Philadelphia Criminal Defense Blog

Zak Goldstein 2/5/24 Zak Goldstein 2/5/24

Third Circuit Finds Laws Prohibiting 18 – 20 Year Olds From Carrying Guns Probably Unconstitutional

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

The United States Court of Appeals for the Third Circuit has decided the case of Lara v. Commissioner Pennsylvania State Police, holding that Pennsylvania’s firearm laws, which prohibit 18 – 20-year-olds from carrying firearms, are probably unconstitutional. Federal courts in Pennsylvania and throughout the country have recently found many firearms regulations unconstitutional, and this latest case may have the effect of making Pennsylvania’s VUFA § 6106 and § 6108 statutes unconstitutional when applied to someone who is 18, 19, or 20 because Pennsylvania law prohibits someone who is under 21 from obtaining a license to carry a firearm and Philadelphia bars all public carrying of firearms without a license.

Under 18 Pa.C.S. § 6106(a), 6109(b), and §§ 6101 – 6128, an individual may not carry a concealed firearm without a license, and an individual must also be at least 21 years old to apply for a license. This is true even during a state of emergency. Ordinarily, Pennsylvania citizens may open-carry without a license outside of Philadelphia, but when the state has declared an emergency, an individual may not open carry without a license unless they are actively engaged in a “defense” or one of the fifteen other exceptions in § 6106(b) applies. There are exceptions for transporting a gun home from purchasing it or traveling to and from a shooting range.

The plaintiffs filed suit in federal court against the Commissioner of the Pennsylvania State Police in October 2020 seeking an injunction prohibiting the Commissioner from arresting them for carrying firearms. At that point, Pennsylvania had been in a state of emergency for three years due to COVID-19, the opioid addiction crisis, and Hurricane Ida. Accordingly, the plaintiffs, who were under 21, could not carry firearms outside of their homes openly due to the state of emergency or in a concealed manner because someone under 21 cannot obtain a license to carry. The district court granted the Commonwealth’s motion to dismiss the case. The plaintiffs appealed to the Third Circuit Court of Appeals, and the Third Circuit ruled that the statutes are unconstitutional when applied to 18-to-20-year-old citizens.

Where do these gun challenges come from?

The recent successful challenges to gun regulations come from two United States Supreme Court cases – District of Columbia v. Heller, and Bruen v. New York State Rifle & Pistol Association, Inc.

In Heller, the Supreme Court recognized that an individual has a Second Amendment right to possess a handgun in the home for self-defense regardless of whether they serve in a militia. Any law that banned all firearm possession in the home would therefore be unconstitutional. Specifically, the Court found a DC law which required firearms in the home to be rendered and kept inoperable at all times to be unconstitutional.

Then, in Bruen, the Supreme Court held that the Second and Fourteenth Amendments protect the right to carry a handgun outside the home. Bruen in particular has supported these recent challenges to gun regulations.

The US Supreme Court adopted a two part test for evaluating the legality of firearms regulations.

First, a court determines whether the Second Amendment’s plain text covers an individual’s conduct. If it does, then the Constitution presumptively protects the conduct.

Second, a court determines whether the regulation in question is consistent with the Nation’s historical tradition of firearm regulation. If it is, then the presumption applied as part of the first test is overcome, and the regulation is permissible. If it is not, then the regulation is unconstitutional. In order to prove that a regulation satisfies the second part of the test, the government bears the burden of identifying a “founding-era” historical analogue to the modern firearm regulation. In other words, the government must find similar laws from around 1791, or the regulation is unconstitutional. The laws need not be identical, but they must be very similar.

Here, the Third Circuit ruled in favor of the plaintiffs.

First, it concluded that the Second Amendment plainly applies to the action of carrying a firearm outside of the home and that adults under 21 are among the people protected by the Second Amendment.

