Com. v. Sanes

955 A.2d 369

2008 PA Super 175

COMMONWEALTH of Pennsylvania v. Ernesto SANES, Appellant.

No. 1295 Middle District Appeal 2007

Superior Court of Pennsylvania.

Submitted April 14, 2008.

Filed August 4, 2008.

Eric J. Taylor, Reading, for appellant.

Stuart B. Suss, Office of the Attorney General, for Com., appellee.

BEFORE: FORD ELLIOTT, P.J., SHOGAN and COLVILLE,^* JJ.

OPINION BY FORD ELLIOTT, P.J.:

¶ 1 Ernesto Sanes appeals from the judgment of sentence of July 2, 2007, following his conviction of one count each of possession of a controlled substance, possession with intent to deliver a controlled substance, and persons not to possess, use, manufacture, control, sell, or transfer firearms.¹ In this appeal, we are asked to decide whether or not appellant was in constructive possession of the firearms; and if so, whether or not they were in "close proximity" to the contraband such that the mandatory sentencing provision of Section 9712.1 of the Sentencing Code applied.² This case raises a question of first impression in this Commonwealth; to-wit, what constitutes "close proximity" for purposes of the mandatory sentencing statute. For the following reasons, we determine that appellant did constructively possess the firearms at issue; and that, while the phrase "close proximity" does not easily lend itself to precise definition, at least one of the firearms was indeed in close proximity to the illegal narcotics recovered from appellant's bedroom. Therefore, the trial court did not err in applying the statute, and we will affirm appellant's judgment of sentence.

¶ 2 The facts of this case have been aptly summarized by the trial court as follows:

On July 27, 2006, Investigator Leporace of the Reading Police Vice Division and other members of the Reading Police Department executed a search warrant of 1031 Patton Avenue, Reading, Berks County, Pennsylvania. The warrant listed the Defendant, Ernesto Sanes, and his girlfriend, Catherine Perez, in a search targeting controlled substances and related contraband. During the search, the police found mail addressed to both the Defendant and Perez at 1031 Patton Avenue. Upstairs, the police found two bedrooms, a storage room, and a bathroom. In the first bedroom, Investigator Leporace observed the Defendant and his girlfriend in bed together in their undergarments, as well as a bulk quantity of cocaine in a plastic bag on top of the bedroom dresser. Investigator Leporace also saw most of the Defendant's clothes in this bedroom. In the other bedroom, he observed a small child and an infant, along with a crib and a small bed, small clothing, and toys. After allowing the Defendant and Perez to dress, directing them to the living room, and individually reading them their Miranda[³] rights, Investigator Leporace asked the Defendant if any drugs, weapons, money, or drug paraphernalia were in the house. The Defendant responded that there were two guns, but that one was legal because it was registered to Perez. He led Investigator Leporace to the gun registered to Perez, a fully-loaded nine-millimeter handgun, inside a box in the closet of the room where he and Perez slept. At the Defendant's direction, Investigator Leporace located the other gun, an unloaded and unregistered .380 revolver, in the pocket of an adult-sized leather jacket hanging in the children's bedroom closet.[⁴] The Defendant admitted to selling the cocaine. The police found one other person in the residence—the Defendant's father, on a visit from abroad. The police found no indications that the Defendant's father lived at the residence.

At trial, Investigator Leporace testified that firearms are tools of the drug trade and that he expects to find firearms when executing a drug-related warrant.

Trial court opinion, 12/18/07 at 2-3.

¶ 3 On April 27, 2007, following a bench trial before the Honorable Thomas G. Parisi, appellant was found guilty of all three charges. On July 2, 2007, appellant appeared for sentencing. After hearing further testimony from Criminal Investigator Pasquale Leporace ("Investigator Leporace") and argument from the parties, Judge Parisi determined that appellant constructively possessed both firearms, and that both firearms were in close proximity to the drugs as required for the application of the mandatory sentencing provision of Section 9712.1. (Notes of testimony, 7/2/07 at 21.) At Count 2, possession with intent to deliver a controlled substance, the trial court imposed the mandatory sentence of five to ten years' imprisonment. At Count 3, persons not to possess firearms, the trial court imposed the statutory maximum sentence of five to ten years.⁵ The sentences were run concurrently and Count 1, possession, merged for sentencing purposes, for an aggregate sentence of five to ten years.

