J-S53006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
               v.                        :
                                         :
                                         :
 WALDEMAR ROSARIO                        :
                                         :
                    Appellant            :   No. 2178 EDA 2018

        Appeal from the Judgment of Sentence Entered June 28, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0131601-1992


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                      FILED NOVEMBER 13, 2019

      Appellant, Waldemar Rosario, appeals pro se from the judgment of

sentence entered on June 28, 2018. We affirm.

      In 1991, when Appellant was 17 years old, Appellant robbed Jeffrey

Raum and, during the course of the robbery, stabbed Raum in the leg.

Appellant severed Raum’s femoral artery and caused Raum to bleed to death.

A jury found Appellant guilty of second-degree murder, criminal conspiracy,

robbery, and possessing instruments of crime (“PIC”). On September 9, 1993,

the trial court sentenced Appellant to serve the then-mandatory term of life

in prison, without the possibility of parole, for the murder conviction and

concurrent terms of two to five years in prison for the conspiracy and PIC

convictions.

      Following the nunc pro tunc restoration of Appellant’s direct appellate

rights, we affirmed Appellant’s judgment of sentence in 1999 and, in 2000,
J-S53006-19



the Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal.     Commonwealth v. Rosario, 745 A.2d 46 (Pa. Super. 1999)

(unpublished memorandum) at 1-2, appeal denied, 751 A.2d 189 (Pa. 2000).

       On September 7, 2000, Appellant filed his first PCRA petition. The PCRA

court denied Appellant post-conviction collateral relief on December 4, 2003

and,   on   October   12,   2004,   we   affirmed   the    PCRA    court’s   order.

Commonwealth v. Rosario, 864 A.2d 583 (Pa. Super. 2004) (unpublished

memorandum) at 1-12, appeal denied, 877 A.2d 461 (Pa. 2005).

       Appellant filed his second PCRA petition on January 7, 2010. The PCRA

court dismissed this petition on January 11, 2010 and we affirmed the PCRA

court’s order on May 23, 2011. Commonwealth v. Rosario, 30 A.3d 544

(Pa. Super. 2011) (unpublished memorandum) at 1-5.

       On July 27, 2012, Appellant filed a third PCRA petition, where he sought

relief from his judgment of sentence pursuant to the United States Supreme

Court’s opinion in Miller v. Alabama and its holding that “the Eighth

Amendment forbids a sentencing scheme that mandates life in prison without

possibility of parole for juvenile offenders.” 567 U.S. 460, 479 (2012). See

Appellant’s Third PCRA Petition, 7/27/12, at 1.           Appellant then filed an

amended PCRA petition on March 16, 2016 and claimed entitlement to relief

under Montgomery v. Louisiana, where the United States Supreme Court

held that “Miller announced a substantive rule of constitutional law” that was

retroactive to cases on state collateral review. ___ U.S. ___, 136 S.Ct. 718,

734 (2016). Appellant was granted PCRA relief in the form of resentencing.

                                     -2-
J-S53006-19



      On June 28, 2018, the trial court vacated Appellant’s sentence of life

imprisonment without the possibility of parole and resentenced Appellant to

serve an aggregate term of 25½ years to life in prison. N.T. Resentencing,

6/28/18, at 24. Appellant filed a timely notice of appeal. Notice of Appeal,

7/11/18, at 1.

      While the appeal was pending, Appellant filed a request to proceed pro

se. We remanded the matter to the trial court, so that the trial court could

determine whether Appellant knowingly, intelligently, and voluntarily waived

his right to counsel on appeal. Order, 11/3/18, at 1. Following a hearing, the

trial court granted Appellant’s request to proceed pro se. Appellant now raises

six claims to this Court:

        [1.] Whether the Common Pleas Court was the competent
        court given the subject matter jurisdiction to immediately
        release Appellant on June 28th 2018 due to the fact that no
        Written Order or Final Order was entered in the docket by the
        Clerk of Court validating the September 9, 1993 Second
        Degree Life Sentence pursuant to 18 Pa.C.S. §1102(b)?

        [2.] Whether the lawful decision to make by the Common
        Pleas Court, the District Attorney of Philadelphia County and
        the previously assigned Defender Association attorney's upon
        realizing there was no Written Sentencing Order from
        September 9th, 1993 should have been to immediately
        release Appellant without any further penalty?

