J-S61008-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

EUGENIO HERNANDEZ-ANDINO,

Appellant No. 118 EDA 2018

Appeal from the Judgment of Sentence Entered November 30, 2017

In the Court of Common Pleas of Lehigh County

Criminal Division at No(s): CP-39-CR-0000519-2015

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 12, 2018

Appellant, Eugenio Hernandez-Andino, appeals from the judgment of 

sentence of life imprisonment, without the possibility of parole, imposed after 

a jury convicted him of first-degree murder. On appeal, Appellant challenges 

the sufficiency of the evidence to sustain his conviction, as well as the trial 

court’s refusal to instruct the jury on voluntary manslaughter. After careful 

review, we affirm.

From October 30th to November 1

st of 2017, Appellant was tried before 

a jury on a single charge of first-degree murder, based on evidence that he 

stabbed the victim in this case three times, resulting in the victim’s death. At 

the close of trial, the jury convicted Appellant. He was sentenced on 

November 30, 2017, to a term of life imprisonment without the possibility of 

parole. Appellant filed a timely notice of appeal, and he also timely complied 
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with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal. The trial court issued a Rule 1925(a) opinion 

on February 9, 2018. Herein, Appellant presents two issues for our review:

A. Was the evidence presented sufficient to sustain a verdict of 

guilty to murder in the first degree when [Appellant] presented 

evidence of his having acted in self-defense, or acting based 

upon his belief, erroneous or not, that the victim may have 

been acting to assault or try and kill [Appellant]?

B. Whether the court acted properly in denying [Appellant’s] 

request for a jury charge as it relates to voluntary 

manslaughter?

Appellant’s Brief at 7 (unnecessary capitalization omitted).

In assessing Appellant’s first issue, we apply the following standard of 

review:

In reviewing a sufficiency of the evidence claim, we must 

determine whether the evidence admitted at trial, as well as all 

reasonable inferences drawn therefrom, when viewed in the light 

most favorable to the verdict winner, are sufficient to support all 

elements of the offense. Commonwealth v. Moreno, 14 A.3d 

133 (Pa. Super. 2011). Additionally, we may not reweigh the 

evidence or substitute our own judgment for that of the fact 

finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 

2009). The evidence may be entirely circumstantial as long as it 

links the accused to the crime beyond a reasonable doubt. 

Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

In the case sub judice, Appellant claims that the Commonwealth failed 

to prove that he possessed the specific intent to kill the victim to sustain his 

conviction of first-degree murder. See Commonwealth v. Jordan, 65 A.3d 

318, 323 (Pa. 2013) (“There are three elements of first-degree murder: (i) a 
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human being was unlawfully killed; (2) [Appellant] was responsible for the 

killing; and (3) [Appellant] acted with malice and a specific intent to kill.”) 

(citing, inter alia, 18 Pa.C.S. § 2502(a)). In support of this position, Appellant 

relies on his own trial testimony that he stabbed the victim based on his belief, 

reasonable or unreasonable, that the victim posed a deadly threat to him. 

Appellant claims that “the evidence that [he] acted in an attempt to protect 

himself was relatively unchallenged” by the Commonwealth and, therefore, 

“[t]he jury’s verdict was not supported by evidence that could reasonably 

prove[,] beyond a reasonable doubt[,] that [Appellant] acted with the 

necessary intent to kill.” Appellant’s Brief at 15. Appellant argues that, 

instead, the Commonwealth’s evidence could sustain only a conviction for 

‘unreasonable-belief’ voluntary manslaughter. 

The record does not support Appellant’s argument. The evidence 

presented at trial, as summarized by the trial court, established the following:

[O]n January 22, 2015, at approximately 3:30 P.M., 30 year 

old Jose Reyes-Espinosa entered the Washington Barber Shop 

located at 1129 Hamilton Street, Allentown, Lehigh County,

Pennsylvania, to get his hair cut. Espedi Olivo, a 34[-]year[-]old 

barber working at the Washington Barber Shop, was between 

customers when Mr. Reyes-Espinosa2 arrived at the barbershop. 

He was sitting in the front of the establishment by the front door. 

... Soon thereafter, Mr. Olivo saw [Appellant]4 ... enter the 

Washington Barber Shop. He observed [Appellant] approach the 

victim in the barber chair, and he watched a verbal argument

ensue. Mr. Olivo overheard [Appellant] say to the victim, “Where 

are your friends now?” According to Mr. Olivo, Mr. Reyes-Espinosa 

appeared to be frightened, as demonstrated by his body language 

and the tone of his voice. In an effort to stop the argument, Mr. 

