Felony Gun Charges Dismissed For Lack of Evidence – What happened at this preliminary hearing in Delaware County, Pennsylvania

Case Summary – Our client was charged with felony gun crimes in Pennsylvania

Recently, our criminal defense law represented a young man who was arrested in Salem County, New Jersey on an outstanding arrest warrant out of Media, Delaware County, Pennsylvania for illegal gun charges.  This young man was stopped for an unrelated traffic offense and wasn’t even aware of the arrest warrant.  The Salem county police took him into custody and he spent 2 months in jail, waiting for extradition before his family contacted our law firm for assistance. 

We immediately took action to expedite his movement to Pennsylvania.  When he arrived in Pennsylvania, he was charged with several counts of Pennsylvania’s Uniform’s Firearms act under Section 6105 (Possession of Firearm by a Prohibited); Section 6106 (Possession of a handgun without a license) and Section 6110 (Possession of Firearm with obliterated serial number).  These are all felony offenses in Pennsylvania and our client faced a likely state prison sentence if convicted  

What happened at the preliminary hearing? 

The prosecution presented one witness at the hearing; the police officer who stopped and arrested our client.  After the officer’s testimony and our cross examination, the judge dismissed the gun charges for lack of evidence! 

In most illegal gun and firearm cases a lower court judge will find that there is sufficient evidence for the case to proceed to trial. The burden at this level is very low so basically the assistant district attorney only has to present a witness, usually a police officer, who testifies he found a gun on your person or around your immediate control. With that said, most people think that a preliminary hearing is waste of time or something where they really don’t need to hire an experienced criminal defense lawyer. This is a complete mistake; just because your case is “held for trial” doesn’t mean that the preliminary hearing was a loss or unsuccessful for the defense.

At this preliminary hearing we focused on the prosecution’s inability to establish a prima facie case against our client based on a lack of constructive possession.  In this case, police stopped the car and searched the vehicle’s trunk where they recovered the gun.  Our client, however, was a passenger in the vehicle and nothing in the trunk connected him to the gun found.  This was critical! 

What is actual vs. constructive possession in Pennsylvania and New Jersey?

Actual possession is when the alleged contraband is found on the suspect’s person. Constructive possession is when the item is found in the persons area of immediate control.  It is very important to understand that your criminal defense lawyer must have a strong command of this concept because it is often critical in any trial involving individuals who often face felony convictions and the possibility of State prison.  In New Jersey, for example, most gun crimes involve mandatory minimum sentencing.  While Pennsylvania does not carry mandatory minimum sentencing in cases, nevertheless, people face serious jail terms in Pennsylvania following a conviction for a gun crime.

When should your criminal defense lawyer make the constructive possession argument? 

A strong constructive possession argument is often made when the contraband is found in a trunk or perhaps in a container where several people have access to the said container. Your criminal defense lawyer should make all arguments because the burden is on the State (Commonwealth) to prove guilt beyond a reasonable doubt, which is the standard in all criminal Courts across the United States.

It is important that your criminal attorney evaluate actual constructive possession and form arguments around these concepts.  If you have questions about these concepts, you should ask your criminal defense lawyer and that person should be able to explain them to you in a clear and concise manner.

Actual and constructive possession is also an argument that can assist with bail both in Pennsylvania and New Jersey.  Pennsylvania’s bail system is based on a monetary amount and New Jersey is based on a Public Safety Assessment (PSA).  The factors which determine bail are danger to the community, potential flight risk and of the allegations made against the individual. 

How your criminal defense lawyer should handle your preliminary hearing in Pennsylvania

There are situations where waiving a preliminary hearing makes strategic sense but this is only after a careful evaluation of the advantages and disadvantages of going forward with it. If your criminal defense lawyer is advising you to move forward with the hearing his or strategies should focus on the following 3 points:

1. Gather information

This hearing is your first opportunity to evaluate the strength of the prosecution’s case usually in the form of one of their strongest witnesses. Most experienced judges won’t allow a defense attorney to ask questions about possible illegal search and seizure issues, or questions meant to impeach the credibility of a witness. These types of questions are for pre-trial and trial but that doesn’t mean that your defense lawyer should ignore them completely. During the hearing your attorney should collect information about the lighting conditions, the witness’s position in relation to the incident, the length of the observation and what, if anything, was happening around the witness during the observation.

2. Only leading questions of the prosecution’s witnesses

Preliminary hearings are for the prosecution to present its prima facie case against the accused and not to establish guilt. Your defense attorney, however, must use this opportunity to lock the prosecution’s witnesses into an answer and there is no better way of doing it than leading questions. Leading questions, unlike open-ended questions (aka non leading) imply the answer in the question itself. For instance, a leading question is something like, “it was raining out, correct?” A non-leading question is “what was the weather like on the day in question?” Leading questions allow your attorney to control the witness’s response and doesn’t allow the witness to add further details which could hurt your case.

3. Argue what the prosecution didn’t argue

The prosecution’s burden at a preliminary hearing is very low and challenging their argument will do little if anything to cause the judge to dismiss or downgrade charges. It is much stronger to argue what the prosecution didn’t present. In a drug case, for instance, where the charge is possession with the intent to deliver (PWID) your attorney should focus on the lack of observed sales, lack of drug sale paraphernalia (bags, scales, etc.) and the absence of money. On a gun or firearm charge your attorney should look at the location of the gun if the person is charged with VUFA 6106. This particular charge requires the gun be out of the person’s home or place of business. On a drunk driving or DUI charge your criminal defense lawyer should look at the length of the officer’s observation if you are charged with general impairment under Section 3802(a)(1).

What to do if police stop your vehicle and want to search it for an illegal handgun or narcotic? 

Our criminal defense law firm represents person charged with crimes in Pennsylvania and New Jersey.  These crimes involve allegations of drunk driving, illegal drug, narcotics, and possession of illegal guns and firearms.  We always tell readers and clients to respect police and law enforcement but to never give consent to search their vehicle, their home or property.  In addition to not giving consent to search, a person should never speak to police without a lawyer present. 

Contact Our Criminal Defense Illegal Gun Lawyers in PA & NJ

Please click here to contact our Philadelphia criminal defense lawyers. We offer free case reviews and serve the following areas in Pennsylvania and New Jersey,  Atlantic City, Camden, Cherry Hill, Chester, Conshohocken, Doylestown, Media, Norristown, Philadelphia, Pottstown, Salem, Upper Darby, Upper Merion, Upper Providence, Vineland & Woodbury areas.