Com. v. Rosario, W.

J-S53006-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALDEMAR ROSARIO :
:
Appellant : No. 2178 EDA 2018
Appeal from the Judgment of Sentence Entered June 28, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0131601-1992
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 13, 2019
Appellant, Waldemar Rosario, appeals pro se from the judgment of
sentence entered on June 28, 2018. We affirm.
In 1991, when Appellant was 17 years old, Appellant robbed Jeffrey
Raum and, during the course of the robbery, stabbed Raum in the leg.
Appellant severed Raum’s femoral artery and caused Raum to bleed to death.
A jury found Appellant guilty of second-degree murder, criminal conspiracy,
robbery, and possessing instruments of crime (“PIC”). On September 9, 1993,
the trial court sentenced Appellant to serve the then-mandatory term of life
in prison, without the possibility of parole, for the murder conviction and
concurrent terms of two to five years in prison for the conspiracy and PIC
convictions.
Following the nunc pro tunc restoration of Appellant’s direct appellate
rights, we affirmed Appellant’s judgment of sentence in 1999 and, in 2000,
J-S53006-19
the Pennsylvania Supreme Court denied Appellant’s petition for allowance of
appeal. Commonwealth v. Rosario, 745 A.2d 46 (Pa. Super. 1999)
(unpublished memorandum) at 1-2, appeal denied, 751 A.2d 189 (Pa. 2000).
On September 7, 2000, Appellant filed his first PCRA petition. The PCRA
court denied Appellant post-conviction collateral relief on December 4, 2003
and, on October 12, 2004, we affirmed the PCRA court’s order.
Commonwealth v. Rosario, 864 A.2d 583 (Pa. Super. 2004) (unpublished
memorandum) at 1-12, appeal denied, 877 A.2d 461 (Pa. 2005).
Appellant filed his second PCRA petition on January 7, 2010. The PCRA
court dismissed this petition on January 11, 2010 and we affirmed the PCRA
court’s order on May 23, 2011. Commonwealth v. Rosario, 30 A.3d 544(Pa. Super. 2011) (unpublished memorandum) at 1-5.
On July 27, 2012, Appellant filed a third PCRA petition, where he sought
relief from his judgment of sentence pursuant to the United States Supreme
Court’s opinion in Miller v. Alabama and its holding that “the Eighth
Amendment forbids a sentencing scheme that mandates life in prison without
possibility of parole for juvenile offenders.” 567 U.S. 460, 479 (2012). See
Appellant’s Third PCRA Petition, 7/27/12, at 1. Appellant then filed an
amended PCRA petition on March 16, 2016 and claimed entitlement to relief
under Montgomery v. Louisiana, where the United States Supreme Court
held that “Miller announced a substantive rule of constitutional law” that was
retroactive to cases on state collateral review. ___ U.S. ___, 136 S.Ct. 718,
734 (2016). Appellant was granted PCRA relief in the form of resentencing.
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J-S53006-19
On June 28, 2018, the trial court vacated Appellant’s sentence of life
imprisonment without the possibility of parole and resentenced Appellant to
serve an aggregate term of 25½ years to life in prison. N.T. Resentencing,
6/28/18, at 24. Appellant filed a timely notice of appeal. Notice of Appeal,
7/11/18, at 1.
While the appeal was pending, Appellant filed a request to proceed pro
se. We remanded the matter to the trial court, so that the trial court could
determine whether Appellant knowingly, intelligently, and voluntarily waived
his right to counsel on appeal. Order, 11/3/18, at 1. Following a hearing, the
trial court granted Appellant’s request to proceed pro se. Appellant now raises
six claims to this Court:
[1.] Whether the Common Pleas Court was the competent
court given the subject matter jurisdiction to immediately
release Appellant on June 28th 2018 due to the fact that no
Written Order or Final Order was entered in the docket by the
Clerk of Court validating the September 9, 1993 Second
Degree Life Sentence pursuant to 18 Pa.C.S. §1102(b)?
