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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JONATHAN NUNEZ,
Appellant No. 3141 EDA 2014
Appeal from the Judgment of Sentence August 30, 2013
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004281-2012
BEFORE: SHOGAN, LAZARUS, and STABILE, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MARCH 15, 2016
Jonathan Nunez (“Appellant”) appeals from the judgment of sentence
entered after a jury convicted him of first degree murder for the death of
Kimberly Cardona (“the victim”). We affirm.
The trial court has provided a detailed account of the facts in its
opinion filed pursuant to Pa.R.A.P. 1925(a). Trial Court Rule 1925(a)
Opinion, 12/18/14, at 5–12. Thus, we need only provide a brief summary,
as follows: David Bonaskiewich was walking his dogs on Lanze Road,
Salisbury Township, Lehigh County, Pennsylvania, between 7:00 and 8:00
p.m. on July 5, 2012. One of the dogs stopped and stared intently into a
wooded area along the road. From his position on the side of the road, Mr.
Bonaskiewich observed a human body ten to fifteen feet into the woods. Mr.
Bonaskiewich called his wife, and she contacted the police.
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The police investigation led to identification of the victim and
Appellant’s arrest. Appellant confessed to killing the victim by beating her
and cutting her throat; he also poured bleach on the body. Appellant was
charged with one count of homicide. He filed omnibus pretrial motions,
including a motion to suppress his statements to the police and physical
evidence. The trial court conducted a hearing on March 11, 2013, and it
denied Appellant’s pretrial motions on April 19, 2013. Order and Opinion,
4/19/13.
Appellant’s jury trial began on August 12, 2013, and the jury found
him guilty of first degree murder on August 19, 2013. N.T., 8/12/13, at 2;
N.T., 8/19/13, at 100.1 The trial court sentenced Appellant to life
imprisonment without the possibility of parole. Sentencing Order, 8/30/13.
Appellant filed post-sentence motions on September 9, 2013, which the trial
court denied on December 24, 2013. Order and Opinion, 12/24/13.
Between the filing of Appellant’s post-sentence motions in September
of 2013 and the trial court’s decision thereon in December of 2013,
Appellant filed a supplemental motion raising ineffective assistance of
pretrial counsel. Additionally, trial and post-sentence counsel filed a motion
to withdraw. The trial court held hearings on both motions. N.T., 11/1/13
and N.T., 12/10/13, respectively. Although the trial court permitted counsel
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1
The notes of testimony from Appellant’s trial are incorrectly dated as
September 12, 2013, through September 19, 2013.
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to withdraw as Appellant’s private attorney, it appointed him to represent
Appellant through post-sentence motions and the filing of an appeal. Order,
12/10/13.
On May 19, 2014, Appellant informed the trial court by letter that
counsel had not filed an appeal. In response, the trial court appointed a
public defender to investigate Appellant’s claim and file any appropriate
motions. Order, 5/19/14. The next day, previous counsel acknowledged his
failure to file Appellant’s direct appeal and filed a notice of appeal nunc pro
tunc. Memorandum in Support of Appeal Nunc Pro Tunc, 5/20/14, at ¶ 8;
Notice of Appeal, 5/20/14. The trial court denied counsel’s request for an
appeal nunc pro tunc. Order, 5/22/14.2 The public defender filed a petition
for relief pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§
9541-9546, on May 22, 2014, alleging, inter alia, prior counsel’s
ineffectiveness for failing to file an appeal. PCRA Petition, 5/22/14.
Following a hearing, and without objection from the Commonwealth, the trial
court reinstated Appellant’s appeal rights nunc pro tunc. Order, 6/27/14.
Appellant filed a timely notice of appeal nunc pro tunc on July 1, 2014, and,
along with the trial court, complied with Pa.R.A.P. 1925. Thus, this appeal is
properly before us.
On appeal, Appellant presents the following questions for our review:
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2
We quashed previous counsel’s notice of appeal nunc pro tunc as
untimely. Order, 8/4/14.
