Com. v. Perry, M.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

MARCELO NATHANIEL PERRY :

:

Appellant : No. 1366 MDA 2025

Appeal from the Judgment of Sentence Entered August 25, 2025 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004761-2021

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

MARCELO NATHANIEL PERRY :

:

Appellant : No. 1367 MDA 2025

Appeal from the Judgment of Sentence Entered August 25, 2025 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0003644-2022

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

MARCELO NATHANIEL PERRY :

:

Appellant : No. 1368 MDA 2025

Appeal from the Judgment of Sentence Entered August 25, 2025 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0004184-2022

BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and BENDER, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 17, 2026

Marcelo Nathaniel Perry appeals from the judgment of sentence imposed

following his convictions for strangulation, simple assault, two counts of

terroristic threats, three counts of intimidation of witnesses or victims, flight

to avoid apprehension, trial or punishment, two counts of criminal mischief,

and stalking.1 Perry argues the trial court erred in imposing a mandatory

minimum sentence pursuant to 42 Pa.C.S.A. § 9714 (“three-strikes statute”).

We affirm.

After a jury trial, Perry was found guilty of the above offenses. Prior to

sentencing, the Commonwealth sent notice of its intent to seek a 25-year

mandatory minimum at the strangulation count pursuant to the three-strikes

statute. That statute calls for an increased penalty when a defendant has

previously been convicted of two or more crimes of violence. The

Commonwealth contended that Perry had previously been convicted of

criminal solicitation and criminal conspiracy to commit aggravated assault on

March 8, 2005, and for burglary on April 18, 1990. It argued that those

convictions met the definition of “crimes of violence” under the three-strikes

statute and thus were considered two strikes. The Commonwealth argued that

Perry’s instant conviction for strangulation was a third strike that triggered

the mandatory minimum under the three-strikes statute.

____________________________________________

1 18 Pa.C.S.A. §§ 2718(a)(1), 2701(a)(1), 2706(a)(1), 4952(a)(1) and (a)(3),

5126, 3304(a)(5), and 2709.1(a)(2), respectively.

3

At sentencing, the Commonwealth presented documentation regarding

Perry’s previous convictions. First, the Commonwealth presented Exhibit 1 as

proof of Perry’s convictions for criminal solicitation and criminal conspiracy to

commit aggravated assault on March 8, 2005. N.T. Sentencing, 8/25/25, at

3. Exhibit 1 consisted of the following:

• A certified copy of the Common Pleas Court of Dauphin County Docket for CP-22-CR-0000531-2005 indicating Perry pled guilty to criminal solicitation and criminal conspiracy on March 8, 2005;

• A certified copy of the Corrected Court Commitment indicating Perry’s convictions for criminal solicitation and criminal conspiracy to commit aggravated assault on March 8, 2005;

• A copy of the Court Commitment indicating Perry’s convictions for criminal solicitation and criminal conspiracy dated March 8, 2005;

• A copy of a document dated March 8, 2005 indicating Perry pled guilty to solicitation to commit aggravated assault and conspiracy to commit aggravated assault;

• A time-stamped copy of the sentencing guidelines dated March 15, 2005 for “(Solicitation) Aggravated Assault – Attempt S.B.I.” setting forth the title and section as “(18-902) 18 2702(a)(1);”

• A time-stamped copy of the sentencing guidelines dated March 15, 2005 for “(Conspiracy) Aggravated Assault – Attempt S.B.I.” setting forth the title and section as “(18-903) 18 2702(a)(1);” and

• A copy of the Criminal Information for Docket 531-

2005 indicating Perry’s charges for criminal solicitation and criminal conspiracy to commit aggravated assault.

Commonwealth’s Exh. 1.

4

Next, the Commonwealth presented Exhibit 2 in support of Perry’s April

18, 1990 burglary conviction. N.T. at 3. Exhibit 2 consisted of the following:

• A certified copy of the Common Pleas Court of Dauphin County Docket for CP-22-CR-0001266-1989 indicating a charge of burglary against Perry under “18 § 3502 §§ A;”

• A copy of a document dated April 18, 1990 indicating Perry pled guilty to burglary at Docket 1266 CD 1989;

• A copy of the Court Commitment dated April 18, 1990, indicating Perry was sentenced to 4 to 23 months for burglary under Section 3502 at Docket 1266 CD 1989;

• A copy of the Sentencing Guideline Form dated April 18, 1990 indicating Perry was charged with burglary under Section 3502, graded as “F-1,” on Docket 1266 CD 1989;

• A copy of the Criminal Information at Docket 1266-

1989;

• A copy of the Plea of Defendant indicating Perry pled guilty on April 18, 1990;

• A time-stamped copy of a Department of Probation and Parole document indicating Perry violated parole at, among other dockets, Docket 1266-1989; and

• A copy of Perry’s Criminal Complaint that included the Probable Cause Affidavit that provided that the crime was the burglary of a home, the victim was at home in her bedroom at the time of the burglary, Perry assaulted the victim, and Perry attempted to take items from the victim’s home.

