Com. v. Cruz, J.

J. S33008/14

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

JOSE ANTONIO CRUZ, : No. 92 EDA 2013

:

Appellant :

Appeal from the Judgment of Sentence, August 29, 2012,

in the Court of Common Pleas of Lehigh County

Criminal Division at Nos. CP-39-CR-0003697-2011,

CP-39-CR-0003701-2011

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

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

Jose Antonio Cruz appeals from the judgment of sentence of

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

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

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

affirm.

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

follows:

In June of 2011, the Appellant and Elba Lopez,

along with their minor children[Footnote 4] resided

at 3 Maryland Circle, Apartment #3, Whitehall,

Lehigh County, Pennsylvania. The Appellant and

Ms. Lopez had been in a relationship, off and on,

since 2008. Throughout their relationship, the

Appellant had concerns that Ms. Lopez was unfaithful

to him. On the morning of June 5, 2011, the

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Appellant learned that Ms. Lopez had had a past

relationship with one of her coworkers. The

Appellant became upset and meandered throughout

Allentown during the day, visiting with family

members and consuming alcohol. The Appellant

returned to his home at approximately midnight, but

did not see either Ms. Lopez or his minor children in

the home.[Footnote 5]

[Footnote 4] The couple had two children

at the time of the instant crimes;

Ms. Lopez has since given birth to a third

child.

[Footnote 5] The Appellant testified that

he only noticed that his 12 year old son

from a prior relationship was in the

apartment, playing video games in the

living room area.

In the late evening hours of June 5, 2011,

Alexis Lopez was visiting his sister, Elba Lopez, at

the apartment she shared with the Appellant. When

Mr. Lopez arrived at the home, Elba and the children

were in the apartment, but the Appellant was either

not at the home yet or was unseen by Mr. Lopez.

Mr. Lopez stayed for approximately 45 minutes. As

he left the apartment, he kissed his sister goodbye

and proceeded down the steps outside of the

individual apartment.

At this point, the Appellant had exited the

bathroom of the apartment, naked, when he believed

that [he] heard Ms. Lopez speaking to and kissing an

unknown male. The Appellant confronted Ms. Lopez

and the Appellant began to physically assault

Ms. Lopez.

At this moment, Mr. Lopez was walking down

the stairs when he heard an argument and heard his

sister scream. He proceeded back up the stairs and

encountered his sister running down the steps,

carrying the two small children. She told him to run,

that the Appellant had a gun.

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The Appellant emerged from the apartment

and fired a gun into the air. He then returned to his

apartment to put on clothes.

Meanwhile, Mr. Lopez had taken Ms. Lopez and

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

mother and brother back to the apartment at

3 Maryland Circle so that they could speak to the

Appellant. When they arrived back at the

apartment, the Appellant was not there.

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

car to 420 West Oak Street, Allentown, Lehigh

mother, Maria Sepulveda, and her husband,

Edwin Jimenez-Gonzalez.

In the early morning hours of June 6, 2011,

A[dal]berto Lopez, another brother of Elba Lopez,

was at 420 West Oak Street. Mr. Lopez was working

in a first floor computer room of the home and

Ms. Sepulveda and Mr. Jimenez-Gonzalez were

asleep in their bedroom on the second floor. At

approximately 1 a.m., the Appellant arrived at the

back door/kitchen door to 420 West Oak Street.

Mr. Lopez responded to the door and the Appellant

began to tell Mr. Lopez to let him into the home and

asked where Elba Lopez was. Mr. Lopez refused to

open the door and told the Appellant to leave, that

Elba Lopez was not there. The Appellant began to

force his way into the home.

