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filed: January 10, 1986.


Appeal from the Judgment of Sentence of March 7, 1984 in the Court of Common Pleas of Montgomery County, Criminal Division, No. 3437-83


Francis M. Walsh, Assistant Public Defender, Norristown, for appellant.

J. William Ditter, III, Assistant District Attorney, Norristown, for Com., appellee.

McEwen, Cercone and Trommer,*fn* JJ.

Author: Cercone

[ 349 Pa. Super. Page 409]

This is a direct appeal from judgment of sentence which was entered following appellant's open plea of guilty on February 14, 1984, to Robbery, Recklessly Endangering Another Person, Terroristic Threats, Possessing an Instrument of Crime and related charges. These charges arose from an incident on October 14, 1983, in which appellant placed a .22 caliber starter pistol against the back of a gas station attendant with the warning that unless the attendant gave appellant all the money, appellant would shoot. The attendant complied and appellant and two accomplices fled with $300.00.

On February 15, 1984, the Commonwealth gave written notice to appellant that it intended to proceed at sentencing under 42 Pa.C.S.A. § 9712, which provides for a mandatory

[ 349 Pa. Super. Page 410]

    minimum five (5) year prison sentence for certain crimes, including robbery, committed with a firearm.*fn1 Counsel for appellant then filed a Motion to Declare § 9712 unconstitutional.

At the sentencing hearing, testimony was taken and argument was presented on the applicability and constitutionality of the challenged section. This appeal represents appellant's challenge to the trial court's finding by a preponderance of the evidence that the mandatory sentencing provisions of § 9712 were constitutional and the court's

[ 349 Pa. Super. Page 411]

    sentence of appellant thereby to a term of imprisonment of from five to ten years. We affirm.

Appellant challenges the constitutionality of § 9712 in four respects. We will consider them seriatim. Because the Commonwealth is not required by the Act to provide an accused with pre-trial notice of its intent to proceed under § 9712, appellant asserts that the statute lacking this requirement is unconstitutional. In this argument and in others which he poses, appellant elevates the visible possession of a firearm aspect to an element of a crime, necessitating notice before trial. It is true that any element of a crime must be specifically charged in the indictment or information. Commonwealth v. Moses, 441 Pa. 145, 271 A.2d 339 (1970). In fact, appellant does not question the allegations in the charges relating to the fact that he possessed a firearm as to robbery, recklessly endangering another person and possessing an instrument of crime. He merely asserts that his due process rights are violated for lack of notice, pre-trial, as to the Commonwealth's intent to proceed at sentencing under § 9712, arguing therefore that possession of a firearm was an element of the crime to be proved beyond a reasonable doubt.

In Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), cert. granted, McMillan v. Pennsylvania, U.S. , 106 S.Ct. 58, 88 L.Ed.2d 47 (1985) the Supreme Court disposed of this issue by finding that § 9712 applies only in the event the defendant is convicted of one of the offenses enumerated in the Act. The Court specifically refused to find that visible possession of a firearm is an element of a crime. Moreover, it concluded that § 9712 does not alter the degree of guilt as to the crimes to which it may be applied. Thus, the pre-trial notice mandated by crimes and their elements for which a defendant faces prosecution does not require notice that § 9712 will be applicable to a defendant at sentencing. Thus, appellant's first argument must be rejected.

[ 349 Pa. Super. Page 412]

    a firearm, the district attorney must invoke § 9712 pursuant to the required notice to the convicted defendant.*fn2 It is then for the sentencing court to decide whether the evidence introduced at the sentencing hearing rises to the preponderance standard. See Commonwealth v. Anderson, 345 Pa. Superior Ct. 407, 498 A.2d 887 (1985); Commonwealth v. Wildermuth, 347 Pa. Superior Ct. 640, 501 A.2d 258 (1985); Commonwealth v. Walker, 348 Pa. Superior Ct. 207, 501 A.2d 1143 (1985).

As for appellant's claim that the doctrine of separation of powers is violated by this limitation on the court's discretion in sentencing a defendant, we note that such discretion is not an innate power of the judiciary. It derives entirely from statute. Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959). And, as this court explained regarding a similar challenge to the mandatory life sentence for first degree murder,

". . . our legislature has seen fit to impose a mandatory life sentence, choosing to deny the judiciary the discretion allowed in sentencing many other types of offenders."

Commonwealth v. Waters, 334 Pa. Superior Ct. 513, 526, 483 A.2d 855, 861 (1984).

Thus, the doctrine of separation of powers is not violated.

Additionally, in Commonwealth v. Cooke, 342 Pa. Superior Ct. 58, 492 A.2d 63 (1985), this court specifically found that the mandatory sentencing provision in § 9712 does not violate due process of law.

The weapon used in the commission of the instant robbery was a .22 starter pistol. § 9712(e) sets forth the definition of firearm as

[ 349 Pa. Super. Page 415]

"any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein."

Appellant contends that the evidence submitted by both the Commonwealth and defense expert at the sentencing hearing failed to prove by a preponderance that the pistol in question could "readily be converted" to expel a projectile. He asserts this with emphasis on the word "readily" and suggests that because the Commonwealth's expert testified that conversion could only be accomplished by proper drilling, the starter gun in question could not be "readily" converted. This argument is specious. The trial court in its opinion quoted the report of the defense expert that it would take a skilled machinist with proper tools only fifteen minutes to accomplish a conversion to a firearm with projectile capability; it would take an unskilled person with basic tools and limited knowledge approximately one hour to accomplish the task. This information, supplied by appellant's own expert, fully supports the trial court's finding that the instant starter pistol qualified as a firearm under the definition supplied by § 9712.

Therefore, for the above reasons, judgment of sentence affirmed.


*fn* Honorable Evelyn M. Trommer of the Court of Common Pleas of Philadelphia County, Pennsylvania is sitting by designation.

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