J. S33008/14

NON-PRECEDENTIAL DECISION            SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                   v.                   :
                                        :
JOSE ANTONIO CRUZ,                      :          No. 92 EDA 2013
                                        :
                        Appellant       :


           Appeal from the Judgment of Sentence, August 29, 2012,
                in the Court of Common Pleas of Lehigh County
              Criminal Division at Nos. CP-39-CR-0003697-2011,
                           CP-39-CR-0003701-2011


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STABILE, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:FILED SEPTEMBER 22, 2014

      Jose Antonio Cruz appeals from the judgment of sentence of

August 29, 2012, following his conviction of one count of murder in the first

degree, two counts of firearms not to be carried without a license, one count

of aggravated assault, and five counts of robbery. After careful review, we

affirm.

      The facts of this case have been aptly summarized by the trial court as

follows:

                  In June of 2011, the Appellant and Elba Lopez,
            along with their minor children[Footnote 4] resided
            at 3 Maryland Circle, Apartment #3, Whitehall,
            Lehigh County, Pennsylvania. The Appellant and
            Ms. Lopez had been in a relationship, off and on,
            since 2008.     Throughout their relationship, the
            Appellant had concerns that Ms. Lopez was unfaithful
            to him.    On the morning of June 5, 2011, the
J. S33008/14

          Appellant learned that Ms. Lopez had had a past
          relationship with one of her coworkers.          The
          Appellant became upset and meandered throughout
          Allentown during the day, visiting with family
          members and consuming alcohol.        The Appellant
          returned to his home at approximately midnight, but
          did not see either Ms. Lopez or his minor children in
          the home.[Footnote 5]

               [Footnote 4] The couple had two children
               at the time of the instant crimes;
               Ms. Lopez has since given birth to a third
               child.

               [Footnote 5] The Appellant testified that
               he only noticed that his 12 year old son
               from a prior relationship was in the
               apartment, playing video games in the
               living room area.

                 In the late evening hours of June 5, 2011,
          Alexis Lopez was visiting his sister, Elba Lopez, at
          the apartment she shared with the Appellant. When
          Mr. Lopez arrived at the home, Elba and the children
          were in the apartment, but the Appellant was either
          not at the home yet or was unseen by Mr. Lopez.
          Mr. Lopez stayed for approximately 45 minutes. As
          he left the apartment, he kissed his sister goodbye
          and proceeded down the steps outside of the
          individual apartment.

                At this point, the Appellant had exited the
          bathroom of the apartment, naked, when he believed
          that [he] heard Ms. Lopez speaking to and kissing an
          unknown male. The Appellant confronted Ms. Lopez
          and the Appellant began to physically assault
          Ms. Lopez.

                 At this moment, Mr. Lopez was walking down
          the stairs when he heard an argument and heard his
          sister scream. He proceeded back up the stairs and
          encountered his sister running down the steps,
          carrying the two small children. She told him to run,
          that the Appellant had a gun.


                                  -2-
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                The Appellant emerged from the apartment
          and fired a gun into the air. He then returned to his
          apartment to put on clothes.

               Meanwhile, Mr. Lopez had taken Ms. Lopez and

          10 minutes away. Mr. Lopez left his sister and the

          mother and brother back to the apartment at
          3 Maryland Circle so that they could speak to the
          Appellant.    When they arrived back at the
          apartment, the Appellant was not there.

               On a mission to find Ms. Lopez and/or the

          car to 420 West Oak Street, Allentown, Lehigh

          mother, Maria Sepulveda,       and    her   husband,
          Edwin Jimenez-Gonzalez.

                In the early morning hours of June 6, 2011,
          A[dal]berto Lopez, another brother of Elba Lopez,
          was at 420 West Oak Street. Mr. Lopez was working
          in a first floor computer room of the home and
          Ms. Sepulveda and Mr. Jimenez-Gonzalez were
          asleep in their bedroom on the second floor. At
          approximately 1 a.m., the Appellant arrived at the
          back door/kitchen door to 420 West Oak Street.
          Mr. Lopez responded to the door and the Appellant
          began to tell Mr. Lopez to let him into the home and
          asked where Elba Lopez was. Mr. Lopez refused to
          open the door and told the Appellant to leave, that
          Elba Lopez was not there. The Appellant began to
          force his way into the home.

