The PA Superior Court has decided the case of Commonwealth v. David Milkos, No. 978 WDA 2016 (April 17, 2017), holding – in a matter of first impression – that although Milkos’ initial possession of the gun was justifiable self-defense, his continued control over the weapon after the initial altercation was not.

Milkos was charged with homicide, robbery and persons not to possess firearms after an altercation with the victim during a drug transaction. Milkos was apparently confronted by the victim who pointed a firearm at Milkos during the transaction. A struggle ensued at which time the firearm discharged into the victim’s back he was holding and struggling for control of the gun with Milkos. After the gun discharged, Milkos picked it up off the ground. The struggle continued during which time Milkos fired another round into the victim’s chest. Milkos then left the scene in the victim’s car, throwing the gun on the floorboard. He ultimately tossed the gun, shell casings and car keys into the woods.

After a non-jury trial, Milkos was convicted of the persons not to possess firearms offense and acquitted of the homicide and robbery charges.

Milkos appealed this conviction, claiming the evidence was insufficient to sustain his conviction because his possession of the firearm was in self-defense, thereby negating the intent requirement necessary to convict him of unlawful possession of a firearm. Conduct which an actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged. Accordingly, Milkos argued that his brief possession of the firearm simply to remove it from the victim’s control was justified and that the harm he sought to avoid (i.e. – getting shot) was greater than the harm sought to be prevented by the law (i.e. – possessing a firearm when he was not authorized to do so).


The trial court agreed that Milkos did not have specific intent to possess the firearm at the time he struggled with the victim to control the firearm. It conclude that Milkos’ intent was to prevent the victim from shooting him.

Accordingly, whatever possession occurred while Milkos was attempting to prevent himself from being shot, was justified. This would include even the possession when the firearm discharged in the initial struggle, which fired the fatal shot killing the vicyim. However, any possession of the firearm after that point by Milkos was not justified.

The trial court concluded that, essentially, the possession Milkos was actually convicted of by the court was this series of possessions from the point he recovered the gun from the ground, fired a second shot, placed the gun in the car and eventually discarded the gun into the woods.


The Superior Court concluded that the trial court’s opinion was well reasoned in that unlawful possession of a firearm is a continuing offense, and thus, Milkos’ possession of the firearm may have been justified for part, but not all, of the time he exhibited control over the weapon. However, although Milkos’ argument supported his defense for possession of the gun during the struggle with the victim, Milkos failed to convince the Superior Court that his continued possession of the firearm after the victim was shot was justified.

Acknowledging that this issue appeared to be an issue of first impression, the Superior Court looked to decisions from other states, noting that although the defenses of justification or necessity may exist in cases where a person not to possess firearms is charged, there are also limitations to those defenses. Thus, while Milkos’ initial possession of the gun was justified, his continued control over the weapon after the altercation was not.

Accordingly, the Superior Court held that the evidence was sufficient to sustain Milkos’ conviction.


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