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HomeMy WebLinkAboutCP-21-CR-1587-2005 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CHRISTOPHER MURPHY : CP-21-CR-1587-2005 IN RE: APPLICABILITY OF MANDATORY SENTENCE OPINION AND ORDER OF COURT Bayley, J., April 1, 2008:-- On January 30, 2008, defendant, Christopher Michael Murphy, was convicted by a jury of unlawful possession with intent to deliver a schedule II (cocaine) controlled 12 substance, and unlawful possession of drug paraphernalia. A pre-sentence investigation has been prepared. The Commonwealth maintains that a five-year mandatory minimum sentence is applicable under 42 Pa.C.S. Section 9712.1(a), which provides: 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, when at the time of the offense the person Device and Cosmetic Act, or the is in physical possession or control of a firearm person’s accomplice , whether visible, concealed about the personor or the person’s accomplice within the actor’sreach or inclose proximity to the or accomplice’s controlled substance , shall likewise be sentenced to a minimum sentence of at least five years of total confinement. (Emphasis added.) Neither the Commonwealth nor defendant seek to present any additional 3 evidence beyond what is already in the record of the jury trial. That evidence, as it relates to the issue of the applicability of Section 9712.1 to the sentence, was as 1 35 P.S. § 780-113(a)(30). 2 35 P.S. § 780-113(a)(32). 3 See, 42 Pa.C.S. § 9712.1(c). CP-21-CR-1587-2005 4 follows: On June 21, 2005, police officers obtained a search warrant to search a house at 414 North Pitt Street Carlisle, Cumberland County. When they arrived at the house, nobody was home. After forcibly entering, they found, among other things, seven individually wrapped baggies of crack cocaine on the table just inside the doorway of the living room. The total weight of the cocaine in the seven baggies was 2.63 grams. In another section of the living room, under a vent in the floor, the officers found a handgun with a round in the chamber and a fully loaded magazine inserted into the weapon. The 2.63 grams of cocaine formed the basis for the conviction of defendant for the constructive possession with intent to deliver a schedule II controlled substance. We agree with defendant that the five-year mandatory sentence in Section 9712.1(a) does not apply to him. The intent of the statute is to impose a minimum penalty if, at the time of a drug offense, a firearm poses an immediate threat during the perpetration of that offense. When the present offense was committed, defendant was not in physical possession or control of the firearm that was under the vent in close proximity to the cocaine that was seized. Rather, he was in constructive possession of the firearm. While there was sufficient evidence to convict him of the constructive possession of the cocaine, the mandatory sentencing provision in Section 9712.1(a) does not require a minimum sentence based on his constructive possession of the 4 The Pennsylvania Sentencing Guidelines minimum sentence range is 9 months to 16 months. There is a mandatory one-year minimum sentence required by 18 Pa.C.S. Section 7508(a)(3)(i) because the amount of the cocaine is at least 2.0 grams and less than 10 grams. -2- CP-21-CR-1587-2005 5 firearm. There was no threat posed by the firearm in this case. Accordingly, the following order is entered: ORDER OF COURT AND NOW, this ________ day of April, 2008, it is ordered that the IS Commonwealth’s notice of mandatory sentence under 42 Pa.C.S. Section 9712.1(a), DISMISSED . By the Court, _______________________________ Edgar B. Bayley, J. Matthew P. Smith, Esquire For the Commonwealth Susan K. Pickford, Esquire For the Defendant :sal 5 Similarly, if defendant had been in the living room when the police entered the premises and found the cocaine on a table inside the doorway, and his firearm was in the upstairs bedroom, Section 9712.1(a) would not apply because the firearm would not have been in his control in close proximity to the cocaine whereby it would pose a threat to the officers. In contrast, if defendant had been in the living room, Section 9712.1(a) would apply because he would have been in actual possession of the cocaine on the table and he would have been in control of the firearm under the vent that was in close proximity to the cocaine. -3- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CHRISTOPHER MURPHY : CP-21-CR-1587-2005 IN RE: APPLICABILITY OF MANDATORY SENTENCE ORDER OF COURT AND NOW, this ________ day of April, 2008, it is ordered that the IS Commonwealth’s notice of mandatory sentence under 42 Pa.C.S. Section 9712.1(a), DISMISSED . By the Court, _______________________________ Edgar B. Bayley, J. Matthew P. Smith, Esquire For the Commonwealth Susan K. Pickford, Esquire For the Defendant :sal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : CHRISTOPHER MURPHY : CP-21-CR-1587-2005 ORDER OF COURT AND NOW, this ________ day of April, 2008, defendant is ordered to appear for sentencing on Tuesday, April 15, 2008, at 1:30 p.m., in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, _______________________________ Edgar B. Bayley, J. Matthew P. Smith, Esquire For the Commonwealth Susan K. Pickford, Esquire For the Defendant Probation Court Administrator :sal