In Pennsylvania, the Uniform Firearms Act (Section 6101) deals with all matters pertaining to the use, transfer, sale, and maintenance of firearms. Pennsylvania classifies a firearm as any pistol or revolver with a barrel length less than 15 inches, any shotgun with a barrel less than 18 inches, or any rifle with a barrel less than 16 inches. A firearm is also any one of these devices (pistol, revolver or shotgun) with an overall length of less than 26 inches. While the Act covers all issues related to firearms, the purpose of this short article is to explain the most common violations that we see in criminal courts which are Sections 6105—Possession by a Prohibited Person, Section 6106—Possession by an Unlicensed Person, Section 6108—Carrying on a City Street or Public Property in the City of Philadelphia Without a License and Section 6110.2—Possession of a Firearm with an Altered Manufacturer’s Number.
Prior to explaining each of these specific offenses, it is important to understand that, unlike other crimes, the law does not require that a court merge offenses following a conviction. Merger does not permit a court to punish a person for two offenses arising from the same incident where the legislature intended that one offense to encompass the crime. Robbery (an illegal taking by force, however slight) and Theft (illegal taking), for example, merge provided that both offenses derived from the same incident. Under VUFA, however, there is no merger so it is possible for person to be convicted and sentenced for multiple violations under the Act for the same firearm. While judge can run sentences concurrently (at the same time) they are not obligated to do so.
While many defense attorneys immediately focus on a person’s connection to the firearm it is important that they do not overlook the weapon’s operability. To obtain a conviction the prosecution must establish that the firearm was operable or that the alleged actor had within his control the ability to make it operable (insert firing pin etc.) This element is particularly important in situations involving very old firearms moved out of a home or otherwise transferred. The prosecution, however, only must establish this element if the defense introduces evidence of inoperability. In addition to operability the prosecution must also establish possession.
As you may know from my previous articles the government can establish this element through the introduction of testimony or other evidence which establishes actual or constructive possession. Actual possession means that the firearm was found on the defendant’s person (in their hand, inside clothing, etc.) Constructive possession means that it was found in the defendant’s “conscious dominion”. “Conscious Dominion” basically means that a person had the power to control the firearm and the intent to exercise that control. If the prosecution establishes these elements, the law then requires that it prove specific elements of a particular section under the Act.
In Pennsylvania a person is prohibited from carrying a firearm anywhere accept in his place of business or his home without a valid license. A person who violates this law commits a felony of the third degree under section 6106. If a person has been previously convicted of certain crimes (i.e. enumerated offenses under Act—crimes of violence or dishonesty) and found in possession of a firearm without a license, he commits a felony of the second degree under section 6105.
If you are convicted of a crime there is a strong probability that you will be denied a firearm license especially if the crime falls under one of the Act’s enumerated offenses. In addition to denying you a firearms’ license the law, through section 6105, has created an additional crime which subjects you to a higher criminal penalty if you choose to disregard this prohibition.
The Act also covers the alteration or obliteration of a firearm under Section 6110.2. The obliteration or alteration of a firearm’s serial number prevents law enforcement from finding out more information about it. A person who commits a crime under Section 6110.2 is guilty of a felony of the 2nd Degree. The prosecution will often argue that the alteration of the serial number is evidence that the person intending on using the firearm for an illegal purpose.
Finally, Section 6108 was created specifically for illegal possession of a firearm on a city street or on public property within the City of Philadelphia. While it is not a felony, it is usually charged with other violations (6105, 6106, 6110.2) and as stated earlier it will not merge as a lesser included offense of a felony charges. A conviction under 6108, while less of a charge, could still increase the penalty under the law.
In closing, if you are charged with VUFA it is very important that your attorney focus on possible 4th Amendment violation issues (i.e.- probable cause—illegal search and seizure), 5th Amendment violations (self-incrimination) in addition to issues specific to firearms (possession, control, and operability.) While mandatory minimums pertaining to firearms are no longer considered constitutional in Pennsylvania, the sentencing guidelines for convictions remain high. Pennsylvania is very tough on illegal firearms. If you are found guilty, you will more than likely face a state prison sentence even if you have no prior convictions.