Com. v. Martinez-Colomba, L.V., Jr.

J-S30018-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

LUIS V. MARTINEZ-COLOMBA, JR. :

:

Appellant : No. 1506 MDA 2020

Appeal from the Judgment of Sentence Entered June 30, 2020

In the Court of Common Pleas of Lancaster County Criminal Division at

No(s): CP-36-CR-0005668-2018

BEFORE: BENDER, P.J.E., McCAFFERY, J., and COLINS, J.*

MEMORANDUM BY McCAFFERY, J.: FILED: JANUARY 28, 2022

Luis V. Martinez-Colomba, Jr. (Appellant) appeals from the judgment of

sentence entered in the Lancaster County Court of Common Pleas, following

his jury convictions of, inter alia, aggravated assault and involuntary deviate

sexual intercourse (IDSI),1 committed against his ex-girlfriend H.F. (Victim),

and her two-year-old son. On appeal, Appellant argues the trial court erred

when it permitted the Commonwealth to introduce evidence of Appellant’s

prior abuse of Victim. For the reasons below, we affirm.

The facts underlying Appellant’s convictions, as presented during his

jury trial, are as follows. Victim and Appellant began dating in April 2017,

when Victim was approximately 19 years old and had a one-year-old son.

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* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S. §§ 2702(a)(8), 3123(a)(1).

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N.T., 1/7/20, at 92-93, 105.2 Just before midnight on August 21, 2018, Victim

and Appellant were waiting in her car for Appellant’s friend to jump start the

battery. N.T., 1/7/20, at 105-06. Victim’s two-year-old was asleep in the

backseat. Id. at 106. The couple had been arguing, and after her car was

started, Victim asked Appellant if she could go home because she had a

headache. Id. at 106-07. Although he had started to fall asleep, Appellant

“sat up and . . . said you are not going to suck or fuck me before you leave?”

Id. at 107. He then instructed her to pull the car over and punched her “[t]en

to fifteen” times across her “right arm, [her] chest, and . . . [her] back[.]”

Id. at 107-08. Victim screamed for him to stop, but he refused, stating she

deserved it. Id. at 108. Appellant directed her to drive to an ex-boyfriend’s

house so she could “suck [Appellant’s] dick the way [she] sucked [her] ex’s

dick.” Id. He threatened to snap her neck and kill her if she did not comply.

Id.

Victim parked on the street, and Appellant “pushed her head down to

perform oral sex on him.” N.T., 1/7/20, at 109-10. She was “crying,

panicking, screaming from being beat,” and could not breathe to such an

extent that she threw up in the car. Id. at 111. Appellant however “pushed

[her] back down” and forced her to continue until he ejaculated. Id. at 112.

Appellant then told her she could go home. Id. at 113. Victim dropped

Appellant at his house, at which time he apologized. Id.

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2 Victim testified that at the time of trial in January of 2020, she was 22 years

old and her son was four years old. N.T., 1/7/20, at 92, 105.

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Victim arrived home at approximately 4:00 a.m. and slept for about four

hours before Appellant began “calling [her] and asking [her] where [she]

was.” N.T., 1/7/20, at 114. He apologized again and told her he was “going

to change.” Id. Victim returned to Appellant’s house at approximately 11:30

a.m. Id. Appellant was “calm” and told her he “knew what he had done to

[her].” Id. at 115.

However, around 3:00 p.m., Appellant’s “mood changed” and he ignited

an argument. N.T., 1/7/20, at 115. To diffuse the situation, Victim told

Appellant she was going to take her son for a walk. Id. When her son “yelled

bye to him,” Appellant “grabbed [the child] out [of] the stroller, threw him in

the car seat, smacked him, open hand, in the face, causing his lip to bleed

and told [Victim] to go walk by [herself].” 3 Id. at 115-16. Appellant then

sped around the block twice with Victim’s son in the car. Id. at 117. Victim,

communicating with Appellant through Facebook messenger, asked him if he

would take her to her grandparents’ house to get clothes to sell. Id.

Eventually, Appellant agreed to drive Victim to her grandparents’ home.

N.T., 1/7/20, at 117. While doing so, however, he grabbed her by the neck

and pushed her towards the gear shifter, while threatening her. Id. at 118.

When they arrived at the house, Appellant told her “not to pull any funny

shit[]” or he would “kill us all in the car.” Id. He even forced her to video

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3At trial, Victim testified this was not the first time Appellant hit her son. See

N.T., 1/7/20, at 116.