[2.] Whether the lawful decision to make by the Common
Pleas Court, the District Attorney of Philadelphia County and
the previously assigned Defender Association attorney's upon
realizing there was no Written Sentencing Order from
September 9th, 1993 should have been to immediately
release Appellant without any further penalty?
[3.] Whether the Re-sentencing Court in the June 28, 2018
Juvenile resentencing hearing should have halted the
proceedings once the A.D.A. made a claim that Appellant
rejected a Third Degree Offer in 1992 of 14 to 28 simply to
verify the probable bold assertion by the A.D.A. that
Appellant actually denied such an offer?
-3-
J-S53006-19
[4.] Whether the Court during the re-sentencing had an audio
recording of the entire proceeding to determine if counsel for
the Commonwealth made mention on the record that
Appellant was offered 14 to 28 years on a Third Degree offer
made in 1992, and will the court provide the Superior Court
said audio recording and permit Appellant a copy free of
charge?
[5.] Whether a Written Court Order exist with statutory
authority validating the June 28, 2018 25½ to Life on Parole
sentence; b) Whether the Re-sentencing Court legislated
from the bench by giving the Board of Probation and Parole
authority knowing legislation has not moved since the Miller
v. Alabama or, Montgomery v. Louisiana U.S. Supreme
Court decisions to amend the Parole Powers Statute where
only through the executive grace of the governor can
Appellant be supervised on Parole, and; c) Whether re-
sentencing court abused its unfettered discretion by
misunderstanding and misapplying a mere suggestion made
by the justices in the Batts II decision to use the new
sentencing juvenile statute as a guide and gave Appellant an
illegal sentence?
[6.] Whether the Common Pleas Court, the District Attorney's
Office, the Department of Corrections and the
Commonwealth's Board of Probation and Parole are currently
operating in violation of either of the following statues, 18
U.S.C.S. §§§ 1962, 1341 and 1951, beginning with the
September 9th, 1993 sentence of Appellant to Life pursuant
to a statute that merely defines (18 Pa.C.S. §2502 (b)) what
Second Degree Murder is and does not carry a penalty?
Appellant’s Brief at 3-4.
We have reviewed the briefs of the parties, the relevant law, the certified
record, the notes of testimony, and the opinion of the able trial court judge,
the Honorable Jeffrey P. Minehart. We conclude that Appellant is not entitled
to relief in this case and that Judge Minehart’s December 11, 2018 opinion
meticulously and accurately disposes of Appellant’s issues on appeal.
-4-
J-S53006-19
Therefore, we affirm on the basis of Judge Minehart’s thorough opinion and
adopt it as our own. In any future filing with this or any other court addressing
this ruling, the filing party shall attach a copy of Judge Minehart’s December
11, 2018 opinion.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2019
-5-
Circulated 10/18/2019 03:20 PM
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THE COURT OF CO�ON"PLEAS;OF',PHiLADELPHIA CO�NTY.
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA .
. CRIMINAL.TRIAL DIVISION 2B.J80EC lJ PM 2.; 53
CQMMONWEJ\LJ'H OF.PENNSYLVANIA
..
vs. CRJMINAL TRIA.L DIVISION
CP-51.;CR-01316()1 .. 1992
WALDEMAR ROSARIO ...
OPINION
111/IIIIHIIHll ii
�i.00799481
,PROCEDURAL HISTORY
Appellant, Waldemar Rosario, appealed from the judgment of sentence imposed by this
Court on �une 28, 2018, of twenty-five and one-half years to life imprisonment following the
striking <:>f 'his original sentence of life imprisonment without the possibility of parole ..
Appellant, who was seventeen years' old when originally charged) was convicted on December
10, 1992, of second-degree murder, criminal conspiracy, and possessing instruments of crime,
generally, following a jury trial.before the Honorable \Villi� J. Mazzola and was sentenced on
September 9, 1993, to. life imprisonment on the murder conviction and two to five years'
incarceration on the .otlier convictions. "These convictions arose out of an incident that occurred
on December 28, 1991, during which appellant stabbed Jeffrey R. in bis leg during a robbery and
severed his femoral. artery, Which caused him to bleed to death. Following his arrest; appellant
gave a.statement.topolice wherein he admitted that he stabbed the victim.
