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decided: May 20, 1988.


Appeal from the Judgment of Sentence of the Superior Court Entered on November 29, 1985 at No. 01754 Philadelphia, 1984, Affirming the Order of the Court of Common Pleas of Bucks County, Pennsylvania, Criminal Division, Entered on June 7, 1984, at No. 3645 of 1983. Pa. Superior Ct. , A.2d (198 ).


Eric Kadish, Huntingdon Valley, for appellant.

Alan Rubenstein, Dist. Atty., Wallace H. Bateman, Asst. Dist. Atty., for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ.

Author: Papadakos

[ 518 Pa. Page 226]


After a non-jury trial before Judge Biester, Jr., of the Court of Common Pleas of Bucks County, Appellant, Michael Larkin, was found guilty of two counts of robbery,*fn1 theft by unlawful taking,*fn2 receiving stolen property,*fn3 simple

[ 518 Pa. Page 227]

    assault,*fn4 recklessly endangering another person,*fn5 possessing an instrument of crime,*fn6 and carrying a firearm without a license.*fn7 The trial court found that, during the course of the robbery, Appellant visibly possessed a firearm as defined under the Mandatory Sentencing Statute, 42 Pa.C.S. § 9712. In conformity with the reports of several psychologists and psychiatrists, coupled with admitted factual testimony at trial, the trial court also found that Appellant was "guilty but mentally ill" as that term is defined at 18 Pa.C.S. § 314.*fn8 On June 7, 1984, Appellant was sentenced to a period of incarceration of not less than five nor more than ten years at a state correctional institution. Although Appellant was found*fn9 to be severely mentally disabled under the statute permitting a finding of guilty but mentally ill (18 Pa.C.S. § 314), the trial judge imposed the sentence that he did only because he expressly determined that it was required under the Mandatory Sentencing Statute (42 Pa.C.S. § 9712), which provides for a minimum term of imprisonment of five years where a crime is committed by someone in visible possession of a firearm.*fn10 The Superior

[ 518 Pa. Page 228]

Court (Del Sole, Montemuro and Beck, JJ.) affirmed in a memorandum opinion and per curiam order. 352 Pa. Super. 615, 505 A.2d 1033.

In his appeal to this Court, Appellant argues that his sentence was improper for two broad reasons. First, he argues that 42 Pa.C.S. § 9712, the Mandatory Sentencing Statute, is unconstitutional both on its face and as it was applied in this case. Second, he argues that the Mandatory Sentencing Statute was improperly applied in a situation where Appellant was found guilty but mentally ill under 18 Pa.C.S. § 314. Both arguments must be rejected.

Appellant presents five grounds upon which he argues that the Mandatory Sentencing Statute is unconstitutional, or that it was applied here in an unconstitutional way. He contends that:

1) Since the Mandatory Sentencing Statute does not require pre-trial notice from the Commonwealth that it seeks application of a mandatory sentence, this violates due process and deprives the courts of jurisdiction.

2) Since proof of visible possession of a firearm need only be established by a preponderance of the evidence, due process is violated.

3) The right to a jury trial on the issue of visible possession of a firearm is improperly denied.

[ 518 Pa. Page 2294]

) Since unbridled discretion is given to the prosecutor to decide when to apply the statute, there is both a violation of the separation of powers doctrine and a denial of due process.

5) Because the Mandatory Sentencing Statute dictates to the courts the allocation of the burden of proof at sentencing along with the manner in which the evidence must be presented, this constitutes an unwarranted interference by the legislature with this Court's power to govern practice and procedure in our courts, and hence violates Article V, Section 10(c) of the Pennsylvania Constitution in addition to the separation of powers doctrine.

These contentions may be summarily disposed of since they were all expressly or implicitly rejected by this Court in Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986).

We granted allocatur in this case because we were concerned about Appellant's argument to the effect that application of the Mandatory Minimum Sentencing Statute here was inconsistent with the finding of "guilty but mentally ill." The statute creating the disposition of "guilty but mentally ill" was enacted by our Legislature effective March 15, 1983. It is found in that part of our consolidated statutes dealing with "culpability" and allows for a finding of "guilty but mentally ill" by the trier of fact when an individual is determined to have been mentally ill at the time of the commission of an offense but not legally insane. 18 Pa.C.S. § 314(a). The general sentencing provisions for this disposition are found at 42 Pa.C.S. § 9727 which require that treatment be provided as psychiatrically or psychologically indicated for such a person.

The one obvious intent of this legislation is to provide mental health treatment for those individuals whose defense falls short of legal insanity, but who, nevertheless, are severely mentally disabled and in need of treatment for that disability.

42 Pa.C.S. § 9727, in pertinent part, provides as follows:

[ 518 Pa. Page 230]

    be a basis for terminating prerelease status or instituting parole violation hearings. (Emphasis added.)

Appellant argues that this language gives the sentencing judge broad discretion to impose a sentence that would best serve the treatment needs of an individual defendant, and that 42 Pa.C.S. § 9727 does not explicitly address the situation that arises when the offense for which a defendant has been found guilty but mentally ill is an offense which is covered under one of the mandatory sentence acts, as in the instant case. In such a situation, Appellant argues that the sentencing judge is allowed to deviate from the mandatory acts, which might otherwise apply absent such a finding of guilty but mentally ill.

Appellant does point to what at first appears to be an inconsistency. The guilty but mentally ill statute creates a category of reduced culpability or diminished capacity that does not affect the determination of guilty itself. It is therefore logical to argue that such a finding, when it occurs, may affect both the right to treatment and the total length of incarceration (which may also be reflected in the terms of probation and parole). Obviously, where a mandatory minimum sentence is involved, a finding of guilty but mentally ill could not affect a reduction in the mandatory minimum sentence without doing violation to the mandatory requirements of that statute. On the other hand, adherence to the mandatory minimum sentencing requirements would mean that a finding of guilty but mentally ill could never effectuate a reduction in sentence in those cases where the mandatory sentencing statute was applicable.

We, nevertheless, reject Appellant's argument that, because of this alleged inconsistency, the Mandatory Minimum Sentencing Act must give way. We do this on the basis of a careful reading of the relevant provisions of the Mandatory Sentencing Statute which provisions are clear and unambiguous.

42 Pa.C.S. § 9712, Sentences for Offenses Committed with Firearms, provides, in pertinent part, as follows:

(a) Mandatory sentence. -- Any person who is convicted in any court of this Commonwealth of murder of the third

[ 518 Pa. Page 232]

    degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted or attempt to commit any of 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.

(c) Authority of court in sentencing. -- There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section. (Emphasis added.)

The legislative intent that a person who commits one of the enumerated crimes with a firearm must serve a period of at least five years total confinement "notwithstanding any other provision of this title or other statute to the contrary" is crystal clear and free of all ambiguity. As the Statutory Construction Act provides:

When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b).

See also, Commonwealth v. Bell, supra.*fn11 Hence, we conclude that both the trial court and the Superior Court were correct here in concluding that the finding that Appellant was guilty but mentally ill did not permit a reduction in

[ 518 Pa. Page 233]

    the mandatory minimum sentence of five years for commission of a robbery while in visible possession of a firearm.




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