PA Superior Court: Even Partial Concealment of Firearm Requires Concealed Carry Permit

Criminal Defense Attorney Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Montgomery, finding that even partial concealment of a gun in a defendant's waistband establishes a prima facie case of a violation of VUFA 18 Pa.C.S. Sec. 6106 (firearms not to be carried without a license) for purposes of a preliminary hearing. Whether the defendant intended to conceal the firearm is likely an issue for trial, but the presence of the gun in the defendant's waistband, even though part of it was still visible, was enough to show concealment at a preliminary hearing. This is a bad case for the defense which makes it even easier for the Commonwealth to prove Violations of the Uniform Firearms Act. 

The Facts of Commonwealth v. Montgomery

Montgomery was arrested and charged with various violations of the uniforms firearms act. This case focused on whether or not the evidence presented at his preliminary hearing was sufficient to show that he had concealed the firearm in violation of 18 Pa.C.S. Sec. 6106. The Commonwealth called only witness at the preliminary hearing - the Philadelphia Police Officer who had arrested the defendant. At the hearing, the officer testified that he drove by the defendant and saw him “messing with” what the officer believed to be “the handle of a gun in his waistband.” The officer also testified that he could not see the entire gun. He could only see the the handle. 

The defendant then walked into a nearby store. The officer stopped his police car in front of the store and watched the defendant walk out of the store. The officer testified that the defendant saw him and then immediately walked back into the store. The officer exited his vehicle and went into the store. he stopped the defendant in the store, searched him, and did not find the gun. He did locate a gun several feet away on top of a rack of potatoes. The only other person in the store at the time was the cook, who was not very close to the gun. 

The officer arrested the defendant and charged him with violations of § 6106 and 18 Pa.C.S. § 6018 (Carrying Firearms on Public Streets or Public Property in Philadelphia). At the preliminary hearing, the Philadelphia Municipal Court Judge dismissed the § 6106 charge because, according to the court, the Commonwealth did not establish at a prima facie level that the defendant concealed the gun.

The Commonwealth then re-filed the complaint (which it is allowed to do under Rule 544 of the Pennsylvania Rules of Criminal Procedure). In Philadelphia, re-filed criminal complaints are typically heard by a Common Pleas Judge who sits in Motions Court. That judge will review the transcript from the preliminary hearing and hear any new evidence or testimony which the Commonwealth wishes to present. That judge will then make a decision as to whether the charges should be held for court or whether the Municipal Court Judge correctly dismissed the charges. Notably, the Superior Court indicated in a footnote that this procedure is not technically correct as the re-filed complaint should be heard by the same Municipal Court Judge who dismissed the case. Alternatively, if the Commonwealth files a motion seeking a different judge for the second preliminary hearing, the case should be heard by a different Philadelphia Municipal Court judge. In this case, neither party objected to the usual procedure of the case being heard in the Court of Common Pleas, so the Superior Court did not do anything to disturb that procedural route. Nonetheless, it may be possible to object to this procedure in the future in order to keep a case in the Municipal Court. Nonetheless, the Commonwealth did not present any new evidence for the Court of Common Pleas Judge, and that judge also agreed that the Commonwealth failed to establish concealment of the firearm. The prosecution appealed to the Superior Court. 

What is VUFA § 6106? 

VUFA § 6106 basically makes it a crime to carry a concealed gun on your person or in a car without a concealed carry permit. There are some limited exceptions. The statute provides “[a]ny person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in the place of abode or fixed business, without a valid and lawfully issued license” commits a felony of the third degree. In other words, a person cannot have a gun without a valid license and conceal that gun or he or she will be in violation of § 6106.

As such, there are several elements to this charge. First, the defendant must have a gun. Second, the person must not have a valid license to possess the gun. Third, the person must not be in his home or fixed place of business. And finally, a defendant must conceal the gun. 

When is a gun concealed?

