J-S38020-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT WILLIAM HARTNETT, JR. :
:
Appellant : No. 180 MDA 2020
Appeal from the Judgment of Sentence Entered September 27, 2019
In the Court of Common Pleas of Perry County Criminal Division at
No(s): CP-50-CR-0000571-2018
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 25, 2020
Robert William Hartnett, Jr. appeals from the judgment of sentence
entered after a jury found him guilty of multiple sexual offenses against his
minor step-granddaughter. Hartnett argues the evidence was insufficient and
the trial court erred in excluding a photograph of the victim. We affirm
Hartnett’s convictions, but vacate sentence and remand for re-sentencing.
Prior to Hartnett’s jury trial, the Commonwealth filed a Motion in Limine
asking the court to preclude Hartnett from introducing a certain photograph
of the victim.1 The photograph depicted the victim sticking her tongue out
next to the drawing of a penis. The victim had sent it to her grandmother,
Hartnett’s wife, in 2018. The Commonwealth argued the photograph was not
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 Although Hartnett introduced the photograph as an exhibit at the hearing on
the Motion, the photograph is not in the certified record.
J-S38020-20
relevant or probative, as it was taken after the alleged incidents giving rise to
the charges and did not involve Hartnett or communications with Hartnett.
The Commonwealth also argued it was impermissible evidence of the victim’s
character. Hartnett argued the victim’s grandmother was living with Hartnett
when the victim sent it to her, and that it was probative as to whether the
victim felt comfortable discussing sex with her grandmother, as she had not
disclosed the alleged abuse to her earlier. The court granted the motion and
precluded the photograph from evidence.
At trial, the 17-year-old victim testified that Hartnett first sexually
assaulted her around 2010, when she was approximately eight or nine years
old, at Hartnett’s residence. She testified about numerous instances of sexual
abuse, including groping, forced masturbation, cunnilingus, and penetrative
sexual intercourse. The victim said that she did not disclose the abuse until
2018 because she did not want to get into trouble, “split up the family,” or be
“looked at as a disappointment” or like “a freak.” N.T., Trial, 7/1/19, at 56.
The victim testified that she told two friends in sixth grade about the abuse,
but did not disclose the abuse to an adult until 2018. The victim’s mother
testified that she had observed redness in the victim’s genital area as a child,
and asked her if anyone had been “messing with” her, but the victim shook
her head, “No.” Id. at 130-31. The victim’s father, brother, and a childhood
friend testified about Hartnett’s inappropriate physical contact with and sexual
remarks to the victim.
-2-
J-S38020-20
The jury convicted Hartnett on 53 counts, including four counts of Rape
of a Child. See 18 Pa.C.S.A. § 3121(c).2 The court held a sentencing hearing
on September 27, 2019, and imposed an aggregate sentence of 32-64 years’
incarceration.
Five days later, the court issued an order3 stating, “[O]n the [c]ourt’s
own Motion, a hearing/argument is hereby scheduled to address any issue of
the Merger.” Order dated October 2, 2019, 10/3/19, at 1. The order set a
hearing for the next day.
The next day, the court issued an order4 acknowledging that defense
counsel and the prosecution “agreed that there may be issues regarding
Merger of Offenses for sentencing purposes, and all parties [have] requested
additional time to research said issues[.]” Order dated October 3, 2019,
10/10/19, at 1. The court treated the parties’ agreement that certain
____________________________________________
2The jury also convicted Hartnett of four counts of Involuntary Deviate Sexual
Intercourse with a Child, three counts of Unlawful Contact With a Minor –
Sexual Offenses, four counts of Sexual Assault, two counts of Aggravated
Indecent Assault – Complainant Less Than 13 Years Old, nine counts of
Corruption of Minors – Defendant Age 18 or Above, four counts of Indecent
Assault – Without Consent of Other, one count of Indecent Assault – Forcible
Compulsion, four counts of Indecent Assault – Person Less Than 16 Years of
Age, and four counts of Criminal Attempt – Indecent Assault of Person Less
Than 13 Years of Age. See, respectively, 18 Pa.C.S.A. §§ 3123(b),
6318(a)(1), 3124.1, 3125(a)(7), 6301(a)(1)(ii), 3126(a)(1), 3126(a)(2),
3126(a)(8), and 901(a).
