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filed: December 6, 1985.


No. 01035 Pittsburgh 1983, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal, of Allegheny County, at No. 8207379A/8207380A


W. Penn Hackney, Assistant Public Defender, Pittsburgh, for appellant.

Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

Montemuro, Roberts and Bloom, JJ.*fn*

Author: Montemuro

[ 348 Pa. Super. Page 210]

This appeal challenges, in the context of ineffectiveness of trial counsel, the constitutionality of the Mandatory Minimum Sentencing Act [Act], 42 Pa.C.S. § 9712, and requests a reversal of conviction or a remand to conduct an evidentiary hearing on other claims of ineffective assistance of trial counsel. We find appellant was not in any respect denied effective assistance of trial counsel. Accordingly, we affirm the conviction on separate counts of robbery, and on a weapons charge.

Following a guilty verdict on charges of robbery, 18 Pa.C.S. § 3701(a)(1)(ii), and carrying a concealed firearm without a license, 18 Pa.C.S. § 6106, in connection with incidents at the Concord Liberty Savings and Loan in Pittsburgh, Pennsylvania, the jury determined by way of special interrogatory that appellant visibly possessed a firearm during the robbery. Upon the jury's finding of guilt, appellant pleaded guilty to another robbery at the South Pittsburgh Savings and Loan. Post-verdict motions were denied, and appellant was sentenced as follows:

Robbery (South Pittsburgh): three (3) to ten (10) years imprisonment;

Robbery (Concord Liberty): Five (5) to ten (10) years imprisonment in accordance with Section 9712 of the Act to run concurrently with the sentence above;

Firearms violation: Suspended.

In determining whether trial counsel was ineffective we must first consider whether there is arguable merit to the claim. Commonwealth v. Broadwater, 330 Pa. Super. 234, 240, 479 A.2d 526, 529 (1984). Trial counsel will not be deemed ineffective for failure to raise a frivolous issue or to advance a baseless claim. Commonwealth v. Silvis, 307 Pa. Super. 75, 77, 452 A.2d 1045, 1046 (1982). If we determine the claim has arguable merit, we must then decide

[ 348 Pa. Super. Page 211]

    whether the course of action chosen by trial counsel had some reasonable basis designed to effectuate appellant's best interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Finally, should we find arguable merit, and should we find no reasonable basis calculated to effectuate appellant's best interests, before we may grant appellant relief, we must also find appellant was prejudiced by the action taken. Commonwealth v. Clemmons, 505 Pa. 356, 362, 479 A.2d 955, 958 (1984).

Initially, we note appellant has satisfied the procedural requirement that ineffectiveness of trial counsel must be raised in the first proceeding in which appellant is represented by counsel other than the one whose stewardship is challenged. Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Reidenbaugh, 282 Pa. Super. 300, 305-6, 422 A.2d 1126, 1129 (1980), citing Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1975).

Appellant first argues the ineffectiveness of his trial counsel by contending counsel should have pursued four constitutional challenges to section 9712, viz. : (1) it violates due process by allowing the sentencing court, using the standard of a preponderance of the evidence, to determine an "element of the crime", i.e., visible possession of a firearm, rather than reserving that decision for the trier of fact pursuant to the "beyond a reasonable doubt" standard; (2) it denies appellant his right to a jury trial on an "essential element" of the crime with which he was charged, again the visible possession of a firearm; (3) it denies appellant his due process rights by permitting the Commonwealth to wait until after conviction to inform him of the nature of the crime with which he was charged; and (4) it unconstitutionally gives the prosecution unbridled discretion to decide when to apply the mandatory sentence, thereby violating due process and the separation of powers doctrine.

Appellant's first constitutional challenge has been decisively rejected by the Pennsylvania Supreme Court in Commonwealth v. ...

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