Philadelphia Criminal Defense Blog

Zak Goldstein 12/25/19 Zak Goldstein 12/25/19

PA Superior Court: Constructive Possession Allows for Firearms Conviction Even When Firearm Not Immediately Accessible

The Pennsylvania Superior Court has decided the case of Commonwealth v. Gomez, affirming the defendant’s conviction for gun charges even though the gun was not on him and was not immediately accessible to him because it was in a locked safe. The Court also affirmed the defendant’s conviction for receiving stolen property with respect to the firearm, which had been reported stolen, because it found that the circumstances showed a guilty conscience on the part of the defendant. This second part of the holding is important because it highlights the fact that mere possession of stolen property, including a gun, cannot support a conviction for theft or receiving stolen property. Instead, a defendant must have knowledge that the property was stolen.

Commonwealth v. Gomez

The defendant was stopped in Lancaster County, Pennsylvania while operating his vehicle. After he was stopped, he repeatedly refused to provide his license, registration, and insurance information. The defendant was not the sole occupant in the car as there were two other individuals in the car with him. According to the officers, the defendant and his companions were making furtive movements and were acting “strangely.” Specifically, the defendant called his attorney and also invited people on social media to come witness the stop by the police. His companions were flailing their hands and kicking bags. Based on these actions, the officers stated that they believed they were in danger. After repeatedly asking the defendant and his companions to exit the vehicle, the officers broke the window and physically removed them from the car.

The police then searched the vehicle. They found and recovered two firearms that had the defendant’s DNA on them. These firearms had previously been reported stolen. One of the firearms was recovered in a locked safe, while the other was found in the front center console. Also, the key to the safe was found on the defendant’s key ring. In addition to the firearms, the police also recovered heroin, fentanyl, methamphetamine, suboxone, marijuana, and other drug paraphernalia. The defendant was arrested and subsequently charged with possession with the intent to deliver (hereinafter “PWID”), various charges under the uniform firearms act (including persons not to possess a firearm (hereinafter “VUFA 6105”), receiving stolen property, and several traffic related offenses.

The Commonwealth chose to proceed under a bifurcated trial for the charges against the defendant. Specifically, the Commonwealth elected to try the defendant under the VUFA 6105 cases first and then would try him under the remaining charges. The reason the Commonwealth would do this is because they are then allowed to introduce the defendant’s prior conviction showing that he is prohibited from possessing a firearm. In the defendant’s case, he had a prior conviction for PWID which made him ineligible to possess a firearm.

The defendant chose a jury trial for the VUFA 6015 charges. At his trial, the above-mentioned facts were presented as well as his prior PWID convictions. Following the presentation of the evidence, the jury was instructed on the relevant law. Notably, defense counsel did not make any objections. At the conclusion of deliberations, the defendant was found guilty of the two charges. A few months later, the defendant proceeded with a bench trial on his remaining charges. The defendant stipulated to all the evidence presented at his previous trial. He was found guilty of the remaining charges. The defendant was subsequently sentenced to 12.5-25 years of state incarceration. The defendant then filed a timely post-sentence motion which was denied. The defendant then filed a timely appeal.

On appeal, the defendant made three arguments: first, that the evidence was insufficient to establish that he knew the weapons were stolen; second, that the Commonwealth failed to establish that he had actual possession of the gun that was found in the safe (he did not appeal his conviction for the firearm found in the center console); and finally that the trial court did not properly instruct the jury regarding possession of the firearm. For purposes of this blog, only the defendant’s second argument will be addressed.

Can I Be Convicted of a Possessory Offense Even if I am Not Actually Holding the Contraband?

Yes. You can still be convicted of a possessory offense even if you are not in actual physical possession of the contraband. Constructive possession is a legal term of art that allows a trier of fact to find that a defendant was in possession of the contraband even when they are not physically controlling it. To find that someone “constructively possessed” contraband, the finder of fact will analyze the facts to determine if the totality of the circumstances shows that the defendant was the possessor of the contraband. The trier of fact is allowed to rely on circumstantial evidence in making its decision too.

How Can a Prosecutor Prove that I Knew an Object Was Stolen?