Hearing the commotion at the door,

Mr. Jimenez-Gonzalez came downstairs, along with

Ms. Sepulveda. Mr. Lopez told Mr. Jimenez-Gonzalez

not to open the door. Mr. Jimenez-Gonzalez walked

to the back door and told Mr. Lopez that he was just

going to talk to the Appellant. The Appellant

demanded to speak to Elba Lopez. Mr. Jimenez-

Gonzalez and Mr. Lopez repeatedly told the Appellant

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that Elba Lopez was not there and told him to go

home. Again, the Appellant attempted to enter the

residence, forcing his way into the home. At that

point, Mr. Jimenez-Gonzalez grabbed the Appellant

and was able to push him to the door.

The Appellant immediately pulled a silver

Magnum handgun out of the pocket of the black

hoodie he wa

-Gonzalez. Mr. Lopez told

the Appellant to put the gun down and to leave the

home. The Appellant continued to point the gun at

Mr. Jimenez-Gonzalez. While inside the home,

Mr. Jimenez-Gonzalez tried to grab the gun from the

Appellant. The two began to struggle and the tussle

wound its way to the rear patio of the home. A shot

rang out, there was a pause, and a second shot rang

out. Mr. Jimenez-Gonzalez screamed for someone to

call the police, fought to get back inside the house

and collapsed on the kitchen floor by the steps

leading to the second floor. Ms. Sepulveda went to

her husband to comfort him. The Appellant fled the

residence.

testified at trial, differs slightly. The Appellant

asserts that after he asked Mr. Jimenez-Gonzalez if

Elba Lopez was at the home, a struggle between

them ensued. The Appellant asserts that

Mr. Jimenez-Gonzalez struck him in the face and

grabbed him by the neck. The Appellant testified

that he told Mr. Jimenez-

that he did not. He then testified that Mr. Jimenez-

Gonzalez grabbed the gun and as they struggled, a

shot went off. The Appellant was unsure who was

hit (although he felt no pain) and a second shot was

fired. He admitted that he was the one who pulled

the trigger twice during the struggle. He recalled

seeing Mr. Jimenez-Gonzalez fall to the kitchen floor

An ambulance arrived shortly thereafter and

took Mr. Jimenez-Gonzalez to the hospital. The

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shots Mr. Jimenez-Gonzalez received were fatal. An

autopsy was performed and the cause of death was

determined to be gunshot wounds of the torso with

fractures and visceral injuries. The manner of death

was ruled a homicide.

Two .45 caliber shell casings were recovered

from 420 West Oak Street and sent for further

ballistic testing.

A short time after the alleged shooting, at

approximately 1 am on June 6, 2011,

Oscar Hernandez was driving his Ford Mustang at the

intersection of Union Boulevard and Airport Road,

Allentown, Lehigh County, near the Wawa

convenience store. As he approached the

intersection travelling south on Airport Road, a car

from his right side proceeded through a red light and

the two vehicles crashed. A witness from a nearby

home came to the intersection to make sure that

Mr.

was incapacitated at the scene and the striking

vehicle came to a stop in the Wawa parking lot.

While on scene, Mr. Hernandez heard gunshots from

the direction of the Wawa.

Leandro Perez was also at the Wawa that

morning, driving a white Jeep. After pulling up to

one of the gas pumps, Mr. Perez exited his vehicle

and attempted to open the cap of his gas tank.

Immediately, a male approached him with a pointed

handgun, demanding the keys to the Jeep. The

individual appeared to be in a hurry and Mr. Perez

noticed that he was wearing dark clothing and had a

stream of blood going down his face. Mr. Perez told

The individual repeatedly asked Mr. Perez for the

keys, but Mr. Perez refused to give them to him.

The individual eventually walked or ran away. This

interaction was observed by Jeannie McFarland,

manager at the Wawa on that evening.

Ms. McFarland observed the same individual

proceed to another car positioned at a different gas

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pump, where Elionel Diaz-Rivera and his friend,

Pedro Leon, were. Mr. Leon was driving a black

Cadillac. Mr. Diaz-Rivera and Mr. Leon went inside

the Wawa to prepay for gasoline and to use the ATM.

