Conviction for Possession of Firearm with Obliterated Serial Number Requires Intentional Modification of Serial Number

The Pennsylvania Superior Court has just announced its decision in Commonwealth v. Ford, holding that a defendant may not be found guilty of 18 Pa.C.S. § 6110.2 (Possession of Firearm with Altered Manufacturer’s Number) when the numbers were altered through natural corrosion instead of intentional action. This decision protects individuals who own older firearms which have faded serial numbers. In Philadelphia, firearms offenses are taken very seriously, and prosecutors will often pursue severe sentences for defendants convicted of gun charges. If you are charged with possessing a firearm with an obliterated serial number or any offense involving a gun, it is crucial that you contact an attorney who is familiar with the law and is willing to fight for you.   

Commonwealth v. Ford

In Ford, Philadelphia Police Officers received radio calls for a person bleeding and a person with a gun at 2010 Wilmot Street. The officers went to the backyard of that address, but no one was there. As they proceeded through an alleyway onto Ditman Street, the officers were then directed by bystanders to 4663 Ditman Street. While standing on the porch of that address, one of the officers heard screaming coming from inside the house. Based on the screaming, the high crime level in the neighborhood, and the radio call, the officers decided to knock on the door. When no one answered, the police entered the property without a warrant.  

Once inside, the officers saw the defendant put an object which turned out to be a gun on the kitchen chair next to him. Officers promptly arrested the defendant after recovering the .38 caliber silver handgun. When officers looked at the gun, they could not see the manufacturer’s serial number. Because all modern firearms are required by law to have a serial’s number, the officers arrested the defendant and charged him with various Violations of the Uniform Firearms Act, including 18 PA C.S.A. § 6110.2 (possession of a firearm with an obliterated or altered serial number) and 18 PA C.S.A. § 6105 (possession of a firearm by a felon).

The defendant filed a Motion to Suppress, alleging that the gun should be suppressed because the police did not have a warrant when they entered the property. The Commonwealth responded that the officers were acting under the exigent circumstances exception. The exigent circumstances exception permits police to enter a house without a warrant under very limited circumstances – essentially, there must be a bonafide emergency or they must be in hot pursuit of a fleeing felon. After the officers testified to the reasons for entering without a warrant and argument from counsel, the trial court denied the Motion to Suppress. On appeal, the Superior Court affirmed, finding that though the police officers did not obtain a search warrant to enter the defendant’s home, the officers had probable cause and that there were exigent circumstances that warranted police entering his home given the radio call, the screaming, and the high crime nature of the area.

After the Motion to Suppress was denied, the defendant proceeded to trial by way of bench trial. Both the Commonwealth and the defense agreed that the serial number of the firearm had been obscured by corrosion as opposed to having been intentionally obliterated by the defendant. Nonetheless, the trial court found the defendant guilty of both possession of a gun by a felon and possession of a gun with an obliterated serial number, and the court sentenced him to a lengthy state sentence. The defendant appealed, arguing both that the trial court should have granted the Motion to Suppress and that the obliterated firearm statute does not make it illegal to possess a firearm where the serial number naturally wore away over the years and was not intentionally removed.

What is § 6110.2 (possession of a gun with an obliterated serial number)?

§ 6110.2 is one of several statutes that collectively form the Pennsylvania Uniform Firearms Act. In Philadelphia, charges brought under the Act are commonly referred to as VUFA charges, or Violations of the Uniform Firearms Act. § 6110.2 makes it illegal to possess a firearm which has the manufacturer’s number integral to the frame or receiver altered, changed, removed or obliterated.” Further, unlike some of the other VUFA statutes, § 6110.2 does not require that the firearm be operable. Also, it is not a defense to § 6110.2 that the defendant possessed the gun at his or her residence or place of business, making the statute very different from § 6106 (possessing a concealed firearm or a firearm in a car without a license to carry) and § 6108 (possessing a firearm on the streets of Philadelphia). Further, § 6110.2 has recklessness as its mens rea, making it easier for prosecutors to prove as this is a lesser mens rea than other offenses (i.e. specific intent, where a defendant specifically intended to commit a particular crime) and thus easier for the Commonwealth to prove. So, typically, § 6110.2 can be difficult to defend if a defendant is not successful at the suppression hearing.   

