Commonwealth v. Crist

880 A.2d 696, 2005 Pa. Super. 275, 2005 Pa. Super. LEXIS 2533
CourtSuperior Court of Pennsylvania
DecidedJuly 29, 2005
StatusPublished
Cited by2 cases

This text of 880 A.2d 696 (Commonwealth v. Crist) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Crist, 880 A.2d 696, 2005 Pa. Super. 275, 2005 Pa. Super. LEXIS 2533 (Pa. Ct. App. 2005).

Opinion

OPINION BY

KELLY, J.:

¶ 1 The Commonwealth appeals from the judgment of sentence entered in the Cumberland County Court of Common Pleas against Appellee, Konrad L. Crist, following his convictions for robbery1 and conspiracy to commit robbery.2 The Commonwealth asks us to consider whether the trial court erred by not applying the mandatory minimum sentence pursuant to section 9712 of the Sentencing Code.3 We hold the trial court improperly sentenced Appellant to less than the mandatory minimum sentence, where Appellant was an accomplice in a robbery and knew his co-felon visibly possessed a gun during the commission of the crime. Accordingly, we vacate Appellant’s judgment of sentence and remand with instructions.

¶2 The relevant facts and procedural history of this case are as follows. Appel-lee and his two co-defendants, Christopher A. Taylor and Dustin Joynt, planned to rob a fast food restaurant on May 28, 2003. (Trial Court Opinion, dated November 22, 2004, at 1). The three perpetrators had known each other for many years and had work experience in fast food restaurants. (Id. at 3). Joynt worked in a Subway restaurant and informed the two others of Subway’s policy of instructing employees [698]*698not to resist robbery attempts. (Id.). Joynt also notified Taylor and Appellee that an employee who knew the combination to the store safe would be working at their agreed-upon time of robbery. (Id.).

¶ 3 On the day of the robbery, Appellee, Joynt, and Taylor did not discuss the use of weapons. (Id.). Appellee dropped Taylor off in front of the Subway shop and then drove to the rear of the store and parked. (Id.). Shortly thereafter, Appel-lee saw the store manager emerge from the back door of Subway, followed by Taylor. (Id.). Taylor demanded the manager return to the store, and Appellee observed, for the first time, Taylor pointing what appeared to be a gun at the manager. (N.T. Trial, 5/12/04, at 166). The manager later testified she feared for her life. (Id. at 30). Taylor and the manager returned to the store, and soon after, Taylor exited the back door holding a bag containing money. (Trial Court Opinion at 3). He entered Appellee’s vehicle and the two drove away. (Id. at 4).

¶ 4 At trial, Appellee admitted his involvement in the planning and commission of the robbery. (Id. at 1). Appellee was convicted of and sentenced to nine to eighteen months’ imprisonment for conspiracy and one year less one day to two years less one day for robbery, to run concurrently. (N.T. Sentencing Hearing, 7/27/04, at 22). In determining Appellee’s sentence, the trial court considered Appellee’s youth, the nature of Appellee’s involvement in the crime, and Appellee’s limited knowledge of a weapon being used during the robbery. (Id. at 21).

¶ 5 The Commonwealth presents the following issues for our review:

DID THE SENTENCING COURT ERR IN NOT APPLYING THE MANDATORY WEAPONS ENHANCEMENT TO [APPELLEE’S] SENTENCE WHEN [APPELLEE] WAS AN ACCOMPLICE IN AN ARMED ROBBERY AND KNEW THAT HIS CO-FELON VISIBLY POSSESSED A FIREARM DURING THE COMMISSION OF THE ROBBERY?
DID THE SENTENCING COURT ERR IN SENTENCING [APPELLEE] TO TEN MONTHS LESS THAN THE STANDARD RANGE SENTENCE FOLLOWING CONVICTION FOR ROBBERY AND CONSPIRACY TO COMMIT ROBBERY WHEN THE SENTENCING COURT FAILED TO STATE ITS REASONS FOR DEVIATING FROM THE SENTENCING GUIDELINES?

(Commonwealth’s Brief at 4).

¶ 6 The Commonwealth argues Appellee’s knowledge that a firearm was visibly possessed during the commission of the robbery subjected Appellee to the mandatory minimum sentence. The Commonwealth contends the jury’s decision to convict Appellee of robbery as a felony in the first degree supports a finding that the mandatory minimum sentence should have been applied. The Commonwealth concludes Appellee should be subject to the applicable minimum mandatory sentence of five years’ imprisonment. We agree.

¶ 7 Section 9712 of the Sentencing Code provides:

(a) Mandatory sentence. — Except as provided under section 9716 (relating to two or more mandatory minimum sentences applicable), any person who is convicted in any court of this Commonwealth of a crime of violence as defined in section 9714(g) (relating to sentences for second and subsequent offenses), shall, if the person visibly possessed a firearm or a replica of a firearm, whether or not the firearm or replica was loaded or functional, that placed the victim in reasonable fear of death or [699]*699serious bodily injury, 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. Such persons shall not be eligible for parole, probation, work release or furlough.
(b) 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. 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.
(c) Authority of court in sentencing. — There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsection (a) or to place such offender on probation or to suspend sentence.

42 Pa.C.S.A. § 9712(a)-(c) (emphasis added).

¶ 8 Our standard of review for the instant matter is as follows:

The applicability of section 9712 must be determined at the time of sentencing. 42 Pa.C.S.A. § 9712(b). At the sentencing hearing, the trial court must consider the evidence adduced at trial, and must provide both the Commonwealth and the defendant an opportunity to present any necessary additional evidence. Id. After a full hearing, the trial court must then determine, by a preponderance of the evidence, whether section 9712 applies to the case. Id. If the evidence supports imposition of the mandatory minimum sentence, the trial court has no authority to impose any lesser sentence than that which is provided under section 9712(a). Id., § 9712(c).

Commonwealth v. Chiari, 741 A.2d 770, 777 (Pa.Super.1999) (footnote omitted).

¶ 9 At issue is whether an accomplice must first have prior knowledge a firearm will be visibly possessed during the commission of the crime. In Commonwealth v. Walker, 386 Pa.Super. 100, 562 A.2d 373 (1989), appeal denied, 525 Pa. 618, 577 A.2d 889 (1990), this Court addressed the issue of prior knowledge. The appellant and her co-felon robbed an off-duty police officer who was carrying a firearm. Id. at 874. Prior to the commission of the crime, the appellant did not have knowledge her co-felon was or would be armed. Id. at 375.

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Cite This Page — Counsel Stack

Bluebook (online)
880 A.2d 696, 2005 Pa. Super. 275, 2005 Pa. Super. LEXIS 2533, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-crist-pasuperct-2005.