Second, it concluded that the government could not point to a historical regulation that is analogous to the laws in question. Although there were similar laws on the books when the Fourteenth Amendment was ratified in 1868, the Court found that the government had to find similar laws from 1791 when the Second Amendment was ratified. In the court’s view, the government could not satisfy this burden, so the statutes are unconstitutional. The only law the government could find was a 1721 law which prohibited “carrying any gun or hunting on the improved or inclosed land of any planation other than his own.” This law had nothing to do with age, so the court found it to be irrelevant to this case. Meanwhile, numerous laws from that time period showed that young adults were actually permitted to or even required to arm themselves and serve in the miliia upon turning 18. Therefore, the Court granted the plaintiffs’ request for an injunction prohibiting the Commissioner from arresting law-abiding 18-to-20 year olds who openly carry firearms during a state of emergency declared by the Commonwealth.

The final impact of the Court’s holding is still open to debate. The Court did not find the statutes to be entirely unconstitutional. Instead, it simply granted an injunction directing the State Police not to arrest 18-to-20-year-olds for openly carrying guns during a state of emergency. The injunction was not technically issued against the Philadelphia Police Commissioner, but he would likely be sued should he ignore it. It also did not address the unique statutes in Philadelphia. This is important because Philadelphia does not allow the open carrying of a firearm without a license to carry. Similarly, for the rest of the state, the statute is arguably applicable only to carrying a firearm during a state of emergency because the statutes only completely prohibit open carry without a license during such a state of emergency. If the state of emergency provision were eliminated, then the laws may be constitutional, and it is not clear whether 18-to-20-year-olds have the right to obtain a license to carry.

It does seem likely, however, that the federal courts would find Pennsylvania’s statutes unconstitutional in Philadelphia because the laws which apply to Philadelphia make it permanently illegal for an 18-to-20-year-old to carry a firearm either openly or in a concealed fashion. Philadelphia never allows open carry without a license, and someone under 21 cannot get a license, so like an 18 year old in the rest of the state during a state of emergency, an 18 year old in Philadelphia can never carry a firearm outside of the home. Accordingly, if you are 18-to-20 years old and charged with carrying a firearm without a license in Philadelphia, you may have a viable motion to dismiss the charges as unconstitutional.

It is important to remember that even though you may have a viable motion to dismiss and the laws may be unconstitutional, the laws are still on the books. The Philadelphia Police are still enforcing them, and the state courts have largely rejected these types of constitutional challenges. Further, the Third Circuit could revisit this opinion en banc, or the United States Supreme Court could grant review. The Supreme Court has accepted appeals in post-Bruen cases challenging gun regulations, and it is very possible that the Supreme Court could decide that many of these regulations are still constitutional and overrule the lower courts. Therefore, it is generally better not to carry a firearm illegally and potentially be the test case in case this opinion does not hold up or the state courts ignore it. Nonetheless, if the Supreme Court approves of these rulings or does not address them, it will become increasingly difficult for the state courts to continue to ignore them. Ultimately, if you have been charged with carrying a firearm without a license or on the streets of Philadelphia and you are under 21, you should speak with one of our experienced gun lawyers today.

Read the Third Circuit’s Opinion

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

Criminal Defense Lawyer 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 in cases involving charges such as Conspiracy, Aggravated Assault, Rape, and 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.

Zak Goldstein 1/23/24 Zak Goldstein 1/23/24

Can prosecution witnesses testify by video? Sometimes.

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esquire

In most cases, witnesses in criminal cases may not testify by video. This is particularly true for the prosecution as the defendant has a confrontation clause right to confront their accusers, and the appellate courts have held that that right includes the right to cross-examine witnesses face-to-face in the courtroom. The legislature, however, has provided that under certain circumstances, child witnesses may testify by video from somewhere else in the courthouse in a different room from the defendant. In the recent case of Commonwealth v. Lamont, the Superior Court upheld the defendant’s convictions for sexual assault charges and held that the trial court properly allowed the child complainant to testify contemporaneously via video.

The Facts of Lamont

In 2019, the complainant told her grandmother that the defendant, her grandmother’s boyfriend, had molested her. The complainant lived near the grandmother’s house, and the defendant would sometimes babysit the complainant while the complainant’s mother was at work. The grandmother confronted the defendant. He admitted to touching the complainant but claimed it was an accident. He promised to apologize. (This is a good example of why it is best to just remain silent when confronted with criminal allegations. Claiming that touching someone inappropriately was an accident is generally not going to help your case.)

