Pittsburgh Criminal Defense Lawyer

Self-Defense May Be Defense For Crime Of Person Not To Possess Firearm

In Commonwealth v. Miklos, 2017 PA Super 107 (April 17, 2017), Officers arrived on scene to find a man shot and dying. The mortally wounded man claimed that the defendant had shot him.  Thereafter the police arrested and interrogated the defendant who told police that the he and the victim were driving to get pills when the victim became suspicious and pulled a gun on him. The defendant explained that at one point he attempted to disarm the victim and, in the struggle, the gun discharged and wounded his assailant. According to the defendant, he shot the victim one more time when the victim began to grab at him. After firing the second shot, the defendant grabbed the victim’s money drove away with the gun still in his possession. Soon after, defendant tossed the firearm.

At trial, defendant was found not guilty of homicide or robbery, but was found guilty of being a person not to possess a firearm pursuant to 18 Pa.C.S. § 6105. He appealed his conviction, arguing that the evidence was not sufficient to find him guilty beyond a reasonable doubt. Where § 6105 requires the Commonwealth to prove that the defendant “possessed a firearm and that he was convicted of an enumerated offense that prohibits him from possessing, using, controlling, or transferring a firearm,” the defendant argued that he held the gun only for self-defense, and therefore, did not have the necessary affirmative intent required for a conviction.

The Court noted that a conviction under § 6105 does in fact require the Commonwealth to prove beyond a reasonable doubt that the defendant’s intended to possess a firearm. The Court also agreed that the defendant’s possession while he was attempting to protect himself from the victim using the firearm against him – including possession when the firearm discharged during the initial struggle –  was justified and would not support a conviction under §6105. However, after the firearm initially discharged and fell to the ground, defendant picked up the weapon, shot the victim a second time, and fled the scene with the firearm still in his control. The Court reasoned that the defendant’s possession after the victim was fatally wounded was not justified and supported his conviction for being a person not to possess a firearm.

Essentially, the Court held that the possession of a firearm by a person not to possess may be justified by self-defense. If a firearm is obtained in a struggle for one’s own protection, his or her possession should not punishable under § 6105. The court noted at least one court that reached this very conclusion. Citing Harmon v. State, 849 N.E.2d 726 (Ind. Ct. App. 2006) (concluding defense of self-defense available where the defendant came into possession of gun during an altercation). However, if the same person who justifiably took the gun for self-defense continues to exercise control over the same firearm after the need for self-defense has expired, his or her possession will support a conviction for person not to possess a firearm.

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