text:
    551 A.2d 580
    COMMONWEALTH of Pennsylvania, Appellant, v. Curtis W. BURRUSS and Carol E. Burruss, Appellees.
    Superior Court of Pennsylvania.
    Argued Oct. 5, 1988.
    Filed Dec. 13, 1988.
    Shawn C. Wagner, Assistant District Attorney, Carlisle, for Com., appellant.

      Sally Jo Winder, Shippensburg, for appellees.
    Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, McEWEN, DEL SOLE, MONTEMURO, BECK and TAMILIA, JJ.
   WIEAND, Judge:

The issue in this appeal is whether the two year statute of limitations within which to prosecute for writing a bad check in violation of 18 Pa.C.S. § 4105 is tolled or extended by the drawer’s fraudulent promises to make the check good after the payee learns that the check has been dishonored by the drawee bank.

On April 15, 1984, Curtis and Carol Burruss issued a check in the amount of nine thousand, three hundred eighty ($9,380.00) dollars to Steven Best in payment for several horses which had been sold by Best to the Burrusses. Best deposited the check on the following day, but within five days it was returned unpaid because of insufficient funds in the drawer’s account. Best was told to redeposit the check and did so. By the end of April or the beginning of May, however, the check had again been returned for insufficient funds. When Best contacted the Burrusses, he was told that their bank balance was insufficient to cover the check because they had deposited in their account a bad check taken in another business transaction. The Burrusses assured Best that the check would be made good. In June, 1984, in response to numerous inquiries by Best, the Burrusses offered to deliver as security for their debt a trailer which they represented to have a value of ten thousand ($10,000.00) dollars. Best accepted the offer. After several weeks had passed and the trailer had not been delivered, Best inquired and was told that the trailer had been totally destroyed in an accident. Throughout the ensuing autumn, the Burrusses continued to assure Best that they would pay Best the money which they owed to him. Finally, in December, 1984, the Burrusses promised to send to Best a series of twenty (20) post-dated checks, each in the amount of five hundred ($500.00) dollars, and Best agreed to deposit one check per month until the debt was paid in full. These checks were delivered to Best in March, 1985. The first check was dated April 15, 1985. It was deposited and paid. During the next several months, however, all checks deposited by Best were returned unpaid because of insufficient funds. Then, after five or six months, another check was paid. On or about March 15, 1986, a third check was paid. All other checks were returned for insufficient funds. In the meantime, the Burrusses continued to assure Best that the bad checks would ultimately be paid. Finally, in April, 1986, Best decided that his debtors were not acting in good faith and took his claim to the District Attorney. A criminal complaint was filed on July 30, 1986, in which the Burrusses were charged with passing a single bad check on April 15, 1984.

The Burrusses were tried by jury and were found guilty. In response to a motion for post-trial relief, however, the trial court arrested judgment because prosecution had not been commenced within the two years allowed therefor by the statute of limitations. The Commonwealth appealed.

Except as otherwise provided, prosecution for an offense must be commenced within two years after it has been committed. 42 Pa.C.S. § 5552(a). An exception appears at 42 Pa.C.S. § 5552(c)(1) as follows:

(c) Exceptions. — If the period prescribed in subsection (a) or subsection (b) has expired, a prosecution may nevertheless be commenced for:
(1) Any offense a material element of which is either fraud or a breach of fiduciary obligation within one year after discovery of the offense by an aggrieved party or by a person who has a legal duty to represent an aggrieved party and who is himself not a party to the offense, but in no case shall this paragraph extend the period of limitation otherwise applicable by more than three years.

The Commonwealth argues that fraud is a material element of the crime of bad checks and that the statute of limitations, therefore, is tolled until one year after the offense has been discovered.

The offense of passing bad checks is defined by statute as follows:

(a) Offense defined.—
(1) A person commits an offense if he issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee.
(b) Presumption. — For the purposes of this section as well as in any prosecution for theft committed by means of a bad check, an issuer is presumed to know that the check or order (other than a post-dated check or order) would not be paid, if:
(1) the issuer had no account with the drawee at the time the check or order was issued; or
(2) payment was refused by the drawee for lack of funds, upon presentation within 80 days after issue, and the issuer failed to make good within ten days after receiving notice of that refusal.

