Regular Session 2021-2022 House Bill 1587 P.N. 1761

PRINTER'S NO. 1761

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

No.

1587

Session of

2021

INTRODUCED BY A. BROWN, KAUFFMAN, KINSEY, ISAACSON, T. DAVIS,

STEPHENS, ORTITAY, PISCIOTTANO, BURNS, ROWE, HEFFLEY,

R. BROWN, PARKER, MARKOSEK, McNEILL, MALAGARI, FITZGERALD,

DALEY, GROVE, ECKER, SAYLOR, YOUNG, BERNSTINE, WHITE, IRVIN

AND C. WILLIAMS, JUNE 10, 2021

REFERRED TO COMMITTEE ON JUDICIARY, JUNE 10, 2021

AN ACT

Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and

Judicial Procedure) of the Pennsylvania Consolidated

Statutes, in assault, providing for arrests of previously

convicted persons possessing firearms in a subsequent

offense; and, in sentencing, providing for sentences for

previously convicted persons possessing firearms in a

subsequent offense.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1. Title 18 of the Pennsylvania Consolidated

Statutes is amended by adding a section to read:

§ 2711.1. Arrests of previously convicted persons possessing

firearms in a subsequent offense.

(a) General rule.--An arresting officer may not release a

person from custody prior to taking the person to appear before

the issuing authority if:

(1) the person is arrested for committing any

misdemeanor or felony offense while knowingly in physical

possession or control of a firearm, whether visible,

concealed about the person or within the person's reach,

during the commission of the offense; and

(2) prior to the arrest, the person was convicted of an

offense enumerated under section 6105(b) (relating to p ersons

not to possess, use, manufacture, control, sell or transfer

firearms ) or adjudicated delinquent by a court as a result of

conduct which, if committed by an adult, would constitute an

offense under section 6105(b) within the prior five years,

excluding time spent confined to a State or county

correctional institution or juvenile detention center.

(b) Minimum requirements.--Notwithstanding 42 Pa.C.S. § 5702

(relating to bail to be governed by general rules) or any other

provision of rule or law, in determining whether to admit the

person to bail, the issuing authority may not permit the release

of a person subject to subsection (a) on the person's own

recognizance, under an unsecured monetary condition of release,

or on a deposit bail program administered by the county where

the offense occurred.

§ 5702 or any other provision of rule or law, the issuing

authority shall consider whether a person subject to subsection

(a) poses a threat of danger to any person and the community,

including the following:

(1) A finding by the issuing authority that there is

reasonable suspicion to believe that a person subject to

subsection (a) committed any of the following offenses while

knowingly in physical possession or control of a firearm,

whether visible, concealed about the person or within the

person's reach, shall be considered evident proof and great

presumption that no condition or combination of conditions

20210HB1587PN1761 - 2 -

other than imprisonment will reasonably assure the safety of

any person and the community:

(i) A crime of violence, as defined in 42 Pa.C.S. §

9714(g) (relating to sentences for second and subsequent

offenses).

(ii) An offense under sections 2701(a)(2) (relating

to simple assault), 4952 (relating to i ntimidation of

witnesses or victims ), 4953 (relating to r etaliation

against witness, victim or party ), 4953.1 (relating to

r etaliation against prosecutor or judicial official ) or

4958 (relating to i ntimidation, retaliation or

obstruction in child abuse cases ).

(iii) Any other offense resulting in death or

serious bodily injury, as defined in section 2301

(relating to definitions).

(2) A finding by the issuing authority that there is

reasonable suspicion to believe that a person subject to

subsection (a) committed a violation of a specific term of

the person's probation, parole or bail for a previous

offense, by knowingly being in physical possession or control

of a firearm, whether visible, concealed about the person or

within the person's reach, shall be considered evident proof

and great presumption that no condition or combination of

conditions other than imprisonment will reasonably assure the

safety of any person and the community.

(3) Notwithstanding a finding by the issuing authority

of evident proof under paragraph (1) or (2) that no condition

or combination of conditions other than imprisonment will

reasonably assure the safety of any person and the community,

the issuing authority may admit a person subject to

20210HB1587PN1761 - 3 -

subsection (a) to bail if, based on the totality of the

circumstances, the issuing authority concludes by a

preponderance of the evidence that the person does not pose a

threat of danger to any person and the community.

(d) Construction.--Nothing in this section shall be

construed to:

(1) Modify the presumption of innocence.

(2) Eliminate or limit the ability of a person to seek a

bail review hearing before the issuing authority or a court

of competent jurisdiction in accordance with any other

provision of law or rule of procedure.

Section 2. Title 42 is amended by adding a section to read:

§ 9712.2. Sentences for previously convicted persons possessing

firearms in a subsequent offense.

(a) Illegal possession of firearm following previous

conviction.--A person shall be sentenced to a minimum sentence

of total confinement as set forth in subsection (b),

notwithstanding any other provision of this title or other

statute to the contrary, if:

(1) the person is convicted under 18 Pa.C.S. § 6105(a)

(1) (relating to p ersons not to possess, use, manufacture,

control, sell or transfer firearms ); and

(2) prior to this conviction, the person was convicted

of:

(i) an offense under 18 Pa.C.S. § 6105(a)(1) within

the prior five years, excluding time spent confined to a

State or county correctional institution; or

(ii) an offense enumerated under 18 Pa.C.S. §

6105(b) within the prior five years, excluding time spent

confined to a State or county correctional institution.

