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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 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

her children to the Appellant’s mother’s house, about 

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

children at that location, while taking the Appellant’s 

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 

unknown male, the Appellant took Ms. Lopez’s silver 

car to 420 West Oak Street, Allentown, Lehigh 

County, Pennsylvania, the home of Ms. Lopez’s 

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. JimenezGonzalez 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 was wearing, and said, “What’s your 

problem?” to Mr. Jimenez-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. 

The [Appellant]’s version of the events, as he 

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-Gonzalez “to back off” but 

that he did not. He then testified that Mr. JimenezGonzalez 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

and immediately fled the scene because he “just 

wanted to get away.”

 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. Hernandez was alright. Mr. Hernandez’s vehicle 

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 that he couldn’t give him the keys. 

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 

dark clothing exiting the Cadillac’s driver’s side door. 

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

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

observed a gun at the man’s waist. The keys were 

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 

individual with the gun got into the driver’s seat and 

pointed the gun at Ms. Arce’s head. He asked her, 

“Do you know how to drive this piece of shit?” 

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. Henn glanced behind her but didn’t 

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 

his son’s black Audi and parked the vehicle in front 

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

went inside the Wawa, leaving Mr. Shook in the 

passenger seat, with the car’s engine still on. 

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. Shook’s side and said, “Get out.” Mr. Shook 

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 

the left side of Mr. Shook’s rib cage, went 

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. JimenezGonzalez. 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. Hernandez’s car and from other sources at the 

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 

Department went to the Appellant’s home at 

3 Maryland Circle, Apartment #3, Whitehall, and 

searched the apartment. As a result, Detective Cruz 

found a .45 caliber shell casing outside of the 

Appellant’s apartment building, next to the main 

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 

apartment’s living 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. Fetter’s son as belonging 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 

from the victim’s body were discharged from the 

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 a consecutive sentence of 3 to 6 years’ incarceration. 
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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. 

Appellant has raised the following issues for this court’s review:

A. Whether the lower court acted properly in 

denying [appellant]’s request 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 

[appellant]’s request for 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 

Commonwealth’s case in chief?

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]? 

Appellant’s brief at 8-9.
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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 

the trial court’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 

demonstrate a defendant’s criminal tendencies. 

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, 729 A.2d 529, 537 (Pa. 1999) (internal citations omitted). “The 

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 crimes were committed.” 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-Gonzalez. After the accident with Hernandez, appellant’s car was 

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, 

where the defendant’s escape from prison and subsequent crimes were part 

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

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

899 (“Furthermore, because the charges all flowed from the same events 
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and were part of the same story, joinder for trial was appropriate.”), citing

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 

and would all be admissible in separate trials for each other. Appellant’s 

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, 964 A.2d 1 (Pa. 2009) (“When a person knows that he is 

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

himself, such conduct is admissible as evidence of consciousness of guilt.”) 

(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 denying appellant’s 

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). 

Moreover, “unreasonable belief voluntary 

manslaughter,” sometimes loosely referred to as 

“imperfect self-defense,” 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: 

where a defendant held “an unreasonable rather 

than a reasonable belief that deadly force was 

required to save [his or her] life,” and “all other 

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

have been met.” Id. Generally, the use of deadly 

force is not justifiable “unless the actor believes that 

such force is necessary to protect himself against 

death, serious bodily injury, kidnapping or sexual 

intercourse compelled by force or threat[]” 

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

no burden to prove a claim of self-defense before 

such a defense is properly in issue, “there must be 

some evidence, from whatever source, to justify 

such a finding.” 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-Gonzalez to “back off” but he 

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.) 

As the trial court observes, even accepting appellant’s testimony that 

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’s brief at 22.) 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: 

An appellate court’s standard of review in 

addressing a challenge to a trial court’s 

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 

he was so enraged by Elba Lopez’s perceived infidelity that he was in a 

“state of frenzy” when he encountered the victim, Jimenez-Gonzalez. (Id.

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

where it was not the victim, Jimenez-Gonzalez, who caused appellant’s 

anger. (Appellant’s brief at 19.) Under Section 2503(a)(1), a person is 

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. Here, appellant’s rage was not directed at the 

victim but, rather, Elba Lopez. In fact, appellant testified that, “I didn’t go 

there to fight [the victim].” (Trial court opinion, 5/21/13 at 20.) 

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 

accused’s right to remain silent and right 

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 

A.2d 1181, 1189 (1996) (citations omitted). “The 

Commonwealth bears the burden of establishing 

whether a defendant knowingly and voluntarily 

waived his Miranda rights.” 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. 

(Commonwealth’s brief at 28.) The Commonwealth declined to call 

Detective Cruz and introduce appellant’s statements into evidence because 

“the statement doesn’t really advance the cause of my case.” (Notes of 

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 

asked about Elba Lopez’s condition. (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 

using cocaine and “blacked out.” (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 

discussed in the trial court’s January 20, 2012 opinion denying appellant’s 

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 

Pedro Leon (“Leon”). According to appellant, while he had the firearm 

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

brandished the firearm or directly threatened Leon. (Appellant’s brief at 23.) 

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

“A claim challenging the sufficiency of the evidence is

a question of law.” Commonwealth v. Weston, 

561 Pa. 199, 749 A.2d 458 (2000). “For questions 

of law, our scope of review is plenary.” 

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

618 (2007). “In reviewing a sufficiency challenge, a 

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 reasonable doubt.” 

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 

threatened the victim’s safety. For the purposes of 

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 

“immediate serious bodily injury.” The threat posed 

by the appearance of a firearm is calculated to inflict 

fear of deadly injury, not merely fear of “serious 

bodily injury.” A factfinder is entitled to infer that a 

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 omitted). “The fact that 

the threat may not have produced the intended fear is irrelevant.” 

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.) 

As they walked back to Leon’s Cadillac, appellant emerged from the driver’s 

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 

into his waistband. Appellant’s actions were threatening. Appellant did not 

have permission to be inside Leon’s car. (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 

autopsy table. (Appellant’s brief at 24-25.) 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.) 

“The admission of photographs depicting a homicide victim or other 

aspects of the crime scene fall within the trial court’s sound discretion and 
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only an abuse of that discretion will constitute reversible error.” 

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 where “it has relevance and 

can assist the jury’s understanding of the facts.” 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. 

The remaining photographs are of the crime scene, appellant’s vehicle, the 

victim’s home, Mr. Fetter’s vehicle, bullet fragments, etc. Commonwealth’s 

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