Olivo approached the two (2) men and reminded them that they 

were adults and should not fight. When [Appellant] told him that 
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the argument “does not involve him,” Mr. Olivo backed off and sat 

down. As the argument continued, Mr. Olivo watched the victim 

get his coat to leave. Suddenly, [Appellant] grabbed Mr. ReyesEspinosa and a physical altercation ensued. Mr. Olivo observed 

[Appellant] “cut [the victim] a few times with a knife,” and 

testified that the victim did not have a weapon nor did he hit 

[Appellant]. In fact, Mr. Olivo indicated that the victim was merely 

trying to defend himself with his hands while he was being stabbed 

by [Appellant]. Mr. Olivo noted that after [Appellant] stabbed the 

victim multiple times, [Appellant] immediately left the 

barbershop. Simultaneously, the victim ran towards the back of 

the barbershop and appeared to start to lose consciousness. The

entire altercation was captured on security surveillance from four 

(4) different angles. The security surveillance video was 

consistent with Mr. Olivo’s version of events.6In addition, another 

employee of the barbershop7 used his cellular phone to videotape 

the aforementioned events.8 This video was also consistent with 

Mr. Olivo's testimony. 

2 Mr. Olivo knew Mr. Reyes-Espinosa as “flaco,” which 

means “thin” in Spanish. According to the autopsy report, 

the victim was 5’11” and 143 pounds.

4 Mr. Olivo was familiar with [Appellant], as he was a regular 

customer at the barbershop. [Appellant’s] nickname was 

“monster.” [Appellant] was 6’1” and weighed 

approximately 244 pounds.

6 A view of the surveillance video shows [Appellant’s]

stabbing the victim three or four times, all with great force. 

In fact, the victim is lifted off the ground from [Appellant’s]

powerfully thrusting the knife into the victim’s body. 

7 Juan Garcia, also known as “Fernando,” [Appellant’s]

roommate at the time, was working at the Washington 

Barber Shop. He was [Appellant’s] barber. “Fernando” 

videotaped these events on his cellular phone. His 

whereabouts were unknown at the time of trial.

8 Officer Alex De La Iglesia of the Allentown Police 

Department assisted in the investigation. His particular 

assignment was to make contact with Juan Garcia, a/k/a

“Fernando,” as he was seen videotaping the earlier events 

of the day at the barbershop on his cellular phone. Officer 

De La Iglesia established surveillance in the area of 1338 

Hamilton Street, Apartment #2, Allentown, and he observed 
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“Fernando” enter the apartment complex. Officer De La 

Iglesia made contact with “Fernando” and located two (2) 

iPhones in his possession. Officer De La Iglesia searched 

the content of the cell phones and he located the video of 

the homicide at the barbershop on Fernando’s iPhone 6C. 

Immediately after this altercation, the victim called 911 to seek 

help. Consequently, Officer Edward Fitzsimmons of the Allentown 

Police Department was dispatched to the Washington Barber Shop 

for report of an injured person therein. When Officer Fitzsimmons 

arrived on scene in full uniform and in a marked police cruiser, 

Officer Amaury of the Allentown Police Department was already 

present. Officer Amaury related to Officer Fitzsimmons that a 

stabbing had occurred at the barbershop, and he was directed to 

the back of the establishment. In the back hallway, Officer 

Fitzsimmons observed the victim, Jose Reyes-Espinosa, lying on a

mattress in a break room with blood on his shirt. He also noticed 

blood splatter in the barbershop and in the back hallway. The 

victim appeared to be in serious condition, as his breaths were 

shallow. Allentown paramedics arrived on scene and transported 

the victim to Lehigh Valley Hospital - Cedar Crest Campus. After 

the victim was removed from the premises, the building was 

cleared and the area was secured.

Detective Stephen Milkovits of the Allentown Police Department 

was summoned to the scene. By the time he arrived, the victim 

had already been taken by ambulance to the hospital for 

treatment. Detective Milkovits spoke with the patrol officers in 

the barbershop, interviewed “Fernando,” as well as viewed the 

surveillance video from the barbershop. A few hours later, 

Detective Milkovits was able to locate [Appellant’s] vehicle, a 

burgundy 2001 Ford Taurus, approximately three (3) blocks from 

the barbershop. The subject vehicle was towed and a search 

warrant for same was obtained. A search of the vehicle yielded a

knife10 in the pouch behind the front passenger seat. Rudolf 

Hoogenboom, an officer with the identification unit of the 

Allentown Police Department, documented not only the crime 

scene, but also the evidence recovered from [Appellant’s] vehicle. 

10 [Appellant] indicated that this knife recovered from his 

vehicle was not the knife used at the barbershop. 

