J-S02001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

JONATHAN NUNEZ,

                        Appellant                   No. 3141 EDA 2014


          Appeal from the Judgment of Sentence August 30, 2013
             In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0004281-2012


BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.

MEMORANDUM BY SHOGAN, J.:                          FILED MARCH 15, 2016

     Jonathan Nunez (“Appellant”) appeals from the judgment of sentence

entered after a jury convicted him of first degree murder for the death of

Kimberly Cardona (“the victim”). We affirm.

     The trial court has provided a detailed account of the facts in its

opinion filed pursuant to Pa.R.A.P. 1925(a).      Trial Court Rule 1925(a)

Opinion, 12/18/14, at 5–12. Thus, we need only provide a brief summary,

as follows:   David Bonaskiewich was walking his dogs on Lanze Road,

Salisbury Township, Lehigh County, Pennsylvania, between 7:00 and 8:00

p.m. on July 5, 2012. One of the dogs stopped and stared intently into a

wooded area along the road. From his position on the side of the road, Mr.

Bonaskiewich observed a human body ten to fifteen feet into the woods. Mr.

Bonaskiewich called his wife, and she contacted the police.
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       The police investigation led to identification of the victim and

Appellant’s arrest. Appellant confessed to killing the victim by beating her

and cutting her throat; he also poured bleach on the body. Appellant was

charged with one count of homicide.              He filed omnibus pretrial motions,

including a motion to suppress his statements to the police and physical

evidence.    The trial court conducted a hearing on March 11, 2013, and it

denied Appellant’s pretrial motions on April 19, 2013.          Order and Opinion,

4/19/13.

       Appellant’s jury trial began on August 12, 2013, and the jury found

him guilty of first degree murder on August 19, 2013. N.T., 8/12/13, at 2;

N.T., 8/19/13, at 100.1            The trial court sentenced Appellant to life

imprisonment without the possibility of parole. Sentencing Order, 8/30/13.

Appellant filed post-sentence motions on September 9, 2013, which the trial

court denied on December 24, 2013. Order and Opinion, 12/24/13.

       Between the filing of Appellant’s post-sentence motions in September

of 2013 and the trial court’s decision thereon in December of 2013,

Appellant filed a supplemental motion raising ineffective assistance of

pretrial counsel. Additionally, trial and post-sentence counsel filed a motion

to withdraw. The trial court held hearings on both motions. N.T., 11/1/13

and N.T., 12/10/13, respectively. Although the trial court permitted counsel
____________________________________________


1
   The notes of testimony from Appellant’s trial are incorrectly dated as
September 12, 2013, through September 19, 2013.



                                           -2-
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to withdraw as Appellant’s private attorney, it appointed him to represent

Appellant through post-sentence motions and the filing of an appeal. Order,

12/10/13.

       On May 19, 2014, Appellant informed the trial court by letter that

counsel had not filed an appeal.           In response, the trial court appointed a

public defender to investigate Appellant’s claim and file any appropriate

motions. Order, 5/19/14. The next day, previous counsel acknowledged his

failure to file Appellant’s direct appeal and filed a notice of appeal nunc pro

tunc. Memorandum in Support of Appeal Nunc Pro Tunc, 5/20/14, at ¶ 8;

Notice of Appeal, 5/20/14. The trial court denied counsel’s request for an

appeal nunc pro tunc. Order, 5/22/14.2 The public defender filed a petition

for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§

9541-9546,      on   May     22,   2014,       alleging,   inter   alia,   prior   counsel’s

ineffectiveness for failing to file an appeal.                PCRA Petition, 5/22/14.

Following a hearing, and without objection from the Commonwealth, the trial

court reinstated Appellant’s appeal rights nunc pro tunc.                  Order, 6/27/14.

Appellant filed a timely notice of appeal nunc pro tunc on July 1, 2014, and,

along with the trial court, complied with Pa.R.A.P. 1925. Thus, this appeal is

properly before us.

       On appeal, Appellant presents the following questions for our review:
____________________________________________


2
    We quashed previous counsel’s notice of appeal nunc pro tunc as
untimely. Order, 8/4/14.



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       A.    Was there sufficient evidence of the specific intent to kill
       necessary for murder in the first degree based upon the
       evidence of [Appellant’s] intoxication and voluntary drug usage
       which mitigated against [Appellant] having the specific intent to
       kill?

