J-S61008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

EUGENIO HERNANDEZ-ANDINO,

                          Appellant                   No. 118 EDA 2018


    Appeal from the Judgment of Sentence Entered November 30, 2017
              In the Court of Common Pleas of Lehigh County
           Criminal Division at No(s): CP-39-CR-0000519-2015


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                    FILED DECEMBER 12, 2018

      Appellant, Eugenio Hernandez-Andino, appeals from the judgment of

sentence of life imprisonment, without the possibility of parole, imposed after

a jury convicted him of first-degree murder. On appeal, Appellant challenges

the sufficiency of the evidence to sustain his conviction, as well as the trial

court’s refusal to instruct the jury on voluntary manslaughter. After careful

review, we affirm.

      From October 30th to November 1st of 2017, Appellant was tried before

a jury on a single charge of first-degree murder, based on evidence that he

stabbed the victim in this case three times, resulting in the victim’s death. At

the close of trial, the jury convicted Appellant.      He was sentenced on

November 30, 2017, to a term of life imprisonment without the possibility of

parole. Appellant filed a timely notice of appeal, and he also timely complied
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with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. The trial court issued a Rule 1925(a) opinion

on February 9, 2018. Herein, Appellant presents two issues for our review:

      A. Was the evidence presented sufficient to sustain a verdict of
         guilty to murder in the first degree when [Appellant] presented
         evidence of his having acted in self-defense, or acting based
         upon his belief, erroneous or not, that the victim may have
         been acting to assault or try and kill [Appellant]?

      B. Whether the court acted properly in denying [Appellant’s]
         request for a jury charge as it relates to voluntary
         manslaughter?

Appellant’s Brief at 7 (unnecessary capitalization omitted).

      In assessing Appellant’s first issue, we apply the following standard of

review:

      In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      In the case sub judice, Appellant claims that the Commonwealth failed

to prove that he possessed the specific intent to kill the victim to sustain his

conviction of first-degree murder. See Commonwealth v. Jordan, 65 A.3d

318, 323 (Pa. 2013) (“There are three elements of first-degree murder: (i) a



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human being was unlawfully killed; (2) [Appellant] was responsible for the

killing; and (3) [Appellant] acted with malice and a specific intent to kill.”)

(citing, inter alia, 18 Pa.C.S. § 2502(a)). In support of this position, Appellant

relies on his own trial testimony that he stabbed the victim based on his belief,

reasonable or unreasonable, that the victim posed a deadly threat to him.

Appellant claims that “the evidence that [he] acted in an attempt to protect

himself was relatively unchallenged” by the Commonwealth and, therefore,

“[t]he jury’s verdict was not supported by evidence that could reasonably

prove[,] beyond a reasonable doubt[,] that [Appellant] acted with the

necessary intent to kill.”   Appellant’s Brief at 15.    Appellant argues that,

instead, the Commonwealth’s evidence could sustain only a conviction for

‘unreasonable-belief’ voluntary manslaughter.

      The record does not support Appellant’s argument.            The evidence

presented at trial, as summarized by the trial court, established the following:

         [O]n January 22, 2015, at approximately 3:30 P.M., 30 year
      old Jose Reyes-Espinosa entered the Washington Barber Shop
      located at 1129 Hamilton Street, Allentown, Lehigh County,
      Pennsylvania, to get his hair cut. Espedi Olivo, a 34[-]year[-]old
      barber working at the Washington Barber Shop, was between
      customers when Mr. Reyes-Espinosa2 arrived at the barbershop.
      He was sitting in the front of the establishment by the front door.
      … Soon thereafter, Mr. Olivo saw [Appellant]4 … enter the
      Washington Barber Shop. He observed [Appellant] approach the
      victim in the barber chair, and he watched a verbal argument
      ensue. Mr. Olivo overheard [Appellant] say to the victim, “Where
      are your friends now?” According to Mr. Olivo, Mr. Reyes-Espinosa
      appeared to be frightened, as demonstrated by his body language
      and the tone of his voice. In an effort to stop the argument, Mr.
      Olivo approached the two (2) men and reminded them that they
      were adults and should not fight. When [Appellant] told him that