[Appellant] stated that he had a “work knife” on him at the

Washington Barber Shop.
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In addition, at 4:30 A.M. on January 23, 2015, Detective 

Milkovits went to [Appellant’s] apartment to execute a search 

warrant. At that time, [Appellant], [Appellant’s] girlfriend, Janet 

Pedez, and her children were present in the apartment. A search 

of the premises revealed the clothing items that [Appellant] wore 

in the surveillance video of the barbershop during the stabbing of 

the victim. Such clothing items included a green reflective vest, 

work boots, dark sweatpants, two (2) sweatshirts, and tan work 

gloves. In furtherance of the investigation, these clothing items 

were sent to the Pennsylvania State Police lab for serology testing. 

Sarah Kase, a forensic scientist in serology and an expert in 

serology, analyzed the items submitted to the lab. Based on her

positive findings, Ms. Kase then prepared cuttings and swabs to 

be sent to the DNA lab with regard to the buccal swab, a swab of 

[Appellant’s] left work boot, and cuttings from the left work boot 

and [Appellant’s] sweatpants. Thereafter, Amber Gegg, a forensic 

DNA analyst and an expert in DNA analysis, analyzed the samples 

received from serology. Her analysis established a positive match 

between the DNA in the victim’s buccal swab sample and the 

material tested on the cutting from [Appellant’s] sweatpants and 

the cutting from [Appellant’s] left work boot.

Detective Louis Tallarico of the Lehigh County District 

Attorney’s Office, assigned to the Homicide Task Force, also 

participated in the homicide investigation. Detective Tallarico 

interviewed [Appellant] at 6:00 A.M. on January 23, 2015, with

Detective Milkovits. [Appellant] executed an Allentown Police 

Department Waiver of Rights Form prior to the interview, and 

agreed to speak with the detectives. [Appellant’s] interview lasted 

approximately fifty (50) minutes and evolved over time. Indeed, 

at the beginning of the interview, [Appellant] denied being at the 

barbershop on the day in question and denied knowing

“Fernando.” However, [Appellant] changed his story and

indicated that he had been at the barbershop to retrieve the 

apartment key from “Fernando” and that the victim confronted 

him. He further stated that the victim was on his cell phone calling 

his friends to come over to the barbershop.11 [Appellant]

ultimately admitted to stabbing the victim with a knife. 

11 [Appellant] told the detectives that in 2009[,] he had been 

assaulted at 8th and Chew Streets, Allentown, Lehigh 

County. An Allentown Police Department Incident Report 

indicated that the victim, “David Irizarry Cruz” a/k/a 

Eugenio Hernandez-Andino, alleged that six (6) men 

jumped him and that he went to the Lehigh Valley Hospital 
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for treatment for his hand. [Appellant] was uncooperative 

with the authorities at the time and no one was identified in 

the report. There was no reference to a stabbing in the 

report.

Alli Avila, a 42 year old barber who worked at the Washington 

Barber Shop on January 22, 2015, knew Mr. Reyes-Espinosa, who 

was a regular customer, as well as [Appellant] from the 

barbershop. He related that on the day at issue, he witnessed Mr. 

Reyes-Espinosa enter the barbershop and sit down in his barber 

chair. Then, [Appellant] walked in and came up to Mr. ReyesEspinosa and began to argue with him. Mr. Avila overheard 

[Appellant], who was angry, tell Mr. Reyes-Espinosa that he 

knows where he lives. Mr. Reyes-Espinosa then removed his 

barber smock and picked up his hat and coat in an effort to leave 

the premises. Mr. Avila witnessed [Appellant] physically grab Mr. 

Reyes-Espinosa. At no point did Mr. Avila observe Mr. ReyesEspinosa threaten or punch [Appellant], or brandish a weapon.

Unfortunately, Mr. Reyes-Espinosa succumbed to his injuries. 

An autopsy on the victim’s body was performed by Barbara 

Bollinger, M.D., a forensic pathologist, and an expert in the field 

of anatomical, clinical, and forensic pathology, on January 23, 

2015. Dr. Bollinger noted three (3) stab wounds to the victim’s 

torso, as well as one incised wound. Dr. Bollinger opined that

each of the stab wounds was a potentially lethal stab wound.12

The cause of death was deemed to be stab wounds to the torso, 

and Dr. Bollinger opined that the manner of death was homicide. 

Officer Justin Motz of the Allentown Police Department, and a

member of the identification bureau, attended the autopsy and 

collected the relevant evidence, including a buccal swab from the 

victim. 

12 The victim had a stab wound to the right clavicle area 

which perforated his lung[,] a stab wound to the left 

underarm area of the chest, and a stab wound to the left 

upper abdominal quadrant which perforated his liver, 

diaphragm, and heart.

