Appeal from the Judgment of Sentence of June 24, 1985 in the Court of Common Pleas of Delaware County, Criminal Division, at No. 2132-84 and No. 2311-84.
Richard S. Packel, Media, for appellant.
Dennis C. McAndrews, Assistant District Attorney, Wayne, for Com., appellee.
Cirillo, President Judge and Rowley and Hoffman, JJ.
[ 362 Pa. Super. Page 49]
These are consolidated appeals from the judgments of sentence for robbery and related offenses. Appellant contends that the sentencing court erred in applying the mandatory sentencing provisions contained in 42 Pa.C.S.A. § 9712, because the Commonwealth failed to prove that appellant possessed a "firearm" as that term is defined in § 9712(e). For the reasons that follow, we affirm the judgments of sentence.
On August 20, 1984, appellant pled guilty to a total of nine charges on two criminal informations, which arose out of two separate incidents.*fn1 The Commonwealth later notified appellant and the lower court of its intention to pursue mandatory minimum sentences on each information, pursuant to 42 Pa.C.S.A. § 9712.*fn2 At the sentencing hearing, the
[ 362 Pa. Super. Page 50]
Commonwealth attempted to prove that appellant visibly possessed a firearm during each of the two incidents, thus mandating a minimum sentence of five years total confinement on each information. The lower court, finding that the Commonwealth met its burden under § 9712, imposed the following mandatory sentence. On Information number 2132-84, appellant was sentenced to three five-to-ten-year terms of imprisonment, and one one-to-two-year term of imprisonment, all terms to be served concurrently. On Information number 2311-84, appellant was sentenced to three five-to-ten-year terms of imprisonment, all terms to run concurrently. The court further specified that the sentences under Information number 2311-84 were to run consecutively to the sentences imposed under Information number 2132-84. The total period of confinement thus was ten-to-twenty years. Appellant's motion to modify was denied, and this appeal followed.
Appellant contends that the lower court erred in sentencing him pursuant to the mandatory minimum sentencing provisions contained in 42 Pa.C.S.A. § 9712, because the Commonwealth produced insufficient evidence to prove that the weapon he possessed in both incidents was a "firearm" as that term is defined in § 9712(e). Under § 9712 the sentencing court is required to impose a minimum sentence of five years of total confinement, if the court determines, by a preponderance of the evidence, that the defendant "visibly possessed a firearm" during the commission of, inter alia, a robbery. 42 Pa.C.S.A. § 9712(a), (b). Section 9712(e) defines a "firearm" as
any weapon (including a starter gun) which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.
Appellant does not deny that he possessed a weapon during these two incidents. The issue, instead, is what type of evidence the Commonwealth must produce to prove that the ...