J-A08041-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ERWIN DEPAZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1333 EDA 2023

Appeal from the Judgment of Sentence Entered April 4, 2023

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0005427-2021

BEFORE: BOWES, J., OLSON, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JULY 8, 2024

Erwin DePaz appeals from the judgment of sentence entered following 

his non-jury trial convictions for voluntary manslaughter – unreasonable belief

and possession of an instrument of crime (PIC).1 DePaz challenges the 

sufficiency of the evidence and discretionary aspects of his sentence. We 

affirm. 

The Commonwealth charged DePaz with numerous crimes including 

murder following an altercation with Christoper Reyes (“victim”). Evidence of 

the following was presented at trial.

On February 14, 2021, DePaz arrived at the home of Julian Lopez

(“Lopez”) for a social gathering. Oscar Reyes (“Reyes”), Gabriel Luna (“Luna”), 

and the victim were also in attendance. Reyes and DePaz had known each 

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1 18 Pa.C.S.A. §§ 2503(b) and 907(a), respectively. 
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other since elementary school. See N.T., Trial, 1/6/23, at 26. The attendees

drank beer and tequila throughout the party, from 6:00 p.m. to 3:00 a.m. 

See id. at 25, 27, 44. 

During the gathering, the victim and DePaz began to argue in the living 

room. See id. at 30, 35. The victim hit DePaz on the head with a Corona beer 

bottle, causing a half-inch cut above his eyebrow. See id. at 31, 35, 138, 144. 

DePaz left the living room, went through the dining room and walked into the 

kitchen, where he grabbed a knife. See id. at 30, 31, 37. Reyes, who was 

present during the argument, stood between them and asked them “not to 

fight” when he saw DePaz leave the kitchen with the knife. Id. at 31, 50.

Reyes also testified that DePaz was quick in the kitchen, “in and out.” Id. at 

56. After exiting the kitchen, DePaz went back to the living room where he 

told Reyes to “stay out of the way” and then stabbed the victim. Id. at 16, 

31, 33, 37; Commonwealth Ex. 39C (photograph of the living room). DePaz

ran out the front door past Lopez, who was outside smoking a cigarette. See 

id. at 34, 73-74. Lopez called the police, but the victim died before they 

arrived. See id. at 10-11, 74.

DePaz testified in his defense. He said that after being hit with the bottle, 

he went to the kitchen “looking for a door to leave and go to my house, but 

the door was closed.” Id. at 138. When he could not find an exit from the 

kitchen, DePaz “looked for something to defend [himself], and [he] found a 

knife.” Id. DePaz testified that when he went back into the living room, the 

victim said, “I’m going to kill you,” grabbed a bottle a second time, and then 
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tried to hit him. Id. At that moment, DePaz stabbed the victim and ran out 

the front door. See id. at 138, 141. DePaz also testified that Reyes was not 

standing between the victim and himself and “stepped to the side instead of 

preventing [the victim] to come towards me with a bottle.” Id. at 145, 146. 

He also testified that Lopez was not outside during the altercation. Id. at 148-

149. 

The Commonwealth read in the summary of DePaz’s statement to 

police: 

DePaz stated, in summary, that he was invited down the 

street to a friend’s house. While inside the house, the males 

in the house attempted to get DePaz to snort cocaine, which 

he refused. DePaz stated the males threatened his family, 

including his children. DePaz stated that during the incident, 

the decedent had two beer bottles in his hands. DePaz

stated he was hit above the left eye. DePaz showed a small 

laceration above his left eye to detectives. DePaz stated that 

he went to the kitchen and grabbed a knife off the counter 

because the males were threatening his family. That is when 

the males approached DePaz and he ended up stabbing the 

decedent. DePaz stated that he fled the property and later 

turned himself in to police. DePaz stated the knife he had in 

his possession was the knife he used to stab the victim. 

DePaz stated that he stabbed the victim one time in the left 

side of the abdomen.

Id. at 155. 

The trial court found DePaz guilty of the above-referenced offenses. At 

sentencing, the court stated that it had reviewed the Presentence 

Investigation (“PSI”) report. N.T., Sentencing, 4/4/23, at 3. The report 

indicated that DePaz did not have a prior record score, had “a hard life in 

Guatemala,” and had a violent alcoholic father. Id. at 5. The Commonwealth 
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presented testimony from the victim’s wife, as well as from Reyes and Lopez. 

The victim’s wife testified about the impact of the victim’s death on their 

children. Reyes stated that he had known DePaz for “quite a while” and knew 

him to be a good person. Id. at 20. Lopez told the court that he felt bad for 

DePaz “because I considered him a friend” and asked the court for a “just” 

sentence. Id. at 21. 

