J-S68017-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               :    IN THE SUPERIOR COURT OF
                                            :         PENNSYLVANIA
                   Appellee                 :
                                            :
             v.                             :
                                            :
ANDRE HOLMAN,                               :
                                            :
                   Appellant                :    No. 1068 EDA 2014

            Appeal from the Judgment of Sentence March 11, 2014,
                 Court of Common Pleas, Philadelphia County,
               Criminal Division at No. CP-51-CR-0003694-2013

BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED NOVEMBER 12, 2015

       Appellant, Andre Holman (“Holman”), appeals from the judgment of

sentence entered on March 11, 2014 by the Court of Common Pleas of

Philadelphia County, Criminal Division, following his convictions of first-

degree murder, robbery, conspiracy, and possessing instruments of crime

(“PIC”).1 After careful review, we affirm.

       This case stems from the murder of taxi cab driver Sebastian Nunez-

Suarez    (“Nunez-Suarez”)     on   the   4900    block   of   Bingham   Street   in

Philadelphia, Pennsylvania.     The trial court summarized the testimony of

Jonathan Vasquez (“Vasquez”), who participated in the robbery of Nunez-

Suarez, as follows:

                Vasquez testified that he was [seventeen] years
             old and had lived in Philadelphia his entire life. He


1
    18 Pa.C.S.A. §§ 2502(a), 3701(a)(1)(i), 903(c), 907(a).
J-S68017-15


           testified that in 2012 he was [fifteen] years old and
           in the [ninth] grade at Kensington High School.
           Vasquez stated that on the night of July 16, 2012[,]
           he was sitting on a friend’s porch when Christopher
           Conway (“Conway”) approached him with another
           person he had never seen before. He testified that
           he did not consider Conway a friend, but knew him
           from the neighborhood, and that Conway told him to
           put on a shirt and shoes [and] to come with them.
           Vasquez testified that he was told that they were
           going to rob a taxi driver. He stated that they went
           to 5th Street and Luzerne, got inside a taxi cab, with
           [Holman] sitting directly behind the driver, himself in
           the middle and Conway behind the passenger seat.
           Vasquez testified that [Conway] told the driver to go
           to D and Louden Street, which is a near a park. At
           some point[,] the cab stopped[,] and Vasquez stated
           that [Holman] said, “give me your money.” Vasquez
           testified that the cab driver pulled out a machete,
           which he started swinging, and then [Holman] shot
           the taxi driver. [N.T., 3/7/14,] at 63-76.

              Vasquez testified that the machete did not hit
           [Holman] but that it did scratch his own finger. He
           stated that when [Holman] asked the taxi driver for
           money, the gun was about [two and a half] feet from
           the head of the taxi driver. Vasquez stated that
           after [Holman] shot the driver, he tried to kick the
           window and then [Holman] shot the window because
           they could not open the door. He testified that the
           cab was moving and crashing into cars when they
           were still inside of it. He stated that after getting out
           of the cab, they ran in different directions.

Trial Court Opinion, 12/18/14, at 15-16.

     On September 26, 2012, the Homicide Fugitive Unit brought Holman

into the Homicide Division of the Philadelphia Police Department.      After

approximately four and a half hours of questioning, Holman signed a written




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statement in which he confessed to killing Nunez-Suarez.           The trial court

further provided the following procedural history for this case:

               On September 26, 2012, [Holman] was … charged
            with first[-]degree murder, robbery, conspiracy and
            [PIC]. This [c]ourt held a jury trial from March 6,
            2014 to March 10, 2014.1 On March 11, 2014, a jury
            found [Holman] guilty of first[-]degree murder,
            robbery, conspiracy and [PIC]. On that same day,
            this [c]ourt sentenced [Holman] to life imprisonment
            without the possibility of parole on the first[-]degree
            murder charge, [ten] to [twenty] years [of] state
            incarceration on the robbery and conspiracy charges,
            to run concurrently to one another and the life
            sentence, and no further penalty on the [PIC]
            charge.