        [3.] Whether the Re-sentencing Court in the June 28, 2018
        Juvenile resentencing hearing should have halted the
        proceedings once the A.D.A. made a claim that Appellant
        rejected a Third Degree Offer in 1992 of 14 to 28 simply to
        verify the probable bold assertion by the A.D.A. that
        Appellant actually denied such an offer?



                                     -3-
J-S53006-19


        [4.] Whether the Court during the re-sentencing had an audio
        recording of the entire proceeding to determine if counsel for
        the Commonwealth made mention on the record that
        Appellant was offered 14 to 28 years on a Third Degree offer
        made in 1992, and will the court provide the Superior Court
        said audio recording and permit Appellant a copy free of
        charge?

        [5.] Whether a Written Court Order exist with statutory
        authority validating the June 28, 2018 25½ to Life on Parole
        sentence; b) Whether the Re-sentencing Court legislated
        from the bench by giving the Board of Probation and Parole
        authority knowing legislation has not moved since the Miller
        v. Alabama or, Montgomery v. Louisiana U.S. Supreme
        Court decisions to amend the Parole Powers Statute where
        only through the executive grace of the governor can
        Appellant be supervised on Parole, and; c) Whether re-
        sentencing court abused its unfettered discretion by
        misunderstanding and misapplying a mere suggestion made
        by the justices in the Batts II decision to use the new
        sentencing juvenile statute as a guide and gave Appellant an
        illegal sentence?

        [6.] Whether the Common Pleas Court, the District Attorney's
        Office,   the    Department     of   Corrections    and   the
        Commonwealth's Board of Probation and Parole are currently
        operating in violation of either of the following statues, 18
        U.S.C.S. §§§ 1962, 1341 and 1951, beginning with the
        September 9th, 1993 sentence of Appellant to Life pursuant
        to a statute that merely defines (18 Pa.C.S. §2502 (b)) what
        Second Degree Murder is and does not carry a penalty?

Appellant’s Brief at 3-4.

      We have reviewed the briefs of the parties, the relevant law, the certified

record, the notes of testimony, and the opinion of the able trial court judge,

the Honorable Jeffrey P. Minehart. We conclude that Appellant is not entitled

to relief in this case and that Judge Minehart’s December 11, 2018 opinion

meticulously and accurately disposes of Appellant’s issues on appeal.



                                      -4-
J-S53006-19



Therefore, we affirm on the basis of Judge Minehart’s thorough opinion and

adopt it as our own. In any future filing with this or any other court addressing

this ruling, the filing party shall attach a copy of Judge Minehart’s December

11, 2018 opinion.

      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2019




                                      -5-
                                                                                            Circulated 10/18/2019 03:20 PM

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                                                                                                     f u, El).
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                   ·.N
..
f
                         THE COURT OF CO�ON"PLEAS;OF',PHiLADELPHIA CO�NTY.
                              FIRST JUDICIAL DISTRICT OF PENNSYLVANIA .
                                .     CRIMINAL.TRIAL DIVISION           2B.J80EC                          lJ     PM 2.; 53

           CQMMONWEJ\LJ'H OF.PENNSYLVANIA
                                                                 ..

                          vs.                                          CRJMINAL TRIA.L DIVISION

                                                                       CP-51.;CR-01316()1 .. 1992

                WALDEMAR ROSARIO                                ...


                                                          OPINION
                                                                            111/IIIIHIIHll ii
                                                                                  �i.00799481

          ,PROCEDURAL HISTORY

                  Appellant, Waldemar Rosario, appealed from the judgment of sentence imposed by this

           Court on �une 28, 2018, of twenty-five and one-half years to life imprisonment following the

           striking <:>f 'his original sentence of life imprisonment without the possibility of parole ..

           Appellant, who was seventeen years' old when originally charged) was convicted on December

           10, 1992, of second-degree murder, criminal conspiracy, and possessing instruments of crime,

           generally, following a jury trial.before the Honorable \Villi� J. Mazzola and was sentenced on

           September 9, 1993, to. life imprisonment on the murder conviction and two to five years'

           incarceration on the .otlier convictions. "These convictions arose out of an incident that occurred

           on December 28, 1991, during which appellant stabbed Jeffrey R. in bis leg during a robbery and

           severed his femoral. artery, Which caused him to bleed to death. Following his arrest; appellant

           gave a.statement.topolice wherein he admitted that he stabbed the victim.