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A. Was there sufficient evidence of the specific intent to kill
necessary for murder in the first degree based upon the
evidence of [Appellant’s] intoxication and voluntary drug usage
which mitigated against [Appellant] having the specific intent to
kill?
B. Was the jury’s verdict of murder in the first degree against
the weight of all the evidence as presented regarding the
Appellant’s intoxication and voluntary drug usage, and the facts
of the case showing [Appellant] acted without specific intent to
kill?
C. Did the lower court err in denying [Appellant’s] pre trial
motion to suppress the usage of evidence found as a result of
the search warrants which [Appellant] believes were improperly
obtained or without sufficient probable cause to support the
warrants?
D. Whether the lower court erred in denying [Appellant’s]
motion in limine regarding the entry of tape recording and
testimony from an undercover witness used by the prosecution
to obtain statements from [Appellant] regarding the robbery and
attempted homicide?[3]
Appellant’s Brief at 8–9 (full capitalization omitted).
Where, as here, an appellant raises both a sufficiency issue and a
suppression issue, we address the sufficiency of the evidence supporting the
conviction first, and we do so without a diminished record. Rather:
we are called upon to consider all of the testimony that was
presented to the jury during the trial, without consideration as to
the admissibility of that evidence. The question of sufficiency is
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3
Appellant’s fourth issue, as stated, bears no factual relationship to the
case at hand. However, in the corresponding argument section of his brief,
Appellant argues that the trial court erred in denying his motion in limine to
preclude “various specific Internet searches that occurred on [Appellant’s]
cellular phone. . .” Appellant’s Brief at 23–24. Thus, we shall ignore what
appears to be an editorial lapse.
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not assessed upon a diminished record. Where improperly
admitted evidence has been allowed to be considered by the
jury, its subsequent deletion does not justify a finding of
insufficient evidence. The remedy in such a case is the grant of
a new trial.
Commonwealth v. Sanford, 863 A.2d 428, 432 (Pa. 2004) (quoting
Commonwealth v. Smith, 568 A.2d 600, 603 (Pa. 1989)) (emphasis in
original). Thus, we begin by addressing the sufficiency of the evidence, as
“[t]he Double Jeopardy Clause bars retrial after a defendant’s conviction has
been overturned because of insufficient evidence.” Commonwealth v.
Mullins, 918 A.2d 82, 85 (Pa. 2007) (citations omitted).
Appellant argues that, due to alcohol consumption and drug use, “his
higher cognitive functions would have been impaired and his ability to form
any specific intent to kill the victim would have been compromised.”
Appellant’s Brief at 19. The Commonwealth counters that “the physical
evidence, along with [Appellant’s] attempts to cover up his crime, flight from
the country and subsequent detailed confession to police, clearly
demonstrated he was not so intoxicated such that he lost his ‘faculties and
sensibilities.’” Commonwealth’s Brief at 18.
To obtain a first-degree murder conviction, the Commonwealth must
prove that a human being was unlawfully killed, the defendant perpetrated
the killing, and the defendant acted with malice and a specific intent to kill.
18 Pa.C.S. §§ 2501, 2502(a). When reviewing sufficiency to support a jury’s
verdict of first degree murder:
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this Court determines whether the evidence, viewed in the light
most favorable to the Commonwealth as verdict winner, is
sufficient to enable a reasonable jury to find every element of
the crime beyond a reasonable doubt. See Commonwealth v.
Cousar, 593 Pa. 204, 217, 928 A.2d 1025, 1032 (2007) (citing
Commonwealth v. Crews, 436 Pa. 346, 348, 260 A.2d 771,
771–72 (1970)). In applying this standard, we bear in mind that
the Commonwealth may sustain its burden by means of wholly
circumstantial evidence; that the entire trial record should be
evaluated and all evidence received considered, whether or not
the trial court’s rulings thereon were correct; and that the trier
of fact, while passing upon the credibility of witnesses and the
weight of the proof, is free to believe all, part, or none of the
evidence. See id., 928 A.2d at 1032–33; Commonwealth v.
