Not Guilty: Attorney Goldstein Wins Another Felon in Possession of Firearm Trial

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, recently obtained a full acquittal for a client who was charged with various firearms offenses in Philadelphia. In the case of Commonwealth v. E.J., Attorney Goldstein was able to obtain the acquittal following a bench trial in the Court of Common Pleas.

E.J. was charged with numerous violations of the uniform firearms act (VUFA) including carrying a concealed firearm without a license in violation of 18 Pa.C.S. § 6106, carrying a firearm on the streets of Philadelphia in violation of 18 Pa.C.S. § 6108, and prohibited person in possession of a firearm in violation of 18 Pa.C.S. § 6105.

The police claimed that they received a radio call for gun shots. While they were investigating the source of that call, they received a second call for a person screaming that they had been shot. A nearby officer quickly responded to the scene and found E.J. Unfortunately, E.J. was near a gun, and the police eventually recovered the gun and charged him with illegal possession of the gun because he did not have a license to carry and he also had a record which made it illegal for him to have a gun.

E.J. retained Attorney Goldstein and decided to proceed by way of bench trial in the Philadelphia Court of Common Pleas. At trial, the prosecution called the responding officer who arrested E.J. to testify. That officer testified that he arrived on the scene in response to the radio call, and he saw E.J. bending over and rummaging around in between two garbage bags. E.J. then popped up and began walking towards him yelling that he had been shot in the head. The officer could see that E.J. had in fact been shot in the head as E.J. had a bullet wound and was bleeding. The officer frisked E.J. and did not find anything, but he found a gun in between the garbage bags. Other officers transported E.J. to the hospital, where he fortunately made a full recovery, and the responding officer recovered the gun from in between the garbage bags.

The officer testified that in his opinion, it looked like the gun had been recently placed there because it had droplets of what appeared to be blood on it. It had been raining recently, but the gun was not very wet. Photos of the gun, however, showed that it did have water on it, but the prosecution tried to argued that the water could have rolled off of the garbage bags. The officer also testified that no one else was around, so the prosecution argued that E.J. must have put the gun there.

Attorney Goldstein cross-examined the officer extensively on the fact that the officer did not actually see or hear E.J. holding the gun or dropping it onto the ground, the photos of the gun showed that it in fact had water on it, the Commonwealth had not done any testing for DNA, the Commonwealth had not confirmed that the blood on the gun came from E.J. or that it was even definitely blood rather than dirt, and that obviously, E.J. did not shoot himself in the back of the head. Given that he did not shoot himself, someone else must have also been out there with a gun even if the officer did not see who that person was. Thus, although it was certainly suspicious for E.J. to be near the gun, that mere proximity was not enough to show constructive possession of the firearm given all of the circumstances. Attorney Goldstein argued that the police were missing the first half of the story. It was just as likely that someone had shot E.J. and thrown the gun there after the shooting or that someone else had had the gun and tossed it there while fleeing from the shooting knowing that the police would be on the way shortly. E.J. could have then stumbled over in a daze from being shot to see what it was or to pick it up and defend himself if the shooter returned.

The Common Pleas judge deliberated for about two hours and then acquitted E.J. E.J. was free to leave, and he will be eligible to have the charges expunged. Had he been convicted, he would have been facing a lengthy state prison sentence under the state guidelines given the prior convictions that made him ineligible to possess a firearm. Fortunately, he made the right decision in retaining an attorney who was not afraid to try and win the case.

Facing criminal charges or appealing a criminal case in Pennsylvania?

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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the successful direct appeal of a first-degree murder conviction and the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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 Finds Felon in Possession Statute Constitutional

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Pennsylvania Superior Court has decided the case of Commonwealth v. McIntyre, holding that VUFA § 6105’s prohibition on possessing a firearm after being convicted of certain prior offenses is constitutional and does not violate the Second Amendment. Despite the fact that numerous federal courts have reached the opposite conclusion, the Superior Court concluded that individuals with prior convictions for violent felonies are never among the people protected by the Second Amendment.

The Facts of McIntyre

The defendant was convicted of violating 18 Pa.C.S. § 6105, which makes it a felony to possess a firearm following a conviction for certain offenses. A violation of § 6105 is typically a first- or second-degree felony, and a person may also violate the statue if they possess a gun while having prior drug convictions, mental health commitments, or a protection from abuse order against them. In this case, the defendant had prior aggravated assault, robbery, and burglary convictions, among others.  

The facts of the case are not particularly relevant for the constitutional analysis, but the defendant was charged with taking a gun from his uncle's house, carrying it to a nearby wooded area, and burying it. The Commonwealth charged him with violating the felon in possession statute after he led family members to the firearm's location. At trial, he claimed a justification defense in that he had found the gun and intended to get it out of the house and call the police, but the jury rejected that defense and found him guilty as he had not actually called the police despite having the opportunity to do so. Instead, he had buried the gun in the woods.