According to the Pennsylvania Supreme Court, any concealment, including a partial concealment, is sufficient to establish the concealment element for § 6106. However, concealment is a fact-specific inquiry. For example, suppose someone is walking down the street in broad daylight with a pistol in his hand. This person is holding the gun up in his hand and tossing it up in the air. The police come and tell him to drop the gun and he puts the gun in his waistband. In this particular fact pattern, the defendant has probably not committed § 6106. Why? Because he made no attempt to conceal the gun. He made it very clear that he had a gun on his person.  

Now let’s change the fact pattern. Let’s suppose that someone is walking down the street and he has a gun in his waistband. A concerned bystander then notifies a police officer that this person has a gun. When the police officer approaches this person, he immediately tells the officer that he has a gun and gives it to him. This person has probably committed § 6106 because even though he was honest with the officer and cooperated with him, the gun was technically concealed for purposes of § 6106. 

Does the concealment element require the Commonwealth to prove a mens rea (mental state)? 

The answer to this question is yes, the Commonwealth must prove that the defendant was at least reckless in concealing the gun. As discussed in our December 9, 2017 blog (unlawful possession of a concealed firearm requires intentional concealment), the Superior Court held in the case of Commonwealth v. Scott that concealment is not established per se just because the gun is in the waistband. This might seem contradictory. However, it is important to remember at what stage each of these cases were decided. In Scott, the Superior Court reached its decision after a trial, and there was evidence in the record to suggest that the gun in that became concealed by accident. In the instant case, the defendant had not yet gone to trial. His case was only at the preliminary hearing level. The burden of proof is much lower at a preliminary hearing than at trial, where the prosecution must prove the case beyond a reasonable doubt. 

Thus, in the context of VUFA § 6106, the Commonwealth must prove beyond a reasonable doubt that a defendant intentionally, knowingly, or recklessly concealed the gun. However, the Commonwealth does not have the same burden at a preliminary hearing. At a preliminary hearing, the Commonwealth only needs to establish a prima facie case of guilt. Additionally, the Commonwealth is entitled to all reasonable inferences in its favor. In other words, it is a much lower burden for the Commonwealth to prevail at a preliminary hearing. If a gun is even remotely concealed, then according to the Superior Court, this will be sufficient to establish the element of concealment at a preliminary hearing. That does not mean the defendant will be convicted at trial; only that the defendant should be required to stand trial. In a gun case, there may be other defenses, including a motion to suppress for an illegal stop as well also officer credibility. 

The Superior Court Finds that the Commonwealth Proved Concealment

In a relatively short opinion, the Superior Court held that because the defendant had the gun in his waistband, the Commonwealth established concealment at the preliminary hearing. The Court further explained that the defendant's subsequent actions also showed that he intended to conceal the gun. Specifically, his decision to go back into the store and try to discard the gun indicated an intent to conceal the weapon. Therefore, the Superior Court held that the evidence was sufficient to establish concealment at a preliminary hearing. Consequently, the Defendant now must stand trial for § 6106.  

Philadelphia Criminal Defense Lawyers

Facing Criminal Charges? We Can Help. 

If you are charged with the illegal possession of a gun or any other criminal charge, you need an experienced criminal defense attorney to evaluate your case, investigate for potential defenses, and provide you with all of the options. There are often defenses to gun charges ranging from motions to suppress, constructive possession arguments, and accidental concealment defenses. Our award-winning criminal defense lawyers have successfully defended thousands of clients in state and federal courts throughout Pennsylvania and New Jersey. Call 267-225-2545 now for a complimentary 15-minute criminal defense strategy session.  

SCOTUS: Defendant May Waive Double Jeopardy by Moving to Sever Felon in Possession of Firearm Charge

Philadelphia Criminal Defense Lawyer Zak Goldstein

The United States Supreme Court has decided the case of Currier v. Virginia, holding that a defendant may waive double jeopardy protections by consenting to the severance of criminal charges and moving for separate trials on different charges. Specifically, the defendant may waive his or her double jeopardy rights by moving to sever a felon in possession of a firearm charge from the other charges in a criminal case. 