                Hearing   the   commotion     at   the  door,
          Mr. Jimenez-Gonzalez came downstairs, along with
          Ms. Sepulveda. Mr. Lopez told Mr. Jimenez-Gonzalez
          not to open the door. Mr. Jimenez-Gonzalez walked
          to the back door and told Mr. Lopez that he was just
          going to talk to the Appellant.       The Appellant
          demanded to speak to Elba Lopez. Mr. Jimenez-
          Gonzalez and Mr. Lopez repeatedly told the Appellant


                                  -3-
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          that Elba Lopez was not there and told him to go
          home. Again, the Appellant attempted to enter the
          residence, forcing his way into the home. At that
          point, Mr. Jimenez-Gonzalez grabbed the Appellant
          and was able to push him to the door.

                 The Appellant immediately pulled a silver
          Magnum handgun out of the pocket of the black
          hoodie he wa
                                     -Gonzalez. Mr. Lopez told
          the Appellant to put the gun down and to leave the
          home. The Appellant continued to point the gun at
          Mr. Jimenez-Gonzalez.       While inside the home,
          Mr. Jimenez-Gonzalez tried to grab the gun from the
          Appellant. The two began to struggle and the tussle
          wound its way to the rear patio of the home. A shot
          rang out, there was a pause, and a second shot rang
          out. Mr. Jimenez-Gonzalez screamed for someone to
          call the police, fought to get back inside the house
          and collapsed on the kitchen floor by the steps
          leading to the second floor. Ms. Sepulveda went to
          her husband to comfort him. The Appellant fled the
          residence.


          testified at trial, differs slightly.  The Appellant
          asserts that after he asked Mr. Jimenez-Gonzalez if
          Elba Lopez was at the home, a struggle between
          them ensued.          The Appellant asserts that
          Mr. Jimenez-Gonzalez struck him in the face and
          grabbed him by the neck. The Appellant testified
          that he told Mr. Jimenez-
          that he did not. He then testified that Mr. Jimenez-
          Gonzalez grabbed the gun and as they struggled, a
          shot went off. The Appellant was unsure who was
          hit (although he felt no pain) and a second shot was
          fired. He admitted that he was the one who pulled
          the trigger twice during the struggle. He recalled
          seeing Mr. Jimenez-Gonzalez fall to the kitchen floor



               An ambulance arrived shortly thereafter and
          took Mr. Jimenez-Gonzalez to the hospital.   The


                                  -4-
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          shots Mr. Jimenez-Gonzalez received were fatal. An
          autopsy was performed and the cause of death was
          determined to be gunshot wounds of the torso with
          fractures and visceral injuries. The manner of death
          was ruled a homicide.

                 Two .45 caliber shell casings were recovered
          from 420 West Oak Street and sent for further
          ballistic testing.

                A short time after the alleged shooting, at
          approximately      1   am    on    June   6,    2011,
          Oscar Hernandez was driving his Ford Mustang at the
          intersection of Union Boulevard and Airport Road,
          Allentown,    Lehigh    County,   near   the   Wawa
          convenience store.        As he approached the
          intersection travelling south on Airport Road, a car
          from his right side proceeded through a red light and
          the two vehicles crashed. A witness from a nearby
          home came to the intersection to make sure that
          Mr.
          was incapacitated at the scene and the striking
          vehicle came to a stop in the Wawa parking lot.
          While on scene, Mr. Hernandez heard gunshots from
          the direction of the Wawa.

                 Leandro Perez was also at the Wawa that
          morning, driving a white Jeep. After pulling up to
          one of the gas pumps, Mr. Perez exited his vehicle
          and attempted to open the cap of his gas tank.
          Immediately, a male approached him with a pointed
          handgun, demanding the keys to the Jeep. The
          individual appeared to be in a hurry and Mr. Perez
          noticed that he was wearing dark clothing and had a
          stream of blood going down his face. Mr. Perez told

          The individual repeatedly asked Mr. Perez for the
          keys, but Mr. Perez refused to give them to him.
          The individual eventually walked or ran away. This
          interaction was observed by Jeannie McFarland,
          manager at the Wawa on that evening.

               Ms. McFarland observed the same individual
          proceed to another car positioned at a different gas


                                  -5-
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          pump, where Elionel Diaz-Rivera and his friend,
          Pedro Leon, were. Mr. Leon was driving a black
          Cadillac. Mr. Diaz-Rivera and Mr. Leon went inside
          the Wawa to prepay for gasoline and to use the ATM.
          They then began to walk back towards the car.
          Mr. Diaz-Rivera observed an unknown man wearing
                                                         door.
          The man approached Mr. Diaz-Rivera and Mr. Leon
          and asked them for the car keys. Mr. Diaz Rivera

          not turned over to the individual and Mr. Diaz-Rivera
          and Mr. Leon went back [inside] the Wawa store.
          Mr. Leon proceeded to hide behind a refrigerator
          after he overheard another patron say someone had
          a gun.

