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COMMONWEALTH PENNSYLVANIA v. JAMIE MATOS (02/03/89)

SUPERIOR COURT OF PENNSYLVANIA


filed: February 3, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
JAMIE MATOS, APPELLANT

Appeal from Judgment of Sentence February 2, 1988, in the Court of Common Pleas of Philadelphia County, Criminal, No. 87-04-3278.

COUNSEL

Peter Rosalsky, Assistant Public Defender, Philadelphia, for appellant.

Harriet Bumberg, Assistant District Attorney, Philadelphia, for Com., appellee.

Olszewski, Beck and Johnson, JJ.

Author: Olszewski

[ 382 Pa. Super. Page 402]

This is an appeal from a judgment of sentence after appellant was found guilty of robbery, criminal conspiracy, possessing an instrument of crime, and a violation of the Uniform Firearms Act. Appellant argues that the trial court erred by sentencing him pursuant to the mandatory sentencing provisions of 42 Pa.C.S.A. § 9712,*fn1 as they are

[ 382 Pa. Super. Page 403]

    inapplicable to unarmed accomplices. We disagree and affirm the judgment of sentence.

The facts surrounding the present case are set forth in the trial court's opinion:

Trial court opinion at 2-3.

On February 2, 1988, pursuant to Rule 359(B) of the Pennsylvania Rules of Criminal Procedure,*fn2 the trial court sentenced appellant to the mandatory minimum term of imprisonment of five-to-ten years for robbery, a concurrent term of two-to-four years for conspiracy, and a concurrent sentence of one-to-two years for the violation of the Uniform

[ 382 Pa. Super. Page 404]

Firearms Act.*fn3 A motion to modify sentence was timely filed on February 10, 1988. On March 16, 1988, the trial court denied post-verdict motions. Appellant then filed the instant appeal.

Appellant presents one issue for review: whether the mandatory sentencing provisions of 42 Pa.C.S.A. § 9712 are inapplicable to unarmed accomplices such as appellant.

Appellant's claim has twice been addressed by separate panels of this Court. In Commonwealth v. Williams, 353 Pa. Super. 312, 509 A.2d 1292 (1986), we clearly stated that "an unarmed accomplice to a crime mandating imposition of a sentence under § 9712 of the Mandatory Minimum Sentencing Act shall be sentenced in accordance thereof if it is shown by the proof that the unarmed accomplice had knowledge that the firearm was visibly possessed by his co-felon in the commission of the crime." Id., 353 Pa. Superior Ct. at 319, 509 A.2d at 1295. In Commonwealth v. Grimmitt, 354 Pa. Super. 463, 512 A.2d 43 (1986), a different panel followed the rule as announced in Williams and applied the mandatory minimum sentence to an unarmed accomplice.

Faced with the rule announced in these decisions, appellant does not now challenge that he had knowledge that his co-conspirator visibly possessed a firearm. Rather, appellant argues that Williams was wrongly decided. In support of this argument, appellant points to a footnote set forth in Commonwealth v. Grimmitt, supra, in which the Court acknowledged that, while it was following the rule announced in Williams, a different result could find support by utilizing certain principles and caselaw not directly on point to the case at bar.*fn4 Even if we were to agree with

[ 382 Pa. Super. Page 405]

    the analysis set forth in this footnote, we are not in a position at this time to overrule Williams. Thus, appellant's claim must be rejected.

In the case at bar, the record clearly demonstrates that appellant had knowledge of his co-felon's visible possession of a firearm during the robbery. Accordingly, under the law as announced by Williams and followed by Grimmitt, the trial court committed no error when it sentenced appellant pursuant to 42 Pa.C.S.A. § 9712 of the Mandatory Minimum Sentence Act.

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.


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