18 Pa.C.S. § 4105.

The Pennsylvania Supreme Court, in Commonwealth v. Mutnik, 486 Pa. 428, 406 A.2d 516 (1979), considered this section of the Pennsylvania Crimes Code and held that it did not impose upon the Commonwealth a requirement to prove an intent to defraud on the part of one accused of passing a bad check. The Court reasoned as follows:

This statute differs in one important aspect from its repealed predecessor, the Act of June 24, 1989, P.L. 872, § 854, as amended, 18 P.S. § 4854. Former section 4854 expressly required an intent to defraud as one of the essential elements of the crime, see Commonwealth v. Horton, 465 Pa. 213, 217, 348 A.2d 728, 730 (1975). In redrafting the Crimes Code in 1972, the legislature deliberately omitted the requirement of an intent to defraud as a constituent element of the crime of issuing a bad cheek.

Prior to this case the Superior Court had not had an occasion to interpret the new statute. Two courts of common pleas, however, had interpreted the statute and concluded that the element of intent to defraud must be read into the statute by the courts to enable the act to pass constitutional scrutiny. Commonwealth v. Willet, 74 Pa.D. & C.2d 368 (Monroe County, 1976); Commonwealth v. Ulsh, 68 Pa.D. & C.2d 124 (Cumberland County, 1974). Contra, Commonwealth v. Keown, 6 Pa.D. & C.3d 720 (Bucks County, 1978); see also Petition of Allentown Osteopathic Hosp., 67 Pa.D. & C.2d 790 (Lehigh County, 1974) (wherein the court reached the conclusion that the new statute had eliminated “an intent to defraud” but did not reach the constitutional question). In Keown the court analyzed the Willet and Ulsh opinions and came to the conclusions that the legislature had in fact decided to remove the element of intent to defraud from the crime and that without such an element the statute, nevertheless, was constitutional.

We agree with the ruling in Keown that:

... it is of some significance that the legislature omitted the specific intent to defraud from the definition of the bad check crime in the Crimes Code. Clearly the legislature understood the significance of these words because in the very same chapter in which the bad check charge is found the legislature saw fit to include an intent to defraud as an element of forgery, see 18 C.P.S.A. [Pa.C.S.A.] § 4101, in the crime of simulating objects of antiquity, see 18 C.P.S.A. [Pa.C.S.A.] § 4102, and in the fraudulent destruction, removal or concealment of recordable instruments, see 18 C.P.S.A. [Pa.C. S.A.] § 4103. See also 18 C.P.S.A. [Pa.C.S.A.] § 4104 defining tampering with records or identification. We believe, therefore, that by the omission of the specific element of intent to defraud from the bad check charge the legislature intended to denominate passing a check for which there are insufficient funds with knowledge of the issuer as a crime regardless of whether present consideration passes at the time of the passing of the check or not.
6 Pa.D. & C.3d at 723.
Moreover, we are permitted to consider the prior act only when the words of the present statute are not explicit. When, as here, “the words of a statute are clear and free from all possible ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b) (1979 Pamphlet). We therefore hold that section ^105 does not require the Commonwealth to prove an intent to defraud on the part of the defendant.

Commonwealth v. Mutnik, supra, 486 Pa. at 430-432, 406 A.2d at 517-518 (emphasis added) (footnotes omitted). The Supreme Court subsequently reaffirmed its ruling in Commonwealth v. Kyslinger, 506 Pa. 132, 484 A.2d 389 (1984), where it said:

It is well established that, under 18 Pa.C.S.A. § 4105, supra, the legislature intended to denominate the passing of a check for which there are insufficient funds, where the insufficiency is within the knowledge of the issuer, as a crime regardless of whether the issuer possessed a specific intent to defraud. Commonwealth v. Mutnik, 486 Pa. 428, 406 A.2d 516 (1979).

Id., 506 Pa. at 135, 484 A.2d at 390. See also: Commonwealth v. Frank, 322 Pa.Super. 6, 468 A.2d 1131 (1983).