Mere possession of a stolen good is not sufficient to convict a defendant of RSP. A prosecutor must prove beyond a reasonable doubt that the defendant knew the object was stolen or should have known that it was. To prove this, a prosecutor, like he can to prove possession, can use circumstantial evidence to show that a defendant knew or should have known an item was stolen. Prosecutors will often use the timing of a stolen good to show that a defendant had knowledge that it was stolen. For example, let’s assume that someone reports their car stolen at 12:00 PM. If a defendant was seen with the vehicle at 12:30 PM, a prosecutor can argue that he stole the car (or at the very least knew it was stolen) given the length of time between when the car was reported stolen and when the defendant was seen with it. This is just one example. Prosecutors can also argue that a defendant’s statement, how he was acting when he was arrested, alterations to the object, etc. can be sufficient proof to show that the defendant knew or should have known the object in question was stolen.

The Superior Court’s Decision

The Superior Court upheld the defendant’s conviction for illegally possessing the firearm in the safe. Regarding whether the evidence was sufficient to find that the defendant possessed the firearm, the court analyzed the facts of the case. The Superior Court found that even though that the gun was in the safe, and not immediately accessible to him, there was sufficient evidence to show that it was his firearm. Specifically, the defendant’s DNA was on the gun; he was in possession of the key to the safe where the gun was found; and the gun was found in his vehicle. As such, the Superior Court held that there was sufficient evidence to convict the defendant of illegally possessing the gun in the safe.

Additionally, the defendant’s other issues that he raised on appeal were also rejected. The Superior Court found that there was sufficient evidence to establish that he knew or should have known that the firearms were stolen. The Superior Court agreed with the defendant’s argument that there was not any direct evidence presented at trial that he knew the guns were stolen. However, the Superior Court found that there was sufficient evidence to establish that he knew or should have known they were stolen. In support of this, the Superior Court referenced the defendant’s prior convictions showing that he was not eligible to possess the firearms and his actions during the traffic stop. The Superior Court conceded “that this is not evidence that he knew the firearms in his possession were stolen…Nevertheless, these circumstances are sufficient to enable a fact-finder to infer that [the] defendant believed that the firearms were probably stolen.” Accordingly, he will be forced to serve his sentence and will not get a new sentencing hearing or a new trial.

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 12/8/19 Zak Goldstein 12/8/19

Can the Police Search My Car?

Can the Police Search Your Car?

If the police searched your car and uncovered illegal contraband in Pennsylvania or New Jersey, you should speak with one of our Philadelphia criminal lawyers today. Our defense attorneys have won many motions to suppress and constructive possession trials in cases involving guns, drugs, and other illegally seized evidence. We will fight for your constitutional rights and to ensure that illegally seized items are not introduced into evidence against you. Call 267-225-2545 for a complimentary criminal defense strategy session with one of our top-rated Philadelphia criminal defense lawyers.

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Do Police Need a Search Warrant to Search a Car?

The legality of car searches by the police is frequently at issue in cases involving possessory offenses such as firearms cases and drug possession cases. In general, if the police conduct an illegal search or seizure, then the evidence obtained as a result of the illegal conduct could be suppressed. In many cases, the suppression of the critical evidence could lead to the dismissal of charges. However, the police typically have more authority for when they can search your car than for when they can search a house.

The general rule under the United States and Pennsylvania Constitutions is that law enforcement officers need a search warrant to conduct a search. However, the courts have created so many exceptions to this general rule that the rule essentially only applies to searches of houses or other types of residences and more recently, cell phones. Unsurprisingly, there are a number of exceptions which could permit a police search of a vehicle without a search warrant depending on the facts of the case.

Consent to Search the Vehicle

First, the police can always conduct a search when they have the consent of the owner or operator of the vehicle. If the police pull over a vehicle for a traffic infraction and are suspicious of the driver for some reason, they can always ask the driver for permission to search the car. If the driver gives them permission, then they may search the car and can use anything that they find as evidence in court. The only challenges which could be brought via a Motion to Suppress in this instance would be to the legality of the initial stop and whether the driver actually gave consent or whether the consent was fabricated or coerced.

Therefore, our advice is that you should not give permission or consent should the police ask if they can search your car. However, if the police decide to conduct a search anyway, you should not attempt to resist. Instead, it is best to remain calm while they conduct the search and speak with an attorney about your legal options once the encounter has ended.

Police Usually Need Probable Cause to Conduct a Car Search

Second, courts have developed an “automobile exception” to the warrant requirement. Under the United States Constitution, police officers and federal agents typically do not need a warrant to conduct a search of a vehicle. Instead, because of the inherent mobility of an automobile, they may search the vehicle if they have probable cause to do so. Probable cause means that it is more likely than not that the police will find contraband or some evidence of a crime. Thus, if police have probable cause, they do not have to obtain a warrant or consent prior to conduct a search.