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     the argument “does not involve him,” Mr. Olivo backed off and sat
     down. As the argument continued, Mr. Olivo watched the victim
     get his coat to leave. Suddenly, [Appellant] grabbed Mr. Reyes-
     Espinosa and a physical altercation ensued. Mr. Olivo observed
     [Appellant] “cut [the victim] a few times with a knife,” and
     testified that the victim did not have a weapon nor did he hit
     [Appellant]. In fact, Mr. Olivo indicated that the victim was merely
     trying to defend himself with his hands while he was being stabbed
     by [Appellant]. Mr. Olivo noted that after [Appellant] stabbed the
     victim multiple times, [Appellant] immediately left the
     barbershop. Simultaneously, the victim ran towards the back of
     the barbershop and appeared to start to lose consciousness. The
     entire altercation was captured on security surveillance from four
     (4) different angles.      The security surveillance video was
     consistent with Mr. Olivo’s version of events.6 In addition, another
     employee of the barbershop7 used his cellular phone to videotape
     the aforementioned events.8 This video was also consistent with
     Mr. Olivo's testimony.
        2 Mr. Olivo knew Mr. Reyes-Espinosa as “flaco,” which
        means “thin” in Spanish. According to the autopsy report,
        the victim was 5’11” and 143 pounds.
        4Mr. Olivo was familiar with [Appellant], as he was a regular
        customer at the barbershop. [Appellant’s] nickname was
        “monster.”       [Appellant] was      6’1”    and weighed
        approximately 244 pounds.
        6 A view of the surveillance video shows [Appellant’s]
        stabbing the victim three or four times, all with great force.
        In fact, the victim is lifted off the ground from [Appellant’s]
        powerfully thrusting the knife into the victim’s body.
        7 Juan Garcia, also known as “Fernando,” [Appellant’s]
        roommate at the time, was working at the Washington
        Barber Shop. He was [Appellant’s] barber. “Fernando”
        videotaped these events on his cellular phone. His
        whereabouts were unknown at the time of trial.
        8 Officer Alex De La Iglesia of the Allentown Police
        Department assisted in the investigation. His particular
        assignment was to make contact with Juan Garcia, a/k/a
        “Fernando,” as he was seen videotaping the earlier events
        of the day at the barbershop on his cellular phone. Officer
        De La Iglesia established surveillance in the area of 1338
        Hamilton Street, Apartment #2, Allentown, and he observed

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        “Fernando” enter the apartment complex. Officer De La
        Iglesia made contact with “Fernando” and located two (2)
        iPhones in his possession. Officer De La Iglesia searched
        the content of the cell phones and he located the video of
        the homicide at the barbershop on Fernando’s iPhone 6C.

         Immediately after this altercation, the victim called 911 to seek
     help. Consequently, Officer Edward Fitzsimmons of the Allentown
     Police Department was dispatched to the Washington Barber Shop
     for report of an injured person therein. When Officer Fitzsimmons
     arrived on scene in full uniform and in a marked police cruiser,
     Officer Amaury of the Allentown Police Department was already
     present. Officer Amaury related to Officer Fitzsimmons that a
     stabbing had occurred at the barbershop, and he was directed to
     the back of the establishment. In the back hallway, Officer
     Fitzsimmons observed the victim, Jose Reyes-Espinosa, lying on a
     mattress in a break room with blood on his shirt. He also noticed
     blood splatter in the barbershop and in the back hallway. The
     victim appeared to be in serious condition, as his breaths were
     shallow. Allentown paramedics arrived on scene and transported
     the victim to Lehigh Valley Hospital - Cedar Crest Campus. After
     the victim was removed from the premises, the building was
     cleared and the area was secured.

        Detective Stephen Milkovits of the Allentown Police Department
     was summoned to the scene. By the time he arrived, the victim
     had already been taken by ambulance to the hospital for
     treatment. Detective Milkovits spoke with the patrol officers in
     the barbershop, interviewed “Fernando,” as well as viewed the
     surveillance video from the barbershop. A few hours later,
     Detective Milkovits was able to locate [Appellant’s] vehicle, a
     burgundy 2001 Ford Taurus, approximately three (3) blocks from
     the barbershop. The subject vehicle was towed and a search
     warrant for same was obtained. A search of the vehicle yielded a
     knife10 in the pouch behind the front passenger seat. Rudolf
     Hoogenboom, an officer with the identification unit of the
     Allentown Police Department, documented not only the crime
     scene, but also the evidence recovered from [Appellant’s] vehicle.
        10[Appellant] indicated that this knife recovered from his
        vehicle was not the knife used at the barbershop.
        [Appellant] stated that he had a “work knife” on him at the
        Washington Barber Shop.




