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 7/12/21 Zak Goldstein 7/12/21

PA Superior Court: Police May Not Prolong Traffic Stop by Asking Unrelated Questions About Guns

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. Malloy, holding that the police may not prolong a traffic stop to go on a fishing expedition regarding whether the passenger in the vehicle has a license to carry a firearm. This case is significant because police officers will routinely extend traffic stops to see if they can find evidence of additional crimes. The decision in Malloy provides a powerful check to this intrusive process by the police.

Commonwealth v. Malloy

A Philadelphia Police officer was on routine patrol when he noticed an automobile that did not have a license plate. The officer activated his lights and sirens and pulled the vehicle over. As he walked towards the vehicle, he noticed that there was a license tag on the car’s rear windshield, but it was not properly displayed and secured. This was a violation of the Pennsylvania Motor Vehicle Code. The officer also noticed that there were several occupants within the car, including the defendant, who was seated in the rear behind the driver. The officer approached the driver and told him that he did not have a license plate on the back, to which the driver responded that he just got the car two days prior and still needed to get screws for the license plate. The officer seemed satisfied with this explanation and did not issue the driver a citation.

The officer then asked the defendant to roll down the passenger window. He asked the defendant for identification, and the defendant responded by pulling a lanyard out from his hooded sweatshirt. When the officer saw the lanyard, which suggested the defendant worked as a security guard, he immediately asked the defendant if he had a firearm on him. In the officer’s experience, it was common for people who worked in armed security positions at local bars to keep their identification badges in lanyards. The defendant responded that he did have a firearm because he worked in a security position at a local bar. The officer then asked where the firearm was, to which the defendant responded that it was on his right hip.

At that point, the officer asked the defendant to give him the firearm and to exit the vehicle so that he could secure the firearm before continuing his investigation. The defendant was then asked for his “identification documents.” The defendant gave him his “Act 235” card, but the card had expired. The defendant then told the officer that he had another card at his home. The officer then proceeded to contact the Pennsylvania State Police where it was determined that the defendant’s certification had actually expired. The defendant was subsequently arrested and charged with possession of a firearm without a license and carrying a firearm on a public street in Philadelphia.

Prior to trial, the defendant filed a motion to suppress to suppress the firearms and the statements made to the officer. At his suppression hearing, the above facts were entered into the record. At the conclusion of the hearing, the trial court denied the defendant’s motion to suppress. The defendant then entered into a stipulated trial where he was found guilty of both charges. At his sentencing hearing, the defendant was sentenced to five years of reporting probation. The defendant then filed a timely appeal. On appeal, the defendant argued that his statements and firearm should have been suppressed because the police illegally prolonged a routine traffic stop to conduct an unrelated investigation into whether he was legally allowed to carry a firearm.

The Pennsylvania Superior Court’s Decision

The Pennsylvania Superior Court reversed the trial court’s denial of the defendant’s motion to suppress. In making its decision, the Superior Court reviewed prior appellate decisions including United States Supreme Court (“SCOTUS”) decisions. Specifically, the Superior Court reviewed Rodriguez v. United States, where SCOTUS held that when the police stop a vehicle for a motor vehicle violation, the stop may “last no longer than is necessary to effectuate that purpose.” In Rodriguez, SCOTUS did say that police officers are also allowed to ask a driver for his driver’s license, determining whether there are outstanding warrants against the driver, inspecting the automobile’s registration and proof of insurance, and other questions that are “aimed at ensuring the safe and responsible operation of vehicles on the highway.”

However, the Superior Court found that asking for a passenger’s documented authority to carry a firearm was not a permitted incidental inquiry during a traffic stop. Further, the Superior Court held that just because the defendant admitted to possessing a firearm did not mean that the officer was justified in prolonging the traffic stop to detain and investigate the defendant. The Superior Court cited the Pennsylvania Supreme Court decision Commonwealth v. Hicks, in which the PA Supreme Court held that the police cannot detain and investigate an individual simply because he is possessing a firearm. Further, the record at the defendant’s motion to suppress did not show any evidence that he was involved in any criminal activities or had engaged in any furtive movements. As such, the officer was not lawfully justified in detaining and investigating the defendant. Therefore, the denial of the defendant’s motion to suppress is vacated as well as his conviction. The defendant will get a new trial where the Commonwealth will not be allowed to use the firearm or the statements made to the police against him.