                 Carla Arce and her husband, Samir, were also
          at the Wawa, attempting [to] get gas for their Honda
          Accord. Samir, who was driving the vehicle, pulled
          up to the pump, with his window down and the door
          slightly ajar. Immediately a man pointed a gun to
          his head and told him to give him the car keys.
          Samir told the man that he would give him anything
          he wanted, but not to hurt either of the Arces.
          Ms. Arce remained in the passenger seat.         The



          Ms. Arce told him she did not, as the car has a
          standard transmission. The individual exited the car
          and Ms. Arce quickly got out of the car to look for
          help. Ms. Arce observed the individual go towards
          another vehicle in the Wawa parking lot and
          observed the individual leave the Wawa, heading
          westbound.

                 Natasha Henn was also at the Wawa. She had
          parked her purple Dodge Neon in front of the
          convenience store while the friend she was with went
          into the store. Ms. Henn noticed that people inside
          of the Wawa were looking out of the window in her
          direction. Ms
          see anything. As she started to get out of her car,
          someone stopped her by grabbing her door. The


                                  -6-
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          individual held a gun to her head and told her to get
          out. She had her keys in her hand, got out of the
          car and the individual got into the car. She ran into
          the store, with her keys still in her hand. She was
          able to notice that the individual was wearing black
          and had a cut on his face.

                Raymond Shook and George Fetter were also
          at the Wawa that morning. Mr. Fetter was driving

          of the Wawa store. Mr. Fetter exited the vehicle and
          went inside the Wawa, leaving Mr. Shook in the

          Mr. Fetter heard an argument outside of the
          convenience store and turned around to see what
          was happening.      He observed an unknown man
          getting into his Audi. Mr. Fetter walked back to the
          car and ran around to the rear of the vehicle. The
          individual then turned around to face Mr. Fetter,
          pointed a gun at him, and Mr. Fetter became scared.
          Mr. Fetter hunched down behind the vehicle and
          observed the unknown individual struggling with
          Mr. Shook inside of the car. Mr. Fetter then heard
          gunshots and Mr. Fetter ran away from the vehicle.

                 Meanwhile inside of the Audi, Mr. Shook saw
          Mr. Fetter approach the door of the Wawa, only to
          find the doors locked. At that moment, an unknown
          individual entered the Audi, pointed a gun at
          Mr.
          attempted to exit, but the door would not open.
          Mr. Shook told the unknown individual to open the
          doors and pushed the gun away from him. At that
          point, Mr. Fetter was approaching the vehicle. The
          individual got out of the car and confronted
          Mr. Fetter. When the individual returned, Mr. Shook
          was attempting to place his feet out of the passenger
          side window to escape.       The individual shot at
          Mr. Shook, hitting him once through the left side
          (ribcage), while Mr. Shook was half-way out of the
          vehicle. After getting shot, Mr. Shook went into the
          Wawa store and asked for help.[Footnote 6]




                                  -7-
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               [Footnote 6] All of the robbery victims,
               except for Ms. Arce, were able to
               positively identify the Appellant as the
               individual wielding the weapon and
               wearing the black hoodie.

               It was later determined that the bullet entered

          underneath his heart, through his liver, bladder,
          colon, and intestines and became lodged in his leg,
          where it remains. Mr. Shook spent approximately
          two and a half months in the hospital and underwent
          a 10 hour surgery. He had four feet of his large
          bowel and five feet of his small bowel removed. He
          still has pain under his rib cage, has difficulty with
          his stomach and bowels, and suffered a blood clot in
          his lung. He continues to receive medical care.

                Immediately after Mr. Jimenez-Gonzalez was
          shot, A[dal]berto Lopez called 911. Officers arrived,
          along with EMS personnel to attend to Mr. Jimenez-
          Gonzalez.      Information was related to the
          communications center indicating a description of the
          Appellant and the vehicle he was driving. Further,
          the communications center received information
          regarding    the     vehicle    accident    involving
          Mr.
          Wawa regarding the incidents that took place at the
          Wawa.       Descriptions received and additional
          information was disseminated via police radio.

