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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM ANTONIO MARRERO- :
RODRIGUEZ :
: No. 1066 MDA 2019
Appellant :
Appeal from the Judgment of Sentence Entered February 19, 2019
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0005481-2017
BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED: APRIL 13, 2020
Appellant, William Antonio Marrero-Rodriguez, appeals from the
judgment of sentence entered on February 19, 2019, in the Court of Common
Pleas of Berks County. We affirm in part and reverse and remand in part.
The trial court summarized the factual history of this case as follows:
On June 11, 2019, Angel Melendez (aka Gordo) borrowed a
dirt bike from [Appellant] and was involved in an accident. Angel
Melendez refused to pay to repair or replace the dirt bike. On
June 14, 2019, [Appellant] arrive[d] in Glenside to discuss
payment for the damage to his dirt bike. He spoke with Luis
Salame. Angel Hernandez was present and again indicate[d] that
he [would] not pay, slap[ped Appellant] and kick[ed Appellant’s]
car. [Appellant] left and returned with members of his family.
[Appellant’s] father, Antonio Marrero-Cruz[,] subsequently
arrived and argued with Luis Salame. Both men pointed guns at
each other. Jonathan Salame subsequently arrived and there was
a struggle over the guns on the ground. Luis Salame’s weapon
discharged during the incident injuring all three men. Antonio
Marrero-Cruz then fired his firearm, hitting Jorge Salame in the
side of his back. This injury led to hospitalization and
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complications. Jorge Salame’s prognosis is that he will be in a
wheelchair for the rest of his life as a result of the incident.
[Appellant] was present at the scene and discharged his weapon
three times. He did not hit anyone. He was precluded from having
a weapon because of a qualifying prior conviction and was not
licensed to carry a weapon in a vehicle or concealed on his person.
Trial Court Opinion, 9/9/19, at 2.
The trial court summarized the procedural history as follows:
Following a jury trial, [Appellant] was convicted of one count
of Possession of a Firearm Prohibited1, one count of Firearms
without a license2, one count of Possession of Instruments of
Crime,3 two counts of Simple Assault4, one count of Conspiracy to
Simple Assault,5 one count of Recklessly Endangering Another
Person6 and one count of Conspiracy (Recklessly Endangering
Another Person)7. On February 19, 2019, [Appellant] was
sentenced to an aggregate sentence of five (5) to ten (10) years
in the Department of Corrections followed by seven years of
probation.
On February 28, 2019, [Appellant] filed a Post-Sentence
Motion. The Commonwealth filed a Motion to Amend Restitution
on March 18, 2019. A hearing on both motions was held on April
4, 2019. [Appellant’s] Post Sentence Motion was denied and the
Commonwealth’s Motion to Amend Restitution was granted on
June [6], 2019. On July 1, 2019, [Appellant] filed a timely notice
of appeal. On July 23, 2019, counsel was ordered to file a 1925(b)
Statement. On August 12, 2019, [Appellant] filed his Concise
Statement of Errors Complained of on Appeal[.]
1 Count 5 18 Pa.C.S.A. §6105(a)(1)
2 Count 6 18 Pa.C.S.A. §6106(a)(1)
3 Count 7 18 Pa.C.S.A. §907(a)
4 Count 8 and Count 10 18 Pa.C.S.A. §2701(a)(1) and
(a)(2)
5 Count 9 18 Pa.C.S.A. §903
6 Count 12 18 Pa.C.S.A. §2705
7 Count 13 18 Pa.C.S.A. §903
Trial Court Opinion, 9/9/19, at 1-2.
Appellant presents the following issues for our review:
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1. Whether the trial court reversibly erred/abused its discretion
in excluding from trial a certified copy of a criminal complaint of
Erick Marrero-Rodriguez, which error/abuse did result in unfair
prejudice against [A]ppellant at trial?
2. Whether the trial court erred in granting the
Commonwealth’s post sentence motion to amend restitution
where there was not a legally sufficient nexus between
[Appellant’s] conduct and [injuries] suffered by the victim?
Appellant’s Brief at 7.