       B.    Was the jury’s verdict of murder in the first degree against
       the weight of all the evidence as presented regarding the
       Appellant’s intoxication and voluntary drug usage, and the facts
       of the case showing [Appellant] acted without specific intent to
       kill?

       C.    Did the lower court err in denying [Appellant’s] pre trial
       motion to suppress the usage of evidence found as a result of
       the search warrants which [Appellant] believes were improperly
       obtained or without sufficient probable cause to support the
       warrants?

       D.    Whether the lower court erred in denying [Appellant’s]
       motion in limine regarding the entry of tape recording and
       testimony from an undercover witness used by the prosecution
       to obtain statements from [Appellant] regarding the robbery and
       attempted homicide?[3]

Appellant’s Brief at 8–9 (full capitalization omitted).

       Where, as here, an appellant raises both a sufficiency issue and a

suppression issue, we address the sufficiency of the evidence supporting the

conviction first, and we do so without a diminished record. Rather:

       we are called upon to consider all of the testimony that was
       presented to the jury during the trial, without consideration as to
       the admissibility of that evidence. The question of sufficiency is
____________________________________________


3
    Appellant’s fourth issue, as stated, bears no factual relationship to the
case at hand. However, in the corresponding argument section of his brief,
Appellant argues that the trial court erred in denying his motion in limine to
preclude “various specific Internet searches that occurred on [Appellant’s]
cellular phone. . .” Appellant’s Brief at 23–24. Thus, we shall ignore what
appears to be an editorial lapse.



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      not assessed upon a diminished record.       Where improperly
      admitted evidence has been allowed to be considered by the
      jury, its subsequent deletion does not justify a finding of
      insufficient evidence. The remedy in such a case is the grant of
      a new trial.

Commonwealth v. Sanford, 863 A.2d 428, 432 (Pa. 2004) (quoting

Commonwealth v. Smith, 568 A.2d 600, 603 (Pa. 1989)) (emphasis in

original). Thus, we begin by addressing the sufficiency of the evidence, as

“[t]he Double Jeopardy Clause bars retrial after a defendant’s conviction has

been overturned because of insufficient evidence.”          Commonwealth v.

Mullins, 918 A.2d 82, 85 (Pa. 2007) (citations omitted).

      Appellant argues that, due to alcohol consumption and drug use, “his

higher cognitive functions would have been impaired and his ability to form

any specific intent to kill the victim would have been compromised.”

Appellant’s Brief at 19.   The Commonwealth counters that “the physical

evidence, along with [Appellant’s] attempts to cover up his crime, flight from

the   country   and   subsequent   detailed    confession   to   police,   clearly

demonstrated he was not so intoxicated such that he lost his ‘faculties and

sensibilities.’” Commonwealth’s Brief at 18.

      To obtain a first-degree murder conviction, the Commonwealth must

prove that a human being was unlawfully killed, the defendant perpetrated

the killing, and the defendant acted with malice and a specific intent to kill.

18 Pa.C.S. §§ 2501, 2502(a). When reviewing sufficiency to support a jury’s

verdict of first degree murder:


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     this Court determines whether the evidence, viewed in the light
     most favorable to the Commonwealth as verdict winner, is
     sufficient to enable a reasonable jury to find every element of
     the crime beyond a reasonable doubt. See Commonwealth v.
     Cousar, 593 Pa. 204, 217, 928 A.2d 1025, 1032 (2007) (citing
     Commonwealth v. Crews, 436 Pa. 346, 348, 260 A.2d 771,
     771–72 (1970)). In applying this standard, we bear in mind that
     the Commonwealth may sustain its burden by means of wholly
     circumstantial evidence; that the entire trial record should be
     evaluated and all evidence received considered, whether or not
     the trial court’s rulings thereon were correct; and that the trier
     of fact, while passing upon the credibility of witnesses and the
     weight of the proof, is free to believe all, part, or none of the
     evidence. See id., 928 A.2d at 1032–33; Commonwealth v.
     Chmiel, 585 Pa. 547, 574, 889 A.2d 501, 517 (2005).

