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COMMONWEALTH PENNSYLVANIA v. KENNETH CANNON (06/10/85)

SUPREME COURT OF PENNSYLVANIA


decided: June 10, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
KENNETH CANNON, APPELLEE

No. 144 E.D. Appeal Docket 1983, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, dated November 10, 1983, entered at Nos. 3703, 3710 and 3720, August Term, 1982.

COUNSEL

Eric B. Henson, Deputy Dist. Atty., Steven J. Cooperstein, Asst. Dist. Atty., for appellant.

Irving Warren Singer, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Nix

[ 508 Pa. Page 23]

OPINION

In this case the Commonwealth appeals the trial court's determination that section 9712 of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712, is unconstitutional. That section requires the imposition of a minimum sentence of five years total confinement if it is established by a preponderance of the evidence that the defendant was in visible possession of a firearm during the commission of certain felonies.*fn1 In light of our recent decision in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), we find it unnecessary to discuss at length the issues raised in this appeal.

[ 508 Pa. Page 24]

In Commonwealth v. Wright, supra, we held that the preponderance standard of proof prescribed in section 9712 satisfies the minimum requirements of due process. Accordingly, the lower court's holding that section 9712 is unconstitutional is reversed, the sentences imposed are vacated and the cause is remanded for resentencing pursuant to 42 Pa.C.S. § 9712.

Disposition

In Commonwealth v. Wright, supra , we held that the preponderance standard of proof prescribed in section 9712 satisfies the minimum requirements of due process. Accordingly, the lower court's holding that section 9712 is unconstitutional is reversed, the sentences imposed are vacated and the cause is remanded for resentencing pursuant to 42 Pa. C.S. § 9712.

LARSEN, Justice, concurring.

I join in the majority opinion and further cite in support thereof my opinion in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985).


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