J-S74002-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JOSE ROSARIO,
Appellant No. 438 EDA 2013
Appeal from the Judgment of Sentence Entered June 25, 2009 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0908311-2005
BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 03, 2015
Appellant, Jose Rosario, appeals nunc pro tunc from the life sentence
imposed during resentencing on June 25, 2009, stemming from his
conviction of two counts of third degree murder and related offenses. After
careful review, we affirm.
On March 13, 2005, Appellant opened fire on numerous patrons of a
pool hall in Philadelphia, resulting in the deaths of two individuals and
injuries to three others. On March 27, 2007, following a jury trial, Appellant
was convicted of two counts of third degree murder, 18 Pa.C.S. § 2502(c);
three counts of aggravated assault, 18 Pa.C.S. § 2702; and one count of
possession of an instrument of crime (PIC), 18 Pa.C.S. § 907. On May 21,
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S74002-14
2007, the trial court sentenced Appellant to two life terms on the third
degree murder convictions; 10-20 years’ incarceration for each aggravated
assault conviction, to be served consecutively to each other and to the life
sentences; and 2½-5 years’ incarceration for PIC, to be served concurrently
with the life sentences.
On direct appeal from his judgment of sentence, Appellant challenged
the sufficiency of the evidence supporting his convictions, and also argued
that the imposition of life sentences for his third degree murder convictions
was illegal. In a memorandum decision, a panel of this Court concluded that
there was no merit to Appellant’s sufficiency claim. However, the panel also
determined that the trial court had illegally imposed one of Appellant’s two
life sentences for third degree murder. Accordingly, Appellant’s judgment of
sentence was vacated, and we remanded for resentencing.
Commonwealth v. Rosario, 1589 EDA 2007, unpublished memorandum at
10 (Pa. Super. filed April 16, 2009).
On remand, the trial court resentenced Appellant consistently with this
Court’s instructions. The new sentence, imposed on June 25, 2009, was
identical to the sentence imposed on May 21, 2007, except that the trial
court replaced one of Appellant’s life sentences with a sentence of 20-40
years’ incarceration. That sentence was set to run concurrently to his life
sentence for the other third degree murder conviction. Appellant did not file
an appeal from the newly imposed sentence.
-2- J-S74002-14
On May 17, 2008, Appellant filed a timely, pro se PCRA1 petition
seeking reinstatement of his direct appeal and post-sentence motion rights
from the sentence imposed on June 25, 2009. Counsel was appointed and
filed an amended PCRA petition on Appellant’s behalf. On January 4, 2013,
the PCRA court granted Appellant’s request for reinstatement of his direct
appeal rights, but denied his request for reinstatement of his post-sentence
motion rights. Appellant then filed the instant appeal.
Appellant presents a single issue for our review: whether his life
sentence for third degree murder is illegal under Alleyne v. United States,
133 S.Ct. 2151 (2013). In Alleyne, the Supreme Court of the United States
held that the Sixth Amendment requires that any fact that increases the
mandatory minimum sentence for an offense must be submitted to the jury
and proven beyond a reasonable doubt. We have previously held that:
A mandatory minimum sentencing claim that invokes the reasoning of Alleyne implicates the legality of the sentence. Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013). “A challenge to the legality of the sentence may be raised as a matter of right, is non-waivable, and may be entertained so long as the reviewing court has jurisdiction.” Commonwealth v. Robinson, 931 A.2d 15, 19–20 (Pa. Super. 2007) (en banc).
Commonwealth v. Matteson, 96 A.3d 1064, 1066 (Pa. Super. 2014) .
Here, Appellant contends his sentence was illegal under Alleyne
because the trigger for his mandatory minimum sentence of life in prison, ____________________________________________
1 Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.
-3- J-S74002-14
his other simultaneous conviction for third degree murder, constituted a fact
that was not presented to a jury or proven beyond a reasonable doubt.
We note, as a threshold matter, that Appellant could not have raised this
claim during his first direct appeal, because Alleyne was not decided until
2013. Additionally, Appellant’s entire sentence was vacated during his first
direct appeal, although many of the individual sentences he received during
his May 21, 2007 sentencing hearing were reinstituted during the June 25,
2009 resentencing hearing, including the one at issue in the instant appeal.
Moreover, Appellant’s failure to raise this claim during his June 25, 2009
sentencing hearing, or in a post-sentence motion, also does not preclude our
review, because Appellant’s claim implicates the legality of his sentence.
Matteson, supra. Thus, having concluded that Appellant’s claim is properly
before us, we now address its merit.
Appellant’s life sentence was imposed pursuant to 42 Pa.C.S. § 9715.
The operative provision of that statute reads as follows:
[A]ny person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth or of the same or substantially equivalent crime in any other jurisdiction shall be sentenced to life imprisonment, notwithstanding any other provision of this title or other statute to the contrary.
42 Pa.C.S. § 9715(a).
Recently, an en banc panel of this court found that another of
Pennsylvania’s mandatory minimum sentencing statutes, 18 Pa.C.S. § 7508,
contained numerous provisions that were unconstitutional under Alleyne.