An example would be a situation in which police pull a suspect over for swerving and upon approach, the officers believe the driver to be under the influence of alcohol. While questioning the driver, one of the officers smells alcohol coming from inside the actual vehicle. In that case, a prosecutor would argue that police have probable cause to enter the vehicle and determine the source of the odor because it was more likely than not that police might find spilled alcohol or a beer can which would be evidence in the subsequent DUI case against the driver.

Until recently, Pennsylvania took a more limited approach to the automobile exception. Previously, in order to evade the warrant requirement, prosecutors were required to show both that the police had probable cause to search a vehicle and that some sort of exigent circumstances applied, meaning that evidence could be lost should the police be required to obtain a warrant. However, in Commonwealth v. Gary, the Pennsylvania Supreme Court abolished the exigent circumstances requirement and adopted the federal automobile exception, meaning that police can now search a vehicle whenever they have probable cause to do so.

Although Gary is the law today, the Pennsylvania Supreme Court recently agreed to review whether Gary is correctly decided or whether law enforcement officers should have to obtain a search warrant prior to searching a car absent exigent or unusual circumstances. Therefore, it is possible that the current court could reinstate the rule that police must obtain a warrant prior to searching a car if they want the evidence to be admissible in Pennsylvania state court.

Other Exceptions Which Allow Law Enforcement to Search a Car

Third, there are a number of other potential scenarios in which the police can search a car without a warrant. For example, if the police end up arresting the driver of the car, then there are some circumstances in which the police may conduct a search of the car as a “search incident to arrest.” However, in Arizona v. Gant, the United States Supreme Court held that police may only conduct this type of search incident to arrest of a car when the police reasonably believe that they are likely to find evidence of the offense of arrest. This means that officers cannot automatically search a car as a search incident to an arrest for a suspended registration or suspended driver’s license. Instead, police must have some reason to believe they are going to find more evidence of the crime for which they arrested the driver in the vehicle.

Additionally, the police may, in some occasions, conduct an inventory search of a car if they are required to tow it after arresting or citing the driver. However, recent case law has substantially limited the authority of the police to conduct an inventory search of a car (commonly called a LIVESTOP in Philadelphia), and some of these inventory searches are now subject to challenge with a motion to suppress.

Police Can Sometimes Frisk A Car

Finally, police may also conduct a limited search of a vehicle if they have reasonable suspicion that the driver or passenger was engaged in criminal activity and that he or she was armed an dangerous. In that situation, the Terry doctrine allows them to conduct a “frisk” of the areas which were accessible to the driver to ensure that the driver will not have access to weapons if he or she is allowed to return to the vehicle. Of course, if the police find contraband or are able to see contraband while conducting the frisk, then they may enter the vehicle to retrieve the contraband and use it as evidence in a criminal prosecution under the plain view or plain feel doctrines.

There are other exceptions to these general rules and other issues which frequently come up such as K9 searches and the duration of time during which the police may detain a vehicle an conduct an investigation pursuant to a traffic stop. However, those issues will be the subject of future articles.

How A Philadelphia Criminal Lawyer Can Help

Clearly, there are a lot of exceptions which allow the police to search a car without a warrant, and we are likely at a point where the exceptions have begun to swallow the rule. This means that the answer to the question, “Can the police search my car?” is unfortunately that it depends on the circumstances. It is clear that police are not required to obtain a search warrant to search a car during a traffic stop. Instead, they are typically going to be required to make some sort of showing of either probable cause or reasonable suspicion in order to justify a search, and these searches are often subject to challenge with a motion to suppress.

If it can be shown that the initial stop was illegal, or that the police did not have actual reason to believe that they would find contraband in the car, it may be possible to have the evidence suppressed and excluded at trial. Likewise, if the police claim that the defendant consented to the search but the defendant and witnesses in the car disagree, it may be possible to prove that the consent was fabricated or coerced. Each case is different, and despite the elimination of the warrant requirement for vehicle searches, there are still real limits on the ability of the police to search a car. The bottom line is that illegally seized evidence usually cannot be used against you in court, and in many cases, it remains possible to challenge the warrantless search of an automobile.

What to Know about Police Car Searches in PA

If the police searched your car and found something illegal in Pennsylvania or New jersey, you need the services of one of our Philadelphia criminal defense lawyers. We have won countless motions to suppress and trials on gun and drug charges. We will fight to protect your rights and make sure that illegally seized evidence is not used against you. Call 267-225-2545 for a complimentary criminal defense strategy session with one of our top-rated Philadelphia criminal defense lawyers.