After the defendant apologized to the complainant, the complainant told the grandmother the defendant had in fact molested her several times rather than just once. Again, the grandmother confronted the defendant. This time the defendant just stood there. The grandmother left for work, and the defendant left the home with all his belongings. The grandmother then contacted the police.

The defendant called the grandmother and begged her not to press charges. He apologized, threatened to commit suicide, and claimed he did not know why he molested the victim. (Again, this is incredibly damaging for a criminal case.) The grandmother put the call on speakerphone, and the complainant’s mother and her best friend overheard the conversation.

Prosecutors inevitably filed serious sexual assault charges against the defendant. Despite confessing to everyone, he proceeded by way of jury trial. Prior to the jury trial, the Commonwealth file a motion under 42 Pa.C.S. § 5985 notifying the defendant of its intention to have the complainant testify via video. The trial court held a hearing granting the Commonwealth’s motion and granted it. The complainant testified at trial via video. The jury convicted the defendant of serious Megan’s law offenses, and the defendant appealed.

Did the trial court properly let the complainant testify by video?

The defendant raised a number of issues on appeal, but the most interesting was his challenge to the trial court’s decision to allow the child complainant to testify via video. Pennsylvania law sometimes allows for child complainants to testify in a room other than the courtroom and have that testimony transmitted contemporaneously via video.

Prior to allowing a child victim to testify via video, however, the court must hold a hearing in open court or in camera and allow the parties to present evidence. Based on the evidence, the court must make a decision as to whether testifying either in an open forum in the presence of the fact finder or in the presence of the defendant will result in the child complainant suffering serious emotional distress that would substantially impair the child victim’s ability to reasonably communicate. In making this determination the court may observe the child complainant inside or outside the courtroom and/or hear testimony from a parent or custodian. Serious emotional distress does not just mean that the child will be upset. It does have a specific definition which deals with whether it will impair the child’s ability to communicate.

In this case, the defendant objected to the video testimony and argued that the complainant’s fear was not testifying in front of the defendant. Instead, the defense argued that the complainant’s real fear was that no one would believe her. The defendant claimed the complainant’s hesitance to testify in front of him came from speaking about a traumatic event, not from having to testify in open court, and therefore that the Commonwealth did not show the complainant would be unable to reasonably communicate in his presence.

The Superior Court’s Decision

The Superior Court approved of the trial court’s decision to allow the contemporaneous video testimony. The Superior Court relied on the record from the pre-trial hearing in the courtroom at which the mother and complainant testified. The Court noted the mother’s testimony regarding the changes in her daughter’s behavior after disclosing the incidents. Specifically, the mother testified that her daughter, the complainant, used to be involved in numerous sports and that she no longer participated in any of them. She said the complainant’s temperament changed from “very quiet” to “attacking” and explained the complainant had been nervous about testifying in front of the defendant. She stated the complainant had a “sigh of relief” when the mother told her she could testify by video.

Further, the Superior Court noted the victim’s testimony explaining that it was important when she gave a statement previously that the defendant was not there because it made it easier for her to focus on her testimony and not on the defendant.

In making its decision, the Superior Court noted that the trial court had the opportunity to observe the changes in the complainant’s demeanor and body language when she thought of testifying in front of the defendant. It believed the trial court had the best opportunity to assess the complainant’s state of mind in the context of the entire circumstances surrounding the proceeding before making its decision. The Court found the trial court’s on-the-record observations supported its finding that the defendant’s presence would have caused serious emotional distress and impaired the victim’s ability to communicate in the courtroom. Further, the Court found that the defendant suffered no prejudice because the trial court instructed the jury that video testimony is not out of the ordinary. Therefore, the Court affirmed the defendant’s conviction.

