Com. v. Gonzalez ( 2016 )


Menu:
  • J-S16020-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    HECTOR GONZALEZ
    Appellant              No. 3435 EDA 2014
    Appeal from the Judgment of Sentence November 5, 2014
    In the Court of Common Pleas of Lehigh County
    Criminal Division at No(s): CP-39-CR-0005117-2013
    BEFORE: OTT, J., DUBOW, J., and JENKINS, J.
    MEMORANDUM BY OTT, J.:                            FILED AUGUST 16, 2016
    Hector Gonzalez brings this appeal from the judgment of sentence
    imposed on November 5, 2014, in the Court of Common Pleas of Lehigh
    County, following the denial of post-sentence motions on November 10,
    2014. Gonzalez was found guilty by a jury of murder in the third degree 1 in
    the stabbing death of Ahiezer Padilla-Marrero (the victim).   The trial court
    sentenced Gonzalez to 20 to 40 years’ imprisonment. Gonzalez contends: 1)
    the evidence was insufficient to sustain a verdict of guilty to murder in the
    third degree when Gonzalez presented evidence of self-defense; 2) the trial
    court erred in denying his pretrial motion to suppress statements he made to
    ____________________________________________
    1
    18 Pa.C.S. § 2502(c).
    J-S16020-16
    police while under interrogation; and 3) the trial court erred in permitting
    various photographs portraying the victim and the location of the homicide.
    See Gonzalez’s Brief at 9–10. Based upon the following, we affirm.2, 3
    ____________________________________________
    2
    Initially, we note the delay in this case.
    Counsel for Gonzalez filed a notice of appeal on November 19, 2014,
    and an amended notice of appeal on December 2, 2014. By order entered
    November 21, 2014, the trial court granted Gonzalez In Forma Pauperis
    status, ordered the court monitor to transcribe the notes of testimony of the
    trial held on September 30, 2014, through October 2, 2014, and ordered the
    court stenographer to transcribe the notes of testimony for the sentencing
    hearing held on November 5, 2014. On December 3, 2014, the court
    entered an order directing the court monitor to transcribe the March 14,
    2014 omnibus pretrial hearing.
    The notes of testimony for the sentencing hearing were filed in the
    trial court on December 4, 2014. The notes of testimony for the omnibus
    pretrial hearing were filed in the trial court on January 29, 2015. On March
    25, 2015, this Court received the certified record, including transcripts for
    the omnibus pretrial hearing and sentencing hearing, and one envelope of
    exhibits from the omnibus pretrial hearing, but no trial transcripts.
    Having been granted two extensions of time, Gonzalez’s brief was
    timely filed in this Court on July 20, 2015. On August 17, 2015, the
    Commonwealth was granted an extension of time until October 19, 2015, to
    file its brief. On October 16, 2015, the Commonwealth filed a request for a
    second extension of time, averring that the Commonwealth had not received
    the trial transcripts. The Commonwealth was granted an extension of time
    until November 18, 2015, with no further extensions absent extraordinary
    circumstances. On November 17, 2015, the Commonwealth filed a request
    for a third extension of time to file its brief, asserting that because the
    official court reporter had undergone a major surgery, she had been unable
    to complete the transcription of the trial proceedings, and that the trial
    transcripts were necessary for preparation of the Commonwealth’s brief. On
    November 30, 2015, this Court granted the Commonwealth’s application for
    extension of time to file its brief and extended the deadline to December 18,
    (Footnote Continued Next Page)
    -2-
    J-S16020-16
    The trial court has summarized the Commonwealth’s evidence, as
    follows:
    On September 28, 2013, at approximately 11:30 p.m., Francisca
    Olivo heard banging sounds and people running from the
    apartment above hers at [address omitted]. She then heard a
    knock at her door and someone asking for help in Spanish. Ms.
    Olivo opened the door and discovered a bleeding man standing
    in her front porch area. Ms. Olivo noted that the individual
    seemed pale and weak and she sat the man on a chair on the
    porch. Ms. Olivo directed someone else within her apartment to
    call 9-1-1. Ms. Olivo’s sister-in-law, Wanda Mendez, began to
    apply pressure to the man’s wounds which were on his chest, leg
    and arm.
    Shortly thereafter, members of the Allentown Police Department
    responded to [address omitted] for a report of a stabbing.
    Officer Craig Berger was the first officer on scene and observed
    the victim, later identified as Ahiezer Padilla-Marrero, slumped
    over on a chair to the left of Ms. Olivo’s front door, surrounded
    by a group of people. Officer Berger observed that [the victim]
    _______________________
    (Footnote Continued)
    2015. The Court further ordered the Commonwealth to update this Court, in
    writing, by December 11, 2015, as to the status of the transcriptions.
