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COMMONWEALTH PENNSYLVANIA v. DANIEL ANDERSON (09/06/85)

filed: September 6, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL ANDERSON, APPELLANT



Appeal from the Judgment of Sentence October 23, 1984 in the Court of Common Pleas of Westmoreland County, Criminal No. 11 C. Term 1983.

COUNSEL

Dante G. Bertani, Public Defender, Greensburg, for appellant.

Terrance G. Faye, Assistant District Attorney, Greensburg, for Commonwealth, appellee.

Rowley, Olszewski and Del Sole, JJ.

Author: Olszewski

[ 345 Pa. Super. Page 410]

This appeal follows judgment of sentence for robbery and criminal conspiracy to commit robbery. The convictions result from appellant's part in the armed robbery of a gas station in Greensburg, Pennsylvania.

Appellant filed timely post-trial motions which were considered and denied by the trial court. Commonwealth filed a notice of its intent to proceed under the mandatory sentencing provision of 42 Pa.C.S. Sec. 9712. Appellant responded with a motion to prevent imposition of the mandatory sentence. The court denied the motion and sentenced appellant to a five to ten year term of imprisonment.

Appellant presents four issues. He alleges first that: the prosecutor in his opening statement unduly prejudiced appellant's case; the evidence failed to establish that appellant had placed the victim in fear of serious bodily harm; and withdrawal of a plea offer denied appellant due process. After reviewing the record and briefs, we deem these issues meritless. We adopt, for purposes of allocatur, the lower court's opinion.

Appellant's fourth issue challenges the constitutionality of the Mandatory Sentencing Act, 42 Pa.C.S. Sec. 9712, et seq.*fn1 He raises a battery of arguments. For the reasons below, we dismiss his challenge.

Appellant argues first that Sec. 9712 violates due process by failing to require notice in the information of Commonwealth's intention to proceed under the Mandatory Sentencing Act. The Act does require the Commonwealth to give notice after conviction but before sentencing of its intention to proceed under Sec. 9712. 42 Pa.C.S. Sec. 9712(b). To the extent that visible possession of a firearm during the commission of an offense operates as an "aggravating circumstance" triggering application of the Act, notice

[ 345 Pa. Super. Page 411]

    post-conviction, pre-sentencing satisfies due process concerns.

It is only mandatory that the accused is informed, in the indictment, of the crime he is charged with, and any aggravating circumstances; and that he be informed, as required by due process, before receiving the enhanced sentence of the possibility of additional punishment; and that he be given the opportunity to be heard concerning the aggravated penalty.

Commonwealth v. Lee, 454 Pa. 526, 532-533, 312 A.2d 391, 394-395 (1973) (Eagen, J., concurring) (citations omitted). The information in the instant case charges that "the said actor did point a Ruger handgun at one Daniel Musgrove, an attendant at Rosey's Mobil Station and did remove the sum of One Hundred Eighty Seven Dollars ($187.00) from the said victim." On the facts of ...


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