Commonwealth v. Reed, 990 A.2d 1158, 1161 (Pa. 2010)

     The trial court disposed of Appellant’s sufficiency challenge as follows:

     Evidence at trial established that during the course of an
     argument with the victim while they were on Lanze Road on July
     4, 2012, the Appellant repeatedly struck and kicked the victim,
     until, in the Appellant’s own words revealed in his
     audio/videotaped confession, he left her struggling for breath on
     the side of the roadway and left the scene.          Further, his
     confession, shown to the jury, established that after leaving
     Lanze Road the first time, and treating his own injury sustained
     during the altercation, he returned to Lanze Road. There, he
     found [the victim] struggling for breath and dragged her beaten
     body into the woods approximately 10 to 15 feet. He then
     slashed her throat with a kitchen knife. After leaving Lanze
     Road the second time, the Appellant disposed of the knife and
     his clothing in the nearby Lehigh River. The Appellant then
     returned to Lanze Road on July 5, 2012 (a third time), to pour
     bleach over [the victim’s] body.

        The Commonwealth presented further evidence via the
     testimony of Dr. Land to establish the nature and severity of the
     bruises and abrasions suffered by [the victim]. In particular, Dr.
     Land testified that the trauma to the victim’s face and neck alone
     [was] fatal. He also testified that the beating and neck slashing
     occurred pre-mortem.


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         Additionally, Marvin Benitez testified that while the Appellant
      was with him on July 5, 2012, the Appellant asked him if bleach
      removed fingerprints. Evidence was also presented that the
      Appellant made several inquiries from his text/Internet capable
      cellular telephone including, “How long does it take for semen to
      die,” “Can people pull fingerprints off a dead bloody body,” “Can
      you be IDed or traced by blood,” “Can cops find you just by
      blood?” In short, the Commonwealth provided ample evidence
      to the Jury to establish that the Appellant had the specific intent
      to kill [the victim].

Trial Court Rule 1925(a) Opinion, 12/18/14, at 17–18.

      Upon review of the certified record, we find no error in the trial court’s

ruling. The evidence presented at trial, viewed in the light most favorable to

the Commonwealth as verdict winner, was sufficient to enable a reasonable

jury to find, beyond a reasonable doubt, that Appellant killed the victim with

the specific intent to kill her. Appellant admitted to killing the victim. N.T.,

8/16/13, at Commonwealth Exhibit 82. He beat the victim about her head,

face, neck, arms, and chest, and then left her along the road.              N.T.,

8/15/13, at 129–131.     Hours later, Appellant returned to the victim.      She

“was barely moving, gurgling, so he slit her throat and then left.”      Id. at

131. The next morning, Appellant returned to the scene and “poured bleach

on the body.”     Id. at 132–133.      Without hesitation, we conclude that

Appellant’s sufficiency claim lacks merit.




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       Appellant next challenges the weight of the evidence supporting his

conviction.4 According to Appellant:

       [t]he evidence of his drinking heavily at the party and his
       smoking the synthetic marijuana, which alone can impair and
       degrade a person’s emotion control, limited his ability to form
       any specific intent to kill [the victim]. He acted out of rage and
       anger and not the necessary component for Murder of the First
       Degree. [Appellant] should have been granted a new trial to
       allow justice to be done and a verdict commensurate with the
       actual evidence to be rendered.

Appellant’s Brief at 21.      In response, the Commonwealth states:          “Simply

because the jury did not believe [Appellant’s] arguments does not render the

jury’s verdict in this case unjust.            [Appellant] took full advantage of his

opportunity to discredit the Commonwealth’s witnesses and presented his

version of events to the jury.” Commonwealth’s Brief at 21.

       As to a weight claim, a trial court employs the following standards:

              A motion for new trial on the grounds that the verdict is
       contrary to the weight of the evidence, concedes that there is
       sufficient evidence to sustain the verdict. Thus, the trial court is
       under no obligation to view the evidence in the light most
       favorable to the verdict winner. An allegation that the verdict is
       against the weight of the evidence is addressed to the discretion
       of the trial court. A new trial should not be granted because of a
       mere conflict in the testimony or because the judge on the same
       facts would have arrived at a different conclusion. A trial judge
       must do more than reassess the credibility of the witnesses and
       allege that he would not have assented to the verdict if he were
       a juror. Trial judges, in reviewing a claim that the verdict is
       against the weight of the evidence do not sit as the thirteenth
       juror. Rather, the role of the trial judge is to determine that
____________________________________________


4
   Appellant preserved this issue by requesting a new trial pursuant to
Pa.R.Crim.P. 607(A)(3). Post-sentence Motions, 9/9/13, at 2.