It is important to note that the video testimony must be contemporaneous and subject to cross-examination. Pre-recorded testimony is almost never allowed, and the defense must still have the opportunity to cross-examine a complainant. The video must also work - if there are issues with the connection, the quality of the audio or video, or the ability for the jury to hear and see the complainant, then that could be the basis for a challenge to this type of testimony, as well. Ultimately, this rule undermines a defendant’s right to confrontation. The whole purpose of subjecting witnesses to cross-examination live in the courtroom is to see if they will stick to their story when they have to face the accused. Indeed, that is the very definition of confrontation, and allowing witnesses to testify to a camera rather than the jury makes it easier for them to lie. Nonetheless, for now, the courts have approved of this type of video testimony for at least some juvenile alleged victims.

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

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 1/15/24 Zak Goldstein 1/15/24

The New 2024 Pennsylvania Sentencing Guidelines

A major update to the Pennsylvania Sentencing Guidelines went into effect on January 1, 2024. The new guidelines significantly revamp Pennsylvania’s system for sentencing defendants following a conviction at trial or guilty plea. The guidelines had largely been handled the same way since their creation, but now, the Pennsylvania Commission on Sentencing has significantly changed the way prior record scores are calculated and created a very different sentencing matrix. The old guidelines still apply to offenses committed before 2024. The new 8th edition of the guidelines apply for offenses committed on or after January 1, 2024.

What are the sentencing guidelines?

As an introductory reminder, prior to sentencing a defendant in Pennsylvania state court, a judge must calculate the guidelines for the offense. Every offense has an offense gravity score, and every defendant has a prior record score. The judge must correctly determine the offense gravity score (OGS) and the defendant’s prior record score (PRS). Where those two numbers meet on the sentencing guidelines matrix then provides the judge with a recommended range for the minimum sentence. With the exception of very short sentences (like 30 days in jail for possession of marijuana), every sentence in Pennsylvania must have a minimum and a maximum. The maximum must be at least double the minimum in order for the sentence to be legal.

Under Pennsylvania’s guidelines system, the judge must correctly calculate the sentencing guidelines and then consider sentencing the defendant within the range provided by the guidelines for the defendant’s minimum sentence. Ultimately, the judge does not have to sentence the defendant within the guidelines. The judge could decide there is something less serious about the case and go below the guidelines or something more serious about the case and go above the guidelines. Guideline sentences, however, are very difficult to appeal. It is generally easier to appeal a sentence when the judge departs from the guidelines.

The basic idea of the new guidelines is the same; every offense will have guidelines based on an offense gravity score and a prior record score. Calculating those numbers, however, has become a little bit more complicated.

The Offense Gravity Score

The offense gravity score is relatively easy to determine. The Pennsylvania Commission on Sentencing provides a list of offenses, and each offense has a numerical offense gravity score that goes with it. First, the defense attorney must determine the offense gravity score for each offense charged by reviewing the list of offenses in the complaint or bills of information. It is important to look at the specific subsection charged as different subsections may have different offense gravity scores.

Second, the attorney must determine whether any enhancements apply. The two most common enhancements are the deadly weapon possessed and the deadly weapon used enhancements. They apply when a deadly weapon like a gun or a knife was either used or possessed during the commission of the crime.

If a deadly weapon was possessed but not used, then the offense gravity score will be two points higher.

If the deadly weapon was used, then the offense gravity score will be three points higher.

The deadly weapon enhancements do not apply if the statute itself always involves the use of a deadly weapon because the use of a deadly weapon is an element of the offense. Possessing an instrument of crime, prohibited offensive weapons, possession of a weapon on school property, assault with a deadly weapon, and violations of the uniform firearms act do not require the application of the deadly weapon enhancements because the possession or use of a deadly weapon is part of the offense.

There are three other enhancements which are less likely to apply.

First, there is a school zone enhancement. If a controlled substance was delivered or possessed with the intent to deliver in a school zone, then there is a one point addition to the offense gravity score.

Second, there is a criminal gang enhancement of two points.

Third, there is a domestic violence enhancement of two points. If the defendant committed the offense against a family or household member, then the enhancement may apply.

