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COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRUCE B. PERSON,
Appellant No. 3372 EDA 2009
Appeal from the Judgment of Sentence Entered November 10, 2009
In the Court of Common Pleas of Philadelphia County
Criminal Division at Nos.:
CP-51-CR-0004662-2009
MC-51-CR-0013515-2009
BEFORE: BENDER, DONOHUE and ALLEN, JJ.
MEMORANDUM BY BENDER, J.: FILED OCTOBER 10, 2014
Appellant, Bruce B. Person, appeals from the judgment of sentence of
a mandatory term of five to ten years’ imprisonment, followed by three
years’ probation, imposed after he was convicted of possession with intent to
deliver (PWID) marijuana, criminal use of a communication instrument,
possession of cocaine, possession of drug paraphernalia, and possession of
an offensive weapon. Appellant challenges the imposition of a mandatory
minimum term of five years’ imprisonment for his conviction of PWID under
42 Pa.C.S. § 9712.1, as well as the constitutionality of that sentencing
statute. After careful review, we vacate and remand for resentencing.
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In a prior opinion published by this Court, we summarized the facts of
Appellant’s case as follows:
On March 23, 2009, Philadelphia Police Officers received a
complaint that Appellant was selling narcotics out of a home at
146 North Dearborn Street. The complainant provided a physical
description of Appellant as well as his cell phone number. Based
on this information, Officer Gina Jackson set up surveillance of
the residence at 146 North Dearborn Street on March 24, 2009.
During her surveillance, Officer Jackson observed Appellant exit
that home and meet with an unknown man who handed
Appellant money, after which Appellant gave the man a small
item. The unknown man then left the area and was not stopped.
Meanwhile, Appellant reentered the house at 146 North
Dearborn Street.
That same day, March 24, 2009, Officer Jackson contacted
Officer Linwood Fairbanks and requested that he purchase
narcotics from Appellant in an undercover capacity. Officer
Fairbanks called Appellant on the cell phone number provided by
the complainant and inquired about purchasing drugs. He was
told by Appellant to wait on the 100 block of Dearborn Street.
Officer Fairbanks went to that location with $20 in United States
currency. A short time later, Appellant arrived, had a brief
conversation with Officer Fairbanks, and then went into the
residence at 146 North Dearborn Street. Appellant quickly
returned and handed Officer Fairbanks four red-tinted ziplock
packets of marijuana in exchange for the officer's $20.
Based on this sale, Officer Jackson obtained a warrant to search
the home at 146 North Dearborn Street. However, on March 26,
2009, prior to executing that warrant, Officer Fairbanks again
called Appellant and arranged a drug transaction. Officer
Fairbanks returned to the same location of the original drug
purchase and bought from Appellant an additional five red-tinted
ziplock packets of marijuana with $20 of pre-recorded United
States currency. After the drug transaction, Appellant returned
to the home at 146 North Dearborn Street. Moments later,
Officer Jackson approached the residence to execute the search
warrant. When she got to the front door, she heard motion
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inside and, upon opening the door, she saw Appellant running
from the living room up the stairs to the second floor of the
home. Officer Jackson pursued Appellant into a second floor
bedroom and saw him throw something into a closet. Also
present in that bedroom were two adult women and a child.
Appellant was apprehended and the bedroom closet was
searched, revealing a bag of five red-tinted packets of marijuana
similar to those purchased by Officer Fairbanks. There were also
three other packets containing crack cocaine found in the closet.
From Appellant's person, police recovered the $20 pre-recorded
currency used by Officer Fairbanks during the second drug
purchase. Appellant also possessed $159 and a cell phone. A
search of the rest of the home revealed a digital scale on the
table in the kitchen, as well as a sawed-off shotgun on top of a
cabinet in the kitchen. The shotgun was partially covered, but
was visible from the living room of the home. The gun was later
determined to be inoperable due to a broken firing pin.
Based on this evidence, Appellant was charged with the above-
stated crimes, as well as possessing an instrument of crime
(PIC). Following a non-jury trial, Appellant was convicted of each
of these offenses except PIC. However, after his trial, Appellant
filed a motion for extraordinary relief arguing that his conviction
for possessing an offensive weapon could not stand, as the
shotgun found in the home did not meet the definition of an
“offensive weapon” as set forth in 18 Pa.C.S. § 908(c) (defining
“offensive weapon” as including a sawed-off shotgun with a
barrel length of less than 18 inches). Following a hearing, the
court found that the shotgun did not meet the statutory
definition of an offensive weapon as its barrel was over 18 inches
in length. See Trial Court Opinion (T.C.O.), 3/15/11, at 9–10.
Accordingly, the court granted Appellant's motion for
extraordinary relief and reversed his conviction for possessing an
offensive weapon.
Appellant then proceeded to a sentencing hearing, during which
the Commonwealth sought the application of a mandatory
minimum sentence of five years' imprisonment for Appellant's
conviction of PWID pursuant to 42 Pa.C.S. § 9712.1(a). That
section states:
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(a) Mandatory sentence.—Any person who is convicted
of a violation of section 13(a)(30) of the act of April 14,
1972 (P.L. 233, No. 64), known as 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.
42 Pa.C.S. § 9712.1(a). The trial court concluded that this
mandatory minimum term of incarceration was applicable in
Appellant's case, and sentenced him to five to ten years'
incarceration for his PWID conviction, followed by three years'
probation on his other charges.
Appellant filed a timely notice of appeal, as well as a timely
concise statement of matters complained of on appeal pursuant
to Pa.R.A.P.1925(b).
Commonwealth v. Person (Person I), 39 A.3d 302, 303-305 (Pa. Super.
2012).