               On March 11, 2014, [Holman] filed a [n]otice of
            [a]ppeal to [the] Superior Court. On August 12,
            2014, upon receipt of the notes of testimony, this
            [c]ourt ordered defense counsel to file a [c]oncise
            [s]tatement of [e]rrors [c]omplained of on [a]ppeal
            pursuant to Pa.R.A.P. 1925(b). On September 2,
            2014, defense counsel filed a request for an
            extension of time, which this [c]ourt granted on
            September 3, 2014. This [c]ourt ordered defense
            counsel to file his [c]oncise [s]tatement of [e]rrors
            by October 3, 2014 and defense counsel did so.


            1
               [Codefendants Conway and Vasquez] pled guilty,
            with the latter entering an admission in juvenile
            court.

Id. at 2.

      On appeal, Holman raises the following issues for our review:

            1.     Was there insufficient evidence given by the
            Commonwealth’s [seventeen]-year-old codefendant,
            resulting in the jury rendering an inconsistent
            verdict?


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           2.    Was the verdict against the weight of the
           evidence?

           3.     Did the trial court err by denying [Holman]’s
           [m]otion to [s]uppress his statement given the fact
           that he was under the influence of Xanax and held
           for over [six] hours, therefore making it impossible
           to give a statement knowingly, voluntarily, and
           intelligently?

           4.    Did the trial court err by allowing pictures from
           the autopsy, showing stippling, speckling and a
           gunshot to the back of the head, to be shown to the
           jury?

           5.     Did the trial court err by allowing the life in
           being witness to testify beyond the scope of reason
           for testimony?

           6.   Did the trial court err by denying the defense’s
           request to give the self-defense instruction?

Holman’s Brief at 1-2.

     For his first issue on appeal, Holman challenges the sufficiency of the

evidence for his first-degree murder conviction. See Holman’s Brief at 5-6.

Specifically, Holman argues that the Commonwealth failed to prove that he

had the specific intent to kill Nunez-Suarez.     Id. at 6.    We conclude,

however, that Holman has waived his challenge to the sufficiency of the

evidence of his first-degree murder conviction.

     In Commonwealth v. Gibbs, 981 A.2d 274 (Pa. Super. 2009), this

Court held that an appellant must specify the elements of the crime for




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which they wish to challenge the sufficiency of the evidence.       Id. at 281.

Our Court explained:

               In a recent decision, Commonwealth v.
           Williams, 959 A.2d 1252 (Pa. Super. 2008), this
           Court reiterated that when challenging the
           sufficiency of the evidence on appeal, the Appellant’s
           1925 statement must “specify the element or
           elements upon which the evidence was insufficient”
           in order to preserve the issue for appeal. Williams,
           959 A.2d at 1257 (quoting Commonwealth v.
           Flores, 921 A.2d 517, 522–23 (Pa. Super. 2007)).
           Such specificity is of particular importance in cases
           where, as here, the Appellant was convicted of
           multiple crimes each of which contains numerous
           elements that the Commonwealth must prove
           beyond a reasonable doubt. Id. at 1258 n.9. Here,
           Appellant not only failed to specify which elements
           he was challenging in his 1925 statement, he also
           failed to specify which convictions he was
           challenging. While the trial court did address the
           topic of sufficiency in its opinion, we have held that
           this is “of no moment to our analysis because we
           apply Pa.R.A.P. 1925(b) in a predictable, uniform
           fashion, not in a selective manner dependent on an
           appellee’s argument or a trial court’s choice to
           address an unpreserved claim.”           Id. at 1257
           (quoting Flores at 522–23).

Id.

      Here, like Gibbs, Holman not only failed to specify the element of

first-degree murder in his Rule 1925(b) statement that he was challenging

on appeal, he also failed to specify which conviction he wished challenge.

