Superior Court 8/4/08 - COMMONWEALTH OF PENNSYLVANIA v. ERNESTO SANES

COMMONWEALTH OF PENNSYLVANIA v. ERNESTO SANES
No. 1295 MDA 2007 2008 PA Super 175 Atlantic: n/a Filed: 8/4/2008
Appeal from the Judgment of Sentence, July 2, 2007, in the Court of Common Pleas of Berks County Criminal Division at No. CP-06-CR-0003744-2006
Before: FORD ELLIOTT, P.J., SHOGAN AND COLVILLE, JJ.
Opinion by: FORD ELLIOT, P.J.
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. 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. 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.

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