Opinion
Submitted April 17, 1985.
Decided July 12, 1985.
Appeal from the Court of Common Pleas, Philadelphia, Trial Division, Criminal Section, No. 90 June session, 1983, Leon Katz, J.
Eric B. Henson, Deputy Dist. Atty., Philadelphia, for appellant.
John W. Packel, Chief, Appeals Div., Leonard Sosnov, Philadelphia, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.
OPINION
In this case the Commonwealth appeals the trial court's determination that section 9712 of the Mandatory Minimum Sentencing Act, 42 Pa.C.S.A. § 9712, is unconstitutional. That section requires the imposition of a minimum sentence of five years total confinement if it is established by a preponderance of the evidence that the defendant was in visible possession of a firearm during the commission of certain felonies. In light of our recent decision in Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985), we find it unnecessary to discuss at length the issues raised in this appeal.
On November 3, 1983, appellee Woods was convicted of burglary, criminal conspiracy, robbery as a felony of the first degree and possessing instruments of crime generally. He was sentenced to concurrent three (3) to ten (10) year sentences on the first three (3) counts and to a concurrent one (1) to five (5) year term on the weapons charge.
In Commonwealth v. Wright, supra, we held that the preponderance standard of proof prescribed in section 9712 satisfies the minimum requirements of due process. Accordingly, the lower court's holding that section 9712 is unconstitutional is reversed, the sentence imposed is vacated and the cause is remanded for resentencing pursuant to 42 Pa.C.S.A. § 9712.