The court heard testimony from DePaz’s brother, wife, and a doctor who 

interacted with DePaz during his time in prison after his arrest. Each witness 

asked the court for leniency for DePaz. The court also heard from DePaz, who 

expressed regret and explained, “it would have been different if the person 

that died hadn’t attacked me. And, honestly, I defended myself.” Id. at 22, 

23-24.

The court sentenced DePaz to six to 12 years’ incarceration for voluntary 

manslaughter, followed by two and one half to five years’ incarceration for 

PIC. DePaz filed a post-sentence motion arguing that the court had imposed 

an excessive sentence and had disregarded the Sentencing Guidelines 

because the sentence for PIC was the maximum and consecutive to the 

manslaughter sentence. See Post-Sentence Motion, filed 4/13/23, at ¶ 6. The 

court denied the motion, and this timely appeal followed.

DePaz raises two issues:

I. The evidence was insufficient to find [DePaz] guilty 

beyond a reasonable doubt of Voluntary 

Manslaughter, Unreasonable Belief (F1) and PIC (M1) 

when the evidence through testimony from 

Commonwealth witnesses and through his own 
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testimony established [DePaz] reasonably believed he 

was in imminent danger of death or serious bodily 

injury when he was surrounded by the decedent’s 

friends and family, leading the decedent to attack 

[DePaz] and hit him in his head with a glass bottle; 

[DePaz] felt it was necessary to use deadly force 

against the decedent to prevent such harm, and was 

not the aggressor and free from fault in provoking 

attack which culminated in the slaying; he also did not 

violate any duty to retreat as he went into the kitchen 

to leave the premise[s] however there was no way out 

other than the front door, credible evidence the 

Commonwealth did not disprove beyond a reasonable 

doubt.

II. The trial [c]ourt abused its discretion by sentencing 

[DePaz] to a maximum sentence of 2 1⁄2 to five years 

on the PIC (M1) charge to run consecutive to the six 

to twelve years sentence for Involuntary 

Manslaughter (F1) as the [c]ourt did not take into 

consideration, [DePaz’s] lack of violent history, his 

mitigating factors such as his difficult childhood, and 

his rehabilitation post incident where he spent 22 

months in custody, and very favorable mitigating 

testimony from the decedent’s father-in-law and 

Uncle who were Commonwealth witnesses at trial. The 

sentence failed to follow the dictates of 42 Pa.C.S.A. 

§ 9721(b) requiring the court to at least consider the 

circumstances of the offense and the character of the 

defendant, acknowledged the sentencing guidelines 

as a perfunctory exercise and focused exclusively on 

the victim and crime.

DePaz’s Br. at 7. 

DePaz claims that the Commonwealth presented insufficient evidence to 

disprove his claim of self-defense. He maintains that he reasonably believed 

he needed to stab the victim to protect himself. He also claims it is undisputed 

that the victim was the aggressor. He stresses his testimony that he tried to 

leave the home, but the only exit was through the front door. He further 
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argues that “[t]he force used was not more than necessary as he only stabbed 

the decedent once[.]” Id. at 16. 

A sufficiency claim raises a question of law. “When reviewing a challenge 

to the sufficiency of the evidence, we must determine whether the evidence 

admitted at trial, and all reasonable inferences drawn therefrom, when viewed 

in a light most favorable to the Commonwealth as verdict winner, support the 

conviction beyond a reasonable doubt.” Commonwealth v. Clemens, 242 

A.3d 659, 664 (Pa.Super. 2020) (internal quotation marks and citation 

omitted). “In conducting this analysis, we do not weigh the evidence and 

substitute our judgment for that of the fact-finder.” Id. at 665 (citation 

omitted). The fact finder is free to believe all, part, or none of the evidence 

presented. See Commonwealth v. Snyder, 870 A.2d 336, 350 (Pa.Super. 

2005). The Commonwealth may meet its burden through wholly 

circumstantial evidence and “need not preclude every possibility of 

innocence.” Id. (citation omitted).

The Commonwealth presents sufficient evidence of voluntary 

manslaughter – unjustifiable belief where it establishes that the defendant 

“intentionally or knowingly kills an individual” and “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). “The affirmative defense of selfdefense, if accepted, results in an acquittal because it constitutes a 
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justification for the conduct charged.” Commonwealth v. Mouzon, 53 A.3d 

738, 744 n.5 (Pa. 2012) (citation omitted).

When deadly force is used, a self-defense claim arises where there is 

evidence that:

1) the defendant reasonably believed that he was in 

imminent danger of death or serious bodily injury and that 

it was necessary to use deadly [force] to prevent such harm; 

2) the defendant did not provoke the threat that resulted in 

the slaying; and

3) the defendant did not violate a duty to retreat.