                At approximately 7:46 a.m. on June 6, 2011,
          Sergeant Eric Heicklen of the Allentown Police
          Department observed a vehicle matching the
          description and license plate information of the Audi
          stolen from the Wawa at 510 East Moser Street,
          Allentown, Lehigh County (the Washington Crossing
          Apartment complex).       The Emergency Response
          Team (ERT) of the Allentown Police Department
          responded to the location and recovered the vehicle.
          After the building had been evacuated, the Appellant
          was located in Apartment 17 and was taken into
          custody. At that time, the Appellant had an abrasion



                                  -8-
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            and lumping on his head and he was complaining of
            back pain.

                 At approximately 8:30 a.m. on June 6, 2011,
            Detective Pedro Cruz of the Allentown Police

            3 Maryland Circle, Apartment #3, Whitehall, and
            searched the apartment. As a result, Detective Cruz
            found a .45 caliber shell casing outside of the
            Ap
            door.

                  Inside    of   the    apartment,    Detectives
            Daniel Gross and William Lake of the Allentown
            Police Department recovered a key fob with the Audi
            symbol on it, hidden in the back of a speaker in the
                         iving room. Inside of another speaker,
            a lanyard with what appeared to be house keys was
            located.    The Audi key was later returned to
            Mr. Fetter and corresponded with his vehicle. The
            lanyard with house keys was identified by
            Mr.                        g to him.

                 Detective Mark Boyer of the Allentown Police
            Department determined that the Appellant did not
            have a license to carry a firearm.

                  Sergeant Kurt Tempinski of the Pennsylvania
            State Police Forensic Services, and qualified as an
            expert in toolmark and firearm examination,
            examined and determined that the bullets recovered

            same firearm. Further, he determined that bullet
            casings found at 420 Oak Street and at 3 Maryland
            Circle were discharged from the same firearm. The
            firearm was never recovered.

Trial court opinion, 5/21/13 at 3-11.

      Following a jury trial, appellant was found guilty of the above-listed

offenses. On August 29, 2012, appellant was sentenced to life imprisonment

without parole, and


                                        -9-
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No post-sentence motions were filed; however, on December 11, 2012,

appellant was granted leave to file a nunc pro tunc appeal. New counsel

was appointed, and notice of appeal was filed on December 20, 2012.

Appellant complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial

court has filed an opinion.



            A.    Whether the lower court acted properly in
                                             st for severance of
                  the two informations and allowed the
                  Commonwealth to use one trial to convict
                  [appellant] for the two separate cases which
                  involved charges of homicide and robbery?

            B.    Whether the court acted properly in denying
                                         or a jury charge as it
                  relates to voluntary manslaughter?

            C.    Whether the lower court was correct, in
                  determining that the police had properly
                  advised [appellant] of his Miranda rights, did
                  properly question [appellant], and therefore
                  any statements made by [appellant] were
                  permitted to be entered as part of the


            D.    Whether or not there was sufficient evidence to
                  sustain the finding of guilty as it relates to the
                  charges of robbery?

            E.    Whether the trial court properly allowed
                  various pictures including pictures of the
                  decedent to be entered as evidence against
                  [appellant] which were inflammatory and
                  otherwise of no probative [value]?

                     -9.




                                    - 10 -
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     In his first issue on appeal, appellant argues that the trial court erred

in denying his motion to sever.    Appellant argues that the murder case

should have been severed from the other charges; specifically, the robberies

at the Wawa convenience store.

           Whether to join or sever offenses for trial is within
                        s discretion and will not be reversed on
           appeal absent a manifest abuse thereof, or prejudice
           and    clear    injustice   to      the    defendant.
           Commonwealth v. Newman, 528 Pa. 393, 598
           A.2d 275, 277 (Pa.1991). The Rules of Criminal
           Procedure provide:

           Joinder-Trial of Separate Indictments of Informations

           (A)   Standards

                 (1)   Offenses charged in separate
                       indictments or informations may be
                       tried together if:

                       (a)   the evidence of each of
                             the offenses would be
                             admissible in a separate
                             trial for the other and is
                             capable of separation by
                             the jury so that there is
                             no danger of confusion;
                             or

                       (b)   the offenses charged are
                             based on the same act
                             or transaction.

           Pa.R.Crim.P. 582(A)(1)(a)-(b).

Commonwealth v. Wholaver, 989 A.2d 883, 898 (Pa. 2010).