The Superior Court Restricts § 6110.2

The issue in Ford was whether possessing a firearm with the serial number that had merely corroded would be sufficient for a conviction under § 6110.2. The Superior Court concluded that it would not. In making its decision, the Superior Court employed statutory interpretation to determine what the General Assembly intended when it passed § 6110.2. As previously stated, it is illegal to possess a firearm when the manufacturer’s number is either altered, changed, removed or obliterated. Throughout Ford, the Superior Court emphasized that it would not “add” to § 6110.2, by quoting Commonwealth v. Johnson, 26 A.3d 1078, 1090 (Pa. 2011) holding that “although one is admonished to listen attentively to what a statute says; one must also listen attentively to what it does not say.”   

The Superior Court began its analysis by consulting the Crimes Code. § 6102 is the definitions section of the VUFA statutes, however “altered,” “changed,” “removed” or “obliterated” are not defined in this section. The Superior Court then turned to Webster’s Dictionary for guidance. They summarized their findings as follows:

[W]e consult[ed] the dictionary, which defines (1) “alter” as “to cause to become different in some particular characteristic (as measure, dimension, course, arrangement, or inclination) without changing it into something else,” (2) “change” as “to make different . . . in some particular but short of conversion into something else . . . [or] to make over to a radically different form, composition, state, or disposition,”; (3) “remove” means “to get rid of as by moving” as in eradicate or eliminate, and is synonymous with erase; and (4) “obliterate” as “1 : to remove from significance and bring to nothingness : as a: to make undecipherable or imperceptible by obscuring, covering, or wearing or chipping away . . . b: to remove utterly from recognition . . . or c (1): to remove from existence : make nonexistent : destroy utterly all traces, indications, significance of . . . (2) to cause to disappear[.]”  

            Based on this analysis, the Superior Court held that natural corrosion did not fall within the definitions of altered, changed, removed, or obliterated. Therefore, the defendant should not have been found guilty of § 6110.2. Because the defendant’s conviction for § 6110.2 ran concurrent to his § 6105 conviction and was identical to it, the Superior Court then vacated the defendant’s sentence for § 6110.2, but did not remand it for resentencing.

VUFA Cases and Weapons Offenses

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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. 

PA Superior Court Limits Deadly Weapon Used Sentencing Enhancement in Burglary Cases

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Tavarez. This decision limits the “Deadly Weapon Enhancement” for individuals convicted of burglary when a deadly weapon is involved. It requires that a sentencing court determine whether a deadly weapon was used in the commission of the burglary or whether a defendant merely possessed the deadly weapon at the time the defendant entered the building or occupied structure. 

Commonwealth v. Tavarez

In Tavarez, the defendant pleaded guilty to one count each of aggravated assault, burglary, robbery, impersonating a public servant, and conspiracy. As part of his guilty plea, Mr. Tavarez stipulated to the following factual summary:

[O]n or about November 17th, 2015, shortly after 1:00 in the morning at 49 Mill Road in Oley Township, Berks County, Pennsylvania, you along with your accomplices and co-conspirators Edward Martinez, Brandon Smith, and Erick Green went to that residence; the plan even before - you arrived at the residence was to rob the people there; you believed that there were illegal drugs and money[] there to be gained; all four of you agreed to do that. When you got there, as was your intention all along, you and Edward Martinez entered the residence, there were people present. This was a residence. It was not open to the public at that time. You had no license or privilege to be there.