                                                            1



·-. ·-··· · --. -·-·---··-. ·-·-----··-·--··-----. -=----·---
       Following sentencing: appellant
                         •.   .
                                       fil��.a notice of� appeal,
                                                           .   .
                                                                  .which was deniedin
                                                                                   .
                                                                                   ,
                                                                                      1999. by. .the.

Superior Court. Commonwealth v. Rosru.-io,. 745. A.2d 46 (Pa. Super. 1999) (unpublished
memorandum), after which the Pennsylvania Supreme Court denied his petition for allowance of

appeal. Commonwealth    v. Rosario, 751 A'.2d 189 (Pa: 2000) (Table); Appellantthereaftertwice
unsuccessfully sought.relief
                  . - .     . pursuant tothe Post-Conviction Relief
                                                               .
                                                                    Act (hereinafter
                                                                          .          .
                                                                                       PCRA), 42



       On July 27,. 2012, appellantfiled another prose PCRA petitionwherein he asserted that

he was entitled to have. his life sentence. vacated pursuant to Miller v; Alabama; S.61 U.S. 460

(2012), which held· that sentences. of life imprisonment without parole· imposed on juveniles less
than eighteen years of age· at the time they committed th� crime upon· which the life sentence was

imposed was unconstitutional. In accordance with the decision.in Montgomery v. touisian� 136

S.Ct 718.(2016), wherein the United States Supreme Cour; held that its ruling in Miller applied

retroactively to matter on collateral review, on June 28, 2018, this Court granted appellant's

petition and vacated the sentences, including. the Iife sentence.ipreviously imposed upon him on

September 9, 1993. After vacating the originally imposed sentences, this Court imposed the

above-referenced sentence of twenty-five and one-halfto life.imprisonment on the second degree.

murder conviction and verdicts without further penalty on the other convictions.

       Following the imposition of sentence; appellant filed a timely prose.notice ofappeal. He

thereafter petitioned to proceed on appeal prose. On November 27, 2018, this Court conducted.a

hearing .in accordance with Commonwealth        v..   Grazier, 7l3 A:2d 81 (Pa. 1998), and at its

conclusion; this Court issued an order permitting appellant to represent himself on appeal from

the judgment of sentence imposed by this Court Appellant thereafter filed a court-ordered

Pa.R.A.P l925(b)Statement of Matters Complained of on Appeal,


                                                 2
                      In the first issue in his 1925(b) statement; appellant claims that this Court lacked sµbj�ct

            matter jurisdiction
                            .
                                to resentence him because the Clerk of Court did .. not enter a written or final
                                                                                             ;.




            orderrvalidating the September 9; I Q93, 'Second Degree Life Sentenc� pursuant to -18. P�.C.S. §
                                                 ·� .
            · I 102(b)." Appellant's l925(b) 'statement, Issue r, Relief i�      riot required to be granted on this
             claim.
                      Although not well articulated by appellant, it appears to this-Court that· what appellant is

             complaining about is the failure to file a sentencing order after appellant was originally

             sentenced with the Department· of Corrections. It is respectfully suggested that relief be denied

             with respect to this claim.

                      Subject matter jurisdiction relates to the power of a court to adjudicate the type of

             controversy presented and is a. matter of substantive law, Commonwealth
                                                                           .         v. Bethea,
                                                                                           .    828 A.2d

             1066, 1074 (P�. 2003), cert. denied, 540 U.S; 1118, 124. K Ct l065� l57 L Eel. 2d.. 911 (2004),

             Appellant's argument that the absence of a written sentencing order entitles. him to relief does

             not involve subjec� matter jurisdiction but rather the .failure     to   comply with a statutory filing·

             requirement. A similar claim involving the failure to file a sentencing form.was considered and

             rejected by the Superior Court in Joseph v. Glunt, 96 A.3d 365 (Pa. Super; 2014). In Joseph� the

             Superior Court held that. both the criminal docket and the transcript of the sentencing hearing are

             sufficient to confirm the imposition and. legitimacy of the prisoner's sentence, notwithstanding

             tlieinability to produce a written sentencing .order, Id. at 3 72 .. The Court stated;

                               [C]ouits confronting this issue in the pasthave.deemed a .. record
                             of the valid imposition of El sentence as sufficient, authority to
                             maintain a prisoner's detention notwithstanding the absence of a
                             written sentencing order under 42 P�.C.S. §.9764(a)(8).