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     notwithstanding all the facts, certain facts are so clearly of
     greater weight that to ignore them or to give them equal weight
     with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751–752 (Pa. 2000) (citations,

footnote, and internal quotation marks omitted). However:

     [a]n appellate court’s standard of review when presented with a
     weight of the evidence claim is distinct from the standard of
     review applied by the trial court:

           Appellate review of a weight claim is a review of the
           exercise of discretion, not of the underlying question
           of whether the verdict is against the weight of the
           evidence.    Because the trial judge has had the
           opportunity to hear and see the evidence presented,
           an appellate court will give the gravest consideration
           to the findings and reasons advanced by the trial
           judge when reviewing a trial court’s determination
           that the verdict is against the weight of the
           evidence. . . .

     Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
     added).

            This does not mean that the exercise of discretion by the
     trial court in granting or denying a motion for a new trial based
     on a challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court’s discretion, we have
     explained:

           The term “discretion” imports the exercise of
           judgment, wisdom and skill so as to reach a
           dispassionate conclusion within the framework of the
           law, and is not exercised for the purpose of giving
           effect to the will of the judge. Discretion must be
           exercised on the foundation of reason, as opposed to
           prejudice, personal motivations, caprice or arbitrary
           actions.   Discretion is abused where the course
           pursued represents not merely an error of judgment,
           but where the judgment is manifestly unreasonable
           or where the law is not applied or where the record
           shows that the action is a result of partiality,
           prejudice, bias or ill-will.

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J-S02001-16


      Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v.
      S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
      [11]85 (1993)).

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (some internal

citations omitted). “Thus, the trial court’s denial of a motion for a new trial

based on a weight of the evidence claim is the least assailable of its rulings.”

Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

      In denying Appellant’s motion for a new trial, the trial court addressed

Appellant’s weight claim as follows:

             [Appellant] alleges that the Jury’s determination that he
      acted with a specific intent to kill was in error because, at Trial,
      he presented evidence that he was intoxicated at the time of the
      murder. The Commonwealth, in its Brief, acknowledges that
      First Degree Murder may be mitigated to Third Degree Murder
      when the defendant establishes that he could not form the
      specific intent to kill due to a diminished capacity. However, the
      Commonwealth argues that pursuant to Commonwealth v.
      Padilla, [Appellant] must establish that “he was overwhelmed to
      the point of losing his faculties and sensibilities.” 2013 WL
      5848693 (Pa. 2013). “The value of such evidence is generally
      for the finder of fact, who is free to believe or disbelieve any, all,
      or    none     of   the     testimony    addressing    intoxication.”
      [Commonwealth v.] Blakely[, 946 A.2d 645, 653 (Pa. 2008)]
      (citation omitted).

            In the instant case, the Jury heard testimony from Kaitlyn
      Schuster, [Appellant’s] best friend, that she was with [Appellant]
      at a party at Marvin Benitez’s home on July 4, 2012. While
      there, she saw [Appellant] consume alcoholic beverages and that
      she believed that [Appellant] was intoxicated. She stated that
      [Appellant] appeared clumsy and was slurring his words. Marvin
      Benitez testified that [Appellant] had consumed alcohol at his
      home and appeared intoxicated when he left the party at
      approximately 7 p.m. on July 4, 2012. Elizabeth Pelligrino,
      [Appellant’s] then-girlfriend, testified that she had been with
      [Appellant] earlier in the day on July 4, 2012 and that she was
      aware that [Appellant] had been drinking on that evening, at the

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      party at Mr. Benitez’s home.        Further, she testified that
      [Appellant] used K2 (synthetic marijuana) on a regular basis and
      that he smoked K2 after his trip [to] the emergency room. Ms.
      Pelligrino testified that on the evening of July 4, 2012,
      [Appellant] appeared “tipsy” but that he was still “put together.”

