Appeal from the Judgment of Sentence November 19, 2012 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003948-2010; CP-15-CR-0003988-2011
BEFORE: GANTMAN, J., OLSON, J., and WECHT, J.
Appellant, Edward R. Hovington, appeals from the judgment of sentence entered in the Chester County Court of Common Pleas, following his jury trial convictions for criminal solicitation, criminal use of a communication facility, possession of a controlled substance, possession of a controlled substance with intent to deliver ("PWID"), and possession of drug paraphernalia. We vacate and remand for resentencing.
The relevant facts and procedural history of this case are as follows. Between 2009 and 2010, police investigated a cocaine distribution ring in West Chester, Pennsylvania. Wiretap surveillance revealed Appellant's involvement. On June 3, 2010, police executed a search warrant at Appellant's home, at which time police discovered, inter alia, cocaine, drug paraphernalia, and a handgun. The Commonwealth subsequently charged Appellant with various drug related offenses. Appellant filed a motion to suppress on April 5, 2011, and an amended motion to suppress on May 11, 2011. On May 13, 2011, the court held a suppression hearing. The court denied Appellant's motion on June 14, 2011.
On August 31, 2012, a jury convicted Appellant of PWID, simple possession, criminal solicitation to commit PWID, and related offenses. On November 19, 2012, the court imposed an aggregate sentence of six (6) to thirteen (13) years' imprisonment, plus three (3) years' probation. Appellant's aggregate sentence included a mandatory minimum on the PWID conviction of five (5) years' imprisonment pursuant to 42 Pa.C.S.A. § 9712.1 (mandating five year minimum sentence for defendant convicted of PWID when at time of offense, defendant was in physical possession or control of firearm, or firearm was in close proximity to controlled substance). On November 29, 2012, Appellant filed a motion for reconsideration. While his motion for reconsideration was pending, Appellant filed a notice of appeal. The court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied.
Appellant raises the following issues for our review:
DOES 42 PA.C.S.A. § 9712.1(A), WHICH PROVIDES FOR A MANDATORY MINIMUM SENTENCE IF A JUDGE FINDS TO A PREPONDERANCE OF THE EVIDENCE THAT [APPELLANT] WAS "IN PHYSICAL POSSESSION OR CONTROL OF A FIREARM" AT THE "TIME OF THE OFFENSE, " INFRINGE UPON [APPELLANT'S] SIXTH AMENDMENT RIGHT TO A JURY TRIAL?
IN THE ALTERNATIVE, DID THE TRIAL COURT IMPROPERLY APPLY THE MANDATORY MINIMUM SENTENCE PROVISION BECAUSE (A) [APPELLANT] DID NOT "COMMIT" A DRUG OFFENSE "WITH FIREARMS, " AND (B) HE HAD A CONSTITUTIONAL RIGHT TO POSSESS THE HANDGUN FOUND NEAR THE COCAINE?
WAS THE WARRANT FOR THE SEARCH OF [APPELLANT'S] RESIDENCE ISSUED ON THE BASIS OF A CONSTITUTIONALLY DEFECTIVE AFFIDAVIT, WHICH FAILED TO DESCRIBE A "NEXUS" BETWEEN [APPELLANT'S] HOME AND HIS DRUG DEALING ACTIVITIES?
(Appellant's Brief at 6).
For purposes of disposition, we combine Appellant's first and second issues on appeal. Appellant asserts the court imposed a mandatory minimum five (5) year sentence pursuant to 42 Pa.C.S.A. § 9712.1 for his PWID conviction. Appellant argues that, to impose the mandatory minimum the court determined by a preponderance of the evidence (per Section 9712.1(c)) Appellant had physical possession or control of a firearm at the time of his offenses. Appellant relies on the United States Supreme Court's recent decision in Alleyne v. United States, __ U.S. __, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), for the rule that imposition of the mandatory minimum based on a finding by the preponderance of the evidence was improper. Based on Alleyne, Appellant insists the jury, as fact-finder, was required to determine beyond a reasonable doubt whether Appellant physically possessed a firearm at the time of the offense.
In the alternative, Appellant explains police recovered a .40 caliber Glock handgun, which Appellant lawfully possessed, in an unlocked case in a dresser drawer during execution of the search warrant. Appellant contends police did not intercept any conversations implicating Appellant in which Appellant discussed the use of firearms. Appellant highlights he did not threaten police or any other person with use of the handgun or display the firearm before, during, or after execution of the search warrant. Appellant submits he lawfully possessed the firearm for self-protection, unrelated to his drug activity. Appellant maintains the Commonwealth presented no evidence that he committed PWID with firearms as required by Section 9712.1, governing "sentences for certain drug offenses committed with firearms." Appellant concludes ...