SENATE AMENDED

THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

INTRODUCED BY REICHLEY, BAKER, BOBACK, BOYD, CLYMER, D. COSTA, EVERETT, FLECK, GEIST, GINGRICH, HARHART, HEFFLEY, HORNAMAN, KNOWLES, LONGIETTI, MANN, READSHAW, SABATINA, SWANGER, VULAKOVICH, GILLESPIE, HICKERNELL, TOOHIL, GILLEN, GROVE, MILLER, DeLUCA, ROCK, CALTAGIRONE, MURT AND FARRY, MARCH 17, 2011

SENATOR GREENLEAF, JUDICIARY, IN SENATE, AS AMENDED, SEPTEMBER 25, 2012   

AN ACT

Amending Title 42 (Judiciary and Judicial Procedure) of the

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Pennsylvania Consolidated Statutes, providing for sentencing

for offenses committed in association with a criminal street

gang.

Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and

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Judicial Procedure) of the Pennsylvania Consolidated

Statutes, providing for the offense of recruiting criminal

street gang members and for sentencing for offenses committed

in association with a criminal street gang.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Title 42 of the Pennsylvania Consolidated

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Statutes is amended by adding a section to read:

§ 9720.3.  Sentencing for offenses committed in association with

a criminal street gang.

(a)  Sentencing enhancement.--The Pennsylvania Commission on

Sentencing shall provide for a sentence enhancement for crimes

of violence or a violation of section 13(a)(30) of the act of

April 14, 1972 (P.L.233, No.64), known as The Controlled

Substance, Drug, Device and Cosmetic Act, if the offense was

knowingly committed at the direction of or for the purpose of

benefiting, promoting or furthering the interests of a criminal

street gang.

(b)  Proof at sentencing.--The provisions of this section

shall not be an element of the crime and notice of the

provisions of this section 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.

(c)  Applicability.--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.

(d)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection unless the context clearly indicates otherwise:

"Crimes of violence."  An offense under any of the following:

(1)  18 Pa.C.S. § 901 (relating to criminal attempt),

involving an attempt to commit an offense under 18 Pa.C.S. §

2502(a) or (b) (relating to murder), 2507(a) or (b) (relating

to criminal homicide of law enforcement officer) or any of

the offenses under paragraph  (4), (5), (6), (7), (8), (9),

(10), (11), (12), (13), (14), (15), (16), (17), (18), (19),

(19.1) or (19.2).

(2)  18 Pa.C.S. § 902 (relating to criminal

solicitation), involving solicitation to commit an offense

under 18 Pa.C.S. § 2502(a) or (b), 2507(a) or (b) or any of

the offenses under paragraph  (4), (5), (6), (7), (8), (9),

(10), (11), (12), (13), (14), (15), (16), (17), (18), (19),

(19.1) or (19.2).

(3)  18 Pa.C.S. § 903 (relating to criminal conspiracy),

involving conspiracy to commit an offense under 18 Pa.C.S. §

2502(a) or (b), 2507(a) or (b) or any of the offenses under

paragraph  (4), (5), (6), (7), (8), (9), (10), (11), (12),

(13), (14), (15), (16), (17), (18), (19), (19.1) or (19.2).

(4)  18 Pa.C.S. § 2502(c).

(5)  18 Pa.C.S. § 2503 (relating to voluntary

manslaughter).

(6)  18 Pa.C.S. § 2506 (relating to drug delivery

resulting in death).

(7)  18 Pa.C.S. § 2507(c) or (d).

(8)  18 Pa.C.S. § 2701(a)(3) (relating to simple

assault).

(9)  18 Pa.C.S. § 2702 (relating to aggravated assault).

(10)  18 Pa.C.S. § 2702.1 (relating to assault of law

enforcement officer).

(11)  18 Pa.C.S. § 2901 (relating to kidnapping).

(12)  18 Pa.C.S. § 3121 (relating to rape).

(13)  18 Pa.C.S. § 3123 (relating to involuntary deviate

sexual intercourse).

(14)  18 Pa.C.S. § 3124.1 (relating to sexual assault).

(15)  18 Pa.C.S. § 3125 (relating to aggravated indecent

assault).

(16)  18 Pa.C.S. § 3301(a) (relating to arson and related

offenses).

(17)  18 Pa.C.S. § 3502 (relating to burglary), if at the

time of the offense the structure entered was adapted for

overnight accommodation.

(18)  18 Pa.C.S. § 3701 (relating to robbery).

(19)  18 Pa.C.S. § 3702 (relating to robbery of motor

vehicle).

