Commonwealth v. Barnett

12 Pa. D. & C.5th 560
CourtPennsylvania Court of Common Pleas, Montgomery County
DecidedJune 11, 2010
Docketno. CP-46-CR-0000721-2009
StatusPublished

This text of 12 Pa. D. & C.5th 560 (Commonwealth v. Barnett) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Montgomery County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Barnett, 12 Pa. D. & C.5th 560 (Pa. Super. Ct. 2010).

Opinion

CARPENTER, J.,

FACTUAL AND PROCEDURAL HISTORY

Appellant, Darron Barnett, appeals from the March 29, 2010 judgment of sentence imposed following his conviction of possession with intent to deliver cocaine, possession with intent to deliver marijuana, two counts of possession of a controlled substance and possession of drug paraphernalia.

Appellant was involved in a large-scale drug operation along with his two co-defendants, Diyon Jefferson and Darrell Elmore, who are also his brothers. The drug operation, which involved the selling of cocaine, marijuana and heroin, was run out of two principal locations, [562]*562603 West Main Street, Norristown, apartment number 2 and 558 Chain Street, Norristown.

The facts at the bench trial established the following. On December 12, 2008, a search warrant was executed on 603 West Main Street, apartment number 2 at approximately 6 a.m. (Motion to suppress/bench trial 1/11/10 pp. 181-83.) Once inside, Detective David Holtzman, of the Montgomery County District Attorney’s Office, County Detective Bureau, encountered appellant, Jefferson, and Danielle Barfield. Id. at 183. Appellant was found in the living room of the apartment. Id. at 183. The search of appellant’s person uncovered $322 and two vials of marijuana. Id. at 185. (Bench trial, v. 2, 1/12/10 p. 25.)

In the kitchen area of the apartment were two Sentry safes. Id. at 185-86. The first Sentry safe concealed 33 bags of heroin with a Bently stamp, 191 bags of heroin, a nine millimeter Sardius handgun and an unloaded magazine for that handgun. Id. at 187-90. The second Sentry safe concealed 201 blue bags of crack cocaine, four knotted sandwich bags containing 201 individual bags of crack cocaine and $1,200 in U.S. currency. Id. at 191,193. Also in the kitchen, a Triton T2 digital scale, a blender and measuring cup, all with cocaine residue, were found. Id. at 192. A key to one of the Sentry safes was located on top of the refrigerator.

The search of the bedroom area revealed 12 small blue bags of crack cocaine, seven plastic vials of marijuana with a butterfly imprint, seven bags of heroin with a Bently imprint, an SKS assault rifle with a fully loaded [563]*563magazine and a Taurus gun case for a .40 caliber weapon. Id. at 194-98.

Officer Christopher Lefebvre of the Norristown Police Department transported appellant and Barfield from the West Main Street location to the police station. (Bench trial, v. 2, 1/12/10 p. 32.) Appellant sat in the rear passenger seat of the vehicle. Id. at 33. After transporting appellant, the officer searched the police vehicle in accordance with standard police procedure and found 2.51 grams of crack cocaine contained in 23 small blue tinted bags in the back seat where appellant had been sitting. Id. at 34.

The investigation led officers to also conduct surveillance of 558 Chain Street later on in the afternoon on December 18, 2008. Id. at 51. A subsequent search of that location was executed, which uncovered in significant part, 80 yellow bags containing crack cocaine in the kitchen cabinet, 43 bags of crack cocaine in the kitchen, three bags of cocaine on the kitchen table, 42 blue bags of crack cocaine on the kitchen table, a chunk of crack cocaine on a glass plate along with a razor blade, box of sandwich bags, bag of rubber bands, a Triton T2 scale. Id. at 56-59.

On January 11, 2010, a three-day bench trial commenced in which appellant was tried along with his two co-defendants.1 At the conclusion of which, we found appellant guilty of the aforementioned charges.

[564]*564On March 29, 2010, a sentencing hearing was conducted, in which the Commonwealth argued that 42 Pa.C.S. §9712.1 applied.2 We agreed, and sentenced appellant to an aggregate term of five to 10 years imprisonment. This, timely appeal followed.

ISSUES

I. Whether This Court Properly Applied the Mandatory Minimum Sentencing Provisions of 42 Pa.CS §9712.1

II. Whether a Challenge to the Constitutionality of the “In Close Proximity” Language of 42 Pa. C.S. §9712.1 Is Proper, When Appellant’s Conduct Falls Squarely Within the Statute

DISCUSSION

I. This Court Properly Applied the Mandatory Minimum Sentencing Provisions of 42Pa.C.S., §9712.1

On appeal, appellant argues that this court erred in sentencing him according to the mandatory sentencing provisions of 42 Pa.C.S.§9712.1. We disagree.

“Section 9712.1 reads in relevant part:

“Section 9712.1 Sentences for certain drug offenses committed with firearms
“(a) Mandatory sentence. — Any person who is convicted of a violation of section 13(a)(30) of the ... The Controlled Substance, Drug, Device and Cosmetic Act, [565]*565when 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). (emphasis added)

At the sentencing hearing, the Commonwealth and defense counsel agreed that following facts were apparent in the record and were agreed upon.

“That Mr. Barnett was located in the apartment on the sofa in the living room when the police entered to execute the search warrant. That the marijuana in issue was found on his person. That the cocaine at issue was later found in the police car which was used to transport him to the police station that day. That the SKS rifle was found in the bedroom in a closet; there was ammo also in that closet with that of another firearm. Counsel have agreed the SKS rifle is, in fact, a firearm pursuant to title 42. 9712.1. The handgun, a Sardius, was found in a safe in the kitchen, numbered C-9, which was locked. Mr. Barnett did not have a key to that safe on his person. There was a key to that safe on the top of the refrigerator in the kitchen.” (Sentencing hearing 3/29/10 p. 4.)

Also at the sentencing hearing, the Commonwealth presented the testimony of Detective Holtzman who in pertinent part testified that apartment number 2 at 603 West Main Street was not a very large apartment. From the spot where appellant was found in the living room, there was no door or barrier blocking access to the kitchen. Id. at 6. The den and kitchen comprised a wide [566]*566open space. Id. The distance between appellant and the Sardius pistol found in the Sentry safe, in the kitchen, was no more than five feet. Id. at 6-7. Additionally the detective testified that there was a tiny little hallway separating appellant from the SKS rifle and ammunition for that rifle, located in the bedroom closet. Id. At most it was only 20 to 25 steps from where appellant was found; Id. at 8.

Although “close proximity” is not defined by statute, it has been interpreted in both Commonwealth v. Sanes, 955 A.2d 369 (Pa. Super. 2008) and in Commonwealth v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Commonwealth v. Mayfield
832 A.2d 418 (Supreme Court of Pennsylvania, 2003)
Commonwealth v. Sanes
955 A.2d 369 (Superior Court of Pennsylvania, 2008)
Commonwealth v. Zortman
985 A.2d 238 (Superior Court of Pennsylvania, 2009)
Commonwealth v. Giffin
595 A.2d 101 (Superior Court of Pennsylvania, 1991)
Commonwealth v. Costa
861 A.2d 358 (Superior Court of Pennsylvania, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
12 Pa. D. & C.5th 560, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-barnett-pactcomplmontgo-2010.