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         In addition, at 4:30 A.M. on January 23, 2015, Detective
     Milkovits went to [Appellant’s] apartment to execute a search
     warrant. At that time, [Appellant], [Appellant’s] girlfriend, Janet
     Pedez, and her children were present in the apartment. A search
     of the premises revealed the clothing items that [Appellant] wore
     in the surveillance video of the barbershop during the stabbing of
     the victim. Such clothing items included a green reflective vest,
     work boots, dark sweatpants, two (2) sweatshirts, and tan work
     gloves. In furtherance of the investigation, these clothing items
     were sent to the Pennsylvania State Police lab for serology testing.
     Sarah Kase, a forensic scientist in serology and an expert in
     serology, analyzed the items submitted to the lab. Based on her
     positive findings, Ms. Kase then prepared cuttings and swabs to
     be sent to the DNA lab with regard to the buccal swab, a swab of
     [Appellant’s] left work boot, and cuttings from the left work boot
     and [Appellant’s] sweatpants. Thereafter, Amber Gegg, a forensic
     DNA analyst and an expert in DNA analysis, analyzed the samples
     received from serology. Her analysis established a positive match
     between the DNA in the victim’s buccal swab sample and the
     material tested on the cutting from [Appellant’s] sweatpants and
     the cutting from [Appellant’s] left work boot.

         Detective Louis Tallarico of the Lehigh County District
     Attorney’s Office, assigned to the Homicide Task Force, also
     participated in the homicide investigation. Detective Tallarico
     interviewed [Appellant] at 6:00 A.M. on January 23, 2015, with
     Detective Milkovits. [Appellant] executed an Allentown Police
     Department Waiver of Rights Form prior to the interview, and
     agreed to speak with the detectives. [Appellant’s] interview lasted
     approximately fifty (50) minutes and evolved over time. Indeed,
     at the beginning of the interview, [Appellant] denied being at the
     barbershop on the day in question and denied knowing
     “Fernando.”     However, [Appellant] changed his story and
     indicated that he had been at the barbershop to retrieve the
     apartment key from “Fernando” and that the victim confronted
     him. He further stated that the victim was on his cell phone calling
     his friends to come over to the barbershop.11            [Appellant]
     ultimately admitted to stabbing the victim with a knife.
        11[Appellant] told the detectives that in 2009[,] he had been
        assaulted at 8th and Chew Streets, Allentown, Lehigh
        County. An Allentown Police Department Incident Report
        indicated that the victim, “David Irizarry Cruz” a/k/a
        Eugenio Hernandez-Andino, alleged that six (6) men
        jumped him and that he went to the Lehigh Valley Hospital

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        for treatment for his hand. [Appellant] was uncooperative
        with the authorities at the time and no one was identified in
        the report. There was no reference to a stabbing in the
        report.

        Alli Avila, a 42 year old barber who worked at the Washington
     Barber Shop on January 22, 2015, knew Mr. Reyes-Espinosa, who
     was a regular customer, as well as [Appellant] from the
     barbershop. He related that on the day at issue, he witnessed Mr.
     Reyes-Espinosa enter the barbershop and sit down in his barber
     chair. Then, [Appellant] walked in and came up to Mr. Reyes-
     Espinosa and began to argue with him. Mr. Avila overheard
     [Appellant], who was angry, tell Mr. Reyes-Espinosa that he
     knows where he lives. Mr. Reyes-Espinosa then removed his
     barber smock and picked up his hat and coat in an effort to leave
     the premises. Mr. Avila witnessed [Appellant] physically grab Mr.
     Reyes-Espinosa. At no point did Mr. Avila observe Mr. Reyes-
     Espinosa threaten or punch [Appellant], or brandish a weapon.

        Unfortunately, Mr. Reyes-Espinosa succumbed to his injuries.
     An autopsy on the victim’s body was performed by Barbara
     Bollinger, M.D., a forensic pathologist, and an expert in the field
     of anatomical, clinical, and forensic pathology, on January 23,
     2015. Dr. Bollinger noted three (3) stab wounds to the victim’s
     torso, as well as one incised wound. Dr. Bollinger opined that
     each of the stab wounds was a potentially lethal stab wound.12
     The cause of death was deemed to be stab wounds to the torso,
     and Dr. Bollinger opined that the manner of death was homicide.
     Officer Justin Motz of the Allentown Police Department, and a
     member of the identification bureau, attended the autopsy and
     collected the relevant evidence, including a buccal swab from the
     victim.
        12 The victim had a stab wound to the right clavicle area
        which perforated his lung[,] a stab wound to the left
        underarm area of the chest, and a stab wound to the left
        upper abdominal quadrant which perforated his liver,
        diaphragm, and heart.