The Superior Court Appeal

The defendant appealed, arguing that § 6105 is unconstitutional following the United States Supreme Court's decision in New York State Rifle & Pistol Association Inc. v. Bruen and the Third Circuit Court of Appeals’s decision in Range v. Attorney General. The Superior Court rejected his argument. It concluded that Bruen focused on the rights of "law-abiding" citizens to carry firearms for self-defense and did not extend Second Amendment protections to individuals convicted of serious crimes like robbery, aggravated assault, and burglary. The Court emphasized Bruen's reliance on District of Columbia v. Heller, which acknowledged the government's ability to restrict firearm possession by felons as presumptively lawful.

In general, the Second Amendment protects the rights of “the people” to possess a firearm, thereby requiring an analysis of who is included within the term “the people.” The Third Circuit concluded in Range that even individuals with prior convictions may be included within “the people,” but the Superior Court found that only law-abiding individuals count as “the people.” As the defendant had numerous violent convictions, he is not among “the people” to which Second Amendment rights extend. Therefore, the Court did not even reach the second part of the Bruen test which is whether the gun restrictions had a historical analogue at time of the adoption of the Second Amendment. The Court simply rejected his argument, finding that the Second Amendment does not apply to anyone with prior violent convictions. The Court therefore denied the appeal.

The Takeaway

The Court’s opinion leaves quite a few important questions open. First, this case dealt with a defendant who had a particularly bad record; he had convictions for aggravated assault, robbery, burglary, and corrupt organizations. Although the convictions were relatively old, those crimes are about as serious as crimes can get, so the question of whether someone with less serious convictions can be stripped of their Second Amendment rights following Bruen remains open. Second, the opinion’s basic conclusion that the defendant is not part of “the people” to which Second Amendment rights extend seemingly conflicts with federal cases like Range v. Attorney General and Bruen itself. Those cases found that virtually everyone falls under the term “the people,” and the focus is instead more on whether the restriction in question would have been accepted by the founders.

This case makes it clear that defendants with serious, violent prior convictions can still be prosecuted under § 6105 in state court for now, but it is definitely not the final word on whether felon-in-possession restrictions are constitutional and what the limits on those restrictions may be. This case and others seem to be headed for the Pennsylvania and United States Supreme Courts. For now, criminal defendants with less serious criminal histories may still have success in filing motions to dismiss on Second Amendment grounds, but it is important to remember that you do not want to be the test case in the event that the courts uphold the restrictions in § 6105 and the corresponding federal statute, § 922(g). The sentences for carrying a gun illegally can be severe.

Facing criminal charges or appealing a criminal case? 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 and dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.  

Can I buy a gun if I have a juvenile record in Pennsylvania?

Most people do not realize it, but there are many juvenile adjudications which make it a crime for an adult to possess or attempt to purchase a gun. Pennsylvania law makes it a third degree felony to knowingly and intentionally make a a false statement or omission in connection with the purchase of a firearm. Most gun purchasers will undergo a state and federal background check in connection with the purchase of a gun, and the application form is not always easy to understand. This makes ignorance of the disclosure obligations a risky proposition. If you are considering purchasing a firearm and have any prior arrests as an adult or juvenile, click here to learn more about Pennsylvania's Making a False Statement in Connection with the Purchase of a Firearm statute and the types of arrests and other issues which need to be included when filling out the Pennsylvania State Police and federal background check forms. Additionally, recent developments in the law may change the analysis in terms of what old convictions or adjudications may properly prevent you from being able to buy a gun in Pennsylvania.

Attorney Goldstein Obtains Dismissal of Bucks County Felony Charges for Making a Materially False Statement in Connection with a Firearm Purchase

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

Philadelphia criminal defense lawyer Zak T. Goldstein, Esquire, obtained the full dismissal of felony charges at the preliminary hearing for a client who was charged in Bucks County with allegedly making a materially false statement on the background check application that he filled out in an attempt to buy a firearm.

In the case of Commonwealth v. M.S., prosecutors alleged that M.S. went to a gun show in Bucks County to try to buy a gun and provided false information about his criminal record on the form.

How does the background check process work when buying a gun in Pennsylvania?

Every purchase of a firearm in Pennsylvania requires the purchaser to fill out two background check forms – one for the Pennsylvania State Police and one for the ATF. The state police form asks a number of questions such as whether the purchaser is ineligible to buy a gun due to certain prior convictions (generally those enumerated in the felon in possession of a firearm statute, 18 Pa.C.S. § 6105)  as well as questions about prior 302 mental health commitments and convictions for domestic violence.

The ATF form asks whether the purchaser has ever been convicted of a crime punishable by more than a year in jail. For state court misdemeanors, the definitions section on the back of the form clarifies that the question only applies to a state court misdemeanor punishable by more than two years in jail, meaning that a non-domestic violence misdemeanor of the second degree in Pennsylvania is not a problem, but a first degree misdemeanor is. Notably, the forms also require the purchaser to confirm that they are purchasing the gun for themselves rather than someone else. There is an exception where the purchaser seeks to purchase it for a close family member who is legally eligible to own a firearm (such as a spouse or child).

In this case, the police claimed that M.S. lied on the form by checking off that he did not have a conviction for a crime punishable by more than a year because he had a misdemeanor of the first degree theft conviction from more than thirty years ago. Technically, according to the language of the form and the federal law (18 U.S.C. § 922(g)), this M1 theft conviction made M.S. ineligible to possess a firearm.