Chmiel, 585 Pa. 547, 574, 889 A.2d 501, 517 (2005).
Commonwealth v. Reed, 990 A.2d 1158, 1161 (Pa. 2010)
The trial court disposed of Appellant’s sufficiency challenge as follows:
Evidence at trial established that during the course of an
argument with the victim while they were on Lanze Road on July
4, 2012, the Appellant repeatedly struck and kicked the victim,
until, in the Appellant’s own words revealed in his
audio/videotaped confession, he left her struggling for breath on
the side of the roadway and left the scene. Further, his
confession, shown to the jury, established that after leaving
Lanze Road the first time, and treating his own injury sustained
during the altercation, he returned to Lanze Road. There, he
found [the victim] struggling for breath and dragged her beaten
body into the woods approximately 10 to 15 feet. He then
slashed her throat with a kitchen knife. After leaving Lanze
Road the second time, the Appellant disposed of the knife and
his clothing in the nearby Lehigh River. The Appellant then
returned to Lanze Road on July 5, 2012 (a third time), to pour
bleach over [the victim’s] body.
The Commonwealth presented further evidence via the
testimony of Dr. Land to establish the nature and severity of the
bruises and abrasions suffered by [the victim]. In particular, Dr.
Land testified that the trauma to the victim’s face and neck alone
[was] fatal. He also testified that the beating and neck slashing
occurred pre-mortem.
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Additionally, Marvin Benitez testified that while the Appellant
was with him on July 5, 2012, the Appellant asked him if bleach
removed fingerprints. Evidence was also presented that the
Appellant made several inquiries from his text/Internet capable
cellular telephone including, “How long does it take for semen to
die,” “Can people pull fingerprints off a dead bloody body,” “Can
you be IDed or traced by blood,” “Can cops find you just by
blood?” In short, the Commonwealth provided ample evidence
to the Jury to establish that the Appellant had the specific intent
to kill [the victim].
Trial Court Rule 1925(a) Opinion, 12/18/14, at 17–18.
Upon review of the certified record, we find no error in the trial court’s
ruling. The evidence presented at trial, viewed in the light most favorable to
the Commonwealth as verdict winner, was sufficient to enable a reasonable
jury to find, beyond a reasonable doubt, that Appellant killed the victim with
the specific intent to kill her. Appellant admitted to killing the victim. N.T.,
8/16/13, at Commonwealth Exhibit 82. He beat the victim about her head,
face, neck, arms, and chest, and then left her along the road. N.T.,
8/15/13, at 129–131. Hours later, Appellant returned to the victim. She
“was barely moving, gurgling, so he slit her throat and then left.” Id. at
131. The next morning, Appellant returned to the scene and “poured bleach
on the body.” Id. at 132–133. Without hesitation, we conclude that
Appellant’s sufficiency claim lacks merit.
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Appellant next challenges the weight of the evidence supporting his
conviction.4 According to Appellant:
[t]he evidence of his drinking heavily at the party and his
smoking the synthetic marijuana, which alone can impair and
degrade a person’s emotion control, limited his ability to form
any specific intent to kill [the victim]. He acted out of rage and
anger and not the necessary component for Murder of the First
Degree. [Appellant] should have been granted a new trial to
allow justice to be done and a verdict commensurate with the
actual evidence to be rendered.
Appellant’s Brief at 21. In response, the Commonwealth states: “Simply
because the jury did not believe [Appellant’s] arguments does not render the
jury’s verdict in this case unjust. [Appellant] took full advantage of his
opportunity to discredit the Commonwealth’s witnesses and presented his
version of events to the jury.” Commonwealth’s Brief at 21.
As to a weight claim, a trial court employs the following standards:
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. Thus, the trial court is
under no obligation to view the evidence in the light most
favorable to the verdict winner. An allegation that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. A trial judge
must do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he were
a juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth
juror. Rather, the role of the trial judge is to determine that
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4
Appellant preserved this issue by requesting a new trial pursuant to
Pa.R.Crim.P. 607(A)(3). Post-sentence Motions, 9/9/13, at 2.