Once inside, you were yelling, [“]Police. Freeze[.”] in [an] attempt to compel the homeowners to do what you wanted them to do, thereby impersonating a public servant. Although you attempted to commit a robbery and you did so with firearms, nothing was actually taken.

When you confronted the homeowner, Eric Wegman, in the upstairs bedroom, he pulled his own handgun and fired, hitting both you and Mr. Martinez. Eric Wegman was also shot in the leg at that point.

Based on these facts, the trial court sentenced Mr. Tavarez to a 10 ½ to 30 years.  The trial court did this, in part, by applying the “Deadly Weapon Used” enhancement to all of the charges, including the burglary charge. After he was sentenced, Mr. Tavarez filed a timely appeal. One of the issues Mr. Tavarez raised on appeal was whether the trial court erred in applying the “Deadly Weapon Used” enhancement to his burglary conviction.  

What are the Sentencing Guidelines?

In Pennsylvania, an individual’s sentence will usually be determined by where the person falls on the sentencing matrix. The purpose of the sentencing matrix is to provide consistency in sentencing across the state. It is important to note that judges are not required to follow the guidelines and are free to depart from them when they see fit. 

The first step in determining where a defendant falls on the sentencing matrix is to figure out what the individual’s Prior Record Score (“PRS”) is. A defendant’s PRS is based on their prior convictions. Specifically, a court will “add” up the prior record score points of each conviction. The more serious the offense, the more “points” it is worth. For example, if an individual’s sole conviction is for an Aggravated Assault where Serious Bodily Injury results, that person will have a PRS of 4. However, if an individual has two prior misdemeanor convictions, that are not specifically delineated by the General Assembly, then that individual will only have a PRS of 1.

The lowest PRS an individual can have is a 0. The highest PRS an individual can have is a 5.  However, some individuals with multiple felony convictions can be classified as a REFEL, while some repeat violent offenders may be classified as a REVOC. These classifications will subject you to more severe guidelines. If you have previous convictions it is imperative that you have an attorney who understands how your PRS is calculated because it can have significant consequences on your sentence.

After the Prior Record Score is determined, the court must then determine the Offense Gravity Score (“OGS”) of the particular offense. The Pennsylvania General Assembly assigned an OGS for each offense listed in the Pennsylvania Crimes Code. The range of OGS is from 1-14, with 1 being the least serious, while 14 being the most serious. 

In Tavarez, the defendant had a prior record score of 2. Additionally, the Burglary charge that Mr. Tavarez pleaded guilty to had an OGS of 9.  Thus, if this was the only charge that Mr. Tavarez had pleaded guilty to his guidelines would have been 24-36 plus or minus 12. In Pennsylvania, a judge must sentence an individual to a minimum and maximum sentence. Assuming there were no additional enhancements (i.e. the “Deadly Weapon Enhancement”) and the court had sentenced him to a 2-4 year sentence that would have been a “guideline” sentence. However, because Mr. Tavarez agreed that he used a firearm, the court could, and did, apply the “Deadly Weapon Enhancement” to his case.

What is a Deadly Weapon Enhancement?

If someone commits a crime with a deadly weapon, a court must apply the “Deadly Weapon Enhancement.” This enhancement requires the court to look at additional matrixes to determine a sentence for the defendant. There are two types of deadly weapon enhancement charts: “Possession of a Deadly Weapon” and “Use of a Deadly Weapon.” The “Deadly Weapon Used” matrix will always recommend a more severe sentence than the “Deadly Weapon Possessed” matrix. 

In Mr. Tavarez’s case, using his PRS of 2 and the OGS of 9 of the Burglary offense, the “Deadly Weapon Possessed” matrix had a guideline range of 33-45 plus or minus 12, while the “Deadly Weapon Used” matrix has a guideline range of 42-54 plus or minus 12.  As such, there is a nine-month difference between the two guidelines which is very consequential.

The Superior Court holds that only the “Possessed” Matrix applies to Tavarez's Burglary Conviction.