3 The order was dated October 2, 2019, but filed on October 3, 2019.
4 The order was dated October 3, 2019, but filed on October 10, 2019.
-3-
J-S38020-20
convictions might merge as a joint post-trial motion. See id. The court
scheduled a hearing for November, which it later continued to December 5,
2019.
At the hearing on December 5, 2019, the court amended the sentence.
The court found that all convictions other than two counts of Aggravated
Indecent Assault and one count of Indecent Assault – Forcible Compulsion
merged with the four counts of Rape of a Child.5 The court again imposed an
aggregate sentence of 32 to 64 years’ incarceration.6 The same day, the court
issued an order7 memorializing the amended sentence, and stating that the
court had amended the sentence “after Hearing on the Post-Sentence Motion
regarding the issue of Merger.” Order dated Dec. 5, 2019, 12/9/19, at 1.
Hartnett appealed on December 11, 2019. However, this Court deemed
the appeal to be an untimely appeal from the September 27, 2019 sentence,
and quashed. See Commonwealth v. Hartnett, No. 1982 MDA 2019
____________________________________________
5 Although the court did not specifically mention Count 36, one of the nine
counts for Corruption of Minors, when finding merger or re-imposing sentence,
this count was not amongst the surviving counts for which the court re-
imposed sentence, and, when discussing the merger, the Commonwealth
expressed that it had no objection to merger of this count. See N.T., 12/5/19,
at 4-5.
6 Aside from merger, the only difference was that previously, the court ran
the sentence for Indecent Assault – Forcible Compulsion concurrently with
sentence on the third count of Rape of a Child, but on the new sentence, the
court ran the sentence concurrently with the sentence on the first count of
Rape of a Child.
7 The order was dated December 5, 2019, but was filed on December 9, 2019.
-4-
J-S38020-20
(Pa.Super., 1/13/20) (per curiam order at 1). Hartnett thereafter filed a
“Motion to Reinstate Direct Appeal Nunc Pro Tunc/PCRA,” on January 16,
2020, asking the trial court to reinstate his direct appeal rights, specifying that
the Commonwealth did not oppose the request. The trial court granted relief,
and, the next day, Hartnett instituted this appeal.
Before we address the issues on appeal, we address the
Commonwealth’s suggestion that we should quash this appeal as untimely. It
contends that because Hartnett did not file a written post-sentence motion
within ten days of the original imposition of sentence on September 27, 2019,
the trial court did not have jurisdiction to amend Hartnett’s sentence on
December 5, 2019, more than 30 days later. See Commonwealth’s Br. at 5.
We will not quash. Hartnett sought reinstatement of his direct appeal
rights approximately three and a half months after his initial sentencing. Even
assuming that the time limitations of the Post Conviction Relief Act (“PCRA”)8
applied to that petition, the petition was timely and the trial court had power
to grant it. See Commonwealth v. Brown, 943 A.2d 264, 268 (Pa. 2008)
(holding that where defendant did not file a timely appeal, PCRA time limits
run from the expiration of time for seeking such review). As Hartnett filed this
appeal one day after the lower court granted him a nunc pro tunc appeal, his
appeal was timely.
____________________________________________
8 42 Pa.C.S.A. §§ 9541-9546.
-5-
J-S38020-20
However, we agree that that the court lacked jurisdiction to amend the
sentence on December 5, 2019. A trial court loses jurisdiction to modify a
criminal sentence once a party initiates an appeal, or once 30 days have
elapsed after sentencing. 42 Pa.C.S.A. § 5505; Commonwealth v. Holmes,
933 A.2d 57, 65 (Pa. 2007). The court can preserve its jurisdiction to modify
the sentence beyond the 30-day deadline by vacating the original sentence
within 30 days of the original sentencing. Also, the time in which the court
may modify a sentencing order increases if a party files a timely post-sentence
motion. A post-sentence motion is timely if the movant files a written motion
within ten days of the pronouncement of sentence. In such a case, the trial
court retains jurisdiction until disposition of the motion. See Pa.R.Crim.P.
720(A)(1), (B)(3), Comment; Pa.R.Crim.P. 721(A)(1), (B)(1), (C). Where the
trial court attempts to modify a sentence pursuant to an untimely post-
sentence motion more than 30 days after sentencing, its action is a nullity.
