J-S43029-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JOSHUA JUSTIN LOOKINGBILL

Appellant No. 1718 MDA 2015

Appeal from the Judgment of Sentence February 25, 2014

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0001489-2013

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J. 

MEMORANDUM BY PANELLA, J. FILED AUGUST 02, 2016

Appellant, Joshua Justin Lookingbill, appeals from the judgment of 

sentence entered February 25, 2014, in the Court of Common Pleas of York 

County, following his conviction of second-degree murder, third-degree 

murder, and burglary1for the stabbing death of Nakia Williams. We affirm.

The victim was the new paramour of Olga Cuadra, the mother of 

Appellant’s three children. Cuadra and the victim lived with the children in a 

second floor apartment located at 412 South Pershing Avenue in York, 

Pennsylvania. See N.T., Trial, 1/13-15/14 at 129. On the evening of January 

30, 2013, Appellant arrived at the victim’s home to drop off money and 

cigarettes, but Cuadra did not let him in. See id. at 149-150. At 

approximately 4:15 a.m. the following morning, Cuadra and the victim were 

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1 18 Pa.C.S.A. §§ 2502(b), 2502(c) and 3502(a)(1), respectively. 
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sleeping in their bed when the victim suddenly sat up and told Cuadra to call 

the police and an ambulance. See id. at 131-132. The victim then fell back 

on the bed bleeding. See id. at 132. Cuadra’s seven-year-old son, who was 

asleep in the next room, awoke to see his stepfather, the Appellant, running 

down the stairs. See id. at 134. Cuadra relayed this information to the 911 

operator. See id. 

When police arrived at the residence, they observed that the door to 

the second floor entrance off the rear balcony was ajar and a rear window 

was pushed in to make entry. See id. at 105-106. The victim, who was lying 

on the bed in a large pool of blood, was deceased. See id. at 106-107. The 

following day, a high school student discovered a bloody steak knife in an 

alleyway off Pershing Avenue and informed police. See id. at 158-160. A 

DNA analysis of the blood on the knife blade matched that of the victim. See 

id. at 218-219.

Based upon Detective Anthony Fetrow’s interviews with Cuadra and 

her son on the morning of the murder, Appellant was taken into custody at 

his place of work and read his Miranda2rights. See id. at 234-237. During 

a subsequent custodial interview, before which Detective Fetrow again 

apprised Appellant of his Miranda warnings, Appellant admitted that he 

broke into Cuadra’s home and murdered the victim in a “blind rage.” 

Transcript of Recorded Interview, 1/31/13 at 4-5, 40.

____________________________________________

2 Miranda v. Arizona, 384 U.S. 436 (1966).
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Appellant was subsequently charged with one count each of firstdegree murder, second-degree murder, third-degree murder, and Burglary. 

Prior to trial, Appellant filed a motion to suppress his statements to police, 

which the trial court denied following an evidentiary hearing. Appellant filed 

a motion to proceed pro se. At a hearing on the matter, the trial court 

granted Appellant’s motion and appointed Bruce Blocher, Esquire, as 

standby counsel. At a later hearing, the court denied Appellant’s pro se oral 

motion to suppress evidence based on an unlawful warrantless arrest and a 

motion seeking the trial court’s recusal. 

At the start of trial, Appellant sought to admit into evidence the 

entirety of his videotaped statement to police, including discussions 

regarding possible sentencing options and alleged offers of leniency in 

exchange for Appellant’s cooperation, which had been previously redacted 

by agreement of the parties. The trial court denied Appellant’s pro se 

request and ordered that those portions of the statement remain excluded 

from evidence. Following jury selection, Appellant requested the assistance 

of counsel and the court ordered Attorney Blocher to resume representation 

of Appellant. The jury convicted Appellant of second-degree murder, thirddegree murder, and burglary. The trial court sentenced Appellant to an 

aggregate term of life imprisonment. 

Following Appellant’s conviction, the trial court permitted Attorney 

Blocher to withdraw as counsel, and appointed William Graff, Jr., Esquire, as 

new counsel. On October 7, 2014, Attorney Graff filed a petition for leave to 
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file a nunc pro tunc appeal, which the trial court granted. This nunc pro tunc

appeal followed. 

Appellant first challenges the sufficiency of the evidence of convictions 

of second-degree murder and burglary. 

As a general matter, our standard of review of sufficiency claims 

requires that we evaluate the record in the light most favorable 

to the verdict winner giving the prosecution the benefit of all 

reasonable inferences to be drawn from the evidence. Evidence 

will be deemed sufficient to support the verdict when it 

establishes each material element of the crime charged and the 

commission thereof by the accused, beyond a reasonable doubt. 

