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filed: October 11, 1985.


Appeal from the Judgment of Sentence in the Court of Common Pleas of Adams County, Criminal Division, No. CC-45-83


Robert L. McQuaide, Gettysburg, for appellant.

Roy A. Keefer, Assistant District Attorney, Gettysburg, for Commonwealth, appellee.

Tamilia, Lipez and Bucher, JJ.*fn*

Author: Tamilia

[ 346 Pa. Super. Page 352]

This is an appeal from the judgment of sentence entered pursuant to appellant's conviction for robbery. Sentence imposed was five to fifteen years imprisonment under the provisions of 42 Pa.C.S.A. § 9712(a) requiring a mandatory five year sentence for crimes committed with a firearm.*fn1

Appellant's first argument is that there was no probable cause for his arrest; thus the physical evidence seized by the police should have been suppressed. We disagree.

[ 346 Pa. Super. Page 353]

In Commonwealth v. Williams, 317 Pa. Super. 456, 464, 464 A.2d 411, 415 (1983), this Court stated:

The standard to be used in assessing whether there was probable cause for a given arrest was set forth by this court in Commonwealth v. Jones, 271 Pa. Super. 528, 532, 414 A.2d 379, 381 (1979):

Probable cause to arrest existed if, at the time appellant was detained by the police, the facts and circumstances known to them and of which they had reasonably trustworthy information, were sufficient to warrant a prudent man in believing that appellant had committed the . . . [crime]. Commonwealth v. Powers, 484 Pa. 198, 201, 398 A.2d 1013, 1014 (1979). The test is not one of certainties but one of probabilities dealing with considerations of everyday life. Commonwealth v. Dickerson, 468 Pa. 599, 605, 364 A.2d 677, 681 (1976). The facts known must be viewed from the vantage point of a prudent, reasonable, cautious police officer on the scene at the time of the arrest guided by his experience and training. Commonwealth v. Tolbert, 235 Pa. Super. 227, 230, 341 A.2d 198, 200 (1975).

Here, our review of the record discloses that appellant's arrest was supported by probable cause. Appellant was in a car stopped initially for a summary motor vehicle violation and was arrested when the officer noticed that the occupants of the car matched descriptions of persons who had just robbed a pharmacy a short distance away. As the lower court concluded:

The furtive and suspicious nature of the occupants' conduct coupled with the descriptions matching those of the robbery suspects gave the officer probable cause to believe the occupants had participated in the then recent robbery. Commonwealth v. Jones, 457 Pa. 423, 322 A.2d 119 (1974); Commonwealth v. Wilder, 461 Pa. 597, 337 A.2d 564 (1975).

(Slip Op. at 3). We, therefore, find that there was probable cause for the arrest and that the physical evidence (i.e., the stolen items) need not be suppressed as fruits of that

[ 346 Pa. Super. Page 354]

    arrest. Williams, supra. See Commonwealth v. Stasiak, 305 Pa. Super. 257, 451 A.2d 520 (1982); Commonwealth v. Urbina, 290 Pa. Super. 117, 434 A.2d 157 (1981).

Appellant next argues that the application of the mandatory sentence provisions of 42 Pa.C.S.A. § 9712*fn2 are unconstitutional in the following respects:

[ 346 Pa. Super. Page 3551]

) the statute does not provide for proper notice of the offense charged and the requisite elements, which includes the visible possession of a firearm;

2) the statute places appellant in jeopardy of being deprived of his freedom for a minimum of five years yet the facts for determining that minimum are not to be determined by a jury, thus violating the Sixth Amendment right to a jury trial for crimes penalized by more than six months imprisonment;

3) the standard of proof applied (i.e., preponderance of the evidence) violates due process as visible possession of a firearm is an element of a crime and therefore requires proof "beyond a reasonable doubt";

4) the statute is void for vagueness because of the notice deficiency;

5) the statute violates the separation of powers by usurpation of the judiciary's function; and

6) the statute violates the Equal Protection Clause in that it differentiates between persons who use variant means to commit the same act.

