Com. v. Martinez, M.

Opinion

J-A04031-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL MARTINEZ : : Appellant : No. 1052 EDA 2020

Appeal from the Judgment of Sentence Entered October 8, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007000-2018

BEFORE: LAZARUS, J., NICHOLS, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 21, 2022

This direct appeal returns to us after we granted reconsideration on the

sole issue of whether the court erred in admitting an audio recording. We had

initially found the issue waived because Martinez failed to ensure the audio

recording’s inclusion in the certified record. We granted reconsideration and

allowed Martinez to supplement the record. See Order, entered 7/08/22 (per

curiam). We now address this issue, reaffirm in part our prior decision, and

remand for further proceedings.

According to the trial testimony, on the morning of August 12, 2018,

Martinez attempted to convince the victim, Martinez’s then-wife, not to divorce

him. The victim went to work, and Martinez texted her several times. When

she returned home, Martinez was standing by the back door. N.T., 6/13/19,

at 30, 36. When the victim attempted to walk past him, Martinez tried talking

to the victim, but she declined. Id. at 37. Martinez grabbed the victim’s arm, J-A04031-22

and when she tried to pull away, he reached up her skirt and pushed his

fingers inside of her vagina. Id. at 37-40. He then removed his fingers and

said, “You dirty fucking whore, I knew it.” Id. at 38. The victim went inside

and called her sister and her divorce attorney. Id. at 38-39. The victim later

called the police who eventually arrested Martinez. Id. at 39, 111.

The Commonwealth charged him with several crimes including

aggravated indecent assault (lack of consent).1 The Commonwealth filed a

motion in limine to admit text messages, emails, and an audio recording of a

conversation between the victim and Martinez. The full length of the audio

recording was eight minutes and 38 seconds and was recorded in June 2018,

two months before the instant assault. See N.T. 6/13/19, at 54;

Commonwealth’s Ex. 8. The Commonwealth argued that in the recording,

“[the victim] makes these accusations that you did this to me, and he adopts

them and makes excuses for why he did these things.” N.T., Motion Volume

1, 5/6/19, at 10. The Commonwealth maintained that the audio “covers the

incident about the assault in the shower and the mudroom.” Id.

Defense counsel countered that the evidence was more prejudicial than

probative. He argued that “none of this is admissible under 404(b). And it is

all going towards bad character and propensity[.]” Id. at 14. Counsel also

argued that Martinez’s intent was irrelevant because it was not an element of

the crime. Id. at 15.

____________________________________________

1 18 Pa.C.S.A. § 3125(a)(1).

-2- J-A04031-22

The court ruled that the audio recording was admissible. Id. at 24. This

ruling was limited to the portion that the Commonwealth had played during

the hearing on the motion in limine which the parties agree was an edited

version of the recording. See Martinez’s Br. at 17 (stating recording played

for jury was four minutes); accord Commonwealth’s Br. at 5 (“The jury also

heard an edited version of the June 2018 audio recording”).

Martinez proceeded to a jury trial. Relevant to this appeal, the

Commonwealth introduced the edited audio as Commonwealth’s Exhibit 8.

See N.T., Trial, 6/13/19, at 54. The Commonwealth also introduced a

transcription of the recording. See Commonwealth’s Ex. 9. Before, during,

and after the recording was played, counsel made no objections. See N.T.,

Trial, 6/13/19, at 54. The jury found Martinez guilty of aggravated indecent

assault (lack of consent). At sentencing, the trial court considered sentencing

memoranda from both parties, a Pre-Sentence Investigation report (“PSI”), a

mental health evaluation, a victim impact statement, the conviction, letters

admitted as part of the memoranda, and Martinez’s allocution. See N.T.,

Sentencing, 10/8/19, at 12. The court imposed a sentence of three to six

years’ incarceration followed by three years’ reporting probation.

Martinez filed a post-sentence motion challenging his sentence, the

court’s ruling on the Commonwealth’s motion in limine, and the sufficiency

and weight of the evidence. Post-Sentence Mot., filed 10/17/19. The motion

was denied by operation of law and this timely appeal followed.