             Id. See also Commonwealth v. Dozier, 99A.3d i06, ...
             --.-                                              115 (Pa. Super. 2014).



                                                                 3



-----... -...·-··-·--- .. ·-·----
                · Instantly, the record in this case clearly demonstrates that on December 10 1992;
                                             ..
 appellant wasfound guilty of second degree murder an.:d other offenses and that on September 9i

 1993.f Judge Mazzola sentenced hiin, inter olta, to a term                   of life. imprisonment on the murder
 conviction. This sentence was Imposed pursuant to the statutory authority set forth                        at 18 Pa,C.S.
. .§ 1102(b)' �"A person who has been convicted of murder· of the second degree ... shall be

 sentenced to a term of life imprisonment."). Here, because Judge Mazzola. was a duly elected

judge authorized to sit in the Philadelphia County Court of Common Pleas and the charges

 lodged against appellant resulted from acts committed in Philadelphia County it is. clear that the
 Court had subject matter jurisdiction to try arid sentence appellant. The lack of a sentencing

 form does not affect either the court's jurisdiction or the legality of the sentence imposed on

 appellant because the conviction aIJ.d sentence are plainly confirmed by the docket and the

 certified record and        were   entered in accordance with          the law.      Accordingly, it is respectfully

 suggested that appellant be denied relief with respect to this claim.1
            "   Second, appellant argues .that this Court, his counsel, the Philadelphia Defenders'

 Association; and the Philadelphia District Attorney's Office should have moved for appellant's

 hnmedlete release upon, realizing that no sentencing order for the sentence imposed on

 September :9, · 1993; had been          file.d.   It is submitted that relief should be denied with respect to

 this claim · for the reasons discussed above, namely because appellant was convicted and

 sentenced by a duly elected judge for criminal acts· committed in Philadelphia County and

 because the lack of a sentencing order does not render a legally imposed sentence a legal nullity;

            In.IssuesJ and 4 appellant makes reference-to an alleged plea offer made to him by the·

 Commonwealth before he was tried and argues that when this alleged plea                           offer was referred to

 I   Parenthetically, a review of all of appeHailt's filings through the. yeaa:s lndicates Jhat he acknowledged that he had
 been duly 1.onvii;(e,d a.nd sel\tenc.ed because many dfhis filings.address his convictions anti sentencing.
. •.




       during the sentencing hearing, the hearing should have. been halted. · J-ie. also requests that this

       Court ascertain whether
                       ...
                               there is an·�udio
                                         .                  . the sentencinghearing �nd then.check it to
                                                 recording of

       see whether counsel fot the Corrtmonwealth'made reference to the alleged plea offer of fourteen

       to twenty-eight years' 'incarceratiori in exchange for appellant's guilt)' plea to the charge of third-

       degree murder,

              Appellant does not explain why the hearing should have been halted or set forth any issue

       Involving the alleged comment which would entitle him to f!!lief. He also did not raise it before

       this Court; For these reason alone? the claims should be determined not to present any issue

       upon which appellate relief could be granted. See Pa.R.A.P; 302 (claims not raised in the court

       below cannot be raised for the first time.on appeal),

              Nevertheless; this Court carefully reviewed the. transcript of the sentencing hearing and

       that review revealed that the only reference to a plea offer was made by appellant's .counsel,

       (N;T. 6/28/18, 8}. It is also noted that this Court is unaware        of the   existence of any audio

       recordings-of the sentencing hearing, Accordingly; for the reasons stated, no relief should be

       granted on appellant's third and fourth claims. ·

              Fifth, appellant argues essentially that there are no st41tutory provisions justifying either

       the sentence imposed upon him by this Court· or for. this Court:' s order directing the· Pennsylvania

       Board of Probation and Parole (hereinafter PBPP)        to supervise appellant's parole: Essentially;
       appellant is arguing that his sentence is illegal because the State Legislature has failed to enact

       any legislation pertaining to the sentences that rnay be imposed on juveniles resentenced in

       accordance with Miller and Montgomery,.supm, or any legislation giving the PBPP authorityto

       supervise resentenced juvenile. lifers. Appellant also argues that. this Court committed an abu��.

