Com. v. McKibben

977 A.2d 1188

2009 PA Super 130

COMMONWEALTH of Pennsylvania, Appellant v. Wayne McKIBBEN, Appellee.

No. 882 EDA 2008

Superior Court of Pennsylvania.

Argued June 10, 2009.

Filed July 14, 2009.

Andrea Johnson, Asst. Dist. Atty, Philadelphia, for the Com., appellant.

Eugene P. Tinari, Philadelphia, for appellee. (Submitted)

BEFORE: STEVENS, KLEIN, and KELLY, JJ.

OPINION BY STEVENS, J.:

¶ 1 The Commonwealth appeals from the Judgment of Sentence¹ entered on February 21, 2008, in the Court of Common Pleas of Philadelphia County at which time the trial court sentenced Wayne McKibben (hereinafter "Appellee") to an aggregate prison term of three (3) years to six (6) years in prison, a $15,000 fine, and $1,625 in court costs. Following our review of the record, we reverse.

¶ 2 On April 30, 2007, Appellee was arrested and charged with various drugs and weapons offenses. On January 7, 2008, he waived his right to a jury trial, and following a one day bench trial the trial court convicted Appellee of possession with intent to deliver a controlled substance,² criminal use of a communication facility,³ possession of a controlled substance,⁴ possession of drug paraphernalia,⁵ and prohibitive offensive weapons.⁶ These convictions arose after Appellee took part in several drug transactions which involved the sale of cocaine to a confidential informant who entered Appellee's residence on various occasions in April of 2007 to purchase the contraband while police officers waited outside.

¶ 3 Though the distinguished trial judge sets forth a lengthy statement of facts in his Opinion filed pursuant to Pa.R.A.P. 1925(a), we have reiterated only a portion thereof which is relevant to our discussion herein:

As a result of the investigation, Police Officer Simmons obtained a search and seizure warrant for 5506 Walnut Street. (N.T. 01/07/08, p. 24).

* * *

At approximately 5:45 p.m., [on April 30, 2007], Police Officer Simmons, members of SWAT, and members of the Narcotics Field Unit executed the search warrant. Appellee was seen leaving from the rear bedroom and arrested in the hallway. (N.T. 01/07/08, pp. 25-28).

Recovered from the rear bedroom was one sandwich bag containing five clear plastic bags, each containing fifty small [Z]iploc packets, one clear plastic packet stamped with an apple, containing sixteen smaller clear [Z]iploc plackets. (N.T. 01/07/08, p. 25). All of these packets contained crack cocaine. (N.T. 01/07/08, p. 25). Also recovered in the rear bedroom was another clear sandwich bag, containing ten smaller [Z]iploc packets which contained a green weed and seed substance, marijuana, and two digital scales with cocaine residue. (N.T. 01/07/08, pp. 25-26). Also recovered in the back rear room was a plate with two spoons, one razor blade, and one strainer, all coated with cocaine. (N.T. 01/07/08, p. 45). A clear package containing marijuana was also confiscated from on top of the plate. (N.T. 01/07/08, p. 45). Two yellow packets and two clear packets containing cocaine were also recovered.

In addition, from the rear bedroom, the police recovered one black Hulk .357 Magnum handgun that was found to be loaded with six live rounds, one .9 millimeter found to be loaded with six live rounds, one twelve-gauge shotgun that was loaded with four rounds, and one twenty-gauge sawed-off shotgun that was loaded with one round. (N.T. 01/07/08, p. 45-46).

Recovered from the rear kitchen was [sic] seventy-two Xanax pills, twenty-one Percocets in an amber pill bottle, forty eight Percocets in a blue bottle, and ten jars of codeine syrup. (N.T. 01/07/08, p. 26).

Recovered from the rear of the apartment was [sic] two hundred twelve dollars of United States currency from the kitchen; forty-one dollars from the coffee table; and one hundred eighty-six dollars from the dresser. (N.T. 01/07/08, p. 43).

Also recovered from Appellee's apartment was [sic] a lease, three letters, one bank statement, and one children's work identification card which were all in the name of Wayne McKibben. (N.T. 01/07/08, p. 26). Also confiscated from the apartment was [sic] a Verizon cell phone with the telephone number 215-749-0435, two letters in the name of Country, one coffee mug displaying the word "Country," and a check for three hundred thirty-seven dollars payable to Wayne McKibben. (N.T. 01/07/08, p. 27). Also recovered was one plastic [Z]iploc packet containing numerous new and unused blue and clear [Z]iploc packets. (N.T., 01/07/08. p. 27).