           Evidence of distinct crimes is inadmissible solely to

           Such evidence is admissible, however, to show a


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            common plan, scheme or design embracing
            commission of multiple crimes, or to establish the
            identity of the perpetrator, so long as proof of one
            crime tends to prove the others. This will be true
            when there are shared similarities in the details of
            each crime.

Commonwealth v. Andrulewicz, 911 A.2d 162, 168 (Pa.Super. 2006),

appeal denied, 926 A.2d 972 (Pa. 2007), quoting Commonwealth v.

Keaton

following factors should be considered in establishing similarity: the elapsed

time between the crimes; the geographical proximity of the crime scenes;

and the manner in which the crim                         Commonwealth v.

Judd, 897 A.2d 1224, 1232 (Pa.Super. 2006), appeal denied, 912 A.2d

1291 (Pa. 2006) (citations omitted) (bullets omitted).

      All of these crimes were part of the same criminal episode. Appellant

committed the robberies at the Wawa in an attempt to escape after killing

Jimenez-

disabled.   Appellant walked around the Wawa parking lot, displaying a

handgun and demanding that people turn over their car keys.              See

Commonwealth v. DeHart, 516 A.2d 656, 661 (Pa. 1986), cert. denied,

483 U.S. 1010 (1987) (trial court did not err in consolidating the charges,



of the same transaction and the homicide, robbery, and burglary were

perpetrated in furtherance of the escape). See also Wholaver, 989 A.2d at




                                    - 12 -
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Pa.R.Crim.P. 582(A)(1)(b); Commonwealth v. Paddy, 800 A.2d 294, 308

(Pa. 2002) (evidence of other crime admissible where it is part of the chain

or sequence of events which became part of the theory of the case and

formed part of the natural development of the facts).

      The homicide and subsequent robberies were inextricably intertwined



motive for the robberies was to flee after killing Jimenez-Gonzalez.         See

Pa.R.E. 404(b)(2) (evidence of other crimes, wrongs, or acts is admissible to

prove motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence   of   mistake   or   accident).      The   robberies   and   shooting   of

Raymond Shook were also admissible to establish consciousness of guilt.

See Commonwealth v. Hudson, 955 A.2d 1031, 1036 (Pa.Super. 2008),

appeal denied

wanted in connection with a criminal investigation, and flees or conceals

himself, such conduct is admissi

(citation omitted). Furthermore, these crimes occurred in a linear sequence

and were easily capable of separation by the jury so as to avoid danger of

confusion. The trial court did not abuse its discretion in

motion to sever the charges.




                                     - 13 -
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      Next, appellant claims the trial court erred in refusing to give a jury

instruction on voluntary manslaughter. Appellant argues that the evidence

justified an instruction on imperfect self-defense. We disagree.

            It is clear that jury instructions regarding particular
            crimes or defenses are not warranted where the
            facts of the case do not support those instructions.
            See Commonwealth v. Browdie, 543 Pa. 337,
            347-50, 671 A.2d 668, 673-74 (1996); see also
            Commonwealth v. Harris, 542 Pa. 134, 139-40,
            665 A.2d 1172, 1175 (1995) (no self-defense
            instruction required where the evidence did not
            support self-defense); Commonwealth v. Carter,
            502 Pa. 433, 443-44, 466 A.2d 1328, 1332-33
            (1983) (trial counsel not ineffective for failing to
            request instruction on voluntary manslaughter where
            no evidence existed to support a conviction for that
            offense).

Commonwealth v. Washington, 692 A.2d 1024, 1028 (Pa. 1997), cert.

denied, 523 U.S. 1006 (1998).

      Section   2503(b)   of   the   Crimes   Code,   voluntary   manslaughter,

provides, in relevant part, as follows:

            (b)   Unreasonable belief killing justifiable.--A
                  person who intentionally or knowingly kills an
                  individual commits voluntary manslaughter if
                  at the time of the killing he believes the
                  circumstances to be such that, if they existed,
                  would justify the killing under Chapter 5 of this
                  title (relating to general principles of
                  justification), but his belief is unreasonable.