They then began to walk back towards the car.

Mr. Diaz-Rivera observed an unknown man wearing

door.

The man approached Mr. Diaz-Rivera and Mr. Leon

and asked them for the car keys. Mr. Diaz Rivera

not turned over to the individual and Mr. Diaz-Rivera

and Mr. Leon went back [inside] the Wawa store.

Mr. Leon proceeded to hide behind a refrigerator

after he overheard another patron say someone had

a gun.

Carla Arce and her husband, Samir, were also

at the Wawa, attempting [to] get gas for their Honda

Accord. Samir, who was driving the vehicle, pulled

up to the pump, with his window down and the door

slightly ajar. Immediately a man pointed a gun to

his head and told him to give him the car keys.

Samir told the man that he would give him anything

he wanted, but not to hurt either of the Arces.

Ms. Arce remained in the passenger seat. The

Ms. Arce told him she did not, as the car has a

standard transmission. The individual exited the car

and Ms. Arce quickly got out of the car to look for

help. Ms. Arce observed the individual go towards

another vehicle in the Wawa parking lot and

observed the individual leave the Wawa, heading

westbound.

Natasha Henn was also at the Wawa. She had

parked her purple Dodge Neon in front of the

convenience store while the friend she was with went

into the store. Ms. Henn noticed that people inside

of the Wawa were looking out of the window in her

direction. Ms

see anything. As she started to get out of her car,

someone stopped her by grabbing her door. The

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individual held a gun to her head and told her to get

out. She had her keys in her hand, got out of the

car and the individual got into the car. She ran into

the store, with her keys still in her hand. She was

able to notice that the individual was wearing black

and had a cut on his face.

Raymond Shook and George Fetter were also

at the Wawa that morning. Mr. Fetter was driving

of the Wawa store. Mr. Fetter exited the vehicle and

went inside the Wawa, leaving Mr. Shook in the

Mr. Fetter heard an argument outside of the

convenience store and turned around to see what

was happening. He observed an unknown man

getting into his Audi. Mr. Fetter walked back to the

car and ran around to the rear of the vehicle. The

individual then turned around to face Mr. Fetter,

pointed a gun at him, and Mr. Fetter became scared.

Mr. Fetter hunched down behind the vehicle and

observed the unknown individual struggling with

Mr. Shook inside of the car. Mr. Fetter then heard

gunshots and Mr. Fetter ran away from the vehicle.

Meanwhile inside of the Audi, Mr. Shook saw

Mr. Fetter approach the door of the Wawa, only to

find the doors locked. At that moment, an unknown

individual entered the Audi, pointed a gun at

Mr.

attempted to exit, but the door would not open.

Mr. Shook told the unknown individual to open the

doors and pushed the gun away from him. At that

point, Mr. Fetter was approaching the vehicle. The

individual got out of the car and confronted

Mr. Fetter. When the individual returned, Mr. Shook

was attempting to place his feet out of the passenger

side window to escape. The individual shot at

Mr. Shook, hitting him once through the left side

(ribcage), while Mr. Shook was half-way out of the

vehicle. After getting shot, Mr. Shook went into the

Wawa store and asked for help.[Footnote 6]

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[Footnote 6] All of the robbery victims,

except for Ms. Arce, were able to

positively identify the Appellant as the

individual wielding the weapon and

wearing the black hoodie.

It was later determined that the bullet entered

underneath his heart, through his liver, bladder,

colon, and intestines and became lodged in his leg,

where it remains. Mr. Shook spent approximately

two and a half months in the hospital and underwent

a 10 hour surgery. He had four feet of his large

bowel and five feet of his small bowel removed. He

still has pain under his rib cage, has difficulty with

his stomach and bowels, and suffered a blood clot in

his lung. He continues to receive medical care.

Immediately after Mr. Jimenez-Gonzalez was

shot, A[dal]berto Lopez called 911. Officers arrived,

along with EMS personnel to attend to Mr. Jimenez-

Gonzalez. Information was related to the

communications center indicating a description of the

Appellant and the vehicle he was driving. Further,

the communications center received information

regarding the vehicle accident involving

Mr.

Wawa regarding the incidents that took place at the

Wawa. Descriptions received and additional

information was disseminated via police radio.

At approximately 7:46 a.m. on June 6, 2011,

Sergeant Eric Heicklen of the Allentown Police

Department observed a vehicle matching the

description and license plate information of the Audi

stolen from the Wawa at 510 East Moser Street,

Allentown, Lehigh County (the Washington Crossing

Apartment complex). The Emergency Response

Team (ERT) of the Allentown Police Department

responded to the location and recovered the vehicle.

After the building had been evacuated, the Appellant

was located in Apartment 17 and was taken into

custody. At that time, the Appellant had an abrasion

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and lumping on his head and he was complaining of

back pain.

At approximately 8:30 a.m. on June 6, 2011,

Detective Pedro Cruz of the Allentown Police

3 Maryland Circle, Apartment #3, Whitehall, and

searched the apartment. As a result, Detective Cruz

found a .45 caliber shell casing outside of the

Ap

door.

Inside of the apartment, Detectives

Daniel Gross and William Lake of the Allentown

Police Department recovered a key fob with the Audi

symbol on it, hidden in the back of a speaker in the

iving room. Inside of another speaker,

a lanyard with what appeared to be house keys was

located. The Audi key was later returned to

Mr. Fetter and corresponded with his vehicle. The

lanyard with house keys was identified by

Mr. g to him.

Detective Mark Boyer of the Allentown Police

Department determined that the Appellant did not

have a license to carry a firearm.

Sergeant Kurt Tempinski of the Pennsylvania

State Police Forensic Services, and qualified as an

expert in toolmark and firearm examination,

examined and determined that the bullets recovered

same firearm. Further, he determined that bullet

casings found at 420 Oak Street and at 3 Maryland

Circle were discharged from the same firearm. The

firearm was never recovered.

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

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

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

without parole, and

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

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

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

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

court has filed an opinion.

A. Whether the lower court acted properly in

st for severance of

the two informations and allowed the

Commonwealth to use one trial to convict

[appellant] for the two separate cases which

involved charges of homicide and robbery?

B. Whether the court acted properly in denying

or a jury charge as it

relates to voluntary manslaughter?

C. Whether the lower court was correct, in

determining that the police had properly

advised [appellant] of his Miranda rights, did

properly question [appellant], and therefore

any statements made by [appellant] were

permitted to be entered as part of the

D. Whether or not there was sufficient evidence to

sustain the finding of guilty as it relates to the

charges of robbery?

E. Whether the trial court properly allowed

various pictures including pictures of the

decedent to be entered as evidence against

[appellant] which were inflammatory and

otherwise of no probative [value]?

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

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

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

at the Wawa convenience store.

Whether to join or sever offenses for trial is within

s discretion and will not be reversed on

appeal absent a manifest abuse thereof, or prejudice

and clear injustice to the defendant.

Commonwealth v. Newman, 528 Pa. 393, 598

A.2d 275, 277 (Pa.1991). The Rules of Criminal

Procedure provide:

Joinder-Trial of Separate Indictments of Informations

(A) Standards

(1) Offenses charged in separate

indictments or informations may be

tried together if:

(a) the evidence of each of

the offenses would be

admissible in a separate

trial for the other and is

capable of separation by

the jury so that there is

no danger of confusion;

or

(b) the offenses charged are

based on the same act

or transaction.

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

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

Evidence of distinct crimes is inadmissible solely to

Such evidence is admissible, however, to show a

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common plan, scheme or design embracing

commission of multiple crimes, or to establish the

identity of the perpetrator, so long as proof of one

crime tends to prove the others. This will be true

when there are shared similarities in the details of

each crime.

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

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

Keaton

following factors should be considered in establishing similarity: the elapsed

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

and the manner in which the crim Commonwealth v.

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

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

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

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

Jimenez-

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

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

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

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

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

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

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

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

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

formed part of the natural development of the facts).

The homicide and subsequent robberies were inextricably intertwined

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

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

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

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

Raymond Shook were also admissible to establish consciousness of guilt.

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

appeal denied

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

himself, such conduct is admissi

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

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

confusion. The trial court did not abuse its discretion in

motion to sever the charges.

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

instruction on voluntary manslaughter. Appellant argues that the evidence

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

It is clear that jury instructions regarding particular

crimes or defenses are not warranted where the

facts of the case do not support those instructions.

See Commonwealth v. Browdie, 543 Pa. 337,

347-50, 671 A.2d 668, 673-74 (1996); see also

Commonwealth v. Harris, 542 Pa. 134, 139-40,

665 A.2d 1172, 1175 (1995) (no self-defense

instruction required where the evidence did not

support self-defense); Commonwealth v. Carter,

502 Pa. 433, 443-44, 466 A.2d 1328, 1332-33

(1983) (trial counsel not ineffective for failing to

request instruction on voluntary manslaughter where

no evidence existed to support a conviction for that

offense).

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

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

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

provides, in relevant part, as follows:

(b) Unreasonable belief killing justifiable.--A

person who intentionally or knowingly kills an

individual commits voluntary manslaughter if

at the time of the killing he believes the

circumstances to be such that, if they existed,

would justify the killing under Chapter 5 of this

title (relating to general principles of

justification), but his belief is unreasonable.

18 Pa.C.S.A. § 2503(b).

ntary

- Commonwealth v. Tilley,

528 Pa. 125, 595 A.2d 575, 582 (1991) (citing

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18 Pa.C.S. § 2503(b)), will only justify a voluntary

manslaughter instruction in limited circumstances:

w

than a reasonable belief that deadly force was

principles of justification under 18 Pa.C.S. § 505 []

Id. Generally, the use of deadly

force

such force is necessary to protect himself against

death, serious bodily injury, kidnapping or sexual

18 Pa.C.S. § 505(b)(2). Although a defendant has

no burden to prove a claim of self-defense before

some evidence, from whatever source, to justify

Commonwealth v. Sepulveda,

55 A.3d 1108, 1124 n.13 (Pa. 2012). The

evidentiary elements necessary to prevail on a

justification defense are that the defendant

(a) reasonably believed that he was in imminent

danger of death or serious bodily injury and that it

was necessary to use deadly force against the victim

to prevent such harm; (b) was free from fault in

provoking the difficulty which culminated in the

slaying; and (c) did not violate any duty to retreat.

Id. at 1124 (citing 18 Pa.C.S. § 505).

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

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

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

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

(Id.) Appellant testified that he told Jimenez-

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

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

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

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

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

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

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

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

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

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

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

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

evidence conflicts; Adalberto Lopez testified that appellant barged into the

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

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

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

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

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

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

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

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

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

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

violation of Miranda.2 Appellant complains that

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

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

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

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

The role of this Court in reviewing the denial of a

suppression motion is well-established:

denial of a suppression motion is limited

to determining whether the factual

findings are supported by the record and

whether the legal conclusions drawn

from those facts are correct. Since the

prosecution prevailed in the suppression

1

In the court below, appellant also argued that he was entitled to a

voluntary manslaughter--heat of passion instruction. Appellant claimed that

-Gonzalez. (Id.

at 14.) On appeal, appellant concedes that heat of passion would not apply

where it was not the victim, Jimenez-

guilty of heat of passion voluntary manslaughter if at the time of the killing

he reacted under a sudden and intense passion resulting from serious

provocation by the victim

victim but, rather, Elba Lopez. In fact, appellant testi

2

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

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court, we may consider only the evidence

of the prosecution and so much of the

evidence for the defense as remains

uncontradicted when read in the context

of the record as a whole. Where the

record supports the factual findings of

the trial court, we are bound by those

facts and may reverse only if the legal

conclusions drawn therefrom are in error.

