Com. v. Hartnett, R., Jr.

• Court: Superior Court of Pennsylvania
• Decided: November 25, 2020
• Docket: 180 MDA 2020
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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

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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.

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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.

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(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.

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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).

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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?

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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

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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).

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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.

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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.

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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

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