In Commonwealth v. Eackles, 286 Pa.Super. 146, 428 A.2d 614 (1981), the Superior Court was called upon to determine whether a similar exception to the statute of limitations was applicable to the crime of theft by unlawful taking. The Eackles court held that the fraud exception was inapplicable, applying the following analysis:

Fraud is characterized by a false representation of a material matter made with knowledge of its falsity and with the intent to deceive. Commonwealth v. DeBellis, 20 D. & C.2d 153 (C.P. Bucks 1959), aff'd., 191 Pa.Super. 561, 159 A.2d 765 (1960), affd., 401 Pa. 552, 165 A.2d 77 (1960). In determining whether this is a “material element” of the crime of theft by unlawful taking, we find assistance in the definitional section of the Crimes Code at 18 Pa.C.S. § 103. “Material element of an offense” is there defined as: “An element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with: (1) the harm or evil incident to conduct, sought to be prevented by the law defining the offense; or (2) the existence of a justification or excuse for such conduct.” As relevant to this case, therefore, if fraud is to be a material element of the offense charged, it would be necessary that it have some connection with the harm or evil sought to be prevented. The harm sought to be prevented by the language making theft a crime is clearly the unlawful taking of another’s property. To convict of theft by unlawful taking, the Commonwealth is not required to prove that the taking was accompanied by fraud in the legal sense. Compare: Commonwealth v. Mutnik, 486 Pa. 428, 406 A.2d 516 (1979). Neither is fraud the harm or evil sought to be prevented by the language making theft by unlawful taking a crime. We conclude, therefore, that fraud is not a material element of the crime of theft by unlawful taking.

Id., 286 Pa. at 154-155, 428 A.2d at 618-619. See also: Commonwealth v. Goldhammer, 507 Pa. 236, 241-245, 489 A.2d 1307, 1310-1312 (1985), reversed on other grounds, 474 U.S. 28, 106 S.Ct. 353, 88 L.Ed.2d 183 (1985), appeal after remand, 512 Pa. 587, 517 A.2d 1280 (1986), cert. denied, 480 U.S. 950, 107 S.Ct. 1613, 94 L.Ed.2d 798 (1987) (same); Commonwealth v. Hawkins, 294 Pa.Super. 57, 64-65, 439 A.2d 748, 751-752 (1982) (applying same analysis in holding that fraud is not a material element of theft by receiving stolen property).

The harm or evil sought to be prevented by the bad check statute is the intentional disrupting of “the flow of and undermining the soundness of commercial paper in this Commonwealth.” Commonwealth v. Mutnik, supra, 486 Pa. at 434, 406 A.2d at 519. Simply stated, “ '[t]he purpose of this statute is ... to protect against impairment of commercial transactions.’ ” Id., quoting Commonwealth v. Keown, 6 Pa. D & C.3d 720, 724 (Bucks County, 1978). It seems abundantly clear, therefore, that fraud does not relate to the harm or evil sought to be prevented by the bad check statute. To prove a violation it is necessary to establish only that the drawer issued a check knowing that there were insufficient funds in his or her account to cover it.

Moreover, even if we were to assume for purposes of argument that fraud was an essential element of the offense of passing a bad cheek, we would nevertheless be compelled to hold that criminal prosecution was time barred under the facts of this case.

The bad check in the instant case was issued on April 15, 1984. By the end of April or early May, 1984, the check had been returned to the payee for insufficient funds, had been resubmitted for payment, and had again been dishonored. The criminal complaint, however, was not filed until July 30, 1986. By then, not only had one year expired after discovery of the offense but, in fact, more than two years had expired following discovery of the offense. Because of this lapse of time, prosecution was barred. Even if fraud were an element of the offense, it could not have tolled the statute of limitations until July 30, 1986.

The Commonwealth relies upon a series of promises made by the appellee-drawers to pay the check after it had twice been dishonored in order to extend the time for prosecution. This is unwarranted. The promises made by the drawers of the check did not in any way conceal the offense or prevent the payee from learning that a crime had been committed. The statute of limitations began to run, at the latest, when ten days had expired without the check’s having been made good. The period of limitation was not thereafter tolled by appellees’ promises to make restitution. Those promises were made after the crime had been completed and did not prevent the payee from learning of the commission of the crime. It follows that the exception to the statute of limitations in 42 Pa.C.S. § 5552(c)(1) would not in any event save the prosecution in the instant case.