       of discretion. when h resentenced appellant by applying a suggestion by Justice Max Baer in a


                                                           5
cqncurring opinion His Honor. filed     in Commonwealth v. Batts, 66 A.3d 2.86 (Pa. 2013), that
judges resentencing juveniles whose life sentences· have been vacated consider the sentencing
                                                                                     ...
scheme
     .
       enacted. by the
                    :
                       Pennsylvania Legislature· for. juveniles
                                                        ..
                                                                who
                                                                  . are convicted of first and
second degree.murder
          .                           .· the effectiv�
                     after June 24, 201.2,           . date the.legislation
                                                              .             referred. to by. Justice
                                                                                              ..


Baer. See 18 Pa'.C.S. § 1102.l.

       Although appellant is correct that no specific sentencing laws have beeri enacted

regarding the re-sentencings of juveniles previously convicted of offenses mandating life
            ...          .                     .                          .                .
sentences, the Pennsylvania Supreme Court-held in Batts, supra, that.the lack of suchlegislation

did not divestthe courts of the ability to re-impose Sentences Oh formerjuvenile lifers and that

the sentencing provisions applicable to third degree murder convictions .did not apply to
                   .           I        .                      .                           •.      ..

juveniles. That ruling was affirmed four years later when the Batts case was again before the

. Supreme Court and the legislature had enacted   no leglslation .applicable _to Juveniles _previously
sentenced to Hfe in prison, Commonwealth V; Batts, 163 A3d 4] O; 445(2017).

       In Commonwealth v. Machicotc, 172 A.3d 595 (Pa. Sllpet,2017), appeal granted, 186

AJd 370 (Pa.2018) (Table), ·the defendant, � former juvenile lifer, raised a .claim challenging the

legality of his new sentence. on ground similar to those. raised by appellant herein. The Superior

Court rejected those claims, stating:

               Finally, and of note with respect to the current appeal, 04r
               Supreme - Court reaffirmed the· sentencing scheme applicable to
              juvenile· offenders for whom the ..sentencing court determines
               LWOP sentences are. 'inappropriate (i.e., imposition of a term-of-
              years to life sentence as discussed above) and specifically
              "instructjed] sentencing courts to. look to the mandatory iniriimurri
               sentences set forth in section 1102.l(a) for guidance in setting a
               minimum sentence for. a juvenile convicted of first-degree murder
               prior to Miller." Batts II, 163 A.3d at 44j n.17.

               In creating the aforementioned sentencing scheme, the . Court
               expressly rejected the claim. of Batts .and his amict, which




                                                                                                         ·----·--
                     Appellant herein now · ar�es, that there. . is . no legislatively
                     authorized.sentence for juveniles convicted of firsi.,.degree .murder
                     prior· to .2012. Id. at 436-4.1. · T4e Court .also rejected Batts'
                     contentions tl:tat.the· forty -year maximum petjal(y' for third-degree
                     murder 'is the only legal· alternative and. that severance · of the
                     statute is impossible. Id. at 442-48. Importantly, die Court held,
                     inter alia, that a trial court, in resentencing a juvenile offender
                     convicted prior to Miller, was constitutionally permitted to impose
                     a minimum term-of-years sentence and ..a meximum sentence of
                     Iife. imprisonment, thus "exposing these "defendants ·10 parole
                     eligibility .upon the expiration of their minimum sentences" .. Batts
                     II� J63 A.3d at 19. We are bound by our Supreme Court's decision.
Machicote. 172 A.3d           at   601 .:602 (footnote omitted). See also Commonwealth. v. Melvin, 172

A.3d 14 (Pa. Super, 2017) (holding that.atrial court is permitted to impose a sentence composed

ofa term of year$ 8$.. the minimum sentence and life-imprisonment as the maximum sentence

pursuant to· the Supreme
. .              ..      Court's Batts.' decisions). The
                                                      ... Machicote Court.
                                                                       .   further
                                                                               .   noted
                                                                                      .. that
                                                                                            .


although Batts. concerned a. conviction for first-degree murder, the rationale employed therein

applied to juveniles convicted of second-degree murder. Machicote. 172 A3d at 601, nt, 2.