Commonwealth v. Santone, 757 A.2d 963, 965-66 (Pa.Super. 2000).9
Here, neither party filed a written post-sentence motion following the
imposition of sentence on September 27, 2019. Although the court raised the
question of merger and, after an initial hearing, treated the parties’ agreement
that merger was in issue as an oral post-sentence motion, it neither vacated
nor amended the September 27, 2019 sentence within 30 days of imposing it.
____________________________________________
9 See also Commonwealth v. Martinez, 141 A.3d 485, 490 (Pa.Super.
2016); Commonwealth v. Merolla, 909 A.2d 337, 341 (Pa.Super. 2006);
Commonwealth v. Bentley, 831 A.2d 668, 670 (Pa.Super. 2003).
-6-
J-S38020-20
Although a court has the inherent jurisdiction to correct a patent error in an
order at any time, the failure to merge convictions for purposes of sentencing
“is not a patent or obvious mistake.” Commonwealth v. Martz, 926 A.2d
514, 525 (Pa.Super. 2007). Therefore, the court here lacked jurisdiction to
amend the sentence on December 5, 2019, and the order it issued on that
date is a legal nullity.
We add that we have corrected the caption to reflect the correct date of
the judgment from which Hartnett appealed. Hartnett’s notice of appeal states
his appeal is from the guilty verdict and December 5 judgment of sentence.
However, the appeal in a criminal case properly lies not from the verdict, but
from the judgment of sentence. Commonwealth v. Charles O’Neill, 578
A.2d 1334, 1335 (Pa.Super. 1990). As the December 5 order is null, we have
amended the caption to reflect that this appeal is from the judgment of
sentence of September 27, 2019. See Commonwealth v. Lawrence, 99
A.3d 116, 117 n.1 (Pa.Super. 2014).
We turn now to the issues on appeal. Hartnett raises two issues for our
review:
1. Whether or not the evidence introduced at trial was sufficient
to prove beyond a reasonable doubt [Hartnett] had committed the
acts of rape, sexual assault, aggravated indecent assault,
corruption of minors, rape of a child[,] and indecent assault by
forcible compulsion, based solely on the testimony recalled from
9 years previously be a child?
2. Whether the trial court incorrectly denied [Hartnett’s] request
to have introduced a photograph that would have provided the
jury with another perspective of the accuser whose testimony was
the sole evidence presented by the Commonwealth?
-7-
J-S38020-20
Hartnett’s Br. at 8 (unpaginated).
I. Sufficiency of the Evidence
Hartnett first argues the evidence was insufficient to support the
convictions. He asserts that the sole evidence was the uncorroborated and
“recalled testimony of a then 8 or 9 year old,” and points out that there was
no physical evidence, such as blood on the victim’s clothing or bedsheets.
Hartnett’s Br. at 19-20 (unpaginated). Hartnett further complains that the
testimony did not support four counts of Rape of a Child, as the victim only
testified to one incident where Hartnett penetrated her with his penis. Id. at
20.
He also claims the victim was not credible because her testimony lacked
the exact times of the alleged abuse, she continued to visit Hartnett after the
abuse, and she did not disclose the abuse to anyone earlier, “despite being
close with both her mother and grandmother.” Id. at 19-20. Hartnett claims
the family members’ testimony was inconsistent regarding where Hartnett
lived, and if he was alone with the victim. Id. Hartnett argues that although
the victim’s mother testified she observed redness in the victim’s genital area,
she did not take the victim for medical attention, even though she worked for
a health care facility. Id. at 20. Hartnett asserts that “the weight of the
evidence presented does not rise to the level of beyond a reasonable doubt.”
Id.
Hartnett conflates the sufficiency and weight of the evidence. These are
two distinct issues, subject to different standards of review and with different
-8-
J-S38020-20
remedies. See generally Commonwealth v. Widmer, 744 A.2d 745, 751-
53 (Pa. 2000).
To the extent that Hartnett’s arguments go to the sufficiency of the
evidence, Hartnett has waived this issue by failing to raise it with specificity
in his Pa.R.A.P. 1925(b) statement of errors. Hartnett’s statement contains 23
numbered paragraphs (each one sentence long), and in only one of these
paragraphs does Hartnett arguably raise the issue of sufficiency, by vaguely
stating, “The testimony of the victim did not support four counts of Rape,
IDSI, Sexual Assault, Indecent Assault, [or] Corruption of Minors.” Pa.R.A.P.