Commonwealth’s Exh. 2.

Perry’s counsel acknowledged that Perry was facing a 25-year

mandatory minimum sentence but argued that “it’s been quite some time”

since the 1990 conviction. N.T. at 4.

5

The trial court sentenced Perry to a mandatory minimum of 25 to 50

years’ incarceration. Id. at 8. Perry filed a post-sentence motion, which was

denied. This appeal followed.

Perry raises a single issue on appeal: “Whether the trial court erred in

sentencing [Perry] to serve 25 to 50 years as a [third] strike mandatory

minimum pursuant to 42 Pa.C.S.A. [§] 9714 where the Commonwealth failed

to introduce sufficient evidence establishing prior convictions for crimes of

violence[?]” Perry’s Br. at 4.

Perry argues that the Commonwealth failed to establish that his prior

convictions for burglary and aggravated assault met the criteria of crimes of

violence under the three-strikes statute. Id. at 8. He contends that the

criminal information for both solicitation and conspiracy list the crime of

aggravated assault, but no section number is provided. Id. at 11-12. Perry

notes while the sentencing guidelines list the aggravated assault offense as

Section 2702(a)(1), “[t]he Commonwealth did not provide a transcript of

proceedings for either docket to confirm the specifics of what [Perry] was

convicted of or pled to.” Id. at 12. He points out that the aggravated assault

statute has nine subsections, but only subsections (a)(1) and (a)(2) are

considered crimes of violence under the three-strikes statute. Id. Perry further

argues that the court failed to make a determination on the record, by a

preponderance of the evidence, “as to the applicability of the mandatory

minimum,” in contravention of Section 9714(d) of the three-strikes statute.

Id. at 13.

6

Perry’s issue challenges the legality of his sentence. “[A] challenge to

the application of a mandatory minimum sentence is a non-waivable challenge

to the legality of sentence.” Commonwealth v. Hopkins, 67 A.3d 817, 821

(Pa.Super. 2013) (citation omitted). The scope and standard of review we use

to determine the legality of a sentence are well-established:

If no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated. In evaluating a trial court’s application of a statute, our standard of review is plenary and is limited to determining whether the trial court committed an error of law.

Id. (citation omitted).

The purpose of the three-strikes statute “is to deter violent criminal acts

by imposing harsher penalties on those who commit repeated crimes of

violence.” Commonwealth v. Norris, 819 A.2d 568, 573 (Pa.Super. 2003)

(citation omitted). The statute provides, in relevant part:

(a) Mandatory sentence.--

***

(2) Where the person had at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.

7

***

(d) Proof at sentencing.--Provisions of this section shall not be an element of the crime and notice thereof to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth’s intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The sentencing court, prior to imposing sentence on an offender under subsection (a), shall have a complete record of the previous convictions of the offender, copies of which shall be furnished to the offender. If the offender or the attorney for the Commonwealth contests the accuracy of the record, the court shall schedule a hearing and direct the offender and the attorney for the Commonwealth to submit evidence regarding the previous convictions of the offender. The court shall then determine, by a preponderance of the evidence, the previous convictions of the offender and, if this section is applicable, shall impose sentence in accordance with this section. Should a previous conviction be vacated and an acquittal or final discharge entered subsequent to imposition of sentence under this section, the offender shall have the right to petition the sentencing court for reconsideration of sentence if this section would not have been applicable except for the conviction which was vacated.

42 Pa.C.S.A. § 9714(a)(2), (d).

To constitute a strike, a prior conviction must be a “crime of violence.”

42 Pa.C.S.A. § 9714(a)(2). Subsection (g) lists numerous crimes that are

considered “crimes of violence,” including “aggravated assault as defined in

18 Pa.C.S.[A.] § 2702(a)(1) or (2)” and “burglary as defined in 18 Pa.C.S.[A.]

§ 3502(a)(1).” 42 Pa.C.S.A. § 9714(g).

Here, the court found that the Commonwealth presented sufficient

evidence that Perry’s previous convictions were strikes. It explained:

8

[T]he record provided to [Perry] and the [c]ourt, admitted as Commonwealth’s Exhibit 2 at the Sentencing Hearing, sufficiently established by a preponderance of the evidence that [Perry’s] conviction [for burglary] was, in fact, a first strike.