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chat him while she collected her clothes from the house. Id. at 119. However,

Victim was able to signal her aunt to alert the police. Id. at 119-20.

Appellant was subsequently charged with simple assault, aggravated

assault, terroristic threats, IDSI, and endangering the welfare of children.4 On

December 30, 2019, the Commonwealth filed a notice of intent to introduce

evidence of Appellant’s prior bad acts against Victim pursuant Pa.R.E. 404(b).

Commonwealth’s Notice of Intent, 12/30/19. Specifically, the Commonwealth

asserted the evidence was “necessary to show the complete story rationale

regarding their abusive relationship [and] to show a common[] scheme and

plan.” Id. at 3 (unpaginated). A jury trial commenced on January 6, 2020.

Following voir dire, Appellant objected to introduction of evidence concerning

his prior bad acts. After brief argument, the trial court overruled the objection.

See N.T., 1/6/20, at 50-51.

At trial, Victim testified that her relationship with Appellant started to

become violent in May or June of 2018. N.T., 1/7/20, at 93. She explained

he would “[c]hoke me, push me, punch me, slap me, yell at me, scream at

me, [and] threaten me.” Id. at 94. Victim stated that, throughout their

relationship, their conversations would “go from lovey dovey to aggression to

telling him to stop hurting me.” Id. at 98. She described how abuse became

a normal occurrence in their relationship:

It would be fighting and then lots of apologies, promises, and then

changing and he would be there for me, love me, changing, not

____________________________________________

4 See 18 Pa.C.S. §§ 2701(a)(1), 2706(a)(1), 4304(a)(1).

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to do it again, and then [he would] go to . . . screaming and

threatening again and then more promises, more lovey dovey

conversations.

Id. Nevertheless, Victim remained with Appellant because she “always had

hope that he wouldn’t keep hitting [her or] threatening [her].” Id. at 99.

Victim also described one specific instance of abuse that occurred on

July 24, 2018. N.T., 1/7/20, at 103-04. Appellant slept in his car outside of

Victim’s home the night before and was angry she had taken her cell phone in

the house with her. Id. at 104. She testified that when she was leaving for

work the next morning:

[Appellant] started screaming at me, how I don’t trust him. And

he had a cup of pee in a coffee cup in the car and he was asking

me if I trust him. I was ignoring him. And he kept asking me and

I’m silent and . . . was like trying to answer and he dumped pee

on me.

Id.

On January 9, 2020, the jury found Appellant guilty of all charges. Due

to the COVID-19 pandemic, sentencing was delayed until June 30, 2020. The

trial court sentenced Appellant to an aggregate term of 7 1/2 to 20 years’

imprisonment.5 Sentencing Order, 6/30/20, at 1-3. On July 10, 2020,

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5 As a result of his conviction of IDSI, Appellant was also required to register

as a Tier III sex offender for his lifetime pursuant to Pennsylvania’s Sexual

Offender Registration and Notification Act (SORNA). See 42 Pa.C.S. §§

9799.14(d)(4) (IDSI is Tier III sexual offense); 9799.15(a)(3) (Tier III

offenders register for lifetime).

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Appellant timely filed a post-sentence motion, which the trial court denied on

November 3, 2020. This timely appeal follows.6

Appellant raises one issue on appeal:

Whether the honorable trial court abused its discretion by

permitting the Commonwealth to introduce prior bad act evidence

. . . at trial such that Appellant should be granted a new trial?

Appellant’s Brief at 6.

Our standard of review for challenges to the admissibility of evidence is

well settled:

Admission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court

clearly abused its discretion. An abuse of discretion is not merely

an error of judgment, but is rather the overriding or misapplication

of the law, or the exercise of judgment that is manifestly

unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.

Commonwealth v. Tyson, 119 A.3d 353, 357-58 (Pa. Super. 2015) (en

banc) (citations and punctuation omitted). Thus, a trial court’s decision to

admit prior bad acts evidence under the Pennsylvania Rules of Evidence will

only be overturned upon a showing of an abuse of discretion.

Commonwealth v. Chmiel, 889 A.2d 501, 534 (Pa. 2005).

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6While Appellant erroneously purports to appeal from the November 3, 2020,

order denying his post-sentence motion, the appeal in a criminal case

“properly lies from the judgment of sentence made final by the denial of post-

sentence motions.” Commonwealth v. Shamberger, 788 A.2d 408, 410

n.2 (Pa. Super. 2001) (en banc). Thus, our Prothonotary has corrected the

caption accordingly.