In his appeal in Person I, Appellant argued, inter alia, that the
evidence was insufficient to prove that he possessed a firearm in close
proximity to a drug offense and, thus, the imposition of the mandatory
minimum sentence in section 9712.1 was improper. A panel of this Court
agreed, emphasizing that “there was no evidence presented that Appellant
resided at 146 North Dearborn Street, [] he was not the sole adult present in
the home when police arrived[,] … the gun was located in the kitchen, an
area of the home accessible to anyone therein, … [and] Officer Jackson
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testified at trial that she never saw Appellant enter the kitchen where the
shotgun was located.” Person I, 39 A.3d at 306-307. Based on these
facts, we were unable to “conclude, even by a preponderance of the
evidence, that Appellant constructively possessed or controlled the
shotgun.”1 Id. at 307. Therefore, we vacated Appellant’s mandatory
sentence and remanded for resentencing. Id.
The Commonwealth filed a timely petition for allowance of appeal to
our Supreme Court. On March 12, 2014, the Court granted that petition,
vacated our decision in Person I, and remanded for this Court to reconsider
the case in light of Commonwealth v. Hanson, 82 A.3d 1023 (Pa. 2013)
(discussing at length the meaning of “in close proximity” as it is used in 42
Pa.C.S. § 9712.1).
1
Section 9712.1(c) sets forth the standard of proof for imposing the
mandatory minimum sentence under that provision, stating:
(c) Proof at sentencing.--Provisions of this section shall not be
an element of the crime, and notice thereof to the defendant
shall not be required prior to conviction, but reasonable notice of
the Commonwealth's intention to proceed under this section
shall be provided after conviction and before sentencing. The
applicability of this section shall be determined at sentencing.
The court shall consider any evidence presented at trial and shall
afford the Commonwealth and the defendant an opportunity to
present any necessary additional evidence and shall determine,
by a preponderance of the evidence, if this section is
applicable.
42 Pa.C.S. § 9712.1(c) (emphasis added).
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On April 14, 2014, we issued an order directing Appellant and the
Commonwealth to submit new appellate briefs discussing the applicability of
Hanson. However, we also directed the parties to address the impact of
Alleyne v. U.S., 133 S.Ct. 2151 (2013), which was decided on June 17,
2013. In Alleyne, the United States Supreme Court held that any fact that
serves to aggravate the minimum sentence must be found by the fact-finder
beyond a reasonable doubt. Alleyne, 133 S.Ct. at 2160-2161.
On September 8, 2014, Appellant filed his revised brief with this Court,
presenting the following three claims for our review:
1. Was not the mandatory minimum sentence of 5 years[’]
incarceration imposed pursuant to 42 Pa.C.S. § 9712.1 illegal as
the facts necessary for the imposition of the mandatory
minimum in this non-jury matter were not established beyond a
reasonable doubt as mandated by Alleyne?
2. Is not 42 Pa.C.S. § 9712.1 unconstitutional, void and
unenforceable where multiple procedural provisions within the
statute are unconstitutional under the holding in Alleyne and
cannot properly be severed from the remaining statute pursuant
to Commonwealth v. Newman, [2014 WL 4088805, 2014 Pa.
Super. 178 (2014)] (en banc), decided August 20, 2014?
3. Was not the evidence insufficient, as a matter of law, to prove
that [A]ppellant was in “physical possession or control” of the
weapon at issue, thereby making the mandatory sentencing
provisions of 42 Pa.C.S. § 9712.1 for certain drug offenses
inapplicable?
Appellant’s Brief at 3.
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For the reasons that follow, we need only address Appellant’s second
issue. As Appellant points out, in this Court’s recent en banc decision in
Newman, we held that “the sentencing practice under Section 9712.1 is
unconstitutional” in light of Alleyne.2 Newman, 2014 WL 4088805 at *1,
*10. We also rejected the Commonwealth’s argument “that Subsection (a)
of Section 9712.1, which sets the predicate for the mandatory minimum
sentence, survives constitutional muster and that only Subsection (c), which
directs that the trial court shall determine the predicate of Subsection (a) by
a preponderance of the evidence, fails.” Id. at *13. Instead, we held that
“Subsections (a) and (c) of Section 9712.1 are essentially and inseparably
connected” and, therefore, the unconstitutional portion of the statute could
not be severed from the rest. Id.
In light of Newman, it is clear that section 9712.1 is unconstitutional
and, thus, Appellant’s mandatory minimum sentence is illegal.3
2
We note that because both Alleyne and Newman were decided during the
pendency of Appellant’s direct appeal, they apply retroactively to his case.
See Newman, 2014 WL 4088805, at *2 (noting the United States Supreme
Court’s holding that “[w]hen a decision of this Court results in a ‘new rule,’
that rule applies to all criminal case still pending on direct review”) (quoting
Schriro v. Summerlin, 542 U.S. 348, 351 (2004) (citation omitted)).
Moreover, Appellant’s issues implicate the legality of his sentence, and
“challenges to ‘[a]n illegal sentence can never be waived and may be raised
sua sponte by this Court.’” Commonwealth v. Randal, 837 A.2d 1211,
1214 (Pa. Super. 2003).
3
We point out that even if Newman did not render section 9712.1
unconstitutional, Appellant’s sentence would still be illegal under Alleyne, as
it is apparent from the record that the fact that triggered application of
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Consequently, we vacate his judgment of sentence and remand for the re-
imposition of a sentence without consideration of any mandatory minimum
term provided by section 9712.1. See Newman, 2014 WL 4088805 at
*15.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2014
section 9712.1 was determined by a preponderance of the evidence at the
time of Appellant’s sentencing.
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Com. v. Person, B.
Combined Opinion