    On December 11, 2015, by letter, the Commonwealth advised this
    Court that the trial transcripts had not been transcribed despite additional
    requests directed to the official court reporter. The Commonwealth filed its
    brief on December 18, 2015.
    This appeal came before this panel on February 1, 2016. On May 3,
    2016, Volumes II, III, and IV of the trial testimony, and one envelope of trial
    exhibits were filed with this Court. Volume I of the trial testimony was filed
    with this Court on July 14, 2016.
    3
    By order of November 21, 2014, the trial court directed Gonzalez to
    file a Pa.R.A.P. 1925(b) statement. On December 24, 2014, Gonzalez filed a
    motion for extension of time to file his Rule 1925(b) statement. Gonzalez
    filed his concise statement on January 30, 2015.
    -3-
    J-S16020-16
    had an apparent stab wound to the center of his torso, was
    covered in blood, and was non-responsive. He radioed EMS and
    directed them to come to the scene immediately.
    At that point, Officer Michael Yetter had arrived on scene and
    stayed with the victim and witnesses. Officer Berger proceeded
    to the front apartment building door and observed blood droplets
    on the steps, leading into the building. He followed those blood
    droplets to Apartment D3. At that point, Officer Kyle Pammer
    joined him and they determined that the apartment door was
    locked. The officers knocked on the door, paused for 20 seconds,
    knocked again on the door, and announced their presence as
    police officers. Officer Berger radioed the police sergeant and
    advised that he and Officer Pammer were going to enter the
    apartment. Sergeant Alicia Conjour, now positioned outside of
    the apartment building, advised that she observed a male
    appear in a window of the apartment.
    When no response was made from the inside of the apartment,
    Officer Berger delivered one kick to the door and was able to
    enter the apartment with Officer Pammer. Upon entering the
    apartment, they observed that the apartment was in disarray
    and noted a dining room and kitchen off to their right. They
    observed a kitchen to the right of the dining room. As they
    cleared the area, they observed blood on the carpet, walls,
    furniture and kitchen sink area. Inside the sink, Officer Pammer
    observed three or four knives which were wet, and blood in the
    sink. After clearing the kitchen living areas, the officers heard
    footsteps and heard a door close.
    The officers noticed two doors to the rear of the apartment. The
    left door was open and Officer Berger was able to determine that
    the door led to a bathroom. The door to the right was closed.
    Officer [David] Howells, now present in the apartment,
    announced that whoever was inside should come out.
    Approximately 10 to 15 seconds later, a male emerged, wearing
    only blue jeans or shorts. The man had blood spatter on his face
    and chest area and kept looking back into the room, which was
    ultimately determined to be the only bedroom in the apartment.
    The male appeared hesitant and kept looking back into the
    room, causing other officers to train their Taser guns on the
    male. Ultimately, Officer Berger handcuffed him. The male was
    identified as [Gonzalez]. The officers discovered [Gonzalez’s] two
    minor children inside the bedroom.
    -4-
    J-S16020-16
    Once handcuffed, [Gonzalez] was led to the kitchen area and
    was seated at the dining room table. Officer Berger noted
    injuries to his head and blood on his torso. He contacted EMS to
    respond to the apartment to treat [Gonzalez]. Officer Berger
    then obtained basic information from the male, including his
    name and date of birth, and kept him under observation. Officer
    Berger also observed blood spatter and a dent in the drywall in
    the dining area. While seated at the table, [Gonzalez] began to
    talk to Officer Berger, despite not being asked any questions by
    the officers on scene. Speaking in “broken” English, [Gonzalez]
    related that the victim had eaten all of the food [Gonzalez] had
    previously prepared for his children and that [Gonzalez] felt
    disrespected. [Gonzalez] confronted the victim and the victim
    punched [Gonzalez] in the face. The victim grabbed a knife and
    [Gonzalez] responded by grabbing a knife himself. He then
    repeatedly asked Officer Berger, “What would you do?” Officer
    Berger did not answer [Gonzalez], nor did he ask him any
    questions.
    When EMS arrived, Officer Berger asked them to check
    [Gonzalez] for injury or if he was in need of medical treatment.
    [Gonzalez] refused medical treatment.