             The Jury also heard testimony from Nancy Schneck, the
      treating nurse at Lehigh Valley Hospital Emergency Department
      who treated [Appellant] in the late evening of July 4, 2012.
      During her interview of [Appellant] at the hospital, he denied
      both alcohol and illicit drug use. In her opinion, [Appellant]
      appeared healthy, well-fed, alert and oriented. He did not fall,
      stagger, vomit, fall asleep, or require any assistance in his
      movement.       When Ms. Schneck performed her fall risk
      assessment, [Appellant] appeared to have no risk of falling.
      Based on the above testimony, the Jury was given a voluntary
      intoxication jury instruction, explaining that First Degree Murder
      could be reduced to Third Degree Murder should the Jury believe
      that [Appellant] was sufficiently intoxicated.       Based on the
      verdict rendered, it is clear that the jury rejected the evidence
      tending to show that [Appellant] may have been intoxicated on
      July 4, 2012, which was their prerogative as fact-finder.

Trial Court Post-sentence Motions Opinion, 12/24/13, at 13–14; Trial Court

Rule 1925(a) Opinion, 12/18/14, at 15–17.

      Upon review, we discern no abuse of the trial court’s discretion in

denying Appellant’s challenge to the weight of the evidence. The trial court’s

summation of the trial evidence is supported by the record. Moreover, the

jury, sitting as the finder of fact, was free to believe all, part, or none of the

evidence against Appellant, as was its right. Diggs, 949 A.2d at 879. The

jury weighed the evidence, credited the Commonwealth’s case, and

concluded   that   Appellant   intentionally   murdered     the   victim.    This

determination is not so contrary to the evidence as to shock one’s sense of

justice. We decline Appellant’s invitation to assume the role of fact finder

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and to reweigh the evidence. Accordingly, we conclude that Appellant is not

entitled to relief on his weight claim.

       In his third issue, Appellant challenges the denial of his motion to

suppress evidence obtained by the police from his residence, his vehicle, his

person, and his July 4, 2012 medical records. Appellant’s Brief at 21. The

standard of review we apply in addressing a trial court’s denial of a

suppression motion is limited to determining:

       whether the record supports the trial court’s factual findings and
       whether the legal conclusions drawn therefrom are free from
       error. Our scope of review is limited; 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 findings of
       the suppression court, we are bound by those facts and may
       reverse only if the court erred in reaching its legal conclusions
       based upon the facts. Commonwealth v. Cruz, 71 A.3d 998,
       1002–03 (Pa.Super.2013).

Commonwealth v. Eichler, ___ A.3d ___, 2016 PA Super 21, at *1 (Pa.

Super. filed Feb. 2, 2016).5

       According to Appellant, the police officers lacked “sufficient probable

cause to support the issuance of the warrants.” Appellant’s Brief at 21. “In

order to obtain a valid search warrant, the affiant must establish probable

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5
   “We recognize that our Supreme Court held in In Re L.J., 79 A.3d 1073
(Pa.2013), that appellate review is limited to the suppression record in the
absence of exceptional circumstances. L.J., however, does not apply to the
present case, because litigation in this case commenced before the Supreme
Court issued its decision in L.J. Pre-L.J. decisions authorize us to include the
trial record in our review.” Eichler, 2016 PA Super 21, at *1.



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cause to believe that execution of the warrant will lead to the recovery of

contraband or evidence of a crime.”      Commonwealth v. Janda, 14 A.3d

147, 157 (Pa. Super. 2011). We review the issuing authority’s decision in

light of the totality of the circumstances:

      Pursuant to the “totality of the circumstances” test set forth by
      the United States Supreme Court in Illinois v. Gates, 462 U.S.
      213 (1983), the task of an issuing authority is simply to make a
      practical, commonsense decision whether, given all of the
      circumstances set forth in the affidavit before him, including the
      veracity and basis of knowledge of persons supplying hearsay
      information, there is a fair probability that contraband or
      evidence of a crime will be found in a particular place.... It is the
      duty of a court reviewing an issuing authority’s probable cause
      determination to ensure that the magistrate had a substantial
      basis for concluding that probable cause existed. In so doing,
      the reviewing court must accord deference to the issuing
      authority’s probable cause determination, and must view the
      information offered to establish probable cause in a
      commonsense, non-technical manner.

Commonwealth v. Caple, 121 A.3d 511, 520 (Pa. Super. 2015) (quoting

Janda, 14 A.3d at 157–158).