¶ 4 Timely notice of appeal was filed July 24, 2007. On August 21, 2007, the trial court directed appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P.1925(b) within 21 days; appellant complied and filed a timely Rule 1925(b) statement on September 5, 2007, raising the identical issues presented instantly. On December 18, 2007, the trial court filed a Rule 1925(a) opinion.

¶ 5 Appellant has raised the following issues for this court's review:

A. Whether the evidence was insufficient to establish beyond a reasonable doubt that appellant was guilty of count 3, persons not to possess, use, manufacture, control, sell or transfer firearms, where the Commonwealth failed to establish that appellant had actual or constructive possession of either of the firearms in question?

B. Whether the sentencing court erred in finding that the mandatory sentence of five years under 42 Pa. C.S.A. § 9712.1 was applicable for count 2, possession with intent to deliver a controlled substance, where the Commonwealth did not prove that either of the firearms were in appellant's or his accomplice's possession or control and the Commonwealth did not prove that either of the firearms were within appellant's or his accomplice's reach or in close proximity to the controlled substance?

Appellant's brief at 4.

¶ 6 Before turning to the Section 9712.1 issue, we address appellant's contention that the Commonwealth failed to prove he was in possession of either firearm. Initially, we note our standard of review:

The standard for reviewing the sufficiency of evidence on appeal is well-settled.

When reviewing a sufficiency of the evidence claim, an appellate court must view all the evidence and reasonable inferences therefrom in a light most favorable to the Commonwealth as verdict winner and must determine whether the evidence was such as to enable a fact finder to find that all of the elements of the offense[] were established beyond a reasonable doubt.

Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa.Super.2005) (internal citations omitted). Moreover, when reviewing the sufficiency of the evidence, this Court may not substitute its judgment for that of the fact-finder; if the record contains support for the convictions they may not be disturbed. Commonwealth v. Hartle, 894 A.2d 800, 803 (Pa.Super.2006). Lastly, the finder of fact may believe all, some or none of a witness's testimony. Castelhun, 889 A.2d at 1232.

Commonwealth v. Holley, 945 A.2d 241, 246-247 (Pa.Super.2008).

¶ 7 As stated above, it was stipulated that appellant was convicted of a qualifying offense enumerated in Subsection (b) of the statute; therefore, the only issue is whether or not the Commonwealth proved beyond a reasonable doubt that appellant was in possession or control of one or both of the firearms in question. If so, then the Commonwealth satisfied its burden under Section 6105(a)(1).⁶ As there was no evidence that appellant was in actual possession of either firearm, the Commonwealth had to prove constructive possession.

`When contraband is not found on the defendant's person, the Commonwealth must establish constructive possession . . . .' Commonwealth v. Haskins, 450 Pa.Super. 540, 677 A.2d 328, 330 (1996), appeal denied, 547 Pa. 751, 692 A.2d 563 (1997). `Constructive possession is the ability to exercise conscious control or dominion over the illegal substance and the intent to exercise that control.' Commonwealth v. Kirkland, 831 A.2d 607, 610 (Pa.Super.2003), appeal denied, 577 Pa. 712, 847 A.2d 1280 (2004) (citing Commonwealth v. Macolino, 503 Pa. 201, 469 A.2d 132 (1983)). `[T]wo actors may have joint control and equal access and thus both may constructively possess the contraband.' Haskins, supra at 330. `The intent to exercise conscious dominion can be inferred from the totality of the circumstances.' Kirkland, supra at 610.

Commonwealth v. Jones, 874 A.2d 108, 121 (Pa.Super.2005).

¶ 8 Instantly, appellant knew the precise location of both firearms, and showed police where they were. The firearms were not in plain view; the .9mm handgun was concealed in a box in the bedroom closet, and the .38 special revolver was inside a jacket in the children's bedroom. (Notes of testimony, 4/27/07 at 24.) Inspector Leporace testified that appellant pointed out the specific box containing the .9mm, as well as the particular leather jacket in which the .38 was located. (Id.) In addition, appellant knew the registration status of the firearms, informing police that the .9mm was "legal" because it was registered in the name of his girlfriend, Catherine Perez ("Perez"). (Id. at 23-24.) By implication, the .38 revolver was not "legal" and, in fact, the police could not find ownership records for the .38. (Id. at 27.)

¶ 9 Appellant does not dispute that he resided in the apartment with Perez. As the trial court states, there was mail addressed to appellant at that location, photographs of appellant throughout the apartment, and appellant's clothing was found in the second floor bedroom. (Id. at 28-29.) Examining the totality of the circumstances, we determine there was sufficient evidence to prove...