The Facts of Currier v. Virginia

In Currier, prosecutors charged the defendant with burglary, grand larceny, and unlawful possession of a firearm by a convicted felon in Virginia. Coincidentally, the defendant was not eligible to possess a gun because he had prior convictions for burglary and grand larceny. Because the defendant was charged with unlawful possession of a firearm by a convicted felon, prosecutors would have been allowed to introduce his prior convictions for burglary and grand larceny in his trial as the existence of those prior convictions is an element of the statute. This would have been detrimental to his case because the jury would have heard both that he had prior convictions in general and that he had prior convictions for the exact same thing with which he was charged. 

Accordingly, the defendant and the Government agreed to sever the charges and hold two separate trials. As discussed in the Court’s opinion, there is no universal way to handle this issue and each jurisdiction is different. In Virginia, a defendant can have two trials: one for the unlawful possession of a firearm by a convicted felon and a second trial for the other charges. In this case, Petitioner elected to have two trials. This is not the normal procedure in Philadelphia. In Philadelphia, the prosecutors will ordinarily proceed against the defendant on the non-felon in possession charges first. If the prosecution obtains a conviction on all of the charges other than the felon in possession charge, then the defense will typically allow the trial judge to make the decision on the remaining gun charge. If the jury acquits on all of the other charges, then the prosecution will usually move to nolle prosse the remaining gun charge. In some cases, the prosecution does still insist that the jury hear the felon in possession case after it has ruled on the other charges. However, Philadelphia does not typically conduct two separate trials in these types of cases. 

The first trial, for the charges of grand larceny and burglary, went very well for the defendant. He was acquitted of both charges. When he appeared for his second trial, his defense attorneys moved to dismiss the gun charge. They argued that it would violate his constitutional right against Double Jeopardy. In the alternative, he asked that the prosecution not be allowed to introduce any evidence pertaining to the grand larceny and burglary charges because he was acquitted of those charges. The trial court denied the defense's request, and the jury found him guilty of the gun charge. The court sentenced him to a lengthy period of incarceration. He appealed through the Virginia state appellate system, and both the Virginia Court of Appeals and the Virginia Supreme Court affirmed the denial of his double jeopardy motion. He appealed to the United States Supreme Court, and the Supreme Court granted certiorari and agreed to hear the case. 

What is Double Jeopardy? 

The Fifth Amendment of the United States Constitution prohibits a defendant from being tried twice for the same crime after he or she has been acquitted or convicted of the crime. These situations can become more complicated than one would expect, but a simple example of double jeopardy is this: Imagine a defendant is charged with robbing a bank. The defendant goes to trial, and the jury acquits him of robbing the bank. The same jurisdiction cannot then re-try him again for robbing the bank, even if prosecutors later uncover more evidence that would have likely led to a different verdict. 

It is important to note that under the federal constitution and subsequent case law, this protection only applies to the particular jurisdiction that tried the defendant. In other words, just because a defendant is acquitted of a crime at the federal level does not mean that the state government cannot prosecute for the crime too. However, the rules governing this depend on the jurisdiction. Pennsylvania offers much broader Double Jeopardy protections in comparison to other states. Thus, if a defendant is acquitted in federal court, Pennsylvania prosecutors cannot then bring charges. The reverse, however, is not true - if a defendant is acquitted in Pennsylvania court, the federal government can still bring charges. Click here to learn more about double jeopardy in general. 

The Double Jeopardy Clause also has a collateral estoppel component to it. What this means is that the government cannot re-litigate a fact that was decided in a defendant’s favor. To give a basic example of this, let’s assume that a defendant punched a person in the face and took their phone. This is technically a robbery, but it is also a simple assault. Let’s also assume that at trial, the government chooses only to proceed on the robbery charge and the defendant is found not guilty. The doctrine of collateral estoppel prevents the government from re-arresting the defendant for simple assault because he was already found not guilty of an essential fact of the case (i.e. punching the complainant) in the robbery trial. 

