Pennsylvania Governor Tom Wolf recently vetoed a bill passed in the Pennsylvania Senate which would have allowed lawful gun owners to conceal carry and open carry within the Commonwealth without a permit. Currently, Pennsylvania prohibits concealed carry unless the owner obtains a permit from either the chief of police in Philadelphia County or his/her equivalent in other Pennsylvania counties. A person who violates this law under Title 18 § 6106 commits a felony offense in most situations but it can also be graded as a misdemeanor if police, following the arrest, charge no other crimes or offenses.
Pennsylvania Open Carry Law
Open carry is currently lawful in Pennsylvania with the exception of Philadelphia County where it remains illegal. A person who carries a hand gun or firearm without a permit in Philadelphia commits not only a felony offense under section 6106 but a misdemeanor under 6108 (carrying a firearm in public in Philadelphia).
Gun Offenses in Pennsylvania – Prohibited Persons Offenses
In addition to these gun crimes in Pennsylvania, a person who chooses to carry a gun or firearm but who also has a prior conviction for any crime of violence, felony drug offenses, or is a fugitive from justice in another state, commits a felony offense in Pennsylvania under section 6105. These individuals are known as “prohibited persons” and this is a separate gun crime from section 6106, 6108, and 6110.2 (possession of a firearm with obliterated serial number).
Gun Crimes and Merger in Pennsylvania
None of these offenses merge for the purposes of sentencing and so, a judge, following a conviction or plea, can sentence a convicted person to consecutive or concurrent terms. Keep in mind that violations of 6105 or 6106 do not have to be felony offenses and their grading is based on the circumstances surrounding the incident.
Gun are not always felonies in Pennsylvania
For example, section 6105 is a misdemeanor of the 3rd degree where one possesses a firearm who is the subject of an active protection from abuse order. Section 6105 is a felony of the first degree if the individual has a prior conviction for any drug crime, prior gun crime, or a crime of violence. Possession of a firearm with an altered or obliterated serial number is a crime of the 2nd degree this crime does not merge for the purposes of sentencing with any other gun crime. Keep in mind the Commonwealth must prove more than mere possession, but knowledge also.
Actual vs. Constructive Possession
It’s important to understand that your mere presence in a vehicle which contains contraband does not establish your possession of an illegal item beyond a reasonable doubt. I’ve written in the past about actual vs. constructive possession. Actual possession means that the illegal item is found on your person while constructive possession means that the item is found within your immediate control and you had the ability to exercise dominion and control over it.
Motor Vehicle Stops & Possession
There are a number of cases in Pennsylvania which state that unless the prosecution can establish constructive possession of an item against all occupants within a motor vehicle, it cannot establish constructive possession against one occupant. This case law is very strong for a defense and it’s important that your criminal lawyer keep it in mind if your case involves a motor vehicle stop and any type of illegal gun, drug, or weapon.
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