Because criminal prosecution was barred by the statute of limitations, the trial court properly arrested judgment.

ORDER AFFIRMED.

      . An earlier complaint charging theft by deception and passing a bad check had been filed on May 21, 1986 but was subsequently withdrawn.

      . To the extent that language in the prior Superior Court decision in Commonwealth v. Schwartz, 250 Pa.Super. 455, 459, 378 A.2d 1237, 1239 (1977) suggests that “[t]he purpose of the ‘bad checks’ statute is to prevent fraud,” that decision has been effectively overruled by the subsequent decisions of the Supreme Court in Commonwealth v. Mutnik, supra and Commonwealth v. Kyslinger, supra.

      . Additional support for our holding that fraud is not a material element of the bad check offense appears in Toll, Pennsylvania Crimes Code Annot. § 4105, where the author, quoting the Model Penal Code Comment (T.D. No. 2, pp. 117-118), has written:
      The question arises whether it should be criminal to give someone a bad check as a gift or in payment of a pre-existing debt. The affirmative answer given under most present laws is retained in Section ... [4105], primarily for the reason that one who negotiates a bad check knows that even if he is not cheating the recipient, the check is likely to be renegotiated for cash or property, or at least to result in improper bank credits. Considering the minor penalties here contemplated, this behavior may properly be punished.

      . Knowledge that a check will be dishonored is presumed when the drawer fails to make the check good within ten days after receiving notice that it has been dishonored. 18 Pa.C.S. § 4105(b)(2). Thus, the instant offense was complete no later than ten days after notice to appellees that the check had been returned for insufficient funds.


source: Caselaw Access Project

author: TAMILIA, Judge:

license: Public Domain

text:
    551 A.2d 584
    COMMONWEALTH of Pennsylvania v. Vincent Francis CRUM, Appellant. COMMONWEALTH of Pennsylvania, Appellant, v. Vincent Francis CRUM.
    Superior Court of Pennsylvania.
    Submitted Oct. 17, 1988.
    Filed Dec. 12, 1988.

      Norman D. Callan, Public Defender, Altoona, for appellant (at 770) and appellee (at 880).
    Darlee E. Sill, Assistant District Attorney, Altoona, for Com., appellant (at 880) and appellee (at 770).
    Before TAMILIA, WATKINS and CERCONE, JJ.
   TAMILIA, Judge:

This matter involves cross-appeals, appellant/defendant appealing the judgment of sentence and appellant/Commonwealth appealing the trial judge’s failure to impose the mandatory five year sentence for offenses against infant persons pursuant to 42 Pa.C.S. § 9718. Appellant Vincent Francis Crum appeals judgment of sentence rendered May 18, 1988. He was convicted on August 27, 1985 by a judge sitting without a jury of rape, 18 Pa.C.S. § 3121, indecent assault, 18 Pa.C.S. § 8126, and corruption of minors, 18 Pa.C.S. § 6301. After denial of post-verdict motions, appellant/defendant was sentenced to serve two and one-quarter to four and one-half years incarceration for the rape conviction to be followed by three years probation for the corruption of a minor conviction; the indecent assault conviction was held to have merged for sentencing purposes. Notice of appeal at No. 00770 Pittsburgh, 1988 was filed by appellant Crum on May 20, 1988; the cross appeal was later filed by the Commonwealth on June 1, 1988 at No. 00880 Pittsburgh, 1988. At No. 00770, appellant Crum urges his trial counsel was ineffective for many reasons, and he seeks a new trial. At No. 00880, the Commonwealth contends the court erred by failing to sentence Crum to the mandatory five year period of incarceration as required by 42 Pa.C.S. § 9718.

We first address appellant/Crum’s appeal at No. 00770 Pittsburgh, 1988. The incident which resulted in the conviction occurred on or about August 2, 1984 in Altoona, Pennsylvania. Appellant Crum was involved in a relationship with the mother of the victim and in this manner had access to the victim on occasions when the mother was not present. The victim, who was born February 16, 1969, was fifteen years old at the time of the incident.