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notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice.
Commonwealth v. Widmer, 744 A.2d 745, 751–752 (Pa. 2000) (citations,
footnote, and internal quotation marks omitted). However:
[a]n appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of
review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the
evidence. . . .
Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
added).
This does not mean that the exercise of discretion by the
trial court in granting or denying a motion for a new trial based
on a challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable
or where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
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Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v.
S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
[11]85 (1993)).
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (some internal
citations omitted). “Thus, the trial court’s denial of a motion for a new trial
based on a weight of the evidence claim is the least assailable of its rulings.”
Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).
In denying Appellant’s motion for a new trial, the trial court addressed
Appellant’s weight claim as follows:
[Appellant] alleges that the Jury’s determination that he
acted with a specific intent to kill was in error because, at Trial,
he presented evidence that he was intoxicated at the time of the
murder. The Commonwealth, in its Brief, acknowledges that
First Degree Murder may be mitigated to Third Degree Murder
when the defendant establishes that he could not form the
specific intent to kill due to a diminished capacity. However, the
Commonwealth argues that pursuant to Commonwealth v.
Padilla, [Appellant] must establish that “he was overwhelmed to
the point of losing his faculties and sensibilities.” 2013 WL
5848693 (Pa. 2013). “The value of such evidence is generally
for the finder of fact, who is free to believe or disbelieve any, all,
or none of the testimony addressing intoxication.”
[Commonwealth v.] Blakely[, 946 A.2d 645, 653 (Pa. 2008)]
(citation omitted).
In the instant case, the Jury heard testimony from Kaitlyn
Schuster, [Appellant’s] best friend, that she was with [Appellant]
at a party at Marvin Benitez’s home on July 4, 2012. While
there, she saw [Appellant] consume alcoholic beverages and that
she believed that [Appellant] was intoxicated. She stated that
[Appellant] appeared clumsy and was slurring his words. Marvin
Benitez testified that [Appellant] had consumed alcohol at his
home and appeared intoxicated when he left the party at
approximately 7 p.m. on July 4, 2012. Elizabeth Pelligrino,
[Appellant’s] then-girlfriend, testified that she had been with
[Appellant] earlier in the day on July 4, 2012 and that she was
aware that [Appellant] had been drinking on that evening, at the
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party at Mr. Benitez’s home. Further, she testified that
[Appellant] used K2 (synthetic marijuana) on a regular basis and
that he smoked K2 after his trip [to] the emergency room. Ms.
Pelligrino testified that on the evening of July 4, 2012,
[Appellant] appeared “tipsy” but that he was still “put together.”
The Jury also heard testimony from Nancy Schneck, the
treating nurse at Lehigh Valley Hospital Emergency Department
who treated [Appellant] in the late evening of July 4, 2012.
During her interview of [Appellant] at the hospital, he denied
both alcohol and illicit drug use. In her opinion, [Appellant]
appeared healthy, well-fed, alert and oriented. He did not fall,
stagger, vomit, fall asleep, or require any assistance in his
movement. When Ms. Schneck performed her fall risk
assessment, [Appellant] appeared to have no risk of falling.
Based on the above testimony, the Jury was given a voluntary
intoxication jury instruction, explaining that First Degree Murder
could be reduced to Third Degree Murder should the Jury believe
that [Appellant] was sufficiently intoxicated. Based on the
verdict rendered, it is clear that the jury rejected the evidence
tending to show that [Appellant] may have been intoxicated on
July 4, 2012, which was their prerogative as fact-finder.
Trial Court Post-sentence Motions Opinion, 12/24/13, at 13–14; Trial Court
Rule 1925(a) Opinion, 12/18/14, at 15–17.
