Tag Archives: possession

Chief Counsel Prince Secures MONUMENTAL Decision from the Superior Court, en banc, regarding Possession of Weapons on School Property

Today, the Superior Court, en banc, issued its decision in Commonwealth v. Goslin, 1114 MDA 2015, regarding whether an individual is entitled to claim the defense of “other lawful purpose” when carrying a weapon on school grounds.

As our viewers are aware, after the original devastating decision was issued by the Superior Court holding that one could not possess a weapon on school grounds, unless it was related to a school activity, Chief Counsel Joshua Prince contacted Mr. Goslin and offered to represent him in petitioning the Superior Court to reconsider his case, en banc, and permit re-briefing and oral argument. After filing the motion for reconsideration, the Superior Court vacated its prior decision, granted reconsideration, en banc, and permitted the parties to re-brief the matter and to argue the matter at oral argument. Thereafter, Chief Counsel Prince re-briefed the matter and attended oral argument.

Today, the Superior Court, en banc, without any dissenting opinions, filed its decision vacating the trial court’s finding of guilt and declaring:

We disagree with the trial court’s conclusion that the language of Section 912(c) is vague.
Rather, we conclude that, in order to ascertain the meaning of Section 912(c), we need not look beyond its plain language. The plain meaning of Section 912(c) provides two separate defenses: possessing and using a weapon on school property “in conjunction with a lawful supervised school activity” as well as possessing “for other lawful purpose.” (emphasis added, as Chief Counsel Prince specifically argued this exact construction and noted the different verbs utilized related to the different provisions)

Consistent therewith, the court declared that:

for purposes of the instant case, the plain meaning of the phrase “other lawful purpose” is an aim or goal different from, or in addition to, an aim or goal described in the first clause of Section 912(c), i.e., in conjunction with “a lawful supervised school activity or course.” The second clause of this subsection, thus, serves as a catchall provision.

Contrary to the trial court’s conclusion, the “other lawful purpose” language does not restrict the defense provided in Section 912(c). Instead, the phrase does just the opposite: it expands the defense to include any additional or different lawful reason not otherwise mentioned in the first clause of Section 912(c), regardless of whether it is school-related. (emphasis added, as Chief Counsel Prince additionally argued this construction of the statute).

The Superior Court also included a footnote declaring:

Although we are concerned about individuals possessing weapons on school property, we are bound by the broad defense that the legislature has provided defendants in such cases.

As our readers are aware, unfortunately,  Mr. Goslin was not in a position to fund this litigation and his costs will continue to accrue, as the case is now remanded back to the trial court. Therefore, if you are in a position to be able to help fund this monumental victory, Mr. Goslin would greatly appreciate donations which can be made online through our Firm’s escrow account here – https://secure.lawpay.com/pages/princelaw/trust. Simply place Goslin Appeal in the Matter No/Client Name box.

If you or someone you know has been charged with possessing a weapon on school grounds, contact us today to discuss YOUR rights.

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Filed under Firearms Law, Pennsylvania Firearms Law

While the Laws are Changing in Pennsylvania, Possession of Marijuana For Personal Use Remains a Crime.

Overshadowed by the enactment of Pennsylvania’s Medical Marijuana Act (“MMA”)in April is a bill introduce on May 17, 2016, by House Representative Ed Gainey which called for the amendment of Pennsylvania’s Controlled Substance Act, Drug, Device and Cosmetic Act, 35 P.S. 780-101 et. Seq. (“CSA”). Specifically, HB 2076 seeks to amend PA’s CSA by reducing the punishment for possession of small amounts of marijuana.

Currently, marijuana, or marihuana as spelled in PA’s CSA, remains classified as a schedule I drug. The definition of schedule I drug under PA’s CSA mirrors the definition of a Schedule I drug under the Federal Controlled Substance Act. Under Pa’s CSA. marijuana is defined as a substance with a high potential for abuse, no currently accepted medical use in the United States, and a lack of accepted safety for use under medical supervision.  The apparent conflict between the PA’s CSA and the MMA is resolved by section 2101 of the MMA which expressly states that the MMA takes precedence over PA’s CSA.

Under the PA’s CSA, the following is prohibited: (i) the possession of a small amount of marijuana only for personal use; (ii) the possession of a small amount of marijuana with the intent to distribute it but not to sell it; or (iii) the distribution of a small amount of marijuana but not for sale. For purposes of this subsection, thirty (30) grams of marijhuana or 8 grams of hashish shall be considered a small amount. 35 P.S. 780-113(a)(31).

Under PA’s CSA, any person who violates clause (31) of subsection (a) is guilty of an ungraded misdemeanor and upon conviction thereof can receive a maximum sentence of imprisonment not exceeding thirty days, or a fine not exceeding five hundred dollars ($ 500), or both. 35 P.S. 780-113(g).