In his first issue, Appellant argues that the trial court erred in excluding
from trial a certified copy of a criminal complaint filed against Appellant’s
brother, Erick Marrero-Rodriguez, who was arrested for illegal possession of a
firearm several weeks after the incident at issue in this case. Appellant’s Brief
at 14. In support of this argument, Appellant makes the following assertions:
Though he did not testify at trial, [A]ppellant had previously given
a statement to police that he was alone in the car on June 14,
2016, and that he was not in possession of a firearm at that time.
The purpose of attempt to admit the certified copy was to
corroborate [A]ppellant’s prior statement to police that he didn’t
have a gun in the car on June 14, 2016. The certified copy,
tending to show that Erick Marrero-Rodriguez possessed a
firearm, could have been used to support an argument that
[A]ppellant was untruthful about being alone in the car on June
14, 2016, in an attempt to protect his brother Erick, and could
have been used to support the suggestion that it was actually Erick
who fired another firearm on June 14, 2016, not [A]ppellant.
Id. Appellant further maintains that “Appellant was prohibited from cross
examination of Detective [Justin] U[c]zynski using the certified complaint and,
considering that [A]ppellant didn’t shoot anybody, the exclusion of the defense
theory itself had a prejudicial and disastrous impact on the scope and quality
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of [A]ppellant’s defense.” Id. at 17. As such, Appellant contends that he
should be granted a new trial. Id.
The trial court may exercise its discretion in deciding whether to admit
evidence, and our review of the trial court’s evidentiary decisions is limited to
determining whether the trial court abused its discretion. Commonwealth
v. Foley, 38 A.3d 882, 886 (Pa. Super. 2012). “We will not disturb a trial
court’s ruling unless that ruling reflects ‘manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly
erroneous.’” Commonwealth v. Einhorn, 911 A.2d 960, 972 (Pa. Super.
2006) (citation omitted). “Even when a defendant can prove an error in the
admission or exclusion of testimony, it is not enough to warrant a new trial
unless he can also prove that he was prejudiced by such error.”
Commonwealth v. Beltz, 829 A.2d 680, 682-683 (Pa. Super. 2003).
“The basic requisite for the admission of any evidence in a case is that
it be competent and relevant.” Commonwealth v. Johnson, 874 A.2d 66,
72 (Pa. Super. 2005) (citing Commonwealth v. Freidl, 834 A.2d 638, 641
(Pa. Super. 2003)).
Though relevance has not been precisely or universally defined,
the courts of this Commonwealth have repeatedly stated that
evidence is admissible if, and only if, the evidence logically or
reasonably tends to prove or disprove a material fact in issue,
tends to make such fact more or less probable, or affords the basis
for or supports a reasonable inference or presumption regarding
the existence of a material fact.
Johnson, 874 A.2d at 72.
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Moreover, “[t]he court may exclude evidence if its probative value is
outweighed by the danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa.R.E. 403. Our rules of
evidence define “unfair prejudice” as “a tendency to suggest decision on an
improper basis or to divert the jury’s attention away from its duty of weighing
the evidence impartially.” Pa.R.E. 403 cmt.
The trial court addressed this issue as follows:
There had been no testimony by any witness that there was a
second person in [Appellant’s] car. The only [suggestion] of a
potential second occupant was the cross examination of Detective
Uczynski regarding his assessment of [Appellant’s] credibility.
Without some competent evidence of a second occupant, there
was no relevance to the proposed exhibit. Similarly, there was no
proposed testimony to link the arrest of a man named Erick
Marrerro-Rodriguez three weeks later to a close relative of
[Appellant] who may or may not have been present at the scene.
Accordingly, there was no proper proposed authentication of the
exhibit.
Trial Court Opinion, 9/9/19, at 4.
We agree with the trial court. A criminal complaint filed against an
individual alleged to be Appellant’s brother three weeks after the incident
herein is not relevant. The information, even if believed,1 is not relevant to
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1 We agree with the trial court’s observation that the alleged criminal
complaint was not authenticated. See Commonwealth v. McKellick, 24
A.3d 982, 986-987 (Pa. Super. 2011) (“The offering party must authenticate
such evidence. The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to
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the issues in this case. A criminal complaint filed against Appellant’s alleged
brother three weeks later does not logically or reasonably prove or disprove
Appellant’s guilt of the crimes for which he was convicted, especially in light
of the evidence presented herein. Johnson, 874 A.2d at 72.
