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COMMONWEALTH PENNSYLVANIA v. RICHARD WILDERMUTH (11/22/85)

filed: November 22, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
RICHARD WILDERMUTH, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal Division, at Nos. 1224 and 1225 of 1984.

COUNSEL

Michael Mustokoff, Philadelphia, for appellant.

Christopher J. Serpico, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Montemuro, Popovich and Watkins, JJ.

Author: Montemuro

[ 347 Pa. Super. Page 641]

Appellant, Richard Wildermuth, herein appeals from the judgment of sentence of the Court of Common Pleas of Bucks County. On November 15, 1984, appellant pled guilty to charges of rape, statutory rape, involuntary deviate sexual intercourse, indecent assault and exposure, and corrupting a minor, age 6, and to charges of statutory rape, indecent assault, and corrupting a minor, age 12. Applying the mandatory sentencing provisions of 42 Pa.C.S. § 9718 (relating to offenses against infant persons), the court below thereafter sentenced appellant to two concurrent terms of five to ten years imprisonment. This appeal followed the denial of appellant's motion for modification of sentence.

Appellant herein raises a plethora of constitutional challenges to the provisions of section 9718,*fn1 and to their

[ 347 Pa. Super. Page 642]

    application to the instant circumstances, which we will address seriatim.

Initially, we note that our analysis has been guided by the precepts reiterated in Commonwealth v. Bannister, 345 Pa. Super. 178, 182, 497 A.2d 1362, 1364 (1985):

Our analysis of the constitutional challenge to this legislation must begin with a strong presumption of constitutionality. Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339 (1983); Commonwealth v. Cooke, 342 Pa. Super. 58, 492 A.2d 63 (1985). We will not strike down a statute unless its violation of the Constitution is so clear, palpable and plain as to preclude doubt or hesitation as to its validity. Snider v. Thornburgh, 496 Pa. 159, 436 A.2d 593 (1981); Tosto v. Pennsylvania Nursing Home Loan Agency, 460 Pa. 1, 331 A.2d 198 (1975); See also Commonwealth v. Bryant, 239 Pa. Super. 43, 361 A.2d 350 (1976).

Appellant first argues that section 9718 violates his right to equal protection in that the legislature failed to limit section 9718's applicability to offenders under 60 years of age. Directing our attention to the mandatory sentencing provisions of 42 Pa.C.S. § 9717 (relating to offenses against elderly persons), appellant, approximately 80-81 years of age during the period within which the instant offenses occurred, observes that, had his offenses been against persons older than 60, he would not be subject to mandatory sentencing due to the fact that section 9717's applicability is limited ...


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