Based on their observations and the buy, the police successfully applied for a warrant to search the building where Person kept his drugs. The police set up a second controlled-buy, after which they attempted to execute the warrant. When the police opened the front door, however, Person fled into a second-floor bedroom, where he hid with two women and a child.
Person was apprehended and arrested. A search of his person revealed the buy money, marijuana packaged for resale, and a cellular telephone. A search of the building revealed a digital scale, additional marijuana, and, in the kitchen, a sawed-off shotgun. Person was placed under arrest and charged with violations of the Drug Act, possession of an offensive weapon, criminal use of a communication facility, and possession of an instrument of crime.
He was convicted, and sentenced to a mandatory minimum sentence of five years, pursuant to 42 Pa.C.S. § 9712.1. Under that statute, any person. . .
. . . who is convicted of a violation of section 13(a)(30) of 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.Id. at 4712.1(a). The applicability of the firearms mandatory is determined at sentencing. There, the trial court considers any evidence adduced at trial, as well as any additional evidence presented at the sentencing itself. The totality of this evidence need only establish the applicability of the firearms mandatory by a preponderance of the evidence. This is the least demanding standard known to the law. Where the evidence of the firearms mandatory meets this low threshold, the trial court is required to sentence the defendant to at least the mandatory minimum term, and has no authority to impose a lower sentence.
Person appealed, and the Superior Court vacated his sentence. In an opinion by Judge Bender, the Court observed that there was no evidence that Person lived in the building where he was apprehended, that at least three other people had access to kitchen space, that he had never been seen in the kitchen by police, and that the kitchen was a common area. As a result, Judge Bender concluded that control of the firearm could not be imputed to Person, even constructively. Judge Allen concurred in the result.
Starting in 2008, the Superior Court began to give expansive scope to the firearms enhancement statute. For instance, in Commonwealth v. Sanes, the Court concluded that, although neither the defendant nor the woman who owned the apartment where he was arrested, were in physical control of the guns found in the apartment. Nevertheless, the Court allowed the mandatory minimum sentence to stand, because the guns were in "close proximity" to the seized contraband. In that case, close proximity was held to mean six-to-eight feet outside the room where the drugs were stored.
The next year, in Commonwealth v. Zortman, the Superior Court expanded the statute further, and concluded that "close proximity" encompasses drugs and guns found anywhere in the same residence.
The instant case is a departure from the lenient reading that the Superior Court has previously given Section 9712.1. In prior cases, the Court has read the possession requirement of the statute to be an alternate element; thus, in Sanes and Zortman, the mandatory applied if a defendant or his accomplice (1) was in possession of a firearm, or (2) the firearm is in close proximity to drugs. Person, however, reads the statute to require that the defendant be in possession of the firearm, and also that the firearm be (1) visible, (2) concealed, (3) within the defendant's reach, or (4) in close proximity to the controlled substance.
The Person decision seems, to me, to be a strained reading of the statute and, as noted, a departure from prior published decisions from the Superior Court. (Zortman, notably, was affirmed by the Supreme Court of Pennsylvania.) I have, however, encountered the Person reading of the statute in a previous, unpublished decision. (That case is currently awaiting an allocatur decision from the Pennsylvania Supreme Court.) As such, the current state of law on this issue is, at best, unsettled.