Nevertheless, the Commonwealth need not establish guilt to a 

mathematical certainty. [T]he facts and circumstances 

established by the Commonwealth need not be absolutely 

incompatible with the defendant’s innocence. Any doubt about 

the defendant’s guilt is to be resolved by the fact finder unless 

the evidence is so weak and inconclusive that, as a matter of 

law, no probability of fact can be drawn from the combined 

circumstances.

Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015) 

(citation omitted). The factfinder, while passing upon the credibility of 

witnesses and the weight of the evidence produced, is free to believe all, 

part or none of the evidence. See Commonwealth v. Valentine, 101 A.3d 

801, 805 (Pa. Super. 2014), appeal denied, 124 A.3d 309 (Pa. 2015). 

Furthermore, the Commonwealth may sustain its burden by means of wholly 

circumstantial evidence. See Commonwealth v. Diggs, 949 A.2d 873, 877 

(Pa. 2008).

Murder of the second degree is a criminal homicide “committed while a 

defendant was engaged as a principal or an accomplice in the perpetration of 

a felony.” 18 Pa.C.S.A. § 2502(b). The perpetration of a felony is defined as 
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“[t]he act of the defendant in engaging in or being an accomplice in the 

commission of, or an attempt to commit, or flight after committing, or 

attempting to commit robbery, rape, or deviate sexual intercourse by force 

or threat of force, arson, burglary or kidnapping.” 18 Pa.C.S.A. § 2502(d).

In this case, the underlying felony was burglary. “Under Pennsylvania 

law the crime of burglary is defined as an unauthorized entry with the intent 

to commit a crime after entry.” Commonwealth v. Alston, 651 A.2d 1092, 

1094 (Pa. 1994) (citing 18 Pa.C.S.A. § 3502). The Commonwealth need not 

allege or prove what particular crime the defendant intended to commit after 

his forcible entry into a private residence, but rather, the intent to commit a 

crime may be inferred from the totality of the circumstances. See id. at 

1094-1095. 

Appellant argues that there is no evidence to support a finding that he 

intended to commit a crime when he entered the victim’s home. Appellant 

concedes that he entered the victim’s home with the intent to see his 

children, but maintains it was not his intent to kill the victim when he arrived 

at the residence. See Appellant’s Brief at 14. Appellant instead claims that 

when he saw the victim sleeping in the next room, he “lost it” and stabbed 

the victim in a “blind rage.” Id. 

The evidence presented at trial revealed that, on the evening prior to 

the murder, Appellant was angry that Cuadra did not permit him to enter the 

apartment. Early the following morning, Appellant stealthily entered the 

victim’s home through a rear window—without the permission of Cuadra or 
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the victim. Although Appellant now contends that he killed the victim in a 

blind rage, he does not deny that he entered the residence with a knife in his 

possession. Based on the attendant circumstances, the jury could have 

reasonably inferred that Appellant entered the residence with the intent to 

harm the victim or someone else therein. Although Appellant contends he 

merely entered the residence to see his children, the jury was free to 

disbelieve his statements. 

Accordingly, because we conclude the evidence was sufficient to 

support his conviction of burglary, we further find Appellant’s burglary 

conviction was a sufficient predicate felony to support his conviction of 

second-degree murder. Therefore, his challenge to the sufficiency of the 

evidence fails.

Appellant next claims that the trial court should have suppressed his 

statement to police as it was obtained after he asserted his constitutional 

right to counsel. See Appellant’s Brief at 15. 

Our 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.

[W]e 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.
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Further, [i]t is within the suppression court’s sole province as 

factfinder to pass on the credibility of witnesses and the weight 

to be given their testimony.

Commonwealth v. Houck, 102 A.3d 443, 455 (Pa. Super. 2014) (internal 

citations and quotations omitted).

“To safeguard an uncounseled individual’s Fifth Amendment privilege 

against self-incrimination, suspects subject to custodial interrogation by law 

enforcement officers must be warned that they have the right to remain 

silent, that anything they say may be used against them in court, and that 

they are entitled to the presence of an attorney.” In re R.H., 791 A.2d 331, 

333 (Pa. 2002) (plurality); see also Miranda, 384 U.S. at 444-445. With 

regard to the waiver of Miranda rights, this Court has explained that

Miranda holds that “[t]he defendant may waive effectuation” of 

the rights conveyed in the warnings “provided the waiver is 

made voluntarily, knowingly and intelligently.” The inquiry has 

two distinct dimensions. First, the relinquishment of the right 

must have been voluntary in the sense that it was the product of 

a free and deliberate choice rather than intimidation, coercion or 

deception. Second, the waiver must have been made with a full 

awareness both of the nature of the right being abandoned and 

the consequences of the decision to abandon it. Only if the 

“totality of the circumstances surrounding the interrogation” 

reveal both an uncoerced choice and the requisite level of 

comprehension may a court properly conclude that Miranda

rights have been waived.