(19.1)  18 Pa.C.S. § 4952 (relating to intimidation of

witnesses or victims), involving a witness to or a victim of

a violation of 18 Pa.C.S. § 2502 or 2507 or any of the

offenses under paragraph (1), (2), (3), (4), (5), (6), (7),

(8), (9), (10), (11), (12), (13), (14), (15), (16), (17),

(18), (19), (19.2), (20) or (21) or a violation of section

13(a)(30) of the act of April 14, 1972 (P.L.233, No.64),

known as The Controlled Substance, Drug, Device and Cosmetic

Act.

(19.2)  18 Pa.C.S. § 4953 (relating to retaliation

against witness, victim or party), involving a witness to,

victim of or party to a proceeding alleging a violation of 18

Pa.C.S. § 2502 or 2507 or any of the offenses under paragraph

(1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11),

(12), (13), (14), (15), (16), (17), (18), (19), (19.1), (20)

or (21) or a violation of section 13(a)(30) of The Controlled

Substance, Drug, Device and Cosmetic Act.

(20)  A crime equivalent to one listed under paragraph

(1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11),

(12), (13), (14), (15), (16), (17), (18), (19), (19.1) or

(19.2) under the laws of this Commonwealth in effect at the

time of the commission of the offense.

(21)  A crime equivalent to one listed under paragraph

(1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11),

(12), (13), (14), (15), (16), (17), (18), (19), (19.1) or

(19.2) under Federal law or in a jurisdiction outside this

Commonwealth.

"Criminal street gang."  A formal or informal confederation,

alliance, network, conspiracy, understanding or similar

conjoining of persons who operate individually or collectively

as a group or subgroup, with or without an established

hierarchy, that, through its membership obtained by pledge,

oath, swearing, ritual, distinct membership markings, symbolism,

common identifiers or other criteria that law enforcement

personnel use to identify the groups or subgroups, engages in

criminal activity.

Section 2.  This act shall take effect in 60 days.

Section 1.  Chapter 51 of Title 18 of the Pennsylvania

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Consolidated Statutes is amended by adding a subchapter to read:

SUBCHAPTER C

CRIMINAL STREET GANGS

Sec.

5131.  Recruiting criminal street gang members.

§ 5131.  Recruiting criminal street gang members.

(a)  Offense defined.--A person commits the offense of

recruiting criminal street gang members by:

(1)  knowingly soliciting, inviting, encouraging or

otherwise causing or attempting to cause a person to

participate or remain in a criminal street gang;

(2)  knowingly using physical menace, force, threats or

other intimidation causing or attempting to cause a person to

participate or remain in a criminal street gang; or

(3)  knowingly inflicting serious bodily injury as

defined in section 2301 (relating to definitions) on any

person causing or attempting to cause a person to participate

or remain in a criminal street gang.

(b)  Grading.--

(1)  An offense under subsection (a)(1) is a misdemeanor

of the second degree. Except as provided for in this

subsection, an offense under subsection (a)(2) is a

misdemeanor of the first degree and an offense under

subsection (a)(3) is a felony of the third degree.

(2)  A violation of subsection (a)(2) or (3) in which the

subject of the recruiting is under 16 years of age is a

felony of the third degree.

(c)  Defenses.--It shall not be a defense to this offense

that the subject of the recruiting did not join, participate or

remain in a criminal street gang.

(d)  Liability for other violations of statutes.--This

section shall not be construed to limit prosecution under any

other provision of law.

(e)  Definition.--As used in this section, the term "criminal

street gang" means a formal or informal ongoing organization,

association or group, with or without an established hierarchy,

that has as one of its primary activities the commission of

criminal or delinquent acts and that consists of three or more

persons who have a common name or common identifying signs,

colors or symbols that law enforcement personnel use to identify

the groups or subgroups.

Section 2.  Title 42 is amended by adding a section to read:

§ 9720.4.  Sentencing for offenses committed in association with

a criminal street gang.

(a)  Sentencing enhancement.--In addition to any minimum term

of imprisonment authorized or established by law for the

offense, the Pennsylvania Commission on Sentencing shall provide

for a sentence enhancement within its guidelines for a crime of

violence, as defined in section 9714(g) (relating to sentences

for second and subsequent offenses), a violation of 18 Pa.C.S. §

5131(a)(3) (relating to recruiting criminal street gang members)

or a violation of section 13(a)(30) of the act of April 14, 1972

(P.L.233, No.64), known as The Controlled Substance, Drug,

Device and Cosmetic Act, if the offense was knowingly committed

at the direction of or for the purpose of benefiting, promoting

or furthering the interests of a criminal street gang.

(b)  Proof at sentencing.--The provisions of this section

shall not be an element of the crime, and notice of the

provisions of this section 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.

(c)  Applicability.--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.

(d)  Definition.--As used in this section, the term "criminal

street gang" has the meaning given in 18 Pa.C.S. § 5131(e)

(relating to recruiting criminal street gang members).

Section 3.  This act shall take effect in 60 days.