Gun charges are serious, and demand a serious defense. A conviction often carries the risk of years of incarceration. Fortunately, there are numerous ways to protect your liberties and defend your rights. The Philadelphia criminal defense attorneys at Montoya Coleman Refuse to Lose.

Firearms Not to be Carried Without a License

Firearms Not to be Carried Without a License is codified under 18 Pa.C.S. § 6106. In order for a defendant to be found guilty the government must prove four things: (1) possession of a (2) concealed (3) firearm (4) without a valid license.

  1. First, the defendant must have possessed the gun. This is simple when the gun is found in the defendant actual possession – in their hand or pocket. However, the defendant can also possess the gun through the concept of “constructive possession.” Constructive possession is where the defendant has dominion and control over the gun, but does not actually possess it. This means that the defendant knows where the gun is and has the ability to exercise control over the gun. This is commonly seen when gun is found in a car the defendant is driving or in a house the defendant lives in.
  2. Second, the defendant must have concealed the gun on his person or in a vehicle. It is not a violation of this statute to openly carry the gun, although it is a violation of another statute if it occurred in Philadelphia. Note that partial concealment is usually sufficient, such as tucked in the defendant’s waistband with the handle protruding.
  3. Third, the gun must be a firearm within the definition of the statute. Essentially, the gun must be operable or readily made operable. A BB gun or a gun that is broken and cannot be readily repaired would not be sufficient for the government to prove this charge. The government attempts to prove operability by having the gun tested by a ballistician, who will then prepare a report concluding that the gun is operable or what attempts they made in making it operable.
  4. Finally, the government must prove that the defendant did not have a license to carry a firearm. This is simply proven by doing a search in a database of all those who are licensed to carry firearms and producing a paper certifying that the defendant did not have such a license.

A conviction for Firearms Not to be Carried Without a License is a felony of the third degree, and carries a penalty of up to seven years incarceration. However, where the defendant would have been otherwise eligible to possess a firearm, but just didn’t have a license, then the conviction is a misdemeanor of the first degree and carries a penalty of up to five years incarceration.

Persons Not to Possess Firearms

Persons not to Possess Firearms is codified under 18 Pa.C.S. § 6105. In order for a defendant to be found guilty the government must prove three things: (1) possession of a (2) firearm (3) while prohibited.

  1. First, the defendant must have possessed the gun. This is simple when the gun is found in the defendant actual possession – in their hand or pocket. However, the defendant can also possess the gun through the concept of “constructive possession.” Constructive possession is where the defendant has dominion and control over the gun, but does not actually possess it. This means that the defendant knows where the gun is and has the ability to exercise control over the gun. This is commonly seen when gun is found in a car the defendant is driving or in a house the defendant lives in.
  2. Second, the gun must be a firearm within the definition of the statute. Essentially, the gun must be operable or readily made operable. A BB gun or a gun that is broken and cannot be readily repaired would not be sufficient for the government to prove this charge. The government attempts to prove operability by having the gun tested by a ballistician, who will then prepare a report concluding that the gun is operable or what attempts they made in making it operable.
  3. Finally, the defendant must be prohibited from possessing a firearm due to one of the reasons enumerated in the statute. Most commonly, a defendant will be prohibited due to a certain prior conviction (such as Possession with the Intent to Distribute), or where they have an active Protection From Abuse order on them.

A conviction for Persons Not to Possess Firearms carries different penalties depending upon the circumstances of the case. Where the defendant is in actual possession of the firearm, the conviction is a felony of the first degree and carries a penalty of up to twenty years incarceration. However, where the defendant has constructive possession of the firearm, the conviction is a felony of the second degree, and carries a penalty of up to ten years incarceration. And where the defendant is prohibited from carrying a firearm due to an active Protection From Abuse order or from a juvenile conviction, then the conviction is a misdemeanor of the first degree and carries a penalty of up to five years incarceration.

Carrying Firearms on Public Streets in Philadelphia

Carrying Firearms on Public Streets in Philadelphia is codified under 18 Pa.C.S. § 6108. In order for a defendant to be found guilty the government must prove four things: (1) possession of a (2) firearm (3) in Philadelphia (4) without a valid license.

  1. First, the defendant must have possessed the gun. This is simple when the gun is found in the defendant actual possession – in their hand or pocket. However, the defendant can also possess the gun through the concept of “constructive possession.” Constructive possession is where the defendant has dominion and control over the gun, but does not actually possess it. This means that the defendant knows where the gun is and has the ability to exercise control over the gun. This is commonly seen when gun is found in a car the defendant is driving or in a house the defendant lives in.
  2. Second, the gun must be a firearm within the definition of the statute. Essentially, the gun must be operable or readily made operable. A BB gun or a gun that is broken and cannot be readily repaired would not be sufficient for the government to prove this charge. The government attempts to prove operability by having the gun tested by a ballistician, who will then prepare a report concluding that the gun is operable or what attempts they made in making it operable.
  3. Third, the defendant must have been carrying the firearm in public streets, or public property, in Philadelphia.
  4. Finally, the government must prove that the defendant did not have a license to carry a firearm. This is simply proven by doing a search in a database of all those who are licensed to carry and producing a paper certifying that the defendant did not have such a license.