-3- J-A04031-22

We now review Martinez’s challenge to the court’s admission of the

audio recording. He argues that the evidence only “showed that because

[Martinez] used foul language towards the Complainant in February, he was

more likely to act in conformity therewith and engage in distasteful behavior

in August.” Martinez’s Br. at 24. Martinez further maintains that the

Commonwealth played a portion of the audio recording that the court ruled

inadmissible. See id. at 20. He also argues that the res gestae exception is

inapplicable “because the contents of the . . . audio recording are not part of

the same transaction involving the charged crime.” Id. at 24.

We review rulings on the admission of evidence for an abuse of

discretion. See Commonwealth v. Elliott, 80 A.3d 415, 446 (Pa. 2013). To

be admissible, evidence must be relevant. Pa.R.E. 402. This means that “it

logically tends to establish a material fact in the case, tends to make a fact at

issue more or less probable, or tends to support a reasonable inference or

presumption regarding a material fact.” Commonwealth v. Danzey, 210

A.3d 333, 342 (Pa.Super. 2019) (citation omitted). Nonetheless, “[e]vidence

of any other crime, wrong, or act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in

accordance with the character.” Pa.R.E. 404(b)(1). This type of evidence is

commonly known as “bad acts” evidence. See Commonwealth v. Hicks, 156

A.3d 1114, 1125 (Pa. 2017). Bad acts evidence may be admissible if it is

offered for another, proper purpose, such as “proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

-4- J-A04031-22

accident.” Pa.R.E. 404(b)(2). Where bad acts evidence is offered for a proper

purpose in a criminal case, the probative value of the evidence must outweigh

its potential for unfair prejudice. Id.

Bad acts evidence may also be admissible under the res gestae

exception. This exception permits the admission of evidence of other crimes

or bad acts to tell “the complete story.” See Commonwealth v. Hairston,

84 A.3d 657, 665 (Pa. 2014). It applies where the other crimes or bad acts

“were part of a chain or sequence of events which formed the history of the

case and were part of its natural development.” Commonwealth v. Brown,

52 A.3d 320, 326 (Pa.Super. 2012) (citation omitted).

Here, the trial court concluded that the bad acts evidence, including the

audio, demonstrated Martinez’s ill-will and intent towards the victim and

showed Martinez’s previous physical threats towards the victim. Trial Court

Opinion, filed 1/12/21, at 7. It also concluded that the evidence was

admissible under the res gestae exception since the evidence “explained the

history and course of events between the victim and [Martinez].” Id.

Martinez’s claim that the Commonwealth played a portion of the audio

that the court ruled as inadmissible is waived because Martinez failed to make

a timely and specific objection at trial. See N.T., Trial, 6/13/19, at 54;

Commonwealth v. Marrero, 217 A.3d 888, 890 (Pa.Super. 2019)

-5- J-A04031-22

(reiterating that “a party must make a timely and specific objection at trial in

order to preserve an issue for appellate review”).2

Moving on to the remainder of the recording, we discern no abuse of

discretion in admitting the audio recording. The recording contained

admissions by Martinez of his prior abuse towards the victim, such as

attacking her while she was showering and choking her in a mud room. See

Commonwealth’s Ex. 9 at 1 (unpaginated). The recording also contained

Martinez’s admission that he “snapped” when he saw what he described as

“nasty texts” from his brother to the victim. Id. The victim said that she would

never “be with” her son’s uncle and that the messages were not a reason to

choke her. Id. Martinez replied, “I snapped,” and, “I’m sorry.” Id.

The evidence of the history of Martinez’s acts towards his wife were

relevant and admissible to show his ill will and thus his motive and intent.