Our Supreme Court has unanimously upheld the constitutionality of the mandatory sentencing provisions in the recent case of Commonwealth v. Wright et al., 508 Pa. 25, 494 A.2d 354 (1985; Opinion by Nix, C.J.) The central issue of Wright, which was a consolidation of five appeals, was whether proof of visible possession of a firearm by a preponderance of the evidence pursuant to section 9712(b) violates the Due Process Clause. The Wright Court concluded that visible possession of a firearm is not an element of the crime, noting that our Legislature "explicitly provided in section 9712(b) the '[p]rovisions of this section shall not be an element of the crime. . . .' 42 Pa.C.S.A. § 9712(b)." Wright, supra, 508 Pa. at 31, 494 A.2d at 357. In addition, the Wright Court noted that there was no due process violation since section 9712 does not alter the degree of guilt of the crime to which it may be applied. Moreover, the Wright Court found that the application of section 9712 only comes into play once the defendant is convicted of one of the enumerated offenses. Since it is

[ 346 Pa. Super. Page 356]

    within the province of the legislature to determine the punishment imposable for criminal conduct, the Wright Court summarily rejected the argument that section 9712 violates the separation of powers principle by depriving the sentencing court of discretion, and also rejected the claim that section 9712 improperly delegates such legislative power to the executive branch, noting no distinction between such an exercise of discretion and the normal exercise of prosecutorial discretion.

Thus the Wright Court held that section 9712 relates solely to the sentencing proceeding and that a higher standard of proof was not necessary. Because the Wright Court has comprehensively analyzed and adequately disposed of appellant's arguments one through five, we need not expound on them further. Appellant's sixth argument focuses on a somewhat tenuous equal protection theory.

While the Wright Court was not faced with an equal protection challenge, we nevertheless find appellant's equal protection argument to be meritless. Appellant claims that the mandatory sentencing provisions of 42 Pa.C.S.A. § 9712 constitute a denial of equal protection since those defendants who use firearms are sentenced more harshly than all other defendants who commit the same crimes without using a firearm. In support of this argument, appellant relies solely on Commonwealth v. Bell, (No. 1401 August Term Phil.C.P. 1982), which is currently before our Supreme Court, No. 29 1984, but as of yet remains unassigned.*fn3 While the Bell court found the instant legislation unconstitutional, we find its holding to be contrary to the existing equal protection analysis adopted by the United States Supreme Court; thus, it is not dispositive of the case before us.

This Court previously noted in Commonwealth v. Webster, 462 Pa. 125, 130, 337 A.2d 914, 917 (1975), "the starting point of equal-protection analysis is a determination whether the State has created a classification for the

[ 346 Pa. Super. Page 357]

    unequal distribution of benefits or imposition of burdens." (citations omitted) Moreover, "the Fourteenth Amendment does not deny to states the power to treat different classes of people in different ways." Reed v. Reed, 404 U.S. 71, 75, 92 S.Ct. 251, 253, 404 U.S. 71 (1971), and cases cited therein. In enacting 42 Pa.C.S.A. § 9712, our Legislature was concerned with curbing the proliferation of violent crimes resulting from the use of firearms. This is exemplified by the concurring opinion of Justice Larsen in Wright, supra, which provides a cogent synopsis of the legislation's purpose: "to deter the dangerous and intimidating use of firearms by felons in the perpetration of crimes." Wright, supra, 508 Pa. at 31, 494 A.2d at 363. Because appellant does not belong to a "suspect class" (i.e., race or alienage), see Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971), nor is a fundamental interest involved, see Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), we need only apply the traditional "rational basis" standard to test this legislation. See Singer v. Sheppard, 464 Pa. 387, 346 A.2d 897 (1975). See generally, L. Tribe, American Constitutional Law, 991-1002 (1978). Doing so, we clearly find the instant legislation to be a reasonable means of achieving a legitimate legislative purpose, thus satisfying the "rational basis" test.

Accordingly, the judgment of sentence is affirmed.


*fn* The Honorable WILSON BUCHER, Senior Judge, of the Court of Common Pleas of Lancaster County, Pennsylvania, is sitting by designation.

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