Argued May 8, 2012.
Appeal from the Judgment of Superior Court entered
on 7/15/10 at No. 3225 EDA 2008, affirming the Judgment of Sentence entered
on 7/29/2008 in the Court of Common Pleas, Philadelphia County, Criminal
Division at No. CP-51-CR-0011477-2007, Trial Court Judge: Leslie Fleisher,
Judge; Intermediate Court Judges: Cheryl Lynn Allen, Anne E. Lazarus, Robert
A. Freedberg, Judges.
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Karl Baker, Esq., Philadelphia, Ellen T. Greenlee, Esq., Peter Rosalsky, Esq., Defender Association of Philadelphia, for Carl P. Hanson.
Hugh J. Burns Jr., Esq., Philadelphia District Attorney's Office, for Commonwealth of Pennsylvania.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
This appeal centrally presents questions of statutory construction pertaining to the five-year mandatory minimum sentence attaching to the offense of possession of a controlled substance with intent to deliver (" PWID" ), see 35 P.S. § 780-113(a)(30), while in possession or control of a firearm. See 42 Pa.C.S. § 9712.1(a).
I. Preliminary Overview
Section 9712.1(a) of the Sentencing Code provides:
(a) Mandatory sentence.— Any person who is convicted of [PWID], 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) (emphasis added).
The appropriate understanding of this provision is a subject of disharmony among recent decisions of the Superior Court. For example, in Commonwealth v. Stein, 39 A.3d 365 (Pa.Super.2012), one panel of the intermediate court indicated that Section 9712.1(a) " merely requires that there be a firearm on or near a person involved in the commission of the crime or in close proximity to the drugs in question." Id. at 369 (citing Commonwealth v. Sanes, 955 A.2d 369, 377 (Pa.Super.2008)). However, in a substantially contemporaneous opinion, an overlapping panel found that the mandatory minimum sentence prescribed by the statute is triggered only upon separate and independent findings of actual or constructive possession by the defendant of a firearm and of a close proximity as between the weapon and the controlled substance giving rise to the drug offense. See Commonwealth v. Person, 39 A.3d 302, 305 (Pa.Super.2012) (also citing Sanes, 955 A.2d at 374).
Presently, we consider the meaning of the terms " control of a firearm" and " close proximity," as they are employed in Section 9712.1(a), including the interrelationship between " control" and the concept of constructive possession as it appears in several of the Superior Court's decisions. We also address the divergence among the Superior Court's decisions concerning whether and to what extent " close proximity" establishes, implies, or is essentially independent of " control." See Commonwealth v. Hanson, 611 Pa. 616, 29 A.3d 366 (2011) ( per curiam ).
II. Background and Arguments
On June 7, 2007, an undercover narcotics officer met with Appellant outside a two-story row house located on North Creighton Street, Philadelphia. There, the officer purchased several packets of crack cocaine from Appellant, who then entered the locked residence using a key.
The following day, officers observed Appellant repeatedly entering the Creighton Street house with the key. During surveillance, no one other than Appellant was seen entering or exiting the premises. Police then executed a search warrant at the property and arrested Appellant on the first floor. On his person, Appellant had some cash and the key he used for entry. A search of the second floor uncovered: (1) from the front bedroom, a cellular telephone, a small electronic scale, and various drug-related paraphernalia; (2) from the middle bedroom, a clear plastic baggie containing fourteen packets of crack cocaine; (3) from the only bathroom in the house, a clear plastic baggie containing PCP; and (4) from the rear bedroom, a handgun loaded with seven live rounds. See N.T., July 29, 2008, at 8-12. No drugs or paraphernalia were discovered in the rear bedroom which contained the firearm. See id. at 48.
