Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal, Nos. CC8505887 and 8506423.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
John H. Corbett, Jr., Public Defender, Pittsburgh, for appellee.
Johnson, Hoffman and Lipez, JJ. Hoffman, J., concurs in the result. Lipez, J., wrote this opinion before the expiration of his term on the court.
[ 354 Pa. Super. Page 464]
Defendant pled guilty to two counts of robbery arising out of two separate incidents in which defendant removed cash and other valuables from the victim's pockets while his cohort pointed a pistol at the victim. Over the Commonwealth's objection, defendant was sentenced to eleven and one-half to twenty-three months imprisonment and ten years probation. The Commonwealth had sought to apply the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712, which mandates a five year minimum sentence for any person who visibly possesses a firearm during the commission of specified crimes. The Commonwealth's motion to reconsider sentence was denied and it took this appeal alleging that: (1) section 9712 is applicable to unarmed accomplices; and (2) the lower court erred in failing to apply the deadly weapon enhancement section of the sentencing guidelines. For the reasons discussed below, we vacate the judgment of sentence and remand the case for resentencing.
We are constrained to agree with the Commonwealth's first contention due to the recent decision of a panel of this court in Commonwealth v. Williams, 353 Pa. Super. 312, 509 A.2d 1292 (1986). In Williams, the court
[ 354 Pa. Super. Page 465]
specifically held that "an unarmed accomplice to a crime mandating the imposition of a sentence under § 9712 . . . shall be sentenced in accordance thereof if it is shown by the proof that the unarmed accomplice had knowledge that the firearm was visibly possessed by his co-felon in the commission of the crime." Id., 353 Pa. Superior Ct. at 319, 509 A.2d at 1295. In the instant case, the defendant clearly had knowledge of his co-felon's visible possession of the firearm during the robberies. Therefore, pursuant to the holding of Williams, he should have received a minimum sentence of five years imprisonment.*fn1
[ 354 Pa. Super. Page 466]
Since defendant is to receive a mandatory five year minimum sentence under section 9712, he should not be sentenced to an additional twelve to twenty-four months confinement under the deadly weapon enhancement section of the sentencing guidelines, which applies to defendants sentenced pursuant to the guidelines. 42 Pa.C.S. § 9721, 204 Pa.Code § 303.4.
Judgment of sentence vacated and case remanded for resentencing consistent with this opinion. ...