Part of Tavarez's plea deal was to stipulate to a factual summary. After he filed his appeal, the Pennsylvania Superior Court reviewed the transcript and was limited to the facts that were on record. In Mr. Tavarez’s case, the record did not state that Mr. Tavarez used the firearm to commit the burglary. Further, in Pennsylvania, the crime of burglary ends once the felon breaks into the building because burglary is defined as breaking and entering a building or occupied structure with the intent to commit a crime therein. Therefore, the burglary is over once a defendant has entered a building even if the defendant goes on to commit other crimes once inside. Here, Tavarez admitted to using the firearm to rob the complainant after he had entered the residence. Consequently, the trial court was correct in applying the “Deadly Weapon Used” enhancement for the robbery and other offenses that he pleaded guilty to. However, because Mr. Talvarez had already completed the crime of burglary when he entered the complainant’s residence and did not use the firearm in the commission of the burglary, it was incorrect for the trial court to apply the “Deadly Weapon Used” enhancement for the burglary conviction. Because of this error by the trial court, the Superior Court remanded Mr. Talvarez’s case for resentencing.

Call the Award-Winning Criminal Defense Lawyers of Goldstein Mehta LLC if You Are Charged With a Criminal Offense

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As shown by Tavarez, the details in a case matter. If you are charged with any offense or under investigation by the authorities, you need a defense attorney who pays attention to the details that will make or break 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. 

PA Superior Court: Guilty Plea Invalid Where Defendant Not Warned of Obligation to Pay Restitution

Commonwealth v. Rotola

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Rotola, holding that the trial court may not order restitution at sentencing in a plea bargained case unless the defendant agreed to restitution as part of the plea bargain.

Theft of Property Lost, Mislaid or Delivered by Mistake and Restitution

In Rotola, the defendant pleaded guilty to theft of property lost, mislaid or delivered by mistake as a misdemeanor of the first degree. The court ordered Rotola to serve 9-24 months, less one day, of incarceration and pay restitution in the amount of $25,000, jointly and severally with his co-defendant. Initially, the court found Rotola solely responsible for the theft of $25,000 in jewelry. However, after Rotola filed a post-sentence motion to reconsider, the trial court made Rotola jointly and severally liable with his co-defendant.

Given the extremely high restitution figure, Rotola appealed. On appeal, Rotola argued that the restitution amount was both not supported by the record and not the direct result of his conduct. Rotola pleaded guilty to theft as a misdemeanor of the first degree, and theft as an M1 indicates that the property stolen was worth less than $2,000. Thus, Rotola argued that it was excessive to impose a restitution amount so far exceeding $2,000 when he pleaded guilty to an offense which suggested the restitution should only be $2,000. He also argued that he was not as culpable as his co-defendant who had actually stolen the property as his role in the crime was to sell only a portion of the stolen goods to a pawn shop.

The Pennsylvania Restitution Statute

The statute governing restitution in criminal cases makes restitution mandatory regardless of ability to pay. It provides:

§ 1106. Restitution for injuries to person or property

(a) GENERAL RULE.-- Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.

(c) MANDATORY RESTITUTION.--

(1) The court shall order full restitution: (i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss.

(2) At the time of sentencing the court shall specify the amount and method of restitution. In determining the amount and method of restitution, the court:

(i) Shall consider the extent of injury suffered by the victim, the victim’s request for restitution . . . and such other matters as it deems appropriate.

(ii) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just.

(4) (i) It shall be the responsibility of the district attorneys of the respective counties to make a recommendation to the court at or prior to the time of sentencing as to the amount of restitution to be ordered. This recommendation shall be based upon information solicited by the district attorney and received from the victim.

(ii) Where the district attorney has solicited information from the victims as provided in subparagraph (i) and has received no response, the district attorney shall, based on other available information, make a recommendation to the court for restitution.

