrant before searching his cell phone.

The Corpus Delicti Rule

The Superior Court rejected both arguments. First, the Superior Court rejected the corpus delicti challenge. The corpus delicti rule is a rule of evidence which prohibits the prosecution from introducing an incriminating statement against the defendant unless the prosecution can first show that a crime has occurred. The prosecution does not have to prove the crime beyond a reasonable doubt, but it must show that the evidence is more consistent with a crime than with an accident. The corpus delicti, latin for “body of the crime,” may be proven by circumstantial evidence.

Here, the parole agents found a gun in a group home where Murray and numerous other parolees lived. The gun was hidden inside a plastic bag under a bathtub in the only bathroom in the boarding house. Therefore, the Court concluded that because the gun was hidden in such a way, it was more likely than not that the person to whom the gun belonged possessed it illegally. Accordingly, Murray’s statement about possessing the gun did not violate the corpus delicti rule.

Probation Officers May Search a Cell Phone Without a Warrant

Second, the Superior Court rejected Murray’s challenge to the warrantless search of his cell phone. In many situations, the police may search a person’s belongings when they take that person into custody as part of an arrest. This is known as the search incident to arrest exception to the warrant requirement. For many years, this exception permitted the police to search an arrestee’s cell phone. Recently, in Riley v. California, the United States Supreme Court held that in general, police must obtain a warrant before searching a cell phone. The Superior Court, however, distinguished Riley by finding that parolee’s and probationer’s have a reduced expectation of privacy. Riley did not involve the cell phone of a suspect who was on probation or parole. Because probation officers and parole agents may conduct a search of a probationer’s house with reasonable suspicion and without having to obtain a warrant, the Superior Court held that the same rule should apply to a cell phone. Thus, a probation officer or parole agent must only have reasonable suspicion in order to search a cell phone.

The Court concluded that the agent has reasonable suspicion to search the phone because Murray admitted to possessing the firearm and giving it to someone else. The agent had reasonable suspicion that the phone could contain text messages discussing the gun or photos of Murray with the gun. Therefore, the Court affirmed the trial court’s decision to deny the Motion to Suppress.

Philadelphia Criminal Defense Lawyers for Gun Charges

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

If you are charged with a VUFA offense, you need an attorney who has the knowledge and expertise to fight your case. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.