According to Rep. Gainey, the proposed amendment will protect Pennsylvanians from the lifelong collateral consequences of a narcotics conviction by imposing a fine and a summary conviction for an individual possessing thirty (30) grams or less of marijuana or eight (8) grams or less of hashish. The proposed amendment would reduce the charge to a summary offense and the punishment to a fine of $100.00. Rep. Gainey believes this proposed amendment reflects the will of the people of Pennsylvania in light of the decriminalization of marijuana at the local level in the cities of Philadelphia and Pittsburgh and that decriminalization is being considered elsewhere including Harrisburg and Lancaster.

Additionally, under the Motor Vehicle Act, a person convicted of Possession of a Small Amount of Marijuana shall have their driver’s license suspended as follows:

(i) For a first offense, a period of six months from the date of the suspension

(ii) For a second offense, a period of one year from the date of the suspension

(iii) For a third and any subsequent offense thereafter, a period of two years from the date of the suspension.

75 Pa. Cons. Stat. Ann. § 1532 (C).

If the offense is reduced to a summary offense, there is no suspension of driver’s license under the Motor Vehicle Act.

Additionally, possession of a controlled substance remains prohibited under PA’s CSA. 35 P.S. 780-113(a)(16). PA’s CSA defines a “CONTROLLED SUBSTANCE” as a drug, substance, or immediate precursor included in Schedules I through V of this act and marijuana remains a Schedule I drug under Pa’s CSA. Anyone caught in possession of marijuana could be charged under subsection (a)(16) and can be found guilty of a misdemeanor, on conviction thereof, be sentenced to imprisonment not exceeding one year or to pay a fine not exceeding five thousand dollars ($ 5,000), or both.

The point is that while Pennsylvania’s laws with regards to personal possession of marijuana are changing, it remains illegal to possess marijuana for personal use with the two exceptions of the cities of Philadelphia and Pittsburgh.

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Unanimous U.S. Supreme Court Decision – Felons Do Not Lose Property Right in Owned Firearms

Today, the United States Supreme Court handed down its decision in Henderson v. U.S., No 13-1487, 575 U.S. _____ (2015),  holding that while a convicted felon is prohibited from “possessing” firearms pursuant to 18 U.S.C. 922(g), nothing strips the individual of his/her property interest in the firearms and the individual retains “the right merely to sell or otherwise dispose of their firearms,” provided the felon lacks all control over the firearms.

Justice Kagan writing for the unanimous Court declared that the issue before the Court was “what §922(g) allows a court to do when a felon instead seeks the transfer of his guns to either a firearms dealer (for future sale on the open market) or some other third party.” In responding to that question, the Court held “that § 922(g) does not bar such a transfer unless it would allow the felon to later control the guns, so that he could either use them or direct their use.”

This case stemmed from a U.S. Border Patrol Agent, Tony Henderson, being charged with a felony count of distributing marijuana. After the charges were filed, in deciding the terms of bail for Mr. Henderson, the Magistrate Judge required Henderson to relinquish all of his firearms to the Federal Bureau of Investigation. Mr. Henderson would later plead guilty to the charges, which would prohibit him under § 922(g) from possessing firearms. After his release from prison, he requested that his firearms be transferred to a friend of his, who had agreed to purchase them. The FBI denied the request stating that such would constitute “constructive possession.” Mr. Henderson then petitioned the District Court to have the court direct the FBI to transfer the firearms to his friend. The District Court denied his request and the 11th Circuit Court of Appeals affirmed the decision.

In vacating the 11th Circuit’s Decision, the Court explained that

Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, §922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or an-other person’s) guns. But that stick is a thick one, encompassing what the criminal law recognizes as “actual” and“constructive” possession alike. (Emphasis in original)

While acknowledging that “§922(g) prevents a court from ordering the sale or other transfer of a felon’s guns to someone willing to give the felon access to them or to accede to the felon’s instructions about their future use,” the Court declared that nothing prohibits the individual’s “right merely to sell or otherwise dispose of that item.”

In responding to the Government’s arguments that Mr. Henderson’s request should be denied, the Court stated

Yet on the Government’s construction, §922(g) would prevent Henderson from disposing of his firearms even in ways that guarantee he never uses them again, solely because he played a part in selecting their transferee. He could not, for example, place those guns in a secure trust for distribution to his children after his death. He could not sell them to someone halfway around the world. He could not even donate them to a law enforcement agency. Results of that kind would do nothing to advance §922(g)’s purpose.

and

A court may also grant a felon’s request to transfer his guns to a person who expects to maintain custody of them, so long as the recipient will not allow the felon to exert any influence over their use.

In this regard, it is extremely interesting that the Court specifically acknowledged that a “secure trust,” which I refer to as a prohibited person trust, is a lawful mechanism for family heirlooms to be held for future generations, provided the prohibited person does not have access to the firearms.