1
·-. ·-··· · --. -·-·---··-. ·-·-----··-·--··-----. -=----·---
Following sentencing: appellant
•. .
fil��.a notice of� appeal,
. .
.which was deniedin
.
,
1999. by. .the.
Superior Court. Commonwealth v. Rosru.-io,. 745. A.2d 46 (Pa. Super. 1999) (unpublished
memorandum), after which the Pennsylvania Supreme Court denied his petition for allowance of
appeal. Commonwealth v. Rosario, 751 A'.2d 189 (Pa: 2000) (Table); Appellantthereaftertwice
unsuccessfully sought.relief
. - . . pursuant tothe Post-Conviction Relief
.
Act (hereinafter
. .
PCRA), 42
On July 27,. 2012, appellantfiled another prose PCRA petitionwherein he asserted that
he was entitled to have. his life sentence. vacated pursuant to Miller v; Alabama; S.61 U.S. 460(2012), which held· that sentences. of life imprisonment without parole· imposed on juveniles less
than eighteen years of age· at the time they committed th� crime upon· which the life sentence was
imposed was unconstitutional. In accordance with the decision.in Montgomery v. touisian� 136
S.Ct 718.(2016), wherein the United States Supreme Cour; held that its ruling in Miller applied
retroactively to matter on collateral review, on June 28, 2018, this Court granted appellant's
petition and vacated the sentences, including. the Iife sentence.ipreviously imposed upon him on
September 9, 1993. After vacating the originally imposed sentences, this Court imposed the
above-referenced sentence of twenty-five and one-halfto life.imprisonment on the second degree.
murder conviction and verdicts without further penalty on the other convictions.
Following the imposition of sentence; appellant filed a timely prose.notice ofappeal. He
thereafter petitioned to proceed on appeal prose. On November 27, 2018, this Court conducted.a
hearing .in accordance with Commonwealth v.. Grazier, 7l3 A:2d 81 (Pa. 1998), and at its
conclusion; this Court issued an order permitting appellant to represent himself on appeal from
the judgment of sentence imposed by this Court Appellant thereafter filed a court-ordered
Pa.R.A.P l925(b)Statement of Matters Complained of on Appeal,
2
In the first issue in his 1925(b) statement; appellant claims that this Court lacked sµbj�ct
matter jurisdiction
.
to resentence him because the Clerk of Court did .. not enter a written or final
;.
orderrvalidating the September 9; I Q93, 'Second Degree Life Sentenc� pursuant to -18. P�.C.S. §
·� .
· I 102(b)." Appellant's l925(b) 'statement, Issue r, Relief i� riot required to be granted on this
claim.
Although not well articulated by appellant, it appears to this-Court that· what appellant is
complaining about is the failure to file a sentencing order after appellant was originally
sentenced with the Department· of Corrections. It is respectfully suggested that relief be denied
with respect to this claim.
Subject matter jurisdiction relates to the power of a court to adjudicate the type of
controversy presented and is a. matter of substantive law, Commonwealth
. v. Bethea,
. 828 A.2d
1066, 1074 (P�. 2003), cert. denied, 540 U.S; 1118, 124. K Ct l065� l57 L Eel. 2d.. 911 (2004),
Appellant's argument that the absence of a written sentencing order entitles. him to relief does
not involve subjec� matter jurisdiction but rather the .failure to comply with a statutory filing·
requirement. A similar claim involving the failure to file a sentencing form.was considered and
rejected by the Superior Court in Joseph v. Glunt, 96 A.3d 365 (Pa. Super; 2014). In Joseph� the
Superior Court held that. both the criminal docket and the transcript of the sentencing hearing are
sufficient to confirm the imposition and. legitimacy of the prisoner's sentence, notwithstanding
tlieinability to produce a written sentencing .order, Id. at 3 72 .. The Court stated;
[C]ouits confronting this issue in the pasthave.deemed a .. record
of the valid imposition of El sentence as sufficient, authority to
maintain a prisoner's detention notwithstanding the absence of a
written sentencing order under 42 P�.C.S. §.9764(a)(8).