18 Pa.C.S.A. § 2503(b).

                                                              ntary

                        -        Commonwealth v. Tilley,
            528 Pa. 125, 595 A.2d 575, 582 (1991) (citing


                                     - 14 -
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           18 Pa.C.S. § 2503(b)), will only justify a voluntary
           manslaughter instruction in limited circumstances:
           w
           than a reasonable belief that deadly force was

           principles of justification under 18 Pa.C.S. § 505 []
                                Id. Generally, the use of deadly
           force
           such force is necessary to protect himself against
           death, serious bodily injury, kidnapping or sexual

           18 Pa.C.S. § 505(b)(2). Although a defendant has
           no burden to prove a claim of self-defense before

           some evidence, from whatever source, to justify
                               Commonwealth v. Sepulveda,
           55 A.3d 1108, 1124 n.13 (Pa. 2012).              The
           evidentiary elements necessary to prevail on a
           justification defense are that the defendant
           (a) reasonably believed that he was in imminent
           danger of death or serious bodily injury and that it
           was necessary to use deadly force against the victim
           to prevent such harm; (b) was free from fault in
           provoking the difficulty which culminated in the
           slaying; and (c) did not violate any duty to retreat.
           Id. at 1124 (citing 18 Pa.C.S. § 505).

Commonwealth v. Sanchez, 82 A.3d 943, 981 (Pa. 2013).

     Appellant testified that Jimenez-Gonzalez struck him in the face and

grabbed his neck, pushing him into the porch area.     (Trial court opinion,

5/21/13 at 18.)   Appellant and Jimenez-Gonzalez engaged in a struggle.

(Id.) Appellant testified that he told Jimenez-

did not do so, and appellant pulled out a gun he had concealed in his

clothing. (Id.) According to appellant, Jimenez-Gonzalez tried to grab the

gun, and there was a struggle, during which the gun discharged twice. (Id.




                                   - 15 -
J. S33008/14

at 18-19.) Appellant acknowledged that he had pulled the trigger. (Id. at

19.) Appellant then fled the scene. (Id.)



Jimenez-Gonzalez struck and pushed him and they engaged in a struggle,

appellant cannot meet the second and third requirements of the self-defense

statute, i.e., that he was free from fault in provoking or continuing the

difficulty which culminated in the slaying, and that he did not violate any

duty to retreat.   Appellant was told repeatedly by both Jimenez-Gonzalez

and Adalberto Lopez that Elba Lopez was not present and to leave the

premises. Appellant demanded to be let inside anyway. At this point, the

evidence conflicts; Adalberto Lopez testified that appellant barged into the

house and began struggling with the victim.      Appellant testified that the

victim eventually opened the door. (Id. at 17-18.) Regardless, it is clear

that appellant entered the home without being invited to do so and after

some degree of resistance. (Id. at 20.) Jimenez-Gonzalez had the right to

defend himself inside his own home. Furthermore, even if Jimenez-Gonzalez

struck appellant, it was appellant who drew the firearm and had his finger on




                                   - 16 -
J. S33008/14

the trigger. Jimenez-Gonzalez was unarmed. We determine the trial court

did not err in refusing to instruct the jury on voluntary manslaughter.1

        Next, appellant argues that his statements to Detective Cruz, taken

while he was in the hospital receiving medical treatment, were obtained in

violation of Miranda.2                                  Appellant complains that

while he was initially read his rights by Sergeant Birosik, Detective Cruz

resumed questioning four hours later without re-reading appellant his rights.

(Id.)    Appellant also claims that he was suffering from head and back

injuries and was not fully aware of his rights. (Id.)

             The role of this Court in reviewing the denial of a
             suppression motion is well-established:



                   denial of a suppression motion is limited
                   to determining whether the factual
                   findings are supported by the record and
                   whether the legal conclusions drawn
                   from those facts are correct. Since the
                   prosecution prevailed in the suppression

1
  In the court below, appellant also argued that he was entitled to a
voluntary manslaughter--heat of passion instruction. Appellant claimed that

                                                          -Gonzalez. (Id.
at 14.) On appeal, appellant concedes that heat of passion would not apply
where it was not the victim, Jimenez-

guilty of heat of passion voluntary manslaughter if at the time of the killing
he reacted under a sudden and intense passion resulting from serious
provocation by the victim
victim but, rather, Elba Lopez. In fact, appellant testi


2
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                    - 17 -
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               court, we may consider only the evidence
               of the prosecution and so much of the
               evidence for the defense as remains
               uncontradicted when read in the context
               of the record as a whole. Where the
               record supports the factual findings of
               the trial court, we are bound by those
               facts and may reverse only if the legal
               conclusions drawn therefrom are in error.

