J-S16020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

HECTOR GONZALEZ

                            Appellant              No. 3435 EDA 2014


           Appeal from the Judgment of Sentence November 5, 2014
               In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0005117-2013


BEFORE: OTT, J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY OTT, J.:                            FILED AUGUST 16, 2016

        Hector Gonzalez brings this appeal from the judgment of sentence

imposed on November 5, 2014, in the Court of Common Pleas of Lehigh

County, following the denial of post-sentence motions on November 10,

2014. Gonzalez was found guilty by a jury of murder in the third degree 1 in

the stabbing death of Ahiezer Padilla-Marrero (the victim).   The trial court

sentenced Gonzalez to 20 to 40 years’ imprisonment. Gonzalez contends: 1)

the evidence was insufficient to sustain a verdict of guilty to murder in the

third degree when Gonzalez presented evidence of self-defense; 2) the trial

court erred in denying his pretrial motion to suppress statements he made to

____________________________________________


1
    18 Pa.C.S. § 2502(c).
J-S16020-16



police while under interrogation; and 3) the trial court erred in permitting

various photographs portraying the victim and the location of the homicide.

See Gonzalez’s Brief at 9–10. Based upon the following, we affirm.2, 3



____________________________________________


2
    Initially, we note the delay in this case.

       Counsel for Gonzalez filed a notice of appeal on November 19, 2014,
and an amended notice of appeal on December 2, 2014. By order entered
November 21, 2014, the trial court granted Gonzalez In Forma Pauperis
status, ordered the court monitor to transcribe the notes of testimony of the
trial held on September 30, 2014, through October 2, 2014, and ordered the
court stenographer to transcribe the notes of testimony for the sentencing
hearing held on November 5, 2014. On December 3, 2014, the court
entered an order directing the court monitor to transcribe the March 14,
2014 omnibus pretrial hearing.

       The notes of testimony for the sentencing hearing were filed in the
trial court on December 4, 2014. The notes of testimony for the omnibus
pretrial hearing were filed in the trial court on January 29, 2015. On March
25, 2015, this Court received the certified record, including transcripts for
the omnibus pretrial hearing and sentencing hearing, and one envelope of
exhibits from the omnibus pretrial hearing, but no trial transcripts.

        Having been granted two extensions of time, Gonzalez’s brief was
timely filed in this Court on July 20, 2015. On August 17, 2015, the
Commonwealth was granted an extension of time until October 19, 2015, to
file its brief. On October 16, 2015, the Commonwealth filed a request for a
second extension of time, averring that the Commonwealth had not received
the trial transcripts. The Commonwealth was granted an extension of time
until November 18, 2015, with no further extensions absent extraordinary
circumstances. On November 17, 2015, the Commonwealth filed a request
for a third extension of time to file its brief, asserting that because the
official court reporter had undergone a major surgery, she had been unable
to complete the transcription of the trial proceedings, and that the trial
transcripts were necessary for preparation of the Commonwealth’s brief. On
November 30, 2015, this Court granted the Commonwealth’s application for
extension of time to file its brief and extended the deadline to December 18,
(Footnote Continued Next Page)


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      The trial court has summarized the Commonwealth’s evidence, as

follows:

      On September 28, 2013, at approximately 11:30 p.m., Francisca
      Olivo heard banging sounds and people running from the
      apartment above hers at [address omitted]. She then heard a
      knock at her door and someone asking for help in Spanish. Ms.
      Olivo opened the door and discovered a bleeding man standing
      in her front porch area. Ms. Olivo noted that the individual
      seemed pale and weak and she sat the man on a chair on the
      porch. Ms. Olivo directed someone else within her apartment to
      call 9-1-1. Ms. Olivo’s sister-in-law, Wanda Mendez, began to
      apply pressure to the man’s wounds which were on his chest, leg
      and arm.

      Shortly thereafter, members of the Allentown Police Department
      responded to [address omitted] for a report of a stabbing.
      Officer Craig Berger was the first officer on scene and observed
      the victim, later identified as Ahiezer Padilla-Marrero, slumped
      over on a chair to the left of Ms. Olivo’s front door, surrounded
      by a group of people. Officer Berger observed that [the victim]
                       _______________________
(Footnote Continued)

2015. The Court further ordered the Commonwealth to update this Court, in
writing, by December 11, 2015, as to the status of the transcriptions.

       On December 11, 2015, by letter, the Commonwealth advised this
Court that the trial transcripts had not been transcribed despite additional
requests directed to the official court reporter. The Commonwealth filed its
brief on December 18, 2015.

      This appeal came before this panel on February 1, 2016. On May 3,
2016, Volumes II, III, and IV of the trial testimony, and one envelope of trial
exhibits were filed with this Court. Volume I of the trial testimony was filed
with this Court on July 14, 2016.
      3
         By order of November 21, 2014, the trial court directed Gonzalez to
file a Pa.R.A.P. 1925(b) statement. On December 24, 2014, Gonzalez filed a
motion for extension of time to file his Rule 1925(b) statement. Gonzalez
filed his concise statement on January 30, 2015.