It is important to accurately calculate the offense gravity score. Further, the calculation of the correct offense gravity score may be subject to litigation. If the Commonwealth alleges that a particular object was a deadly weapon but the object was not a gun or a knife, it may be possible to argue that the object was not actually a deadly weapon.

The defense should carefully review the pre-sentence investigation and calculation of the guidelines and object if the guidelines seem too high or are based on allegations the Commonwealth may not be able to prove. It is important to remember that the Commonwealth bears the burden of establishing that an enhancement applies by a preponderance of the evidence. It is not necessarily the defense attorney’s job to prove that it does not apply. The Commonwealth, however, may use circumstantial evidence in order to meet this burden.

The Prior Record Score

Second, the defense attorney must properly calculate a defendant’s prior record score. The system for determining the offense gravity score did not change significantly with the enactment of the new guidelines, but dealing with the prior record score is very different. Instead of looking at each charge for which a defendant has been convicted and assigning points to that charge and then adding those points up, the prior record score will now be based on the most serious offense of conviction for each case where a defendant was convicted of a crime.

There are four categories of offenses.

First, there are misdemeanors which have not been designated as serious crimes (POG1 offenses).

Second, there are third degree felonies and unclassified felonies (like possession with the intent to deliver) which have not been designated as serious crimes (POG2 offenses).

Third, there are serious crimes, first-degree felonies, and second-degree felonies (POG3 offenses). VUFA offenses and SORNA offenses are generally considered serious crimes that fall within the third category.

Fourth, there are crimes of violence which would otherwise be considered strike offenses (POG4 offenses). These include offenses like first-degree felony aggravated assault, attempted murder, rape, IDSI, and certain robberies and burglaries. There are other offenses which fall within this list. They are defined in 42 Pa.C.S. § 9714(g).

In calculating the prior record score, the defense attorney must determine which prior offense on the defendant’s record is the most serious. The attorney should then determine how many offenses of the same seriousness fro which the defendant has been convicted. The number of offenses for which the defendant has been convicted of the same seriousness will then determine the defendant’s prior record score based on where that number falls on this chart.

New 2024 Prior Record Score Chart — The Prior Record Score Matrix

For example, using the above chart, a defendant with two misdemeanors (which go under the POG1 category) will fall under prior record score one.

A defendant with two F1 robberies (which are crimes of violence that fall under POG4) will have the highest prior record score of four.

A defendant with three prior possession with the intent to deliver cases, which fall under POG2, will fall under prior record score three.

A defendant with two VUFA convictions (POG3), would have a prior record score of three.

Lapsing of Convictions for the Prior Record Score

Under the old guidelines, convictions were permanent. Even if a defendant was convicted of an offense fifty years ago, the offense would still count towards the defendant’s prior record score unless the offense was a juvenile adjudication and a certain amount of time had passed in between the adjudication and new offense. Now, convictions will no longer count if a defendant goes a certain amount of time in between arrests.

Juvenile Adjudications

First, juvenile adjudications lapse relatively quickly.

Juvenile adjudications for POG1 offenses (mostly misdemeanors) do not count towards the prior record score.

Juvenile offenses in POG2 (mostly third-degree felonies and PWIDs) do not count once the defendant turns 25.

POG3 offenses (felony ones and felony twos that are not crimes of violence) do not count if the defendant is “crime-free” for ten years.

Finally, POG4 adjudications (crimes of violence) do not count after 10 years crime-free if they were committed when the defendant was between 14 and 16 or after 15 years crime-free if the defendant was 16 or older.

Adult Convictions

Under the old guidelines, adult convictions counted forever. Now they may lapse after a certain amount of time.

POG1 offenses lapse after ten years from the conviction date even if the defendant was not crime-free.

POG2 and POG3 offenses lapse after 15 years of being crime-free.

POG4 offenses lapse after 25 years of being crime-free.

The time period for being crime-free runs either from the date of release from incarceration or the date of the sentence if the defendant received probation.

Again, if there is a dispute, the Commonwealth bears the burden of proving that lapse should not occur.