            Based on the foregoing; it is clear that to the extent that appellant is arguing that his

sentence is illegal because of the lack of statutory support for it, the claim lacks merit and

should be rejected on appeal.

             Next. appellant'sclaim that the.Boardof Probation and Parole does nothave jurisdiction

to supervise· him because of the lack of statutory authority entitling it to do so also lacks merit.

In Commonwealth v.. Batts, 163 A.Jct 410 (Pa, 2017), the Pennsylvania Supreme Court opined

that certain language in sections of .61 Pa.C;S .. § 6137(a)(lY2 and 42 Pa:C;S; § 9756(b)(l) could

 be severed pursuant to I Pa.C.S.A .. § 1925, thereby allowing a juvenile convicted of murder

 before June .25, 20l2, to receive a minimum sentence that is less than the mandatory term of life

 imprisonment. Batts, 163 A.3d at 441-42;                      The 'effect of this decision. was to effectively


 2    This section denies parole to defendants sentenced   to fife imprisonment.
                                                                1


                                      ·--------------------···-··-··-·----
...


      empower the PBPP to supervise fortner juvenile lifers after they were sentenced to serve a
      sentence composed of a term of years AAd are granted .parole.

               The .law Is clear .that an individual whose maximum ·senten?e ·is greater '.thart two. years

      falls within the jurisdiction and authority of the Parole Board; Reese V; J6hnson, 774 A2d l255j

      1259 (Pa. Super. 2001). "For prisoners whose maximum sentence is two years or more, the

      Board has exclusive power 'to parole and reparole, commit.         and   recommit for violations of

      parole, .and to discharge from parole ... .' Reese; 774 A.2d at 1259. See also 61 .Pa.CS. § 6132

      (granting exclusive parole power of state.inmates .sentenced to. serve minimum sentences of two;

      years   or greater to the State Parole Board): Consequently, it is suggested that appellantbe.denied
      relief with respect to this claim,

               Finally, appellant's assertion that.this Court relied upon Justice Baer's suggestion when it

      decided upon his sentence entitles him. to no relief because appellant did not             raise   this

      discretionary claim previously either during the sentencing hearing OJ.' in a post-sentence motion.

      Thus, any challenge    to the discretionary aspects of his sentence should be deemed waived. See
      Machicote� 172 A.3d at 602 (holding: that a discretionary aspect of sentencing claim must be

      raised befor� the sentencing court to be preserved· for appellate review).

               Even had appellant preserved this claim, itstill would be the opinion ofthis Court that

      appellantis not entitled to relief on this claim-because this Court did not consider Judge Baer's

      suggestion in deciding on appellant's sentence. Had the Court done 'so it would have imposed a
      minimum sentence of at least thirty years' incarceration as suggested by .18 Pa.C.S. §

      1102. l(c)(l ) .. Instead the. Court imposed a sentence that was four and one-half years shorter than

      the suggested sentence. Thus, clearly even had appellant preserved this claim he still would not

      have been entitled.to any relief.



                                                         8
..
                                                               .   .

            In his sixth ·iu)� final issu�   a�p¢ilant' cites; several federal   statutes and .claims that' the

     Pennsytva:nia Co.urts of Common Ple�, · the District A�orney's .Office, the Pennsylvania

     Department of Corrections, and the PBPP are in violation of themcommencing.on September 91
                                      .
     1993.; the   clay. he was . originally
                        .. .
                                  ,  . .       .    . because. rs Pa.C.S.
                                            sentenced              ·:.
                                                                           § . .2SOi(b). does' not set forth
                                                                          ··, . .                          . a
     penelty: This Court takes.no position on �ppellant's claim that.the above named entitles 81'.e in

     viofatipn of the federal statutes cited by appellant. Nevertheless, although section 2502(b) does
     not setforth a penalty, 18 Pa.C.S. § 1102 does currently and. did when appellant
                                                                               .      was
                                                                                      �   sentenced.

     for someone convicted of second-degree murder. Consequently, it,is suggested that appellant be

     denied relief with respect to this claim.

     CONCLUSION

            For the foregoing reasons,. defendant's assertions of error sdould be dismissed. for lack of

     • merit and the judgment of sentence entered.in this matter should be affirmed.




                                                          9