        According to [Appellant’s testimony at trial], in 2009, the
     victim, along with a group of Trinitarios [gang members],
     assaulted and stabbed him. [Appellant] indicated that he was
     successfully able to avoid these gang members until 2014, when
     he moved to Philadelphia. Thereafter, in 2015, [Appellant]
     returned to the area Allentown. On January 22, 2015, [Appellant]


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      admitted to entering the barbershop after work. [Appellant]
      stated that upon his entering the barbershop establishment, Mr.
      Reyes-Espinosa began to say nasty and threatening things to him.
      Therefore, [Appellant] feared that the Trinitarios were going to do
      something to him in the future, based on the 2009 altercation.
      [Appellant] testified that when Mr. Reyes-Espinosa got up to leave
      and put his coat on, [Appellant] saw Mr. Reyes-Espinosa put his
      hand in his coat pocket. Fearing that Mr. Reyes-Espinosa had a
      weapon, although he did not see one, and fearing that a cut to
      him could be detrimental in light of the fact that he was on blood
      thinners, he physically fought with the victim. At that moment,
      [Appellant] claim[ed] that he “blacked out” and could not recall
      details. [Appellant] did remember that he wanted to “teach [the
      victim] a lesson” and “poked” at him two (2) or three (3) times
      with the knife to hurt him, but did not intend to kill him.
      [Appellant] repeatedly stated that he grabbed the victim because
      he was scared that the victim would tell the Trinitarios and then
      they would get him in the future. [Appellant] conceded that he
      could have left the premises prior to the argument becoming
      physical, but he did not.

Trial Court Opinion (TCO), 2/9/18, at 3-10 (citations to the record and some

footnotes omitted).

      It is clear that this evidence was sufficient to sustain Appellant’s

conviction of first-degree murder. Witnesses testified that Appellant was the

initial aggressor, and that the victim did not retaliate in a threatening or hostile

manor. Instead, the victim attempted to leave the barbershop, at which point

Appellant grabbed the victim and stabbed him three times in the torso. The

forensic pathologist testified that Appellant’s knife punctured the victim’s

heart, liver, and lung. This evidence demonstrated that Appellant acted “with

malice and specific intent to kill.” Commonwealth v. Lyons, 79 A.3d 1053,

1062 (Pa. 2013) (citations omitted) (“[A] jury’s determination that the

accused engaged in first-degree murder is supported when there is evidence



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to suggest that he used a deadly weapon on a vital part of the victim’s body,

thereby causing [the victim’s] death.”) (citation omitted).

      We also reject Appellant’s assertion that the evidence supported a

conviction for ‘unreasonable belief’ voluntary manslaughter, also referred to

as ‘imperfect belief’ self-defense. That crime is defined as follows:

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

18 Pa.C.S. § 2503(b). Regarding this form of voluntary manslaughter, our

Supreme Court has clarified that,

      [t]he derivative and lesser [self-]defense [claim] of imperfect
      belief self-defense is imperfect in only one respect—an
      unreasonable rather than a reasonable belief that deadly force
      was required to save the actor’s life. All other principles of
      justification under 18 Pa.C.S. § 505 must [be satisfied to
      prove] unreasonable belief voluntary manslaughter.

Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012) (internal

citations and quotation marks omitted; emphasis added). Justification under

section 505 requires a defendant to prove that he “was free from fault in

provoking the difficulty which culminated in the slaying[,] and … that the

[defendant] did not violate any duty to retreat.” Id. (citations omitted); see

also 18 Pa.C.S. § 505(b)(2)(i). Here, Appellant had a duty to retreat from

the barbershop, and he conceded at trial that he could have done so prior to

the physical altercation with the victim.       Therefore, his own testimony

defeated his claim of unreasonable-belief voluntary manslaughter.

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      Appellant’s second issue fails for this same reason. Appellant contends

that the court erred by not instructing the jury on unreasonable-belief

voluntary manslaughter.

      [A] trial court shall only instruct on an offense where the offense
      has been made an issue in the case and where the trial
      evidence reasonably would support such a verdict. …
      Instructions regarding matters which are not before the court or
      which are not supported by the evidence serve no purpose other
      than to confuse the jury.

Commonwealth v. Browdie, 671 A.2d 668, 674 (Pa. 1996) (emphasis

added); see also Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328

(1983) (holding that a voluntary manslaughter charge is appropriate only

when that crime is made an issue in the case, and evidence would support

such a verdict). Because, for the reasons stated supra, Appellant’s testimony

did not support the offense of unreasonable-belief voluntary manslaughter,

the court did not err in refusing to charge the jury on that crime.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/18




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