Commonwealth v. J.D.
Sep 04, 2018OUTCOME: Discharged Lack of Evidence
J.D. was arrested in Philadelphia and charged with Persons not to Possess Firearms, Firearms not to be Carried Without a License, and Carrying Firearms in Public Streets in Philadelphia. All of these c ... harges require that the government prove, in part, that the defendant “possessed” a firearm. At a preliminary hearing, the government’s burden of proof is very low, and most charges are held for court. The government must only prove that it was more likely than not (51%) that the defendant committed the crimes charged. By law, the court must view all of the evidence in a light most favorable to the government, give the government all reasonable inferences, and may not make credibility determinations. At J.D.’s preliminary hearing, the police officer testified that he saw a car drive by, driven by J.D., and the rear passenger was holding something that resembled a gun (the officer later explained that he determined this to be a camera). As the officer attempted to pull the car over, J.D. fled at a high rate of speed. After a ten block pursuit, J.D. was stopped and the officer physically removed him from the vehicle. The officer recovered a firearm from next to J.D.’s feet in the driver’s side floor area. It was later determined that J.D. did not have a driver’s license. Mr. Coleman sought to establish through cross-examination that J.D. was never in possession of the firearm. The police officer admitted that he never saw J.D. actually holding the firearm, so the Commonwealth had to prove that he had constructive possession of the gun. Constructive possession is where the defendant has dominion and control over the gun, but is not actually touching it. This means that the defendant knows where the gun is and has the ability to actually possess it. Commonly, it is sufficient to establish constructive possession when the gun is found in the defendant’s vehicle or is in close proximity to the defendant. At the conclusion of the preliminary hearing, Mr. Coleman made a motion to discharge all charges for lack evidence. This motion requests that the court discharge criminal charges, because the government failed to prove it was more likely than not (51%) that the defendant committed those crimes. In a stunning example of creativity, Mr. Coleman presented the court with an alternate explanation for the location of the gun. He argued that the rear passenger had the gun, and during the car chase he either threw it to the front or it slid under the seat to J.D.’s feet. The officer admitted on cross examination that he was not able to see what the passenger was doing during the car chase. Mr. Coleman argued that this scenario was more likely than J.D. going to great lengths to flee the police, but simply leaving the firearm in plain view at his feet. Ultimately, the court was persuaded by Mr. Coleman’s argument, and discharged all of the charges for lack of evidence. J.D. was released from custody within mere weeks of being charged with felony gun charges, that could have resulted in years of incarceration. Refuse to Lose!