Holman’s Rule 1925(b) statement merely states that “there was insufficient

evidence given by the Commonwealth’s [seventeen]-year-old [codefendant].

Therefore the jury rendered an inconsistent verdict.”         Rule 1925(b)



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Statement, 10/2/14, ¶ 1.      Although the trial court addressed Holman’s

sufficiency of the evidence claim, we must conclude that he has waived his

first issue on appeal.2 See Gibbs, 981 A.2d at 281.

      Even if Holman had preserved his challenge to the sufficiency of the

evidence, it would not warrant relief.      Vasquez explicitly testified that

Holman pointed a gun a Nunez-Suarez’s head, told Nunez-Suarez to hand

over his money, and after Nunez-Suarez started swinging a machete at

them, Holman shot Nunez-Suarez in the head. N.T., 3/7/14, at 76-79. Our

Supreme Court has held that “[t]he jury may infer the intent to kill based

upon the defendant’s use of a deadly weapon on a vital part of the victim’s

body.”   Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa. 2013).

Therefore, Holman’s claim that the Commonwealth failed to present

evidence that he possessed the specific intent to kill Nunez-Suarez is

meritless.

      For his second issue on appeal, Holman challenges the weight of the

evidence. See Holman’s Brief at 7-8. Holman has also waived his challenge

to the weight of the evidence.   An appellant must preserve a challenge to

the weight of the evidence before the trial court either at sentencing or in a



2
   Holman also argues that the evidence was insufficient to sustain his
convictions because Vasquez was not a credible witness. This argument
challenges the weight of the evidence, not its sufficiency.         See
Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014) (“An
argument regarding the credibility of a witness’[] testimony goes to the
weight of the evidence, not the sufficiency of the evidence.”).


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post-sentence    motion.       Pa.R.Crim.P.    607(A);    Commonwealth           v.

Thompson, 93 A.3d 478, 490 (Pa. Super. 2014). Here, Holman failed to

preserve his challenge to the weight of the evidence at sentencing or in a

post-sentence motion. Therefore, Holman has waived his second issue on

appeal.

      For his third issue on appeal, Holman argues that the trial court erred

by denying his motion to suppress his police statement, in which he

confessed to shooting Nunez-Suarez. See Holman’s Brief at 8-9. Holman

asserts that the trial court should have suppressed his police statement

because his confession was not voluntary, but rather coerced.             Id. at 8.

Holman contends that the police coerced his confession because they

interrogated him for six hours, he was under the influence of Xanax, the

police falsely led him to believe he could not invoke his Fifth Amendment

right to remain silent, and the police told him that they would keep his

pregnant girlfriend in custody until he confessed. Id.

      We review the trial court’s denial of a motion to suppress to determine

whether the record supports the trial court’s factual findings and whether it

reached its legal conclusions in error. Commonwealth v. Enick, 70 A.3d

843, 845 (Pa. Super. 2013), appeal denied, 85 A.3d 482 (Pa. 2014). “If the

record supports the trial court’s findings of fact, we will reverse only if the

trial court’s legal conclusions are incorrect.” Id. (citation omitted).




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      “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.”     Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998)

(citations and footnote omitted). “When a defendant alleges that his waiver

or confession was involuntary, the question 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.” Commonwealth v.

Mitchell, 105 A.3d 1257, 1268 (Pa. 2014) (citations omitted). Additionally,

               [t]he mere fact that there is some passage of time
               between when an accused is arrested and when he
               or she gives an inculpatory statement does not
               constitute grounds for suppression of the statement.
               This Court has set forth the following numerous
               factors that should be considered under a totality of
               the circumstances test to determine whether a
               statement was freely and voluntarily made: the
               duration and means of interrogation, including
               whether questioning was repeated, prolonged, or
               accompanied by physical abuse or threats thereof;
               the length of the accused’s detention prior to the
               confession; whether the accused was advised of his
               or her constitutional rights; the attitude exhibited by
               the police during the interrogation; the accused’s
               physical and psychological state, including whether
               he or she was injured, ill, drugged, or intoxicated;
               the conditions attendant to the detention, including
               whether the accused was deprived of food, drink,
               sleep, or medical attention; the age, education, and
               intelligence of the accused; the experience of the
               accused with law enforcement and the criminal
               justice system; and any other factors which might



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            serve to drain one’s powers        of   resistance   to
            suggestion and coercion.