In determining the proper considerations for return of the firearms, the Court directed that a court is to seek certain assurances, such as, “it may ask the proposed transferee to promise to keep the guns away from the felon, and to acknowledge that allowing him to use them would aid and abet a § 922(g) violation.” Once these assurances are met, the court is to direct return of the firearms consistent with § 922(g).

You can find a copy of the fully decision here.

If you are a prohibited person and are seeking return of your firearms to an FFL or third-party, contact us today to discuss your legal options.

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Filed under ATF, Constitutional Law, Firearms Law

Press Release: Pending Litigation Against Municipalities That Violate Section 6120

As many news agencies are reporting on Firearms Industry Consulting Group (FICG) Chief Counsel Joshua Prince‘s letter to the City of Harrisburg, we believe it is important that everyone be aware of some of the issues being overlooked by the reporting.

As of this release, the reporting has failed to reflect that any such ordinance or regulation by a municipality or county is a violation of Pennsylvania’s Crimes Code, even absent the Act 192 amendments. Pursuant to 18 Pa.C.S. 6119, a violation of Section 6120, our state firearm preemption statute, is a misdemeanor of the first degree. This is the highest level misdemeanor that exists in the Commonwealth. In direct violation of the Crimes Code, Mayor Papenfuse has stated “The city’s not going to repeal its ordinances, because our police department feels that they are in the public interest, and I do too,” and Chief Carter said “officers regularly cite violators for reckless discharge of guns in the city and when minors are caught in possession of firearms.” It is unfortunate that our elected officials and law enforcement officers believe it is acceptable, and even gloat, that they are violating the Crimes Code by charging individuals, pursuant to illegal and unlawful ordinances and regulations.

Second, while some claim that such ordinances and regulations are in the best interest of the public, they have failed to show any statistical data that such ordinances and regulations deter/prevent crime or that other state level crimes, enacted by the General Assembly, are insufficient for prosecution. For example, if an individual recklessly discharges a firearm, depending on the circumstances, the individual can be charged with recklessly endangering another person, terroristic threats, aggravated assault and simple assault, all of which have been enacted by the General Assembly, are not prohibited by Section 6120 and carry grading levels of both felonies and misdemeanors. If the ability to charge an individual with a felony is not sufficient to dissuade that individual from committing a crime, clearly a summary offense, the lowest grade criminal charging that exists within the Commonwealth, will be insufficient to deter that criminal.

More importantly, whether it benefits the public is immaterial because the General Assembly has preempted any such regulation, as previously held by the PA Supreme Court and Commonwealth Court. If a municipality or county desires to have the law changed, instead of violating the Crimes Code, it can petition its representatives for such an amendment to the law. Unfortunately, due to municipalities ignoring the dictate of the General Assembly and District Attorneys failing to prosecute those that violate Section 6120, the Legislature was left with no recourse but to enact Act 192.

While we applaud those municipalities and counties that are taking immediate corrective steps to rescind their illegal ordinances and regulations, it is unfortunate that others, such as the City of Harrisburg, City of Philadelphia and City of Pittsburgh, are actively promoting the violation of our Crimes Code. What message does that send to our youth and the public? Is it in the public’s interest to have our youth believe that our elected official are above the law and will not be held accountable? If the concern is truly about the public interest, it is time that our elected officials take responsibility or be held responsible for their actions.

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In Pennsylvania, How Can I Force My Spouse to Move Out of the House?

By Matthew T. Hovey, Esquire

A common scenario after a husband and wife separate is neither party wants to move out of the marital residence/home.  For a variety reasons (e.g., financial, children, proximity to work, hope for reconciliation, spite, etc.), the parties remain in the same home, as roommates and attempt to maintain as much normalcy and civility as possible.  Often, unfortunately, the parties cannot make it work and one, or both, of the parties eventually wants the other other spouse out of the home.  The question is presented then: how can I force my spouse to move out of the house?

23 Pa.C.S. § 3502(c), “Family Home,” provides that “the court may award, during the pendency of the action or otherwise, to one or both of the parties the right to reside in the marital residence.”  In legal terms, we refer to this as filing “exclusive possession of the home.”  It is strongly recommended that you hire an attorney to prepare and prosecute the Petition for Exclusive Possession on your behalf.

In determining to whom to award exclusive possession of the home, the court will consider a variety of considerations, such as whether the party seeking relief can afford to maintain the home on his/her own, the impact of the award on any children, whether the other party can afford independent housing, any marital misconduct of the parties, and other considerations.  As a result, be especially prepared to demonstrate the financial abilities of both parties.  The court can also limit the award of possession of the home.  In other words, you could be granted the home during the pendency of the divorce, but in equitable distribution, the home is awarded to your spouse as part of the division of the marital estate.

If you, a family member, or a friend are currently residing with a spouse and are interested in exploring an action for exclusive possession of the home, please contact our office for a free initial consultation.

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Filed under Family Law