                                            -3-
J-S16020-16



     had an apparent stab wound to the center of his torso, was
     covered in blood, and was non-responsive. He radioed EMS and
     directed them to come to the scene immediately.

     At that point, Officer Michael Yetter had arrived on scene and
     stayed with the victim and witnesses. Officer Berger proceeded
     to the front apartment building door and observed blood droplets
     on the steps, leading into the building. He followed those blood
     droplets to Apartment D3. At that point, Officer Kyle Pammer
     joined him and they determined that the apartment door was
     locked. The officers knocked on the door, paused for 20 seconds,
     knocked again on the door, and announced their presence as
     police officers. Officer Berger radioed the police sergeant and
     advised that he and Officer Pammer were going to enter the
     apartment. Sergeant Alicia Conjour, now positioned outside of
     the apartment building, advised that she observed a male
     appear in a window of the apartment.

     When no response was made from the inside of the apartment,
     Officer Berger delivered one kick to the door and was able to
     enter the apartment with Officer Pammer. Upon entering the
     apartment, they observed that the apartment was in disarray
     and noted a dining room and kitchen off to their right. They
     observed a kitchen to the right of the dining room. As they
     cleared the area, they observed blood on the carpet, walls,
     furniture and kitchen sink area. Inside the sink, Officer Pammer
     observed three or four knives which were wet, and blood in the
     sink. After clearing the kitchen living areas, the officers heard
     footsteps and heard a door close.

     The officers noticed two doors to the rear of the apartment. The
     left door was open and Officer Berger was able to determine that
     the door led to a bathroom. The door to the right was closed.
     Officer [David] Howells, now present in the apartment,
     announced that whoever was inside should come out.
     Approximately 10 to 15 seconds later, a male emerged, wearing
     only blue jeans or shorts. The man had blood spatter on his face
     and chest area and kept looking back into the room, which was
     ultimately determined to be the only bedroom in the apartment.
     The male appeared hesitant and kept looking back into the
     room, causing other officers to train their Taser guns on the
     male. Ultimately, Officer Berger handcuffed him. The male was
     identified as [Gonzalez]. The officers discovered [Gonzalez’s] two
     minor children inside the bedroom.

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J-S16020-16




        Once handcuffed, [Gonzalez] was led to the kitchen area and
        was seated at the dining room table. Officer Berger noted
        injuries to his head and blood on his torso. He contacted EMS to
        respond to the apartment to treat [Gonzalez]. Officer Berger
        then obtained basic information from the male, including his
        name and date of birth, and kept him under observation. Officer
        Berger also observed blood spatter and a dent in the drywall in
        the dining area. While seated at the table, [Gonzalez] began to
        talk to Officer Berger, despite not being asked any questions by
        the officers on scene. Speaking in “broken” English, [Gonzalez]
        related that the victim had eaten all of the food [Gonzalez] had
        previously prepared for his children and that [Gonzalez] felt
        disrespected. [Gonzalez] confronted the victim and the victim
        punched [Gonzalez] in the face. The victim grabbed a knife and
        [Gonzalez] responded by grabbing a knife himself. He then
        repeatedly asked Officer Berger, “What would you do?” Officer
        Berger did not answer [Gonzalez], nor did he ask him any
        questions.

        When EMS arrived, Officer Berger asked them to check
        [Gonzalez] for injury or if he was in need of medical treatment.
        [Gonzalez] refused medical treatment.

        Detective Raymond Ferraro had arrived on scene and began to
        speak with [Gonzalez], again obtaining basic information. He
        was able to observe blood splatter on [Gonzalez] and that there
        was an injury near [Gonzalez’s] eye. Detective Ferraro, unable to
        speak Spanish, believed that there may be a language barrier
        and requested that Officer Miguel Villa respond to the scene to
        assist in translation. Officer Villa is bilingual in Spanish and
        English. Detective Ferraro, Officer Villa, and [Gonzalez] were
        seated at the kitchen table and Officer Villa advised [Gonzalez]
        of his Miranda[4] warnings in Spanish, after Detective Ferraro
        read them aloud in English. [Gonzalez] verbally acknowledged
        that he understood his rights and was also given a written
        Miranda warning form to read, which was written in both English
        and Spanish. [Gonzalez] read the form and signed it with his
        right hand, acknowledging that he understood his rights, in
____________________________________________


4
    Miranda v. Arizona, 384 U.S. 436 (1966).



                                           -5-
J-S16020-16



     Officer Villa’s presence. [Gonzalez] appeared sober and
     responded in both English and Spanish to questions posed to
     him. At that point, Detective Ferraro was treating the incident as
     a stabbing investigation and [Gonzalez] was taken to police
     headquarters.

