Com. v. Rosario

• Decision Date: 05 October 1993
• Citation: 535 Pa. 282,635 A.2d 109
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Aida Luz ROSARIO, Appellant.
• Court: Pennsylvania Supreme Court

Page 109

635 A.2d 109

535 Pa. 282

COMMONWEALTH of Pennsylvania, Appellee v. Aida Luz ROSARIO, Appellant.

Supreme Court of Pennsylvania.

Argued Dec. 9, 1992.

Decided Oct. 5, 1993.

[535 Pa. 283] Joel I. Fishbein, Philadelphia, for appellant.

Ronald Eisenberg, Deputy Dist. Atty., Catherine Marshall, Chief, Appeals Division, Joan Weiner, Philadelphia, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.

OPINION

MONTEMURO, Justice.

On March 31, 1989, appellant Aida Rosario was found guilty of possession and possession with intent to deliver cocaine. The charges stemmed from drug sales made out of appellant's residence during her absence by a man who has never been charged, or indeed completely identified, in connection with this case. The sentence imposed, eleven and one half to twenty-three months house arrest, with a subsequent three year term of probation, was appealed by the Commonwealth, and the Superior Court reversed, concluding that the leniency of the sentence was an abuse of the trial court's discretion, and remanded for resentencing, 400 Pa.Super. 505, 583 A.2d 1229. Appellant's challenge to the Superior Court's decision is now before us.

Appellant argues to this court that the Superior Court departed from the accepted course of appellate review in its reversal of the trial court's sentencing order. However, we may not consider whether the sentence was properly imposed, or whether the reversal by the Superior Court was correct, since 42 Pa.C.S.A. § 9781(f) deprives us of jurisdiction to address the discretionary aspects of a sentence. Commonwealth v. Jones, 523 Pa. 138, 565 A.2d 732 (1989). See also, Commonwealth v. Parrish, 515 Pa. 297, 528 A.2d 151 (1987).

Appellant raises another matter concerning the validity of the Superior Court's order which must command our attention. She contends that she was denied her constitutional right to appellate counsel, having lacked representation while the Commonwealth pursued its appeal. Counsel representing appellant before this tribunal, as well as the Defenders Association as amicus curiae, point out that subsequent to the sentencing proceeding, trial counsel disappeared from the case, without having first requested permission to withdraw per Commonwealth v. Palmer, 455 Pa. 111, 314 A.2d 853 (1974), or in any way indicating her intention not to proceed on appellant's behalf. As a result, court documents informing appellant of the progress of the Commonwealth appeal were returned, and no appellate brief was filed for appellant, even though, as Judge Cavanaugh's Dissent notes, the Commonwealth sought and received permission from the Superior Court to file a Reply Brief. The Superior Court majority attributes that omission to appellant's apparent satisfaction with her sentence, obviating the necessity for an appellate brief. However, apparent satisfaction with a sentence would seem to us to inspire a wish to combat the Commonwealth's efforts to alter it. We consider counsel's dereliction, including her failure to institute a procedurally proper withdrawal from the case, to be a forfeiture of her client's right to competent representation.

Despite the fact that the original...