Fighting Gun Charges and Weapons Offenses in Pennsylvania and New Jersey
If you need a criminal defense lawyer for a gun charge or weapons offense in Philadelphia or the surrounding counties, we can help. Call 267-225-2545 to speak with one of our award-winning criminal defense attorneys.
Philadelphia, PA Defense Lawyers for Gun Charges and Weapons Offenses
The Philadelphia criminal defense lawyers of Goldstein Mehta LLC have extensive experience fighting felony gun possession charges and other weapons offenses. Firearms and other weapons offenses are some of the most serious crimes a defendant can face in Pennsylvania. Although many Pennsylvania mandatory minimums have been eliminated, gun charges for possession of an illegal firearm may result in extremely high bail of $50,000 or more, a felony record, and jail time upon conviction. Our defense attorneys have proven track records of fighting these cases and obtaining successful results. We know the defenses to these charges, and we will work with you to present the strongest possible defense.
Pennsylvania Law criminalizes the possession of firearms under certain circumstances as well as the possession of certain “offensive weapons.” Gun charges are typically referred to as VUFA charges (“Violation of the Uniform Firearms Act”). The most common illegal gun charges seen in Philadelphia court and in the surrounding counties are typically 18 Pa.C.S. § 6106, § 6108, § 6105, and § 6110.2. Our gun charge defense lawyers have successfully defended against all types of illegal gun possession charges.
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Types of Gun Charges in Pennsylvania
Possession of a Concealed Firearm Without a License To Carry
VUFA § 6106 is one of the most common gun offenses in Philadelphia. The statute makes it illegal to carry a firearm in a car or in a concealed manner without a license to carry. In order to legally carry a concealed firearm in Pennsylvania, you must obtain a license to carry from the local sheriff or police department. The § 6106 statute uses a different definition of a firearm than many of the other VUFA charges because § 6106 applies mostly to handguns. It does not apply to long guns like rifles and shotguns or certain antiques. In Philadelphia, § 6106 is almost always graded as a felony because it is charged at the same time as § 6108, and it may carry significant jail time even for defendants who do not have a prior criminal record. In the rest of the state, § 6106 is more likely to be a misdemeanor for a defendant who has no prior criminal record. Although there is no mandatory minimum for possession of a firearm in Pennsylvania, the sentencing guidelines suggest a sentence of incarceration for even a first-time gun offender. However, our criminal defense lawyers have been able to successfully win gun cases both through pre-trial motions and at trial, and in other cases, we have been able to obtain probationary and house arrest sentences even after conviction by presenting compelling mitigation information to the sentencing judge.
Possession of a Firearm on the Streets of Philadelphia
VUFA § 6108 is a statute which specifically applies to the illegal possession of a gun in Philadelphia. This charge makes it illegal to carry a firearm on the streets of Philadelphia. VUFA § 6108 is a misdemeanor of the first degree, but it is still a serious illegal gun possession charge that can prevent you from ever possessing a firearm legally in the future. VUFA § 6108 is a charge that applies only in Philadelphia, which is defined by state law as the Commonwealth’s only city of the first class, and it does not apply to gun owners who have obtained a license to carry a concealed firearm. VUFA § 6108 is particularly problematic because when it is charged at the same time as VUFA § 6106, the fact that the defendant is facing two charges converts the gradation of § 6106 to a felony of a third degree instead of a misdemeanor. In some cases, it may be possible to have the gradation of § 6106 lowered to a misdemeanor by seeking the dismissal of the § 6108 charge if it can be shown that the gun was possessed in a concealed manner on private property instead of on the streets of Philadelphia.
Felon In Possession of a Firearm
VUFA § 6105 makes it illegal for people with prior convictions for certain offenses to carry a firearm. § 6105 may apply even to someone who does not have a prior felony conviction as certain misdemeanors, juvenile adjudications, and even Protection from Abuse orders may make someone subject to § 6105. It is typically referred to as the “felon in possession of a firearm” or "prohibited person" statute, and it is likely to carry the most severe penalties of any gun charge. However, § 6105 is not always properly graded as a felony. Depending on the disqualifying prior conviction or adjudication, a defendant may have committed only a misdemeanor gun possession offense, and the Commonwealth often charges defendants with felonies without realizing this. For example, a prior juvenile adjudication will often make § 6105 a misdemeanor gun charge instead of a felony, thereby drastically reducing the recommended sentence for this gun charge following a conviction.
Recent legislation changed the gradation of VUFA § 6105 in most cases. Previously, in most cases, a violation of VUFA § 6105 would be graded as a felony of the second degree. Because of the recent change in the law, VUFA § 6105 is now usually a felony of the first degree. The Pennsylvania Sentencing Commission also increased the recommended guideline sentence range for a violation of § 6105, thereby encouraging judges to sentence defendants convicted of this gun offense to even longer jail sentences. It is important to remember, however, that the sentencing guidelines are not binding, and therefore it may be possible for us to obtain a better sentence than that recommended by the guidelines from the judge or prosecutor even in a case where there is strong evidence that the defendant illegally possessed a gun despite a prior conviction.
