Appeal from the Judgment of Sentence of March 16, 1983, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 82-08-155.
Maxine J. Stotland, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Adam O. Renfroe, Philadelphia, for appellee.
Cavanaugh, Cirillo and Hester, JJ.
[ 344 Pa. Super. Page 460]
The Commonwealth of Pennsylvania appeals the trial court's determination that section 9712 of the Mandatory
[ 344 Pa. Super. Page 461]
Sentencing Act, 42 Pa.C.S.A. § 9712 (hereinafter "Act"), is unconstitutional. We conclude the trial court erred and vacate and remand for resentencing.
Defendant/appellee, Angel R. Molina, was convicted of possessing an instrument of crime, 18 Pa.C.S.A. § 907, and aggravated assault, 18 Pa.C.S.A. § 2702(a)(1). After the jury returned its verdict and before sentencing, the Commonwealth notified Mr. Molina of its intent to invoke 42 Pa.C.S.A. § 9712.*fn1 The Commonwealth also established that Molina possessed a firearm during the aggravated assault.
Following the denial of appellee's post-trial motions, the trial court refused to apply the mandatory minimum sentencing statute. Instead, the court imposed a sentence of 5 years probation for possessing an instrument of crime, and a concurrent term of 7 years probation for aggravated assault. The Commonwealth filed a motion for reconsideration of the sentence which the trial court denied. This appeal followed pursuant to 42 Pa.C.S.A. § 9712(d).
The facts of the crime, viewed in the light favorable to the Commonwealth, Commonwealth v. Keblitis, 500 Pa. 321, 456 A.2d 149 (1983), may be summarized as follows.
On the evening of June 18, 1982, appellee visited his neighbors, Monserate Quiles and Olga Cuevas, husband and wife, in their home. Angered by appellee's flirtation with his wife, Quiles followed appellee to his home upon Molina's departure, and knocked on the door. Quiles had a knife in his back pocket, which he used at his place of employment to open boxes, and a wrench in his hand. Quiles testified that he would have used the wrench to defend himself if attacked, but he did not threaten appellee with the wrench. Mr. Molina emerged from his home ...