Appeal from the Judgment of Sentence February 21, 2008 In the Court of Common Pleas of Philadelphia County. Criminal at No(s): CP-51-CR-0008571-2007.
The opinion of the court was delivered by: Stevens, J.
BEFORE: STEVENS, KLEIN, and KELLY, JJ.
¶ 1 The Commonwealth appeals from the Judgment of Sentence*fn1 entered on February 21, 2008, in the Court of Common Pleas of Philadelphia County at which time the trial court sentenced Wayne McKibben (hereinafter "Appellee") to an aggregate prison term of three (3) years to six (6) years in prison, a $15,000 fine, and $1,625 in court costs. Following our review of the record, we reverse.
¶ 2 On April 30, 2007, Appellee was arrested and charged with various drugs and weapons offenses. On January 7, 2008, he waived his right to a jury trial, and following a one day bench trial the trial court convicted Appellee of possession with intent to deliver a controlled substance,*fn2 criminal use of a communication facility,*fn3 possession of a controlled substance,*fn4 possession of drug paraphernalia,*fn5 and prohibitive offensive weapons.*fn6 These convictions arose after Appellee took part in several drug transactions which involved the sale of cocaine to a confidential informant who entered Appellee's residence on various occasions in April of 2007 to purchase the contraband while police officers waited outside.
¶ 3 Though the distinguished trial judge sets forth a lengthy statement of facts in his Opinion filed pursuant to Pa.R.A.P. 1925(a), we have reiterated only a portion thereof which is relevant to our discussion herein:
As a result of the investigation, Police Officer Simmons obtained a search and seizure warrant for 5506 Walnut Street. (N.T. 01/07/08, p.24).
At approximately 5:45 p.m., [on April 30, 2007], Police Officer Simmons, members of SWAT, and members of the Narcotics Field Unit executed the search warrant. Appellee was seen leaving from the rear bedroom and arrested in the hallway. (N.T. 01/07/08, pp. 25-28).
Recovered from the rear bedroom was one sandwich bag containing five clear plastic bags, each containing fifty small [Z]iploc packets, one clear plastic packet stamped with an apple, containing sixteen smaller clear [Z]iploc plackets. (N.T. 01/07/08, p. 25). All of these packets contained crack cocaine. (N.T. 01/07/08, p. 25). Also recovered in the rear bedroom was another clear sandwich bag, containing ten smaller [Z]iploc packets which contained a green weed and seed substance, marijuana, and two digital scales with cocaine residue. (N.T. 01/07/08, pp. 25-26). Also recovered in the back rear room was a plate with two spoons, one razor blade, and one strainer, all coated with cocaine. (N.T. 01/07/08, p. 45). A clear package containing marijuana was also confiscated from on top of the plate. (N.T. 01/07/08, p. 45). Two yellow packets and two clear packets containing cocaine were also recovered.
In addition, from the rear bedroom, the police recovered one black Hulk .357 Magnum handgun that was found to be loaded with six live rounds, one .9 millimeter found to be loaded with six live rounds, one twelve-gauge shotgun that was loaded with four rounds, and one twenty-gauge sawed-off shotgun that was loaded with one round. (N.T. 01/07/08, p. 45-46).
Recovered from the rear kitchen was [sic] seventy-two Xanax pills, twenty-one Percocets in an amber pill bottle, forty eight Percocets in a blue bottle, and ten jars of codeine syrup. (N.T. 01/07/08, p. 26).
Recovered from the rear of the apartment was [sic] two hundred twelve dollars of United States currency from the kitchen; forty-one dollars from the coffee table; and one hundred eighty-six dollars from the dresser. (N.T. 01/07/08, p. 43).
Also recovered from Appellee's apartment was [sic] a lease, three letters, one bank statement, and one children's work identification card which were all in the name of Wayne McKibben. (N.T. 01/07/08, p. 26). Also confiscated from the apartment was [sic] a Verizon cell phone with the telephone number 215-749-0435, two letters in the name of Country, one coffee mug displaying the word "Country," and a check for three hundred thirty-seven dollars payable to Wayne McKibben. (N.T. 01/07/08, p. 27). Also ...