Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Entered on January 24, 1984 at No. 1404 August Session, 1982.
Eric B. Henson, Steven J. Cooperstein, Philadelphia, for appellant.
Gerald A. Stein, Philadelphia, for appellee.
John W. Packel, Philadelphia, for Amicus-Defender Assoc. of Philadelphia.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Hutchinson, J., files a concurring opinion. Papadakos, J., concurs in the result.
This case requires our review of the applicability and constitutionality of section 9712 of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712, which requires the imposition of a minimum prison sentence of at least five years
upon conviction of certain enumerated felonies, where it is proven at sentencing by a preponderance of the evidence that the accused visibly possessed a firearm during the commission of the offense. Appellee was convicted in a bench trial of voluntary manslaughter in the Court of Common Pleas of Philadelphia County. That court thereafter found section 9712 of the Mandatory Minimum Sentencing Act (hereinafter "Act") inapplicable and unconstitutional as applied to appellee, and imposed a sentence of four (4) years probation. Pursuant to section 9712(d) of the Act, the Commonwealth sought appellate review of the action of the sentencing court.*fn1 This Court has jurisdiction to entertain this appeal under 42 Pa.C.S. § 9712(d) and 42 Pa.C.S. § 722(7).*fn2
The first issue on appeal to this Court is whether section 9712 of the Act applies to appellee's conviction of voluntary manslaughter for killing the victim while "acting under a sudden and intense passion resulting from serious provocation." 18 Pa.C.S. § 2503(a). The sentencing court declined to apply section 9712 after finding that the statute is inapplicable to the facts of appellee's case.
Section 9712 provides in relevant part that:
Any person who is convicted in this Commonwealth of murder in the third degree, voluntary manslaughter,
rape, involuntary deviate sexual intercourse robbery . . . aggravated assault or kidnapping, or who is convicted of attempt to commit these crimes shall, if the person visibly possessed a firearm during the commission of the offense, be sentenced to a minimum sentence of at least five years of total confinement notwithstanding any other provision of this title or other statute to the contrary.
The lower court held that the legislature did not intend section 9712 to apply to killings committed under "sudden and intense passion" but only to calculated criminal acts committed by hard-core recidivist offenders. By refusing to apply a mandatory sentence to appellee's voluntary manslaughter conviction, the court below has completely disregarded the plain language of the Act.
The Statutory Construction Act, 1 Pa.C.S. § 1501 et seq., provides as its most basic principle that:
When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the ...