Appeal from the Judgment of Sentence of August 22, 1984, in the Court of Common Pleas of Lackawanna County, Criminal Division, at No. 83 CR 356.
Paul J. Walker, Assistant District Attorney, Scranton, for Commonwealth, appellant.
James O'Brien, Assistant Public Defender, Scranton, for appellee.
Beck, Popovich and Trommer,*fn* JJ.
[ 343 Pa. Super. Page 324]
Appellee was convicted of aggravated assault and recklessly endangering another person. On this appeal by the Commonwealth, we are asked to determine under what circumstances a defendant visibly possesses a firearm, so as to come within the provisions of the mandatory sentencing requirement of section 9712 of the Sentencing Code, 42 Pa.C.S. § 9712.
The relevant facts are as follows. The victim received a call from a friend who told him appellee wanted to see him.
[ 343 Pa. Super. Page 325]
The victim went to appellee's apartment house, climbed the stairs to appellee's apartment, knocked on the door, and appellee fired a shotgun blast through the apartment door, hitting the victim and causing him injuries.
After the appellee was convicted, the Commonwealth sought to have him sentenced under Section 9712:
(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.
At his sentencing hearing, appellee argued that since he shot the victim from behind a closed door, he did not visibly possess a firearm because the victim did not see the firearm. The trial judge sentenced appellee to two and one-half (2 1/2) to five (5) years imprisonment, a term below the ...