     At some later point in time, Detective Ferraro was informed that
     the victim had succumbed to his injuries. At that point, Detective
     Ferraro requested the assistance of Lehigh County Detective
     Joseph Vazquez, a member of the Homicide Task Force.
     Detective Vazquez went to the scene, made observations, and
     proceeded to police headquarters.

     At headquarters, a videotaped interview with [Gonzalez] was
     conducted. [Gonzalez] was informed that Detective Vazquez
     spoke Spanish and was available to translate during the
     interview. [Gonzalez] was again Mirandized, and he again
     completed the written waiver of his rights. The detectives first
     obtained biographical information from [Gonzalez] and advised
     him that they wanted to speak to [Gonzalez] regarding what had
     transpired in the apartment. Thereafter, the detectives advised
     [Gonzalez] that the victim had died. [Gonzalez] immediately
     began to cry.

     During the course of the interview, [Gonzalez] changed his story
     several times. First, he indicated that he did not know what
     happened. Next, he stated that the victim had stabbed himself.
     Then, [Gonzalez] indicated that indeed he and the victim had
     fought, but that if the victim had been stabbed, [Gonzalez] didn’t
     remember stabbing him. Finally, after Detective Ferraro
     disclosed that the victim had suffered a stab wound to the back,
     [Gonzalez] once again indicated that he did not know what had
     happened.

     The detectives presented [Gonzalez] with several scenarios of
     what may have happened, including one in which [Gonzalez] was
     acting in self-defense, but [Gonzalez] refused to agree with any
     of the scenarios posed by the detectives. [Gonzalez] denied
     stabbing the victim.

     On September 30, 2013, an autopsy was performed by Dr.
     Barbara Bollinger, a forensic pathologist and expert in forensic
     pathology. Dr. Bollinger determined that the victim’s cause of
     death was multiple sharp force injuries and the manner of death

                                   -6-
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     was homicide. Specifically, Dr. Bollinger found a large, gaping
     stab wound to the victim's chest approximately 2.5 to 3.5 inches
     in depth, which had plunged into the victim’s heart. Dr. Bollinger
     opined that this was a lethal wound and the victim would have
     succumbed to the wound within minutes. Further, she found a
     stab wound to the right aspect of the victim’s neck, which had
     perforated the small internal jugular vein. She opined that this
     was another fatal stab wound. Dr. Bollinger testified that the
     wounds were consistent with the use of two different knives.

     Dr. Bollinger found several other superficial wounds on the
     victim’s torso, back, shoulders, back of wrists, forearms, left
     thigh and knee. She further opined that some of these wounds
     could be categorized as defensive wounds.

     [Gonzalez] testified at trial, telling the jury that he and the
     victim were family friends and that he had known the victim
     while the two of them lived in Puerto Rico. He stated that
     approximately one and a half weeks before this incident, he had
     permitted the victim to stay in his apartment, so long as the
     victim agreed to follow [Gonzalez’s] house rules. Specifically,
     [Gonzalez] wanted the apartment to remain clean and for the
     victim to refrain from using [Gonzalez’s] personal hygiene items.
     While staying at [Gonzalez’s] apartment, the victim slept on a
     mattress in the living room area.

     On September 28, 2013, [Gonzalez] had returned in the late
     evening with his children, ages 2 years and 1 year old. The
     victim was at the apartment when they arrived home.
     [Gonzalez] and children greeted the victim and [Gonzalez]
     proceeded to bathe his children and attempted to feed them.
     [Gonzalez] testified that earlier in the day, he had made rice for
     the children. When [Gonzalez] checked the pot still on the stove,
     he discovered that there was not enough for the children to eat.

     [Gonzalez] confronted the victim regarding the missing food and
     the two began to argue. Their verbal argument got louder and
     one of the young children appeared to be scared. [Gonzalez]
     testified that he asked the victim to lower his voice and that if he
     couldn’t calm down, that he should go outside of the apartment
     to cool down. [Gonzalez] began to take his children into the
     bedroom.



                                    -7-
J-S16020-16



     [Gonzalez] further testified that just before he entered the
     bedroom with his children, the victim punched him in the head,
     causing [Gonzalez] to strike the child he was carrying.
     [Gonzalez] put the children in the bedroom and reemerged.
     [Gonzalez] stated that he pushed the victim and told him that he
     didn’t want him at his house anymore because [Gonzalez] had
     been disrespected. As the victim was walking backwards out of
     the bedroom area, [Gonzalez] began to punch the victim.

     The physical altercation continued as the victim walked into the
     dining room area. [Gonzalez] testified that the victim pushed
     him into a wall, causing him to fall down. [Gonzalez] was able to
     get up and the fight continued in the corner of the dining room.
     [Gonzalez] testified that the victim then entered the kitchen,
     opened a drawer, and retrieved a knife. [Gonzalez] testified that
     he told the victim to calm down and to leave the apartment.