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Zak Goldstein 11/20/19 Zak Goldstein 11/20/19

PA Supreme Court: Gun's Serial Number Must Be Changed or Removed for Conviction of Possessing Firearm with Obliterated Serial Number

The Pennsylvania Supreme Court decided the case of Commonwealth v. Smith, holding that to convict a defendant of the crime of possession of a firearm with an altered manufacturer’s number (“VUFA 6110.2”), the serial number must have been removed or changed in a “material way” that makes it look like a different number, in whole or in part, to the naked eye. This decision is significant because in Philadelphia (and in other parts of Pennsylvania), prosecutors will routinely charge defendants with VUFA 6110.2 when there is even the slightest mark on the serial number.

Commonwealth v. Smith

On June 12, 2016, Pennsylvania State Police troopers initiated a traffic stop of a vehicle driven by the defendant. The defendant was stopped because his license plate was not illuminated. As the troopers approached the vehicle, they observed “furtive” movements by the vehicle’s occupants. The troopers requested the defendant’s license and registration, at which point either the defendant or his passenger opened the glovebox. When the glovebox was opened, the troopers observed a plastic vial containing marijuana. A subsequent search of the vehicle revealed a firearm, ammunition, and a clip under the driver’s seat. The manufacturer’s number on the firearm appeared to have been scratched, but it was still legible.

The defendant was arrested and charged with VUFA 6110.2, firearms not to be carried without a license, receipt of stolen property, possession of a controlled substance, and various traffic offenses. At the defendant’s stipulated bench trial, the Commonwealth introduced photographs of the firearm, which showed that the manufacturer’s number had multiple scratch marks. The parties did not dispute that the number was still legible. The trial court noted that the serial number showed clear signs of intentional tampering and wearing of the serial number and that the number was “clearly abraded.” As such, the trial court determined that the serial number had been, at a minimum, altered from its original state. The defendant was then found guilty and sentenced to three to six years incarceration. The defendant then filed a timely appeal to the Pennsylvania Superior Court.

The Defendant’s Appeal to the Superior Court

The defendant appealed to the Superior Court, arguing that the evidence was insufficient to sustain his conviction because the manufacturer’s number, although scratched, was legible to the naked eye and thus the Commonwealth failed to establish that the number was “altered, changed, removed, or obliterated” as required by VUFA 6110.2. Specifically, the defendant argued that to be convicted of VUFA 6110.2 the serial number must be illegible to the naked eye. The Superior Court unanimously rejected the defendant’s argument. The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the defendant’s case.

What is VUFA 6110.2?

VUFA 6110.2 provides: “[n]o person shall possess a firearm which has had the manufacturer’s number integral to the frame or receiver altered, changed, removed, or obliterated.” Previous appellate decisions have required that the number’s alteration be man-made. In other words, if the number is naturally corroded, a defendant is not guilty of VUFA 6110.2 simply because he is in possession of a gun whose markings had become illegible due to natural causes. However, whether a serial number has worn away over time or been intentionally removed is not always clear.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the defendant’s conviction and found that the evidence was not sufficient to convict him of VUFA 6110.2. In making its decision, the Court first analyzed the VUFA 6110.2 statute. The Court found that the term “altered” is capable of multiple reasonable interpretations and thus the term is ambiguous. Therefore, the Court then analyzed the legislative intent behind VUFA 6110.2. The Court opined that the Pennsylvania Legislature drafted VUFA 6110.2 because the manufacturer’s serial number is an important tool used by police officers in identifying the owner of weapons used in criminal offenses. To safeguard this tool, the legislature found it important to pass a law that prohibits individuals from altering, changing, removing, or obliterating these numbers.

In the instant case, the serial numbers on the defendant’s gun were still visible. In fact, the Commonwealth conceded this fact at trial. Therefore, the Pennsylvania Supreme Court held that to be convicted of VUFA 6110.2, the Commonwealth “must establish that the number was changed in a material way, such as by making it look like a different number, or that it was rendered illegible, in whole or in part, to the naked eye.” In this case, because the defendant’s gun’s serial number was not illegible, the evidence was insufficient to convict him of VUFA 6110.2. Therefore, his conviction on this charge will be vacated, and his case will be remanded for re-sentencing.

Facing Criminal Charges? We Can Help.

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. We have successfully obtained full acquittals in cases involving charges such as Conspiracy, Aggravated Assault, illegal gun possession, 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 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.

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