J-S02001-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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:

____________________________________________

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 

____________________________________________

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)9spoke 

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