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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37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
J. S33008/14

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.

-2-
J. S33008/14

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

-3-
J. S33008/14

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

-4-
J. S33008/14

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

-5-
J. S33008/14

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

-6-
J. S33008/14

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]

-7-
J. S33008/14

[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

-8-
J. S33008/14

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

-9-
J. S33008/14

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]?

-9.

- 10 -
J. S33008/14

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

- 11 -
J. S33008/14

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

- 12 -
J. S33008/14

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.

- 13 -
J. S33008/14

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

- 14 -
J. S33008/14

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.

- 15 -
J. S33008/14

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

- 16 -
J. S33008/14

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).

- 17 -
J. S33008/14

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).

- 18 -
J. S33008/14

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,

- 19 -
J. S33008/14

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:

- 20 -
J. S33008/14

(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,

- 21 -
J. S33008/14

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.)

- 22 -
J. S33008/14

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

- 23 -
J. S33008/14

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

- 24 -