Proximity to weapon insufficient to warrant application for mandatory minimum penalty in drug case/ challenges to mandatory sentences are non-waiveable challenges to the legality of a sentence/ burden of proof for application of mandatory sentence

Commonwealth of Pennsylvania v. Person, 2012 PA Super 6 (1/9/2011) (9 pages)

Some observations of Mr. Person by a Philadelphia police office led to controlled buys of marijuana from him. All of the transactions took place near a particular house from which Mr. Person was seen entering with buy money and leaving carrying drugs.   Police obtained a warrant to search the residence and after one last controlled buy a police officer approached the house to execute the warrant but hearing motion inside opened the door and saw Mr. Person running upstairs. He was pursued and seen throwing something into a closet in a bedroom in which there was also a woman and two children. He was apprehended and a search of the bedroom found marijuana packaged in the same way as that he sold in the controlled buys. Crack cocaine and the money used in a controlled buy were also found.  In the kitchen police found a digital scale and a partially covered sawed-off shotgun, which turned out to be inoperable.

At trial Mr. Person was convicted of the drug crimes as well as possession of an offensive weapon based on the shotgun, but that conviction was vacated because of the inoperability.  At sentencing the Commonwealth moved for the imposition of a five year mandatory penalty under 42 Pa.C.S. §9712.1(a), which requires the penalty when a person convicted of 35 P.S. §780-113(a)(30) was, at the time of the crime, in possession, control or within reach of a firearm, or the weapon was in close proximity to the controlled substance.

The Court first noted that challenges to mandatory sentences are non-waiveable challenges to the legality of a sentence. In this case the Commonwealth had to prove by a preponderance of the evidence that he both possessed the gun and he did so within close proximity to illegal drugs. Because there was no proof that Mr. Person resided in the house, he was not the only adult present at the time, the gun was in an area accessible to everyone in the house, and there was no testimony that he ever entered the kitchen, the Commonwealth did not sustain its burden. As vacating the five year mandatory disrupted the lower court’s sentencing scheme, the matter was remanded for resentencing.

The case can be found by following the links from here.

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