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filed: August 9, 1989.


Appeal from the Judgment of Sentence in the Court of Common Pleas of Allegheny County, Criminal at No. CC 8508484A.


Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellant.

Chris R. Eyster, Asst. Public Defender, for appellee.

Montemuro, Johnson and Cercone, JJ.

Author: Montemuro

[ 386 Pa. Super. Page 628]

The Commonwealth appeals*fn1 from the judgment of sentence rendered against the appellee, Charles H. Smith, claiming that the trial court erred when it refused to impose on the appellee two separate five year mandatory minimum sentences pursuant to 42 Pa.C.S.A. §§ 9712 and 9714.

The appellee's robbery and criminal conspiracy convictions stem from the armed robbery of Frank's Jewelry Store on July 20, 1985. While the appellee waited in the car, his two accomplices, posing as a young couple interested in purchasing an engagement ring, entered the store and asked to see some rings. While the man held the owner at gun point, the woman took two trays of rings. Immediately after the couple fled from the store, the owner retrieved his own gun and shot at the armed accomplice as he climbed into the get-a-way car driven by the appellee. The armed accomplice did not return the owner's fire. At the appellee's non-jury trial, the Commonwealth offered an eyewitness who identified the appellee as the driver of the get-a-way car. After hearing all of the evidence, the trial court found the appellee guilty as charged. After post-trial motions were filed and denied, the trial court imposed a concurrent five to ten year sentence upon the appellant. On appeal, we remanded the case for resentencing after concluding that the appellee's claim, that his counsel was ineffective for failing to file a motion to reconsider sentence based upon the trial court's failure to indicate sentencing

[ 386 Pa. Super. Page 629]

    factors, had merit. On remand, the trial court sentenced the appellee to serve two concurrent eleven and a half (11 1/2) to twenty-three (23) month sentences. It is from this sentence that the Commonwealth appeals.

The Commonwealth first asserts that the trial court erred in failing to apply the weapon enhancement statute, 42 Pa.C.S.A. § 9712, to the appellee's sentence despite uncontradicted evidence that appellee's accomplice visibly possessed a handgun during the commission of the robbery. In response, the appellee asserts that this issue has been waived, and, even if not waived, the trial court correctly concluded that the evidence was insufficient to prove that the appellee had knowledge that his accomplice visibly possessed a firearm during the commission of the robbery. Before we address the first issue raised by the Commonwealth, we must address the issue of waiver. The appellee received his second sentence on May 3, 1988. The Commonwealth did not file its motion for reconsideration until May 16, 1988; three days after the filing deadline. "A motion to modify sentence shall be in writing and shall be filed with the sentencing court within ten (10) days after imposition of sentence." Pa.R.Crim.P. 1410. When such motion is not timely filed, the issues presented in the untimely motion are deemed waived. Commonwealth v. Mathis, 317 Pa. Super. 362, 371-372, 464 A.2d 362, 367 (1983). However, such failure will not preclude appellate review where the issues asserted concern the illegality of the sentence. Id., 317 Pa. Superior Ct. at 372, 464 A.2d at 367. The illegality of a sentence is not a waivable issue. Commonwealth v. Wallace, 368 Pa. Super. 255, 259, 533 A.2d 1051, 1052 (1987). Because the Commonwealth asserts that the sentence is illegal, due to the trial court's refusal to apply the mandatory minimum sentence,*fn2 we will now address this issue.

[ 386 Pa. Super. Page 630]

The main thrust of the Commonwealth's argument is that the trial court's determination, that the appellee did not have knowledge that his accomplice visibly possessed a gun during the robbery, is not supported by the record. Therefore, the trial court erred as a matter of law when it ruled that the mandatory firearm provision was not applicable. Section 9712 provides in pertinent part that:

Any person who is convicted in any court of this Commonwealth of . . . robbery . . . 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.

42 Pa.C.S.A. § 9712. Before the trial court can apply this section to an unarmed accomplice, it must find that the Commonwealth has established by a preponderance of the evidence that "the unarmed accomplice had knowledge that the firearm was visibly possessed by his co-felon in the commission of the crime." Commonwealth v. Williams, 353 Pa. Super. 312, 319, 509 A.2d 1292, 1295 (1986). In the instant case, the trial court's refusal to apply section 9712 was based upon his findings that:

[N]either the jeweler who shot at the car nor the eyewitness who identified the Defendant testified that the accomplice, Mr. Flowers, had his gun visible outside of the store. In fact, Mr. Certo [the jeweler] testified that Mr. Flowers returned the gun to an envelope and put it in his back pocket before leaving the store.

(Trial Court Opinion, October 27, 1988, at 3-4). With this lack of evidence in mind, the trial court then went on to declare that it could not "accept the Commonwealth's assumption that the Defendant knew that his co-defendant possessed a gun because shots were fired at the get-a-way car." (Trial Court Opinion, October 27, 1988, at 4). Our review of the record reveals that evidence that the gun was visibly possessed outside the store did exist. Pertinent parts of the jeweler's testimony are presented below:


[ 386 Pa. Super. Page 631]

Q: What happened when they left the store?

A: [I] went out at first to get the license plate of the car, and when the guy turned around, I figured he was going to shoot ...

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