Is it illegal to have a broken gun without a license in PA?

Does a gun have to work for the DA to prove a Violation of the Uniform Firearms Act?  

Philadelphia Gun Charges Defense Lawyer Zak Goldstein

One potential defense to certain gun charges in Pennsylvania is that the gun did not actually work. Pennsylvania law makes it illegal to carry or possess a firearm under certain circumstances. First, it is usually illegal under 18 Pa.C.S. Section 6106 to carry a gun in a concealed manner or in a car without a concealed carry permit. Second, it is illegal under 18 PA.C.S. Section 6108 to carry a gun on the streets of Philadelphia without a permit. Third, it is illegal under 18 Pa.C.S. Section 6105 for someone who has been convicted of certain crimes (including a number of different felonies and misdemeanors) to have a gun at all. A violation of section 6106 is usually a felony of the third degree. A violation of section 6108 is a misdemeanor of the first degree, and a violation of section 6105 is usually a first-degree felony which can carry up to twenty years in jail.

In cases involving violations of sections 6106 and 6108, it could be a defense to the charges that the Commonwealth cannot prove that the gun was operable – meaning that it actually worked or was able to fire a shot without significant repairs.

In cases involving violations of sections 6105 (the felon in possession statute), the Commonwealth does not have to prove that the gun actually worked as it is illegal for a felon to carry even a broken gun. This is because the 6105 statute uses a different definition of a firearm. 6106 and 6108, however, have been interpreted by the Pennsylvania Supreme Court to require that the gun actually works. However, the DA does not have to prove that the gun worked in every case. Instead, either the prosecution or the defense must have introduced some evidence at trial that the gun was not operable, and then the burden shifts to the prosecution to prove that the gun was operable beyond a reasonable doubt.

In a case called Commonwealth v. Layton, the Pennsylvania Supreme Court first held that a gun must be operable in order for the prosecution to find a violation of section 6106 or 6108. However, operable does not necessarily mean that the gun could fire a shot at the time it was recovered. Instead, a gun is also operable if “the alleged actor had under his control the means to convert the object into one capable of firing a shot.” Thus, “an operable firearm may be said to be under the control of the alleged actor even though it is a malfunctioning assembled firearm or a disassembled firearm, if the alleged actor has under his control the means to convert the inoperable firearm into an operable firearm.” “For example, a reasonable fact finder might conclude, under all of the circumstances, that an operable firearm was under the control of the actor even though the stock, barrel, trigger housing group, or firing mechanism were in different rooms in the same apartment or might infer control if a damaged part were readily repairable.” In the Layton case, the gun was not capable of firing a shot and the defendant did not have anything in his possession which could be used to repair it, so the Supreme Court reversed the defendant’s conviction. In more recent cases such as In Re S.H., the Superior Court has found that guns were not operable when they had broken firing pins.

Although operability requires either that the gun be able to fire a shot or that the defendant had under his control the means to convert the object into one capable of firing a shot, the Commonwealth can still obtain a conviction if it can prove that the gun could be made capable of firing a shot relatively easily. For example, in various cases, the Superior Court has held that a gun which requires minor repairs in order to fire a shot can still be operable.

In Commonwealth v. Siiams, the Superior Court held that a gun was still operable for purposes of 6106 and 6108 even though the firearms examiner had to twist a key piece of the gun back into place with pliers in order to get it to fire. Likewise, in Commonwealth v. Gainer, the gun was found to be operable where the examiner testified that he had to file down a metal burr that had formed inside the pistol which prevented a round from chambering. The burr, however, could be removed within a matter of seconds or minutes by using an ordinary manual file. Even though there was no evidence that the defendants in these cases could have actually performed these repairs themselves, the Superior Court concluded that the weapons were readily repairable using easily available means and that they did not require adding new parts to the gun. Therefore, the court found that the guns were operable. Likewise, in Commonwealth v. Stevenson, the Superior Court held that where a gun was able to fire a shot as submitted but had a firing pin which would immediately fall out and have to be re-inserted, the gun was operable because it could fire the shot at the time it was submitted.