Specifically, the Probable Cause Affidavit in support of the Criminal Complaint alleged that the victim was asleep in her bedroom when she was awakened by the sound of her bedroom door being opened. She discovered [Perry], who physically pinned her arms down to the bed. After she broke free and [Perry] left her residence, she discovered that various items had been moved in her home and that the cords for her stereo had been unplugged. [Perry] entered a plea of guilty to the allegations.

Burglary constitutes a crime of violence when one enters a building or occupied structure that is adapted for overnight accommodation, with the intent to commit a crime therein, in which, at the time of the offense, any person is present. 42 Pa.C.S.A. § 9714(g); 18 Pa.C.S.A. § 3502(a)(1). The Probable Cause Affidavit from [Perry’s 1990] case clearly establishes these facts, which were not contested or controverted by [Perry].

***

Next, we turn to an examination of [Perry’s] 2005 conviction docketed at CP-22-CR-531-2005. [Perry] was convicted of Criminal Solicitation and Criminal Conspiracy. The Criminal Information identifies the object offense of each of those inchoate crimes as Aggravated Assault. [Perry] argues that, although Criminal Solicitation and Criminal Conspiracy to commit a crime of violence also constitute crimes of violence, neither the Criminal Information nor the sentencing order identify the applicable subsection of the Aggravated Assault statute and correctly points out that only 18 Pa.C.S.A. §§ 2702(a)(1) and (2) constitute strikes pursuant to 42 Pa.C.S.A. § 9714(g).

However, the applicable sentencing guidelines for the 2005 case were submitted to [Perry] and the [c]ourt as part of Commonwealth’s Exhibit 1. Those documents identify the offenses to which [Perry] pled guilty as Criminal Solicitation and Criminal Conspiracy to commit Aggravated Assault pursuant to 18 Pa.C.S.A. § 2702(a)(1), graded as felonies

9

of the first degree. Again, [Perry] did not contest or contradict this assertion by the Commonwealth.

Memorandum Opinion, filed 11/19/25, at 4-5, 6-7 (footnotes omitted).

A review of the record indicates that the Commonwealth presented

sufficient evidence that Perry’s prior convictions constituted crimes of violence

under the three-strikes statute and the court properly sentenced Perry to the

mandatory minimum of 25 years. First, as to Perry’s prior burglary conviction,

the Commonwealth presented Exhibit 2, which contained numerous legal

documents supporting his conviction, including a probable cause affidavit

setting forth the elements of burglary.2 Next, as to Perry’s prior aggravated

assault conviction, the Commonwealth presented Exhibit 1, which included the

applicable sentencing guidelines that identified the offenses to which Perry

pled guilty as criminal solicitation and criminal conspiracy to commit

aggravated assault pursuant to 18 Pa.C.S.A. § 2702(a)(1). Section 2702(a)(1)

is listed as a “crime of violence” under the three-strikes statute. See 42

Pa.C.S.A. § 9714(g).

Furthermore, the sentencing transcript reflects that the Commonwealth

notified Perry of its intention to seek the mandatory minimum sentence,

____________________________________________

2 We note that Perry does not argue or explain why the evidence of the burglary conviction was insufficient. He simply recounts that the Commonwealth presented a docket summary where he entered a guilty plea, he was sentenced to four to 23 months’ incarceration, and the criminal complaint states the building he entered into was a residence with a person inside. See Perry’s Br. at 11. “[U]ndeveloped claims are waived and unreviewable on appeal.” Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (OAJC). We therefore could find waiver, but we decline to do so because we find the evidence of Perry’s burglary conviction was sufficient.

10

provided him copies of records of his previous convictions, which were also

provided to the court at sentencing, and Perry did not dispute the accuracy of

those records or that the mandatory minimum appropriately applied to him.

N.T. at 2-4.

Lastly, we address Perry’s contention that the court failed to make a

determination on the record, by a preponderance of the evidence, that his

sentence was the result of the requested mandatory minimum, in

contravention of Section 9714(d). As set forth above, Section 9714(d) states,

in relevant part:

If the offender or the attorney for the Commonwealth contests the accuracy of the record, the court shall schedule a hearing and direct the offender and the attorney for the Commonwealth to submit evidence regarding the previous convictions of the offender. The court shall then determine, by a preponderance of the evidence, the previous convictions of the offender and, if this section is applicable, shall impose sentence in accordance with this section.

42 Pa.C.S.A. § 9714(d).

Here, Perry never contested the accuracy of the record or the application

of the 25-year mandatory minimum sentence. Therefore, the court was not

required to make a finding regarding the preponderance of the evidence of

Perry’s previous convictions, and that portion of Section 9714(d) was

inapplicable here. Further, it is apparent from the sentencing transcript that

the court imposed Perry’s sentence pursuant to the three-strikes statute. No

relief is due.

11

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 8/17/2026