Yesterday, a Delaware County Pennsylvania Jury found my client guilty of the illegal possession of firearm (handgun) (VUFA 610, 6105) but not guilty of possession with the intent to deliver (PWID) a Controlled Substance (Heroin). While obviously I and the client were disappointed with this result, our firm doesn’t hide the fact that we don’t always win our cases. Unlike some, I’m not the “perfect litigator” online who only publishes my firm’s victories, ignoring the losses, and giving the appearance that we always go home winners—we don’t. Obviously, our firm never wants to lose a case but losing is a part of being a true trial lawyer and simply calling yourself a trial lawyer. If an attorney avoids the courtroom and prefers to settle cases, it’s much easier to stay “perfect.”
In this most recent case, our client was charged with violations of Pennsylvania’s Uniform Firearm’s Act (Sections 6105, 6106) felonies of the second and third degree and possession with the intent to deliver Heroin (ungraded felony). His arrest occurred following the execution of a search warrant during which police recovered a large quantity of heroin, 2 handguns, and a large quantity of cash with the house. While my client was not in actual possession of the drugs or the guns when police entered the home, the prosecution presented a constructive possession argument to the jury of 5 men and 7 women in the courthouse in Media. This was a smart strategy given that Pennsylvania, like New Jersey, doesn’t require the prosecution to prove that an accused person was in actual possession of contraband beyond a reasonable doubt.
The prosecution can establish constructive possession through circumstantial and direct evidence. The circumstantial evidence in this case consisted of my client’s presence in the home of known drug dealers (police surveillance) along with trace DNA evidence which linked him to the firearm. There was virtually no direct evidence in this case because assistant district attorney couldn’t present any witness who could testify that my client sold drugs or possessed the handgun. The direct evidence of constructive possess was presented in the form of police officer testimony who testified at trial that the gun and the drugs were within feet of our client when they entered the house during the execution of the warrant. Remember constructive possession exists when the contraband is accused’s area of immediate control and they have the ability to exercise control over it.
In addition to the direct and circumstantial evidence, the prosecution argued that our client attempted to flee from the home when police entered. Fleeing from police often gives the assistant district attorney the opportunity to argue consciousness of guilt. While our defense was able to effectively address the prosecution’s argument on this issue, consciousness of guilt is an extremely damaging toward any defense.
The most challenging piece of evidence in this case was the DNA evidence. The prosecution’s expert created a link to our client that I couldn’t persuade the jury to overlook. Even though that expert’s testimony was not entirely conclusive, the jury used it to corroborate the prosecution’s other circumstantial evidence and convict our client of the illegal firearm charges. There wasn’t any DNA evidence linking my client to any of the drug and the drug paraphilia. This fact, combined with the lack of any observed drug sales led to the not guilty verdict on that charge. While the prosecution presented a drug expert in an attempt to bolster its case, I was able to effectively cut through his testimony during cross examination.
In closing, our firm doesn’t win all of its cases but our commitment to our clients remains the core of practice. I encourage you to visit the rest of my free download section to learn more about us.