In general, these cases mean that if the defense can introduce some evidence that a gun did not work at the time that it was recovered, and the Commonwealth then fails to show beyond a reasonable doubt that the gun could be easily repaired without necessarily adding new parts, a court may acquit the defendant of violations of sections 6106 and 6108. It is important to remember that operability is not a defense to a violation of section 6105 because a felon may not possess even a broken gun, and unless there is first some evidence that the gun did not work, the Commonwealth may not have to prove operability at all.  

Can I be convicted of gun charges if the police never found the gun?

Another issue that frequently comes up relating to operability is when the police claim that the defendant committed a crime such as robbery or assault with a firearm but the police never actually recovered the gun. In other words, if a defendant is charged with robbing a store with an object that looks like a gun, but the defendant never fired the gun and the police never recovered it during their investigation, does the Commonwealth have to prove that it was actually a gun instead of a replica in order to obtain a conviction for gun charges or a sentencing enhancement for using a deadly weapon?

In general, the answer to this question is usually not. The Commonwealth typically does not have to prove that the gun used in a robbery was actually a gun. Instead, appellate courts have heard that even if the gun was never fired, a conviction can be obtained so long as the object in question sufficiently looked like a real gun. Thus, if a witness describes a grey firearm that looked like a revolver, that could be enough for the DA to obtain a conviction for a gun charge.

In some cases, however, there could be a defense to the gun charges if the witnesses cannot really describe the object or if there is conflicting testimony as to what it looked like. Therefore, it is still often worth cross-examining witnesses on why they believed the object to be a gun. If they are not really sure whether it was a gun or a replica, or if there was something weird about it that suggests that it might not be real, then the Commonwealth could be unable to meet its burden beyond a reasonable doubt. However, because the defense must introduce some evidence of operability in order to shift the burden to the Commonwealth, this will not always be a defense. Therefore, it is not necessarily illegal to have a broken gun without a license in Pennsylvania, but it is still risky because the Commonwealth could potentially obtain a conviction if the gun can be fixed with minor repairs or if the gun is never recovered.

Facing criminal charges? We can help.

Philadelphia Criminal Defense Attorneys

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 successful outcomes in cases involving charges such as Possession with the Intent to Deliver, Violations of the Uniform Firearms Act, 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.

Case Dismissed: Motion to Suppress Firearm With Obliterated Serial Number Granted

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The criminal defense lawyers of Goldstein Mehta LLC have continued to win difficult cases in the courtroom. In the case of Commonwealth v. A.T., Philadelphia defense attorney Zak T. Goldstein, Esquire recently won a motion to suppress in a case involving gun charges including Violations of the Uniform Firearms Act Sections 6106, 6108, and 6110. Those charges involve carrying a firearm in a vehicle without a concealed carry permit, carrying a firearm on the streets of Philadelphia, and possessing a firearm with a missing or obliterated serial number. The court’s decision to grant the motion to suppress resulted in the dismissal of all of the gun charges against A.T.

In A.T., Philadelphia police conducted the stop of a car in which the defendant was a passenger. Officers claimed that when they ran the car’s license plate through the NCIC system, the system returned a result indicating that it had no records for the car. The officers, believing that this could possibly, but not definitely, mean that that the car was unregistered, then proceeded to stop the car without any other indications of criminal activity or motor vehicle code violations.

The officers activated their lights and sirens, and the car pulled over on command. The officers claimed that when they approached the car to ask for the paperwork, they were immediately able to smell a potent odor of marijuana. The officer, however, testified that he was able to smell both fresh and burnt marijuana. They then testified that the driver admitted to having smoked marijuana recently.

While dealing with the driver, the officer saw the defendant in the back of the car playing with his cell phone. The officer speculated that the defendant was not trying to engage and was trying to keep the focus away from him. They then saw a backpack next to the defendant and asked him about it, and the defendant said it was his. The officers, while attempting to locate the source of the marijuana odor, searched the bag and found a gun with a serial number which had been filed off. They asked the defendant if it was his gun, and he apparently told them that it was his. They also claimed that the backpack had the defendant’s name on it, thereby further proving that the bag and the gun inside of it belonged to the defendant. Finally, they testified that they found a small amount of marijuana in the center console. In total, officers found one yellow tinted glass jar which contained about a gram of marijuana. They did not find any evidence in the car that marijuana had recently been consumed in the car such as roaches or other paraphernalia.

