Philadelphia Criminal Defense Blog

Zak Goldstein 11/3/19 Zak Goldstein 11/3/19

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.

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.

Zak Goldstein 10/20/19 Zak Goldstein 10/20/19

Attorney Goldstein Wins Dismissal of Gun Charges at Preliminary Hearing

Philadelphia criminal defense attorney Zak T. Goldstein, Esquire recently won the full dismissal of gun charges at the preliminary hearing in the case of Commonwealth v. A.V.

In that case, A.V. was charged with illegal possession of a firearm on the streets of Philadelphia, possession of a concealed weapon without a permit, and possessing an instrument of crime after Philadelphia police officers arrested him for allegedly starting to engage in a drug transaction. Officers testified that while on routine patrol, they saw A.V. and another man standing in the street. A.V. received money from the other man and then went into a nearby van. The officers could not see what he was doing in the van, and someone down the block started to yell police. At that point, the other man walked into a corner store, and A.V. began to walk down the sidewalk.

Police stopped the other man in the corner store, arrested A.V., and then searched the van. They found money in the front of the van and a gun hidden under some clothes in the back. They also found a quantity of drugs in the street, but they did not find any drugs on the man with whom they believed A.V. had been engaging in a drug transaction.

A.V. retained Attorney Goldstein for the preliminary hearing. Attorney Goldstein cross-examined the officers on the fact that they had not seen A.V. provide the other person with any drugs, the van was not registered to him or linked to him by any paperwork, neither man had actually run away, the officers had not seen A.V. drop any drugs on the ground, and the gun that they recovered had been hidden under clothes in the back of the van such that someone could go into the vehicle without even realizing that the gun was there.

Given the fact that A.V. never actually possessed the gun, the ties to the van were tenuous at best, A.V. did not run or have any drugs on him, and police had done no forensic testing to see if A.V.'s DNA or fingerprints were on the gun, the Municipal Court judge agreed that the Commonwealth simply failed to prove that A.V. actually or constructively possessed a firearm without a license on the streets of Philadelphia. Accordingly, the judge dismissed all of the charges.

Facing criminal charges? We can help.

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, Theft, 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.

Zak Goldstein 9/25/19 Zak Goldstein 9/25/19

What is the penalty for getting arrested for drugs or guns while on state parole in Pennsylvania?

Pennsylvania State Parole Violations

The impact of new criminal charges for a person who is on state parole in Pennsylvania can be very confusing for the defendant and his or her loved ones. In general, a new arrest while under state parole is going to result in at least some amount of jail time because the parole board almost always lodges a parole detainer following a new arrest for a misdemeanor or felony criminal charge. Additionally, once the parole board lodges the detainer, it is usually not possible to get the detainer lifted because the judge who sentenced the defendant to prison time does not have the authority to have a state detainer lifted. Instead, only the parole board can lift the detainer, and the board usually does not do this unless the defendant has served the maximum sentence (“maxed out”).

The parole board can impose severe consequences for a conviction for a new offense. This can include both taking away the parolee’s “street time,” meaning the time served on parole would not count towards the sentence, and requiring the parolee to serve a state parole hit or additional time in state prison. Therefore, if you or a loved one are facing new criminal charges while on state parole, it is important to retain a defense attorney who has the skill and expertise to resolve the case in a timely manner and in a way that minimizes the parole consequences. It is important to retain a defense attorney who is well-versed in what those potential consequences could be. In some cases, a defendant on state parole may simply need to do everything possible to win the case in order to avoid a set back, and in others, it may be possible to negotiate a plea deal that does not result in a significant amount of additional jail time or that reduces the amount of time that the parole board is likely to impose.

Pennsylvania State Parole Set Backs for New Drug Charges

Deciding whether to go to trial or accept a plea deal is an extremely important decision for every criminal defendant. This decision can be even more difficult for a defendant who is on state parole because the defendant has to consider both the sentence that he or she would be facing on the new case as well as the sentence that the state parole board would be likely to impose. Fortunately, the parole board provides guidelines as to what kind of sentence a parolee can expect to serve in the event of a parole violation so that the system is not totally arbitrary.

With respect to a new drug charge, the length of potential jail time for the parole violation depends on the type of the drug charge and the gradation of the offense.

The regulations provide that a drug felony with a maximum of 15 years, such as the sale of heroin, could lead to a 24 to 36 month sentence for the parole violation.

A drug felony with a maximum of ten years in prison, such as the sale of cocaine or crack, has a presumptive range of 18 months to 24 months in prison for the violation.

A drug felony with a maximum of five years, such as the sale of marijuana, has a shorter presumptive range of 9 to 15 months in state prison.

Misdemeanor narcotics offenses are punished less severely. A misdemeanor with a maximum of 2 or 3 years is likely to lead to a 6 to 12 month hit, while a misdemeanor with a maximum of one year is likely to lead to a 3 to 6 month hit.

