J-S73014-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM ANTONIO MARRERORODRIGUEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1066 MDA 2019

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,3two 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 

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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 

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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.

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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