      In disposing of Appellant’s suppression challenge, the trial court first

summarized the common facts set forth in the affidavits of probable cause

for the various search warrants, as follows:

             Specifically, the affidavit(s) related that members of the
      Salisbury Township Police Department were called to the 2700
      block of Lanze Road on July 5, 2012 at approximately 8:33 p.m.
      There, they found a badly beaten body of a young female
      approximately 15 feet from the roadway. The victim was later
      identified as Kimberly Cardona. Police observed numerous
      injuries to the body and detected a very strong odor of bleach
      coming from the body. They also observed discoloration of the
      victim’s clothing. A gray box cutter and the victim’s cellular
      telephone were found at the scene.

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          The body was examined by Lehigh County Coroner Scott
     Grimm, who pronounced the victim dead and ruled the death a
     homicide.

           An autopsy was performed on the body on July 6, 2012 by
     Dr. Samuel Land. Dr. Land determined the cause of death to be
     blunt force trauma to the head and neck and sharp force trauma
     to the neck. He ruled the manner of death homicide.
     Additionally, Dr. Land determined that the wounds present on
     the victim’s hands and arms could be characterized as defensive
     wounds.

           On July 7, 2012, an individual identified in the search
     warrant as E.P. (whose real identity was known to police)9 spoke
     with police. E.P. told police that [Appellant] had contacted
     him/her by cellular telephone on July 4, 2012 at approximately
     11:30pm for a ride to the hospital, telling E.P, that he had cut
     his hand. E.P. provided [Appellant] a ride from his home at 253
     East Fairview Street, Allentown, PA to Lehigh Valley Health
     Network, located at 17th and Chew Streets, Allentown, PA. E.P.
     also noticed additional cuts and abrasions on [Appellant’s] body.
     E.P. further told police that [Appellant] had seemed paranoid in
     the early morning hours of July 5, 2012, and that he told E.P.
     that he was cleaning/washing his car that morning. On July 6,
     2012, [Appellant] informed E.P. that he had had a sexual
     encounter with the victim on July 3, 2012.

            E.P. further told the police that [Appellant] utilizes a
     cellular telephone and drives a white Honda Accord. E.P.
     informed the police that [Appellant] keeps an older, gray box
     cutter inside of his vehicle. E.P. provided [Appellant] cellular
     telephone number to the police.

           Police examined the victim’s cellular telephone records and
     learned that 23 calls had been made from [Appellant’s] cellular
     telephone to the victim’s cellular telephone on July 4, 2012, with
     the last call occurring at approximately 7:16 p.m.

            On July 6, 2012, police interviewed J.F. (whose real
     identity is known to police).  J.F. stated that he/she was
     operating his/her car on Lanze Road on July 5, 2012 at
     approximately 1:30 p.m. when he/she observed a white vehicle
     in the driveway of 2710 Lanze Road, with one occupant. At a


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     lineup on July 7, 2012, J.F. immediately identified [Appellant] as
     that occupant.

           Pennsylvania records indicate that [Appellant’s] mother,
     Evelyn Nunez, is the registered owner of a white Honda Accord.

            On July 9, 2012, police interviewed M.B. (whose real
     identity is known to police) who stated that he was at a party
     with [Appellant] on July 4, 2012 when he observed [Appellant]
     communicating with E.P. and the victim via cellular telephone. At
     approximately 10 p.m., [Appellant] became angry, told M.B. that
     he ([Appellant]) was going to see the victim and left the party.

           On July 5, 2012, [Appellant] communicated with his
     employer that he had cut his hand and would not be reporting to
     work.

           The authorities were unable to locate [Appellant] as of July
     6, 2012.

Trial Court Pretrial Motions Opinion, 4/19/13, at 9–12. The trial court then

explained its denial of suppression of the evidence recovered through

execution of the search warrants:

           Based on the facts highlighted above in the affidavit, the
     Honorable Robert L. Steinberg issued a search warrant for
     [Appellant’s] residence at 253 East Fairview Street, Allentown,
     PA on July 11, 2012. As a result of the search warrant, police
     seized bed sheets, towels and shirts containing what appeared to
     be blood, a bottle of partially empty Clorox bleach with what
     appeared to be blood on the exterior of the bottle, and various
     electronic items. This information was included in the affidavit
     for the search warrant issued on July 12, 2012 for [Appellant’s]
     medical records from Lehigh Valley Health Network. That search
     warrant was also issued by the Honorable Robert L. Steinberg.