This idea of collateral estoppel, as discussed in Currier, is not a universally accepted idea by legal jurists and remains controversial. However, as the justices noted in their opinion, collateral estoppel was not the issue in this case, though it is a little confusing (as discussed below). The issue in Currier, according to the justices, was whether a defendant can waive his Double Jeopardy protections by seeking a severance of the charges filed against him. 

The Court Holds that a Defendant Can Waive His Double Jeopardy Protections When He Agrees to Severance of the Charges

In Currier, the Supreme Court held that a defendant may waive his Double Jeopardy protections when he elects to have two trials. In making its decision, the Court looked at its prior decisions that addressed the issue. In its research, the Court concluded that when a defendant elects to have two trials, he is no longer entitled to Double Jeopardy protections. The Court stated that the Double Jeopardy Clause was designed to protect against government oppression, not from the consequences of a defendant’s voluntary choice. 

The defendant, of course, argued that he had no real choice. If he had not elected to sever his cases, than the jury would have heard that he had prior convictions for the same offenses, and he would not have received a fair trial. However, the Supreme Court noted that though he was entitled to have separate trials under Virginia law, it was not a constitutional right to have separate trials. Thus, he was not forced to give up one constitutional right to secure another. Additionally, the Court held that because the defendant consented to the severance of the cases, the prosecution could still introduce evidence relating to the charges for which he had already been acquitted.

This decision will likely prove confusing and frustrating for criminal defendants because even though the defendant was found not guilty of the burglary and the grand larceny charges, the prosecution was allowed to introduce evidence for those crimes in his second trial. The Court made clear that its decision was based on the text of the Fifth Amendment and therefore held that the Double Jeopardy Clause only prohibits re-litigating offenses, not issues or evidence. Consequently, the Court held that the normal rules of evidence apply and thus a trial court must decide whether to allow the introduction of evidence and facts from the prior trial. 

Facing criminal charges? We can help.

Criminal Defense Attorneys Zak Goldstein and Demetra Mehta

If you are facing criminal charges in state or federal court, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of criminal cases in trial and appellate courts throughout Pennsylvania and New Jersey. If you are under investigation or have been arrested, we offer a 15-minute criminal defense strategy session free of charge. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today. 

PA Superior Court: Back Seat Passenger Not Automatically in Possession of Drugs and Guns in the Front of Car

Philadelphia Criminal Defense Attorney Zak Goldstein

The Pennsylvania Superior Court has decided the case of Commonwealth v. Parrish, reversing the defendant’s conviction for Possession with the Intent to Deliver (“PWID”), Conspiracy, Possession of a Controlled Substance, Paraphernalia, and gun charges such as Violation of the Uniform Firearms Act Section 6106. In Parrish, the Superior Court found that the evidence was insufficient to convict Parrish of the gun and drug charges because Parrish was merely the back seat passenger in a car which had guns and drugs in the front of the car.  

The Facts of Commonwealth v. Parrish

Parrish involved a motor vehicle stop. Police pulled a car over in Luzerne County for having illegally tinted windows. The vehicle pulled over on command, but as police approached the car, they noticed that it was rocking back and forth as if people were moving around inside of it. They could not see what caused the rocking because of the tinted windows. When the police got up to the car, the driver of the car rolled down the window. The officers immediately smelled marijuana and saw a plastic bag containing marijuana in plain view. They also saw the driver straddling the center console between the two front seats and the grip of a silver handgun protruding from under the front passenger seat. Obviously, that is a strange place for the driver of the car to sit. They saw the defendant, Parrish, seated behind the driver’s seat with his hands on the headrest of the driver’s seat.