Upon review, we discern no abuse of the trial court’s discretion in
denying Appellant’s challenge to the weight of the evidence. The trial court’s
summation of the trial evidence is supported by the record. Moreover, the
jury, sitting as the finder of fact, was free to believe all, part, or none of the
evidence against Appellant, as was its right. Diggs, 949 A.2d at 879. The
jury weighed the evidence, credited the Commonwealth’s case, and
concluded that Appellant intentionally murdered the victim. This
determination is not so contrary to the evidence as to shock one’s sense of
justice. We decline Appellant’s invitation to assume the role of fact finder
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and to reweigh the evidence. Accordingly, we conclude that Appellant is not
entitled to relief on his weight claim.
In his third issue, Appellant challenges the denial of his motion to
suppress evidence obtained by the police from his residence, his vehicle, his
person, and his July 4, 2012 medical records. Appellant’s Brief at 21. The
standard of review we apply in addressing a trial court’s denial of a
suppression motion is limited to determining:
whether the record supports the trial court’s factual findings and
whether the legal conclusions drawn therefrom are free from
error. Our scope of review is limited; we may consider only the
evidence of the prosecution and so much of the evidence for the
defense as remains uncontradicted when read in the context of
the record as a whole. Where the record supports the findings of
the suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal conclusions
based upon the facts. Commonwealth v. Cruz, 71 A.3d 998,
1002–03 (Pa.Super.2013).
Commonwealth v. Eichler, ___ A.3d ___, 2016 PA Super 21, at *1 (Pa.
Super. filed Feb. 2, 2016).5
According to Appellant, the police officers lacked “sufficient probable
cause to support the issuance of the warrants.” Appellant’s Brief at 21. “In
order to obtain a valid search warrant, the affiant must establish probable
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5
“We recognize that our Supreme Court held in In Re L.J., 79 A.3d 1073
(Pa.2013), that appellate review is limited to the suppression record in the
absence of exceptional circumstances. L.J., however, does not apply to the
present case, because litigation in this case commenced before the Supreme
Court issued its decision in L.J. Pre-L.J. decisions authorize us to include the
trial record in our review.” Eichler, 2016 PA Super 21, at *1.
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cause to believe that execution of the warrant will lead to the recovery of
contraband or evidence of a crime.” Commonwealth v. Janda, 14 A.3d
147, 157 (Pa. Super. 2011). We review the issuing authority’s decision in
light of the totality of the circumstances:
Pursuant to the “totality of the circumstances” test set forth by
the United States Supreme Court in Illinois v. Gates, 462 U.S.
213 (1983), the task of an issuing authority is simply to make a
practical, commonsense decision whether, given all of the
circumstances set forth in the affidavit before him, including the
veracity and basis of knowledge of persons supplying hearsay
information, there is a fair probability that contraband or
evidence of a crime will be found in a particular place.... It is the
duty of a court reviewing an issuing authority’s probable cause
determination to ensure that the magistrate had a substantial
basis for concluding that probable cause existed. In so doing,
the reviewing court must accord deference to the issuing
authority’s probable cause determination, and must view the
information offered to establish probable cause in a
commonsense, non-technical manner.
Commonwealth v. Caple, 121 A.3d 511, 520 (Pa. Super. 2015) (quoting
Janda, 14 A.3d at 157–158).
In disposing of Appellant’s suppression challenge, the trial court first
summarized the common facts set forth in the affidavits of probable cause
for the various search warrants, as follows:
Specifically, the affidavit(s) related that members of the
Salisbury Township Police Department were called to the 2700
block of Lanze Road on July 5, 2012 at approximately 8:33 p.m.
There, they found a badly beaten body of a young female
approximately 15 feet from the roadway. The victim was later
identified as Kimberly Cardona. Police observed numerous
injuries to the body and detected a very strong odor of bleach
coming from the body. They also observed discoloration of the
victim’s clothing. A gray box cutter and the victim’s cellular
telephone were found at the scene.
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The body was examined by Lehigh County Coroner Scott
Grimm, who pronounced the victim dead and ruled the death a
homicide.