According to [Appellant’s testimony at trial], in 2009, the 

victim, along with a group of Trinitarios [gang members], 

assaulted and stabbed him. [Appellant] indicated that he was

successfully able to avoid these gang members until 2014, when 

he moved to Philadelphia. Thereafter, in 2015, [Appellant]

returned to the area Allentown. On January 22, 2015, [Appellant]
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admitted to entering the barbershop after work. [Appellant] 

stated that upon his entering the barbershop establishment, Mr. 

Reyes-Espinosa began to say nasty and threatening things to him.

Therefore, [Appellant] feared that the Trinitarios were going to do 

something to him in the future, based on the 2009 altercation. 

[Appellant] testified that when Mr. Reyes-Espinosa got up to leave 

and put his coat on, [Appellant] saw Mr. Reyes-Espinosa put his 

hand in his coat pocket. Fearing that Mr. Reyes-Espinosa had a 

weapon, although he did not see one, and fearing that a cut to 

him could be detrimental in light of the fact that he was on blood 

thinners, he physically fought with the victim. At that moment, 

[Appellant] claim[ed] that he “blacked out” and could not recall 

details. [Appellant] did remember that he wanted to “teach [the 

victim] a lesson” and “poked” at him two (2) or three (3) times 

with the knife to hurt him, but did not intend to kill him. 

[Appellant] repeatedly stated that he grabbed the victim because 

he was scared that the victim would tell the Trinitarios and then 

they would get him in the future. [Appellant] conceded that he 

could have left the premises prior to the argument becoming 

physical, but he did not.

Trial Court Opinion (TCO), 2/9/18, at 3-10 (citations to the record and some 

footnotes omitted).

It is clear that this evidence was sufficient to sustain Appellant’s 

conviction of first-degree murder. Witnesses testified that Appellant was the 

initial aggressor, and that the victim did not retaliate in a threatening or hostile 

manor. Instead, the victim attempted to leave the barbershop, at which point 

Appellant grabbed the victim and stabbed him three times in the torso. The 

forensic pathologist testified that Appellant’s knife punctured the victim’s 

heart, liver, and lung. This evidence demonstrated that Appellant acted “with 

malice and specific intent to kill.” Commonwealth v. Lyons, 79 A.3d 1053, 

1062 (Pa. 2013) (citations omitted) (“[A] jury’s determination that the 

accused engaged in first-degree murder is supported when there is evidence 
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to suggest that he used a deadly weapon on a vital part of the victim’s body, 

thereby causing [the victim’s] death.”) (citation omitted).

We also reject Appellant’s assertion that the evidence supported a 

conviction for ‘unreasonable belief’ voluntary manslaughter, also referred to 

as ‘imperfect belief’ self-defense. That crime is defined 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. § 2503(b). Regarding this form of voluntary manslaughter, our 

Supreme Court has clarified that,

[t]he derivative and lesser [self-]defense [claim] of imperfect 

belief self-defense is imperfect in only one respect—an 

unreasonable rather than a reasonable belief that deadly force

was required to save the actor’s life. All other principles of 

justification under 18 Pa.C.S. § 505 must [be satisfied to 

prove] unreasonable belief voluntary manslaughter. 

Commonwealth v. Sepulveda, 55 A.3d 1108, 1124 (Pa. 2012) (internal 

citations and quotation marks omitted; emphasis added). Justification under 

section 505 requires a defendant to prove that he “was free from fault in 

provoking the difficulty which culminated in the slaying[,] and ... that the 

[defendant] did not violate any duty to retreat.” Id. (citations omitted); see 

also 18 Pa.C.S. § 505(b)(2)(i). Here, Appellant had a duty to retreat from 

the barbershop, and he conceded at trial that he could have done so prior to 

the physical altercation with the victim. Therefore, his own testimony 

defeated his claim of unreasonable-belief voluntary manslaughter. 
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Appellant’s second issue fails for this same reason. Appellant contends 

that the court erred by not instructing the jury on unreasonable-belief 

voluntary manslaughter. 

[A] trial court shall only instruct on an offense where the offense 

has been made an issue in the case and where the trial 

evidence reasonably would support such a verdict. ...

Instructions regarding matters which are not before the court or 

which are not supported by the evidence serve no purpose other 

than to confuse the jury.

Commonwealth v. Browdie, 671 A.2d 668, 674 (Pa. 1996) (emphasis 

added); see also Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 

(1983) (holding that a voluntary manslaughter charge is appropriate only 

when that crime is made an issue in the case, and evidence would support 

such a verdict). Because, for the reasons stated supra, Appellant’s testimony 

did not support the offense of unreasonable-belief voluntary manslaughter, 

the court did not err in refusing to charge the jury on that crime. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/12/18