     [Gonzalez] further testified that the victim stated that he wanted
     to continue the fight and brandished a knife. [Gonzalez]
     attempted to grab the victim’s hand in order to take away the
     knife. He was unsuccessful and the fight continued. At some
     point, the knife fell onto the ground and the victim grabbed
     [Gonzalez] by his neck and threw him to the floor. [Gonzalez]
     testified that he was throwing punches and kicking at the victim
     when he felt something on the floor. [Gonzalez] then struck the
     victim with the knife, attempting to get the victim to stop
     fighting and/or choking him. [Gonzalez] characterized his knife
     use as a “poke,” intended only to force the victim to let go of
     him. [Gonzalez] continued to “poke” at the victim.

     A short time later, [Gonzalez] realized that he had blood on him
     and went to his children to calm them. He then saw the victim
     leaving the apartment, went to the apartment door to lock it,
     and noticed blood on the doorknob. [Gonzalez] then went into
     the bathroom and washed his hands. He also discovered the
     bleeding wound over his eye.

     On cross examination, [Gonzalez] admitted that he had a
     confrontation with the victim and that he caused the victim’s
     death. He further admitted that he did not inform the police that
     the victim punched him first to start the altercation, nor did he
     inform them that the victim choked him in the course of the
     fight. [Gonzalez] believed that the victim’s stab wounds must


                                   -8-
J-S16020-16



       have occurred in the course of their altercation and denied
       deliberately stabbing the victim.

Trial Court Opinion, 3/16/2015, at 3–9.5 The trial court charged the jury on

murder in the first degree, murder in the third degree, and voluntary

manslaughter. The jury found Gonzalez guilty of murder in the third degree.

       In his first issue, Gonzalez challenges the sufficiency the evidence to

sustain his conviction.6         Gonzalez argues the Commonwealth failed to

disprove his claim of self-defense, specifically, he claims he “was confronted

with a much larger individual who had already shown disrespect for

[Gonzalez] and his children and who [Gonzalez] had reason to fear.”

Gonzalez’s Brief at 20.       Gonzalez contends “the record did not support any

reasonable inference that the taking of food would lead to [Gonzalez] having

the requisite malice required to support his conviction.” Id. at 20–21. He

asserts that “his testimony and a review of all evidence shows how he was

____________________________________________


5
  Gonzalez also presented the prior criminal record of the victim, showing
that the victim had three simple assault convictions, in 2005 (12 months’
probation), 2010 (12 months’ probation), and 2011 (7–23 months’
imprisonment). See N.T., 10/2/2014, at 127–135. It was stipulated that
Gonzalez was convicted of simple assault in 2013, and received 12 months’
probation. Id. at 137.
6
  We must address this issue first, since a successful sufficiency of the
evidence challenge warrants discharge on the pertinent crime.
Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super. 2013).




                                           -9-
J-S16020-16



the victim of an assault that he responded to and while it unfortunately led

to his use of deadly force that force was necessary to protect himself.” Id.

at 21. Gonzalez maintains “the record does not support any finding that he

acted unreasonably, that he provoked the use of force, or that he had to

retreat while he was in his own home and [the victim] was his guest.” Id.

     The principles that guide our review are well settled:

     The standard we apply in reviewing the sufficiency of the
     evidence is whether viewing all the evidence admitted at trial in
     the light most favorable to the verdict winner, there is sufficient
     evidence to enable the fact-finder to find every element of the
     crime beyond a reasonable doubt. In applying [the above] test,
     we may not weigh the evidence and substitute our judgment for
     the fact-finder. In addition, we note that the facts and
     circumstances established by the Commonwealth need not
     preclude every possibility of innocence. Any doubts regarding a
     defendant’s guilt may be resolved by the fact-finder unless the
     evidence is so weak and inconclusive that as a matter of law no
     probability of fact may be drawn from the combined
     circumstances. The Commonwealth may sustain its burden of
     proving every element of the crime beyond a reasonable doubt
     by means of wholly circumstantial evidence. Moreover, in
     applying the above test, the entire record must be evaluated and
     all evidence actually received must be considered. Finally, the
     trier of fact while passing upon the credibility of witnesses and
     the weight of the evidence produced, is free to believe all, part
     or none of the evidence.

Commonwealth v. Ventura, 975 A.2d 1128, 1142 (Pa. Super. 2009).

     Third degree murder occurs when a person commits a killing
     which is neither intentional nor committed during the
     perpetration of a felony, but contains the requisite malice. Malice
     is not merely ill-will but, rather, wickedness of disposition,
     hardness of heart, recklessness of consequences, and a mind
     regardless of social duty. Malice may be inferred from the use of
     a deadly weapon on a vital part of the victim’s body. Further,
     malice may be inferred after considering the totality of the
     circumstances.


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Commonwealth v. Son Truong, 36 A.3d 592, 597-98 (Pa. Super. 2012)

(quotations and citations omitted).