          Commonwealth v. Stevenson, 894 A.2d 759, 769
          (Pa.Super.2006) (citation omitted). Although we are
          bound   by    the   factual    and    the  credibility
          determinations of the trial court which have support
          in the record, we review any legal conclusions
          de novo. Commonwealth v. George, 878 A.2d
          881, 883 (Pa.Super.2005), appeal denied, 586 Pa.
          735, 891 A.2d 730 (2005).

Commonwealth v. Wells, 916 A.2d 1192, 1194-1195 (Pa.Super. 2007).

               A confession obtained during a custodial
               interrogation is admissible where the

               to counsel have been explained and the
               accused has knowingly and voluntarily
               waived those rights.       The test for
               determining the voluntariness of a
               confession and whether an accused
               knowingly waived his or her rights looks
               to the totality of the circumstances
               surrounding the giving of the confession.

          Commonwealth v. Jones, 546 Pa. 161, 170, 683

          Commonwealth bears the burden of establishing
          whether a defendant knowingly and voluntarily
          waived his Miranda           Commonwealth v.
          Bronshtein, 547 Pa. 460, 464, 691 A.2d 907, 913
          (1997) (citation omitted).

Commonwealth v. Parker, 847 A.2d 745, 748 (Pa.Super. 2004).




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J. S33008/14

      We agree with the Commonwealth that while appellant did litigate a

pre-trial motion to suppress his statements to Detective Cruz, the matter is

waived for appellate review because at trial, it was appellant, not the

Commonwealth,         that    introduced        these    statements    into    evidence.




testimony, 7/20/12 at 53.) Appellant told Detective Cruz that he was sorry

and asked about his family. (Trial court opinion, 1/20/12 at 8.) Appellant

                                                 Id.)    Appellant also stated that he

loved Jimenez-Gonzalez like a father, and stated that he did not remember

being at his house. (Id.) According to appellant, he had been drinking and

                                         Id.)

      At trial, appellant took the stand in his own defense and testified

regarding these statements.         (Notes of testimony, 7/20/12 at 133-134.)

Therefore, we find that appellant has waived the issue.               Furthermore, the

statements were clearly made knowingly and voluntarily for the reasons



pre-trial   motion.          Appellant   was      read     his   Miranda      rights   by

Sergeant Birosik. (Trial court opinion, 1/20/12 at 10.) When Detective Cruz

interviewed him four hours later, he again reminded appellant that his rights

still applied.   (Id. at 11.)      Appellant appeared to understand his rights,



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J. S33008/14

answered appropriately, and did not request an attorney. (Id.) Appellant

did not appear to be medicated, and no member of the medical staff

instructed the detective that appellant was unable to be interviewed. (Id.)

When appellant said he wanted to stop answering questions, Detective Cruz

ended the interview. (Id.) There is no merit to this claim.

      In his fourth issue on appeal, appellant challenges the sufficiency of

the evidence to sustain his conviction for robbery; specifically, the robbery of



tucked into his waistband, there was never any testimony that he



Leon never testified that he felt threatened or in danger. (Id.)


                                   Commonwealth v. Weston,


            Commonwealth v. Jackson, 592 Pa. 232, 924 A.2d

            court determines whether the evidence, viewed in
            the light most favorable to the verdict winner, is
            sufficient to enable the fact-finder to find every
            element of the crime beyond a re
            Id.

Commonwealth v. Robinson, 936 A.2d 107, 108 (Pa.Super. 2007),

appeal denied, 948 A.2d 804 (Pa. 2008).

      Robbery is defined in 18 Pa.C.S.A. § 3701:

            (a)   Offense defined.--

                  (1)   A person is guilty of robbery if, in the
                        course of committing a theft, he:


                                     - 20 -
J. S33008/14



                         (ii)   threatens another with or
                                intentionally puts him in fear
                                of immediate serious bodily
                                injury;

18 Pa.C.S.A. § 3701(a)(1)(ii).

             [T]he Commonwealth need not prove a verbal
             utterance or threat to sustain a conviction under
             subsection 3701(a)(1)(ii).  It is sufficient if the
             evidence demonstrates aggressive actions that

             subsection 3701(a)(1)(ii), the proper focus is on the
             nature of the threat posed by an assailant and
             whether he reasonably placed a victim in fear of

             by the appearance of a firearm is calculated to inflict


             victim was in mortal fear when a defendant visibly
             brandished a firearm.

