Possession of a Firearm in Philadelphia
Possession of a firearm or gun has become one of the most serious offenses in Philadelphia as the District Attorney tries to curb the gun violence in the city. It is often the first step taken toward any violent offense. While you are subject to incarceration merely for possession of a firearm without a license to carry, the penalties escalate dramatically for every offense committed while in possession of a firearm, even if the gun is never discharged. Due to recent legislation, possession of a firearm during the commission of most violent crimes and possession with intent to deliver drugs triggers mandatory minimum sentences where the judge has no discretion but to impose significant state incarceration. For example, if you are convicted of robbery, burglary, rape, aggravated assault, attempted murder or other violent crimes and you are in possession of a firearm, the court must impose a mandatory sentence of 5 years of incarceration. In victim crimes such as those mentioned above, the 5 year mandatory sentence even applies if an object that the victim believes is a firearm is used during commission of the crime. For example, if you rob a store or individual using a replica firearm, a BB gun or even a fake gun that is believed to be a firearm, the sentencing guidelines require that the mandatory be imposed. These are mandatory minimums so the judge can, and often does, impose significantly longer sentences depending on the violent nature of the crime, your criminal background and whether you chose to go to trial or resolve the matter by way of a plea.
Possession of a Gun in Philadelphia & Drug Distribution Charges
If charged with possession with intent to deliver marijuana, cocaine, heroin, pills or any other drug and you or a co-defendant are in possession of a firearm or a gun is found in close proximity to the drug sales, you and your co-defendant are subject to a mandatory 5 year state sentence if convicted. This issue most often arises where drug sales are taking place from a house. After undercover police or a confidential informant buy drugs out of a residence, police will apply for a search warrant under the theory that they expect to find additional drugs in the home. During execution of the warrant, police recover drugs, money and paraphernalia such as unused baggies, scales and razor blades. But, in many instances they also recover multiple firearms as drug dealers carry guns to protect their business. At least, this is the prosecution’s theory. Where in the house the guns are recovered, whether they are found in plain view and recovery of proof of residents for who owns and lives in the house are key to defending against this theory.
Common Firearm Charges in Philadelphia
- 18 Pa.C.S. § 6106: In every county in Pennsylvania it is illegal to be in possession of a firearm concealed on your person or in a vehicle without a valid license to carry. A full definition of this section of the Uniform Firearms Act can be found below. This is graded as felony of the third-degree and therefore carries a maximum penalty of 7 years incarceration. If convicted of Section 6106 and you can prove that you were otherwise eligible for a license to carry but simply never applied for a license, it may be graded as a misdemeanor of the first-degree, which carries a maximum penalty of 5 years of incarceration.
- 18 Pa.C.S. § 6108: In Philadelphia County there is an additional firearm charge for simply possessing a gun on the streets of Philadelphia without a carry permit. Section 6108 is a first-degree misdemeanor punishable by up to 5 years in prison. A full definition can also be found below. This area of the crimes code is known as the Uniform Firearms Act and violations of this section are often referred to as VUFA (Violation of the Uniform Firearms Act).
- 18 Pa.C.S. § 6105: After VUFA § 6106 and 6108, described above, the third most common gun offense charged in Philadelphia is VUFA § 6105. This is graded as a second-degree felony unless the prior triggering offense occurred when the defendant was a juvenile in which case it is a first-degree misdemeanor. Section 6105 is essentially possession of a gun by a convicted felon. That is, if you have previously been convicted of certain crimes and you are found in possession of a gun or in constructive possession as discussed in greater detail here, you will be charged with VUFA § 6105. While a complete list of the triggering offenses can be found below, the most common prior offenses include:
- Possession with intent to deliver narcotics;
- Aggravated assault;
- Attempted Murder;
- Arson; and
- Intimidation of a Witness.
If convicted of VUFA § 6105 you are facing significant state prison time because the offense has a high offense gravity score and you have to have a prior record score of at least two in order to qualify for the offense. Therefore, the sentencing guidelines, at a minimum call for 3 years of state incarceration and one can receive as much as 5 to 10 years if convicted of this offense.
- 18 Pa.C.S. § 6111: Straw gun purchasers are charged with VUFA § 6111 for the illegal sale or transfer of a firearm, tampering with public records, unsworn falsifications and related offenses. A straw purchase is when someone who has no prior record goes to a gun store or show and indicates on paper that they are buying the gun for themselves but are truly buying it for a convicted felon or someone who is otherwise not authorized to purchase or possess a firearm. It is quite common for women to get charge with committing this offense as they are buying the gun for a boyfriend who cannot make the purchase due to a prior felony conviction. A straw purchaser is often caught after being observed receiving money or getting into a car with a male after making a gun purchase. Detectives interrogate these women and due to fear and a lack of familiarity with the criminal justice system, they admit that they falsified documents to buy the gun for someone else. As discussed in this post, you should never speak with law enforcement under any circumstances.
