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Commonwealth v. Zortman

July 20, 2009

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
SUE ZORTMAN, APPELLEE



Appeal from the Judgment of Sentence of January 31, 2008, in the Court of Common Pleas of Clearfield County, Criminal Division, at No. CP-17-CR-0000061-2007.

The opinion of the court was delivered by: Bowes, J.

BEFORE: BOWES, FREEDBERG AND POPOVICH, JJ.

OPINION

¶ 1 The Commonwealth appeals the sentencing court's refusal to apply the mandatory minimum sentencing provision of 42 Pa.C.S. § 9712.1. We vacate the judgment of sentence and remand for sentencing in accordance with that statute.

¶ 2 On November 20, 2006, Appellee was charged with possession of a controlled substance, possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and conspiracy. Appellee lived with Robert Prisk at 313 Marron Road, Curwensville, Clearfield County. Prisk became the target of a drug investigation by the Pennsylvania Attorney General's Office. After Prisk was arrested, police conducted a consensual search of Appellee's residence. Marijuana was discovered in the kitchen and in a briefcase, and there was a firearm located under the bed in a bedroom.

¶ 3 The Commonwealth successfully moved to consolidate Appellee's case with that of Prisk and other members of his drug enterprise, including Charles Bloom, David Bressler, Amos Brimmer, Peter Miele, and Allen Sheen. Appellee then filed a motion to sever. She averred that while her co-defendants' drug-related activities began in 2000, she did not know any of the named individuals prior to 2004, and therefore, substantial evidence of drug transactions occurring prior to 2004 that was inadmissible against her would be admitted at a joint trial. The trial court thereafter granted Appellee's motion to sever.

¶ 4 On December 27, 2007, Appellee tendered an open guilty plea to all the charges, acknowledging that she faced a maximum term of imprisonment of twelve years, and the case immediately proceeded to sentencing. The deputy attorney general then invoked application of the mandatory minimum sentencing provision contained in 42 Pa.C.S. § 9712.1, which applies when a defendant is convicted of possession with intent to deliver and a gun is found in close proximity to the drugs. The applicability of that section was "reflected in the pre-sentence investigation report." N.T. Guilty Plea, 12/27/07, at 9. The deputy attorney general indicated that the statute applied "based upon the testimony of [Appellee] at the time of [Prisk's] trial." Id.

¶ 5 The prosecutor continued by summarizing Appellee's testimony at that trial, and Appellee failed to lodge any objection. Specifically, the deputy attorney general stated that at Prisk's trial, Appellee "indicated that she received the firearm, the handgun, and that it was her marijuana that was in the residence when a search was done by the Attorney General's office at the Robert Prisk case." Id. The prosecutor said that Appellee also made statements to the officers searching her home that "the marijuana was indeed hers" and that there was a gun on the premises. Id.

¶ 6 Appellee did not refute this recitation of the pertinent facts and actually acknowledged that when the state police entered the residence, she answered the door and showed the police "where the marijuana was located." Id. at 10. Appellee also represented to the sentencing court that the "gun, at that time, was under the mattress" in a bedroom. Id. Appellee argued that section 9712.1 did not apply because the gun was not "on her person or within her reach." Id. at 10.

¶ 7 The sentencing court rejected Appellee's position and sentenced her to five to ten years imprisonment under § 9712.1. Appellee filed a post-sentence motion for reconsideration, and the court conducted a hearing on that motion on January 31, 2008. At that hearing, Appellee argued that the mandatory minimum did not apply for two different reasons. Utilizing the correct statutory language, Appellee first asserted that the gun was not in close proximity to the drugs because the drugs were in the kitchen and the gun was underneath the bed. N.T. Post-Sentence Motion Hearing, 1/31/08, at 7. Second, Appellee noted that the gun was inoperable because there was no firing pin in the firearm. Id. at 3. She continued that "due to the fact that the firearm was inoperable, that the mandatory minimum should not apply." Id. at 3-4.

¶ 8 The deputy attorney general refuted the position that the statute in question required the firearm to be functional and also argued that the gun was in close proximity to the drugs. The prosecutor noted that Appellee led police to the kitchen and showed them drugs, took them to another room and gave them a briefcase containing drugs, and then showed them the firearm in the bedroom. At that hearing, again without objection, the deputy attorney general repeated that Appellee "did indicate that those drugs were hers, that the firearm was hers." Id. at 7.

¶ 9 Following the post-sentence motion hearing, the sentencing court vacated the term of imprisonment it originally had imposed and gave Appellee a probationary term for the offenses in question. In its opinion in support of its January 31, 2008 sentence, the court indicated that it did not apply section 9712.1 because the firearm seized in Appellee's residence was not functional due to the absence of a firing pin. The trial court thus concluded that it did not constitute a "firearm" as envisioned by section 9712.1. The Commonwealth filed this timely appeal, wherein it challenges the sentencing court's refusal to apply section 9712.1.