An autopsy was performed on the body on July 6, 2012 by
Dr. Samuel Land. Dr. Land determined the cause of death to be
blunt force trauma to the head and neck and sharp force trauma
to the neck. He ruled the manner of death homicide.
Additionally, Dr. Land determined that the wounds present on
the victim’s hands and arms could be characterized as defensive
wounds.
On July 7, 2012, an individual identified in the search
warrant as E.P. (whose real identity was known to police)9 spoke
with police. E.P. told police that [Appellant] had contacted
him/her by cellular telephone on July 4, 2012 at approximately
11:30pm for a ride to the hospital, telling E.P, that he had cut
his hand. E.P. provided [Appellant] a ride from his home at 253
East Fairview Street, Allentown, PA to Lehigh Valley Health
Network, located at 17th and Chew Streets, Allentown, PA. E.P.
also noticed additional cuts and abrasions on [Appellant’s] body.
E.P. further told police that [Appellant] had seemed paranoid in
the early morning hours of July 5, 2012, and that he told E.P.
that he was cleaning/washing his car that morning. On July 6,
2012, [Appellant] informed E.P. that he had had a sexual
encounter with the victim on July 3, 2012.
E.P. further told the police that [Appellant] utilizes a
cellular telephone and drives a white Honda Accord. E.P.
informed the police that [Appellant] keeps an older, gray box
cutter inside of his vehicle. E.P. provided [Appellant] cellular
telephone number to the police.
Police examined the victim’s cellular telephone records and
learned that 23 calls had been made from [Appellant’s] cellular
telephone to the victim’s cellular telephone on July 4, 2012, with
the last call occurring at approximately 7:16 p.m.
On July 6, 2012, police interviewed J.F. (whose real
identity is known to police). J.F. stated that he/she was
operating his/her car on Lanze Road on July 5, 2012 at
approximately 1:30 p.m. when he/she observed a white vehicle
in the driveway of 2710 Lanze Road, with one occupant. At a
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lineup on July 7, 2012, J.F. immediately identified [Appellant] as
that occupant.
Pennsylvania records indicate that [Appellant’s] mother,
Evelyn Nunez, is the registered owner of a white Honda Accord.
On July 9, 2012, police interviewed M.B. (whose real
identity is known to police) who stated that he was at a party
with [Appellant] on July 4, 2012 when he observed [Appellant]
communicating with E.P. and the victim via cellular telephone. At
approximately 10 p.m., [Appellant] became angry, told M.B. that
he ([Appellant]) was going to see the victim and left the party.
On July 5, 2012, [Appellant] communicated with his
employer that he had cut his hand and would not be reporting to
work.
The authorities were unable to locate [Appellant] as of July
6, 2012.
Trial Court Pretrial Motions Opinion, 4/19/13, at 9–12. The trial court then
explained its denial of suppression of the evidence recovered through
execution of the search warrants:
Based on the facts highlighted above in the affidavit, the
Honorable Robert L. Steinberg issued a search warrant for
[Appellant’s] residence at 253 East Fairview Street, Allentown,
PA on July 11, 2012. As a result of the search warrant, police
seized bed sheets, towels and shirts containing what appeared to
be blood, a bottle of partially empty Clorox bleach with what
appeared to be blood on the exterior of the bottle, and various
electronic items. This information was included in the affidavit
for the search warrant issued on July 12, 2012 for [Appellant’s]
medical records from Lehigh Valley Health Network. That search
warrant was also issued by the Honorable Robert L. Steinberg.
Additionally, the items found in [Appellant’s] home were
included in the affidavit attached to the search warrant issued on
July 16, 2012 for the 1998 Honda Accord, owned and registered
to [Appellant’s] mother, Evelyn Nunez. Also within that affidavit
were additional facts. Specifically, police indicated that they had
been contacted by members of the New York City Police
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Department that the 1998 white Honda Accord in question had
been recovered in the Bronx, NY and had obtained written
voluntary consent from Ms. Nunez (with the consent of her
attorney) to search the car on July 13, 2012. On July 15, 2012,
Detective Salgado retrieved the car from an impound lot in the
Bronx, NY and took the vehicle to the secure garage at the
Salisbury Township Police Department. Again, the Honorable
Robert L. Steinberg issued the warrant.
