Com. v. Marrero-Nardo, S., Sr., 572 MDA 2021

Appellant Samuel Marrero-Nardo was convicted of sexual offenses for assaults on two sisters (Victim 1 aged ~14–15; Victim 2 aged 9) occurring between May 2004 and May 2005.
Victim testimony was supplemented by two 2014 Facebook messages sent to Victim 1; one message contained explicit sexual content.
A jailhouse witness, Luis Figueroa, testified that Appellant admitted sexual contact and that Appellant would blame his son if the girls reported the abuses.
At trial Appellant denied the offenses, blamed his son for one Facebook message, and admitted he sometimes stayed overnight at the victims’ home during part of the charged year.
Appellant was convicted and sentenced to an aggregate 92 months to 17 years; direct appeal and Pennsylvania Supreme Court review were denied.
In a timely PCRA petition Appellant alleged trial counsel was ineffective for (1) failing to request the standard alibi instruction, (2) failing to call Alicia Keefer to rebut message ownership, and (3) failing to request a jury instruction about Figueroa’s pending charges; the PCRA court denied relief and the Superior Court affirmed.

Issue	Appellant's Argument	Commonwealth's Argument	Held
Failure to request standard alibi instruction	Trial counsel was ineffective for not asking for an alibi instruction where defense presented alibi witnesses	Appellant’s proof did not show impossibility of commission because he admitted staying overnight during the charged period	Denied — no arguable merit: evidence did not make it impossible he committed offenses, so no alibi instruction was warranted
Failure to call Alicia Keefer as a witness	Keefer would have testified the December 2014 Facebook number belonged to Appellant’s son, undermining Commonwealth’s evidence	No proof Keefer was willing to testify or what her testimony would be; counsel therefore had no duty to call her	Denied — ineffective assistance not shown: appellant failed to prove witness availability or what her testimony would have been
Failure to request instruction about Figueroa’s pending charges	Counsel should have requested a specific instruction that pending charges create bias affecting credibility	Figueroa’s pending charges and motive were thoroughly explored at trial and the jury received the usual bias/motive instruction	Denied — request had arguable merit but no prejudice: bias was fully developed and standard instructions given; no reasonable probability of different outcome

Commonwealth v. Mason, 130 A.3d 601 (2015) (PCRA ineffective-assistance standard)
Commonwealth v. Sneed, 45 A.3d 1096 (2012) (standard for ineffective assistance for failure to call witness)
Commonwealth v. Jones, 210 A.3d 1014 (2019) (when alibi instruction is required)
Commonwealth v. Johnson, 966 A.2d 523 (2009) (alibi/defense instruction principles)
Commonwealth v. Collins, 702 A.2d 540 (1997) (no alibi instruction where evidence does not make commission impossible)
Commonwealth v. Kolenda, 676 A.2d 1187 (1996) (alibi instruction entitlement)
Commonwealth v. Bookard, 978 A.2d 1006 (2009) (alibi instruction analysis)
Commonwealth v. Harris, 852 A.2d 1168 (2004) (instruction regarding witness motive/leniency has arguable merit)
Commonwealth v. Thompson, 739 A.2d 1023 (1999) (instruction on pending charges and credibility)
Commonwealth v. Lopez, 739 A.2d 485 (1999) (requirements for proving prejudice from failure to call witness)
Commonwealth v. Selenski, 228 A.3d 8 (2020) (PCRA review standards; witness affidavit requirement)
Commonwealth v. Hutchinson, 25 A.3d 277 (2011) (limits on cumulative prejudice claims)