By Burt Rose
The Supreme Court of Pennsylvania has decided a mandatory sentence case on direct appeal in COMMONWEALTH of Pennsylvania v. Carl P. HANSON, Appellant, No. 55 EAP 2011, 2013 WL 6831854 (Dec. 27, 2013), an appeal from a Judgment of Superior Court entered on 7/15/10 at No. 3225 EDA 2008, affirming the Judgment of Sentence entered in the Court of Common Pleas, Philadelphia County, Criminal Division, CP–51–CR–0011477–2007. Justice Saylor wrote the Opinion for the Court.
Section 9712.1(a) of the Sentencing Code provides:
(a) Mandatory sentence—Any person who is convicted of [PWID], 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.
The Court held that, for purposes of Section 9712.1(a), “physical possession or control” means the knowing exercise of power over a weapon, which may be proven through evidence of a direct, physical association between the defendant and the weapon or evidence of constructive control. Constructive control in this setting entails the ability to exercise a conscious dominion and the intent to do so.
The closer a firearm is found to contraband, the stronger the inference of this association. Therefore, the farther removed these elements are in location, the greater the necessity for the Commonwealth to produce other evidence to establish constructive control. To secure a mandatory minimum sentence under Section 9712.1(a), the Commonwealth must establish “physical possession or control” of the subject firearm. Where there is doubt in the application of a mandatory sentencing statute, the rule of lenity favors traditional, individualized sentencing based on the defendant’s offenses, record, and particular circumstances.
Where the court determines that the Commonwealth has not established, by a preponderance of the evidence, that Appellant was in constructive control of the firearm, the court should implement individualized sentencing. Furthermore, to the degree to which Appellant may attain recourse to the new Alleyneregime, consistent with the developed principles of issue presentation and preservation and/or their exceptions, the Court does not foreclose that the common pleas court may undertake traditional, individualized sentencing, based on Alleyne.