Crum first contends his trial counsel was ineffective for bringing into the trial on cross-examination of the victim the issue of her consent, as demonstrated by Polaroid photographs of her which Crum had taken in Texas prior to the August 1984 incident. The photographs showed the victim nude and semi-nude in various positions, and the defense counsel attempted to examine her about the fact that they showed her with a smile. Crum urges counsel was ineffective for introducing consent as a defense, because the defense was Crum had not committed the act on August 2, 1984. On this basis, he urges his counsel did not conduct himself at the minimum level of competency.

The Supreme Court recently reiterated in Commonwealth v. Collins, 519 Pa. 58, 545 A.2d 882 (1988), the standard of review in cases where ineffectiveness is alleged.

In resolving a claim of ineffective assistance of counsel, we have long followed the standard set forth in [Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967)]. In Washington, this Court observed that, in gauging the performance of an attorney at trial, the process must entail a comparison of the course adopted by counsel with the alternatives available. 427 Pa. at 603, 235 A.2d at 352. The Court then went on to provide what has become the guiding principle:
[Cjounsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decisions had any reasonable basis. (Emphasis in original.) 427 Pa. at 604-605, 235 A.2d at 352-353.

Id., 519 Pa. at 64, 545 A.2d at 885.

We have thoroughly reviewed the record in this matter and find trial counsel for appellant did have some reasonable basis designed to effectuate his client’s interests when he pursued the consent defense, in light of the evidence which nullified a strict denial defense. The evidence weighing against a denial defense as outlined in the Opinion of the trial court is as follows:

On January 10, 1985, after being given his Miranda rights and acknowledging and waiving the same in writing, Mr. Crum was interviewed by Officer Sassano and Corporal Janet Freehling at City Hall. He at first denied any type of sexual misconduct with the girl; after being confronted with the aforesaid pictures by Officer Sassano, however, the defendant orally admitted that he had taken them in Texas and had there engaged in touchings of Sherry’s breast and vaginal areas, continuing nonetheless in his denial that any such incidents had occurred subsequent to the return to Pennsylvania. At a second session with police on February 4, 1985, following a repeating of Miranda rights and his written waiver thereof, Mr. Crum conceded that he had committed several sexual touchings of her while living in Altoona upon coming back from Texas. On both occasions the defendant denied to the two officers that he had ever had any kind of sexual intercourse, either forced or consensual, at either place with the victim.
In the course of his trial testimony Mr. Crum persisted in this denial of intercourse and also denied that any fondling had taken place at his brother’s 3rd Avenue home. He did, however, admit the following acts while on the witness stand: (1) the taking of the snapshots in Austin, (2) that he ‘got into a relationship with [Sherry]’, ‘a touching situation’ which was ‘not a heavy sexual relationship’ with her in Texas, and (3) that while the vast majority of the ‘touchings’ occurred there on weekends over a three-month span there was ‘one time’ that he touched her breast while they were ‘standing beside each other near the kitchen sink’ for ‘about a minute’ on a weekend in the early part of December of 1984 at his new residence, 1008 — 1st Avenue in Altoona, the address to which he had moved on October 16, 1984 after living approximately four months at his brother’s, on an occasion when Sherry’s mother had gone to a laundromat (this was the only Altoona touching incident ‘that I can remember’ according to his testimony).

Slip Op., Brumbaugh, J., 3/11/88, pp. 15-16. We accordingly find Crum’s first allegation of ineffectiveness to be without merit.

Next, Crum contends trial counsel was ineffective for raising Crum’s failure to take a polygraph examination. Again, we conclude counsel’s course had some reasonable basis since Crum’s credibility was at issue and counsel sought to bolster his client’s credibility in explaining appellant’s failure to take a polygraph examination. Thus we find no ineffectiveness.

