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COMMONWEALTH PENNSYLVANIA v. EDWARD O'BRIEN (09/03/86)

filed: September 3, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD O'BRIEN, APPELLANT



Appeal from the Judgment of Sentence November 12, 1985 in the Court of Common Pleas of Bucks County, Criminal No. 819/85.

COUNSEL

Norris E. Gelman, Philadelphia, for appellant.

Christopher J. Serpico, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Cavanaugh, Wickersham and Roberts, JJ.

Author: Roberts

[ 356 Pa. Super. Page 295]

This appeal is from a judgment of sentence entered after appellant was found guilty in non-jury trial of involuntary deviate sexual intercourse,*fn1 statutory rape,*fn2 indecent assault,*fn3 and corruption of the morals of a minor.*fn4 Appellant was sentenced to a term of imprisonment of five (5) to ten (10) years pursuant to the mandatory provisions of 42 Pa.C.S.A. § 9718 (sentences for offenses against infant persons). He now presents three challenges to the statute. First, appellant argues that § 9718 imposes a mandatory maximum rather than a mandatory minimum sentence. Consequently, as the sentence imposed relies upon the statute to set a minimum term, reversible error was committed. Second, appellant asserts that § 9718 is inapplicable

[ 356 Pa. Super. Page 296]

    here because his involuntary deviate sexual intercourse conviction merges with his statutory rape conviction and it is only the former which is punishable under the statute. Lastly, appellant maintains that § 9718 improperly casts a conclusive presumption against a convicted defendant at sentencing. Since we do not find these contentions to be meritorious, we affirm.

Appellant relies on the rule that penal statutes are to be strictly construed in favor of defendants and if ambiguity exists in interpretation, "it must be turned to defendant's advantage." Commonwealth v. Pemberth, 339 Pa. Super. 428, 431, 489 A.2d 235, 237 (1985). On the basis of Commonwealth v. Glover, 397 Pa. 543, 156 A.2d 114 (1959), appellant initially argues that because the sentencing provisions of § 9718 do not include the words "minimum" or "maximum," the sentence required by the statute is ambiguous. Appellant contends that this alleged lack of specificity requires that the lesser punishment be applied. We disagree.

Unlike the sentencing statute construed in Glover, § 9718 clearly provides that a mandatory minimum sentence be imposed. The statute reads:

(a) Mandatory sentence. -- A person convicted of the following offenses when the victim is under 16 years of age shall be sentenced to a mandatory term of imprisonment as follows:

18 Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated assault) -- not ...


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