Id. See also Commonwealth v. Dozier, 99A.3d i06, ...
--.- 115 (Pa. Super. 2014).
3
-----... -...·-··-·--- .. ·-·----
· Instantly, the record in this case clearly demonstrates that on December 10 1992;
..
appellant wasfound guilty of second degree murder an.:d other offenses and that on September 9i
1993.f Judge Mazzola sentenced hiin, inter olta, to a term of life. imprisonment on the murder
conviction. This sentence was Imposed pursuant to the statutory authority set forth at 18 Pa,C.S.
. .§ 1102(b)' �"A person who has been convicted of murder· of the second degree ... shall be
sentenced to a term of life imprisonment."). Here, because Judge Mazzola. was a duly elected
judge authorized to sit in the Philadelphia County Court of Common Pleas and the charges
lodged against appellant resulted from acts committed in Philadelphia County it is. clear that the
Court had subject matter jurisdiction to try arid sentence appellant. The lack of a sentencing
form does not affect either the court's jurisdiction or the legality of the sentence imposed on
appellant because the conviction aIJ.d sentence are plainly confirmed by the docket and the
certified record and were entered in accordance with the law. Accordingly, it is respectfully
suggested that appellant be denied relief with respect to this claim.1
" Second, appellant argues .that this Court, his counsel, the Philadelphia Defenders'
Association; and the Philadelphia District Attorney's Office should have moved for appellant's
hnmedlete release upon, realizing that no sentencing order for the sentence imposed on
September :9, · 1993; had been file.d. It is submitted that relief should be denied with respect to
this claim · for the reasons discussed above, namely because appellant was convicted and
sentenced by a duly elected judge for criminal acts· committed in Philadelphia County and
because the lack of a sentencing order does not render a legally imposed sentence a legal nullity;
In.IssuesJ and 4 appellant makes reference-to an alleged plea offer made to him by the·
Commonwealth before he was tried and argues that when this alleged plea offer was referred to
I Parenthetically, a review of all of appeHailt's filings through the. yeaa:s lndicates Jhat he acknowledged that he had
been duly 1.onvii;(e,d a.nd sel\tenc.ed because many dfhis filings.address his convictions anti sentencing.
. •.
during the sentencing hearing, the hearing should have. been halted. · J-ie. also requests that this
Court ascertain whether
...
there is an·�udio
. . the sentencinghearing �nd then.check it to
recording of
see whether counsel fot the Corrtmonwealth'made reference to the alleged plea offer of fourteen
to twenty-eight years' 'incarceratiori in exchange for appellant's guilt)' plea to the charge of third-
degree murder,
Appellant does not explain why the hearing should have been halted or set forth any issue
Involving the alleged comment which would entitle him to f!!lief. He also did not raise it before
this Court; For these reason alone? the claims should be determined not to present any issue
upon which appellate relief could be granted. See Pa.R.A.P; 302 (claims not raised in the court
below cannot be raised for the first time.on appeal),
Nevertheless; this Court carefully reviewed the. transcript of the sentencing hearing and
that review revealed that the only reference to a plea offer was made by appellant's .counsel,
(N;T. 6/28/18, 8}. It is also noted that this Court is unaware of the existence of any audio
recordings-of the sentencing hearing, Accordingly; for the reasons stated, no relief should be
granted on appellant's third and fourth claims. ·
Fifth, appellant argues essentially that there are no st41tutory provisions justifying either
the sentence imposed upon him by this Court· or for. this Court:' s order directing the· Pennsylvania
Board of Probation and Parole (hereinafter PBPP) to supervise appellant's parole: Essentially;
appellant is arguing that his sentence is illegal because the State Legislature has failed to enact
any legislation pertaining to the sentences that rnay be imposed on juveniles resentenced in
accordance with Miller and Montgomery,.supm, or any legislation giving the PBPP authorityto
supervise resentenced juvenile. lifers. Appellant also argues that. this Court committed an abu��.
