On August 10, 2010, Officer Thomas Fahy, of the Cheltenham Township Police Department, while operating undercover, conducted a controlled buy from defendant. The two men met at about 8:00 p.m. at Conklin pool in Cheltenham Township, Montgomery County, Pennsylvania. Defendant arrived in a silver 2007 Subaru Legacy and approached Officer Fahy with a small bag. He showed Officer Fahy the inside of the bag, where he had hidden about 16.5 grams of marijuana. The officer gave defendant $100, which he accepted, handed over the bag, and left.
On September 3, 2010, Officer Fahy arranged a second controlled buy from defendant. The second buy took place at 1600 West Church Road in Cheltenham Township, Montgomery County. There, again, defendant exchanged about 16.3 grams of marijuana for $100. .
On September 8, 2010, Officer Fahy arranged a larger controlled buy from defendant. He and defendant again met at 1600 West Church Road where, this time, defendant brought about a pound of marijuana, for which he was paid $1,500. After the transaction was completed, defendant was placed under arrest. A search of his person recovered the $1,500 in pre-recorded buy-money, and a fully loaded Smith & Wesson 9mm revolver.
On the same day, members of the Philadelphia Police Department’s Narcotics Field Unit North served a search warrant on defendant’s home at 7718 Summerdale Ave, Philadelphia, Pennsylvania. There, the Philadelphia police discovered approximately 330 grams of marijuana, scales, grinders, and $15,665 in U.S. currency. The police also recovered an arsenal of weapons, including a bulletproof vest, a semi-automatic rifle loaded with 30 rounds, a 12 guage shotgun, a second fully loaded Smith & Wesson revolver, a semiautomatic handgun, and a .22 caliber pistol.
On January 28, 2011, defendant entered a negotiated guilty plea to one count of delivery of marijuana, and one count of possession with intent to deliver, before the Honorable Thomas C. Branca. He was sentenced to an aggregate term of imprisonment of five years.
Stein appealed, alleging that he was improperly
sentenced to a five-year mandatory minimum sentence because, he claims, he did
not actively use the firearm during the commission of his crimes. He also noted that he was the registered owner of the firearm. Based on this, he argued that a statute that created a presumption that he had used the gun illegally was unconstitutional under the Second Amendment to the United States Constitution and Article I § 21 of the Pennsylvania State Constitution. The author represented the Commonwealth on appeal.
Judge Donohue, writing for a unanimous panel, disagreed. Instead, she noted that the statute at issue penalized offenders who committed drug crimes while in possession of firearms, regardless of how or if the firearms were "used." There was, therefore, no nexus requirement between possession of a firearm and a drug sale in order for the mandatory minimum to apply.
