Com. v. Martinez, P.

J-S12035-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

PEDRO MARTINEZ :

:

Appellant : No. 3392 EDA 2019

Appeal from the Judgment of Sentence Entered November 5, 2019

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

No(s): CP-51-CR-0006909-2015

BEFORE: BENDER, P.J.E., BOWES, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED JULY 15, 2022

Appellant Pedro Martinez appeals from the Judgment of Sentence of

twenty to forty years’ incarceration imposed after a jury found him guilty of

Rape of a Child and related offenses. Appellant challenges two of the trial

court’s evidentiary rulings. After careful review, we affirm.

The trial court summarized the underlying facts as follows:

[T]he complainant herein, who was sixteen years’ old when she

appeared as a witness at appellant’s trial, resided for a time with

her mother and sister in Philadelphia, in a house owned by her

grandfather beginning when she was about five years’ old.

Appellant, who dated [A.M.’s] mother, and often visited A.M.’s

mother at A.M.’s home, fathered a son with A.M.’s mother. A.M.

recalled that her mother would leave her in Appellant’s care when

she lived in her grandfather’s residence even though [mother] and

Appellant were no longer in a relationship when he came to the

house to visit his son.

When A.M. was between the ages of five and seven, she was home

with Appellant and her older sister. On that day, Appellant had

[A.M.] go into her grandfather’s bedroom. A.M. ended up on her

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grandfather’s bed at which time Appellant inserted his fingers and

penis in her vagina. A.M. recalled that after the first incident,

blood discharged from her vagina.

She recalled that Appellant had sexual intercourse with her and

placed his fingers inside her vagina a second time on her

grandfather’s bed. She also remembered that Appellant pulled

her into the bedroom by her hand and once she was inside the

room, Appellant closed the door and put a heavy coin bank against

the door to prevent anyone from entering and [A.M. from] leaving

the room. According to A.M., Appellant assaulted her on numerous

other occasions during which Appellant sometimes tied her up by

her wrists and ankles, but she could not recall many of the details

of those other incidents or the two she testified about because she

was trying to forget what had occurred to her.

[In 2014, when] A.M. was twelve years’ old, she told a friend

about the sexual assault after her friend confided in her that she

also had something similar happen to her. She then told her

mother who took her to the Special Victim’s Unit [“SVU”] of the

Philadelphia Police Department a day or two thereafter. [A.M.]

did not [do] so sooner because she was scared of Appellant and

did not want Appellant’s son, her younger [half-]brother, growing

up with[out] a father.

A.M.’s mother indicated that when A.M. was four years old, mother

and Appellant briefly got back together and less than a year later

A.M. became afraid and would start shaking when in the company

of most men and boys. She also had flashbacks and nightmares

while sleeping after she testified at Appellant’s preliminary

hearing.

Tr. Ct. Op., dated 3/4/20, at 2-3.

In May 2015, the Commonwealth arrested and charged Appellant with

two counts of Rape of a Child, and one count each of Aggravated Indecent

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Assault of a Child, Endangering the Welfare of a Child (“EWOC”), and

Corruption of Minors.1

A two-day jury trial commenced on July 16, 2019, during which the

Commonwealth presented testimony from A.M., A.M.’s mother, SVU Detective

Kimberly Boston, Michelle Kline, who is the lead forensic interviewer from the

Philadelphia Children’s Alliance, and Dr. Maria McColgan, a child abuse

pediatrician qualified as an expert witness. Appellant’s counsel conducted

vigorous cross-examination. Appellant did not testify.

The jury found Appellant guilty on July 18, 2019, of all of the above

offenses. The court ordered a pre-sentence investigation and mental health

evaluation.

On November 5, 2019, the court sentenced him to an aggregate term

of twenty to forty years’ incarceration for the Rape convictions, followed by

seven years’ probation for the EWOC conviction,2 and informed Appellant of

his lifetime obligation to register as a Tier III sex offender. Appellant did not

file a post-sentence motion.

Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Appellant presents the following questions for our review:

____________________________________________

1 18 Pa.C.S. §§ 3121(c), 3125(b), 4304, and 6301, respectively.

2 The court imposed no further penalty for the remaining convictions.

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1. Did the trial court err when it overruled defense counsel’s

objection to irrelevant and unfairly prejudicial testimony?

2. Did the trial court err when it sustained the Commonwealth’s

objection to relevant questioning by defense counsel?