      Section 505 of the Crimes Code sets forth self-defense rights and

limitations, and provides, in relevant part:

      (a) Use of force justifiable for protection of the person. — The
      use of force upon or towards another person is justifiable when
      the actor believes that such force is immediately necessary for
      the purpose of protecting himself against the use of unlawful
      force by such other person on the present occasion.

      (b) Limitations on justifying necessity for use of force. —

         …

         (2) The use of deadly force is not justifiable under this
         section unless the actor believes that such force is
         necessary to protect himself against death, serious bodily
         injury, kidnapping or sexual intercourse compelled by
         force or threat; nor is it justifiable if:

         (i) the actor, with the intent of causing death or serious
         bodily injury, provoked the use of force against himself in
         the same encounter; or

         (ii) the actor knows that he can avoid the necessity of
         using such force with complete safety by retreating,
         except the actor is not obliged to retreat from his dwelling
         or place of work, unless he was the initial aggressor or is
         assailed in his place of work by another person whose
         place of work the actor knows it to be.

18 Pa.C.S.§ 505(a), (b)(2)(i)-(ii).

      If the defendant properly raises “self-defense under Section 505
      of the Pennsylvania Crimes Code, the burden is on the
      Commonwealth to prove beyond a reasonable doubt that the
      defendant’s    act    was      not     justifiable self-defense.”
      Commonwealth v. McClendon, 2005 PA Super 164, 874 A.2d
      1223, 1229-30 (Pa.Super. 2005).

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        The Commonwealth sustains this burden if it establishes
        at least one of the following: 1) the accused did not
        reasonably believe that he was in danger of death or
        serious bodily injury; or 2) the accused provoked or
        continued the use of force; or 3) the accused had a duty
        to retreat and the retreat was possible with complete
        safety.

     Commonwealth v. Hammond, 2008 PA Super 128, 953 A.2d
     544, 559 (Pa.Super. 2008), appeal denied, 600 Pa. 743, 964
     A.2d 894 (2009) (quoting McClendon, supra at 1230). The
     Commonwealth must establish only one of these three elements
     beyond a reasonable doubt to insulate its case from a self-
     defense challenge to the evidence. Commonwealth v. Burns,
     2000 PA Super 397, 765 A.2d 1144, 1149 (Pa.Super. 2000),
     appeal denied, 566 Pa. 657, 782 A.2d 542 (2001). The
     Commonwealth can negate a self-defense claim if it proves the
     defendant did not reasonably believe he was in imminent danger
     of death or great bodily injury and it was necessary to use
     deadly force to save himself from that danger. Commonwealth
     v. Sepulveda, 618 Pa. 262, 289, 55 A.3d 1108, 1124 (2012).

        The requirement of reasonable belief encompasses two
        aspects, one subjective and one objective. First, the
        defendant must have acted out of an honest, bona fide
        belief that he was in imminent danger, which involves
        consideration of the defendant's subjective state of mind.
        Second, the defendant's belief that he needed to defend
        himself with deadly force, if it existed, must be
        reasonable in light of the facts as they appeared to the
        defendant, a consideration that involves an objective
        analysis.

     Commonwealth v. Mouzon, 617 Pa. 527, 551, 53 A.3d 738,
     752 (2012). As the Mouzon Court observed, the use of deadly
     force itself “cannot be viewed in isolation with [the victim] as the
     sole physical aggressor and [the defendant] acting in responsive
     self-defense. [T]his would be an incomplete and inaccurate view
     of the circumstances for self-defense purposes.” Id. at 549, 53
     A.3d at 751. To claim self-defense, the defendant must be free
     from fault in provoking or escalating the altercation that led to
     the offense, before the defendant can be excused from using
     deadly     force.   Id.    (emphasis     added).    Likewise,    the
     Commonwealth can negate a self-defense claim by proving the

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J-S16020-16



     defendant “used more force than reasonably necessary to
     protect against death or serious bodily injury.” Commonwealth
     v. Truong, 2012 PA Super 8, 36 A.3d 592, 599 (Pa.Super.
     2012) (en banc).

     When the defendant’s own testimony is the only evidence of self-
     defense, the Commonwealth must still disprove the asserted
     justification and cannot simply rely on the jury’s disbelief of the
     defendant’s testimony:

        The “disbelief of a denial does not, taken alone, afford
        affirmative proof that the denied fact existed so as to
        satisfy a proponent's burden of proving that fact.” The
        trial court’s statement that it did not believe Appellant's
        testimony is no substitute for the proof the
        commonwealth was required to provide to disprove the
        self-defense claim.

     Commonwealth v. Reynolds, 2003 PA Super 400, 835 A.2d
     720, 731 (Pa.Super. 2003) (quoting Torres, supra). If there are
     other witnesses, however, who provide accounts of the material
     facts, it is up to the fact finder to “reject or accept all, part or
     none of the testimony of any witness.” Commonwealth v.
     Gonzales, 415 Pa. Super. 564, 609 A.2d 1368, 1370 (Pa.Super.
     1992).