of discretion. when h resentenced appellant by applying a suggestion by Justice Max Baer in a
5
cqncurring opinion His Honor. filed in Commonwealth v. Batts, 66 A.3d 2.86 (Pa. 2013), that
judges resentencing juveniles whose life sentences· have been vacated consider the sentencing
...
scheme
.
enacted. by the
:
Pennsylvania Legislature· for. juveniles
..
who
. are convicted of first and
second degree.murder
. .· the effectiv�
after June 24, 201.2, . date the.legislation
. referred. to by. Justice
..
Baer. See 18 Pa'.C.S. § 1102.l.
Although appellant is correct that no specific sentencing laws have beeri enacted
regarding the re-sentencings of juveniles previously convicted of offenses mandating life
... . . . .
sentences, the Pennsylvania Supreme Court-held in Batts, supra, that.the lack of suchlegislation
did not divestthe courts of the ability to re-impose Sentences Oh formerjuvenile lifers and that
the sentencing provisions applicable to third degree murder convictions .did not apply to
. I . . •. ..
juveniles. That ruling was affirmed four years later when the Batts case was again before the
. Supreme Court and the legislature had enacted no leglslation .applicable _to Juveniles _previously
sentenced to Hfe in prison, Commonwealth V; Batts, 163 A3d 4] O; 445(2017).
In Commonwealth v. Machicotc, 172 A.3d 595 (Pa. Sllpet,2017), appeal granted, 186
AJd 370 (Pa.2018) (Table), ·the defendant, � former juvenile lifer, raised a .claim challenging the
legality of his new sentence. on ground similar to those. raised by appellant herein. The Superior
Court rejected those claims, stating:
Finally, and of note with respect to the current appeal, 04r
Supreme - Court reaffirmed the· sentencing scheme applicable to
juvenile· offenders for whom the ..sentencing court determines
LWOP sentences are. 'inappropriate (i.e., imposition of a term-of-
years to life sentence as discussed above) and specifically
"instructjed] sentencing courts to. look to the mandatory iniriimurri
sentences set forth in section 1102.l(a) for guidance in setting a
minimum sentence for. a juvenile convicted of first-degree murder
prior to Miller." Batts II, 163 A.3d at 44j n.17.
In creating the aforementioned sentencing scheme, the . Court
expressly rejected the claim. of Batts .and his amict, which
·----·--
Appellant herein now · ar�es, that there. . is . no legislatively
authorized.sentence for juveniles convicted of firsi.,.degree .murder
prior· to .2012. Id. at 436-4.1. · T4e Court .also rejected Batts'
contentions tl:tat.the· forty -year maximum petjal(y' for third-degree
murder 'is the only legal· alternative and. that severance · of the
statute is impossible. Id. at 442-48. Importantly, die Court held,
inter alia, that a trial court, in resentencing a juvenile offender
convicted prior to Miller, was constitutionally permitted to impose
a minimum term-of-years sentence and ..a meximum sentence of
Iife. imprisonment, thus "exposing these "defendants ·10 parole
eligibility .upon the expiration of their minimum sentences" .. Batts
II� J63 A.3d at 19. We are bound by our Supreme Court's decision.
Machicote. 172 A.3d at 601 .:602 (footnote omitted). See also Commonwealth. v. Melvin, 172
A.3d 14 (Pa. Super, 2017) (holding that.atrial court is permitted to impose a sentence composed
ofa term of year$ 8$.. the minimum sentence and life-imprisonment as the maximum sentence
pursuant to· the Supreme
. . .. Court's Batts.' decisions). The
... Machicote Court.
. further
. noted
.. that
.
although Batts. concerned a. conviction for first-degree murder, the rationale employed therein
applied to juveniles convicted of second-degree murder. Machicote. 172 A3d at 601, nt, 2.