Appellant’s Br. at 4.3

Generally, “[our] standard of review for a trial court's evidentiary rulings

is narrow.” Com. v. Mickel, 142 A.3d 870, 874 (Pa. Super. 2016) (citation

omitted). “The admissibility of evidence is solely within the discretion of the

trial court and will be reversed only if the trial court has abused its discretion.”

Id. (citation omitted) “An abuse of discretion is not merely an error of

judgment[;] rather[, it is] 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.” Id.

(citation omitted).

Further, “[t]o constitute reversible error, an evidentiary ruling must not

only be erroneous, but also harmful or prejudicial to the complaining

party.” Id. (citation omitted).

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3 In his Pa.R.A.P. 1925(b) Statement, Appellant raised the same questions

followed by a specific citation to the relevant pages of the trial proceedings

upon which he bases his appeal. In its Rule 1925(a) Opinion, the trial court

addressed those issues as raised. Our briefing rules require that the Statement

of Questions Involved “state concisely the issues to be resolved, expressed in

the terms and circumstances of the case[.]” Pa.R.A.P. 2116(a). The broad

questions as presented in Appellant’s Brief do not comply with Rule 2116(a).

However, because Appellant’s argument within his brief focuses on the

exchanges cited with specificity in his Rule 1925(b) Statement, we find that

Appellant’s failure to comply with Rule 2116(a) is not fatal to this appeal.

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It is well-established that issues not raised before the trial court are

waived and cannot be raised for the first time on appeal. Pa.R.A.P. 302(a). In

order to preserve an evidentiary issue for review, “a party must make a timely

and specific objection.” Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa.

Super. 2003) (citation omitted). “Also, an appellant may not raise a new

theory for an objection made at trial on his appeal.” Id. See also

Commonwealth v. Rose, 172 A.3d 1121, 1128 (Pa. Super. 2017) (finding a

challenge to the admission of certain testimony waived where counsel

asserted a “bald objection without specificity” during trial); Commonwealth

v. Lopez, 57 A.3d 74, 82 (Pa. Super. 2012) (concluding that the appellant

waived his claim that certain testimony was inadmissible hearsay where, at

trial, appellant’s counsel merely objected without explanation).

In his first issue, Appellant challenges as non-responsive certain

testimony his counsel elicited while cross-examining A.M. about her direct

testimony that Appellant had sexually assaulted her multiple times. See

generally N.T., 7/16/19, at 118-26. Appellant grounds his specific challenge

in the following exchange that occurred:

Appellant’s Counsel: Well, the question that I read was, how

many times did [Appellant] rape you?

A.M.: And I said twice.

Counsel: It doesn’t ask how many times have you spoken on it,

right?

A.M.: It doesn’t. But at the end of the day, like I previously

stated before, sir, I have only spoken on two rapes that Pedro has

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done. And quite frankly, that’s going easy on how many times

that he’s actually raped me. So you guys should kind of just be a

little grateful that I didn’t go into detail on how many times that

it actually happened.

Counsel: Judge, objection.

Court: Well, she’s just answering your questions. So let’s

move on.

Counsel: I’m trying, Judge.

Id. at 122-23.

Counsel did not raise a specific objection in this exchange or otherwise

expound on the nature of his objection. In fact, it was not until Appellant filed

a Rule 1925(b) Statement that he specified that the elicited testimony was

irrelevant and unfairly prejudicial. Based on the above case law, because

Appellant did not assert a timely, specific objection, Appellant’s first issue is

waived.

Moreover, even if Appellant had not waived this issue, we would

conclude it merits no relief. A “defendant must assume the risk of his

counsel’s questions and he cannot benefit on appeal when his own cross-

examination elicited an unwelcome response.” Commonwealth v. Gilliard,

446 A.2d 951, 954 (Pa. Super. 1982). In considering admissibility of

“unwelcome responses” elicited during cross-examination testimony, courts

must consider “whether the answer should have been reasonably anticipated

and whether it was manifestly invited.” Commonwealth v. Rivers, 357 A.2d

553, 555-56 (Pa. Super. 1976).

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In addressing Appellant’s challenge in the instant case, the trial court

observed:

Here, the defense should have anticipated that the complainant

would mention other sexual assaults Appellant committed against

her by repeatedly questioning her to say that she had previously

testified only about two sexual assaults because she testified on

direct that Appellant sexually assaulted her numerous times. In

addition, counsel was also aware that the victim was prone to

blurting out testimony when she found the questions not to her

liking because she did it a couple of times on direct examination.

Thus, no error occurred here[.]