     A number of factors, including whether complainant was armed,
     any actual physical contact, size and strength disparities
     between the parties, prior dealings between the parties,
     threatening or menacing actions on the part of complainant, and
     general circumstances surrounding the incident, are all relevant
     when determining the reasonableness of a defendant's belief
     that the use of deadly force was necessary to protect against
     death or serious bodily injuries. See Commonwealth v. Soto,
     657 A.2d 40, 441 Pa. Super. 241 (Pa.Super. 1995) (concurring
     opinion by Olszewski, J.) (collecting cases for this general
     proposition). No single factor is dispositive. Id. Furthermore, a
     physically larger person who grabs a smaller person does not
     automatically invite the smaller person to use deadly force in
     response. Commonwealth v. Hill, 427 Pa. Super. 440, 629
     A.2d 949 (Pa.Super. 1993).

Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 2014).



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       Based on our careful review, we conclude the Commonwealth’s

evidence supports the jury’s verdict of murder of the third degree.       The

Commonwealth showed Gonzalez felt “disrespected,” 7 that he confronted the

victim and a struggle ensued, that the victim suffered fatal stab wounds to

the chest and neck, and that the victim’s wounds were not self-inflicted. The

Commonwealth presented evidence including Gonzalez’s statements to

police at his apartment and at police headquarters;8 photographs of the


____________________________________________


7
  N.T., 9/30/2014, at 87 (direct examination testimony of Officer Craig
Berger).
8
  Officer Berger testified that at the apartment, Gonzalez stated that “[w]hen
he went to confront [the victim] about [eating all of his food] that [the
victim] had punched him in the face.” N.T., 9/30/2014, at 88. Officer
Berger further testified “[Gonzalez] then stated that [the victim] grabbed a
knife and [Gonzalez] stated that he grabbed the knife and then he kind of
ended right there.” Id. Gonzalez did not go any further; he asked the
officer, “What would you do?” Id. at 89, 100.

     After Gonzalez was Mirandized at police headquarters, he told
Detectives Vasquez and Ferraro during questioning that the victim had
stabbed himself, and that he didn’t know what had happened. See N.T.,
10/1/2014, at 51–52 (direct examination testimony of Detective Vasquez),
169–170 (direct examination testimony of Officer Ferraro).

      Detective Vasquez testified that at the interview at police headquarters
“[w]e did everything from offering him the explanation of … him defending
himself where the victim may have attacked him to him defending himself
by going to get another knife, taking the knife from the victim to use against
the victim, in – in his own self-defense and as you will see that none of that
– he wouldn’t agree to any of that.” Id. at 52.

      Detective Ferraro testified the content of what Gonzalez stated in the
interview was basically the same as he had stated after he was Mirandized
(Footnote Continued Next Page)


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J-S16020-16



crime scene,9 of Gonzalez at the crime scene,10 and of the injuries of the

victim;11 and a forensic pathologist, who testified regarding the nature of the


                       _______________________
(Footnote Continued)

and questioned at his apartment by Detective Ferraro with the interpretation
assistance of Officer Villa. Id. at 169, 162–169.

       The Commonwealth played the police headquarters interview video at
trial, and the jurors followed along with the transcript.      See N.T.,
10/1/2014, at 176–177, 185–190; Commonwealth Exhibits 28 (interview
transcript/translation) and 69 (recorded interview).
9
  The photographs included photographs of blood spatter in the apartment,
and a photograph of two knives in the kitchen sink and blood around the
sink area. See N.T., 9/30/2014, at 72; Exhibits 20 and 21. Detective
Vasquez testified he saw water with a reddish tint in the sink. N.T.,
10/1/2014, at 34.
10
  Officer Berger testified he saw that Gonzalez had a laceration on the head,
other small lacerations, a cut to his hand, and was covered in blood spatter.
N.T., 9/30/2014, at 78–82. When EMS arrived, Gonzalez refused treatment.
Id. at 91–92.

       Detective Vasquez testified that at police headquarters, the only
injuries he identified on Gonzalez were an abrasion above his eye where it
appeared he had been punched, and some “very superficial lacerations” on
two of his fingers – the index and middle finger. N.T., 10/1/2014, at 36–37.
Gonzalez was covered in blood. Id. at 38. Officer Vasquez did not observe
any cuts or slashes or knife wounds. Id. Detective Vasquez testified that in
his experience when an individual stabs a person, their hand will slide over
the top of the knife and “you get small cuts from either the top end of the
blade or the blade itself[.]” Id. at 39. He stated when he observed
Gonzalez’s hand, he saw these small lacerations inside Gonzalez’s fingers.
Id. at 39–40.
11
   The victim’s injuries included a stab wound to the right side of the neck of
about one inch, a wound on the left side of his chest of approximately two
inches, slight stab wounds on the back of the victim, and a stab wound on
the victim’s left leg near the kneecap. See N.T., 10/1/2014, at 78–81.




