No. 4 E.D. Appeal Docket 1984 Appeal from the Judgment of Sentence of the Court of Common Pleas of Chester County, Criminal Division, Dated January 24, 1983, entered at No. 1444 of 1982. No. 28 E.D. Appeal Docket 1984 Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, dated January 30, 1984, entered at No. 2544 December Term, 1982. No. 62 E.D. Appeal Docket 1984 Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, dated March 21, 1984, entered at No. ]039 September Session, 1982. No. 101 E.D. Appeal Docket 1984 Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, dated May 10, 1984, entered at No. 1306 August Session, 1983. No. 106 E.D. Appeal Docket 1983 Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, dated September 21, 1983, entered at No. 1632 August Session, 1982.
Eric B. Henson, Deputy Dist. Atty., Steven J. Cooperstein, Philadelphia, for appellant in all cases, except No. 4 E.D. Appeal Docket 1984.
Robert D. Bacher, Lancaster, for appellant in No. 4 E.D. Appeal Docket 1984.
John W. Packel, Chief, Appeals Div., Leonard Sosnov, Philadelphia, for appellee in No. 28 E.D. Appeal Docket 1984 and for amicus in No. 106 E.D. Appeal Docket 1984.
Gerald A. Stein, Philadelphia, for appellee in No. 62 E.D. Appeal Docket 1984.
Mary McNeill Zell, Philadelphia, for appellee in No. 101 E.D. Appeal Docket 1984.
Josept W. Carroll, III, Deputy Dist. Atty., Stuart Suss, Asst. Dist. Atty., William A. Behe, Deputy Atty. Gen., Robert A. Graci, Media, for appellee in No. 4 E.D. Appeal Docket 1984.
Robert M. Lipshutz, Philadelphia, for appellee in No. 106 E.D. Appeal Docket 1984.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., joins in this opinion and files a concurring opinion.
The issue in these appeals is the constitutionality of section 9712 of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712, which requires the imposition of a minimum sentence of five years' total confinement upon persons found to have been in visible possession of a firearm during the commission of certain felonies. Each of the defendants was convicted of one of the section's enumerated offenses, and in each case the Commonwealth sought to proceed under the section. In four of these cases the trial court, holding the section unconstitutional, declined to apply it.*fn1
In the remaining case a constitutional challenge to the statute was rejected and the defendant was sentenced to a five-year term of imprisonment.*fn2
Section 9712, entitled "Sentences for offenses committed with firearms," provides as follows:
(a) Mandatory sentence. -- Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any
other provision of this title or other statute to the contrary.
(b) Proof of sentencing. -- Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
(c) Authority of court in sentencing. -- There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.
(d) Appeal by Commonwealth. -- If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.
(e) Definition of firearm. -- As used in this section "firearm" means any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.
The constitutional challenge to section 9712 centers upon subsection (b)'s provision that the issue of the applicability of the statute, i.e., whether the defendant visibly possessed a firearm during the commission of the offense, is to be determined by a preponderance of the evidence. In the four appeals in which the section was declared constitutionally infirm, the trial court concluded that the preponderance standard violates due process. The rationale for those decisions is that visible possession of a firearm is an element of the crime for which the defendant is being sentenced and thus requires proof beyond a reasonable doubt. If that theory is correct the statute clearly violates due process and we need proceed no further. If, however, we conclude that visible possession of a firearm is not an element of the crime, we must determine whether proof of that fact by a preponderance of the evidence satisfies the Due Process Clause.
We begin by noting that the legislature explicitly provided in section 9712(b) the "[p]rovisions of this section shall not be an element of the crime . . . ." 42 Pa.C.S. § 9712(b). "Under our system of jurisprudence the legislature is charged with the responsibility of defining the elements of crimes." Commonwealth v. Graves, 461 Pa. 118, 126, 334 A.2d 661, 665 (1975). Moreover, as defined in the Crimes Code, an element of an offense is
[s]uch conduct or such attendant circumstances or such a result of conduct as:
(1) is included in the description of the offense;
(2) establishes the required kind of culpability;
(3) negatives an excuse or justification for such conduct;
(4) negatives a defense under the statute of limitation; or
(5) establishes jurisdiction or venue.
Visible possession of a firearm is neither included in the definitions of the felonies enumerated in section 9712(a) nor does it establish the culpability required under those definitions. See 18 Pa.C.S. §§ 2502(c), 2503, 2702(a)(1), 2901, 3121, 3123, 3701(a)(1)(i)-(iii). Subsections (3), (4) and (5) of the statutory definition of "element of an offense" are clearly inapplicable. Thus, under Pennsylvania law, even in the absence of an explicit statement by the legislature visible possession of a firearm could not be considered an element of the crime of which a defendant subject to section 9712 has been convicted.
It is argued, however, that the section in effect creates a new set of upgraded felonies of which visual possession is a material element. We disagree. Section 9712 does not alter the degree of guilt as to the crimes to which it may be applied. Third degree murder, robbery as defined in 18 Pa.C.S. § 3701(a)(1), kidnapping, rape and involuntary deviate sexual intercourse are felonies of the first degree subjecting the defendant to a maximum of twenty years' imprisonment. Voluntary manslaughter and aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) are felonies of the second degree carrying a maximum sentence of ten years. Section 9712 neither provides for an increase in these maximum sentences nor authorizes a separate sentence. It merely mandates a minimum sentence of five years, which may be greater or less than the minimum sentence which might otherwise be imposed.*fn3
Moreover, section 9712 applies only in the event the defendant is convicted of one of the offenses enumerated therein and thus relates solely to the sentencing proceedings. The section in question removes from the sentencing court the discretion to decide whether total confinement is appropriate and whether to set a minimum sentence of less
than five years. Visible possession of a firearm during the commission of the crime is a sentencing factor which, if found, is dispositive of those issues. The legislature has thus foreclosed the possibility of leniency to such gun-users. Thus we conclude that ...