Third, Crum argues trial counsel’s failure to secure testimony and documentation of Randy Dick, one of Crum’s employers, as well as counsel’s entering into a stipulation regarding Dick’s testimony, resulted in ineffective assistanee. Randy Dick was served a subpoena but failed to appear; defense counsel agreed to enter a stipulation as to what Dick’s testimony would have been. Counsel’s decision to enter the stipulation had reasonable basis in effectuating Crum’s interests in that the substance of what counsel believed Randy Dick’s testimony would be was brought before the court. Present counsel would have us speculate, without foundation, that Randy Dick’s testimony might have been different than stipulated. This we will not do.

Crum’s fourth issue is counsel was ineffective for failing to request prior to or at the start of trial a view of the scene; instead, counsel made the request to view well after, the trial was underway. We find this allegation to be without merit because no prejudice resulted from counsel’s omission of early requesting a viewing as would have changed the result of the trial. See Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987). As noted above, the trial was by a judge sitting without a jury; the judge, in Ms Opinion, indicated he would have denied such a request regardless of its timing since photographs are an acceptable means of depicting the crime scene, see Commonwealth v. Thomas, 346 Pa.Super. 11, 498 A.2d 1345 (1985), allocatur denied 514 Pa. 635, 522 A.2d 1105 (1987), and here, six color photographs of the interior of the house where the incident occurred were put before the court by the defense. The judge ruled:

Since we are dealing with fixed or static objects (save only the couch) these photos sufficiently augmented the testimony to aid our determination of the credibility of witnesses without need to go to the premises.

Slip Op. at 588.

Additionally, Crum urges his trial counsel was ineffective for failing to object to hearsay “medical opinion” evidence given by Officer Sassand, i.e., he believed there was indicated in the report that the victim’s hymen had been partially perforated. We said in Commonwealth v. Gallagher, 341 Pa.Super. 152, 158, 491 A.2d 196, 199 (1985), the court looks to two factors to determine whether a judge was able to “maintain his impartiality after hearing incompetent evidence: (1) the ‘inherently prejudicial quality’ of the evidence involved; and (2) the importance of the evidence to the particular case.”

In the case sub judice, the trial judge stated in his Opinion his belief in the victim’s honesty and credibility regarding the incident. It is well established that the testimony of the injured person can be sufficient to sustain a conviction of rape. Commonwealth v. Shirey, 333 Pa.Super. 85, 481 A.2d 1314 (1984). The testimony of the victim in the instant case clearly establishes penetration, thus the judge need not have considered the hearsay statement to make a finding of rape as an independent and more reliable basis for finding penetration existed. Accordingly, we find no prejudice resulted to Crum’s case from his counsel’s failure to object to the hearsay statement.

In his sixth issue, Crum argues trial counsel was ineffective for failing to make the motion in the nature of a demurrer in a timely fashion. Whether counsel should have properly entered a demurrer to the evidence at the close of the Commonwealth’s case in chief, or a motion for judgment of acquittal at the close of all evidence, his failure to do so did not prejudice the outcome of the case because demurrers go to sufficiency of the evidence, which may be raised up to the final stage of post-trial proceedings and the trial judge would have denied such a motion since he found sufficient evidence to sustain convictions on all three charges. Again, we find no ineffectiveness.

In his seventh allegation of ineffectiveness, Crum urges counsel was ineffective for filing boilerplate post-verdiet motions and for failing to brief the issues raised in the post-verdict motion. As we said in Commonwealth v. Smith, 348 Pa.Super. 81, 95, 501 A.2d 656, 664 (1985), “Because appellant does not articulate any specific issues that trial counsel properly should have raised, ... this claim must fail.” Further, we find no merit to the allegation that counsel was ineffective for failing to “press” the issue of his withdrawal by including an Order and rule returnable.