20210HB1587PN1761 - 4 -

(b) Minimum sentence for illegal possession of firearm

following a previous conviction.--

(1) A person who previously has been convicted under 18

Pa.C.S. § 6105(a)(1) or an offense enumerated under 18

Pa.C.S. § 6105(b) shall be sentenced to no less than two

years' imprisonment.

(2) A person who previously has been convicted under 18

Pa.C.S. § 6105(a)(1) and an offense enumerated under 18

Pa.C.S. § 6105(b) shall be sentenced to no less than five

years' imprisonment.

(3) A person who previously has been convicted under 18

Pa.C.S. § 6105(a)(1) two or more times shall be sentenced to

no less than five years' imprisonment.

(4) A person who previously has been convicted under 18

Pa.C.S. § 6105(a)(1) two or more times and an offense

enumerated under 18 Pa.C.S. § 6105(b) shall be sentenced to

no less than 10 years' imprisonment.

offense.--A person shall be sentenced to a minimum sentence of

total confinement as set forth in subsection (d),

notwithstanding any other provision of this title or other

statute to the contrary, if the person was knowingly in physical

possession or control of a firearm, whether visible, concealed

about the person or within the person's reach, during the

commission of the offense, and the following:

(1) the person is convicted of an offense set forth in

subsection (d); and

(2) the person either:

(i) previously was convicted of an offense

enumerated under 18 Pa.C.S. § 6105(b) within the prior

20210HB1587PN1761 - 5 -

five years, excluding time spent confined to a State or

county correctional institution; or

(ii) committed the offense while on probation,

parole or bail.

(d) Minimum sentence for possession of illegal firearm

during subsequent offense.--

(1) For a crime of violence, as defined in section

9714(g) (relating to sentences for second and subsequent

offenses), or 18 Pa.C.S. §§ 2701(a)(2) (relating to simple

assault), 4952 (relating to i ntimidation of witnesses or

victims ), 4953 (relating to r etaliation against witness,

victim or party ), 4953.1 (relating to r etaliation against

prosecutor or judicial official ) or 4958 (relating to

i ntimidation, retaliation or obstruction in child abuse

cases ), no less than 10 years' imprisonment.

(2) For any other crime resulting in death or serious

bodily injury, as defined in 18 Pa.C.S. § 2301 (relating to

definitions), no less than one-half of the statutory maximum

term of imprisonment applicable to the offense for which

sentence is being imposed or two years' imprisonment,

whichever is higher.

(e) Early release.--A person sentenced under this section

may not be eligible for parole, probation, work release,

furlough or other form of release prior to the expiration of the

person's mandatory sentence.

(f) Application of mandatory minimum penalty.--

(1) For any provision of this section that requires

imposition of a mandatory minimum sentence based on a fact

that is not an element of the underlying offense or a prior

conviction, the enhancing element must be proven beyond a

20210HB1587PN1761 - 6 -

reasonable doubt at trial on the underlying offense and must

be submitted to the fact-finder for deliberation together

with the underlying offense. If the fact-finder finds the

defendant guilty of the underlying offense, the fact-finder

shall decide whether any enhancing element has been proven.

(2) For any other provision of this section that

requires imposition of a mandatory minimum sentence, the

enhancing element may not be an element of the crime and

notice thereof to the defendant may not be required prior to

conviction, but reasonable notice of the Commonwealth's

intention to proceed under this section shall be provided

after conviction and before sentencing.

(3) The applicability of this section shall be

determined at sentencing. The sentencing court, prior to

imposing sentence on an offender under this section, shall

have a complete record of the previous convictions of the

offender, copies of which shall be furnished to the offender.

If the offender or the Commonwealth contests the accuracy of

the record, the court shall schedule a hearing and direct the

offender and the Commonwealth to submit evidence regarding

the previous convictions of the offender. The court shall

determine, by a preponderance of the evidence, the previous

convictions of the offender and, if this section is

applicable, shall impose sentence in accordance with this

section. If a previous conviction is vacated and an acquittal

or final discharge entered subsequent to imposition of

sentence under this section, the offender shall have the

right to petition the sentencing court for reconsideration of

the sentence if this section would not have been applicable

except for the conviction which was vacated.

20210HB1587PN1761 - 7 -

(g) Appeal by Commonwealth.--If a sentencing court fails to

apply this section where applicable, including if the fact-

finder has found an enhancing element and a sentencing court

imposes a sentence below the mandatory minimum sentence, the

Commonwealth shall have the right to appellate review of the

sentence. The appellate court shall vacate the sentence and

remand the case to the sentencing court for imposition of a

sentence in accordance with this section if the court finds that

the sentence was imposed in violation of this section.

Section 3. This act shall expire four years after the

effective date of this section, except with respect to any

matters still pending in a court of competent jurisdiction, on

appeal or subject to post-conviction review in a Federal or

State court.

Section 4. This act shall take effect immediately.

20210HB1587PN1761 - 8 -