Appeal from the Judgment of Sentence November 10, 2009 In the Court of Common Pleas of Philadelphia County Criminal Division at No.: CP-51-CR-0004662-2009 MC-51-CR-0013515-2009
The opinion of the court was delivered by: Bender, J.
BEFORE: BENDER, DONOHUE and ALLEN, JJ.
Appellant, Bruce B. Person, appeals from the judgment of sentence of a mandatory term of five to ten years' imprisonment, followed by three years' probation, imposed after he was convicted of possession with intent to deliver (PWID) marijuana, criminal use of a communication instrument, possession of cocaine, possession of drug paraphernalia, and possession of an offensive weapon. Appellant challenges the imposition of a mandatory minimum term of five years' imprisonment for his conviction of PWID. For the following reasons, we are compelled to vacate Appellant's judgment of sentence and remand for resentencing.
The facts of this case, as gleaned from the trial court's opinion, are as follows. On March 23, 2009, Philadelphia Police Officers received a complaint that Appellant was selling narcotics out of a home at 146 North Dearborn Street. The complainant provided a physical description of Appellant as well as his cell phone number. Based on this information, Officer Gina Jackson set up surveillance of the residence at 146 North Dearborn Street on March 24, 2009. During her surveillance, Officer Jackson observed Appellant exit that home and meet with an unknown man who handed Appellant money, after which Appellant gave the man a small item. The unknown man then left the area and was not stopped. Meanwhile, Appellant reentered the house at 146 North Dearborn Street.
That same day, March 24, 2009, Officer Jackson contacted Officer Linwood Fairbanks and requested that he purchase narcotics from Appellant in an undercover capacity. Officer Fairbanks called Appellant on the cell phone number provided by the complainant and inquired about purchasing drugs. He was told by Appellant to wait on the 100 block of Dearborn Street. Officer Fairbanks went to that location with $20 in United States currency. A short time later, Appellant arrived, had a brief conversation with Officer Fairbanks, and then went into the residence at 146 North Dearborn Street. Appellant quickly returned and handed Officer Fairbanks four red- tinted ziplock packets of marijuana in exchange for the officer's $20.
Based on this sale, Officer Jackson obtained a warrant to search the home at 146 North Dearborn Street. However, on March 26, 2009, prior to executing that warrant, Officer Fairbanks again called Appellant and arranged a drug transaction. Officer Fairbanks returned to the same location of the original drug purchase and bought from Appellant an additional five red-tinted ziplock packets of marijuana with $20 of pre-recorded United States currency. After the drug transaction, Appellant returned to the home at 146 North Dearborn Street. Moments later, Officer Jackson approached the residence to execute the search warrant. When she got to the front door, she heard motion inside and, upon opening the door, she saw Appellant running from the living room up the stairs to the second floor of the home. Officer Jackson pursued Appellant into a second floor bedroom and saw him throw something into a closet. Also present in that bedroom were two adult women and a child.
Appellant was apprehended and the bedroom closet was searched, revealing a bag of five red-tinted packets of marijuana similar to those purchased by Officer Fairbanks. There were also three other packets containing crack cocaine found in the closet. From Appellant's person, police recovered the $20 pre-recorded currency used by Officer Fairbanks during the second drug purchase. Appellant also possessed $159 and a cell phone. A search of the rest of the home revealed a digital scale on the table in the kitchen, as well as a sawed-off shotgun on top of a cabinet in the kitchen. The shotgun was partially covered, but was visible from the living room of the home. The gun was later determined to be inoperable due to a broken firing pin.
Based on this evidence, Appellant was charged with the above-stated crimes, as well as possessing an instrument of crime (PIC). Following a non- jury trial, Appellant was convicted of each of these offenses except PIC. However, after his trial, Appellant filed a motion for extraordinary relief arguing that his conviction for possessing an offensive weapon could not stand, as the shotgun found in the home did not meet the definition of an "offensive weapon" as set forth in 18 Pa.C.S. § 908(c) (defining "offensive weapon" as including a sawed-off shotgun with a barrel length of less than 18 inches). Following a hearing, the court found that the shotgun did not meet the statutory definition of an offensive weapon as its barrel was over 18 inches in length. See Trial Court Opinion (T.C.O.), 3/15/11, at 9-10. Accordingly, the court granted Appellant's motion for extraordinary relief and reversed his conviction for possessing an offensive weapon.
Appellant then proceeded to a sentencing hearing, during which the Commonwealth sought the application of a mandatory minimum sentence of five years' imprisonment for Appellant's conviction of PWID pursuant to 42 Pa.C.S. § 9712.1(a). That section states:
(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), 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.
42 Pa.C.S. § 9712.1(a). The trial court concluded that this mandatory minimum term of incarceration was applicable in Appellant's case, and sentenced him to five to ten years' incarceration for his PWID conviction, followed by three years' probation on his other charges.
Appellant filed a timely notice of appeal, as well as a timely concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). ...