Commonwealth v. Alford, 880 A.2d 666, 676 (Pa.Super. 2005), appeal

denied, 890 A.2d 1055 (Pa. 2005), quoting Commonwealth v. Hopkins,

747 A.2d 910, 914-915 (Pa.Super. 2000) (citations omitte



Commonwealth v. Nelson, 582 A.2d 1115, 1118 (Pa.Super. 1990),

appeal denied, 593 A.2d 840 (Pa. 1991) (citation omitted).

     Instantly, Leon and his friend, Elionel Diaz-Rivera, went inside the

Wawa to pay for gas and use the ATM. (Trial court opinion, 5/21/13 at 23.)



side door.   (Id.)   Appellant had a gun in his waistband.       (Id.)   Appellant

asked for the car keys. (Id.) Leon and Diaz-Rivera fled inside the Wawa,


                                      - 21 -
J. S33008/14

where Leon hid behind some refrigerators.           (Id.; notes of testimony,

7/18/12 at 61-62.)

        The fact that appellant did not actually draw his weapon or point it at

Leon is irrelevant. Diaz-Rivera testified that appellant had the gun tucked



                                               Id. at 59.) Appellant demanded

the car keys at which point the victims fled. Clearly, appellant intended to

place the victims in fear of immediately serious bodily injury in an attempt to

get them to turn over the car keys.        In addition, although Leon did not

testify that he was in actual fear of immediate serious bodily injury, the jury

could fairly make such an inference. The fact that Leon was hiding behind

refrigerators in the Wawa indicates that he was in fear of immediate serious

bodily injury. The evidence was sufficient to convict appellant of robbery of

Leon.

        Finally, appellant argues that the trial court erred in allowing certain

photographs to be entered into evidence, including one of the victim on the

                                           -25.)   Appellant argues that these

photographs were inflammatory in nature and irrelevant since there was

never a question that the victim was deceased and his cause of death. (Id.

at 25.)




                                      - 22 -
J. S33008/14

on

Commonwealth v. Mitchell, 902 A.2d 430, 466 (Pa. 2006), citing

Commonwealth v. Baez, 720 A.2d 711, 726 (Pa. 1998), cert. denied,

528 U.S. 827 (1999); Commonwealth v. Saranchak, 675 A.2d 268, 275

(Pa. 1996), cert. denied, 519 U.S. 1061 (1997).

       It is well established that pictures of the victim are not per se

inadmissible.        Commonwealth v. Robinson, 864 A.2d 460, 501 (Pa.

2004).    However, admissibility of the photograph turns heavily upon the

question of whether or not the photograph is inflammatory. Thus, the court

must     first     determine     whether     the    photograph   is   inflammatory.

Commonwealth v. Chester, 587 A.2d 1367, 1373-1374 (Pa. 1991). If the

photo is not inflammatory, it may be admitted w

                                                          Id. However, to admit a

photograph that is inflammatory:

                 the trial court must decide whether or not the
                 photographs are of such essential evidentiary value
                 that their need clearly outweighs the likelihood of
                 inflaming the minds and passions of the jurors. If an
                 inflammatory photograph is merely cumulative of
                 other evidence, it will not be deemed admissible.

Id. (citations omitted).

                 A criminal homicide trial is, by its very nature,
                 unpleasant, and the photographic images of the
                 injuries inflicted are merely consonant with the
                 brutality of the subject of inquiry. To permit the
                 disturbing nature of the images of the victim to rule
                 the question of admissibility would result in exclusion
                 of all photographs of the homicide victim, and would


                                           - 23 -
J. S33008/14

            defeat one of the essential functions of a criminal
            trial, inquiry into the intent of the actor. There is no
            need to so overextend an attempt to sanitize the
            evidence of the condition of the body as to deprive
            the Commonwealth of opportunities of proof in
            support of the onerous burden of proof beyond a
            reasonable doubt.

Commonwealth v. McCutchen, 454 A.2d 547, 549 (Pa. 1982), quoting

Commonwealth v. Petrakovich, 329 A.2d 844, 849 (Pa. 1974).

      Instantly, the trial court only admitted one photograph of the victim.



                                                        etc.

Exhibit 20 depicts the victim lying on the autopsy table, from the waist up.

While a large sutured wound with a surgical tube sticking out of it is visible,

the picture is not particularly gory or bloody. There are no visible signs of

blood or internal organs. We agree with the trial court that this photograph

was not inflammatory and was relevant to show intent. (Trial court opinion,

5/21/13 at 26.) The trial court did not abuse its discretion in admitting this

photograph.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2014



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