Because they saw drugs and a gun in plain view, the officers immediately arrested the driver and Parrish. They searched the entire car. They found a black bag on the passenger side in the front of the car. That bag contained a loaded gun, 250 packets of heroin, 12 packets of methamphetamine, a baggie of loose heroin, two scales, and other drug paraphernalia and ammunition. They found marijuana on the passenger-side door and a .40 caliber handgun protruding from underneath the front passenger-side seat. The glove compartment contained an extra magazine of bullets, and in the trunk, they found a bulletproof vest. They found $1,335 in cash on the defendant and $2,168 on the driver. Parrish cooperated with the police during his arrest. He gave his real name, and he did not attempt to run.

Gun and Drug Charges Based on Constructive Possession

Police charged Parrish with various drug and gun charges, as well as Receiving Stolen Property. Before trial, the court separated the felon in possession of a firearm charge from the remaining charges so that the jury would not be prejudiced by knowing that the defendant had a prior criminal record. The defendant then proceeded by way of jury trial, and the jury convicted him of all charges.

At trial, police testified to the above facts. They also confirmed that Parrish was not the registered owner of the car, and he did not have a key to the glove compartment or trunk. Police also believed that based on the positions of the men in the car, the defendant was probably not the driver. They did not test any of the items for fingerprints or DNA. The Commonwealth also presented an expert witness to testify that based on the totality of the circumstances, the drugs in the bag were likely for sale and possessed with the intent to deliver.

In this case, the defense presented evidence, as well. The defendant called a friend to testify that he had been at a party at the friend’s house all afternoon on the day of the arrest. Parrish stayed at the party until approximately 2 am. The friend then asked the driver of the car to drive the defendant home. When the defendant left the party, he was not carrying a satchel or any kind of bag. The friend also saw defendant lay down in the back seat when the defendant got into the car. The jury convicted the defendant of all charges, and the trial court sentenced him to 88 to 176 months of incarceration in state prison.

The Appeal of the Criminal Case

The defendant filed post-sentence motions for reconsideration of the sentence, for a new trial, and for discovery which the prosecution had apparently not provided prior to trial. The trial court denied those motions, and the defendant appealed to the Superior Court. On appeal, the defendant raised four issues:

1. whether the evidence was sufficient to sustain the convictions,

2. whether the trial court should have awarded a new trial based on the weight of the evidence,

3. whether the court abused its discretion in allowing one of the police officers to testify as an expert witness that the fact that there were two guns in the car meant that one probably belonged to the defendant, and

4. that the sentence was illegal because the court ordered a restitution payment in a case with no victim.

The Superior Court’s Decision

The Superior Court only addressed the first issue because it resolved the case in the defendant's favor. The court noted that sufficiency of the evidence claims involve viewing all of the evidence admitted at trial in the light most favorable to the verdict winner and determining whether there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. Additionally, a conviction may be sustained entirely based on circumstantial evidence, but a jury is not permitted to simply guess. 

Here, the jury convicted Parrish of both gun charges and drug charges. Both types of charges required the prosecution to prove beyond a reasonable doubt that Parrish possessed the illegal items. Because the items were not physically on him, the prosecution’s case depended on a constructive possession theory. Possession can be found by proving actual possession, constructive possession, or joint constructive possession. Constructive possession exists when the defendant has the power to control the contraband and the intent to exercise that control. It may be proven by circumstantial evidence. At the same time, the defendant’s mere presence at the place where contraband is found or secreted is insufficient, standing alone, to prove that he exercised dominion or control over the items. Location and proximity to contraband alone are thus not conclusive of guilt. Instead, the Commonwealth must be able to prove at least that a defendant knew of the existence and location of the contraband.

