(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 serious 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. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section.

(d) Appeal by Commonwealth.--If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.

(e) Definitions.--As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

"Firearm." Any weapon, including a starter gun, which will or is designed to or may readily be converted to expel a projectile by the action of an explosive or the expansion of gas therein.

"Replica of a firearm." An item that can reasonably be perceived to be a firearm.

(Mar. 8, 1982, P.L.169, No.54, eff. 90 days; June 13, 1995, 1st Sp.Sess., P.L.1024, No.17, eff. 120 days; Oct. 11, 1995, 1st Sp.Sess., P.L.1058, No.21, eff. 60 days)

1995 Amendments. Act 17, 1st Sp.Sess., amended subsecs. (a) and (e) and Act 21, 1st Sp.Sess., amended subsec. (a). See the preamble to Act 17, 1st Sp.Sess., in the appendix to this title for special provisions relating to legislative purpose. Section 6 of Act 21, 1st Sp.Sess., provided that the amendment of subsec. (a) shall apply to all offenses committed on or after the effective date of Act 21.

Cross References. Section 9712 is referred to in sections 9712.1, 9715 of this title; sections 505, 2702.1 of Title 18 (Crimes and Offenses); section 6137 of Title 61 (Prisons and Parole).