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Zak Goldstein 10/29/20 Zak Goldstein 10/29/20

PA Supreme Court: Police Can't Search Your Phone Just Because You're Near Drugs and Guns

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Johnson, holding that a defendant’s proximity to drugs and guns is not sufficient probable cause to obtain a search warrant for a defendant’s cell phone. This decision is significant because cell phones often contain very private and intimate details about our lives. Additionally, they can also obtain very incriminating details that prosecutors will use against defendants at trial. Thankfully, Johnson places a higher burden on the government to access these details, and so this is a big win for both privacy advocates and criminal defendants.

Commonwealth v. Johnson

In 2014, Pittsburgh police officers received a 911 call from an anonymous caller. The call stated that shots were fired inside an apartment. The officers subsequently went to this apartment and as they approached the apartment, they smelled a strong odor of burning marijuana coming from inside of the apartment and could hear people talking, too. The officers then knocked on the door and announced their presence. They continued knocking for several minutes with no response.

Eventually, a woman opened the door and the officers entered the apartment and conducted a protective sweep and detained five individuals, one of them being the defendant. During their sweep, the officers observed in plain view two bricks of heroin on a shelf. They also recovered three stolen firearms hidden together above the apartment’s hot water tank. The five detained individuals were placed under arrest. Officers then secured the apartment and obtained a search warrant. When they searched the defendant, they found two cell phones on his person. During their search of the apartment, the officers recovered an additional 717 bags of heroin and three cell phones. Four months after they recovered the cell phones, the officers requested and obtained an additional search warrant for the cell phones that they recovered, including the phones found on the defendant.

The defendant was charged with Possession with the Intent to Deliver (“PWID”), VUFA § 6105, Knowing and Intentional Possession of a Controlled Substance (“K/I”), and Small Amount of Marijuana (“SAM”). The defendant then filed a motion to suppress the drugs, cell phones, and firearms that were recovered in the apartment because he argued they were illegally obtained. This motion was denied. After this motion was litigated, the Commonwealth turned over additional discovery to the defendant. Specifically, they provided him with text messages that were recovered from his phone that “referenced stamp bags of heroin which had the same stamp as [the] bags recovered from the apartment.”

The defendant filed a subsequent motion to suppress these text messages, arguing that the search warrant should never have been granted given that the officers lacked probable cause to search his phone. The defendant argued that the police were going through his phone to figure out who the guns and drugs belonged to and that this was an improper attempt to ascertain that information. Unfortunately for the defendant, the suppression court did not agree with him and denied this motion to suppress too.

The defendant then elected to proceed by a bench trial. He was found guilty of PWID and K/I, but was found not guilty of VUFA 6105, and SAM. He then filed an appeal with the Pennsylvania Superior Court which was denied. According to the Superior Court, the fact that the defendant “was found ‘in close proximity to firearms and evidence of the distribution of heroin’ established a probable cause to believe more evidence relating to narcotics distribution would be found on his cell phone.” The defendant then filed a petition for allowance of appeal to the Pennsylvania Supreme Court who agreed to hear his case. For purposes of this blog, only the search warrant pertaining to the defendant’s cell phones will be addressed.

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court reversed the lower courts’ decisions and remanded the defendant’s case for a new trial. In its decision, the Pennsylvania Supreme Court rejected the notion that because there was probable cause to arrest the defendant for constructively possessing the drugs and guns that that there was also probable cause to search his cell phone for evidence of those same offenses. The Court stated that there must be a link or some facts to show that the cell phone contains evidence of criminality.

In the instant case, the Court found that there was no such link. There was nothing in the affidavit to suggest that the defendant was personally in possession of the drugs or that he was even aware they were in the apartment. Additionally, because the police originally went to the apartment on the basis of an alleged emergency, the police did not have the support of a long-term drug trafficking investigation to bolster their affidavit. The only thing that the affidavit of probable cause established was that the defendant was present in a place where illegal contraband happened to be found. This was not sufficient to get a search warrant for a cell phone. Therefore, the defendant should receive a new trial without the illegally seized evidence.

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Zak Goldstein 8/13/20 Zak Goldstein 8/13/20

PA Supreme Court: Commonwealth Bears Burden of Disproving Claim of Self-Defense in Gun Case

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Lineman, reaffirming its decision in Commonwealth v. Torres. The Supreme Court again held that if a criminal defendant properly raises the issue of self-defense, the Commonwealth has the burden of disproving that claim beyond a reasonable doubt. Further, it is not adequate for the fact-finder to merely disbelieve the defendant’s evidence of self-defense. The Commonwealth must produce actual evidence to counter a defendant’s self-defense claim. The Lineman decision is significant because it applies the logic of Torres to a possessory offense rather than just a crime of violence.

