Com. v. Wooten

Citation545 A.2d 876,519 Pa. 45
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Alex WOOTEN, Appellant.
Decision Date10 August 1988
CourtUnited States State Supreme Court of Pennsylvania

Alan M. Rubenstein, Dist. Atty., for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and STOUT, JJ.

OPINION

NIX, Chief Justice. *

This appeal presents two issues under section 9712 of the Mandatory Minimum Sentencing Act, 42 Pa.C.S. § 9712, for our consideration, namely (1) whether the provision is applicable to a situation in which the defendant neither introduced the firearm into the confrontation which culminated in the prohibited act nor initially precipitated the confrontation; and (2) whether the requirement of "visible possession" must be proven by the testimony of an eyewitness who actually saw the firearm during the commission of the offense, or whether some other evidence might suffice.

Section 9712 provides in pertinent part:

§ 9712. Sentences for offenses committed with firearms

(a) Mandatory sentence.--Any person who is convicted in any court of this Commonwealth of murder of the third degree, voluntary manslaughter, rape, involuntary deviate sexual intercourse, robbery as defined in 18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery), aggravated assault as defined in 18 Pa.C.S. § 2702(a)(1) (relating to aggravated assault) or kidnapping, or who is convicted of attempt to commit any of these crimes, 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.

(b) Proof at 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.

Before addressing the legal issues presented, a review of the facts underlying this appeal is warranted. On June 13, 1983, the victim Randolph Jones, appellant, and friends had a picnic along the Delaware River in Bristol Borough, during which Jones had manifested abusive behavior, induced by heavy consumption of alcohol, toward several members of appellant's party. Thereafter appellant drove his girlfriend Cora Lucy Davis and their children in his van to Schumacher Drive, also in Bristol, and parked on the street in front of Jones' residence. The group intended to sleep in the van overnight.

Jones arrived some time later, and parked his automobile immediately to the left of appellant's van. Appellant and Jones exchanged words, subsequent to which Jones went into his house for the purpose of securing a handgun. Seated in his van, appellant saw in his side mirror Jones approaching with what appeared to be a pistol. Appellant threw open his door, which struck Jones and knocked him to the ground. They struggled for the gun which had also been knocked away. Appellant grabbed the gun and shot Jones five times, although no one testified at trial that they actually saw appellant with the weapon. He then fled the scene with his family. Within two hours, he surrendered himself to Bristol Township Police, and in the company of his attorney gave police an inculpatory statement. Jones succumbed to his injuries the following day.

Appellant was charged, inter alia, with criminal homicide, 18 Pa.C.S. § 2501, and possessing an instrument of crime, 18 Pa.C.S. § 907. He entered an open plea to murder generally and, following an evidentiary hearing, was convicted of voluntary manslaughter, 18 Pa.C.S. § 2503(a) and (b), and the weapons offense. A sentencing hearing was subsequently held, resulting in the imposition of a sentence of imprisonment for a three to ten-year period. Thereafter, the Commonwealth filed a Motion for Reconsideration of Sentence which was denied.

The court of common pleas, in denying the applicability of section 9712 to appellant's conduct, limited the provision to criminal acts by "those who choose to use a firearm for the express purpose of committing one of the enumerated felonies," reasoning that the mandatory sentence was not intended to apply to the "conduct of persons in defendant's situation who grab a firearm suddenly brought to the crime scene by the victim and who use that weapon under the circumstances shown here." Commonwealth v. Alex Wooten, No. 2824, 2825/83, slip op. at 4 (Bucks County Court of Common Pleas, June 28, 1984) (emphasis in original). In addition, the court held that the Commonwealth failed to meet its burden of proving, by a preponderance of the evidence, that appellant "visibly possessed" the weapon used to kill Jones, restricting the statute to situations where an eyewitness actually saw the firearm. Id. at 5-7.

