Com. v. Martinez, M.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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