A conviction for Carrying Firearms on Public Streets in Philadelphia is  a misdemeanor of the first degree and carries a penalty of up to five years incarceration.

Defending Gun Charges - Motions

A Motion to Discharge requests that the court discharge criminal charges because they are insufficient at the preliminary hearing. At a preliminary hearing the government must prove that it was more likely than not that the defendant committed the crimes charged. By law, the court must view all of the evidence in a light most favorable to the government, give the government all reasonable inferences, and may not make credibility determinations. This means that even if it is apparent that a witness is lying, the court cannot dismiss charges based on that. Due to this very low standard, most criminal charges are held for court after a preliminary hearing.

If the court refuses to dismiss criminal charges at a preliminary hearing, the defendant may file a Motion to Quash requesting that a higher court dismiss the charges because they were insufficient. The higher court will review the evidence presented at the preliminary hearing to determine whether it was more likely than not that the defendant committed the crimes charged. The government may also supplement the record by presenting new evidence at the Motion to Quash hearing.

A Speedy Trial Motion requests that the court dismiss the entire case due to the government’s failure to bring the defendant to trial within a specified period of time. Generally this is 365 days from the date the criminal complaint is filed, but in Philadelphia Municipal Court it is 180 days. Excluded from this calculation of time are delays attributable to the defense and delays where the government was “duly diligent.” The crucial issue for the court to determine usually centers around whether the government was duly diligent. Often the government will not be ready for trial because a witness has failed to appear or mandatory discovery (evidence) has not been passed to the defense. The court has to analyze whether the government was duly diligent in securing the witness’s appearance for court or providing discovery.

A Motion to Suppress requests that the court suppress, or not allow, certain evidence to be introduced at trial. This evidence may be defendant’s statement or physical evidence – such as a gun. This evidence should be suppressed if the government obtained it by violating the defendant’s constitutional rights in some manner. The Constitution requires that all people, and their property, be free from unreasonable searches and seizures, and that warrants be supported by probable cause. Some typical constitutional violations occur when the police: arrest someone because they look suspicious, stop a car that has not violated a traffic law, search a house without a warrant, or take a defendant’s statement without reading Miranda warnings (you have the right to remain silent, you have the right to an attorney…).

If the court determines that the evidence was obtained in violation of the defendant’s constitutional rights, then the evidence cannot be introduced at trial. This often results in the government withdrawing certain, or all, criminal charges. For example, with gun charges the government is required to prove possession of a gun, but if the gun is suppressed from evidence the government cannot prove this.

Defending Gun Charges - Trial

The lawyers at Montoya Coleman have secured many victories by arguing that the government failed to prove the defendant possessed the gun. This usually arises in “constructive possession” cases, where multiple people have access to the gun. For example, the defendant is the front passenger in a car and, during a car stop, police recover a gun from underneath the defendant’s seat. The police will usually arrest both the driver and the passenger and let the courts figure it out. They may even exaggerate (lie) what they saw and claim the defendant was reaching underneath the seat. While this is completely unfair, it is common and, therefore, vital to have an experience criminal defense attorney ready to challenge this evidence.

The lawyers at Montoya Coleman have won countless gun cases by arguing that the defendant was mistakenly identified as the person that had a gun. Maybe the defendant looks like the person with the gun, or was just in the wrong place at the wrong time. Either way, it is important to have an experienced criminal defense attorney to analyze identifying characteristics to determine whether there was a mistaken identification. Obviously if it is determined that the defendant is not the person who possessed the gun then it is a Not Guilty.

On the other hand, other times people will straight up lie and claim that the defendant had a gun. Their are a million different reasons to motivate someone to want to get another person in trouble. It is important to have an experience criminal defense attorney determine what their motive to lie could be and sell this to the judge or the jury. In addition, nearly every minor detail is of great importance as every inconsistency must be highlighted in order to impeach the witnesses’ credibility. The lawyers at Montoya Coleman are not afraid to call alleged “victims” liars and expose their lies to a judge or a jury.

Another common defense is that the firearm is not a definition of a “firearm” within the statute. As discussed above, in order for a gun to be considered a firearm, for most gun charges, the government must prove that the gun was either operable or readily made operable. Where there is no gun ever recovered then an argument can be made that it is insufficient to show that the gun was operable. Also, if the ballistics expert indicated that he/she had to take certain steps in order to make the gun operable, then the defense can argue that it was not readily operable such that the defendant could have made it operable. Note that operability is not required for Persons not to Possess a Firearm.

This defense only applies to the Firearms Not to be Carried Without a License charge. As discussed above, the government must prove the defendant concealed the firearm. Where there was no evidence of concealment an experience criminal defense attorney can argue that the evidence is insufficient to prove this charge, which would result in a Not Guilty.