It is important to note that these presumptive ranges are simply advisory. It is always possible that the parole board could impose a longer or shorter sentence for a direct violation of state supervision.

Pennsylvania State Parole Hits for Gun Charges

The parole board also provides a presumptive setback for a Violation of the Uniform Firearms Act (“VUFA charge” or gun charge). According to the regulations, any defendant who is on state parole and is convicted of illegally possessing a firearm is likely to face an additional 18 months to 24 months in state prison in addition to whatever sentence the defendant receives on the new case. Therefore, a new gun charge arrest can be an extremely serious situation for a parolee.

Can I get a state parole detainer lifted?

In general, you cannot get a state parole detainer lifted. In most cases, the defendant will remain in jail until the new case is resolved. If the defendant serves the maximum sentence, then the parole board would likely lift the detainer because the defendant would no longer be on parole.

Can I get a county probation detainer lifted?

It is important to note that this discussion applies only to state parole detainers. County probation and state-supervised probation is very different. These presumptive ranges do not apply to potential probation violations. Instead, the judge which sentenced the defendant to probation would decide what sentence to impose in the result of a direct violation, and that sentence is not limited by any guidelines. At the same time, the judge may lift a probation detainer if the defendant’s lawyer files a motion to have the detainer lifted.

Can I get a county probation detainer lifted if I am being supervised by the state?

In some cases where a defendant receives a state sentence followed by a period of county probation, the judge may order that the state parole board supervise the defendant once the defendant is released and on probation. In that case, the defendant would be supervised by a state agent, but the judge would still retain jurisdiction to decide the penalty for a violation. The judge would also still have the authority to lift a detainer.

What should I do if I’m arrested for a new charge and am on state parole?

You should retain an experienced criminal defense lawyer who can give you the best possible chance to win your case at trial, preliminary hearing, or through a motion to suppress, or reduce the potential parole consequences through negotiations. 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, PWID, 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.

Demetra Mehta 8/12/19 Demetra Mehta 8/12/19

Attorney Mehta Wins New Trial For PCRA Client Serving 20-Year Illegal Gun Sentence

Philadelphia criminal defense attorney Demetra P. Mehta, Esquire recently won a new trial for her client in the case of Commonwealth v. C.F.

C.F. had been sentenced to 10 to 20 years of incarceration following a jury trial for gun possession charges. However he will now be given a new trial following a successful challenge of his conviction through the Post-Conviction Relief Act.

PENNSYLVANIA’S POST-CONVICTION RELIEF ACT

Pennsylvania’s Post-Conviction Relief Act allows petitioners to challenge their conviction for a number of reasons. Generally, PCRAs take place at the conclusion of a direct appeal if the direct appeal has been unsuccessful and addresses trial counsel’s ineffective assistance. Petitioners may also use the PCRA when the law has changed retroactively, for the discovery of new evidence which would have changed the outcome at trial or the decision to enter into a plea deal, and to test DNA evidence that was previously untested. The rules governing the PCRA are not simple, the statute is complicated and there are a number of procedural hurdles that often condemn a petition to failure with no regard as to the merits of the claim.

In this case, C.F. had gone to trial on a gun possession charge while represented by different counsel. The facts at trial were as follows:

While at home, he and his wife got into an argument that was loud enough that it attracted the attention of neighbors. A neighbor actually came over to the house to investigate and would later testify that she saw C.F. with a gun. Once the fight was over, C.F. left his home and was confronted by the police a short time later out in the street.

At trial, the neighbor testified that she had seen C.F. with a firearm. This witness also had her own Federal drug possession case at the time of C.F.’s arrest, but it had been resolved by time of trial. A gun had been recovered in the general area at the time of C.F.’s arrest, but there was no forensic evidence to link C.F. to that firearm.

C.F.’s wife testified that C.F. did not have a gun the day of their argument and his arrest. There was an additional witness that was not called because the trial attorney did not reach out to that witness. This witness was also present on the day of the argument, but between C.F.’s arrest and trial, the witness had joined the military and was out of the state of Pennsylvania.

C.F.’s trial attorney testified at the PCRA hearing that he did not subpoena this witness because he did not think she could come to court because she was out of state and in the military. At that same hearing, the witness testified that she had made her command aware of the situation and only needed a subpoena to get leave to come to the trial.

In its ruling, the PCRA court concluded that the witness was available and credible and, had she been subpoenaed, that her testimony may have changed the course of the trial. The court additionally ruled that the trial attorney had been ineffective for not subpoenaing the witness.

PCRAs are highly technically and require an experienced attorney who will look at the record and put forward your best chance to overturn a conviction. To do, this you need someone who has filed PCRAs in the past and had success with them.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

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 at trial and on appeal. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, VUFA, PWID, 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.