Restitution in Theft Cases

After Rotola appealed, the Superior Court rejected his second argument, finding that because the defendants acted together criminally to cause a single harm to the victim, both defendants were responsible for the full restitution despite Rotola being somewhat less involved.

The Court, however, agreed with the first argument. It found that there was no agreement as to restitution and no suggestion in the record that Rotola would be responsible for restitution. The plea paperwork did not suggest that he would be responsible for restitution, and the oral colloquy conducted by the sentencing judge did not inform Rotola that he would be responsible for restitution. Given the complete absence of any mention of restitution on the record, the Superior Court agreed with Rotola that the guilty plea to theft could not have been knowing, intentional, and voluntary. Therefore, the Court reversed the conviction and ordered that the plea be withdrawn.

Although the restitution statute makes restitution mandatory, a defendant must be advised of the possibility of having to pay restitution in order for a plea to be valid. The Court specifically required that the defendant be warned on the record of the possibility of having to pay restitution, and the Court also required that the sentencing court follow the procedures specified by the statute, meaning a court is required to hold a hearing and determine the amount of restitution at the time of sentencing. Because Rotola was never informed that he would have to pay restitution, his plea was withdrawn and the court remanded the case for trial.

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Philadelphia Criminal Defense Attorneys

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PA Superior Court Finds Sexually Violent Predator Classification Unconstitutional

More Changes for Pennsylvania's Unconstitutional Megan's Law Statute

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Butler, finding that Pennsylvania's system of classifying certain sex offenders as Sexually Violent Predators is unconstitutional. The Court held that that 42 Pa C.S.A. § 9799.24(e)(3), the section of the Sexual Offender Registration and Notification Act (“SORNA) that deals with designating an individual as a Sexually Violent Predators (“SVP”), is unconstitutional. This decision could impact thousands of individuals throughout Pennsylvania. Further, this is yet another case where an appellate court has found a section of the SORNA statute unconstitutional. If you are charged with a SORNA offense, it is imperative that you contact an attorney who is familiar with this rapidly evolving area of law.

Commonwealth v. Butler 

In Butler, the defendant was a 21-year-old man who repeatedly engaged in sexual intercourse with a 15-year-old girl. In September of 2014, Butler was charged with statutory sexual assault, criminal use of a communication facility, manufacturing child pornography, and corruption of minors. In July of 2016, he pleaded guilty to statutory sexual assault and corruption of minors. As a result of pleading guilty to corruption of minors, Pennsylvania law required that he undergo an assessment by the Sexual Offender Assessment Board (“SOAB”) to determine whether or not he fit the classification as an SVP. § 9799.24(a) of SORNA requires that every defendant who is convicted of a sex offense undergo the SOAB evaluation before sentencing for a SORNA offense. The SOAB concluded that Butler was a Sexually Violent Predator, leading to a hearing before the trial judge on the issue. After the SVP hearing, the trial judge found that the Commonwealth met its burden, and the judge classified Butler as a Sexually Violent Predator. Butler also received a sentence of 12 to 30 months of incarceration and 90 months of probation. He appealed. 

How Does Someone Get Labeled AN SVP?

As stated above, after a conviction for a SORNA offense an individual must be assessed the SOAB to determine whether they meet the classification as an SVP. According to § 9799.12 of the SORNA, an individual who is an SVP is a person with “a mental abnormality or personality disorder that makes the individual likely to engage in predatory sexually violent offenses.” In making its assessment, the SOAB will look at 15 factors to determine whether someone meets the classification as an SVP. § 9799.24 lists factors that the SOAB will consider including: the specific facts of the underlying case, the age of the defendant, the age of the complainant, the prior criminal record of the defendant, drug use, whether the defendant has any mental health illnesses. 

If the SOAB makes its determination that an individual meets the requirements for SVP classification, the District Attorney must then file a praecipe to have a hearing before a judge to determine whether or not the defendant should be labeled an SVP. Notably, the Commonwealth must meet this burden by clear and convincing evidence. This is a lesser standard than the beyond a reasonable doubt standard which is required to convict someone of a criminal offense. Further, a defendant does not have the right to have a jury determine whether the defendant is an SVP.