Although the statute defining aggravated indecent assault (lack of consent)

does not state a mens rea, the Crimes Code provides that in such a case, the

Commonwealth must prove that the defendant acted intentionally, knowingly,

or recklessly with respect to material elements of the offense. See 18

Pa.C.S.A. § 302(c); Commonwealth v. Carter, 418 A.2d 537, 539

(Pa.Super. 1980). ____________________________________________

2 Before trial began, counsel explained that to avoid constantly objecting before the jury, he was placing a standing objection to the court’s grant of the admission of evidence presented in the Commonwealth’s motion in limine. See N.T., 6/13/19, at 24-26. This standing objection, however, did not remove counsel’s responsibility to make a specific objection to evidence that he knew the court had ruled as inadmissible. See Marrero, 217 A.3d at 890.

-6- J-A04031-22

The recording was proper evidence to prove mens rea. It demonstrated

Martinez’s belief that his wife was having an affair, which he also accused her

of on the day of the sexual assault. It also showed the progression of

Martinez’s aggression towards his wife, including physical abuse, and

eventually leading to the sexual assault in the instant case. See

Commonwealth v. Powell, 956 A.2d 406, 420 (Pa. 2008) (concluding

evidence of defendant’s previous assault of victim was admissible to show the

nature of their relationship and a pattern of abuse); Commonwealth v.

Dillon, 925 A.2d 131, 139 (Pa. 2007) (concluding defendant’s prior abuse

towards victim’s family was admissible to explain the context of events leading

to sexual assault); Commonwealth v. Jackson, 900 A.2d 936, 940-41

(Pa.Super. 2006) (concluding escalation of defendant’s physical and sexual

abuse of victim ultimately leading to her murder was admissible to show the

history of the case and establish defendant’s motive and ill will towards the

victim). The audio therefore was admissible to explain the escalation from

verbal to physical to sexual abuse, and thus, motive. See Brown, 52 A.3d at

326.

Though Martinez claims that the res gestae exception does not apply to

the instant case because the recording was allegedly not part of the same

transaction as the sexual assault, we disagree. The res gestae exception

applies where the acts “are so clearly and inextricably mixed up with the

history of the guilty act itself as to form part of one chain of relevant

circumstances, and so could not be excluded on the presentation of the case

-7- J-A04031-22

before the jury without the evidence being rendered thereby unintelligible.”

Id. at 330-31 (citation omitted) (emphasis removed).

Here, Martinez’s prior abusive acts completed the story and enabled the

jury to understand the escalation of his conduct towards his wife, leading to

the sexual assault. See Powell, 956 A.2d at 420; Dillon, 925 A.2d at 139;

Jackson, 900 A.2d at 940-41. The court properly admitted the audio.

We now reaffirm our prior disposition. Martinez raises the following

issues:

1. Whether the trial court committed an abuse of discretion when it granted the Commonwealth’s motion to admit text messages, emails, and an audio recording under Pa.R.E. 404(b).

2. Whether the court failed to consider the factors set forth in 42 Pa.C.S.A. § 9721(b) when it sentenced [Martinez] to 3 to 6 years[’] incarceration plus 3 years[’] probation.

3. Whether [Martinez’s] lifetime registration requirement is violative of his due process rights pursuant [to] the Supreme Court’s holding in Commonwealth v. Torsilieri.

Martinez’s Br. at 4 (answers omitted).

Text Messages

Martinez maintains that following message was inadmissible. We reprint

it verbatim:

fuck all you caddi gossip talking people belitting uneduacted non- English knowing drama queens y aim not afraid to text I have plenty of text from you the complete conversation of text for 10 months beleive me I have plenty to show your abusive ways too and there is no turning back i gave you time to rethink this but instead you want to stick your head up your sister’s ass

-8- J-A04031-22

Commonwealth’s Exhibit 6.

Martinez sent this text to the victim on the day of the assault, prior to

assaulting her. See N.T., 6/13/19, at 31, 34. Martinez claims that the message

was irrelevant and that the trial court erred in admitting it to show intent since

intent is not an element of aggravated indecent assault (lack of consent). See

Martinez’s Br. at 21.

We find no abuse of discretion. This message, in conjunction with the

other evidence, was relevant to demonstrate the progression of Martinez’s

aggression towards the victim, from continued harassment to the incident at

issue. See N.T., 6/13/19, at 31, 34-35 (discussion of text messages sent from

Martinez to the victim on the day of the assault). The message was admissible

to explain the escalation from verbal to sexual abuse, and thus motive. See

Brown, 52 A.3d at 326.