-4- J-S74002-14
Commonwealth v. Vargas, ---A.3d ---, 2014 WL 7447678 (Pa. Super.
December 31, 2014) (holding Section 7508 unconstitutional under Alleyne,
relying upon Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)
(en banc), Commonwealth v. Fennell, 2014 WL 6505791 (Pa. Super. Nov.
21, 2014), and Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super.
2014)). Therein, this Court reasoned, Section 7508(b) contains the following unconstitutional burdens and procedures: it declares that the substantive, “aggravating facts” contained in Section 7508(a) are “not ... an element of the crime;” it declares that notice of either the “aggravating facts” or of the applicability of the mandatory minimum sentencing statute is “not ...
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J-S74002-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
JOSE ROSARIO,
Appellant No. 438 EDA 2013
Appeal from the Judgment of Sentence Entered June 25, 2009 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0908311-2005
BEFORE: BENDER, P.J.E., DONOHUE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 03, 2015
Appellant, Jose Rosario, appeals nunc pro tunc from the life sentence
imposed during resentencing on June 25, 2009, stemming from his
conviction of two counts of third degree murder and related offenses. After
careful review, we affirm.
On March 13, 2005, Appellant opened fire on numerous patrons of a
pool hall in Philadelphia, resulting in the deaths of two individuals and
injuries to three others. On March 27, 2007, following a jury trial, Appellant
was convicted of two counts of third degree murder, 18 Pa.C.S. § 2502(c);
three counts of aggravated assault, 18 Pa.C.S. § 2702; and one count of
possession of an instrument of crime (PIC), 18 Pa.C.S. § 907. On May 21,
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S74002-14
2007, the trial court sentenced Appellant to two life terms on the third
degree murder convictions; 10-20 years’ incarceration for each aggravated
assault conviction, to be served consecutively to each other and to the life
sentences; and 2½-5 years’ incarceration for PIC, to be served concurrently
with the life sentences.
On direct appeal from his judgment of sentence, Appellant challenged
the sufficiency of the evidence supporting his convictions, and also argued
that the imposition of life sentences for his third degree murder convictions
was illegal. In a memorandum decision, a panel of this Court concluded that
there was no merit to Appellant’s sufficiency claim. However, the panel also
determined that the trial court had illegally imposed one of Appellant’s two
life sentences for third degree murder. Accordingly, Appellant’s judgment of
sentence was vacated, and we remanded for resentencing.
Commonwealth v. Rosario, 1589 EDA 2007, unpublished memorandum at
10 (Pa. Super. filed April 16, 2009).
On remand, the trial court resentenced Appellant consistently with this
Court’s instructions. The new sentence, imposed on June 25, 2009, was
identical to the sentence imposed on May 21, 2007, except that the trial
court replaced one of Appellant’s life sentences with a sentence of 20-40
years’ incarceration. That sentence was set to run concurrently to his life
sentence for the other third degree murder conviction. Appellant did not file
an appeal from the newly imposed sentence.
-2- J-S74002-14
On May 17, 2008, Appellant filed a timely, pro se PCRA1 petition
seeking reinstatement of his direct appeal and post-sentence motion rights
from the sentence imposed on June 25, 2009. Counsel was appointed and
filed an amended PCRA petition on Appellant’s behalf. On January 4, 2013,
the PCRA court granted Appellant’s request for reinstatement of his direct
appeal rights, but denied his request for reinstatement of his post-sentence
motion rights. Appellant then filed the instant appeal.
Appellant presents a single issue for our review: whether his life
sentence for third degree murder is illegal under Alleyne v. United States,
133 S.Ct. 2151 (2013). In Alleyne, the Supreme Court of the United States
held that the Sixth Amendment requires that any fact that increases the
mandatory minimum sentence for an offense must be submitted to the jury
and proven beyond a reasonable doubt. We have previously held that:
A mandatory minimum sentencing claim that invokes the reasoning of Alleyne implicates the legality of the sentence. Commonwealth v. Munday, 78 A.3d 661, 664 (Pa. Super. 2013). “A challenge to the legality of the sentence may be raised as a matter of right, is non-waivable, and may be entertained so long as the reviewing court has jurisdiction.” Commonwealth v. Robinson, 931 A.2d 15, 19–20 (Pa. Super. 2007) (en banc).
Commonwealth v. Matteson, 96 A.3d 1064, 1066 (Pa. Super. 2014) .
Here, Appellant contends his sentence was illegal under Alleyne
because the trigger for his mandatory minimum sentence of life in prison, ____________________________________________
1 Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.
-3- J-S74002-14
his other simultaneous conviction for third degree murder, constituted a fact
that was not presented to a jury or proven beyond a reasonable doubt.
We note, as a threshold matter, that Appellant could not have raised this
claim during his first direct appeal, because Alleyne was not decided until
2013. Additionally, Appellant’s entire sentence was vacated during his first
direct appeal, although many of the individual sentences he received during
his May 21, 2007 sentencing hearing were reinstituted during the June 25,
2009 resentencing hearing, including the one at issue in the instant appeal.