Appellant was charged with PWID, simple possession, see 35 P.S. § 780-113(a)(16), possession of drug paraphernalia, see id. § 780-113(a)(32), and possession of an instrument of crime, namely, the handgun, see 18 Pa.C.S. § 907(a). At a pre-trial conference, Appellant argued that the charge of possession of an instrument of crime should be quashed, " given [the] lack of nexus between [Appellant] and that weapon and someone else's room." N.T., Jan. 22, 2008, at 2. Over opposition by the
Commonwealth, a common pleas judge quashed the charge, without explaining the reasoning underlying such ruling. See id. at 3.
Subsequently, before a different judge, Appellant entered an open plea of guilty to PWID. In the course of the plea proceedings, the Commonwealth related the material facts as indicated above, and Appellant affirmed them. See N.T., July 29, 2008, at 8-12. Of material significance to the common pleas court's treatment of the mandatory-minimum issue, the Commonwealth asserted that such plea subsumed an admission to possession of all of the drugs, including those located on the second floor of the Creighton Street residence. See N.T., July 29, 2008, at 50. Although there does not appear to be any affirmative, record-based accession by Appellant on this point, no contrary representation or objection was advanced on his behalf. 
The plea colloquy segued into a sentencing proceeding, in which the Commonwealth pursued imposition of the mandatory minimum sentence under Section 9712.1(a), and the court questioned Appellant and commented concerning his responses. During the course of the proceeding, Appellant indicated that he did not own the Creighton Street property, but he had been given the key by the owner's son, a person who Appellant said he knew only as " K." See N.T., July 29, 2008, at 23, 26-27. Appellant also stated that, to the best of his knowledge, no other person had a key to the house, see id., and he was the only person selling drugs from that location, see id. at 45. According to Appellant, he was unaware of the firearm's presence in the house, see id. at 60-61, and he never ventured onto the second floor, see id. at 32.
At one point, the presiding judge remarked that the Commonwealth had not developed much detail concerning the closeness in proximity of the handgun and the drugs. In response, the prosecutor asked whether the court wished to hear from police witnesses, to which the judge responded that she did not. See id. at 47-48.
Ultimately, the common pleas court imposed the mandatory minimum per Section 9712.1(a). The court concluded that the provision applied, since Appellant admitted he was the only individual selling drugs from the residence. In the court's judgment, such admission, as well as Appellant's deemed concession of his guilt relative to possession of the drugs found on the second floor, rendered all of the items recovered from the house— including the handgun— within Appellant's physical possession or control. The court recognized the potential tension between this conclusion and the previous quashal of the possessory weapons offense, but it declined to attribute any relevance to such dismissal.
Appellant filed post-sentence motions challenging the imposition of the mandatory minimum sentence and maintaining that: he was not in physical possession or control of the firearm; the firearm was not in close proximity to the controlled substances; and he did not have the requisite mens rea for purposes of Section 9712.1(a).
In its denial of relief, the common pleas court's treatment loosely paralleled the requirements discerned by the Superior Court of actual or constructive possession and of close proximity of contraband and weapon. See Person, 39 A.3d at 305; Sanes, 955 A.2d at 374. However, as to constructive possession, the court merely defined the term, consistent with its use in Sanes, as encompassing the ability to exercise conscious control or dominion and the intent to exercise that control, which may be inferred from the totality of the circumstances. See Commonwealth v. Hanson, No. CP-51-CR-0011477-2007, slip op. at 4 (C.P.Philadelphia, Oct. 30, 2009) (citing Sanes, 955 A.2d at 373). The court, however, did not provide a separate legal analysis concerning constructive possession and close proximity as the Sanes panel indicated was necessary, but rather, proceeded to conflate the two inquires. In this regard, the court's analysis proceeded as follows:
A recent decision by the Pennsylvania Superior Court reversed the trial court and held that drugs were in " close proximity" to the gun and invoked the mandatory minimum sentence enhancement required under § 9712.1. The facts of that case were the drugs were found in a kitchen area, and a non-working firearm was found under a bed in a bedroom. In reversing the trial court, the Superior Court stressed that because the Defendant pled guilty and did not object to the prosecution's recitation of facts, he could not then assert he had no knowledge or possession of those ...