    Detective Raymond Ferraro had arrived on scene and began to
    speak with [Gonzalez], again obtaining basic information. He
    was able to observe blood splatter on [Gonzalez] and that there
    was an injury near [Gonzalez’s] eye. Detective Ferraro, unable to
    speak Spanish, believed that there may be a language barrier
    and requested that Officer Miguel Villa respond to the scene to
    assist in translation. Officer Villa is bilingual in Spanish and
    English. Detective Ferraro, Officer Villa, and [Gonzalez] were
    seated at the kitchen table and Officer Villa advised [Gonzalez]
    of his Miranda[4] warnings in Spanish, after Detective Ferraro
    read them aloud in English. [Gonzalez] verbally acknowledged
    that he understood his rights and was also given a written
    Miranda warning form to read, which was written in both English
    and Spanish. [Gonzalez] read the form and signed it with his
    right hand, acknowledging that he understood his rights, in
    ____________________________________________
    4
    Miranda v. Arizona, 
    384 U.S. 436
     (1966).
    -5-
    J-S16020-16
    Officer Villa’s presence. [Gonzalez] appeared sober and
    responded in both English and Spanish to questions posed to
    him. At that point, Detective Ferraro was treating the incident as
    a stabbing investigation and [Gonzalez] was taken to police
    headquarters.
    At some later point in time, Detective Ferraro was informed that
    the victim had succumbed to his injuries. At that point, Detective
    Ferraro requested the assistance of Lehigh County Detective
    Joseph Vazquez, a member of the Homicide Task Force.
    Detective Vazquez went to the scene, made observations, and
    proceeded to police headquarters.
    At headquarters, a videotaped interview with [Gonzalez] was
    conducted. [Gonzalez] was informed that Detective Vazquez
    spoke Spanish and was available to translate during the
    interview. [Gonzalez] was again Mirandized, and he again
    completed the written waiver of his rights. The detectives first
    obtained biographical information from [Gonzalez] and advised
    him that they wanted to speak to [Gonzalez] regarding what had
    transpired in the apartment. Thereafter, the detectives advised
    [Gonzalez] that the victim had died. [Gonzalez] immediately
    began to cry.
    During the course of the interview, [Gonzalez] changed his story
    several times. First, he indicated that he did not know what
    happened. Next, he stated that the victim had stabbed himself.
    Then, [Gonzalez] indicated that indeed he and the victim had
    fought, but that if the victim had been stabbed, [Gonzalez] didn’t
    remember stabbing him. Finally, after Detective Ferraro
    disclosed that the victim had suffered a stab wound to the back,
    [Gonzalez] once again indicated that he did not know what had
    happened.
    The detectives presented [Gonzalez] with several scenarios of
    what may have happened, including one in which [Gonzalez] was
    acting in self-defense, but [Gonzalez] refused to agree with any
    of the scenarios posed by the detectives. [Gonzalez] denied
    stabbing the victim.
    On September 30, 2013, an autopsy was performed by Dr.
    Barbara Bollinger, a forensic pathologist and expert in forensic
    pathology. Dr. Bollinger determined that the victim’s cause of
    death was multiple sharp force injuries and the manner of death
    -6-
    J-S16020-16
    was homicide. Specifically, Dr. Bollinger found a large, gaping
    stab wound to the victim's chest approximately 2.5 to 3.5 inches
    in depth, which had plunged into the victim’s heart. Dr. Bollinger
    opined that this was a lethal wound and the victim would have
    succumbed to the wound within minutes. Further, she found a
    stab wound to the right aspect of the victim’s neck, which had
    perforated the small internal jugular vein. She opined that this
    was another fatal stab wound. Dr. Bollinger testified that the
    wounds were consistent with the use of two different knives.
    Dr. Bollinger found several other superficial wounds on the
    victim’s torso, back, shoulders, back of wrists, forearms, left
    thigh and knee. She further opined that some of these wounds
    could be categorized as defensive wounds.
    [Gonzalez] testified at trial, telling the jury that he and the
    victim were family friends and that he had known the victim
    while the two of them lived in Puerto Rico. He stated that
    approximately one and a half weeks before this incident, he had
    permitted the victim to stay in his apartment, so long as the
    victim agreed to follow [Gonzalez’s] house rules. Specifically,
    [Gonzalez] wanted the apartment to remain clean and for the
    victim to refrain from using [Gonzalez’s] personal hygiene items.
    While staying at [Gonzalez’s] apartment, the victim slept on a
    mattress in the living room area.
    On September 28, 2013, [Gonzalez] had returned in the late
    evening with his children, ages 2 years and 1 year old. The
    victim was at the apartment when they arrived home.
    [Gonzalez] and children greeted the victim and [Gonzalez]
    proceeded to bathe his children and attempted to feed them.