Because firearm charges are possessory offenses, the most common defenses are similar to those charged with possession and possession with intent to deliver narcotics. Those defenses include pre-trial motions to suppress, illegal search and seizure, mere presence, police and civilian witness credibility and actual versus constructive possession. These defenses are discussed in great detail here. I also wrote an article explaining actual versus constructive possession here. If you are arrested for possession of a firearm in Philadelphia, Montgomery, Delaware, Bucks or Chester County, you are facing significant jail time if convicted. Therefore, these charges require a criminal defense attorney who has significant experience in filing and arguing motions to suppress and challenging the credibility of police officers. Brian M. Fishman of The Fishman Firm, LLC has fought and won many cases in which clients were charged with possession of a firearm. Contact Philadelphia firearm attorney Brian M. Fishman today by email or call him at 267-758-2228 for a free consultation concerning your gun case.
- 6106(a). Firearms not to be carried without a license.
- (1) Except as provided in paragraph (2), any person who carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license under this chapter commits a felony of the third degree.
- (2) A person who is otherwise eligible to possess a valid license under this chapter but carries a firearm in any vehicle or any person who carries a firearm concealed on or about his person, except in his place of abode or fixed place of business, without a valid and lawfully issued license and has not committed any other criminal violation commits a misdemeanor of the first degree.
- 6108. Carrying firearms on public streets or public property in Philadelphia. No person shall carry a firearm, rifle or shotgun at any time upon the public streets or upon any public property in a city of the first class unless:
- (1) such person is licensed to carry a firearm; or
- (2) such person is exempt from licensing under section 6106(b) of this title (relating to firearms not to be carried without a license).
- 6105. Persons not to possess, use, manufacture, control, sell or transfer firearms.
- (a) Offense defined.
- (1) A person who has been convicted of an offense enumerated in subsection (b), within or without this Commonwealth, regardless of the length of sentence or whose conduct meets the criteria in subsection (c) shall not possess, use, control, sell, transfer or manufacture or obtain a license to possess, use, control, sell, transfer or manufacture a firearm in this Commonwealth.
- (b) Enumerated offenses. – The following offenses shall apply to subsection (a): – Section 908 (relating to prohibited offensive weapons). – Section 911 (relating to corrupt organizations). – Section 912 (relating to possession of weapon on school property). – Section 2502 (relating to murder). – Section 2503 (relating to voluntary manslaughter). – Section 2504 (relating to involuntary manslaughter) if the offense is based on the reckless use of a firearm. – Section 2702 (relating to aggravated assault). – Section 2703 (relating to assault by prisoner). – Section 2704 (relating to assault by life prisoner). – Section 2709.1 (relating to stalking). – Section 2716 (relating to weapons of mass destruction). – Section 2901 (relating to kidnapping). – Section 2902 (relating to unlawful restraint). – Section 2910 (relating to luring a child into a motor vehicle or structure). – Section 3121 (relating to rape). – Section 3123 (relating to involuntary deviate sexual intercourse). – Section 3125 (relating to aggravated indecent assault). – Section 3301 (relating to arson and related offenses). – Section 3302 (relating to causing or risking catastrophe). – Section 3502 (relating to burglary). – Section 3503 (relating to criminal trespass) if the offense is graded a felony of the second degree or higher. – Section 3701 (relating to robbery). – Section 3702 (relating to robbery of motor vehicle). – Section 3921 (relating to theft by unlawful taking or disposition) upon conviction of the second felony offense. – Section 3923 (relating to theft by extortion) when the offense is accompanied by threats of violence. – Section 3925 (relating to receiving stolen property) upon conviction of the second felony offense. – Section 4906 (relating to false reports to law enforcement authorities) if the fictitious report involved the theft of a firearm as provided in section 4906(c)(2). – Section 4912 (relating to impersonating a public servant) if the person is impersonating a law enforcement officer. – Section 4952 (relating to intimidation of witnesses or victims). – Section 4953 (relating to retaliation against witness, victim or party). – Section 5121 (relating to escape). – Section 5122 (relating to weapons or implements for escape). – Section 5501(3) (relating to riot). – Section 5515 (relating to prohibiting of paramilitary training). – Section 5516 (relating to facsimile weapons of mass destruction). – SecHomicide Attorneytion 6110.1 (relating to possession of firearm by minor). – Section 6301 (relating to corruption of minors). – Section 6302 (relating to sale or lease of weapons and explosives)./li>
- (a) Offense defined.
Any offense equivalent to any of the above-enumerated offenses under the prior laws of this Commonwealth or any offense equivalent to any of the above-enumerated offenses under the statutes of any other state or of the United States.
The Fishman Firm, LLC, is a criminal law firm located in Philadelphia, PA. Attorney Brian M. Fishman is a criminal defense attorney who concentrates his practice on defending the rights of those accused of criminal offenses. He has successfully defended clients in a wide range of criminal cases, and will aggressively defend your rights in court and in negotiations outside the courtroom. If you have been charged with any criminal offense in Philadelphia, Montgomery, Delaware, Bucks or Chester county, contact Brian M. Fishman at his Philadelphia office now to schedule a free consultation with an experienced Philadelphia criminal defense lawyer.