Based on the foregoing; it is clear that to the extent that appellant is arguing that his
sentence is illegal because of the lack of statutory support for it, the claim lacks merit and
should be rejected on appeal.
Next. appellant'sclaim that the.Boardof Probation and Parole does nothave jurisdiction
to supervise· him because of the lack of statutory authority entitling it to do so also lacks merit.
In Commonwealth v.. Batts, 163 A.Jct 410 (Pa, 2017), the Pennsylvania Supreme Court opined
that certain language in sections of .61 Pa.C;S .. § 6137(a)(lY2 and 42 Pa:C;S; § 9756(b)(l) could
be severed pursuant to I Pa.C.S.A .. § 1925, thereby allowing a juvenile convicted of murder
before June .25, 20l2, to receive a minimum sentence that is less than the mandatory term of life
imprisonment. Batts, 163 A.3d at 441-42; The 'effect of this decision. was to effectively
2 This section denies parole to defendants sentenced to fife imprisonment.
1
·--------------------···-··-··-·----
...
empower the PBPP to supervise fortner juvenile lifers after they were sentenced to serve a
sentence composed of a term of years AAd are granted .parole.
The .law Is clear .that an individual whose maximum ·senten?e ·is greater '.thart two. years
falls within the jurisdiction and authority of the Parole Board; Reese V; J6hnson, 774 A2d l255j
1259 (Pa. Super. 2001). "For prisoners whose maximum sentence is two years or more, the
Board has exclusive power 'to parole and reparole, commit. and recommit for violations of
parole, .and to discharge from parole ... .' Reese; 774 A.2d at 1259. See also 61 .Pa.CS. § 6132
(granting exclusive parole power of state.inmates .sentenced to. serve minimum sentences of two;
years or greater to the State Parole Board): Consequently, it is suggested that appellantbe.denied
relief with respect to this claim,
Finally, appellant's assertion that.this Court relied upon Justice Baer's suggestion when it
decided upon his sentence entitles him. to no relief because appellant did not raise this
discretionary claim previously either during the sentencing hearing OJ.' in a post-sentence motion.
Thus, any challenge to the discretionary aspects of his sentence should be deemed waived. See
Machicote� 172 A.3d at 602 (holding: that a discretionary aspect of sentencing claim must be
raised befor� the sentencing court to be preserved· for appellate review).
Even had appellant preserved this claim, itstill would be the opinion ofthis Court that
appellantis not entitled to relief on this claim-because this Court did not consider Judge Baer's
suggestion in deciding on appellant's sentence. Had the Court done 'so it would have imposed a
minimum sentence of at least thirty years' incarceration as suggested by .18 Pa.C.S. §
1102. l(c)(l ) .. Instead the. Court imposed a sentence that was four and one-half years shorter than
the suggested sentence. Thus, clearly even had appellant preserved this claim he still would not
have been entitled.to any relief.
8
..
. .
In his sixth ·iu)� final issu� a�p¢ilant' cites; several federal statutes and .claims that' the
Pennsytva:nia Co.urts of Common Ple�, · the District A�orney's .Office, the Pennsylvania
Department of Corrections, and the PBPP are in violation of themcommencing.on September 91
.
1993.; the clay. he was . originally
.. .
, . . . . because. rs Pa.C.S.
sentenced ·:.
§ . .2SOi(b). does' not set forth
··, . . . a
penelty: This Court takes.no position on �ppellant's claim that.the above named entitles 81'.e in
viofatipn of the federal statutes cited by appellant. Nevertheless, although section 2502(b) does
not setforth a penalty, 18 Pa.C.S. § 1102 does currently and. did when appellant
. was
� sentenced.
for someone convicted of second-degree murder. Consequently, it,is suggested that appellant be
denied relief with respect to this claim.
CONCLUSION
For the foregoing reasons,. defendant's assertions of error sdould be dismissed. for lack of
• merit and the judgment of sentence entered.in this matter should be affirmed.
9