Generally, a challenge to the application of a mandatory minimum sentence is a non-waiveable challenge to the legality of the sentence. Commonwealth v. Leverette, 911 A.2d 998, 1002 (Pa.Super. 2006). Issues relating to the legality of a sentence are questions of law, as are claims raising a court's interpretation of a statute. Commonwealth v. Ausberry, 891 A.2d 752, 754 (Pa.Super. 2006). Our standard of review over such questions is de novo and our scope of review is plenary. See Leverette, 911 A.2d at 1002.

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super. 2008).

¶ 10 In this case, the Commonwealth sought application of the mandatory sentencing provision at 42 Pa.C.S. § 9712.1, which provides (emphases added):

(a) Mandatory sentence.--Any person who is convicted of a violation of section 13(a)(30) of the act of April 14, 1972 (P.L. 233, No. 64), [35 P.S. § 780-113] known as The Controlled Substance, Drug, Device and Cosmetic Act, when at the time of the offense the person or the person's accomplice is in physical possession or control of a firearm, whether visible, concealed about the person or the person's accomplice or within the actor's or accomplice's reach or in close proximity to the controlled substance, shall likewise be sentenced to a minimum sentence of at least five years of total confinement.

¶ 11 Section 9712.1(f) refers us to 42 Pa.C.S. § 9712 for the definition of firearm. 42 Pa.C.S. § 9712.1(f) ("As used in this section, the term 'firearm' shall have the same meaning as that given to it in section 9712 (relating to sentences for offenses committed with firearms.)"). Section 9712(e) defines a "firearm" as, "Any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein." 42 Pa.C.S. § 9712(e) (emphasis added).

¶ 12 In this case, the sentencing court concluded that the handgun did not meet the definition of firearm under § 9712.1 for these reasons:

The firearm for which the Defendant was deemed in physical control of had a missing firing pin, which is a vital component of the weapon. Without the firing pin the bullet could not be projected. Without the firing pin the firearm is incapable of discharging a bullet. Without the firing pin the gun was completely defective. The defectiveness of the gun was so absolute that it was no longer functional within the nature of its original design. The firearm was so,... "defective or damaged that it had lost its initial characteristics as a firearm." Commonwealth v. Layton, 307 A.2d 843 (1973). The Defendant's firearm was not readily repairable as the missing firing pin was not located on Defendant's person or within the residence. The Defendant's weapon could no longer be characterize as a "firearm" as defined by § 9712(e). Hence, this Court was correct in dismissing the application of § 9712.1 to the Defendant's sentence.

¶ 13 Trial Court Opinion, 7/16/08, at 3. The court also compared 42 Pa.C.S. § 9712(a) to 42 Pa.C.S. § 9712.1. Section 9712(a) imposes a mandatory minimum sentence on a person convicted of a crime of violence, as defined in § 9714, if during the commission of the crime the person visibly possessed a firearm "whether or not the firearm.... was... functional" if the victim was placed in reasonable fear of death or serious bodily injury. The sentencing court extrapolated that since § 9712(a) was designed to punish a defendant for placing a victim in fear of death by using a weapon, whether or not functional, that section's indication that a firearm does not need to be operable could not be imported for purposes of application of § 9712.1. It reasoned, "The legislature clearly expresses an intent to apply § 9712 where a firearm is not functional because the inoperable firearm is still capable of putting a victim of a violent crime in fear of harm or death but the legislature did not extend such a provision to § 9712.1, where the language is absent. Hence, § 9712.1 mandatory is not applicable because the Defendant's firearm is inoperable." Trial Court Opinion, 7/16/08, at 4.

¶ 14 The case upon which the sentencing court relied, Commonwealth v. Layton, 307 A.2d 843 (Pa. 1973), examined whether a nonfunctional pistol was a firearm for purposes of the Uniform Firearms Act ("the Act"). In that case, the defendant was convicted under the following section of the Act, "No person who has been convicted in this Commonwealth or elsewhere of a crime of violence shall own a firearm, or have one in his possession or under his control." 18 P.S. § 4628(a) (repealed and now codified at 18 Pa.C.S. § 6105). At the time of Layton, the Act defined a firearm as "any pistol or revolver with a barrel less than twelve inches, any shotgun with a barrel less than twenty-four inches or any rifle with a barrel less than fifteen inches." 18 P.S. § 4628(a) (repealed). The Supreme Court in Layton held that since ...


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