On August 1, 2012, police sought an additional search
warrant to obtain a sample of [Appellant’s] DNA and to
photograph any and all injuries on [Appellant’s] body. Included
in that affidavit was the information above, as well as the results
of the July 17, 2012 search of the 1998 Honda Accord. During
that search, police found blood inside the vehicle on both the
driver and passenger side[s] of the car and samples of the blood
were taken.
After careful review of the information included in the
affidavits of probable case attached to each search warrant, and
using a “totality of the circumstances” test, it is clear that each
affidavit contains sufficient facts and inferences derived from
those facts to establish probable cause for the issuance of the
warrants for [Appellant’s] residence, medical records, vehicle,
and his person. The police have established that the crime of
homicide has been committed and that [Appellant] is most likely
the one who committed the crime. They have also provided
sufficient facts that the issuing authority (in this case, Common
Pleas Judge Robert L. Steinberg) could determine that the
contraband to be seized was in the specified place which was the
subject of the warrants. Therefore, the evidence seized as a
result of the search warrants shall not be suppressed.
Id. at 12–14.
Our review of the certified record reveals testimonial support for the
trial court’s factual summary and the existence of the challenged affidavits of
probable cause. See N.T. Suppression, 3/11/13, at 19, 25, 31, 62, 79–80
(marking of Commonwealth’s Exhibits C-3, C-4, C-6, and C-10 (affidavits of
probable cause)). However, the certified record does not contain the actual
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affidavits of probable cause. We reiterate that an appellant bears
responsibility to ensure that this Court has the complete record necessary to
properly review a claim. Commonwealth v. Whitaker, 878 A.2d 914 (Pa.
Super. 2005). The record clearly indicates that affidavits of probable cause
were prepared and that search warrants were issued and executed. N.T.,
Suppression, 3/11/13, at 19, 25, 31, 62, 79–80; N.T. Trial, 8/13/14, at 102,
122, 146–148, 156. Because the affidavits are necessary to a review of
Appellant’s contention that the search warrants were not supported by
probable cause, we are unable to entertain this issue on appeal.
Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa. Super. 2006).6
Lastly, Appellant asserts that the trial court erred in denying his
motion in limine to preclude admission of “Internet searches that occurred
on [Appellant’s] cellular phone. . .” Appellant’s Brief at 23–24. According to
Appellant, “each of the pieces of evidence that were raised by the
Commonwealth, and which the [trial c]ourt allowed to be entered, [was] so
tenuous in [its] connecting [Appellant] to the actual homicide as to be highly
prejudicial and without reasonable probative value.” Id. at 24.
____________________________________________
6
Assuming that the trial court’s factual summary of the affidavits is
accurate, even if the affidavits were included in the record before us, we
would conclude that Appellant’s argument that the search warrants lacked
probable cause does not entitle him to relief. In doing so, we would rely on
the trial court’s well-reasoned analysis and conclusion. Trial Court Pretrial
Motions Opinion, 4/19/13, at 9–14.
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The well-settled standard of review we apply when reviewing a trial
court’s ruling on a motion in limine is as follows:
When reviewing the denial of a motion in limine, this Court
applies an evidentiary abuse of discretion standard of review. It
is well-established that the admissibility of evidence is within the
discretion of the trial court, and such rulings will not form the
basis for appellate relief absent an abuse of discretion. Thus, the
Superior Court may reverse an evidentiary ruling only upon a
showing that the trial court abused that discretion. A
determination that a trial court abused its discretion in making
an evidentiary ruling may not be made merely because an
appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous. Further, discretion is abused when the law is
either overridden or misapplied.
Commonwealth v. Hoover, 107 A.3d 723, 729 (Pa. 2014) (internal
citations, ellipsis, and quotation marks omitted).