The evidence of record establishes that Appellant was alone in a blue
Honda Civic during the altercation. N.T., 1/22/19, at 112, 127, 134-135. One
of the victims, Jorge Salame, testified that he saw Appellant operating the
blue Honda Civic and observed him fire a gun during the incident. N.T.,
1/23/19, at 173-174, 176.2 Surveillance video capturing the incident was
played during trial, and Mr. Salame identified the point in the video where
Appellant was caught on camera firing the gun. N.T., 1/23/19, at 173, 178.
Additionally, Detective Uczynski testified during trial. The surveillance
video was also played for him. In the video, Detective Uczynski identified
Appellant operating the blue Honda Civic, and although he could not observe
a firearm, the Detective testified that three rapid puffs of smoke, as would
occur from the firing of a gun, could be observed coming from the driver’s side
window of the Honda Civic. N.T., 1/23/19, at 244, 287-289. Detective
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support a finding that the matter in question is what its proponent claims.”).
Pa.R.E. 901(a).
2 As was noted, there were several people involved in this altercation, and
multiple people possessed firearms during the incident. Mr. Salame was not
shot by Appellant, but testified to being shot by Appellant’s father, Antonio
Marrero-Cruz. N.T., 1/23/19, at 193-195.
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Uczyncski stated that Appellant did not have a license to carry a firearm. Id.
at 306. Detective Uczynski also indicated that during his interview of Jorge
Salame on August 23, 2016, Mr. Salame stated that Appellant had a gun and
was firing it while operating the Honda Civic. N.T., 1/24/19, at 365. Detective
Uczynski testified that Appellant admitted that he was the operator of the blue
Honda Civic at the time of the incident, and that he was the sole occupant of
the vehicle. N.T., 1/23/19, at 285-286; N.T., 1/24/19, at 361. Detective
Uczynski identified two shell casings that were recovered from the street
where the blue Honda Civic was located as observed on video surveillance.
Id. at 245, 284-285.
Moreover, at no point during trial did Appellant’s counsel assert that
there was someone else in the car. There was no testimony or evidence
presented that there was another person in the car with Appellant on the night
of the incident that would support this theory.
Thus, there was significant evidence presented at trial that supported
Appellant’s convictions. As a result, introduction of the alleged criminal
complaint filed against Erick Marrero-Rodriguez three weeks after this incident
would not make it more or less likely that Appellant committed these crimes.
Moreover, if introduced, the prejudice of this evidence would outweigh any
probative value because it would serve only to confuse the issue or divert the
jury’s attention away from its duty of weighing the evidence impartially.
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Pa.R.E. 403 cmt. Accordingly, the trial court did not err in excluding from trial
a certified copy of the criminal complaint against Erick Marrero-Rodriguez.
In his second issue, Appellant argues that the trial court erred in
granting the Commonwealth’s post-sentence motion to amend restitution
where there was not a legally sufficient nexus between Appellant’s conduct
and the injuries suffered by the victim. Appellant’s Brief at 17. Appellant
states that the victim, Jorge Salame, was shot in the back and injured, not by
Appellant, but by co-defendant Antonio Marrero-Cruz. Id. at 18.
Furthermore, Appellant argues that he was not convicted of count 10, which
was a charge for aggravated assault, but was instead convicted of count 8,
simple assault. Id. Appellant appears to be arguing that because Mr. Salame
suffered “serious bodily injury” and not just “bodily injury,” as is outlined in
the offense of simple assault, he cannot be liable for restitution to that victim.
Id. at 19. Appellant asserts:
[A]s Appellant was not convicted either as a principal, an
accessory, or as a conspirator of any crime involving “serious
bodily injury” and as the Commonwealth sought restitution for the
victim’s serious bodily injury, it cannot be said that the serious
bodily injury “directly resulted from the crime” of causing bodily
injury.
It is unfair to hold [A]ppellant accountable for medical bills
relating to serious injuries which [A]ppellant did not cause in fact
(because victim was injured by a co-defendant, not by
[A]ppellant) and which [A]ppellant did not cause in law (because
victim’s serious bodily injury was not caused by [A]ppellant’s
crime of causing only bodily injury.