In vacating the judgment of sentence, the Superior Court did not address the first issue. Instead, the court held that the trial court erred in narrowly construing the term "visibly." Relying on its own precedent, the court stated that visible possession can occur when the possession manifests itself in the process of the crime, and thus concluded that the Commonwealth met its burden of proof in this case. Commonwealth v. Wooten, 348 Pa.Super. 35, 501 A.2d 285 (1985). The court remanded for resentencing of appellant. We granted allocatur, and now affirm the order of the Superior Court.

Initially we are called upon to determine whether the relevant provision of the Mandatory Minimum Sentencing Act should be applied to appellant's conduct. Appellant does not contend that section 9712 is inapposite in the context of a conviction for voluntary manslaughter. The clear language of the provision certainly indicates otherwise. See Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986). Instead, appellant contends that the Act was never intended to require a mandatory five-year incarceration for one who did not introduce the weapon to the confrontation but simply reacted to the armed attack of an aggressor.

Following an evidentiary hearing, the lower court convicted appellant of voluntary manslaughter, finding that he acted under passion resulting from serious provocation by the victim, 18 Pa.C.S. § 2503(a), and that he acted with an unreasonable belief that the killing was justifiable, 18 Pa.C.S. § 2503(b). The court heard and rejected testimony that appellant was justified in his actions. The court based its conclusion to a large extent on the excessive force used by appellant to effectuate the self-defense, noting that appellant had fired five shots at his victim.

Appellant is not the unfortunate victim of circumstance that he would have us believe. Although appellant may have been justified in gaining control of the weapon and firing a shot or two in the direction of his attacker in order to deter his advance, once that end was achieved appellant no longer could be perceived as a faultless actor. By continuing his use of the weapon, he became the aggressor. With each shot he fired, five in all, his conduct became less spontaneous and more calculated to effect an improper purpose. Thus, even though appellant did not introduce the weapon into the affray, we do not believe that the imposition of enhanced punishment for his conduct would thwart the legislative purpose of discouraging violent crimes effectuated by the use of firearms. See Commonwealth v. Wright, 508 Pa. 25, 41, 494 A.2d 354, 362 (1985), aff'd 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). As we stated in Commonwealth v. Bell, supra:

It is as much in the public interest to keep guns out of the hands of those susceptible to bursts of passions as to deter those who would commit rape, robbery or any of the enumerated offenses from using firearms.

Bell, 512 Pa. at 341, 516 A.2d at 1176.

Having thus concluded that section 9712 is applicable to appellant's conduct, we must next address the question of whether the Commonwealth met its burden of proving by a preponderance of the evidence that appellant visibly possessed a firearm during the commission of the offense. The sentencing court held that the burden was not met. We note that factual determinations are within the realm of the trial court's discretion. Legal conclusions however are not binding upon an appellate court whose duty it is to determine whether there has been a proper application of law to fact by the lower court. 2401 Pennsylvania Ave. Corp. v. Federation of Jewish Agencies of Greater Philadelphia, 507 Pa. 166, 489 A.2d 733 (1985); see also Westinghouse Elevator Co. v. Herron, 514 Pa. 252, 523 A.2d 723 (1987); Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985).

Relying upon its own precedent, the Superior Court concluded that the sentencing court improperly construed the term "visibly" under the statute. Employing a more expansive reading of the language, the Superior Court reviewed the evidence to determine whether the Commonwealth had met its burden. It was upon this legal predicate that the court vacated the judgment of sentence.

The line of Superior Court cases interpreting the pertinent language of section 9712 begins with Commonwealth v. Healey, 343 Pa.Super. 323, 494 A.2d 869 (1985). At the defendant's sentencing hearing in that case, he argued that since he shot the victim from behind a closed door, he did not visibly possess a firearm because neither the victim nor anyone else could testify that they saw the firearm. Rejecting this interpretation as violative of the Act's purpose of deterring the use of all handguns in certain violent crimes, the court concluded that visible possession could be proven any time the possession manifested itself in the process of the crime. "This definition would include situations where...

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