Here, the court reversed the conviction because the defendant was sitting in the back of the car and all of the guns and drugs were in the front. Further, the evidence established that Parrish was not carrying any type of bag when he entered the car, he did not have the keys to the car, and he was not the owner or operator of it. There was no evidence that he had ever been seated in either of the car’s front seats. Neither of the recovered firearms was registered to him, and the police had failed to test any of the items for fingerprints or DNA. The Commonwealth also failed to present any evidence whatsoever that the defendant knew of the contents of the black bag in the front because the bag was opaque. The court also rejected the idea that the defendant could have moved from the front of the vehicle to the back due to his height and weight and the size of the vehicle. The court also ignored the testimony of the Commonwealth’s expert witness, which was likely improper, and it ultimately reversed the defendant’s conviction.

Facing criminal charges? We can help.

Philadelphia Criminal Lawyers Zak Goldstein and Demetra Mehta

Constructive possession is an issue that often comes up in gun cases and drug cases. In many cases involving traffic stops, the contraband in the vehicle is not actually physically on the defendant. In these types of cases, there are often defenses based on constructive possession because the prosecution may not be able to prove who in the car, if anyone, possessed the prohibited items. Even where the drugs or guns are in the actual possession of the defendant, there may be constitutional defenses to the search and seizure of the vehicle and its occupants. If you are facing criminal charges or under investigation for contraband recovered during a car stop, we can help. We offer a free criminal defense strategy session to each potential client. Call 267-225-2545 to speak with an experienced and understanding Philadelphia criminal defense lawyer today.

PA Superior Court: Trial Court Must Bifurcate Felon in Possession of Firearm Charges from Other Criminal Charges

Criminal Defense Attorney Zak Goldstein

The Pennsylvania Superior Court has announced its decision in Commonwealth v. Brown, holding that when the Commonwealth prosecutes 18 Pa. C.S.A. § 6105 (Persons Not to Possess a Firearms) (hereinafter § 6105), along with other charges, the trial court must sever the § 6105 charge from the other offenses and hear those other offenses first when the defendant’s prior conviction is only relevant for purposes of § 6105. This is a significant decision because it prohibits the Commonwealth from circumventing PA Rule of Evidence 404. Rule 404 prohibits the Commonwealth from telling the jury that the defendant has a criminal record, barring certain exceptions which do not apply in the typical gun case.  

The Facts of Commonwealth v. Brown

On March 26, 2015, a paratransit driver in Westmoreland County was at work. He was in the process of picking up patients and transporting them to various medical facilities. While working, he had a leather jacket with him, and in one of the pockets, he had a loaded gun. The jacket was draped over the driver’s seat in a way that made it accessible to the backseat passengers. The driver picked up the defendant and transported him to Latrobe Hospital. There were other occupants in the vehicle with the defendant. While driving, he felt a tug on his jacket. Although he was concerned about the gun, the paratransit driver decided he would not check on his gun until he transported the other occupants to their destinations. When the driver dropped the defendant off, he noticed that his gun was missing. He then called the police. Police went to the defendant’s house, frisked him, and searched the house, but they did not find the gun. The defendant told the police that he did not have it. 

Police eventually determined that the defendant’s nephew had the gun. When they questioned the nephew, he led the police to the gun and explained that the defendant gave it to him along with $50 for storing it. Police arrested the defendant and charged him with Theft, Receiving Stolen Property, § 6105, and Firearms Not to be Carried Without a License (VUFA 6106). Appellant had previous convictions for aggravated assault and robbery. These prior convictions made it illegal for him to possess a firearm. 

Pre-Trial Motions

Prior to trial, the defense attorney filed a Motion for a Bifurcated Trial for the § 6105 charge. The defense attorney argued that it would be prejudicial for the jury to hear that his client had the prior convictions. The trial judge agreed to bifurcate, however, seeking to aid the Commonwealth in its prosecution, the judge allowed the prosecution to proceed with the case as it saw fit. In other words, the trial court did not require that the Commonwealth present evidence of the § 6105 offense and relevant, unfairly prejudicial convictions after it presented evidence of the other alleged crimes like theft and receiving stolen property. Unsurprisingly, the Commonwealth chose to proceed with the § 6105 case first, and then that same jury heard evidence relating to the other charges. Consequently, the jury knew of the defendant’s prior criminal history before it heard the evidence for the other charges. The jury convicted the defendant and found him guilty of all four charges. The trial court sentenced him to three and a half to eight years of incarceration. Appellant appealed, and on appeal, he raised several issues. First, he attacked the sufficiency of the evidence. However, the main issue for purposes of the appeal was whether he was unfairly prejudiced when the trial court allowed the Commonwealth to proceed with the § 6105 charge before the other charges. 