Obliterated Serial Number
Finally, VUFA § 6110.2 makes it a felony to possess a firearm with an obliterated serial number. Defending against a § 6110.2 charge may require the use of an expert witness to evaluate the weapon and determine whether the serial number was truly obliterated. Further, the Commonwealth may not obtain a conviction by showing only that the defendant possessed a gun with an obliterated or removed serial number. In addition to showing possession, the Commonwealth must also prove beyond a reasonable doubt that the defendant was at least reckless with regard to the fact that the serial number was missing from the gun. In past cases, we have been able to beat this illegal gun offense by showing that there was no reason for the client to know that the gun was missing the serial number.
If you are charged with a violation of one of these statutes or some other weapons offense, you need to hire an experienced criminal defense attorney who regularly handles gun cases immediately. It is very possible that you may have a defense to your case.
Defenses to Gun Charges
Motion to Suppress the Gun
There are often defenses to illegal gun possession charges, and our gun charge lawyers are prepared to aggressively litigate these cases. First, for each charge, the police and prosecutor will have to prove that they found the weapon legally. If the police conducted an illegal stop or search, an experienced criminal lawyer may be able to have the weapon suppressed or excluded from evidence and the charges thrown out. In many cases, the police conduct stops and searches without proper reasonable suspicion or probable cause, and therefore the fruits of the illegal search must be excluded. However, judges are extremely reluctant to suppress guns because of the potential for bad press. Therefore, if you believe you may have been the victim of a bad stop that led to the police finding a weapon, it is important that we begin investigating your case immediately in order to see if it is possible to locate witnesses to to the illegal stop or camera footage from nearby businesses.
Actual or Constructive Possession of the Gun
Second, the prosecution must prove that the gun was actually possessed by the defendant. Simply because a weapon was found near the defendant, in a car in which the defendant was the passenger or even driver, or in a house, does not automatically mean that the weapon was possessed by the defendant. The prosecution must show that the defendant actually possessed or constructively possessed the weapon. Constructive possession means that the defendant had knowledge of the weapon’s existence and the intent to control it. It is not enough to show that the defendant knew the weapon existed or was nearby because it may have belonged to someone else. The Commonwealth must also show that the defendant intended to control it. Experienced criminal defense counsel can investigate the circumstances and determine if it may be possible to show that the gun belonged to someone else or that the defendant may not have known about its presence. The important thing to remember is that if the gun was not physically on you, proximity to the weapon alone may not be enough for the prosecution to show constructive possession.
Sufficiency of the Evidence
Third, each statute has very specific elements which the Commonwealth must prove. For example, § 6108 requires the prosecution to show that the gun was actually possessed on the streets of Philadelphia. If the prosecution can show only that the defendant had the gun in the front of private property, the prosecution may not be able to secure a conviction. Likewise, the Commonwealth often charges § 6106 as a third-degree felony even where they cannot show that the defendant actually concealed the gun. § 6106 also requires that the gun actually be operable - meaning it either works and can actually fire bullets or can be quickly made to work and fire bullets. § 6105, on the other hand, does not require that the gun be operable. Finally, the prosecution routinely charges both § 6106 and § 6108 at the same time even when there is no evidence that the defendant actually possessed the gun on a public street. If the defendant never left private property, then the defendant should not be charged with § 6108, and the § 6106 charge should be graded as a misdemeanor of the first degree instead of as a felony of the third degree.
Jail Time for Gun Convictions in Pennsylvania
In Pennsylvania, the illegal possession of a gun may result in jail time. Gun convictions are often punished very severely in Pennsylvania. As a third degree felony, VUFA § 6106 may be punished with a jail sentence of up to seven years, and VUFA § 6105 may be punished with a jail sentence of up to twenty years because it is usually a felony of the first degree. In practice, the potential maximum sentences can be even higher because many of these gun charges will be brought at the same time and do not merge for the purposes of sentencing.
Pennsylvania does not currently have any mandatory minimums for the possession of a firearm. Therefore, judges have a great deal of discretion at sentencing for an illegal gun possession conviction. Following a conviction at trial or guilty plea, Pennsylvania sentencing law requires the trial judge to first calculate the sentencing guidelines for each charge. If you have a prior conviction for anything but certain misdemeanors, the sentencing guidelines will almost definitely recommend a sentence of incarceration. For this reason, it is extremely important that if you are facing gun charges in Pennsylvania, you hire a lawyer with the expertise necessary to properly defend these cases.
Pennsylvania Sentencing Guidelines for Gun Charges
If you are a first-time offender convicted of carrying a concealed firearm without a permit, then it may be possible to argue for a probationary or house arrest sentence even after a conviction. In some cases, we have even been able to obtain entry into diversionary programs like ARD which avoid a permanent record for our clients. The Pennsylvania Sentencing Guidelines produce a range of possible sentences based on the defendant's prior record score and the offense gravity score for the most serious offense. If the defendant has no record or only one misdemeanor conviction, then the defendant will usually have a prior record score of zero. If the defendant has a prior record that includes felony convictions or multiple misdemeanor convictions, then the prior record score could be higher.
