Com. v. Marrero-Nardo, S., Sr.

• Court: Superior Court of Pennsylvania
• Decided: December 26, 2018
• Docket: 169 MDA 2018
• Status: Published

Opinion

J-S45004-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SAMUEL FRANK MARRERO-NARDO, : SR., : : Appellant : No. 169 MDA 2018

Appeal from the Judgment of Sentence August 30, 2017 in the Court of Common Pleas of Lebanon County Criminal Division at No(s): CP-38-CR-0000026-2016

BEFORE: OTT, J., MUSMANNO, J., and PLATT*, J.

MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 26, 2018

Samuel Frank Marrero-Nardo, Sr. (“Marrero-Nardo”), appeals from the

judgment of sentence imposed after a jury convicted him of one count each

of involuntary deviate sexual intercourse (“IDSI”) and statutory sexual

assault; and two counts each of unlawful contact with a minor, indecent

assault, and corruption of minors.1 We affirm.

Between May 2004 and May 2005, Marrero-Nardo engaged in a course

of sexual conduct with two minor females, S.M., and her younger sister, L.M.

At trial, S.M. testified to multiple sexual encounters with Marrero-Nardo,

including one that culminated in him performing oral sex on her, and

penetrating her vagina with his tongue and penis. L.M. testified to ongoing

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1 See 18 Pa.C.S.A. §§ 3123(a), 3122.1, 6318(a), 3126(a), 6301(a).

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S45004-18

instances where Marrero-Nardo would ask for sex, inappropriately touch her

body, and kiss her on the lips.

The trial court set forth the relevant procedural history underlying this

appeal in its Opinion and Order, which we adopt as though fully set forth

herein. See Trial Court Opinion and Order, 1/8/18, at 2-4.

After the jury found Marrero-Nardo guilty of the above-mentioned

crimes, on August 30, 2017, the trial court sentenced him to an aggregate

term of 92 months to 17 years in prison.

On September 6, 2017, the Commonwealth timely filed a Post-Sentence

Motion requesting resentencing on the basis that the original sentence was

imposed utilizing an incorrect prior record score for Marrero-Nardo. Two days

later, Marrero-Nardo likewise filed a timely Post-Sentence Motion. On January

8, 2018, the trial court filed an Opinion and Order (hereinafter, the “Post-

Sentence Order”), which granted the Commonwealth’s Post-Sentence Motion,

denied Marrero-Nardo’s Post-Sentence Motion, and thoroughly explained the

court’s reasons for rejecting Marrero-Nardo’s several contentions. The trial

court also scheduled a resentencing hearing for January 31, 2018.

Marrero-Nardo filed a Notice of Appeal on January 12, 2018, followed

by a timely court-ordered Pa.R.A.P. 1925(b) Concise Statement. On January

29, 2018, the trial court continued the resentencing hearing until February 15,

2018. By an Order entered on February 16, 2018, the trial court concluded

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that the pendency of the current appeal divested the court of jurisdiction, and

declined to resentence Marrero-Nardo.

On appeal, Marrero-Nardo raises the following questions for our review:

I. Should the Commonwealth be precluded from amending the Information … to include the [IDSI] charge[,] as set forth in Count 1 of the 2nd Amended Information[,] after the [original] IDSI charge had been dismissed following a preliminary hearing?

II. During the course of the trial, did the Commonwealth present evidence sufficient to prove beyond a reasonable doubt the date(s) of the crime with sufficient particularity[,] and that [Marrero-Nardo] knowingly or intentionally engaged in deviate sexual intercourse with S.M.?

III. During the course of the trial, did the Commonwealth present evidence sufficient to prove beyond a reasonable doubt the date(s) of the crime with sufficient particularity and that [Marrero-Nardo] knowingly or intentionally contacted S.M. for the purposes of engaging in sexual relations?

IV. During the course of the trial, did the Commonwealth present evidence sufficient to prove beyond a reasonable doubt the date(s) of the crime with sufficient particularity and that [Marrero-Nardo] knowingly or intentionally contacted L.M. for the purposes of engaging in sexual relations?

V. During the course of the trial, did the Commonwealth present evidence sufficient to prove beyond a reasonable doubt the date(s) of the crime with sufficient particularity and that [Marrero-Nardo] knowingly or intentionally caused his penis to penetrate S.M.’s genitals?

VI. During the course of the trial, did the Commonwealth present evidence sufficient to prove beyond a reasonable doubt the date(s) of the crime with sufficient particularity and that [Marrero-Nardo] knowingly or intentionally had indecent contact with L.M.?

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VII. During the course of the trial, did the Commonwealth present evidence sufficient to prove beyond a reasonable doubt the date(s) of the crime with sufficient particularity and that [Marrero-Nardo] knowingly or intentionally had indecent contact with S.M.?