           Additionally, the items found in [Appellant’s] home were
     included in the affidavit attached to the search warrant issued on
     July 16, 2012 for the 1998 Honda Accord, owned and registered
     to [Appellant’s] mother, Evelyn Nunez. Also within that affidavit
     were additional facts. Specifically, police indicated that they had
     been contacted by members of the New York City Police

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      Department that the 1998 white Honda Accord in question had
      been recovered in the Bronx, NY and had obtained written
      voluntary consent from Ms. Nunez (with the consent of her
      attorney) to search the car on July 13, 2012. On July 15, 2012,
      Detective Salgado retrieved the car from an impound lot in the
      Bronx, NY and took the vehicle to the secure garage at the
      Salisbury Township Police Department. Again, the Honorable
      Robert L. Steinberg issued the warrant.

            On August 1, 2012, police sought an additional search
      warrant to obtain a sample of [Appellant’s] DNA and to
      photograph any and all injuries on [Appellant’s] body. Included
      in that affidavit was the information above, as well as the results
      of the July 17, 2012 search of the 1998 Honda Accord. During
      that search, police found blood inside the vehicle on both the
      driver and passenger side[s] of the car and samples of the blood
      were taken.

             After careful review of the information included in the
      affidavits of probable case attached to each search warrant, and
      using a “totality of the circumstances” test, it is clear that each
      affidavit contains sufficient facts and inferences derived from
      those facts to establish probable cause for the issuance of the
      warrants for [Appellant’s] residence, medical records, vehicle,
      and his person. The police have established that the crime of
      homicide has been committed and that [Appellant] is most likely
      the one who committed the crime. They have also provided
      sufficient facts that the issuing authority (in this case, Common
      Pleas Judge Robert L. Steinberg) could determine that the
      contraband to be seized was in the specified place which was the
      subject of the warrants. Therefore, the evidence seized as a
      result of the search warrants shall not be suppressed.

Id. at 12–14.

      Our review of the certified record reveals testimonial support for the

trial court’s factual summary and the existence of the challenged affidavits of

probable cause. See N.T. Suppression, 3/11/13, at 19, 25, 31, 62, 79–80

(marking of Commonwealth’s Exhibits C-3, C-4, C-6, and C-10 (affidavits of

probable cause)). However, the certified record does not contain the actual

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affidavits of probable cause.            We reiterate that an appellant bears

responsibility to ensure that this Court has the complete record necessary to

properly review a claim. Commonwealth v. Whitaker, 878 A.2d 914 (Pa.

Super. 2005). The record clearly indicates that affidavits of probable cause

were prepared and that search warrants were issued and executed.                      N.T.,

Suppression, 3/11/13, at 19, 25, 31, 62, 79–80; N.T. Trial, 8/13/14, at 102,

122, 146–148, 156.         Because the affidavits are necessary to a review of

Appellant’s contention that the search warrants were not supported by

probable    cause,    we    are   unable       to   entertain   this   issue   on   appeal.

Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa. Super. 2006).6

       Lastly, Appellant asserts that the trial court erred in denying his

motion in limine to preclude admission of “Internet searches that occurred

on [Appellant’s] cellular phone. . .” Appellant’s Brief at 23–24. According to

Appellant, “each of the pieces of evidence that were raised by the

Commonwealth, and which the [trial c]ourt allowed to be entered, [was] so

tenuous in [its] connecting [Appellant] to the actual homicide as to be highly

prejudicial and without reasonable probative value.” Id. at 24.

____________________________________________


6
    Assuming that the trial court’s factual summary of the affidavits is
accurate, even if the affidavits were included in the record before us, we
would conclude that Appellant’s argument that the search warrants lacked
probable cause does not entitle him to relief. In doing so, we would rely on
the trial court’s well-reasoned analysis and conclusion. Trial Court Pretrial
Motions Opinion, 4/19/13, at 9–14.




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J-S02001-16


      The well-settled standard of review we apply when reviewing a trial

court’s ruling on a motion in limine is as follows:

      When reviewing the denial of a motion in limine, this Court
      applies an evidentiary abuse of discretion standard of review. It
      is well-established that the admissibility of evidence is within the
      discretion of the trial court, and such rulings will not form the
      basis for appellate relief absent an abuse of discretion. Thus, the
      Superior Court may reverse an evidentiary ruling only upon a
      showing that the trial court abused that discretion. A
      determination that a trial court abused its discretion in making
      an evidentiary ruling may not be made merely because an
      appellate court might have reached a different conclusion, but
      requires a result of manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support so as to be
      clearly erroneous. Further, discretion is abused when the law is
      either overridden or misapplied.

Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014) (internal

citations, ellipsis, and quotation marks omitted).

      The trial court addressed Appellant’s challenge, as follows:

            The Appellant’s Motion In Limine sought to preclude the
      Commonwealth from introducing specific Internet searches
      performed and/or responses given on the Appellant’s cellular
      telephone on July 5, 2012 which were discovered as a result of
      the execution of a subpoena for the Appellant’s cellular
      telephone records. The inquiries10 were:
            10
               The inquiries and responses are reproduced here
            verbatim.

      a) 7/5/2012 11:43:55 – “How long does it take for seamen to
         die”

      b) 7/5/2012 11:51:55 – “Given the most ideal conditions sperm
         may be able to survive between six and seven days in the
         uterus”

      c) 7/5/2012 11:53:48 – “Can people pull finger prints off a
         dead bloody body”

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J-S02001-16



     d) 7/5/2012 11:54:03 – “Fingerprints occur when the natural
        secretions of the skin are deposited on a surface through
        fingertip contact”

     e) 7/5/2012 21:06:11 – “Can u be id or traced by blood?”

     f) 7/5/2012 21:06:32 – “Yes; THC is detectable in the blood for
        2-3 days after infrequent use, or up to 2 weeks in the blood
        of a frequent user”

     g) 7/5/2012 21:07:44 – “can cops find you just by blood??”

     h) 7/5/2012 21:08:02 – “80ish% of people with herpes do not
        know why then even have it. There is a specific blood test to
        find out, but the health departments don’t do this”

         A Motion in Limine Hearing was held immediately before the
     trial began on August 13, 2013. At that time, counsel for the
     Appellant argued that the evidence highlighted above was
     merely cumulative and inflammatory.        The Commonwealth
     argued that the texts and searches were part of [the] timeline of
     the crime and demonstrated that Appellant’s state of mind at the
     time he performed those searches and/or received the
     responses. Based on the totality of the circumstances, the
     [c]ourt permitted the Commonwealth to utilize the evidence at
     trial.11
          11
               The Commonwealth introduced this evidence
          through Avram Polensky, the Custodian of Records
          for Verizon Wireless, during its case-in-chief. [N.T.,
          8/14/13, at 258–281]

                                  * * *

           The [c]ourt does not believe that permitting the
     Commonwealth to utilize the evidence constituted an abuse of
     discretion. The Court agreed with the Commonwealth that the
     Internet searches performed on the cellular telephone of the
     Appellant were probative of his state of mind in the hours
     surrounding the disappearance and ultimate discovery of the
     victim.    Further, the time-stamp indicated on the records
     provided a timeline of the incident and [was] not “merely
     cumulative” as suggested by counsel for the Appellant. Based

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J-S02001-16


      on the totality of the circumstances, the [c]ourt did not err in
      allowing the Commonwealth to utilize the cellular telephone
      search evidence at trial.

Trial Court Rule 1925(a) Opinion, 12/18/14, at 31–32; N.T., 8/14/13, at

262–275 and Commonwealth’s Exhibit 72.

      Upon review, we agree with the trial court that the cellular evidence

provided a timeline of events after the initial assault of the victim and before

discovery of the victim’s body. Additionally, when viewed in the context of

Appellant’s conduct toward the victim, the cellular evidence was not

tenuous; it provided insight as to Appellant’s state of mind in the hours

following his initial attack on the victim.   The jury could reasonably infer

from the content of the cellular evidence that Appellant was concerned about

inculpatory evidence being recovered from the victim, i.e., semen, blood,

fingerprints.   Nor was the cellular evidence merely cumulative; it provided

the jury with a temporal and physical nexus between the condition of the

victim’s body and Appellant’s intention and attempt to conceal or destroy

evidence of his involvement in the victim’s death. We discern no manifest

unreasonableness,     partiality, prejudice, bias, or   ill-will, overriding or

misapplication of the law, or such lack of support for the trial court’s ruling

so as to be clearly erroneous. Hoover, 107 A.3d at 729. Thus, we conclude

that the trial court did not abuse its discretion in denying Appellant’s motion

in limine.




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J-S02001-16


     Appellant’s issues warrant no relief.   Accordingly, we affirm the

judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/15/2016




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