The evidence was also relevant to mens rea. Contrary to Martinez’s

contention, there is an “intent” element to aggravated indecent assault (lack

of consent). As we previously stated, when a statute is silent as to the required

mens rea the Commonwealth must prove that the defendant acted

intentionally, knowingly, or recklessly with respect to material elements of the

offense. See 18 Pa.C.S.A. § 302(c); Carter, 418 A.2d at 542-43. The evidence

of the history of Martinez’s increasing acrimony and aggression, together with

the testimony describing the events of the specific incident in question, were

relevant to prove that Martinez was at least reckless as to the lack of consent.

Emails

-9- J-A04031-22

We have reprinted the content of the contested emails verbatim:

I already am im done with your whore ass and im as serious as can be I put you and your family ahead of everything for years even being a father to your boys canceling my surgery so you can hand your boys 400 bucks and my kids got a merry Christmas text I don’t care who you fuck who sticks in your mouth asshole cunt I don’t care but I am recouping what is due to me through the court not what you say but what the court says and if you want to talk to my attorney when I get yourself fine but im telling you im doing it and im not playing so you better retain council because its coming i9m sick of your abuse of me because your to fucking stupid to understand you’re a no good WHORE who I should have never married you are scum

don’t turn my phone on now or ever the damage is done and just think if I had the ability to shut your phone off I never would because I know it doesn’t just affect you just like shutting my phone off doesn’t affect me don’t say 2 words to me don’t send anyone to speak to me do not write letters send smoke signals or anything else you want it you got it now im done sitting around doing nothing I am getting a lawyer you better get one too because I am serous you kunt

Really its a slang and has no proper spelling but I know the difference between wear, ware and where I know the difference between great and frate if you got tested your IQ would be lower than a moron or mongoloid you are you are functionally illiterate that's why your paycheck reflects it and your real estate school is a waste in the chance you do pass, you will never use it to sell a house this is bartending school all over you dope

Commonwealth’s Exhibit 5 (victim’s responses omitted). For these messages,

Martinez’s argument is the same as for the text message, i.e., the messages

are not admissible under the res gestae exception, and they are not admissible

to prove his intent because his intent is irrelevant.

- 10 - J-A04031-22

Here, the trial court concluded that the messages were relevant and

admissible because they showed Martinez’s previous accusations of the

victim’s alleged infidelity. 1925(a) Op., at 7. It also concluded that like the

texts, the emails were admissible under res gestae to explain “the history and

course of events between the victim and [Martinez].” Id. The trial court

properly admitted these emails.

As with the text messages, the emails were admissible to explain the

escalation from verbal to sexual abuse, and thus motive. See Brown, 52 A.3d

at 326. The emails were also admissible under the res gestae exception as the

messages served to explain the intensifying aggression that led to the

eventual assault of the victim. The messages included multiple references to

Martinez’s belief that there was infidelity on the part of the victim, of which

he accused her when he assaulted her in the instant case. Furthermore, as

with the text message, the emails proved Martinez’s recklessness as to the

lack of consent. See 18 Pa.C.S.A. § 3125(a)(1); 18 Pa.C.S.A. § 302(c) (stating

where statute is silent as to culpability to establish a material element, the

element is satisfied where the individual acts intentionally, knowingly, or

recklessly); Commonwealth v. Cosby, 224 A.3d 372, 419 (Pa.Super. 2019),

vacated on other grounds, 252 A.3d 1092 (Pa. 2021), (concluding

recklessness to be the requisite mens rea of Section 3125(a)). We discern no

abuse of discretion by the trial court in admitting the emails.

Martinez also challenges the discretionary aspects of his sentence. There

is no automatic right to appellate review of such a challenge. See

- 11 - J-A04031-22

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa.Super. 2013). To obtain

review of such an issue, the appellant must have: 1) timely filed a notice of

appeal; 2) preserved the issue in a post-sentence motion or at sentencing; 3)

included a Pa.R.A.P. 2119(f) statement in the brief; and 4) raised a substantial

question. See id.