On paper, the case looked difficult because police claimed that they had smelled marijuana and ultimately found marijuana. As a general rule, police officers may conduct the search of a car and the contents of the car when they have probable cause to do so. Probable cause means that based on the totality of the circumstances, including the officers’ experience and training, they are likely to find some contraband or evidence of a crime as a result of a search. When police have probable cause to search a car, they usually do not have to get a warrant first unless the car is parked in the suspect’s driveway. Even though Philadelphia prosecutors do not charge people with the possession of small amounts of marijuana anymore, the possession of even a gram of marijuana remains illegal under state and federal law. Therefore, police officers will frequently assert that they had probable cause based on the odor of marijuana to conduct a search that finds some other sort of contraband such as harder drugs or a gun. If the police really could not determine if the car was unregistered and they really smelled marijuana coming from the car, then they would have been justified in conducting the search.

Attorney Goldstein reviewed the discovery, investigated the case, obtained records from PennDOT, and concluded that the police had likely conducted an unlawful search. First, there were issues with the stop of the vehicle because the car turned out to be registered despite its absence from the NCIC system. Second, the statements from the police officers rang false; the idea that the entire car would smell like marijuana from one gram of marijuana in a sealed container in the center console seemed unlikely, and the claims that the defendant would have his name on the backpack carrying an illegal gun and admit that the gun was his seemed like a stretch. Therefore, Attorney Goldstein filed a motion to suppress alleging that police had unlawfully stopped the car because it was in fact registered and that the police were not telling the truth about the ensuing search of the vehicle and questioning of the defendant. The registration issue was a legal issue - whether the police had reasonable suspicion to stop the car in a case where they genuinely, but incorrectly, believed that the car did not have a registration, but the search would involve issues of credibility. Credibility motions are particularly difficult to win because they require the defense to convince the judge that the police are not telling the truth, and the standard for the admissibility of challenged evidence is much lower than the beyond a reasonable doubt standard that would apply at trial.

The trial court scheduled a motion to suppress, and the officers testified to the above information. On cross-examination, however, Attorney Goldstein was first able to show from the PennDOT paperwork that the car was actually registered, thereby proving that the police had no real basis for stopping the car. Attorney Goldstein was then also able to show that the police version of the search should not be believed for the following reasons: 1) the entire car would not smell like marijuana from one gram of marijuana being in a glass jar in the center console, 2) the officer’s testimony that he could smell both burnt and fresh marijuana was absurd, 3) if the driver had really told them that they had just been smoking marijuana, the officers would have investigated and likely arrested the driver for driving under the influence (“DUI”),  and 4) that the police had not taken the backpack which allegedly had the defendant’s name on it into evidence. Obviously, the officer was forced to admit that they had destroyed critical evidence by not preserving a bag which supposedly proved that the gun belonged to the defendant. Attorney Goldstein also highlighted numerous other inconsistencies between the testimony of the officer and the paperwork that he had created and the testimony that he gave at the preliminary hearing.

Criminal Defense Attorneys Demetra Mehta and Zak Goldstein

After hearing the testimony of the officer and reviewing the case law on Pennsylvania’s absence of a “good faith exception,” the judge granted the motion to dismiss and precluded prosecutors from introducing evidence of the recovery of the gun or the marijuana at trial. The trial court specifically found that the officers could not be believed because there were just too many new details testified to at the hearing which did not appear in the paperwork. Accordingly, with the motion to suppress granted, prosecutors were obligated to dismiss all of the charges against A.T. Instead of having a felony record and facing significant jail time, A.T. will be eligible to have these serious gun charges expunged.

PA Superior Court: A really specific anonymous tip might be enough for a stop.

Criminal Lawyer Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Price, holding that a very specific anonymous tip might provide the reasonable suspicion necessary for police to conduct a Terry stop. This case is a disastrous decision for civil liberties and Fourth Amendment rights which defies common sense and ignores decades of Pennsylvania Supreme Court and Superior Court precedent.

The Facts of Price

In Price, the defendant was charged with various firearms offenses including possession of a firearm by a prohibited person, firearms not to be carried without a license, and possession of a firearm in the City of Philadelphia. Price filed a motion to suppress the gun, and the trial court conducted a hearing on the motion.

