Commonwealth v. Rosario

• Citation: 248 A.3d 599
• Decision Date: 23 March 2021
• Docket Number: No. 1700 WDA 2019,1700 WDA 2019
• Parties: COMMONWEALTH of Pennsylvania v. Keith Anthony ROSARIO, Appellant
• Court: Superior Court of Pennsylvania

248 A.3d 599

COMMONWEALTH of Pennsylvania

v.Keith Anthony ROSARIO, Appellant

No. 1700 WDA 2019

Superior Court of Pennsylvania.

Submitted December 1, 2020

Filed: March 23, 2021

John E. Egers, Jr., Washington, for appellant.

John P. Friedmann, Assistant District Attorney, for Commonwealth, appellee.

BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.

OPINION BY MURRAY, J.:

Keith Anthony Rosario (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of one count of attempted homicide, two counts of aggravated assault, two counts of kidnapping, and one count of conspiracy to commit criminal homicide, aggravated assault, and kidnapping.¹

FACTUAL AND PROCEDURAL HISTORY

In the first ten pages of its Pa.R.A.P. 1925(a) opinion, the trial court recounted the procedural history of this case, accurately observing that it "is quite lengthy and complex." Trial Court Opinion, 2/24/20, at 2 n.2. The trial court also detailed the evidence presented at Appellant's four-day jury trial.² See id. at 10-24. The evidence at trial expanded on the factual recitation in the affidavit of probable cause, which states:

On 09/05/17 at approximately 2233 hours, PSP was dispatched to the listed location for a report of a gunshot and a male screaming for help. Upon the arrival of PSP units contact was made with Marcus STANCIK. STANCIK related that he had been shot in the head by a male known to him by the nickname of "Sin." Tpr. WEBB who was familiar with "Sin" asked do you mean ROSARIO to which STANCIK replied, yes, Keith ROSARIO. STANCIK was treated at the scene for an injury to his neck and was subsequently transported to Allegheny General Hospital (AGH). At AGH STANCIK was diagnosed with a gunshot wound to the neck at the base of the skull and a bullet was found to be present in his neck upon xray.

[The Affiant] interviewed STANCIK at AGH and STANCIK related he had known "Sin" for about a week. "Sin" lived on Ewing Street near Grove Street. STANCIK stayed at "Sin's" for several nights. "Sin" was described as a 27 year old Puerto Rican from New York. STANCIK was walking along Rt 40 when he was approached by a vehicle in which a male exited and requested STANCIK get in. STANCIK refused and the vehicle left. About 15 minutes later STANCIK was walking in an alley off of Rt 40 when "Sin" and two other individuals stopped a vehicle near him. Sin and another male exited the vehicle, STANCIK was assaulted and then thrown in the vehicle. STANCIK was placed in the back of the vehicle between Sin and another male. Then they drove STANCIK to another location and "Sin" removed STANCIK from the vehicle and shot him in the back of the head.

Affidavit of Probable Cause, 9/6/17.

In a criminal complaint filed on September 6, 2017, the Commonwealth charged Appellant with attempted murder, alleging, "[Appellant] did intentionally attempt to cause the death of another human being by ... shooting Marcus Stancik in the neck ..." Criminal Complaint, 9/6/17, at 2. It also charged him with two counts of aggravated assault, stating Appellant "did attempt to cause or did intentionally, knowingly or recklessly cause serious bodily injury to Marcus Stancik under circumstances manifesting an extreme indifference to the value of human life ... by shooting him with a firearm ..." and "[Appellant] did attempt to cause or did intentionally or knowingly cause bodily injury to Marcus Stancik with a deadly weapon ... [Appellant] did use a firearm to shoot Stancik in the neck ..." Id. at 2, 4. The Commonwealth also charged Appellant with conspiracy to commit aggravated assault based on Appellant shooting Stancik in the neck with a firearm. Id. at 3.

The Commonwealth filed a criminal information on November 9, 2017. It stated in pertinent part:

COUNT 1: Criminal Attempt - Homicide

18 Pa.C.S. § 901(a) - 18 Pa.C.S. § 2501(a) - Felony 1st DEGREE The Actor, with the intent to commit the crime of criminal homicide, in violation of Section 2501 of the Pennsylvania Crimes Code, did an act or acts that constituted a substantial step toward the commission of that crime, that is, the Actor, acting alone and/or with others, did intentionally shoot MARCUS STANCIK in the neck, and/or head with a firearm, in violation of Section 901(a) of the Pennsylvania Crimes Code, Act of December 6,1972:, 18 Pa.C.S, § 901(a), as amended.

COUNT 2: Aggravated Assault

18 Pa.C.S. § 2702(a)(1) - Felony 1st DEGREE

The Actor did attempt to cause serious bodily injury to another, or caused such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life, that is, the Actor, acting alone and/or with others, did shoot MARCUS STANCIK in the neck and/or head with a firearm intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life, in violation of Section 2702(a)(1) of the Pennsylvania: Crime Code, Act of December 6, 1972, 18 Pa. C.S. § 2702(a)(1), as amended.