VIII. Did the trial court judge impose an illegal and/or unreasonable sentence in the above-captioned matter?

Brief for Appellant at 4-5.

Preliminary, we must determine whether we have jurisdiction over this

appeal. See Brief for the Commonwealth at 6, 26 (arguing that the case

should be remanded so that resentencing may take place). A direct appeal in

a criminal case is properly taken from a judgment of sentence. See

Commonwealth v. Yancoskie, 915 A.2d 111, 112 n.1 (Pa. Super. 2006).

Once a timely notice of appeal is filed, jurisdiction vests in this Court. See

Commonwealth v. Green, 862 A.2d 613, 615 (Pa. Super. 2004) (en banc).

Conversely, a timely appeal typically divests the trial court of jurisdiction over

the case. See Pa.R.A.P. 1701(a). As a general matter, an appeal from a

judgment of sentence must be filed within 30 days of the imposition of

sentence. See Pa.R.A.P. 903(c)(3).

Our Rules of Criminal Procedure provide that “[t]he Commonwealth may

challenge a sentence by filing a motion to modify sentence,” within 10 days

of the date on which the sentence was imposed. Pa.R.Crim.P. 721(A)(1),

(B)(1). When the Commonwealth timely files a motion to modify sentence,

the 30-day direct appeal period commences from the date on which the trial

judge disposes of the Commonwealth’s motion. See Pa.R.Crim.P. 720(A)(4).

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Additionally, Rule 720 provides that when a timely post-sentence motion is

filed, “the judge retains jurisdiction for the duration of the disposition period.”

Pa.R.Crim.P. 720, cmt. If the trial court grants a motion to modify sentence,

any notice of appeal filed prior to timely disposition of the motion is rendered

inoperative. See Pa.R.A.P. 1701(b)(3).

Regarding the interplay of the foregoing authorities, the Pennsylvania

Supreme Court has explained that

[the] exception to the general rule that the filing of a notice of appeal divests the trial court of jurisdiction renders a notice of appeal ineffective only if a timely motion for reconsideration is both filed and granted. The exception dovetails with Criminal Rules 720 and 721, both of which indicate that no direct appeal may proceed while a timely post-sentence motion or motion to modify sentence is pending, and any such appeal is rendered premature. Thus, in an appropriate case where a post-sentence motion is granted, there is no conflict between Rule 1701, governing appeals generally, and Rules 720 and 721, which specifically govern appeals in criminal matters.

Commonwealth v. Cooper, 27 A.3d 994, 1005 (Pa. 2011) (emphasis and

internal citations omitted).

Significantly, however, Criminal Rule 720 explicitly dictates that any

order disposing of a post-sentence motion must be entered within 120 days

of the filing of that motion. Pa.R.Crim.P. 720(B)(3)(a). When the

Commonwealth and the defendant each file a post-sentence motion, the “time

limits for deciding the defendant’s post-sentence motion … apply to the

disposition of the Commonwealth’s motion[,]” and the “starting date for

disposition of both motions [is] the date on which the defendant filed the post-

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sentence motion.” Pa.R.Crim.P. 721(C)(1). Notably to this appeal, Rule 720

provides that “[i]f the judge fails to decide [a post-sentence] motion within

120 days, … the motion shall be deemed denied by operation of law.”

Pa.R.Crim.P. 720(B)(3)(a). When a motion is denied by operation of law, “the

30-day period for the defendant’s direct appeal … is triggered” and begins to

run at the expiration of the 120-day limit. Id., cmt.

This Court has previously held that a post-sentence motion by the

Commonwealth was denied by operation of law where the trial court granted,

but did not resolve, the motion within the 120-day limit of Rule 720. See

Commonwealth v. Martinez, 141 A.3d 485, 489 (Pa. Super. 2016) (stating

that under Rule 720, “it is not enough for a trial court … to grant the

Commonwealth’s post-sentence motion within the original 120-day time limit;

the trial court is required to resolve the motion for reconsideration within 120

days. Otherwise, the post-sentence motion is deemed denied by operation of

law pursuant to Pa.R.Crim.P. 721(C)(2).” (emphasis in original)).

Here, both the Commonwealth and Marrero-Nardo filed timely Post-

Sentence Motions. Therefore, the trial court necessarily retained jurisdiction

and an appeal could not be taken until the Post-Sentence Motions were

disposed of by the trial court, denied by operation of law, or withdrawn. See

Pa.R.Crim.P. 720, cmt. Importantly, the trial court’s January 8, 2018 Post-

Sentence Order did not resolve the Commonwealth’s Post-Sentence Motion.