At the motion to suppress hearing, the Commonwealth presented the testimony of a Philadelphia Police Officer. The officer testified that he was on routine patrol with his partner when he received a radio call to respond to the 5100 block of Willows Ave. The officer testified that he had been on the force for seven years, and he knew that the 5100 block of Willows Ave is an area where violent crime is prevalent. He testified that the radio call provided the information that a black male, wearing a white t-shirt and gray shorts, was driving a silver Lexus with a license plate reading GWL8569, and was carrying a firearm. The officer had also learned that the radio call was the result of a call to 911.

The officers drove to 51st and Willows Avenue within a minute of receiving the broadcast and found a silver Lexus stopped at a stop sign. The officers were able to see that the driver was a black male who was wearing a white t-shirt, and they saw that the license plate read GWL8568, meaning it differed only by one digit from the number provided to 911. The officers activated their lights and sirens and stopped the vehicle. The Lexus pulled over, and the officers approached the vehicle. They could then see that the defendant was wearing gray shorts in addition to the white t-shirt. The officers opened the door and asked the defendant to step out. He did, and as he got out, the officer could see that he had a large bulge in the stomach area of his waistband. The officers searched the defendant and found a gun in his waistband.

 As the officers were recovering the gun, a woman approached them. She told police that she was the person who had called 911 and that they had arrested the right guy. She asked the officers if they had recovered the gun. The officers noted that at first, this woman was standing outside of the defendant’s view and seemed to be nervous. She later told them that she had called 911 because she saw the defendant with the gun and bullets. She told the officers that she saw the defendant put bullets in the trunk. Police asked the defendant if there was anything else in the car, and he confirmed that there were bullets in the trunk.

The trial court denied the motion to suppress. The defense argued that at the time of the stop, police were relying on an entirely anonymous radio call and had no way to verify whether the call, no matter how specific, contained accurate and reliable information. Decades of Pennsylvania case law, including Commonwealth v. Jackson and Commonwealth v. Hawkins, have held that anonymous tips do not provide police with any level of reasonable suspicion or probable cause to make a stop unless the police are able to corroborate that information prior to the stop. Nonetheless, relying on a recent United States Supreme Court case, the trial court found that police had reasonable suspicion to stop the defendant based on the 911 call. The court reasoned, possibly without supporting evidence, that the 911 call center in Philadelphia has caller ID and can track who made the call, thereby ensuring that calls to 911 are not actually anonymous. Because people know that they may be tracked when calling 911, the court reasoned, they have an incentive not to call in with fake accusations. Therefore, the court denied the motion to suppress, and the defendant was eventually convicted of all of the gun charges.

The Superior Court Appeal

The defendant appealed to the Pennsylvania Superior Court. Breaking with decades of precedent, the Superior Court affirmed the trial court’s reasoning. It also inexplicably concluded that because the 911 call center has caller ID, people would never call in incorrect information to 911 in order to harass someone else. Obviously, this reasoning is absurd and completely ignores the fact that most school-age children possess the technological prowess to use a “burner” phone or mask their true phone number or caller ID with an app. It also erroneously assumes that everyone knows (and cares) that their cell phone number could be tracked by 911 if they make a call. Accordingly, the court affirmed the trial court’s denial of the motion to suppress.

It is highly likely that this opinion will be appealed further. It is also important to note that the opinion relies entirely on federal law as the defendant in this case did not advance the argument that the Pennsylvania Constitution provides greater protections against stops based on anonymous tips than the United States Constitution. Whether such arguments will work in the future remains an open question. Finally, the tip in this case was extremely specific down to the make and model of the car, the defendant’s clothing, and the license plate of the vehicle. Nonetheless, this case substantially expands the power of the police to make stops based on anonymous radio calls. Such a power is extremely problematic because of the ease with which any citizen may mask his or her identity and call in an anonymous and false complaint against someone else to harass them. Normally, police are required to show that information was at least relatively trustworthy prior to acting on it. This opinion eliminates that requirement.

FACING CRIMINAL CHARGES? WE CAN HELP.

Goldstein Mehta LLC Criminal Defense

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, VUFA, Rape, and Attempted 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.

