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COMMONWEALTH PENNSYLVANIA v. ALEX WOOTEN (12/13/85)

filed: December 13, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ALEX WOOTEN, APPELLEE



Appeal from the Judgment of Sentence June 19, 1984 in the Court of Common Pleas of Bucks County, Criminal No. 2824, 2825/1983.

COUNSEL

Stephen B. Harris, Assistant District Attorney, Warrington, for Commonwealth, appellant.

Joseph S. Britton, Langhorne, for appellee.

Olszewski, Montgomery and Lederer,*fn* JJ.

Author: Olszewski

[ 348 Pa. Super. Page 37]

This appeal from judgment of sentence is taken by the Commonwealth*fn1 in an effort to increase appellee's minimum sentence from three years to five years through the application of the Mandatory Sentencing Act (Act), 42 Pa.C.S.A. Section 9712. The sole issue to be decided is whether the trial court abused its discretion and erroneously held that since appellee's possession of a firearm was not visible, the Act was not applicable. Because we find that the use of the firearm was visible and that the Act should therefore be applied, we vacate the lower court's judgment of sentence and remand for sentencing consistent with this opinion.

Under the Mandatory Sentencing Act, a mandatory five year minimum sentence must be imposed in every case in which a person is convicted of certain enumerated crimes if such person visibly possessed a firearm.*fn2 "Visibly" is not

[ 348 Pa. Super. Page 38]

    defined and is the determining element in whether or not the Act will apply.

Litigation concerning the Mandatory Sentencing Act has been sparse. Its constitutionality was recently upheld by the Pennsylvania Supreme Court.*fn3 The Superior Court also rejected constitutional challenges to the Act in Commonwealth v. Anderson, 345 Pa. Super. 407, 498 A.2d 887 (1985). Since then, this court has had very few chances to interpret the definition of "visibly possessed." One such case was Commonwealth v. Healey, 343 Pa. Super. 323, 494 A.2d 869 (1985), where visibly possessed was defined as possession "which manifests itself in the process of the crime." The definition was purposely left broad so that it would apply to situations in which a firearm is hidden but has a visible effect on the victim. By adopting such a liberal definition, the Healey court specifically rejected the argument that the victim must actually see the firearm being used by his assailant.

This decision was reaffirmed in Commonwealth v. Woodlyn, 345 Pa. Super. 200, 497 A.2d 1374 (1985). Following the definition set out in Healey, this court held that the requirement of visible possession is satisfied "by the smoke, the sound of gunfire, and, of course the gunshot wound." Once again, it was emphasized that it is not essential for someone to actually see the gun in use in order to sentence under the Act.

The relevant facts to be considered are as follows. After a picnic with friends, appellee and the victim exchanged words. Appellee then noticed the victim coming after him with what he ...


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