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COMMONWEALTH PENNSYLVANIA v. JAMES GRUNDY (03/20/89)

submitted: March 20, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
JAMES GRUNDY, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Delaware County, at No. 86-1691.

COUNSEL

Mark Pinnie, Media, for appellant.

Joseph J. Mittleman, Assistant District Attorney, Media, for Com., appellee.

Del Sole, Beck and Montgomery, JJ.

Author: Per Curiam

[ 385 Pa. Super. Page 386]

Appellant was convicted, following a jury trial, of simple assault, robbery, recklessly endangering another person, theft by unlawful taking or disposition, and criminal conspiracy. Post-verdict motions were denied and appellant was sentenced to a total of five to ten years imprisonment. Appellant then filed a motion for reconsideration of sentence which the trial court also denied. This direct appeal followed. Finding no merit to appellant's contentions, we affirm.

Appellant argues on appeal that: (1) the trial court erred in failing to suppress the out of court identification of appellant; (2) the verdict was contrary to the weight of evidence regarding the robbery; (3) the evidence was insufficient to convict appellant of conspiracy or to find appellant acted as an accomplice; (4) the statutory requirement that the Commonwealth give notice to a defendant after conviction but before sentencing of its intention to seek mandatory sentencing for offenses committed on public transportation deprives a defendant of his due process rights; (5) the evidence was insufficient to establish that the incident occurred in an area leading to or from the immediate vicinity of the public transportation station and (6) the phrase

[ 385 Pa. Super. Page 387]

"immediate vicinity" as used in 42 Pa.C.S. § 9713 is unconstitutionally vague. After thoroughly reviewing the record in this matter, we find that the Honorable Charles C. Keeler's opinion completely and adequately disposes of appellant's first three arguments and we, therefore, affirm the judgment of sentence as to those issues.

Appellant also argues that he was denied his due process rights as a result of the Commonwealth having provided him notice, subsequent to trial, of its intention to seek mandatory sentencing pursuant to 42 Pa.C.S. § 9713. Section 9713(c) provides in pertinent part as follows:

Proof at sentencing. -- Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing.

42 Pa.C.S. § 9713(c). While this precise issue has never been addressed with regard to this statute, it has been addressed with regard to other similar mandatory sentencing statutes. In Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986), our Supreme Court addressed the constitutionality of the notice provision provided in 42 Pa.C.S. § 9712(b). Section 9712 provides for mandatory sentencing for visibly possessing a firearm during the commission of a crime. The notice provision of Section 9712 employs the same language as Section 9713(c). The court in Commonwealth v. Bell, supra, held that post-conviction notice of the Commonwealth's intention to seek a mandatory sentence pursuant to Section 9712(b) met the requirements of due process since visible possession of a firearm was not an element of the offense charged but rather a factor which became relevant only at the sentencing stage. Similarly, ...


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