Appeal from the Order of the Superior Court Entered at No. 1744 Philadelphia 1984, Vacating the Judgment of Sentence of the Court of Common Pleas of Bucks County-Criminal Division Entered June 19, 1984 at No. 2824, 2825/83. 348 Pa. Super 35,
Nix, C.j.,*fn* and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Larsen, J., concurs in the result. Flaherty, J., files a dissenting opinion.
This appeal presents two issues under section 9712 of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712, for our consideration, namely (1) whether the provision is applicable to a situation in which the defendant neither introduced the firearm into the confrontation which culminated in the prohibited act nor initially precipitated the confrontation; and (2) whether the requirement of "visible possession" must be proven by the testimony of an eyewitness who actually saw the firearm during the commission of the offense, or whether some other evidence might suffice.
Section 9712 provides in pertinent part:
§ 9712. Sentences for offenses committed with firearms
(a) Mandatory sentence. -- Any person who is convicted in any court of this Commonwealth of murder of the third 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 of 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.
(b) Proof at sentencing. --. . . The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
Before addressing the legal issues presented, a review of the facts underlying this appeal is warranted. On June 13, 1983, the victim Randolph Jones, appellant, and friends had a picnic along the Delaware River in Bristol Borough, during which Jones had manifested abusive behavior, induced by heavy consumption of alcohol, toward several members of appellant's party. Thereafter appellant drove his girlfriend Cora Lucy Davis and their children in his van to Schumacher Drive, also in Bristol, and parked on the street in front of Jones' residence. The group intended to sleep in the van overnight.
Jones arrived some time later, and parked his automobile immediately to the left of appellant's van. Appellant and Jones exchanged words, subsequent to which Jones went into his house for the purpose of securing a handgun. Seated in his van, appellant saw in his side mirror Jones approaching with what appeared to be a pistol. Appellant threw open his door, which struck Jones and knocked him to the ground. They struggled for the gun which had also been knocked away. Appellant grabbed the gun and shot Jones five times, although no one testified at trial that they actually saw appellant with the weapon. He then fled the scene with his family. Within two hours, he surrendered himself to Bristol Township Police, and in the company of
his attorney gave police an inculpatory statement. Jones succumbed to his injuries the following day.
Appellant was charged, inter alia, with criminal homicide, 18 Pa.C.S. § 2501, and possessing an instrument of crime, 18 Pa.C.S. § 907. He entered an open plea to murder generally and, following an evidentiary hearing, was convicted of voluntary manslaughter, 18 Pa.C.S. § 2503(a) and (b), and the weapons offense. A sentencing hearing was subsequently held, resulting in the imposition of a sentence of imprisonment for a three to ten-year period. Thereafter, the Commonwealth filed a Motion for Reconsideration of Sentence which was denied.
The court of common pleas, in denying the applicability of section 9712 to appellant's conduct, limited the provision to criminal acts by "those who choose to use a firearm for the express purpose of committing one of the enumerated felonies," reasoning that the mandatory sentence was not intended to apply to the "conduct of persons in defendant's situation who grab a firearm suddenly brought to the crime scene by the victim and who use that weapon under the circumstances shown here." Commonwealth v. Alex Wooten, No. 2824, 2825/83, slip op. at 4 (Bucks County Court of Common Pleas, June 28, 1984) (emphasis in original). In addition, the court held that the Commonwealth failed to meet its burden of proving, by a preponderance of the evidence, that appellant "visibly possessed" the weapon used to kill Jones, restricting the statute to situations where an eyewitness actually saw the firearm. Id. at 5-7.
In vacating the judgment of sentence, the Superior Court did not address the first issue. Instead, the court held that the trial court erred in narrowly construing the term "visibly." Relying on its own precedent, the court stated that visible possession can occur when the possession manifests itself in the process of the crime, and thus concluded that the Commonwealth met its burden of proof in this case. ...