Tr. Ct. Op. at 5.

The trial court’s explanation is reasonable and supported by case law.

Thus, even if Appellant had not waived his claim, we would conclude the court

properly exercised its discretion in overruling Appellant’s objection

In his second issue, Appellant challenges the court’s sustaining the

Commonwealth’s objection raised in the following exchange that occurred at

the end of defense counsel’s cross examination of A.M.:

Appellant’s counsel: Okay. I want to talk a little bit about

earlier you mentioned that in the past you had seen bad imaginary

friends?[4]

A.M.: Yes.

Counsel: How old were you when you saw these imaginary

friends?

____________________________________________

4Earlier in his cross-examination, Appellant’s counsel asked A.M., “You have

been going to therapy for years. Prior to any of these allegations, you were

going to therapy because you were seeing a bad imaginary friend, correct?”

N.T., 7/16/19, at 114-15. A.M. responded: “At some point or another, yes.”

Id. at 115.

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Prosecutor: Objection.

Court: Well, objection sustained. I don’t see that is probative

here of anything.

Counsel: Judge, those are all the question I have at this time.

N.T. at 134-35.

We are mindful that “[t]he scope of cross-examination is a matter left

to the sound discretion of the trial court, and the trial court's rulings will not

be disturbed absent an abuse of discretion.” Commonwealth v.

Boczkowski, 846 A.2d 75, 96 (Pa. 2004). Trial courts “generally enjoy broad

discretion regarding the admission of potentially misleading or confusing

evidence.” Commonwealth v. Parker, 882 A.2d 488, 492 (Pa. Super.

2005). Trial courts “may exclude relevant evidence if its probative value is

outweighed by the danger of . . . unfair prejudice, confus[ion] of the issues[,]

or misleading the jury.” Pa.R.E. 403. Further, a court may exclude evidence

if it speaks to “a collateral matter and would have served to divert the jury's

attention from the relevant issues in the case.” Klein v. Aronchick, 85 A.3d

487, 501 (Pa. Super. 2014) (concluding in a medical malpractice case that the

admission of a plaintiff’s history of bulimia was collateral to the basis for the

medical malpractice action, and “the probative value of this evidence, if any,

was clearly outweighed by its prejudicial effect[.]”).

In its Rule 1925(a) Opinion, the trial court explained that it sustained

the objection because, inter alia, Appellant sought irrelevant information.

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[T]his [c]ourt sustained the Commonwealth’s objection because

the question sought irrelevant testimony. There was nothing in

the record indicating that A.M. had fabricated the assaults she

accused Appellant of committing[. A]sking her to comment on

alleged imaginary friends in an attempt to create the impression

that her allegations against Appellant were simply the product of

an overactive imagination not only was improper but also would

have raised issues collateral to th[ose] present in the case related

to her [] mental state. Moreover, the area of inquiry defense

counsel sought to explore would have confused the jury.

Accordingly, for all of these reasons it is suggested that the ruling

complained of here be affirmed.

Trial Ct. Op. at 7.

Appellant now contends that the trial court erred because if defense

counsel had been permitted to establish when A.M. was seeing a bad

imaginary friend, “there would have been support in the record, contrary to

the trial court’s opinion, that A.M. fabricated the allegations due to an

‘overactive imagination.’” Appellant’s Br. at 11. Id. He also asserts that the

probative value of the question outweighed any unfair prejudice because

“there was little risk that the jury would have been diverted from the ultimate

question, whether [Appellant] raped A.M.” Id.

We conclude that the trial court properly exercised its discretion in

sustaining the Commonwealth’s objection. The question of when A.M.

imagined a “bad friend” raised “a collateral matter [which] would have served

to divert the jury's attention from the relevant issues in the case.” Klein, 85

A.3d at 501. Moreover, its probative value, if any, would have been

outweighed by jury speculation or confusion that such collateral evidence

could have caused.

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Further, Appellant has failed to convince us that the court’s exclusion of

the testimony was “erroneous [and] harmful or prejudicial” to him. Mickel,

142 A.3d at 874. In addition, the trial court properly applied the law, and

reasonably exercised of its judgment without “bias, prejudice, ill-will or

partiality, as shown by the evidence of record.” Id. Accordingly, we conclude

Appellant’s second issue warrants no relief.

Having found the trial court properly exercised its discretion in its

evidentiary rulings challenged in this appeal, we affirm Appellant’s Judgment

of Sentence.

Judgment of Sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/15/2022

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