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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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