                                           - 15 -
J-S16020-16



victim’s wounds.12 Viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, the jury could properly conclude that the

Commonwealth’s         evidence      negated       Gonzalez’s   self-defense   claim.

Specifically, based on the evidence presented by the Commonwealth and

reasonable inferences derived therefrom, the jury could find that Gonzalez

did not reasonably believe that deadly force was necessary or that Gonzalez

used more force than reasonably necessary and that Gonzalez was not free

from fault in provoking or continuing the use of force. Accordingly, we find

Gonzalez’s challenge to the sufficiency of the evidence to establish third

degree murder warrants no relief.




____________________________________________


12
    Dr. Bollinger testified the cause of death was “multiple sharp force
injuries” and the manner of death was homicide. N.T., 10/1/2014, at 120.
She identified “nine sharp force injuries” and also “areas of blunt force
trauma.” Id. at 121. She noted a “gaping” wound in the victim’s left chest
area. Id. at 125. That wound measured one and seven-eighth inches
across, and two and one-half to three and one-half inches deep, and the
heart was penetrated by the knife. Id. The wound was lethal. Id. at 127.
Another lethal wound was a one-half inch stab wound to the right aspect of
the victim’s neck, and the tributaries of the jugular vein were penetrated by
the knife. Id. at 128-130. Dr. Bollinger testified the wounds “may very well
be” consistent with two separate knives. Id. at 131. Dr. Bollinger noted
other superficial incised wounds to the victim’s torso and extremities,
including a larger wound over the left thigh and knee. Id. at 132. Dr.
Bollinger testified that wound may be a defensive wound. Id. at 134. Dr.
Bollinger also stated there was “some blunt force trauma to the head.” Id.
at 138.




                                          - 16 -
J-S16020-16



     Gonzalez next claims the trial court erred in denying his motion to

suppress statements that he gave to police at the scene and at police

headquarters. Specifically, he argues:

     [Gonzalez] does not contest that he was given his Miranda
     Rights at the scene and at police headquarters; however, he
     does believe that a review of the testimony shows that the
     statements were given to an individual who had just gone
     through an extremely traumatic occurrence. There was no doubt
     that [Gonzalez] had suffered from some type of assault
     regardless of whether or not it was of his own actions or caused
     by the victim. There was also evidence that [Gonzalez] had
     suffered physical injuries resulting from the altercation.
     Additionally, the voluntariness of [Gonzalez’s] consent was
     based upon an assumption that he could understand the
     explanations of his rights regardless of his lack of understanding
     of the English language.       [Gonzalez] had suffered physical
     injuries from the altercation with the victim and, on at least one
     occasion, had requested access to bathroom facilities but was
     denied such access. In summary, the environment in which
     statements were given was so coercive as to strip from the
     process any voluntariness in [Gonzalez’s] actions.

Gonzalez’s Brief at 24–25.

     Our standard of review is, as follows:

     In reviewing a suppression court’s denial of a suppression
     motion,

         we may consider only the evidence of the Commonwealth
         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 suppression court’s factual findings
         are supported by the record, we are bound by these
         findings and may reverse only if the court’s legal
         conclusions are erroneous.

     Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (Pa.
     2010) (citing Commonwealth v. Bomar, 573 Pa. 426, 826
     A.2d 831, 842 (Pa. 2003)). Nonetheless, we exercise plenary


                                   - 17 -
J-S16020-16



     review over the suppression court’s conclusions of law. Id.
     (citations omitted).

Commonwealth v. Johnson, 107 A.3d 52, 93 (Pa. 2014).

         When deciding a motion to suppress a confession, the
         touchstone inquiry is whether the confession was
         voluntary. Voluntariness is determined from the totality of
         the circumstances surrounding the confession. The
         question of voluntariness is not whether the defendant
         would have confessed without interrogation, but whether
         the interrogation was so manipulative or coercive that it
         deprived the defendant of his ability to make a free and
         unconstrained decision to confess. The Commonwealth
         has the burden of proving by a preponderance of the
         evidence that the defendant confessed voluntarily.

     Commonwealth v. Nester, 551 Pa. 157, 162-163, 709 A.2d
     879, 882 (1998) (citations and footnote omitted).

         When assessing voluntariness pursuant to the totality of
         the circumstances, a court should look at the following
         factors: the duration and means of the interrogation; the
         physical and psychological state of the accused; the
         conditions attendant to the detention; the attitude of the
         interrogator; and any and all other factors that could
         drain a person’s ability to withstand suggestion and
         coercion.

     Id. at 164, 709 A.2d at 882 (citations omitted). “The
     determination of whether a confession is voluntary is a
     conclusion of law and, as such, is subject to plenary review.”
     Commonwealth v. Templin, 568 Pa. 306, 310, 795 A.2d 959,
     961 (2002), citing Nester, supra.

Commonwealth v. Harrell, 65 A.3d 420, 434 (Pa. Super. 2013).

