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COMMONWEALTH PENNSYLVANIA v. DAVID MICHAEL STERLING (07/26/85)

filed: July 26, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
DAVID MICHAEL STERLING, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Erie County, Criminal Division, at No. 210 of 1984.

COUNSEL

Terrence P. Cavanaugh, Erie, for appellant.

Michael R. Cauley, Assistant District Attorney, Erie, for Commonwealth, appellee.

Montemuro, Roberts and Bloom, JJ.*fn*

Author: Montemuro

[ 344 Pa. Super. Page 271]

Appellant, David Michael Sterling, appeals from the judgment of sentence of the Court of Common Pleas of Erie County. On January 4, 1984, appellant was arrested and charged with three (3) counts of robbery, two (2) counts of receiving stolen property, three (3) counts of reckless endangerment,

[ 344 Pa. Super. Page 272]

    two (2) counts of corruption of minors, three (3) counts of criminal conspiracy, three (3) counts of possessing instruments of crime, one (1) count of simple assault and two (2) counts of terroristic threats. The charges related to appellant's involvement with three (3) other males in a series of robberies. A carbon dioxide powered pellet gun owned by appellant was used during the course of the robberies. On May 17, 1984, appellant pled guilty to three (3) counts of robbery, one (1) count of corruption of minors and one (1) count of criminal conspiracy.

Upon petition of the Commonwealth, an evidentiary hearing*fn1 was held on June 12, 1984, to determine the applicability of 42 Pa.C.S. § 9712 to appellant's sentence. The court determined that a carbon dioxide pellet gun was a "firearm" within 42 Pa.C.S. § 9712 and that the mandatory minimum sentence of imprisonment for the use of a firearm during the commission of a robbery was applicable. The court then sentenced appellant to concurrent terms of imprisonment of five (5) to ten (10) years on the robbery convictions and to concurrent probationary sentences on the conspiracy and corruption charges.

On appeal, the sole issue presented by appellant is whether a carbon dioxide pellet gun is a firearm within the meaning of 42 Pa.C.S. § 9712(e). He contends that the trial court erroneously determined that a carbon dioxide pellet gun was a firearm as defined in section 9712(e). Thus, he argues that the court erred in imposing the minimum five (5) year sentence of imprisonment mandated by section 9712 and, furthermore, that section 9712 is so vague as to render it unconstitutional.*fn2

We begin our analysis by examining section 9712 which provides as follows:

[ 344 Pa. Super. Page 273]

    guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory ...


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