1925(b) Statement, 2/14/20, at ¶ 10. Accordingly, the trial court, in its Rule
1925(a) opinion, does not even address the sufficiency of the evidence. We
therefore find the issue waived. See Commonwealth v. Garland, 63 A.3d
339, 344 (Pa.Super. 2013) (holding sufficiency waived where Rule 1925(b)
did not specify which elements or convictions appellant challenged, and
appellant was convicted of multiple crimes containing “numerous elements”).
In any event, the testimony of a rape victim alone is sufficient to support
a conviction for rape, without corroboration by medical testimony.
Commonwealth v. Poindexter, 646 A.2d 1211, 1214 (Pa.Super. 1994).
Here, among other things, the victim testified that when she was less than 13
years old, Hartnett penetrated her vagina with his penis “five to ten” times.
N.T., 7/1/19, at 51-52. This alone is sufficient evidence to support convictions
on four counts of Rape of a Child. See 18 Pa.C.S.A. § 3121(c).
-9-
J-S38020-20
Hartnett’s remaining arguments go to the weight of the evidence, and
he has waived this issue as well, by failing to raise it below, include it in his
Questions Presented, or make a developed argument in his brief to this Court.
See Pa.R.Crim.P. 607(a); Pa.R.A.P. 302(a); Commonwealth v. Heggins,
809 A.2d 908, 912 n.2 (Pa.Super. 2002).
II. Commonwealth’s Motion in Limine
Hartnett next argues the court erred in precluding evidence of a
photograph depicting the victim sticking her tongue out next to a drawing of
a penis, which the victim sent to her grandmother in 2018. Hartnett contends
this evidence was crucial to the issue of the victim’s credibility, as it allegedly
contradicted her reasons for not disclosing the abuse earlier. Hartnett argues
the photograph was not prejudicial to the victim, as the victim “had already
testified that she was sexually active with at least two previous boyfriends.”
Hartnett’s Br. at 22 (unpaginated).
We review a trial court’s ruling on evidentiary issues pursuant to an
abuse of discretion standard. Commonwealth v. Stokes, 78 A.3d 644, 654
(Pa.Super. 2013). “Evidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue more or less probable,
or supports a reasonable inference or presumption regarding the existence of
a material fact.” Stokes, 78 A.3d at 654 (quoting Commonwealth v.
Spiewak, 617 A.2d 696, 699 (Pa. 1992)). However, even logically relevant
evidence is only admissible where the probative value of the evidence
outweighs its prejudicial impact. Id.
- 10 -
J-S38020-20
Here, the trial court determined the photograph was irrelevant “because
the photograph was taken and sent to [Hartnett]’s wife well after the incidents
involved in the allegations against [Hartnett].” Trial Ct. Op. at 2
(unpaginated). The court also found “that the photograph was not probative
for the Defense case and any probative value would be outweighed by its
prejudicial effect.” Id. We find no abuse of discretion in this analysis.
III. Merger
Lastly, we address the issue of merger of offenses. Although not raised
by either party, this issue goes to the legality of the sentence, and may be
raised by this Court sua sponte. Commonwealth v. Watson, 228 A.3d 928,
941 (Pa.Super. 2020). Merger is appropriate when “the crimes arise from a
single criminal act and all of the statutory elements of one offense are included
in the statutory elements of the other offense.” Id. (quoting 42 Pa.C.S.A. §
9765).
In the proceedings below, the parties and the court agreed that most of
Hartnett’s convictions should merge with his convictions for four counts of
Rape of a Child.10 We agree that Hartnett’s sentence is subject to correction,
and therefore vacate the judgment of sentence and remand for resentencing.
____________________________________________
10These include four counts of Involuntary Deviate Sexual Intercourse with a
Child, three counts of Unlawful Contact With a Minor – Sexual Offenses, four
counts of Sexual Assault, nine counts of Corruption of Minors – Defendant Age
18 or Above, four counts of Indecent Assault – Without Consent of Other, four
counts of Indecent Assault – Person Less Than 16 Years of Age, and four
counts of Criminal Attempt – Indecent Assault of Person Less Than 13 Years.
- 11 -
J-S38020-20
Judgment of sentence vacated. Remanded for further proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2020
- 12 -