Commonwealth v. Bryant, 67 A.3d 716, 724 (Pa. 2013) (citations

omitted).

     The trial court determined that Holman’s confession was voluntary,

crediting the testimony of Detective John Harkins (“Detective Harkins”).

See Trial Court Opinion, 12/18/14, at 32-33. The trial court explained:

                This [c]ourt heard testimony from Detective
            Harkins about how [Holman] was given food and
            cigarette breaks when requested, was held for [six]
            hours and [twenty-five] minutes, was able to see his
            girlfriend, and did not appear to be under any sort of
            psychological distress or influence of any drugs.
            Detective Harkins testified [Holman] reviewed his
            statement, made corrections when necessary, and
            then signed the statement. Further, [Holman] was
            not held overnight and deprived of sleep or
            questioned unusually because he was at the
            Homicide Unit during regular business hours, from
            8:00 a.m. to around 2:00 p.m. In Bryant, the
            appellant was interviewed over the course of thirty
            hours by multiple detectives, was given a chance to
            sleep at night, was allowed to speak with his wife
            was provided food and drink. Similarly, [Holman] in
            this case was interviewed for a lesser amount of
            time, under [seven] hours, was given food and drink
            and allowed to speak to his girlfriend. Looking at the
            totality of the circumstances, [Holman]’s statements
            was [sic] undeniably voluntary and given by his own
            free will.

               Moreover, [Holman]’s argument that he was
            under the influence of Xanax simply was not credible
            given that he himself answered negatively to the
            question of whether he was under the influence of
            any substances.     [Holman] initialed each of the
            Miranda     warning    questions,  including  those



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             referencing any influence of drugs or alcohol.
             Furthermore, [Holman]’s testimony regarding how
             his signature was forged and that he did not speak at
             all was not credible to this [c]ourt, the factfinder,
             when he provided information in the statement about
             how the events that night proceeded.           Finally,
             [Holman]’s argument that he was coerced by threats
             that his pregnant girlfriend would not be released
             without his signature on the statement[] rang false
             to this [c]ourt and is not supported by any evidence
             whatsoever. As such, this [c]ourt properly relied on
             the [Superior] Court’s decision in Bryant as applied
             to the case at bar, resolved the issue of credibility in
             favor of Detective Harkins, and denied [Holman]’s
             [m]otion to [s]uppress his statement.

Id.

        We conclude that the trial court did not err in denying Holman’s

motion to suppress his police confession.       The certified record on appeal

supports each of the trial court’s findings with respect to Holman’s

interrogation and questioning. The certified record reflects that Holman was

at the Homicide Division from approximately 8:00 a.m. to 2:30 p.m. and

began giving his confession after about four and a half hours of questioning.

N.T., 3/4/14, at 25, 27-28, 52.          Holman received occasional breaks

throughout the interview, including cigarette breaks when requested, and

soda.    Id. at 29-30.   Detectives never refused Holman a break when he

requested one and they permitted him to speak with his girlfriend when he

asked to do so.      Id. at 30-32, 42.     Holman did not appear under the

influence of any drugs or alcohol during questioning or when giving his

confession and he appeared lucid throughout the entire process. Id. at 32-



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33. Indeed, during his confession, when asked if he was under the influence

of any drugs or alcohol, or prescription medication, Holman specifically

responded “[n]o.” Id. at 36. Police informed Holman of all of his Miranda

rights, which included his right to remain silent, and did not threaten Holman

in order to elicit a confession. Id. at 34-35.