The following is the definition of a crime-free period:

‘‘Crime-free period.’’ Following a conviction and sentence and subsequent release to the community, the completion of a prescribed period of time without commission of a new felony or misdemeanor, for which the person pleads guilty or nolo contendere or is found guilty. For non-confinement sentences, release to the community begins on the date of sentencing; for confinement sentences, release to the community begins on the date of initial release on parole, or release following completion of the confinement sentence, whichever is earlier.

The New 2024 Pennsylvania Sentencing Guidelines Matrix

Once the criminal defense attorney has calculated the offense gravity score and prior record score, the next step is to see where those numbers meet on the below matrix. That number then provides a recommended minimum sentence for the judge to consider. The judge may go higher or may go lower, but the judge must properly calculate the guidelines and consider them. The judge must put the guidelines on the record, and if the judge decides to go above or below the guidelines in sentencing the defendant, the judge must announce the reasons for the departure on the record at the time of sentencing. The failure to properly calculate the guidelines or put the reasons for a departure on the record could be the basis for a successful appeal.

New 2024 PA Sentencing Guidelines Matrix — The New 2024 Pennsylvania Sentencing Guidelines Matrix (8th Edition)

A Judge May Depart From the Guidelines

Finally, a judge may depart from the guidelines. Judges may consider the following factors when deciding whether to depart:

(i) Nature and circumstances of the offense:

(A) Neither caused nor threatened serious harm.

(B) Conduct substantially influenced by another person.

(C) Acted under strong provocation.

(D) Substantial grounds to justify conduct.

(E) Role in offense.

(F) Purity of controlled substance.

(G) Abuse of position of trust.

(H) Vulnerability of victim.

(I) Temporal pattern.

(J) Offense pattern.

(K) Multiple offenses in a criminal incident.

(ii) History and character of the person:

(A) No history of criminal conduct.

(B) Substantial period of law-abiding behavior.

(C) Circumstances unlikely to recur.

(D) Likely to respond affirmatively to probation.

(E) Imprisonment would entail excessive hardship.

(F) Accepts responsibility.

(G) Provides substantial assistance.

(H) Compensated victim or community.

(I) Character and attitude.

(J) Treatment for substance abuse, behavioral health issues, or developmental disorders or disability.

(2) Unless otherwise prohibited by statute, the consideration of validated assessments of risk, needs and responsivity, or clinical evaluations may be considered to guide decisions related to the intensity of intervention, use of restrictive conditions, and duration of community supervision.

(3) Adequacy of the prior record score. The court may consider at sentencing prior convictions, juvenile adjudications, or dispositions not counted in the calculation of the PRS, in addition to other factors deemed appropriate by the court.

Obviously, this is a big list of reasons for a potential departure. At the end of the day, it is important to remember that the new guidelines, like the old ones, are not mandatory minimums. They provide the judge with a starting point for the potential sentence. In some counties, the guidelines are treated almost as mandatory minimums and it is rare to see judges go below or above the guidelines. In others, the guidelines are routinely calculated but then ignored. Additionally, the guidelines do not tell the judge whether to impose consecutive or concurrent sentences for different offenses. It is also not clear yet whether separate cases which were consolidated and disposed of at the same time will count as one case or two cases for calculating the prior record score, so some of these things will still be subject to litigation. Either way, it is important to correctly calculate the guidelines as they will give the defendant an idea of what they are facing if they are convicted and the improper calculation of the guidelines at sentencing could be the basis for an appeal or PCRA claim.

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

Philadelphia Criminal Lawyer Zak T. Goldstein, Esquire

Zak Goldstein 1/14/24 Zak Goldstein 1/14/24

PA Legislature Reforms Probation to Limit Jail for Technical Violations and Encourage Early Termination of Probation

The Pennsylvania legislature recently passed a probation reform bill which improves the conditions of probation and provides some protections to defendants under many circumstances. The bill did not go as far as advocates wanted, but it does implement some meaningful changes to probation in Pennsylvania. The governor signed Senate Bill 838 into law at the end of December 2023, and it is important to be familiar with the changes created by the new law. Learn more.