Com. v. Martinez, M. ( 2021 )

J-S28027-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARVIN MARTINEZ :
:
Appellant : No. 2235 EDA 2020
Appeal from the Judgment of Sentence Entered March 13, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003708-2018
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY DUBOW, J.: Filed: October 28, 2021
Appellant, Marvin Martinez, appeals from the March 13, 2019 Judgment
of Sentence entered in the Philadelphia Court of Common Pleas following his
non-jury conviction of Unlawful Contact with Minor, Corruption of Minor, and
Indecent Assault – Person Less than 13 Years of Age. Upon review, we affirm.
A detailed recitation on the factual and procedural history is unnecessary
to our review. Briefly, on December 16, 2017, K.C. and L.B., who were both
12 years old at the time, visited the home of a family friend where they played
hide and seek with Appellant. While Appellant was hiding with K.C. in the
basement, he pulled K.C. on his lap and, while her clothes were still on,
grabbed her vagina, touched her breasts, and rubbed her inner thighs over
her clothes. Appellant proceeded to ask K.C. whether she had a boyfriend or
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* Retired Senior Judge assigned to the Superior Court.
J-S28027-21
had received her first kiss, and told her not to tell her parents what happened.
Later during the hide and seek game, Appellant rubbed L.B.’s leg from her
ankle up to her knee while she was hiding behind a curtain. A few days later,
after K.C. was discovered cutting herself in school, K.C. disclosed the incident
with Appellant to a school counselor, hospital crisis workers, and police, who
subsequently arrested Appellant.
On January 11, 2019, the trial court held a non-jury trial. The
Commonwealth presented testimony from K.C. and L.B., who were both
approximately 13½ years of age at the time of trial, and testified to the above
events. The Commonwealth also presented testimony from K.C.’s mother and
Leslie Santos, a forensic interviewer for Philadelphia Children’s Alliance.
Appellant failed to raise an objection to K.C. or L.B.’s testimony based on
competency and had an opportunity to cross-examine all of the
Commonwealth’s witnesses.
Appellant testified on his own behalf, alleging a different version of
events. In sum, Appellant testified that when he was hiding with K.C. in the
dark basement, he asked K.C. if she was scared, put his hand over K.C.’s
heart to feel her heartbeat, and asked her about whether she had a boyfriend
or if she had ever been kissed just to make conversation like he did with his
own children.
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At the conclusion of the trial, the trial court found Appellant guilty of all
charges related to K.C.1 On March 13, 2019, the trial court sentenced
Appellant to an aggregate sentence of six to twelve months’ incarceration
followed by five years of probation.
Appellant timely appealed.2 Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
a. Did the trial court err, abuse its discretion, and/or make a
mistake of law when it allowed the Commonwealth’s child
witnesses to testify without an independent examination that
these witnesses possessed competency?
b. Did the trial court err, abuse its discretion, and/or make a
mistake of law when it found [Appellant] guilty in the absence
of competent testimony?
Appellant’s Br. at 6.
In his first issue, Appellant avers that Pennsylvania law requires a
“searching judicial inquiry as to the mental capacity of witnesses under the
age of fourteen.” Appellant’s Br. at 12. Appellant argues that the trial court
erred when the court allowed child witnesses K.C. and L.B., who were both
under fourteen years of age at the time of trial, to testify without making an
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1 The trial court found Appellant not guilty of all charges related to L.B.
2 On October 28, 2020, the trial court granted Appellant’s Petition filed
pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-46,
and reinstated Appellant’s appeal rights nunc pro tunc.
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independent determination of whether the child witnesses were competent to
testify. Id. This claim of error is waived.
It is well settled that “[f]ailure to timely object to a basic and
fundamental error will result in waiver of that issue.” In Interest of A.W.,
187 A.3d 247, 252-53. (Pa. Super. 2018) (citation omitted). This court will
not consider a claim of error when an appellant fails to raise the claim in the
trial court at a time when the error could have been corrected. Id. at 253;
see also Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and
cannot be raised for the first time on appeal.”). This court has explained, “the
competency of a child is to be determined at the time he is offered as a
witness. It is the privilege and right of the objector to have the witness
examined on his voir dire before he is sworn.” Commonwealth v. McKinley,
123 A.2d 735, 737 (Pa. Super. 1956) (citation omitted). A failure to object to
the competency of a child witness during the trial, especially when coupled
with an opportunity to cross-examine that child witness, results in a waiver of
any objection regarding the witness’ competency. Id.Instantly, Appellant failed to lodge an objection to K.C. and L.B.’s
testimony before or during trial. Moreover, Appellant’s counsel had an
opportunity to cross-examine both witnesses and question them regarding
their competency. Accordingly, because Appellant failed to raise this issue
before the trial court, we are constrained to conclude that this issue is waived.
In light of our disposition, we decline to address Appellant’s remaining issue
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that the trial court erred when it found Appellant guilty in the absence of
competent testimony from K.C. and L.B.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/21
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