Appeal from the Order of January 21, 1985 in the Court of Common Pleas of Dauphin County, Criminal Division, No. 1737 CD 1984. Appeal from the Order of January 21, 1985 in the Court of Common Pleas of Dauphin County, Criminal Division, No. 1754 CD 1984.
William A. Behe, Chief Deputy District Attorney, Harrisburg, for Com., appellant.
Allen C. Welch and John M. Glace, Assistant Public Defenders, Harrisburg, for appellees.
Cavanaugh, Tamilia and Cercone, JJ.
[ 353 Pa. Super. Page 314]
This is an appeal by the Commonwealth from the sentence of the trial court by which both appellees were given concurrent indeterminate sentences under the "Youthful Offenders Act". 61 P.S. § 485. Appellees pleaded guilty to robbery, 18 Pa.C.S.A. § 3701(a)(1)(i) and (ii) and criminal conspiracy, 18 Pa.C.S.A. § 903, arising from their accosting and striking a victim and taking $3.50 from him. Appellee Williams threatened the victim with what was later discovered to be a pellet gun. This fact is not contested.
In compliance with the section of the Mandatory Minimum Sentencing Act which concerns offenses committed with firearms, 42 Pa.C.S.A. § 9712,*fn1 the Commonwealth
[ 353 Pa. Super. Page 315]
provided notice to appellees of its intention to proceed under the section which mandates a mandatory minimum sentence of five years for convictions of certain enumerated felonies, one of which is the specific robbery section involved in this case. A sentencing hearing was held during which the court expressed difficulties in applying the mandatory minimum sentences. The court refused to include a pellet gun in the definition of firearm of § 9712. It also found § 9712 inapplicable to the accomplice, Porter, who never visibly possessed the gun. The court was also moved to leniency because neither defendant had an adult criminal record; and Williams had no record of any kind. Thus, the court elected to sentence both young men under the Youthful Offenders Act.
The Commonwealth is appealing these sentences under § 9712(d) which provides for appellate review in a situation like the instant one; that is, where the sentencing court refuses to apply this section where applicable. § 9712(b) provides that the applicability of this section shall be determined at sentencing by the court. If the court, from a consideration of the evidence presented at trial, or in this case at the guilty plea proceeding, and at the sentencing hearing, determines by a preponderance of the evidence that a firearm was visibly possessed during the commission of the offense, then it must sentence the defendant to the five year minimum term of imprisonment. In this case, we
[ 353 Pa. Super. Page 316]
agree with the Commonwealth that the trial court erred in refusing to impose sentences in accordance with § 9712.
The question of whether a carbon dioxide operated pellet gun is a firearm for purposes of § 9712 was answered in Commonwealth v. Sterling, 344 Pa. Superior Ct. 269, 496 A.2d 789 (1985). The court ...