Com. v. Rosario

Decision Date30 December 1994
Citation438 Pa.Super. 241,652 A.2d 354
PartiesCOMMONWEALTH of Pennsylvania v. Agustin ROSARIO, Appellant.
CourtPennsylvania Superior Court

Edward F. Browne, Lancaster, for appellant.

Susan E. Slusser, Asst. Dist. Atty., Lancaster, for appellee Com.

Before ROWLEY, President Judge, and CAVANAUGH, WIEAND, McEWEN, CIRILLO, OLSZEWSKI, BECK, KELLY, and POPOVICH, JJ.

ROWLEY, President Judge:

In this appeal by Agustin Rosario, we consider, inter alia, whether 18 Pa.C.S. § 110 barred appellant's prosecution on murder and conspiracy charges where, pursuant to a plea bargain, the Commonwealth agreed to nol pros those charges in exchange for appellant's guilty plea to a charge of hindering apprehension or prosecution, and the trial judge, who had accepted the guilty plea but who had not yet imposed sentence, sua sponte directed that the plea be withdrawn. The trial court directed the withdrawal of the plea because the pre-sentence report, subsequently received by the court, "disclose[s] a disparity between the circumstances presented to the [trial court at the plea hearing] and the physical facts of [the] case." Under the circumstances of this case, we conclude, for the reasons discussed below, that Section 110 did not bar appellant's prosecution on murder and conspiracy charges.

Appellant was convicted by a jury of murder in the second degree and criminal conspiracy. The evidence, viewed in the light most favorable to the Commonwealth, reveals the following circumstances underlying those charges. On December 6, 1990, appellant and his brother Edwardo traveled by bus from Lancaster to Marietta in Lancaster County to visit their sister Nancy. That night, appellant and Nancy left Nancy's apartment to walk to a local convenience store to purchase cigarettes. Before arriving at the store, however, they stopped at a local tavern, Stanley's Cafe ("Stanley's"). In Stanley's, they encountered their subsequent victim, Maurice Scott. Nancy sat at the bar next to Scott, with whom she was acquainted, and engaged in conversation with him. Appellant sat on the other side of Nancy. During the encounter, Scott purchased drinks for Nancy and appellant. Before Nancy and appellant left Stanley's, Nancy told Scott that they were on their way to the store to purchase milk for her baby. However, when Nancy and appellant left Stanley's, they immediately returned to Nancy's apartment.

After they returned, present at the apartment were Nancy, her three children, her two brothers, and two acquaintances, James Rice and James Adams. Nancy stated to those present that she was "getting over on" a man at Stanley's and that he would be coming to the apartment with a six-pack of beer. Approximately a half-hour later, Scott arrived at Nancy's house with a six-pack of Old Milwaukee beer he had purchased at Stanley's. Subsequently, Scott furnished more money for another six-pack, and appellant, his brother, Edwardo, and Rice left to purchase the beer. After they returned and the second six-pack was finished, appellant and Nancy tried to coax Scott into giving them money for more beer, but he refused.

Eventually, Scott, who was sitting on the couch, began to doze. The three Rosarios, Nancy, Edwardo, and appellant, then started speaking to each other in Spanish. After the Rosarios had an extended conversation, Nancy told Rice and Adams to go into one of the bedrooms for a few minutes. When they complied, one of the Rosarios closed the door between the bedroom and the living room. Adams and Rice then heard thumping noises coming from the living room. At one point, the door opened and Rice observed Nancy hitting Scott on the head with a large plastic container. Either appellant or his brother pulled the door closed. After a few minutes, appellant entered the bedroom and said, "I never did anything like this before." When Adams asked him to clarify his statement, appellant went back into the living room. Edwardo then entered the bedroom and stated that Nancy was stabbing Scott. Adams looked through the doorway and observed Nancy repeatedly stabbing Scott in the chest area. Edwardo went back into the living room, and both he and appellant stood near Nancy.

Adams and Rice ran out the back door of the apartment, walked down the street, and hid in an alley. Shortly thereafter, Adams observed Scott's automobile being driven away from behind Nancy's apartment building. The next morning, one of Scott's friends discovered Scott's car in an alley near Stanley's. When he looked inside, he saw Scott's body in a prone position on the front seat of the car.