In the Interest of T.B., 11 A.3d 500, 505 (Pa. Super. 2010) (citation 

omitted).

Our Supreme Court has provided that 

an explicit statement of waiver ... after being advised of [one’s] 

Miranda rights ... is not necessary to a finding of waiver under 

the Fifth Amendment. The pertinent question is whether the 

defendant in fact knowingly and voluntarily waived the rights 
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delineated in the Miranda case. Waiver can be clearly inferred 

from the actions and words of the person interrogated.

Commonwealth v. Bomar, 826 A.2d 831, 843 (Pa. 2003) (internal 

citations and quotes omitted).

The test for determining ... the validity of a waiver looks to the 

totality of the circumstances. Some of the factors to be 

considered include: the duration and means of interrogation; the 

defendant's physical and psychological state; the conditions 

attendant to the detention; the attitude exhibited by the police 

during the interrogation; and any other factors which may serve 

to drain one's powers of resistance to suggestion and coercion.

Commonwealth v. DeJesus, 787 A.2d 394, 403 (Pa. 2001) (citations 

omitted) (abrogated on other grounds).

With respect to the totality of the circumstances of the instant matter, 

it is clear that Appellant was in custody. Detective Fetrow issued Miranda

warnings when the Appellant was taken into custody at his place of work the 

morning of the murder. See N.T., Suppression Hearing, 9/10/13 at 19-20. 

Detective Fetrow then asked Appellant if he understood his rights, and 

Appellant responded that he did. See id. at 20. After Appellant was 

transported to the station for questioning, he was permitted to speak with 

his father, Roger Lookingbill, for approximately 20 minutes. See id. at 22. 

Detective Fetrow testified that after their meeting, Appellant’s father asked 

him whether Appellant should retain an attorney. See id. at 22. Detective 

Fetrow responded that it was Appellant’s decision whether to retain an 

attorney. See id. at 25. When Detective Fetrow then asked Appellant 

whether he wished to continue to cooperate with the investigation, Appellant 

responded in the affirmative. See id. at 25. 
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The transcript of the interview indicates that Detective Fetrow again 

issued Miranda warnings to the Appellant prior to questioning and asked 

whether Appellant understood his rights. See Transcript of Recorded 

Interview, 1/31/13 at 4-5. Appellant responded, “Yes,” and did not request 

an attorney. See id. at 5. The interview then commenced for approximately 

90 minutes, during which Appellant confessed to murdering the victim.

Appellant does not assert on appeal that he was coerced into waiving 

his Miranda rights, but instead argues that he in fact did invoke his right to 

have an attorney present. Appellant’s father testified at the suppression 

hearing that after meeting with the Appellant at the police station, he 

informed Detective Fetrow that his “son wants a lawyer.” N.T. Suppression 

Hearing, 9/10/13 at 47. Roger Lookingbill further stated that he then asked 

his son, “[r]ight, Josh[,]” and Appellant answered, “yes.” Id. at 48. 

However, in denying Appellant’s suppression motion, the trial court clearly 

did not find Roger Lookingbill’s testimony to be credible. 

Appellant’s argument essentially asks that we override the suppression 

court’s credibility determination. This we cannot do. See Houck, 102 A.3d 

at 455 (“It is within the suppression court’s sole province as factfinder to 

pass on the credibility of witnesses and the weight to be given their 

testimony.”).

Significantly, this Court has held that “after a defendant is given his or 

her Miranda rights, a statement by the defendant that he understands 

those rights followed by the answering of questions posed by the 
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interrogating officer constitutes a sufficient manifestation of a defendant’s 

intent to waive those rights so as to satisfy state constitutional protections.” 

Commonwealth v. Baez, 21 A.3d 1280, 1286 (Pa. Super. 2011) (footnote 

omitted). In light of the fact that Appellant verbally acknowledged that he 

understood his Miranda rights on two occasions and did not request an 

attorney during the entirety of the interview, we conclude that the trial court 

did not err as a matter of law when it determined that Appellant’s custodial 

statements were admissible.

Appellant next asserts that the Commonwealth failed to prove by a 

preponderance of the evidence that his confession was made voluntarily. 

See Appellant’s Brief at 26. Following the denial of his pre-trial suppression 

motion, Appellant again contested the voluntariness of his confession at trial. 

