Appeal from the Order in the Court of Common Pleas of Philadelphia County, Criminal No. 82-11-1294.
Joanne F. Tyler, Assistant District Attorney, Philadelphia, for appellee.
Steven J. Cooperstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Spaeth, President Judge, and Johnson and Shoyer,*fn* JJ.
[ 345 Pa. Super. Page 201]
This is an appeal by the Commonwealth from judgment of sentence for aggravated assault. The Commonwealth argues that the sentencing court erred in holding the evidence insufficient to find that appellant "visibly possessed a firearm during the commission of the offense" within the meaning of 42 Pa.C.S. § 9712, and in therefore refusing to impose the minimum sentence mandated by that section. We agree and accordingly vacate the sentence and remand for imposition of a sentence in accordance with that section.
On September 27, 1982, after an argument, appellant shot the victim in the abdomen. The victim testified that the shooting occurred as follows: Appellant rode his bicycle to
[ 345 Pa. Super. Page 202]
within eight feet of him. Remaining on the bicycle, appellant reached into his pocket. When he withdrew his hand, it was in the shape of a fist with the knuckles visible. The victim heard a "bang," saw smoke, and felt what proved to be the impact of a bullet. However, he never saw the gun. N.T. 8/15/83 at 22, 30.
Section 9712, 42 Pa.C.S. § 9712 provides:
§ 9712. Sentences for offenses committed with firearms
(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.
In Commonwealth v. Healey, 343 Pa. Super. 323, 494 A.2d 869 (1985), we construed the meaning of the statutory language "visibly possessed a firearm." In that case, the trial court found the evidence insufficient to support the imposition of the mandatory minimum sentence where appellant invited the victim to his apartment, and, upon hearing his knock, fired a shotgun ...