    [Gonzalez] testified that earlier in the day, he had made rice for
    the children. When [Gonzalez] checked the pot still on the stove,
    he discovered that there was not enough for the children to eat.
    [Gonzalez] confronted the victim regarding the missing food and
    the two began to argue. Their verbal argument got louder and
    one of the young children appeared to be scared. [Gonzalez]
    testified that he asked the victim to lower his voice and that if he
    couldn’t calm down, that he should go outside of the apartment
    to cool down. [Gonzalez] began to take his children into the
    bedroom.
    -7-
    J-S16020-16
    [Gonzalez] further testified that just before he entered the
    bedroom with his children, the victim punched him in the head,
    causing [Gonzalez] to strike the child he was carrying.
    [Gonzalez] put the children in the bedroom and reemerged.
    [Gonzalez] stated that he pushed the victim and told him that he
    didn’t want him at his house anymore because [Gonzalez] had
    been disrespected. As the victim was walking backwards out of
    the bedroom area, [Gonzalez] began to punch the victim.
    The physical altercation continued as the victim walked into the
    dining room area. [Gonzalez] testified that the victim pushed
    him into a wall, causing him to fall down. [Gonzalez] was able to
    get up and the fight continued in the corner of the dining room.
    [Gonzalez] testified that the victim then entered the kitchen,
    opened a drawer, and retrieved a knife. [Gonzalez] testified that
    he told the victim to calm down and to leave the apartment.
    [Gonzalez] further testified that the victim stated that he wanted
    to continue the fight and brandished a knife. [Gonzalez]
    attempted to grab the victim’s hand in order to take away the
    knife. He was unsuccessful and the fight continued. At some
    point, the knife fell onto the ground and the victim grabbed
    [Gonzalez] by his neck and threw him to the floor. [Gonzalez]
    testified that he was throwing punches and kicking at the victim
    when he felt something on the floor. [Gonzalez] then struck the
    victim with the knife, attempting to get the victim to stop
    fighting and/or choking him. [Gonzalez] characterized his knife
    use as a “poke,” intended only to force the victim to let go of
    him. [Gonzalez] continued to “poke” at the victim.
    A short time later, [Gonzalez] realized that he had blood on him
    and went to his children to calm them. He then saw the victim
    leaving the apartment, went to the apartment door to lock it,
    and noticed blood on the doorknob. [Gonzalez] then went into
    the bathroom and washed his hands. He also discovered the
    bleeding wound over his eye.
    On cross examination, [Gonzalez] admitted that he had a
    confrontation with the victim and that he caused the victim’s
    death. He further admitted that he did not inform the police that
    the victim punched him first to start the altercation, nor did he
    inform them that the victim choked him in the course of the
    fight. [Gonzalez] believed that the victim’s stab wounds must
    -8-
    J-S16020-16
    have occurred in the course of their altercation and denied
    deliberately stabbing the victim.
    Trial Court Opinion, 3/16/2015, at 3–9.5 The trial court charged the jury on
    murder in the first degree, murder in the third degree, and voluntary
    manslaughter. The jury found Gonzalez guilty of murder in the third degree.
    In his first issue, Gonzalez challenges the sufficiency the evidence to
    sustain his conviction.6         Gonzalez argues the Commonwealth failed to
    disprove his claim of self-defense, specifically, he claims he “was confronted
    with a much larger individual who had already shown disrespect for
    [Gonzalez] and his children and who [Gonzalez] had reason to fear.”
    Gonzalez’s Brief at 20.       Gonzalez contends “the record did not support any
    reasonable inference that the taking of food would lead to [Gonzalez] having
    the requisite malice required to support his conviction.” 
    Id.
     at 20–21. He
    asserts that “his testimony and a review of all evidence shows how he was
    ____________________________________________
    5
    Gonzalez also presented the prior criminal record of the victim, showing
    that the victim had three simple assault convictions, in 2005 (12 months’
    probation), 2010 (12 months’ probation), and 2011 (7–23 months’
    imprisonment). See N.T., 10/2/2014, at 127–135. It was stipulated that
    Gonzalez was convicted of simple assault in 2013, and received 12 months’
    probation. Id. at 137.
    6
    We must address this issue first, since a successful sufficiency of the
    evidence challenge warrants discharge on the pertinent crime.
    Commonwealth v. Toritto, 
    67 A.3d 29
    , 33 (Pa. Super. 2013).
    -9-
    J-S16020-16
    the victim of an assault that he responded to and while it unfortunately led
    to his use of deadly force that force was necessary to protect himself.” Id.
    at 21. Gonzalez maintains “the record does not support any finding that he
    acted unreasonably, that he provoked the use of force, or that he had to
    retreat while he was in his own home and [the victim] was his guest.” Id.
