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.
[ 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 ...