Recovered from the Appellee was four hundred twenty-nine dollars ($429), three hundred of which was the prerecorded buy money from that day. (N.T. 01/07/08, p. 30). Also recovered from the Appellee were five keys which fit the various doors on the first floor. (N.T. 01/07/08, p. 30).

The weight of the drugs was 17.35 grams of cocaine and 25 grams of oxycodine.

Trial court Opinion, filed 6/24/08, at 5-8.⁷

¶ 4 Following a hearing held on February 21, 2008, Appellee was sentenced. On March 18, 2008, the Commonwealth filed a timely notice of appeal along with its Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b). In its brief, the Commonwealth raises the following question for our review: "Did the lower court impose an illegal sentence by declining to impose the statutorily required mandatory minimum term?" Brief for Appellant at 1.

¶ 5 At the outset we note "a defendant or the Commonwealth may appeal as of right the legality of the sentence." Commonwealth v. Boyd, 941 A.2d 1, 3 (Pa.Super.2007) (quoting Commonwealth v. Ausberry, 891 A.2d 752, 754 (Pa.Super.2006) and 42 Pa.C.S. § 9781(a)) appeal denied Commonwealth v. Boyd, 597 Pa. 710, 951 A.2d 1159 (2008). In addition:

Generally, a challenge to the application of a mandatory minimum sentence is a non-waiveable challenge to the legality of the sentence. Commonwealth v. Leverette, 911 A.2d 998, 1002 (Pa.Super.2006). Issues relating to the legality of a sentence are questions of law, as are claims raising a court's interpretation of a statute. Commonwealth v. Ausberry, 891 A.2d 752, 754 (Pa.Super.2006). Our standard of review over such questions is de novo and our scope of review is plenary. See Leverette, 911 A.2d at 1002. . . .

[T]he Statutory Construction Act of 1972 ("Act") . . . 1 Pa.C.S.A. § 1501 et seq . . . instructs, in relevant part that, `the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly, and `[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.' 1 Pa.C.S.A. § 1921(a), (b). A court should resort to other considerations, such as the General Assembly's purpose in enacting a statute, only when the words of a statute are not explicit. 1 Pa.C.S.A. § 1921(c). The Act also provides that `[w]ords and phrases shall be construed according to the rules of grammar and according to their common and approved usage,' but that `technical words and phrases and such others as have acquired a peculiar and appropriate meaning . . . shall be construed according to such peculiar and appropriate meaning.' 1 Pa.C.S.A. § 1903(a). Finally, in ascertaining the General Assembly's intent, we may presume that the General Assembly does not intend a result that is absurd, impossible of execution, or unreasonable. 1 Pa.C.S. § 1922(1).

Commonwealth v. Diamond, 945 A.2d 252, 256 (Pa.Super.2008) appeal denied, 598 Pa. 755, 955 A.2d 356 (2008).

¶ 6 42 Pa.C.S.A. § 9712.1(a) provides that "[a]ny 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." Herein, the trial court stated in its Opinion "[i]t is my belief that this statute did not necessarily mean that someone engaged in drug trafficking would be subjected to a mandatory minimum of five years if he possessed a gun in his residence. My assumption is that this statute is designed to prevent the proximity of guns and drugs in an area or zone where drugs are actively being sold from seller to buyer; and not necessarily to a case where the gun is in proximity to a `stash' FN7 somewhere in someone's residence but removed from where the interaction is taking place." FN8 The trial court, therefore, concluded that "[i]n this case, the evidence only demonstrates that sales took place somewhere on the other side of Appellee's front door inside his apartment. There was no evidence that any drugs sales ever took place in the rear bedroom, where the stash of drugs and guns were located . . . If, however, the statute is meant to cover any firearm physically near a stash then I should be reversed. All of the guns were in the bedroom, and there was a significant amount of controlled substances possessed with the intent to deliver also in the bedroom." Trial Court Opinion, filed 6/24/08, at 8-9.⁸

¶ 7 The trial court also noted near the conclusion of trial that "it seems to me that regardless of these particular verdicts that [Appellee] is in fact in close proximity and the firearms are within his reach, and he's in close proximity to firearms while the crime of possession with intent to deliver is taking place." N.T., 1/7/08, at 66. Moreover, the court further stated "I'll listen to any further argument at sentencing, but I also think that regardless of the fact that I found him not guilty of PIC because of an intent, the mandatories are still met by the fact that it's within close proximity to the controlled substances or within his...