Id. at 19-20.
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“An appeal from an order of restitution based upon a claim that it is
unsupported by the record challenges the legality, rather than the
discretionary aspects, of sentencing; as such, it is a non-waivable matter.”
Commonwealth v. Rotola, 173 A.3d 831, 834 (Pa. Super. 2017); see also
Commonwealth v. Brown, 956 A.2d 992, 994 (Pa. Super. 2008)
(Challenges to the authority to award restitution are generally non-waivable
challenges to the legality of the sentence.). Issues concerning the legality of
sentence are questions of law, and thus, our standard of review is de novo
and our scope of review is plenary. Commonwealth. v. Wolfe, 106 A.3d
800, 802 (Pa. Super. 2014).
The authority to impose restitution derives from Section 1106 of the
Crimes Code: “Upon conviction for any crime wherein: . . . (2) the victim, if
an individual, suffered personal injury directly resulting from the crime, the
offender shall be sentenced to make restitution in addition to the punishment
prescribed therefor.” 18 Pa.C.S. § 1106(a)(2). As this Court has explained:
The Supreme Court has held that Section 1106’s language
is clear on its face and applies only for those crimes to property
or person where there has been a loss that flows from the conduct
which forms the basis of the crime for which a defendant is held
criminally accountable. Moreover, we have held that because of
Section 1106’s words, restitution is a proper sentence under the
Crimes Code only if there is a direct causal connection between
the crime and the loss.
Commonwealth v. Barger, 956 A.2d 458, 465 (Pa. Super. 2008)(en banc)
(internal citations omitted).
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In determining the correct amount of restitution to be paid, courts
employ a “but-for” test – “damages which occur as a direct result of the crime
are those which should not have occurred but for defendant’s criminal
conduct.” Commonwealth v. Gerulis, 616 A.2d 686, 697 (Pa. Super. 1992).
When a defendant’s actions are a substantial factor in causing injuries to the
victim, the trial court can impose restitution. Commonwealth v. Walker,
666 A.2d 301, 309 (Pa. Super. 1995) (holding that but for Appellant’s DUI,
victims would not have sustained injuries and thus restitution for car damage
was proper); see also Commonwealth v. Penrod, 578 A.2d 486, 490 n.1
(Pa. Super. 1990) (finding restitution proper because but for defendant
causing car accident, victim would not have lost property contained in
demolished car).
In this case, Appellant was convicted of simple assault and conspiracy
to commit simple assault related to the injuries suffered by the victim,
Jorge Salame. Specifically, Appellant was convicted, inter alia, of simple
assault and conspiracy to commit simple assault. Count 8, simple assault,
charged Appellant with “attempt to cause or intentionally, knowingly or
recklessly caus[ing] bodily injury to JORGE SALAME[,].” Criminal Information,
12/12/17, at 2. At count 9, Appellant was charged with conspiracy to commit
simple assault, charging him “with the intent of promoting or facilitating the
commission of the crime of SIMPLE ASSAULT, did agree with
ANTONIO MARRERO-CRUZ, that they, or one or more of them, would engage
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in conduct which would constitute such crime, or an attempt or solicitation to
commit such crime.” Id.3 Thus, Appellant’s convictions were directly related
to the harm suffered by Jorge Salame.
Further, as outlined above, the record reflects that in the course of
escalating the dispute, Appellant brought his father to the altercation as
backup. N.T., 1/23/19, at 166-167. The parties returned to the scene of the
incident bearing firearms. Id. at 166-170. The evidence supports the
conclusion that Appellant’s father shot Mr. Salame, n.t., 1/23/19, at 193-195,
and Appellant does not dispute that fact. Appellant’s Brief at 18-19.
Moreover, the evidence supports the conclusion that Appellant also fired a gun
during the incident. N.T., 1/23/19, at 173, 178, 244, 287-289. Thus, but for
Appellant’s escalation of the interaction between the parties, his recruitment
of his father, and his bringing his Father to the altercation while both were
armed, Mr. Salame would not have suffered personal injury. Appellant’s
actions of simple assault and conspiracy to commit simple assault directly
resulted in Mr. Salame’s injuries. Gerulis, 616 A.2d at 697. Thus, the trial
court did not err in imposing restitution upon Appellant as part of his sentence.