Commonwealth v. Lineman

A Philadelphia Police officer was on routine patrol when he received a radio call indicating that a male was screaming for assistance. The officer arrived on scene and observed the defendant and another male struggling on the ground. The defendant was lying on the ground with the other male on top of him. The officer ordered the male to get off the defendant. As the defendant began to stand he heard the sound of metal scraping the ground. The officer then looked at the defendant’s hand and saw that he was holding an Uzi. According to the officer, the defendant appeared to be under the influence of a controlled substance and was bleeding. The defendant was subsequently arrested for Violation of the Uniform Firearm Act § 6105 (“VUFA 6105”), Persons Prohibited from Possessing a Firearm.

The defendant elected to proceed by way of bench trial. At his trial, he testified in his own defense. Specifically, he testified that he and the other male had been drinking. Eventually, the other male became violent towards him and hit him in the face with the gun, which broke the defendant’s nose. The two then began to wrestle for the gun. The officer arrived while they were wrestling and this is what caused the fight to end. During closing arguments, defense counsel argued that the defendant was entitled to an acquittal because he raised the issue of self-defense and the Commonwealth did not present any evidence to rebut this claim as required by the case of Commonwealth v. Torres.

The trial court disagreed. The trial court stated that because this was a possessory offense, he could not raise a self-defense argument. The trial court did state that the defendant could raise a duress defense, but because he did not believe the defendant’s story it was not applicable to him. As such, he found the defendant guilty and sentenced him to three to seven years’ incarceration. The defendant then filed a timely appeal.

The Superior Court affirmed the trial court’s decision. In its decision, the Superior Court found that because the defendant was still in possession of the firearm after the police officer broke up the fight, this was sufficient to convict him of the charge of VUFA 6105. Undeterred, the defendant then filed a petition for allowance of appeal with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court agreed to hear the case.

Which side has to prove self-defense in Pennsylvania?

Commonwealth v. Torres is a Pennsylvania Supreme Court decision that was decided in 2001. The basic facts of the case were that the police arrived at a house in Philadelphia, PA after they received a radio call. When the police arrived on scene, they met with the complainant who said that the defendant had hit him in the head with a wrench. The defendant was about a half block away from the scene when the police arrived. While investigating the scene, the police were unable to locate a wrench. The defendant was then subsequently arrested and charged with simple assault.

The complainant never appeared to court. Nonetheless, the Commonwealth still elected to prosecute the case against the defendant by calling the police officers who arrived on scene. The officers testified that the complainant said the defendant hit him with a wrench. In response, the defendant testified on his own behalf and stated that he was acting in self-defense. At the conclusion of the trial, the trial court stated he disbelieved the defendant and found him guilty. The defendant then filed an appeal to the Pennsylvania Superior Court which affirmed his conviction. He then filed a petition for allowance of appeal to the Pennsylvania Supreme Court which agreed to hear the case.

The Pennsylvania Supreme Court reversed the lower courts’ decisions and vacated the defendant’s conviction. The Court stated that when a defendant raises the issue of self-defense, the Commonwealth bears the burden to disprove that claim beyond a reasonable doubt. According to the Court, the Commonwealth must produce some evidence to dispute this claim. Further, the Court specifically stated that it is not sufficient for the trial court to not believe the defendant. Therefore, because there was no evidence on the record to contradict the defendant’s claim that he was acting in self-defense, the defendant’s conviction could not stand and thus was vacated. It is important to note that the defendant in Torres was not charged with a possessory offense (i.e. possessing a gun).

The Pennsylvania Supreme Court’s Decision

The Pennsylvania Supreme Court issued a slip opinion decision vacating the defendant’s conviction. In its opinion, the Pennsylvania Supreme Court specifically cited Commonwealth v. Torres as the reason why it was reversing the lower courts’ decisions. The Court did not provide any additional justification for its decision. Nonetheless, it is undisputed that the Court has now expanded Torres to include possessory offenses as well. As a matter of common sense, this decision makes sense. If someone is in danger and uses a weapon to protect themselves in self-defense, they should also be able to avoid a conviction for the possession of said weapon. Regardless of the logic of the decision, this decision is obviously favorable to the defendant because his conviction is now vacated, and he will be released from prison.

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Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta