J-S91025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JOSEPH EDWARD SANCHEZ
Appellant No. 756 MDA 2016
Appeal from the Judgment of Sentence April 25, 2016
in the Court of Common Pleas of Adams County
Criminal Division at No(s): CP-01-CR-0000571-2015
BEFORE: FORD ELLIOTT, P.J.E., RANSOM, J., and STEVENS, P.J.E.*
MEMORANDUM BY RANSOM, J.: FILED FEBRUARY 21, 2017
Appellant, Joseph Edward Sanchez, appeals from the April 25, 2016,
judgment of sentence of twelve and one-half years to twenty-seven years of
incarceration. We affirm.
On January 20, 2016, a jury convicted Appellant of aggravated
indecent assault and related charges1 as a result of the ongoing sexual
abuse of his ten-year-old daughter. See Notes of Testimony (N. T.),
1/20/16, at 23-38. D.M. stated that the abuse began in November 2013,
and continued on a weekly basis through February 2015. Id. D.M.
____________________________________________
1
Appellant was convicted of aggravated indecent assault, 18 Pa.C.S. §
3125(b); two counts of unlawful contact with a minor, 18 Pa.C.S. §
6318(a)(1); three counts of corruption of minors, 18 Pa.C.S. §
6301(a)(1)(ii); indecent assault, 18 Pa.C.S. § 3126(b)(3)(ii); and one count
of endangering the welfare of children, 18 Pa.C.S. § 4304(a)(1).
*
Former Justice specially assigned to the Superior Court.
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disclosed the abuse after Appellant was arrested for assaulting his partner,
D.M.’s mother. N. T. at 39-41, 67-74. D.M. explained that she had not
disclosed earlier because Appellant had threatened to hurt her. Id.
Appellant testified in his own defense and denied assaulting D.M. Id. at
102.
Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b)
statement. The trial court issued a responsive opinion.
Herein, Appellant presents two issues for our review:
1. Did the [c]ourt below err in admitting evidence of prior bad
acts pursuant to the Commonwealth’s 404(b) motion, specifically
prior incidents of domestic violence wherein Appellant allegedly
struck the alleged victim’s mother, in order to show res gestae
and lack of prompt complaint?
2. Did the [c]ourt below err in not declaring a mistrial when a
Commonwealth witness suggested during her testimony that the
appellant was selling controlled substances illegally out of their
home?
Appellant’s Brief at 4.
First, Appellant claims the trial court erred in granting the
Commonwealth’s motion to introduce evidence of other bad acts. See
Appellant’s Brief at 8. Appellant argues that this evidence was not
necessary, as there was no extended delay, isolation of the victim, or
pervasive climate of fear. Id. at 9. Further, Appellant avers that the
prejudicial effect of this testimony outweighed its probative value. Id.
Further background is required to explain this issue. Prior to trial, the
Commonwealth filed a motion for admission of other acts evidence pursuant
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to Pa.R.E. 404(b) to show the res gestae of the case and to explain that
D.M. had delayed reporting the sexual abuse due to fear of being beaten
with a belt. See Pa.R.E. 404(b) Motion, 9/11/15, at 1-7. Specifically, the
Commonwealth sought to introduce evidence that Appellant had been
arrested in connection with a domestic violence incident where he assaulted
S.M., D.M.’s mother. Id. The trial court granted this motion and allowed
the testimony.
We examine a trial court’s decision concerning the admissibility of
evidence for an abuse of discretion. Commonwealth v. Dengler, 890 A.2d
372, 379 (Pa. 2005). Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person, but may be admissible for a
purpose other than criminal propensity, proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake.
Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007); see also
Pa.R.E. 404(b). Additionally, per the res gestae exception, prior bad acts
are admissible to furnish the context or complete story of the events
surrounding the crime, and, in sexual assault cases, to explain the lack of
prompt complaint. Id.
In Dillon, the victim was sexually abused over a three-year period,
but delayed reporting until three years later. See Dillon, 925 A.2d 131,
133-34. The Dillon Court found that the victim’s fear of physical abuse,
isolation from other family members, and general fear of Appellant was
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relevant to the matter at hand. Id. at 141-42. The Court also found that
information more probative than prejudicial to explain the delay in reporting.
Id. at 141-42. Appellant attempts to distinguish Dillon by pointing to minor
factual dissimilarities in the cases, but these attempts are unavailing. We
discern no abuse of discretion in the trial court’s decision to admit this
evidence, nor its conclusions that the testimony explained D.M.’s submission
to the abuse due to her fear of physical harm. See Dengler, 890 A.2d at
379.
Next, Appellant claims the court erred in not granting a mistrial
following D.M.’s testimony that Appellant “smoked [the] stuff that he would
sell.” See Appellant’s Brief at 11-12. Appellant argues that the taint of
alleged drug-dealing could not be removed by a curative instruction and
deprived him of a fair trial. Id. at 7.
A trial court may remove the taint caused by improper testimony
through curative instructions and must consider all surrounding
circumstances before finding the curative instructions sufficient.
Commonwealth v. Manley, 985 A.2d 256, 266–67 (Pa. Super. 2009).
“Circumstances the court must consider include whether the improper
remark was intentionally elicited by the Commonwealth, whether the answer
was responsive to the question posed, whether the Commonwealth exploited
the reference, and whether the curative instruction was appropriate.
Manley, 985 A.2d at 266-267. Absent evidence to the contrary, the law
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presumes that juries follow the instructions of the court. See
Commonwealth v. Chmiel, 30 A.3d 1111, 1184 (2011).
In the instant case, Appellant attempted to establish on cross-
examination that D.M. had fabricated the accusations. N. T. at 59.
Specifically, Appellant asked D.M. if Appellant had smoked in the house, and
D.M. admitted that she did not like when Appellant smoked. Id. D.M.
clarified that the smell gave her a headache. Id. On redirect, the
Commonwealth asked what Appellant smoked, and D.M. replied that he
“smoked [the] stuff that he would sell.” Id. Counsel immediately objected.
The court sustained Appellant’s objection and issued a curative instruction,
but the court denied counsel’s request for a mistrial. The curative
instruction was as follows:
Ladies and gentlemen, I have sustained the objection. You are to
completely disregard the question and the answer in deliberating
towards a verdict in this matter. The question and the answer is
not relevant. Please be aware to keep your sights focused on
what your obligation is, and that is to determine the facts and
apply those facts to the instructions to the [c]ourt on matters of
law which are given to you.
Any attempt to show bad conduct or misconduct on behalf of any
party is really not relevant to that consideration. Your only
consideration is the elements charged by the Commonwealth
and whether or not they have been factually proven. Thank you.
N. T. at 62. In the instant case, Appellant’s counsel opened the door to any
testimony regarding smoking through cross-examination. The answer was
not intentionally elicited by the Commonwealth, and per Manley, the
instructions were sufficient to avoid prejudicing the jury. Appellant cannot
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point to evidence that the jury did not follow the court’s instructions and,
accordingly, is not entitled to relief. See Chmiel, 30 A.3d at 1184.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2017
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Com. v. Sanchez, J.
Combined Opinion