“Despite a pretrial ruling that a confession is voluntary, ... a criminal 

defendant nonetheless is entitled to a second opportunity to test the 

voluntariness of his statement by introducing evidence at trial relating to 

voluntariness and have the jury consider the question.” Commonwealth v. 

Cameron, 780 A.2d 688, 693 (Pa. Super. 2001) (citations omitted); see 

also Pa.R.Crim.P. 581(J) and Comment. When a defendant alleges that his 

confession was involuntary, the question “is not whether the defendant 

would have confessed without interrogation, but whether the interrogation 

was so manipulative or coercive that it deprived the defendant of his ability 

to make a free and unconstrained decision to confess.” Commonwealth v. 
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Templin, 795 A.2d 959, 966 (Pa. 2002) (citation omitted). When assessing 

the voluntariness pursuant to the totality of the circumstances, we examine 

the duration and means of the interrogation; the physical and 

psychological state of the accused; the conditions attendant to 

the detention; the attitude of the interrogator; and any and all 

other factors that could drain a person's ability to withstand 

suggestion and coercion.

Commonwealth v. Nester, 709 A.2d 879, 882 (Pa. 1998) (citation 

omitted). The Commonwealth must prove by a preponderance of the 

evidence that the defendant confessed voluntarily. See id. 

In support of his claim, Appellant reiterates the argument that he 

invoked his Miranda rights when he acknowledged his father’s alleged 

statement to police that his son wanted an attorney. See Appellant’s Brief at 

29-30. We have already addressed this argument. The Commonwealth 

presented evidence that Appellant was twice issued Miranda warnings, 

acknowledged his understanding of those rights both times, and did not 

request an attorney prior to or during the interview. 

When weighing conflicting testimony, the jury is free to believe all, 

part or none of the evidence and to determine the credibility of the 

witnesses. See Commonwealth v. Orie, 88 A.3d 983, 1017 (Pa. Super. 

2014). The jury clearly disregarded Roger Lookingbill’s testimony. As 

previously noted, we are satisfied that Appellant’s acknowledged 

understanding of his Miranda rights and his willingness to thereafter answer 

Detective Fetrow’s questions constituted sufficient manifestation of 

Appellant’s intent to waive those rights. See Baez. Accordingly, we find the 
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Commonwealth sufficiently established the voluntariness of Appellant’s 

confession by a preponderance of the evidence. 

In his fourth issue on appeal, Appellant argues that the trial court 

erred when it refused to admit into evidence the unredacted video of the 

police interrogation. “[T]he admission of evidence is within the sound 

discretion of the trial court and will be reversed only upon a showing that the 

trial court clearly abused its discretion.” Commonwealth v. Fransen, 42 

A.3d 1100, 1106 (Pa. Super. 2012) (internal citations omitted). 

Immediately prior to trial, Appellant requested that the court permit 

the jury to view the interrogation video in its entirety, including parts in 

which Detective Fetrow allegedly discussed his close friendship with the 

District Attorney’s office and the possible offenses and sentencing terms 

Appellant might face. See N.T., Trial, 1/13/14 at 6-14. Upon consideration 

of Appellant’s motion, the trial court ultimately ruled that Appellant could 

question Detective Fetrow regarding his expression of friendship with the 

district attorney’s office prior to the second reading of Appellant’s Miranda

rights, but that Appellant could not raise the issues of possible sentences 

discussed during the course of the interrogation. See id. at 14. 

Appellant claims that the admission of the redacted portions of the 

video would have revealed coercive police interrogation tactics relevant to 

the jury’s determination of the voluntariness of his Miranda waiver and 

subsequent confession. See Appellant’s Brief at 36. Even if we were to agree 

that the trial court’s decision to preclude the admission of the unredacted 
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interrogation video into evidence was in error, we would find such error 

harmless. See Commonwealth v. Marshall, 824 A.2d 323, 328 (Pa. 

Super. 2003) (an error is harmless if the court determines that the error 

could not have contributed to the verdict). Based upon the totality of the 

circumstances surrounding Appellant’s interrogation, we are satisfied, as 

noted previously, that Appellant’s waiver of his Miranda rights and his 

ensuing confession were voluntary.3 See Nester.

Appellant next argues that the trial court should have suppressed his 

confession because the police lacked probable cause to conduct a 

warrantless arrest. “To be constitutionally valid, a warrantless arrest must 

____________________________________________

3 Although we are indeed troubled by Detective Fetrow’s implication that 

Appellant’s cooperation might result in mitigation of the charges against him, 

see Transcript of Recorded Interview, 1/31/13 at 7, we note that this 

comment was made after the detective stated that he could make no 

promises to induce Appellant’s cooperation, see id. at 6. Further, we find it 

important that this statement was also made after Appellant was apprised of 

his Miranda rights, including the right to remain silent and right to counsel, 

and before any substantive questioning began. 