That afternoon, Corporal Raymond E. Solt of the Pennsylvania State Police, in the course of his investigation into Scott's death, encountered appellant, Edwardo, Nancy, and Nancy's neighbor outside Nancy's apartment building. Corporal Solt asked appellant and his brother to accompany him to an area where other officers and investigators had gathered. At that location, Trooper Joseph Joy asked appellant and his brother if they would accompany him to the police station to be interviewed, and they agreed. Appellant and his brother accompanied Trooper Joy and a Marietta police officer to the Marietta police station, where appellant was interviewed by Trooper Joy and Edwardo was interviewed by Trooper Donald Snyder.

During his interview, appellant told Trooper Joy that his sister, Nancy, had introduced him to an older gentleman at Stanley's the previous night. He stated that he did not remember the man's name and that he did not see the man again after he and his sister left the bar. He told Trooper Joy that after leaving the bar, he returned with Nancy to her apartment, where he remained the rest of the night. He stated that he learned of Scott's death the following morning.

At one point, Trooper Joy left the room and spoke with Trooper Snyder. According to Trooper Snyder, Edwardo claimed that other persons were present in Nancy's apartment when Nancy and appellant returned from Stanley's. When Trooper Joy told appellant about that information, which contradicted appellant's prior statements, appellant said that he had forgotten that there were two other men in the apartment. He told Trooper Joy that those two men left Nancy's apartment prior to the time he and Nancy left to go to the store.

Subsequently, Trooper Joy again left the room and spoke with other investigators. When he returned, he told appellant that those investigators had located people who claimed that Scott was present at Nancy's apartment during the time period that appellant and his brother were there. Appellant denied being present at the apartment when Scott was there. He opined, however, that perhaps something had happened while he was sleeping. Trooper Joy advised appellant of the criminal nature of withholding information and obstructing an investigation, and appellant continued denying that he was present at the apartment when Scott was there. When appellant informed Trooper Joy that he intended to leave the police station, Trooper Joy placed him under arrest for hindering apprehension or prosecution. Appellant was released approximately an hour later, without being charged with hindering apprehension or prosecution, after Trooper Joy engaged in a discussion with an unidentified person from the District Attorney's Office. The substance of that discussion is not disclosed in the record.

Later that night, for reasons also not disclosed by the record, appellant arrived at the home of Brenda Warren in Lancaster. Trooper Snyder and Trooper Kevin Dykes were present at Ms. Warren's home. Trooper Dykes had been requested to go to that residence for the purpose of conducting an interview. The record does not reveal the identity of the person who made that request or the identity of the person to be interviewed. However, appellant was transported to the state police barracks where he was questioned again about the events surrounding Scott's death until the early morning hours of December 8. While at the police barracks, appellant admitted to Trooper Dykes that he had not been truthful with Trooper Joy. Appellant told Trooper Dykes that, contrary to his earlier statement, he had been at Nancy's apartment with Scott on the night of the murder. He stated that after everyone drank beer and talked for a few minutes, Nancy asked Rice and Adams to accompany her into the bedroom. Appellant stated that he remained in the living room with his brother and Scott. He then stated that Nancy, Rice, and Adams returned from the bedroom, and that one of them had turned up the volume on the stereo in the bedroom. Appellant told Trooper Dykes that he went into the bedroom to turn down the volume, and that when he returned from the bedroom, he observed Nancy stabbing Scott in the chest. He stated that she stabbed Scott several times in the chest and cut his throat. Appellant also told Trooper Dykes that when the victim reached back to grab Nancy's arm, Edwardo grabbed the victim's arm. He admitted that he helped Edwardo remove Scott's body from the apartment and that he drove Scott's car, with the body inside, down an alley. He further admitted that he cleaned Scott's blood from the couch.

The same day that appellant gave the above statement to Trooper Dykes, Trooper Snyder filed a criminal complaint charging appellant with criminal homicide and conspiracy. On March 12, 1991, the District Attorney's Office filed an information charging appellant with the same crimes. Subsequently, however, appellant entered into a negotiated plea agreement with the Commonwealth in which he agreed to plead guilty to a charge of hindering apprehension or prosecution in exchange for the Commonwealth's agreement to nol pros the homicide and conspiracy charges. In that regard, the parties appeared before the Honorable Michael J. Perezous on May 13, 1991. Because hindering apprehension or prosecution had not been included as a charge in...

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