The trial court addressed Appellant’s challenge, as follows:
The Appellant’s Motion In Limine sought to preclude the
Commonwealth from introducing specific Internet searches
performed and/or responses given on the Appellant’s cellular
telephone on July 5, 2012 which were discovered as a result of
the execution of a subpoena for the Appellant’s cellular
telephone records. The inquiries10 were:
10
The inquiries and responses are reproduced here
verbatim.
a) 7/5/2012 11:43:55 – “How long does it take for seamen to
die”
b) 7/5/2012 11:51:55 – “Given the most ideal conditions sperm
may be able to survive between six and seven days in the
uterus”
c) 7/5/2012 11:53:48 – “Can people pull finger prints off a
dead bloody body”
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d) 7/5/2012 11:54:03 – “Fingerprints occur when the natural
secretions of the skin are deposited on a surface through
fingertip contact”
e) 7/5/2012 21:06:11 – “Can u be id or traced by blood?”
f) 7/5/2012 21:06:32 – “Yes; THC is detectable in the blood for
2-3 days after infrequent use, or up to 2 weeks in the blood
of a frequent user”
g) 7/5/2012 21:07:44 – “can cops find you just by blood??”
h) 7/5/2012 21:08:02 – “80ish% of people with herpes do not
know why then even have it. There is a specific blood test to
find out, but the health departments don’t do this”
A Motion in Limine Hearing was held immediately before the
trial began on August 13, 2013. At that time, counsel for the
Appellant argued that the evidence highlighted above was
merely cumulative and inflammatory. The Commonwealth
argued that the texts and searches were part of [the] timeline of
the crime and demonstrated that Appellant’s state of mind at the
time he performed those searches and/or received the
responses. Based on the totality of the circumstances, the
[c]ourt permitted the Commonwealth to utilize the evidence at
trial.11
11
The Commonwealth introduced this evidence
through Avram Polensky, the Custodian of Records
for Verizon Wireless, during its case-in-chief. [N.T.,
8/14/13, at 258–281]
* * *
The [c]ourt does not believe that permitting the
Commonwealth to utilize the evidence constituted an abuse of
discretion. The Court agreed with the Commonwealth that the
Internet searches performed on the cellular telephone of the
Appellant were probative of his state of mind in the hours
surrounding the disappearance and ultimate discovery of the
victim. Further, the time-stamp indicated on the records
provided a timeline of the incident and [was] not “merely
cumulative” as suggested by counsel for the Appellant. Based
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on the totality of the circumstances, the [c]ourt did not err in
allowing the Commonwealth to utilize the cellular telephone
search evidence at trial.
Trial Court Rule 1925(a) Opinion, 12/18/14, at 31–32; N.T., 8/14/13, at
262–275 and Commonwealth’s Exhibit 72.
Upon review, we agree with the trial court that the cellular evidence
provided a timeline of events after the initial assault of the victim and before
discovery of the victim’s body. Additionally, when viewed in the context of
Appellant’s conduct toward the victim, the cellular evidence was not
tenuous; it provided insight as to Appellant’s state of mind in the hours
following his initial attack on the victim. The jury could reasonably infer
from the content of the cellular evidence that Appellant was concerned about
inculpatory evidence being recovered from the victim, i.e., semen, blood,
fingerprints. Nor was the cellular evidence merely cumulative; it provided
the jury with a temporal and physical nexus between the condition of the
victim’s body and Appellant’s intention and attempt to conceal or destroy
evidence of his involvement in the victim’s death. We discern no manifest
unreasonableness, partiality, prejudice, bias, or ill-will, overriding or
misapplication of the law, or such lack of support for the trial court’s ruling
so as to be clearly erroneous. Hoover, 107 A.3d at 729. Thus, we conclude
that the trial court did not abuse its discretion in denying Appellant’s motion
in limine.
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Appellant’s issues warrant no relief. Accordingly, we affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/15/2016
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