Opinion
J-S53006-19 No. 2178 EDA 2018
11-13-2019
COMMONWEALTH OF PENNSYLVANIA v. WALDEMAR ROSARIO Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
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, 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 Super. 1999) (unpublished memorandum) at 1-2, appeal denied, 751 A.2d 189 (Pa. 2000).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 Super. 2004) (unpublished memorandum) at 1-12, appeal denied, 877 A.2d 461 (Pa. 2005).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 Super. 2011) (unpublished memorandum) at 1-5.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.
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?
[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?Appellant's Brief at 3-4.
[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?
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. 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. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/13/2019
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