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Pennsylvania Rule of Evidence 404(b) prohibits the introduction of

evidence concerning a defendant’s prior bad acts “to prove a [defendant’s]

character in order to show that on a particular occasion the [defendant] acted

in accordance with the character.” Pa.R.E. 404(b)(1). However, subsection

(b)(2) of the Rule provides that prior bad acts evidence “may be admissible

for another purpose, such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E.

404(b)(2).

Another recognized exception under Rule 404(b)(2) is the “complete

story” doctrine. Pursuant to this exception, relevant evidence of other

offenses may be admitted to explain the context or the complete story of the

events surrounding the crime in question. See Commonwealth v. Crispell,

193 A.3d 919, 936 (Pa. 2018); see also Commonwealth v. Powell, 956

A.2d 406, 419 (Pa. 2008) (prior bad acts evidence may be admitted “where

the acts were part of a chain or sequence of events that formed the history of

the case and were part of its natural development”). However, Rule 404(b)(2)

specifies that such evidence “is admissible only if the probative value of

the evidence outweighs its potential for unfair prejudice.” Pa.R.E.

404(b)(2) (emphasis added). See Commonwealth v. Brown, 52 A.3d 320,

326 (Pa. Super. 2012) (“Where the res gestae exception is applicable, the trial

court must balance the probative value of such evidence against its prejudicial

impact.”) (citation omitted). Trial courts are not obliged to sanitize a trial by

eliminating all unpleasant facts from the jury’s consideration when those facts

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are both relevant and form part of the history and natural development of the

events for which the defendant is charged. Commonwealth v. Page, 965

A.2d 1212, 1220 (Pa. Super. 2009).

Here, the trial court admitted the evidence under the “complete story”

doctrine. See Trial Ct. Op., 11/3/20, at 3. Specifically, the court found “the

prior bad act evidence . . . was relevant to help explain to the jury the

relationship of [Appellant] and [V]ictim [, and] to explain why [V]ictim was

afraid of [Appellant], continued to stay with him and delayed the reporting.”

Id. at 4. Moreover, the trial court concluded Appellant was not “unduly

prejudiced” by the evidence and emphasized that it properly instructed the

jury of the limited purpose for which it could consider the evidence. Id.

On appeal, Appellant concedes that the evidence of his prior abuse of

Victim satisfies at least one of the Rule 404(b)(2) admissibility exceptions.

Appellant’s Brief at 13. However, he argues that admission of the challenged

evidence unduly prejudiced him; he maintains the Commonwealth used the

evidence “to paint him as an abuser.” Id. at 13, 15. Appellant insists the trial

court erred when it did not properly weigh the probative value of the evidence

against its prejudicial impact under factors set forth in Commonwealth v.

Frank, 577 A.2d 609 (Pa. Super. 1990). Id. at 13-14. See Frank, 577 A.2d

at 614 (when assessing probative value of prior bad acts evidence, trial court

should consider “the degree of similarity . . . between the incidents of criminal

conduct, the Commonwealth’s need [for the] evidence . . ., and the ability of

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the trial court to caution the jury concerning the proper use of such evidence

by them in their deliberations”).

Appellant argues the prosecution had no need for the challenged

evidence because the Commonwealth was able to establish the history of his

relationship with Victim “through multiple text messages between them as

well as [V]ictim’s own testimony.” Appellant’s Brief at 16. Moreover, he

maintains the evidence was not necessary to explain a delay in reporting

because there was, in fact, no delay — “law enforcement was notified literally

as it was happening and [V]ictim gave a statement to police the day after.”

Id. at 15. Appellant also argues the prior bad acts evidence was weak since

it was supported only by Victim’s own testimony, which he characterized as

“vague.” Id. at 17-18. Therefore, Appellant contends the trial court abused

its discretion when it permitted the Commonwealth to introduce the prior bad

acts evidence, and he is entitled to a new trial.