At the SVP hearing, the Commonwealth will present its case as to why the court should find the defendant an SVP. Typically, this involves testimony from the SOAB evaluator who assessed the defendant. The defendant would have the opportunity to cross-examine any witnesses the Commonwealth presents, and the defendant may also present evidence as to why he or she does not meet the characteristics of an SVP. For example, a defendant may call an expert witness to testify that based on an independent assessment of the relevant facts, it is their expert opinion that the defendant is not an SVP. After all the evidence is presented, the statute permits the judge to make a determination, using the clear and convincing evidence standard, as to whether or not the Commonwealth proved that the defendant is a Sexually Violent Predator.  

It is important to note that the SVP procedure can result in even defendants who were convicted of relatively minor sex offenses like misdemeanor Indecent Assault being labeled as SVPs. In most cases, Indecent Assault results in a defendant being required to register as a Tier I Sex Offender. Tier I Sex Offenders face the fewest restrictions in terms of registration requirements and only have to register for fifteen years. However, the SVP procedure can result in someone who would normally be a Tier I Sex Offender being required to register for life subject to the most severe restrictions as a Sexually Violent Predator. 

What Are the Consequences of Being Labeled an SVP?

If a court finds that an individual is an SVP, there are several consequences. First, the defendant must register for life. Further, the victim of the underlying offense must be notified of where the defendant lives and works; the community also receives notification about where the individual lives, works, eats, attends school, spends his or her leisurely time; and the person is subjected to lifetime counseling. As such, this designation carries serious collateral consequences beyond just a period of incarceration or probation. 

For a considerable period of time, Pennsylvania courts held that these registration requirements were civil, rather than punitive in nature. However, this all changed with the Pennsylvania Supreme Court’s landmark decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).   

The Pennsylvania Superior Court Finds § 9799.24 Unconstitutional   

In Muniz, the Pennsylvania Supreme Court held that the SORNA registration requirements were punitive and not civil. This is significant because the United States Supreme Court in Alleyne v. United States held that any fact that increases the mandatory minimum for a sentence must be proven beyond a reasonable doubt. In other words, the state must prove every element of the offense (including facts that increase a sentence) beyond a reasonable doubt.    

In Butler, had there been no SVP hearing, appellant would have had to register for 15 years.  However, because he was classified as an SVP, he had to register for life. Thus, the Butler Court held that this punishment was illegal because the court did not make its determination based on the beyond a reasonable doubt standard and because the statute allows the judge to make the determination instead of giving the defendant the right to a jury. 

The Pennsylvania Superior Court did not limit its ruling to Butler's specific case. Instead, it halted all future SVP hearings. The Court reasoned that because § 9799.24 is inherently flawed, trial courts are no longer allowed to hold SVP hearings until the General Assembly revises the statute to make it compliant with both the Pennsylvania and United States Constitutions.

Award-Winning Philadelphia Criminal Defense Lawyers for Sex Crimes and SORNA Offenses

Philadelphia Criminal Defense Lawyers

SORNA cases can be very complicated, and there is no question that the consequences are dramatic. If you are charged with a SORNA offense, you need an attorney who has the knowledge and expertise to defend your case. Likewise, if you are improperly classified under the SORNA statute, you need an attorney who can help you fix your registration tier. It is not clear whether the Commonwealth will appeal the decision in Butler or whether defendants who have already been classified as SVPs will be required to file a PCRA Petition within sixty days of the decision. Thus, it is important to act quickly in order to avoid waiving any rights to re-classification. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a free 15-minute criminal defense strategy session to any potential client who is under investigation or facing active criminal charges, and we offer a $100 Megan's Law/SORNA consultation on whether we may be able to help you change your registration tier. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.