See Martinez, supra. Specifically, though the Post-Sentence Order granted

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the Commonwealth’s Post-Sentence Motion, it also scheduled resentencing for

January 31, 2018. Accordingly, the disposition of the Commonwealth’s Post-

Sentence Motion, filed on September 6, 2017, was scheduled for a date

outside the 120-day time limit mandated by Rule 721(C)(1) and Rule

720(B)(3)(a). See Pa.R.Crim.P. 720(B)(3)(a) & 721(C)(1). Consequently,

the Commonwealth’s Post-Sentence Motion was denied by operation of law at

the expiration of the 120-day time limit, i.e., on January 8, 2018 (120 days

from the filing of Marrero-Nardo’s Post-Sentence Motion),2 pursuant to Rule

721(C)(1), supra. See Martinez, 141 A.3d at 489; see also id. at 490

(stating that “this Court has consistently held that an order issued by the trial

court after expiration of the 120-day time limit, resulting in the denial of the

post-sentence motion by operation of law, is a legal nullity due to the court’s

lack of jurisdiction.”). It was on this date that the 30-day direct appeal period

commenced, see Pa.R.Crim.P. 720(B)(1)(a), cmt., and Marrero-Nardo

appealed within 30 days of this date. Thus, Marrero-Nardo appropriately and

timely appealed from his judgment of sentence, which became an appealable

Order once the Commonwealth’s Post-Sentence Motion was denied by

operation of law. Accordingly, we have jurisdiction over this appeal.

2 120 days from the filing date of Marrero-Nardo’s Post-Sentence Motion fell

on Saturday, January 6, 2018. See 1 Pa.C.S.A. § 1908 (extending filing deadline to first non-holiday weekday if final date falls on a weekend or holiday).

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In his first issue, Marrero-Nardo argues that the trial court erred by

permitting the Commonwealth to amend the Information to add a new count

of IDSI (hereinafter, the “additional IDSI charge”) after the Magisterial District

Judge (“MDJ”) had dismissed the count of IDSI charged in the original

Information at the preliminary hearing.3 See Brief for Appellant at 9-17

(primarily relying upon Commonwealth v. Weigle, 997 A.2d 306, 315-16

(Pa. 2010) (holding that the Commonwealth cannot charge an offense which

was dismissed after a preliminary hearing via an amended information on the

basis that it was cognate to those charges that were bound over for court)).

Additionally, Marrero-Nardo contends that “[t]he Commonwealth’s argument

to amend the Information to add the [additional] IDSI charge …, if accepted,

would render the preliminary hearing meaningless[,] as the Commonwealth

would have free reign to ignore the issuing authority’s determination as to a

prima facie case.” Id. at 12-13. Marrero-Nardo avers that he was prejudiced

by the amendment, and “[i]f the Commonwealth [wa]s unable to overcome

the relatively low hurdle on the IDSI charge in question, then [] Marrero-

Nardo should never have to assume the burden of defending against it at

3 The factual basis for the original IDSI charge was that S.M. had performed

oral sex on Marrero-Nardo. The MDJ dismissed this charge because it contradicted S.M.’s testimony at the preliminary hearing. The trial court subsequently permitted the Commonwealth to amend the Information to include the additional IDSI charge on the basis that Marrero-Nardo had performed oral sex on S.M.

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trial.” Id. at 17. Finally, Marrero-Nardo contends that the Commonwealth’s

failure to reinstate the additional IDSI charge with the issuing authority (i.e.,

the MDJ who presided over the preliminary hearing) was in violation of

Pa.R.Crim.P. 544,4 and divested the trial court of subject matter jurisdiction

over this charge. See Brief for Appellant at 19-21.

In its Post-Sentence Order, the trial court thoroughly addressed and

explained Marrero-Nardo’s claim, discussed the applicable law (distinguishing

Weigle and the other cases Marrero-Nardo relies upon), and determined that

the court did not err in allowing the amendment of the Information. See Post-

Sentence Order, 1/8/18, at 5-13. In sum, the trial court found, inter alia, that

the amendment was not improper because the original count of IDSI that the

MDJ dismissed was not based on the same allegations as the additional IDSI

charge, which was never before the MDJ. See id. at 9-11. As the trial court’s

analysis and determination is supported by the law and the record, we affirm

on this basis in rejecting Marrero-Nardo’s first issue. See id. at 5-13.

In the first portion of his second issue, Marrero-Nardo contends that the

Commonwealth’s failure to articulate a sufficiently particular timeframe for the

additional IDSI charge violated his right to due process. See Brief for

4 Rule 544 provides, in relevant part, that “[w]hen charges are dismissed or

withdrawn at … a preliminary hearing, … the attorney for the Commonwealth may reinstitute the charges by approving, in writing, the re-filing of a complaint with the issuing authority who dismissed … the charges.” Pa.R.Crim.P. 544(A).