The fact that warnings were given is an important factor tending 

in the direction of a voluntariness finding. This fact is important 

in two respects. It bears on the coerciveness of the 

circumstances, for it reveals that the police were aware of the 

suspect's rights and presumably prepared to honor them. And 

.... it bears upon the defendant’s susceptibility, for it shows that 

the defendant was aware that he had a right not to talk to the 

police.

Templin, 795 A.2d at 966 (citing W.R. LaFave et al., Criminal Procedure, § 

6.2(c), at 460).
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be supported by probable cause.” Commonwealth v. Agnew, 600 A.2d 

1265, 1271 (Pa. Super. 1991) (citation omitted).

Probable cause is made out when the facts and circumstances 

which are within the knowledge of the officer at the time of the 

arrest, and of which he has reasonably trustworthy information, 

are sufficient to warrant a man of reasonable caution in the 

belief that the suspect has committed or is committing a crime. 

The question we ask is not whether the officer’s belief was 

correct or more likely true than false. Rather, we require only a 

probability, and not a prima facie showing, of criminal activity. In 

determining whether probable cause exists, we apply a totality 

of the circumstances test.

Commonwealth v. Martin, 101 A.3d 706, 721 (Pa. 2014) (emphasis 

omitted) (citation omitted). “When an officer makes an unlawful arrest, any 

evidence seized during a search incident to the arrest must be suppressed.” 

Commonwealth v. Clark, 735 A.2d 1248, 1251 (Pa. 1999) (citation 

omitted).

Here, Appellant’s stepson informed police that he observed Appellant 

running down the steps of the family’s residence immediately after the 

victim was stabbed. The fact that Appellant was observed fleeing directly 

from the scene of the murder was surely sufficient to justify a reasonable 

belief that he was the perpetrator of the murder. Accordingly, because there 

was probable cause to believe that Appellant was responsible for the victim’s 

murder, his warrantless arrest was lawful and Appellant's argument that his 

confession was the result of an illegal seizure is without merit. 

Lastly, Appellant contends that the trial court abused its discretion in 

denying his pre-sentence motion to recuse.
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Our standard of review of a trial court’s determination not to 

recuse from hearing a case is exceptionally deferential. We 

recognize that our trial judges are honorable, fair and 

competent, and although we employ an abuse of discretion 

standard, we do so recognizing that the judge himself is best 

qualified to gauge his ability to preside impartially.

The party who asserts that a trial judge should recuse 

bears the burden of setting forth specific evidence of bias, 

prejudice, or unfairness. Furthermore, a decision by the 

trial court against whom the plea of prejudice is made will 

not be disturbed absent an abuse of discretion.

Commonwealth v. Harris, 979 A.2d 387, 391-92 (Pa. Super. 2009) 

(citations and internal quotation marks omitted).

Appellant contends that the trial court’s “pattern of biased and hostile 

comments” during pre-trial hearings demonstrated the court’s prejudice. 

Appellant’s Brief at 44. Our review of the record reveals that Appellant 

requested the trial court’s recusal after the court denied his oral pro se

motion to suppress his confession as the result of an illegal arrest. See N.T., 

Pre-Trial Hearing, 1/10/14 at 34-35. During the presentation of this motion, 

Appellant repeatedly interrupted and challenged the trial court. See id. at 

27-37. Although Appellant contends that the trial court grew “exasperated” 

with Appellant’s intransigence, exasperation falls far short of proof of bias.

Not establishing bias or partiality ... are expressions of 

impatience, dissatisfaction, annoyance, and even anger, that are 

within the bounds of what imperfect men and women, even after 

having been confirmed as [ ] judges, sometimes display. A 

judge’s ordinary efforts at courtroom administration—even a 

stern and short-tempered judge’s ordinary efforts at courtroom 

administration—remain immune.

Commonwealth v. Kearney, 92 A.3d 51, 61 (Pa. Super. 2014) (citing 

Liteky v. United States, 51 U.S. 540) (emphasis omitted). 
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The trial court here exhibited remarkable patience in the face of

Appellant’s obstreperous courtroom conduct. Despite Appellant’s efforts to 

manufacture the appearance of impropriety, we find no evidence that the 

trial court exhibited bias, prejudice or unfairness during the entirety of the 

proceedings. We therefore find the trial court did not abuse its discretion in 

denying Appellant’s motion to recuse.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/2/2016