PA Superior Court: Police Reasonably Conducted Warrantless Search of Defendant's Home After Defendant Fired Assault Rifle in Back Yard and Acted Crazy

Criminal Defense Attorney Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. C.*, holding that police properly conducted a protective, warrantless sweep of the defendant’s home following corroborated reports that he had fired an assault rifle multiple times in the home. The Superior Court found that the police conduct in this case involved the emergency aid exception to the Fourth Amendment protection against warrantless entry into a home.

The Facts of C. 

In August 2015, Philadelphia Police responded to a radio call indicating that multiple gun shots had been fired in the back yard of a residence in a high-crime area. The police peered into the back yard while perched upon a wall and saw a white male, the defendant, and numerous shell casings on the ground. They did not see a gun, but they secured the defendant and asked him if anyone was inside the house. He gave them inconsistent answers, so they performed a “protective sweep” of the home to make sure that no one had been injured. They found and seized an assault rifle on the second floor.

The police arrested the defendant, and the District Attorney’s Office charged him with a Violation of the Uniform Firearms Act (VUFA Sec. 6106), possessing instruments of crime, and recklessly endangering another person. The VUFA charge was ultimately dismissed because VUFA 6106 requires either that a gun be concealed or located in a car and that the defendant not have a license. There is an exception to the VUFA 6106 statute which provides that a defendant may conceal a gun in his or her home. Here, the evidence showed that the defendant lived in the house, so VUFA 6106 was not an appropriate charge. 

Following the dismissal of the VUFA 6106 charge, the defendant filed a pre-trial motion to suppress the gun, which would help his case with respect to the possessing instruments of crime and recklessly endangering another person charges. The trial court granted the motion to suppress. It concluded that police searched the home solely because they wanted to find the gun; not because they were looking for injured people in the house. The court therefore found that police should have obtained a warrant prior to entering the house.

The Superior Court Appeal

The Commonwealth appealed the suppression of the gun to the Superior Court, and the Superior Court reversed. The Superior Court noted that in general, police may not search a house without a warrant. However, there are a number of exceptions to this general requirement. Although the warrantless entry and search of a home is presumptively unreasonable and illegal, there is an exigent circumstances requirement which may justify such a search. Exigent circumstances exist where the police reasonably believe that someone within a residence is in need of immediate aid. There are a number of factors which courts typically look at when determining whether exigent circumstances exist:

1. The gravity of the offense,

2. Whether the suspect is reasonably believed to be armed,

3. Whether there is above and beyond a clear showing of probable cause,

4. Whether there is strong reason to believe that the suspect is within the premises being entered,

5. Whether there is a likelihood that the suspect will escape if not swiftly apprehended

6. Whether the entry was peaceable, and

7. The time of the entry (entry at night is disfavored).

These factors apply in the typical case, but in this case, the real inquiry was whether the police reasonably believed someone inside the residence was in need of immediate assistance.

The Emergency Aid Exception and the Superior Court’s Decision

The Superior Court ultimately concluded that police acted reasonably in entering the house. They did not need ironclad proof of a likely, serious, life-threatening injury to invoke the emergency aid exception. Instead, they could err on the side of caution in this case given all of the circumstances. Here, the evidence showed that the defendant fired the gun multiple times in a neighborhood known for gun violence. The initial report suggested that he fired the gun in his back yard, but he also could have fired it in the home. When a witness flagged down the police, she told the police to be careful and described the defendant as acting crazy. Police corroborated the witness statement when they saw spent shells in the defendant’s backyard and by speaking with the defendant, who gave them inconsistent answers about whether anyone was inside. These inconsistent answers in particular suggested that maybe the defendant had a victim in the house who needed help. Therefore, under these circumstances, it was reasonably for police to confirm that he had not injured anyone by searching the house.

Ultimately, this case will likely be the subject of additional appeals as it conflicts with the Pennsylvania Supreme Court’s recent decision in Commonwealth v. Wilmer. For now, however, the case illustrates one of the rare circumstances in which police need not obtain a warrant prior to entering a residence. If police reasonably believe that someone inside may be in need of urgent assistance, then they may enter a house without a search warrant.

FACING CRIMINAL CHARGES? WE CAN HELP.

Goldstein Mehta LLC Criminal Defense Attorneys

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, and Attempted 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. 

*The case name has been changed to an initial as the defendant’s case was ultimately dismissed following its remand to the trial court.