Commonwealth v. Stevenson, 894 A.2d 759, 769

(Pa.Super.2006) (citation omitted). Although we are

bound by the factual and the credibility

determinations of the trial court which have support

in the record, we review any legal conclusions

de novo. Commonwealth v. George, 878 A.2d

881, 883 (Pa.Super.2005), appeal denied, 586 Pa.

735, 891 A.2d 730 (2005).

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

A confession obtained during a custodial

interrogation is admissible where the

to counsel have been explained and the

accused has knowingly and voluntarily

waived those rights. The test for

determining the voluntariness of a

confession and whether an accused

knowingly waived his or her rights looks

to the totality of the circumstances

surrounding the giving of the confession.

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

Commonwealth bears the burden of establishing

whether a defendant knowingly and voluntarily

waived his Miranda Commonwealth v.

Bronshtein, 547 Pa. 460, 464, 691 A.2d 907, 913

(1997) (citation omitted).

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

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We agree with the Commonwealth that while appellant did litigate a

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

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

Commonwealth, that introduced these statements into evidence.

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

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

Id.) Appellant also stated that he

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

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

Id.)

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

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

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

statements were clearly made knowingly and voluntarily for the reasons

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

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

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

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

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

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

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

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

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

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

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

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

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

Commonwealth v. Weston,

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

court determines whether the evidence, viewed in

the light most favorable to the verdict winner, is

sufficient to enable the fact-finder to find every

element of the crime beyond a re

Id.

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

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

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

(a) Offense defined.--

(1) A person is guilty of robbery if, in the

course of committing a theft, he:

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(ii) threatens another with or

intentionally puts him in fear

of immediate serious bodily

injury;

18 Pa.C.S.A. § 3701(a)(1)(ii).

[T]he Commonwealth need not prove a verbal

utterance or threat to sustain a conviction under

subsection 3701(a)(1)(ii). It is sufficient if the

evidence demonstrates aggressive actions that

subsection 3701(a)(1)(ii), the proper focus is on the

nature of the threat posed by an assailant and

whether he reasonably placed a victim in fear of

by the appearance of a firearm is calculated to inflict

victim was in mortal fear when a defendant visibly

brandished a firearm.

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

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

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

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

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

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

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

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

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

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

7/18/12 at 61-62.)

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

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

Id. at 59.) Appellant demanded

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

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

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

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

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

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

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

Leon.

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

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

-25.) Appellant argues that these

photographs were inflammatory in nature and irrelevant since there was

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

at 25.)

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on

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

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

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

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

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

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

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

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

must first determine whether the photograph is inflammatory.

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

photo is not inflammatory, it may be admitted w

Id. However, to admit a

photograph that is inflammatory:

the trial court must decide whether or not the

photographs are of such essential evidentiary value

that their need clearly outweighs the likelihood of

inflaming the minds and passions of the jurors. If an

inflammatory photograph is merely cumulative of

other evidence, it will not be deemed admissible.

Id. (citations omitted).

A criminal homicide trial is, by its very nature,

unpleasant, and the photographic images of the

injuries inflicted are merely consonant with the

brutality of the subject of inquiry. To permit the

disturbing nature of the images of the victim to rule

the question of admissibility would result in exclusion

of all photographs of the homicide victim, and would

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defeat one of the essential functions of a criminal

trial, inquiry into the intent of the actor. There is no

need to so overextend an attempt to sanitize the

evidence of the condition of the body as to deprive

the Commonwealth of opportunities of proof in

support of the onerous burden of proof beyond a

reasonable doubt.

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

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

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

etc.

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

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

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

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

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

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

photograph.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/22/2014

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