COUNT 3: Aggravated Assault

18 Pa.C.S. § 2702(a)(4) - Felony 2nd DEGREE

The Actor attempted to cause or intentionally, knowingly or recklessly caused bodily injury to another with a deadly weapon, that is, the Actor, acting alone and/or with others, did shoot MARCUS STANCIK in the neck and/or head with a firearm, in violation of Section 2702(a)(4) of the Pennsylvania Crimes Code, Act of December 6,1972, 18 Pa.C.S. § 2702(a)(4), as amended.

* * *

COUNT 6: Criminal Conspiracy

18 Pa.C.S, § 903(a)(1) - Felony 1st DEGREE

The Actor, With the intent of promoting or facilitating the crimes of criminal homicide and/or aggravated assault and/or kidnapping, in violation of Sections 2501 and/or 2702 and/or 2901 of the Pennsylvania Crimes Code, agreed with another person or persons, namely, RICHARD LACKS, that they or one or more of them would engage in conduct which constitutes the crime of criminal homicide and/or aggravated assault and/or kidnapping, and the Actor committed an overt act or acts in furtherance thereof, in violation of Section 903 of the Pennsylvania Crimes Code, Act of December 6, 1972, 18 Pa.C.S. § 903, as amended.

Criminal Information, 11/9/17, at unnumbered pages 1-2.

A jury trial commenced on February 4, 2019. The jury convicted Appellant on February 7, 2019. The verdict sheet read with respect to the charge of criminal conspiracy, which was count 6:

If you find the defendant guilty at Count 6 [which the jury did] please indicate whether the following crimes were proven beyond a reasonable doubt as the objective of the conspiracy:

a) Criminal Homicide	Agree	Disagree
b) Aggravated Assault	Agree	Disagree
c) Kidnapping	Agree	Disagree

Verdict, 2/7/19. The jury circled agree on all three crimes. Id.

On June 3, 2019, the trial court sentenced Appellant to an aggregate 35½ to 90 years of incarceration. Appellant filed post-sentence motions which were denied by operation of law on October 17, 2019. Appellant filed this timely appeal; both he and the trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.

Notably, the trial court entered an order correcting Appellant's sentence on February 18, 2020, "to reflect that, at Count 6, [Appellant] was sentenced on the Charge of Conspiracy to Commit Aggravated Assault . All other terms and conditions of the Judgment of Sentence shall remain in effect." Order, 2/18/20 (bold in original). Citing both the record and legal authority, the court stated:

because the typographical error made by the court reporter is patent and obvious, this Court retains the power to correct it although the 30-day period has expired.

Order, 2/18/20.

The record, particularly the transcript from the sentencing hearing, confirms the court only sentenced Appellant for conspiracy to commit aggravated assault, rather than conspiracy to commit homicide, aggravated assault, and kidnapping. See , e.g. , N.T., 6/3/19, at 27. We have explained:

"Trial courts have the power to alter or modify a criminal sentence within thirty days after entry, if no appeal is taken." Commonwealth v. Quinlan , 433 Pa.Super. 111, 639 A.2d 1235, 1238 (1994), appeal dismissed as improvidently granted , 544 Pa. 183, 675 A.2d 711 (1996). See also 42 Pa.C.S.A. § 5505 (stating except as otherwise provided or prescribed by law, court upon notice to parties may modify or rescind any order within 30 days after its entry, notwithstanding prior termination of any term of court, if no appeal from such order has been taken or allowed). Nevertheless, once the thirty-day period expires, the trial court usually loses the power to alter its orders. An exception to this general rule exists to correct "clear clerical errors." ...

"[A]n alleged error must qualify as a clear clerical error (or a patent and obvious mistake) in order to be amenable to correction." Commonwealth v. Borrin , 12 A.3d 466, 473 (Pa. Super. 2011) (en banc ), aff'd , 622 Pa. 422, 80 A.3d 1219 (2013).

This Court's case law has addressed the situations where ... the terms of a defendant's sentence as stated at the sentencing hearing conflict (or are deemed incompatible) with the terms of the defendant's sentence as stated in the sentencing order.

In these circumstances, for a trial court to exercise its inherent authority and enter an order correcting a defendant's written sentence to conform with the terms of the sentencing hearing, the trial court's intention to impose a certain sentence must be obvious on the face of the sentencing transcript. ... Stated differently, only when a trial court's intentions are clearly and unambiguously declared during the sentencing hearing can there be a "clear clerical error" on the face of the record, and the [signed] sentencing order subject to later correction.

Commonwealth v. Kremer , 206 A.3d 543, 547–48 (Pa. Super. 2019) (some case citations modified or omitted).

Here, the record reflects the clerical error involving the wording of the court's sentence at Count 6, which had no impact on the mathematical calculation of Appellant's 35½ – 90 year...