J-S28010-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                        v.

JOSE ALBERTO ESTEVEZ,

                        Appellant                   No. 1451 MDA 2014


           Appeal from the Judgment of Sentence July 28, 2014
            In the Court of Common Pleas of Lancaster County
           Criminal Division at No(s): CP-36-CR-0001433-2013


BEFORE: BOWES, ALLEN, and LAZARUS, JJ.

MEMORANDUM BY BOWES, J.:                              FILED JUNE 26, 2015

      Jose Alberto Estevez appeals from the judgment of sentence of ten to

twenty years incarceration that the trial court imposed after a jury found him

guilty of attempted murder. We affirm.

      Appellant and the victim, Sacha Cruz, were involved in a tumultuous

romantic relationship. At the time of the incident herein, the two were living

together at the victim’s mother’s home.     On July 4, 2013, after Appellant

slapped the victim in the face, she told Appellant that he had to move out.

She agreed, however, to allow Appellant to remain for their daughter’s

birthday party on July 6.    Appellant, nevertheless, remained in the home

after that date.   On July 10, 2013, Appellant telephoned the victim at her

place of work and told her that he and her children were at her sister’s home
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swimming. When she arrived, Appellant departed to the couple’s abode. He

then returned and ultimately, using a knife, stabbed the victim in her chest,

torso, and arms. Ms. Cruz suffered a collapsed lung and pancreatic injuries

as a result. The Commonwealth charged Appellant with attempted homicide

and the matter proceeded to trial.

      At trial, the prosecution introduced testimony from Wanda Rodriguez

regarding interaction between Appellant and the victim at their daughter’s

July 6 birthday party.     Over a general objection, Ms. Rodriguez was

permitted to testify that she asked Ms. Cruz to come with her for a moment

so that she could give Ms. Cruz a gift.    Ms. Rodriguez described how Ms.

Cruz then looked to Appellant, who told her that she could go with Ms.

Rodriguez. It is this evidence that Appellant challenges on appeal.

      As noted, the jury found Appellant guilty of attempted murder.     The

court imposed sentence on July 28, 2014. Appellant timely appealed. The

trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Appellant complied, and the

trial court authored a Rule 1925(a) opinion. The matter is now ready for this

Court’s consideration.   The sole issue Appellant levels on appeal is as

follows.

      I.   Did the trial court err in admitting Wanda Rodriguez’s
           testimony regarding Mr. Estevez’s behavior at his son’s
           [sic] birthday party on July 6th, where this testimony was
           offered as evidence of a crime, wrong, or other act to

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            prove Mr. Estevez’s motive, or intent, without prior notice
            to defense counsel as required by Pennsylvania Rule of
            Evidence 404(b)(3)?

Appellant’s brief at 4.

      Appellant contends that Ms. Rodriguez’s testimony was improperly

admitted bad acts evidence.      He notes that the Commonwealth did not

provide a notice of intent to introduce this evidence, in contrast to evidence

that he previously slapped the victim across the face on two occasions.

Appellant maintains that Ms. Rodriguez’s testimony was offered to prove

Appellant’s extremely controlling behavior and to provide a motive to kill her

because she wanted to leave him.      The Commonwealth responds that Ms.

Rodriguez’s testimony “did not describe any ‘crime, wrong, or act’ committed

by [Appellant] on July 6.”   Commonwealth’s brief at 8.     It posits that the

evidence was introduced to demonstrate the victim’s fear of Appellant and

that notice under Rule 404(b)(3) was not required.

      Evidence of bad acts is inadmissible to prove that a defendant has bad

character or a criminal propensity. See Pa.R.E. 404(b). However, bad acts

evidence is admissible for a host of reasons including to prove motive,

intent, knowledge, absence of mistake, common scheme, to establish

identity, and as part of the chain of events that form the history of the case.

Pa.R.E. 404(b)(2); Commonwealth v. Brown, 52 A.3d 320 (Pa.Super.

2012). The probative value of the bad acts evidence must also outweigh its


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prejudicial impact in order to be admissible.     Commonwealth v. Powell,

956 A.2d 406, 419 (Pa. 2008). The Commonwealth must provide notice that

it intends to introduce bad acts evidence. Pa.R.E. 404(b)(3) (“In a criminal

case the prosecutor must provide reasonable notice in advance of trial, or

during trial if the court excuses pretrial notice on good cause shown, of the

general nature of any such evidence the prosecutor intends to introduce at

trial.”).   We consider the admission of such evidence under an abuse of

discretion standard.   Commonwealth v. Patterson, 91 A.3d 55, 68 (Pa.

2014).

       Instantly, it is questionable whether Ms. Rodriguez’s testimony is bad

acts evidence.     Here, Ms. Rodriguez testified that, four days before the

stabbing, the victim appeared timid and Appellant acted jealous at their

daughter’s birthday party. In support of this contention, she set forth that

when she went to give the victim a gift, the victim initially indicated she

could not accept while looking at Appellant before Appellant signaled she

could take the gift. This evidence does not refer to criminal wrongdoing or a

bad act.     Rather, it describes an interaction between the couple and the

inference the witness derived therefrom.

       To the extent that it can be construed as other bad acts evidence, we

find that Appellant is due no relief.   The evidence that Appellant stabbed the

victim was overwhelming. The victim described the incident. Her sister also


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testified to hearing cries from the victim and seeing Appellant striking the

victim in the abdomen.      Similar testimony was provided by the victim’s

sister’s fiancé. While they did not see Appellant holding a knife as he was

striking her, the victim’s sister immediately noticed blood.       The victim’s

clothes were cut, and she was taken to the hospital where she underwent

surgery. Appellant immediately fled the area, before turning himself over to

police.   He also was recorded on the prison telephone system accepting

responsibility for his actions. Appellant cannot establish prejudice as a result

of the admission of the evidence in question.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2015




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