Here, Martinez has met these prerequisites. He filed a timely notice of

appeal, preserved the challenge to his sentence in a post-sentence motion,

and included a Rule 2119(f) statement in his brief. He also raises a substantial

question that the court imposed “a sentence without considering the required

factors under 42 Pa.C.S.[A.] § 9721(b).” Martinez’s Br. at 16;

Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.Super. 2006) (concluding

that claim that court failed to consider required factors under Section 9721(b)

raises a substantial question).

Martinez alleges that the record does not show “that the court

considered . . . the protection of the public, the gravity of the offense as it

relates to the community, or the rehabilitative needs of [Martinez] in imposing

sentence.” Martinez’s Br. at 29. He states that he had a prior record score of

zero at the time of sentencing and some charges were nolle prossed by the

Commonwealth. Id. at 28, 29. He argues that “it is unclear whether the

additional charges played a role in the court’s determination.” Id. at 30.

The record belies Martinez’s argument. At the sentencing hearing, the

trial court stated that it considered Martinez’s convictions, the Pre-Sentence

Investigation Report (“PSI”), the mental health evaluation, the sentencing

- 12 - J-A04031-22

memorandum from both parties, the victim impact statement, and the

testimony from trial. See N.T., Sentencing, at 12. Because the court

considered a PSI, we presume it was “aware of all appropriate sentencing

factors and considerations, and that where the court has been so informed,

its discretion should not be disturbed.” Commonwealth v. Ventura, 975

A.2d 1128, 1135 (Pa.Super. 2009) (citation omitted). Additionally, Martinez’s

speculative claim that the court might have considered the nolle prossed

charges has no support in the record. We discern no abuse of discretion by

the trial court.

Martinez’s final claim challenges his lifetime registration under SORNA.

He maintains that the registration violates his due process rights because “it

impairs his right to reputation through the utilization of an irrebuttable

presumption, deprives him of the requisite notice and opportunity to be

heard[.]” Martinez’s Br. at 30-31 (footnote omitted). He also alleges that the

required registration “violates Apprendi and Alleyne by allowing the

imposition of enhanced punishment based on an irrebuttable presumption of

future dangerousness that is neither determined by the finder of fact nor

premised upon proof beyond a reasonable doubt.” 3 Id. at 31 (footnotes

omitted). Martinez cites our Supreme Court’s decision in Commonwealth v.

Torsilieri, 232 A.3d 567 (Pa. 2020), and argues that the case should be

remanded in accordance with Torsilieri. ____________________________________________

3Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United States, 570 U.S. 99 (2013).

- 13 - J-A04031-22

In Torsilieri, the defendant challenged his registration requirements

under Subchapter H of SORNA, which governs registration for offenders whose

relevant convictions occurred on or after December 20, 2012. He maintained

that Subchapter H violated his due process rights because it imposes lifetime

registration requirements based on an allegedly unconstitutional irrebuttable

presumption of dangerousness. The trial court determined that Subchapter H

was unconstitutional and vacated Torsilieri's sentence as to his registration

requirements. On discretionary appeal, our Supreme Court determined that

the factual record was insufficient to render a decision on the merits of

Torsilieri's challenge to Subchapter H. It therefore remanded to the trial court

for development of the record. See Torsilieri, 232 A.3d at 596.

Although Martinez did not raise this issue before the trial court, such an

issue may be raised for the first time on appeal since it implicates the legality

of his sentence. See Commonwealth v. Thorne, 276 A.3d 1192, 1198 (Pa.

2022). And because Martinez raised this issue for the first time before this

Court, the record is inadequate for us to dispose of his claim. As such, we

remand this case for the trial court to hold a hearing on the constitutional

challenges to SORNA that Martinez raised before this Court. See Torsilieri,

232 A.3d at 596.

Judgment of sentence affirmed. Case remanded for proceedings

consistent with Torsilieri. Jurisdiction relinquished.

- 14 - J-A04031-22

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/21/2022

- 15 -