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3 An individual is guilty of simple assault if he “attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another.” 18
Pa.C.S. § 2701(a)(1). A person is guilty of criminal conspiracy with another
person or persons to commit a crime “if with the intent of promoting or
facilitating its commission he . . . agrees with such other person or persons
that they or one or more of them will engage in conduct which constitutes
such crime or an attempt or solicitation to commit such crime.” 18 Pa.C.S.
§ 903(a)(1).
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While we find that the trial court had the authority to impose restitution,
however, we also are compelled to conclude that the court’s restitution
sentence was illegal due to the manner in which it was imposed. Although
neither party raised this issue, we are required to address it sua sponte. See
Commonwealth v. Barger, 956 A.2d 458, 464 (Pa. Super. 2008) (en banc)
(“The legality of a sentence is a non-waivable question that may be raised at
any time and sua sponte by this Court.”).
Appellant’s sentence on Count 8 included restitution in the amount of
$1.00. N.T., 2/19/19, at 12. In ordering $1.00 restitution, the sentencing
court explained: “The Commonwealth will need to request a hearing in a
timely manner on that to determine if there, in fact, is any other restitution
due and owing.” Id. The Commonwealth subsequently filed a motion to
amend that amount. The trial court granted the motion and entered an order
on June 6, 2019, directing Appellant to pay restitution, jointly and severally
with his co-defendant, in the amount of $5,008.86.
In Commonwealth v. Gentry, 101 A.3d 813 (Pa. Super. 2014), the
trial court imposed a restitution order of $1.00 as an interim value and
provided for the Department of Probation to determine the full restitution
amount at a later date. Id. at 818. We explained that imposition of this
sentence was improper for two reasons: “The plain text of the statute requires
the trial court to specify the amount of restitution at the time of the original
sentencing as well as a method of payment. In addition, our cases
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unequivocally hold that the trial court is not free to delegate these duties to
an agency.” Id. This Court further explained:
[A]lthough it is true that a restitution order may be
amended by a trial court ‘at any time’ under Section 1106(c)(3),
this presupposes that there is a legal restitution order to amend
in the first place. We agree with the parties that the original
restitution order was itself illegal. Therefore, there was no valid
restitution for the trial court to amend.
Id. at 819.
Herein, much like the $1.00 order in Gentry, the initial order of
restitution “was itself illegal,” and thus, “there was no valid restitution for the
trial court to amend” on June 6, 2019. Gentry, 101 A.3d at 819.
Section 1106(c)(2) mandates that at the time of sentencing
the court shall specify the amount and method of restitution. This
must be read in conjunction with subsection (c)(4) requiring the
Commonwealth to make a recommendation to the Court at or
prior to the time of sentencing. This section would be rendered
meaningless if the Commonwealth could just come up with any
figure and then move to modify it later.
Commonwealth v. Ortiz, 854 A.2d 1280, 1283 (Pa. Super. 2004). As we
noted in Commonwealth v. Dinoia, 801 A.2d 1254 (Pa. Super. 2002):
Although the statute provides for amendment or
modification of restitution “at any time,” 18 Pa.C.S.A.
§ 1106(c)(3), the modification refers to an order “made pursuant
to paragraph (2) ....” Thus, the statute mandates an initial
determination of the amount of restitution at sentencing. This
provides the defendant with certainty as to his sentence, and at
the same time allows for subsequent modification, if necessary.
Id. at 1257 (internal citation omitted). See also Commonwealth v.
Mariani, 869 A.2d 484, 487 (Pa. Super. 2005) (stating, “an order of
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restitution to be determined later is ipso facto illegal[ ]”). Thus, we conclude
that the restitution sentence imposed by the trial court herein was illegal.
Turning to the question of remedy, we again find guidance in Gentry,
where this Court determined that “the appropriate remedy is for the trial court
to have an opportunity to impose a new restitution order.” Gentry, 101 A.3d
at 819. Thus, as in Gentry, on remand, the trial court shall vacate the
restitution order and conduct a new sentencing hearing, limited to the issue
of restitution consistent with 18 Pa.C.S. § 1106 and our case law.
Judgment of sentence affirmed in part and reversed in part. Case
remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/13/2020
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