Can the Prosecution Introduce Evidence of a Prior Criminal Record in a Criminal Trial? 

Generally, no. The rules of evidence often prohibit this because of the fact that juries are extremely likely to convict when they hear that a defendant has a prior criminal record. Rule 404 (a)(1) prohibits the use of evidence of a person’s character to show that on a particular occasion that this person acted in accordance with that character or trait. 404(b)(1) prevents the introduction of a crime in order to show that individual committed this particular crime. What these two subsections seek to prevent is the Commonwealth introducing evidence that a defendant, at some point in his or her life, did something morally wrong or committed some crime to show that he or she committed the crime that they are currently charged with. Obviously, this is a significant rule. If a jury were to hear that the person on trial had previously been convicted of a crime, then the jury is much more likely to convict. There are certain exceptions to this rule. For example, the Commonwealth can file what is referred to as a “Prior Acts Motion” to introduce prior crimes committed by a defendant to show a common scheme, motive, knowledge, lack of mistake, or intent. For example, if the defendant has been charged with burglary in which he or she wore a unique mask, the Commonwealth could probably introduce evidence of prior Burglary cases in which the defendant wore the same mask to show the identity of the defendant. These 404(b) exceptions typically do not apply in a routine gun case, and the Commonwealth did not file the required motion to admit prior bad acts evidence in advance. 

However, the Commonwealth may also introduce evidence of a prior crime when it is an element of the crime charged (i.e. § 6105). However, courts have consistently held that the introduction of the underlying conviction that makes the defendant ineligible to possess a firearm should be severed from the other parts of the case. The reason is obvious: as stated above, hearing that the defendant has a prior conviction will unfairly prejudice the jury. 

In Philadelphia, the common practice is that the Commonwealth and the defendant agree to have the judge decide whether the defendant has an underlying conviction that makes him or her ineligible to possess a firearm. Typically, there will be a stipulation because it is usually very clear whether or not the person is eligible to possess a firearm. Thus, the jury will not be privy to this information when deciding whether the Commonwealth met its burden for the other elements of § 6105 and the other, if applicable, charges against the defendant. Alternatively, the parties may agree to stipulate to an acquittal or conviction on the 6105 charge that matches the jury’s decision on the other charges. However, each jurisdiction has its own quirks, so you need an attorney who is familiar with the particular jurisdiction and its customs and practices to represent you if you are charged with § 6105.   

Superior Court Finds Commonwealth Must Bifurcate at Trial and Introduce Evidence for § 6105 After it Proves Other Charges

Although the Superior Court held that the trial court was correct in severing the § 6105 charge from the other charges, it stated that allowing the Commonwealth to choose the order in which to introduce evidence was “an exercise in futility.” The reason is obvious: allowing the Commonwealth to proceed with the § 6105 charge first clearly prejudiced the jury because the jurors became aware of the defendant’s prior convictions for robbery and aggravated assault. This, in essence, allowed the Commonwealth to circumvent the prohibitions outlined in Rule 404(b). The Superior Court saw through this and found that the defendant was clearly prejudiced and ordered that he receive a new trial. 

Call the Award Winning Law Office of Goldstein Mehta LLC if You Are Charged With Illegally Possessing a Firearm

Philadelphia Criminal Defense Lawyers

Gun crimes are very serious, and you need a skilled defense attorney if you are charged with illegally possessing a firearm. 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.