      Importantly, the trial court explicitly credited Detective Harkins

testimony and discredited Holman’s claims.                  See Trial Court Opinion,

12/18/14, at 33.     This Court has held that “[i]t is within the suppression

court’s sole province as factfinder to pass on the credibility of witnesses and

the weight to be given their testimony.              The suppression court is also

entitled   to   believe   all,   part   or    none   of    the   evidence   presented.”

Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011)

(quotations and citation omitted).           Therefore, the certified record supports

the trial court’s determination, based on the totality of the circumstances,

that Holman’s interrogation was not so manipulative or coercive that it

deprived him of his ability to make a free and unconstrained decision to

confess.   See Mitchell, 105 A.3d at 1268.                Thus, the trial court did not

abuse its discretion in denying Holman’s motion to suppress his police

statement.

      For his fourth issue on appeal, Holman argues that the trial court erred

in admitting pictures from Nunez-Suarez’s autopsy. Holman’s Brief at 9.

Holman asserts that the photographs were highly prejudicial because they



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showed stippling3 and a gunshot wound to the back of Nunez-Suarez’s head.

See id. Holman contends that the photographs were unnecessary because

the medical examiner could have simply testified that Nunez-Suarez was

shot at close range. Id.

     Regarding the admission of photographic evidence of a murder, our

Supreme Court has stated the following:

              The admissibility of photographic evidence
           depicting a crime scene is within the sound discretion
           of the trial court, and the trial court’s ruling will be
           reversed only upon an abuse of that discretion.
           Commonwealth v. Baez, 720 A.2d 711, 726 (Pa.
           1998).      In determining whether to admit a
           photograph or videotape of a murder victim, a trial
           court must engage in a two-step analysis.
           Commonwealth v. Pruitt, [] 951 A.2d 307, 319
           ([Pa.] 2008).      First, the court must determine
           whether the photograph is inflammatory. If it is not,
           the photograph may be admitted if it has relevance
           and can assist the jury’s understanding of the facts.


3
  Dr. Gary Collins, the Chief Medical Examiner of the Philadelphia Medical
Examiner’s Office, defined stippling as follows:

              Stippling is a visual indication of range of fire. So
           when a gun is discharged, in addition to the bullet
           leaving the weapon, there are other components of
           that ignition that also leave the bullet -- I’m sorry.
           Leave the barrel with the bullet. There is soot.
           There’s heat and then there’s also the solid unburnt
           gun powder particles that also exit the gun.

               So based on the range of fire, the presence of
           either soot or stippling would give us an indication of
           how far the end of the weapon was when it was
           fired.

N.T., 3/7/14, at 146.


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            If the photograph is inflammatory, the court must
            determine whether the essential evidentiary value of
            the photograph outweighs the likelihood that the
            photograph will improperly inflame the minds and
            passions of the jury. Id.

Commonwealth v. Patterson, 91 A.3d 55, 67 (Pa. 2014).              Additionally,

our Supreme Court has stated,

                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
            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. Lyons, 79 A.3d 1053, 1069-70 (Pa. 2013) (citation

omitted).

     The trial court determined that the photographs at issue were not

inflammatory and were relevant in assisting the jury in understanding the

facts of this case. See Trial Court Opinion, 12/18/14, at 35-38. We agree.

While the photographs did depict a deceased murder victim, the trial court

made efforts to sanitize the photographs. See N.T., 3/7/14, at 210-14. The

photographs depicted the entry wound behind Nunez-Suarez’s ear, near the

base of his neck, with stippling around the wound. See id. The trial court,




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however, would not admit the photographs until ensured that they did not

depict any blood around the wound.      See id. The certified record reflects

that the photographs were also necessary to assist the medical examiner in

explaining stippling to the jury, what it looks like, and how the stippling on

Nunez-Suarez’s gunshot wound revealed that Holman shot him at a range of

two and a half to three feet. Id. at 146-47. Therefore, the record supports

the trial court’s determination that the photographs were not inflammatory

and were relevant in assisting the jury in understanding the facts of this

case. Accordingly, the trial court did not abuse its discretion in admitting the

photographs.