At No. 00880, the Commonwealth as appellant argues actual notice was given appellant that the Commonwealth would be seeking the mandatory five year sentence under 42 Pa.C.S. § 9718, and thus the court erred in failing to impose the mandatory sentence. The Commonwealth contends the language of 42 Pa.C.S. § 9718 is mandatory and does not contain a notice requirement, where as sections 9712(b) (relating to offenses committed with firearms), 9713(c) (relating to offenses committed on public transportation), 9714(c) (relating to second and subsequent offenses), and 9715(b) (relating to life imprisonment for homicide) do contain a requirement that the Commonwealth give notice of its intention to proceed under those sections after conviction and before sentencing. Additionally, the Commonwealth urges this Court's decision in Commonwealth v. Leonhart, 358 Pa.Super. 494, 517 A.2d 1342 (1986), allocatur denied 515 Pa. 620, 531 A.2d 428 (1987), is distinguishable from the instant case. The court in Leonhart ruled manifest injustice resulted to appellant therein because he was not given notice at the plea colloquy by the Commonwealth of the applicability of section 9718 or its intention to proceed under that section at sentencing. The Commonwealth argues such notice is only required where guilty pleas are involved. We agree. Our reading of Leonhart shows the court there did find section 9718 requires notice of its applicability to be given appellant prior to sentencing in order for due process principles to be satisfied.

However, despite the fact that the Leonhart panel spoke in more comprehensive terms than the issue presented to it, it did succinctly state that issue in the following language:

When a defendant enters a plea knowingly and voluntarily, it is assumed that he has weighed the alternatives of going to trial versus entering a plea. This includes consideration of the evidence which he knows or has reason to believe the prosecution has available and whether, based upon his assessment of that evidence relative to the elements of the crime(s) charged, the Commonwealth is able to meet its burden of proof at trial. Commonwealth v. Shaffer [498 Pa. 342, 446 A.2d 591 (1982)].

Id., 358 Pa.Superior Ct. at 497, 517 A.2d at 1344.

A knowing and voluntary guilty plea must provide the opportunity to a defendant to assess his chances of obtaining a reduced sentence as opposed to going to trial. A defendant may well take his chances at trial rather than entering a guilty plea if he is made aware that entering a guilty plea will require imposition of a five-year mandatory minimum sentence by the court. The mandatory sentence is required in section 9718, with no provision of notice prior to sentencing, therefore, a knowing and voluntary guilty plea must apprise the defendant of this fact to permit him to make an informed decision about the plea. Such a requirement is not relevant to trial as the offense, as detailed in the statute, prescribes a mandatory sentence of five years, and the appellant has made his choice to obtain any benefits which accrue to his defense and possible acquittal by going to trial.

This case is clearly distinguishable from Leonhart and also is distinguishable from those prosecutions under section 9712 (sentences for offenses committed with fire arms); section 9713 (sentences for offenses committed on public transportation); section 9714 (sentence for second and subsequent offenses); and section 9715 (life imprisonment for homicide). In each of the above, notice of the prosecution’s attempt to have the court impose the mandatory sentence is required prior to sentencing because at the time of sentencing the Commonwealth must prove, by a preponderance of the evidence, at section 9712, that the person visibly possessed a firearm during the commission of the offense (even though it is not an element of the crime); at section 9713, that the offense was committed on or about a public transportation vehicle or facility; at section 9714, a prior conviction for crimes of violence (which could not be admissible at trial); and at section 9715, a prior conviction of voluntary manslaughter or murder (which is not admissible at trial). Since no opportunity exists at trial for a defendant to enter a defense to those matters, due process requires that he be given notice of the proof to be presented so that he can prepare a defense. In section 9718, the age of the child is inherent in the proof of the case in chief, and if this is not correctly presented it can be disputed routinely and in due course. Therefore, the requirement for notice, properly incorporated in sections 9712, 9713, 9714 and 9715, effectuate due process, but are totally unnecessary and irrelevant to section 9718. We must assume the legislature understood this less than subtle distinction and drafted the legislation on minors, section 9718, (and the elderly, section 9717) accordingly.

For the above reasons, as to the appeal at No. 00770 Pittsburgh, 1988, the conviction is affirmed; as to the appeal at No. 00880 Pittsburgh, 1988, the judgment of sentence is vacated and case remanded for resentencing consistent with this Opinion.

         Defendant’s sister-in-law pointed out that the couch's position and location in the pictures were the same which it occupied in late July and early August of 1984.

      . § 9718. Sentences for offenses against infant persons
      (a) Mandatory sentence. — A person convicted of the following offenses when the victim is under 16 years of age shall be sentenced to a mandatory term of imprisonment as follows:
      18 Pa.C.S. § 3121 (relating to rape) — not less than five years.