Moreover, Appellant’s failure to raise this claim during his June 25, 2009
sentencing hearing, or in a post-sentence motion, also does not preclude our
review, because Appellant’s claim implicates the legality of his sentence.
Matteson, supra. Thus, having concluded that Appellant’s claim is properly
before us, we now address its merit.
Appellant’s life sentence was imposed pursuant to 42 Pa.C.S. § 9715.
The operative provision of that statute reads as follows:
[A]ny person convicted of murder of the third degree in this Commonwealth who has previously been convicted at any time of murder or voluntary manslaughter in this Commonwealth or of the same or substantially equivalent crime in any other jurisdiction shall be sentenced to life imprisonment, notwithstanding any other provision of this title or other statute to the contrary.
42 Pa.C.S. § 9715(a).
Recently, an en banc panel of this court found that another of
Pennsylvania’s mandatory minimum sentencing statutes, 18 Pa.C.S. § 7508,
contained numerous provisions that were unconstitutional under Alleyne.
-4- J-S74002-14
Commonwealth v. Vargas, ---A.3d ---, 2014 WL 7447678 (Pa. Super.
December 31, 2014) (holding Section 7508 unconstitutional under Alleyne,
relying upon Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014)
(en banc), Commonwealth v. Fennell, 2014 WL 6505791 (Pa. Super. Nov.
21, 2014), and Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super.
2014)). Therein, this Court reasoned, Section 7508(b) contains the following unconstitutional burdens and procedures: it declares that the substantive, “aggravating facts” contained in Section 7508(a) are “not ... an element of the crime;” it declares that notice of either the “aggravating facts” or of the applicability of the mandatory minimum sentencing statute is “not ... required prior to conviction;” it declares that the applicability of the mandatory minimum statute “shall be determined at sentencing;” it declares that the Commonwealth need only prove the “aggravating facts” by a preponderance of the evidence; and, it declares that a judge—and not a jury—is to act as the fact-finder for purposes of determining the “aggravated facts.” 18 Pa.C.S.A. § 7508(b). Alleyne rendered all of these burdens and procedures unconstitutional.
Vargas, 2014 WL 7447678 at *17. The Vargas court ultimately concluded
that, as was the case in Newman regarding 42 Pa.C.S. § 9712.1 (which had
offended Alleyne in the same manner), the unconstitutional portions of
Section 7508(b) were not severable from the remainder of Section 7508,
thus rendering the entire statute unconstitutional.
Here, Section 9715(a) is not offensive to Alleyne on its face.
However, Section 9715(b) is, in large part, similar to the Alleyne-offending
provisions of 42 Pa.C.S. § 9712.1 and 18 Pa.C.S. § 7508. Nevertheless,
Appellant is not entitled to relief on his claim that his sentence was illegal
-5- J-S74002-14
under Alleyne. Alleyne did not overrule a previous Supreme Court holding
that a prior conviction is not an element of an offense when it is used to
increase the statutory maximum for an offense. Almendarez-Torres v.
United States, 523 U.S. 224, 247 (1998) (rejecting “petitioner's
constitutional claim that his recidivism must be treated as an element of his
offense”).
Here, Appellant has failed to offer any justification regarding why a
prior conviction should be treated differently for purposes of increasing a
mandatory minimum sentence. Furthermore, Appellant does not even
attempt to reconcile his argument with the Supreme Court’s decision in
Almendarez-Torres. Moreover, the Alleyne Court expressly recognized
the continued validity of Almendarez-Torres in this regard. Alleyne, 133
S.Ct. at 2160 n.1 (“In Almendarez–Torres … we recognized a narrow
exception to this general rule for the fact of a prior conviction. Because the
parties do not contest that decision's vitality, we do not revisit it for
purposes of our decision today.”). Here, Section 9715(b) applies exclusively
to prior convictions. Consequently, Section 9715(b) does not violate
Alleyne.
The Alleyne Court’s referencing of Almendarez-Torres does not
appear to be an enthusiastic endorsement of the prior-conviction exception.
-6- J-S74002-14
Nevertheless, the use of Appellant’s prior conviction2 for third degree murder
appears to conform to the general dictates of Alleyne. Indeed, Appellant
was convicted of that other offense by the same jury considering the offense
to which the mandatory minimum was applied; as such, Appellant’s prior
conviction was also secured by proof beyond a reasonable doubt. Thus, both
Alleyne’s jury requirement and its beyond-a-reasonable-doubt standard
were satisfied during the imposition of Appellant’s mandatory minimum
sentence of life imprisonment. Accordingly, we conclude that Appellant’s
Alleyne-based illegal sentencing claim lacks merit.
Judgment of Sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 2/3/2015
2 As we held in our decision on Appellant’s first direct appeal, although these murders occurred at the same time, one can serve as a predicate offense for the imposition of the mandatory minimum sentence for the other.
-7-