Commonwealth v. Green, 273 A.3d 1080, 1084 (Pa.Super. 2022), appeal 

denied, 289 A.3d 522 (Pa. 2022) (citation omitted) (alteration in original); 

see also 18 Pa.C.S.A. § 505 (“Use of force in self-protection”). “[T]he use of 

deadly force itself ‘cannot be viewed in isolation with [the victim] as the sole 

physical aggressor and [the defendant] acting in responsive self-defense.’” 

Commonwealth v. Smith, 97 A.3d 782, 787–88 (Pa.Super. 2014) (quoting 

Mouzon, 53 A.3d at 751) (alteration in original). Rather, the defendant must 

be blameless “in provoking or escalating the altercation that led to the offense, 

before the defendant can be excused from using deadly force.” Id. at 788

(emphasis removed). 

Once there is evidence from any source that would support a finding of 

self-defense, “the burden is on the Commonwealth to disprove the selfdefense claim beyond a reasonable doubt by proving that at least one of [the]

three elements [of self-defense] is absent.” Commonwealth v. Jones, 271 
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A.3d 452, 458 (Pa.Super. 2021); see also Commonwealth v. Brockington, 

230 A.3d 1209, 1213-14 (Pa.Super. 2020) (stating “[a] defendant does not 

have the burden to prove a claim of self-defense” but instead may introduce 

evidence “to justify a finding of self-defense”). “The Commonwealth sustains 

its burden [of disproving self-defense] if it proves any of the following: that 

the slayer was not free from fault in provoking or continuing the difficulty 

which resulted in the slaying; that the slayer did not reasonably believe that 

[he] was in imminent danger of death or great bodily harm, and that it was 

necessary to kill in order to save [him]self therefrom; or that the slayer 

violated a duty to retreat or avoid the danger.” Commonwealth v. 

Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012) (citation omitted) (alterations in 

original).

DePaz’s claim is meritless. Viewing the evidence in the light most 

favorable to the Commonwealth, the Commonwealth sufficiently met its 

burden to disprove DePaz’s self-defense claim. Reyes testified that after the 

victim struck DePaz with a Corona bottle, DePaz went from the living room, 

through the dining room, and into the kitchen. Reyes also testified that DePaz

was “in and out” of the kitchen. N.T., Trial, at 56. After exiting the kitchen

with a knife, DePaz told Reyes to “stay out of the way,” and then proceeded 

to stab the victim. Id. at 31, 33. 

Additionally, the trial court, as fact-finder, was free to believe all, part, 

or none of DePaz’s testimony that he tried to leave the home through the 

kitchen before stabbing the victim. In its opinion, the court pointed out that 
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“it was obvious that DePaz could have left the scene without the need to go 

into another room, retrieve a knife and return to stab and kill the decedent.” 

Rule 1925(a) Opinion, filed 7/7/23, at 2. No relief is due. 

In his second issue, DePaz claims that the court failed to consider his 

mitigating factors and imposed a sentence that solely focused on the victim 

and the crime. This argument goes to the discretionary aspects of sentence, 

for which there is no absolute right of appeal. See Commonwealth v. 

Radecki, 180 A.3d 441, 467 (Pa.Super. 2018). Rather, we must consider 

whether DePaz: 1) filed a timely notice of appeal; 2) preserved his claim at 

the sentencing hearing or in a post-sentence motion; 3) included a Rule 

2119(f) statement in his brief; and 4) raised a substantial question that his 

sentence “inconsistent with a specific provision of the Sentencing Code” or 

“contrary to the fundamental norms which underlie the sentencing process.”

Id. at 467, 468 (citation omitted).

Furthermore, sentencing is a matter of the trial court’s discretion. An 

abuse of discretion exists only where “the judgment exercised was manifestly 

unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Commonwealth v. Moury, 992 A.2d 162, 169–70 (Pa.Super. 2010) (citation 

omitted). A failure to raise a sentencing claim at the sentencing hearing or in 

a post-sentence motion will result in a waiver of the claim. See id. at 170.

We do not address the merits of DePaz’s sentencing claim because he 

failed to raise it before the trial court. In his post-sentence motion, DePaz

argued that the court imposed an excessive sentence and disregarded the 
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Sentencing Guidelines by imposing a consecutive maximum sentence for PIC. 

However, before this Court, he claims that the trial court failed to consider his 

mitigating factors and focused solely on the victim and the crime. This claim 

is therefore waived. See id. We thus affirm.

Judgment of sentence affirmed. 

Judge Bowes joins the memorandum. 

Judge Olson concurs in the result. 

Date: 7/8/2024