VUFA § 6106, which is the statute which makes it illegal to carry a concealed firearm without a permit, has an offense gravity score of 9 when the gun was loaded at the time of the offense. VUFA § 6106 has an offense gravity score of 7 if the gun was unloaded at the time of the offense or the Commonwealth cannot prove whether the gun was loaded or not. Under the sentencing guidelines, a first-time conviction for VUFA § 6106 involving a loaded gun leads to a recommended minimum sentence ranging from 12 - 24 months plus or minus 12 months for any aggravating or mitigating circumstances.
In Pennsylvania, the guidelines simply provide the sentencing judge with a recommended range for the minimum sentence, and the maximum sentence must be at least double the minimum. When the judge imposes a guideline sentence, meaning the judge selects a minimum sentence from within that range, it is extremely difficult to challenge the sentence on appeal. Therefore, it is important that the defense thoroughly prepare for sentencing and produce evidence which will convince the judge to sentence in the mitigated range or at the bottom of the guidelines.
Given the range of 12 - 24 months plus or minus 12 months, a standard range guideline sentence for a first conviction of VUFA § 6106 involving a loaded gun could be anywhere from 12-24 to 24-48 months in prison. However, the guidelines also permit the judge to increase or reduce the minimum sentence by 12 months depending on whether the defense and prosecution demonstrate any mitigating or aggravating circumstances. If the defense is able to show a great deal of mitigation, then the judge could fully mitigate the sentence and impose a sentence of probation for a first-offense gun conviction instead of jail time. Because the guidelines permit the judge to mitigate down to probation if there is sufficient evidence in the record, it becomes very difficult for the Commonwealth to appeal a probationary sentence.
When the defendant has no prior record and other evidence of mitigation, we have often been able to convince judges to fully mitigate the sentence and impose probationary or house arrest sentences. Where the defendant has a prior record, the guideline range will be much higher, and it is much more likely for the judge to impose a jail sentence. Additionally, some judges punish convictions more severely than others and are more likely to impose a jail sentence even for a first-time offender.
Our Philadelphia Gun Possession Lawyers Can Make A Difference For You
Gun cases are extremely serious, and they are far more complex than just whether or not the police found a gun. All of the statutes have highly technical elements which the prosecution must be able to prove beyond a reasonable doubt, and the state and federal constitutions require a showing that the police found the guns legally. If you are facing a gun charge or other weapons offense in Philadelphia or the surrounding counties, call 267-225-2545 now for a free, confidential consultation with an experienced criminal defense lawyer.
Other Weapons - Stun Guns, Tasers, Brass Knuckles, and Knives
Can you posses brass knuckles, switchblades, and stun guns in Pennsylvania? The answer is no longer clear due to a recent Supreme Court decision. There is currently a law on the books that prohibits possessing these types of weapons. In addition to the common VUFA charges discussed above, Pennsylvania law also prohibits carrying many types of “offensive weapons” under 18 Pa.C.S § 908. The statute prohibits carrying or possessing offensive weapons, and defines offensive weapons as follows:
Any bomb, grenade, machine gun, sawed-off shotgun with a barrel less than 18 inches, firearm specially made or specially adapted for concealment or silent discharge, any blackjack, sandbag, metal knuckles, dagger, knife, razor or cutting instrument, the blade of which is exposed in an automatic way by switch, push-button, spring mechanism, or otherwise, any stun gun, stun baton, taser or other electronic or electric weapon or other implement for the infliction of serious bodily injury which serves no common lawful purpose.
These offenses can also be extremely serious. However, just as with a firearm, the police and prosecution must be able to show that they found the weapon lawfully. If the police conducted an illegal stop or search, then the weapon could be excluded and the charges dismissed. Likewise, the prosecution must be able to show that it was the defendant that actually possessed the prohibited weapon.
Most importantly, a recent United States Supreme Court case casts significant doubt on the constitutionality of the Prohibited Offensive Weapons statute. In Caetano v. Massachusetts, the United States Supreme Court reversed the conviction of a Massachusetts woman who owned a taser for self-defense against an abusive boyfriend. The Supreme Court held that the Second Amendment provides the right to possess "all instruments that constitute bearable arms," even those not in existence at the time of the founding of the country. Accordingly, the Supreme Court found that the Massachusetts statute which prohibited tasers violated the Constitution and could not be enforced. The Pennsylvania statute has not yet been challenged in the appellate courts, so prosecutors continue to charge defendants with violations of the Prohibited Offensive Weapons statute. While we do not recommend that you start carrying a prohibited weapon in order to test the law, if you are charged with a violation of this statute, you need an attorney to fight for your rights under the United States Constitution.
Our Defense Lawyers Can Help You With Weapons Offenses
If you are charged with the illegal possession of a gun or other weapons offense, you need an experienced criminal defense attorney to evaluate your case, investigate for potential defenses, and provide you with all of the options. Call 267-225-2545 now for a complimentary 15-minute criminal defense strategy session.