     The trial court has provided a cogent analysis of Gonzalez’s statements

to police in his home and at police headquarters, and our review confirms

that there is no basis upon which to disturb the trial court’s denial of the

motion to suppress. Moreover, because we conclude further elaboration is

                                   - 18 -
J-S16020-16



unwarranted,     we   adopt   the   trial   court’s   pre-trial   opinion   regarding

Gonzalez’s suppression as our own for purposes of this appeal.              See Trial

Court Opinion, 5/27/2014.       Therefore, we reject Gonzalez’s suppression

challenge.

     Finally, Gonzalez claims the trial court erred in its evidentiary ruling

that allowed into evidence various photographs of blood spatter, pools of

blood, and the deceased victim.

     In Commonwealth v. Robinson, 864 A.2d 460 (Pa. 2004), the

Pennsylvania Supreme Court set out the law to be applied in these

circumstances:

     It has been a steadfast principle of our jurisprudence that
     pictures of the victim are not per se inadmissible. In relation to
     admissibility of these photographs, we have promulgated the
     following test:

         [A] court must determine whether the photograph is
         inflammatory. If not, it may be admitted if it has
         relevance and can assist the jury’s understanding of the
         facts. If the photograph 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.

     “The admissibility of photos of the corpse in a homicide case is a
     matter within the discretion of the trial court, and only an abuse
     of discretion will constitute reversible error.” As we also
     explained …:

         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

                                       - 19 -
J-S16020-16



         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 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. Further, the condition of the victim’s
         body provides evidence of the assailant's intent, and,
         even where the body's condition can be described
         through testimony from a medical examiner, such
         testimony does not obviate the admissibility of
         photographs.

Robinson, 864 A.2d at 501–502 (citations omitted).

     Here, the record reflects objections were raised only with regard to six

photographs, which were all photographs of the deceased.             See N.T.,

10/1/2014, at 65.     The trial court allowed admission of two of these

photographs, Exhibits 31 and 32. See id. at 70.

     The trial court, in support of its ruling explained:

     At trial, counsel for [Gonzalez] objected to the admission of
     several autopsy photographs, specifically Commonwealth Exhibit
     31 (depicting a stab wound to the victim’s chest), Exhibit 32
     (depicting a close-up photograph of the stab wound to the
     victim’s chest), Exhibit 33 (depicting a stab wound to the
     victim’s leg), Exhibit 59 (depicting the upper body of the victim),
     Exhibit 60 (depicting the victim’s chest and arms), and Exhibit
     65 (depicting the victim’s left leg). After argument, the Court
     determined that Commonwealth Exhibits 33, 59, 60, and 65
     would be excluded. Prior to being shown these photographs, the
     Court issued a cautionary instruction to the jury, to warn them
     that the photographs were unpleasant but valuable in their
     consideration and to ask the jurors to be dispassionate in their
     consideration of the photographs.



                                    - 20 -
J-S16020-16



        The Court has reviewed the photographic evidence actually
        admitted at Trial, and based on the relevant case law and the
        individual photographs themselves, we believe the admission of
        the photographs were probative of [Gonzalez’s] intent to kill, his
        assertion of self defense, …, and the manner of the victim’s
        death.

Trial Court Opinion, 3/16/2015, at 16–17.

        We have reviewed Commonwealth’s Exhibits 31 and 32, and we

discern no abuse of discretion in the trial court’s decision to admit these

photographs.        Although Gonzalez argues that the photographs were

unnecessary because there was no question that the victim died from stab

wounds and expert testimony set out the cause of death, 13 “the fact that a

medical examiner can describe the victim’s wounds to the jury does not

render photographs of those wounds irrelevant.” Commonwealth v.

Haney, 131 A.3d 24, 38 (Pa. 2015) (quotations and citation omitted). The

trial court carefully weighed the evidentiary value of the six, objected-to

photographs, and excluded all but two, finding Exhibits 30 and 31 were

probative in assisting the jury on the issues of intent to kill and self defense.

Moreover, prior to publishing the exhibits to the jury, the trial court issued a

cautionary instruction, see N.T., 10/1/2014, at 77–78, and the jury is

presumed to have followed the court’s instruction. See Commonwealth v.



____________________________________________


13
     Gonzalez’s Brief at 22.




                                          - 21 -
J-S16020-16



Walter, 119 A.3d 255, 286-87 (Pa. 2015), cert. denied, ___ U.S. ___

(January 25, 2016). Accordingly, Gonzalez’s final claim fails.

       Judgment of sentence affirmed.14

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2016




____________________________________________


14
   In the event of further proceedings, the parties are directed to attach the
trial court’s May 7, 2014 opinion addressing Gonzalez’s motion to suppress.



                                          - 22 -
                                 Received 07/20/2015 Superior Court Eastern District
Circulated 07/25/2016 01:43 PM




                                     Filed 07/20/2015 Superior Court Eastern District
                                                                    3435 EDA 2014