What happens if you fail the background check when trying to buy a gun?

The gun seller ran M.S. through the State Police background check system, the system recognized his old conviction, and he was not permitted to purchase the firearm. Most people do not realize, however, that the system then notifies the state police about the attempted purchase, and the state police frequently file felony charges under 18 Pa.C.S. § 6111. The ATF could also file federal charges along with the U.S. Attorney’s Office. § 6111 makes it a felony to make a materially false statement on either the state police or ATF background check forms. In order to prove a violation of the statute, however, the Commonwealth has to show 1) that the defendant was the person who actually filled out the form, 2) that the statement was in fact false, 3) that the statement was material, meaning important, and 4) that the defendant knew it was false and did not just make a mistake.

Obviously, the questions are confusing. The state form asks about crimes listed in § 6105, and people often do not know exactly of what they were convicted, particularly where the conviction is older.  For someone who has a prior robbery or aggravated assault, there is probably not going to be a strong argument that the person was confused. But where someone has an old misdemeanor or a few DUIs, they may well have not realized that they were ineligible to possess a firearm.

Similarly, the federal form asks whether the person was convicted of a crime punishable by more than a year in prison, and the form then actually defines that as a state court misdemeanor punishable by more than two years in prison. This question is particularly confusing as a non-lawyer is very unlikely to know how much time they could have received for an old, less serious conviction. Again, for a robbery or an aggravated assault, there is not going to be as strong of a mistake defense, but for an old misdemeanor theft conviction, it is not unreasonable to suggest that someone could have been unaware of the gradation of the conviction or how much time that gradation could have carried if they did not actually receive the maximum or any jail time at all.

In this case, M.S.’s old theft conviction carried up to five years in prison, making him ineligible to possess a firearm under federal law. It did not make him ineligible under state law. Accordingly, the police charged him with lying on the ATF form, which is a felony.

M.S. retained Attorney Goldstein for the preliminary hearing. On the day of the hearing, the Commonwealth offered to reduce the charges to a third-degree misdemeanor of unsworn falsification for a one year period of probation. M.S. rejected the offer and decided to have a preliminary hearing. The police officer testified that he received a package from the state police indicating that M.S. had tried to buy a gun, M.S. was ineligible due to the old theft conviction, and that theft conviction was punishable by up to five years. The police officer also confirmed that he spoke with M.S., and M.S. admitted to trying and failing to buy the gun for self-defense purposes. He said he did not realize the theft conviction made him ineligible.  

Dismissal of the Charges

Attorney Goldstein then argued for dismissal of the charges. First, under the recent Third Circuit Court of Appeals case of Range v. Attorney General, a lifetime prohibition on gun ownership for someone convicted of an old state court misdemeanor appears to be unconstitutional. There, the Third Circuit, in an en banc, opinion, held that Range should be permitted to buy a gun because his only conviction was a nearly thirty year old conviction for M1 food stamp fraud. Given how minor the conviction was, a lifetime prohibition on gun ownership violated the Second Amendment.

This case was extremely similar except the conviction was older and Range had sued for an injunction allowing him to buy a gun rather than argued that he could not be prosecuted. Attorney Goldstein argued that the statement on the form, even if not true, was not material because M.S. would have been eligible to possess a gun under the Range decision.

Second, Attorney Goldstein also argued that M.S. had clearly been confused by the wording on the form. Misdemeanor theft is not a bar to gun ownership under 18 Pa.C.S. § 6105, and M.S. had not actually received any time in prison. He had also been cooperative with the police and told them he had made a mistake. If he had been trying to buy a gun illegally, he could have purchased it on the street or lied to the police. Accordingly, it was very unlikely that he knew he had been convicted of a state court misdemeanor punishable by more than two years in jail. He did not actually get any jail time, and he did not even receive more than two years of probation.

Fortunately, the Magisterial District Justice agreed with the defense arguments and dismissed all charges. Instead of facing trial on felony charges in the Court of Common Pleas, M.S., who had not been arrested in over thirty years, can return to work and continue being a law-abiding citizen. This case, however, highlights the importance of being very careful when filling out these forms. If you have any doubts about whether you are eligible to possess a firearm, you should not use the form to “test” that eligibility. Instead, you should speak with a lawyer about your prior record. Additionally, if you have filled out the form and made a mistake, you should speak with an attorney right away before the police come calling. An attorney may be able to help you head off the investigation or help you with responding to it in order to avoid charges and prosecution for a felony offense. The form should never be used as a way to test whether or not you are eligible to buy a gun as answering the questions incorrectly can lead to felony charges.

Facing criminal charges or appealing a criminal case? We can help.

Criminal Defense Attorney Zak T. Goldstein, Esquire

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 dismissals in cases involving charges such as Conspiracy, Aggravated Assault, Rape, Violations of the Uniform Firearms Act, and First-Degree Murder. We have also won criminal appeals and PCRAs in state and federal court, including the exoneration of a client who spent 33 years in prison for a murder he did not commit. 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.