Pennsylvania Superior Court Ruling: Commonwealth v. Rosario

Com. v. Rosario, K. No. 1700 WDA 2019

In the case of Commonwealth v. Rosario, the defendant appeals after being convicted of attempted murder and additional crimes at trial.

In his first issue, the defendant claims the trial court erred by failing to suppress a handgun that was found in his residence on the basis that Tyree King, the person who was housesitting was underage and did not have apparent authority to consent to search. In finding that King did have authority, the trial court states that “police must make a determination on whether the facts available to them at the moment would lead a reasonable person of reasonable caution to believe that the consenting party had authority over the premises. The trial court further stated that age by itself does not invalidate consent for search. The superior court agrees that King had apparent authority and that police acted reasonable in their belief. This issue does not merit relief.

In his second claim, the defendant argues that the trial court lacked sufficient evidence to convict him of conspiracy. With respect to conspiracy, the trier of fact must find that the defendant intended to commit or aid in the commission of the criminal act, the defendant entered into an agreement with another to engage in the crime, and the defendant or one or more other co-conspirator committed an overt act in furtherance of the agreed upon crime. The defendant alleges that there is no evidence of agreement and that his actions were spontaneous, but the record does not support that conclusion. The superior court finds there was sufficient evidence to sustain a conviction for criminal conspiracy.

In his third issue, the defendant challenges the discretionary aspects of his sentence. Challenges to discretionary aspects of sentence are not automatice and the defendant must satisfy a four prong test. The defendant must show that he preserved the issue by raising it at the time of sentencing or in a post sentence motion, filed a timely notice of appeal; set forth a concise statement of reasons relied upon for the allowance of appeal; and raises a substantial question for review. The defendant satisfied the first three prongs. In determining whether the appeal raises a substantial question, the court must find that the defendant sets forth a plausible argument that the sentence violates a provision of the sentencing code or is contrary to the fundamental norms of the sentencing process. The superior court finds no merit to the defendants contention that the trial court imposed a manifestly excessive sentence disproportionate to the crimes of conviction. Due to the sever and brutal nature of the case, the court finds that the aggregate sentence is not grossly disparate to the defendants conduct.

The defendant also claims the sentence violates the 8th amendment protections against cruel and unusual punishment. The three part test for 8th amendment proportionally review includes the gravity of the offense and the harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction and the sentence imposed for the same crime in other jurisdictions. If the first prong is not satisfied, the court need not establish the second or third. Here, the court properly found that the sentence was not disproportionate to the crime. In his next claim, the defendant alleges an illegal sentence as to the crime of conspiracy. Based on the facts, and that the victim was not killed, the defendant could not be sentenced on both inchoate crimes of attempt and conspiracy. Therefore the sentence for the conspiracy charge is vacated. He also raised a question of legality of sentence on the two kidnapping counts. The court found that the record supported only a single count of kidnapping and was not persuaded by the Commonwealths argument. The court thereby vacated the sentences regarding the two kidnapping counts. The convictions are affirmed but the case is remanded for sentencing consistent with this opinion.