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Appellant at 23-25. Marrero-Nardo points out that “[t]he Commonwealth

alleges in the 2nd Amended Information that [] Marrero-Nardo committed the

‘crimes on or about May 2004 – May 2005,’ a span of thirteen [] months.” Id.

at 23; see also id. (relying upon Commonwealth v. Devlin, 333 A.2d 888

(Pa. 1975) for the proposition that a “fourteen-month span of time was such

an egregious encroachment upon the [a]ppellant’s ability to defend himself

that the jury was reversed.” (emphasis omitted)).

The trial court cogently addressed and expounded upon Marrero-Nardo’s

above claim in its Post-Sentence Order, set forth the relevant law, and

determined that this claim lacks merit. See Post-Sentence Order, 1/8/18, at

13-17. We agree with the trial court’s rationale and determination, and

therefore affirm on this basis with regard to this claim. See id.

In his issues numbered 2 (second portion of this issue) through 7, which

we will address simultaneously due to their relatedness, Marrero-Nardo urges

that the Commonwealth failed to present sufficient evidence to convict him of

any of the above-mentioned offenses, and that his convictions were against

the weight of the evidence. See Brief for Appellant at 25-32. In sum,

Marrero-Nardo contends that the testimony of S.M. and L.M. was insufficient

to establish all elements of the offenses beyond a reasonable doubt, and he

attacks the credibility of their testimony. See id.

In its Post-Sentence Order, the trial court addressed Marrero-Nardo’s

claims, set forth the applicable standards of review and Crimes Code

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provisions, and determined that the convictions were neither against the

sufficiency nor weight of the evidence. See Post-Sentence Order, 1/8/18, at

18-31. We affirm on this basis in rejecting Marrero-Nardo’s weight and

sufficiency challenges. See id.

In his eighth and final issue, Marrero-Nardo argues that the trial court

abused its discretion in imposing an “illegal and/or unreasonable sentence[.]”5

Brief for Appellant at 33. Marrero-Nardo maintains that the aggregate

sentence imposed “was unduly harsh given his relatively minor prior [criminal]

record, his conduct while out on bail, the determination of the [Sexual

Offenders Assessment Board] that he was not a sexually violent predator, and

the timeframe of the alleged offenses.” Id. at 35.

There is no absolute right to appeal the discretionary aspects of a

sentence. Commonwealth v. Hill, 66 A.3d 359, 363 (Pa. Super. 2013).

Rather, where, as here, the appellant has preserved the discretionary

sentencing claim for appellate review by raising it in a timely post-sentence

Motion,

[t]wo requirements must be met before we will review [a challenge to the discretionary aspects of sentence] on its merits. First, [pursuant to Pa.R.A.P. 2119(f),] an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate ____________________________________________

5 Though Marreo-Nardo facially purports to challenge the legality of his sentence, a review of his argument reveals that he, in actuality, challenges the discretionary aspects of his sentence.

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under the Sentencing Code. That is, that the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process. We examine an appellant’s Pa.R.A.P. 2119(f) statement to determine whether a substantial question exists.

Id. at 363-64 (citation to case law and brackets omitted).

Marrero-Nardo failed to include the requisite Rule 2119(f) statement in

his brief. However, we may overlook this defect, since the Commonwealth

did not object to it. See Commonwealth v. Roser, 914 A.2d 447, 457 (Pa.

Super. 2006) (stating that an appellant’s failure to include the Rule 2119(f)

statement results in waiver of his or her discretionary sentencing challenge

only where the Commonwealth lodges an objection to the omission of the

statement).

Even assuming, arguendo, that Marrero-Nardo’s claim raises a

substantial question,6 the trial court, in its Post-Sentence Order, concisely

addressed the discretionary aspects of sentencing claim, set forth the

applicable standard of review, and correctly determined that the court

properly exercised its discretion in sentencing Marrero-Nardo. See Post-

6 See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015)

(en banc) (stating that “[t]his Court has [] held that an excessive sentence claim—in conjunction with an assertion that the [trial] court failed to consider mitigating factors—raises a substantial question.” (citation and quotation marks omitted)). But cf. Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (stating that “[t]his Court has held on numerous occasions that a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review.” (citation omitted)).

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Sentence Order, 1/8/18, at 31-33. We likewise conclude that the sentence

imposed was not unduly harsh given, inter alia, the heinousness of the

offenses, and thus affirm on this basis as to Marrero-Nardo’s final issue on

appeal. See id.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/26/2018

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