Upon our review of the record, we detect no abuse of discretion on the

part of the trial court. As noted supra, the trial court found the evidence was

admissible under the complete story doctrine. Appellant does not dispute this

finding on appeal. Appellant’s Brief at 13. Indeed, the courts of this

Commonwealth have consistently held that evidence of a defendant’s prior

abuse of a victim is admissible under the complete story doctrine. See

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

describing a prior incident when defendant threw a glass in the victim’s face

was relevant to show a pattern of abuse, as well as the nature of the

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defendant’s relationship with the victim.); Commonwealth v. Dillon, 925

A.2d 131, 139 (Pa. 2007) (evidence that defendant had physically abused the

victim’s family was admissible to explain the victim’s delay in reporting her

own sexual abuse by the defendant, and explain the events surrounding the

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

(Pa. Super. 2006) (evidence showing the escalation of defendant’s physical

and sexual abuse of the victim, which led to her murder, was admissible to

show the history of the case and demonstrate the defendant’s motive, malice,

intent, and ill-will towards the victim.).

On appeal, Appellant insists the prejudicial impact of the evidence

outweighed its probative value, focusing, in particular, on the factors set forth

in Frank. In applying the Frank test to determine if prior bad act evidence

is unduly prejudicial, this Court has focused on the following factors:

the strength of the “other crimes” evidence, the similarities

between crimes, the time lapse between crimes, the need for the

other crimes evidence, the efficacy of alternative proof of the

charged crime, and the “degree to which the evidence probably

will rouse the jury to overmastering hostility.”

Brown, 52 A.3d at 326 (citations omitted). Moreover, we should also be

cognizant of whether the trial court was able to provide the jury with an

appropriate limiting instruction. See Frank, 577 A.2d at 614.

Here, an application of the Frank factors does not yield a finding of

undue prejudice. Regarding Appellant’s claim that the Commonwealth did not

need the evidence to prove its case, we agree with the trial court that Victim’s

testimony concerning the prior abuse was relevant to explain her delay in

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reporting the prior incidents to authorities. See Trial Ct. Op. at 4. Although

Appellant asserts that there was no delay between the abuse and reporting,

we note that Victim did not report the sexual assault that occurred during the

early morning of August 22. See Appellant’s Brief at 15. Rather, she returned

to Appellant’s home the next day and did not alert the police until after

Appellant physically assaulted her son. See N.T., 1/7/20, at 115-20. We

have previously held that the prosecution has a valid need to introduce prior

bad acts evidence to help explain why a domestic sexual abuse victim may

delay reporting the abuse to authorities. Dillon, 925 A.2d at 139.

Appellant also asserts that the Commonwealth did not need Victim’s

testimony concerning Appellant’s prior abuse because it introduced multiple

text message conversations between Victim and himself, which, Appellant

asserts, sufficiently contextualized his relationship history with Victim.

Appellant’s Brief at 16-17. However, Appellant does not explain why or how

Victim’s testimony is unnecessary in light of these messages. Rather, the

opposite is true; Victim’s prior bad acts testimony was necessary to

authenticate and explain the text message evidence to the jury. Moreover,

we note Victim’s testimony regarding Appellant’s prior abused comprised only

six pages of her 74-page testimony. N.T., 1/7/20, at 98-104. We disagree

with Appellant that this brief portion of testimony evinced such an

overmastering emotional response in the jury that it would have been immune

to containment by a jury instruction.

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Finally, Appellant fails to acknowledge that the trial court provided the

jury with a thorough and appropriate limiting instruction concerning how it

was to consider the evidence of Appellant’s prior bad acts. The court charged

the jury:

You have heard evidence tending to prove that [Appellant]

was guilty of improper conduct for which he is not on trial. I am

speaking of testimony to the effect that the defendant engaged in

domestic violence against [Victim] prior to the event of August 22,

2018, which is the event at issue here.

This evidence is before you for a limited purposed of tending

to show the history of events between [Appellant] and [Victim]

leading up to August 22, 2018. This evidence must not be

considered by you in any way other than for [the] purpose I just

stated. You must not regard this evidence as showing that the

defendant is a person of bad character or criminal tendencies from

which you might be inclined to infer guilt.

N.T., 1/9/2020, at 386-87. It is well-settled that “when examining the

potential for undue prejudice, a cautionary jury instruction may ameliorate

the prejudicial effect of the proffered evidence[, and j]urors are presumed to

follow the trial court’s instructions.” Commonwealth v. Hairston, 84 A.3d

657, 666 (Pa. 2014) (citations omitted). Appellant fails to explain why that

presumption should not apply here.

Thus, we conclude Appellant has failed to demonstrate that the trial

court’s admission of Victim’s testimony concerning Appellant’s prior abuse

constituted an abuse of discretion. See Tyson, 119 A.3d at 357. Accordingly,

we affirm the judgment of sentence.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/28/2022

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