      For his fifth issue on appeal, Holman argues that the trial court erred

in permitting Nunez-Suarez’s son to testify as to why Nunez-Suarez was in

possession of a machete at the time of his murder as opposed to limiting his

testimony to the fact that his father was alive prior to the incident (life-in-

being witness). Holman’s Brief at 9-10.

      We conclude that Holman has waived this issue on appeal. “[W]here

an appellate brief fails to provide any discussion of a claim with citation to

relevant authority or fails to develop the issue in any other meaningful

fashion capable of review, that claim is waived.”         Commonwealth v.

Johnson, 985 A.2d 915, 924 (Pa. 2009); see also Pa.R.A.P. 2119(a) (each

point raised in an argument must be “followed by such discussion and

citation of authorities as are deemed pertinent”); Commonwealth v.



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B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008) (“When an appellant fails

to develop his issue in an argument and fails to cite any legal authority, the

issue is waived.”).   This issue takes up little more than seven lines of

Holman’s appellate brief and includes no citation to any authority or the

record.   See Holman’s Brief at 9-10.        Holman’s argument for how this

testimony prejudiced him amounts to one sentence.            See id. at 10.

Accordingly, Holman has failed to develop this issue in a meaningful fashion

capable of review and has therefore waived his fifth issue on appeal. See

Johnson, 985 A.2d at 924.

      For his final issue on appeal, Holman argues that the trial court erred

by denying his request to give the jury a self-defense instruction. Id. at 10.

Holman contends that the he was entitled to a self-defense instruction

because Nunez-Suarez was swinging a machete before he shot him, which

could have led the jury to conclude that Holman only shot Nunez-Suarez

because he was protecting his own life. Id. We conclude that Holman has

also waived this issue for failing to develop an argument. This issue takes

up little more than eleven lines of Holman’s appellate brief and once again

includes no citation to any authority or the record.   See Holman’s Brief at

10.   Accordingly, because Holman has failed to develop this issue in a

meaningful fashion capable of review and has therefore waived his final

issue on appeal. See Johnson, 985 A.2d at 924.




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      Moreover, even if Holman had properly developed this issue, it would

not entitle him to relief. “A trial court must instruct a jury on a defense if

the defense was raised properly and supported by the record, and its refusal

to give an instruction is subject to an abuse-of-discretion standard of

review.”   Commonwealth v. Sasse, 921 A.2d 1229, 1238 (Pa. Super.

2007). Regarding a self-defense jury instruction, this Court has explained:

               As a general rule, an individual is justified in using
            force upon another person “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.” 18 Pa.C.S.A. § 505(a) (emphasis added).
            However, the Commonwealth may disprove a claim
            that a defendant’s use of deadly force was justifiable
            by establishing that:      1) the defender did not
            reasonably believe deadly force was necessary to
            protect himself from imminent danger of death or
            great bodily harm, 2) the defender provoked the
            incident, or 3) the defender violated a duty to retreat
            with safety or avoid the danger. Commonwealth v.
            Truong, 36 A.3d 592, 598–99 (Pa. Super. 2012) (en
            banc).

Commonwealth v. Chine, 40 A.3d 1239, 1243 (Pa. Super. 2012)

(emphasis in original).

      Here, the certified record reflects that Holman pointed a gun at Nunez-

Suarez and ordered him to hand over his money while Holman was sitting

behind him in a taxicab.    N.T., 3/7/14, at 76-79.     Although Nunez-Suarez

then proceeded to swing a machete at Holman, the record is clear that

Holman provoked the incident.      See id.    Therefore, the trial court did not




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abuse its discretion in refusing give the jury a self-defense instruction in this

case, as the defense was not supported by the record. See Chine, 40 A.3d

at 1243; Sasse, 921 A.2d at 1238.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/12/2015




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