J-S73014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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



____________________________________________


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.


____________________________________________


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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