    The principles that guide our review are well settled:
    The standard we apply in reviewing the sufficiency of the
    evidence is whether viewing all the evidence admitted at trial in
    the light most favorable to the verdict winner, there is sufficient
    evidence to enable the fact-finder to find every element of the
    crime beyond a reasonable doubt. In applying [the above] test,
    we may not weigh the evidence and substitute our judgment for
    the fact-finder. In addition, we note that the facts and
    circumstances established by the Commonwealth need not
    preclude every possibility of innocence. Any doubts regarding a
    defendant’s guilt may be resolved by the fact-finder unless the
    evidence is so weak and inconclusive that as a matter of law no
    probability of fact may be drawn from the combined
    circumstances. The Commonwealth may sustain its burden of
    proving every element of the crime beyond a reasonable doubt
    by means of wholly circumstantial evidence. Moreover, in
    applying the above test, the entire record must be evaluated and
    all evidence actually received must be considered. Finally, the
    trier of fact 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.
    Commonwealth v. Ventura, 
    975 A.2d 1128
    , 1142 (Pa. Super. 2009).
    Third degree murder occurs when a person commits a killing
    which is neither intentional nor committed during the
    perpetration of a felony, but contains the requisite malice. Malice
    is not merely ill-will but, rather, wickedness of disposition,
    hardness of heart, recklessness of consequences, and a mind
    regardless of social duty. Malice may be inferred from the use of
    a deadly weapon on a vital part of the victim’s body. Further,
    malice may be inferred after considering the totality of the
    circumstances.
    - 10 -
    J-S16020-16
    Commonwealth v. Son Truong, 
    36 A.3d 592
    , 597-98 (Pa. Super. 2012)
    (quotations and citations omitted).
    Section 505 of the Crimes Code sets forth self-defense rights and
    limitations, and provides, in relevant part:
    (a) Use of force justifiable for protection of the person. — The
    use of force upon or towards another person is justifiable when
    the actor believes that such force is immediately necessary for
    the purpose of protecting himself against the use of unlawful
    force by such other person on the present occasion.
    (b) Limitations on justifying necessity for use of force. —
    …
    (2) The use of deadly force is not justifiable under this
    section unless the actor believes that such force is
    necessary to protect himself against death, serious bodily
    injury, kidnapping or sexual intercourse compelled by
    force or threat; nor is it justifiable if:
    (i) the actor, with the intent of causing death or serious
    bodily injury, provoked the use of force against himself in
    the same encounter; or
    (ii) the actor knows that he can avoid the necessity of
    using such force with complete safety by retreating,
    except the actor is not obliged to retreat from his dwelling
    or place of work, unless he was the initial aggressor or is
    assailed in his place of work by another person whose
    place of work the actor knows it to be.
    18 Pa.C.S.§ 505(a), (b)(2)(i)-(ii).
    If the defendant properly raises “self-defense under Section 505
    of the Pennsylvania Crimes Code, the burden is on the
    Commonwealth to prove beyond a reasonable doubt that the
    defendant’s    act    was      not     justifiable self-defense.”
    Commonwealth v. McClendon, 
    2005 PA Super 164
    , 
    874 A.2d 1223
    , 1229-30 (Pa.Super. 2005).
    - 11 -
    J-S16020-16
    The Commonwealth sustains this burden if it establishes
    at least one of the following: 1) the accused did not
    reasonably believe that he was in danger of death or
    serious bodily injury; or 2) the accused provoked or
    continued the use of force; or 3) the accused had a duty
    to retreat and the retreat was possible with complete
    safety.
    Commonwealth v. Hammond, 
    2008 PA Super 128
    , 
    953 A.2d 544
    , 559 (Pa.Super. 2008), appeal denied, 
    600 Pa. 743
    , 
    964 A.2d 894
     (2009) (quoting McClendon, 
    supra at 1230
    ). The
    Commonwealth must establish only one of these three elements
    beyond a reasonable doubt to insulate its case from a self-
    defense challenge to the evidence. Commonwealth v. Burns,
    
    2000 PA Super 397
    , 
    765 A.2d 1144
    , 1149 (Pa.Super. 2000),
    appeal denied, 
    566 Pa. 657
    , 
    782 A.2d 542
     (2001). The
    Commonwealth can negate a self-defense claim if it proves the
    defendant did not reasonably believe he was in imminent danger
    of death or great bodily injury and it was necessary to use
    deadly force to save himself from that danger. Commonwealth
    v. Sepulveda, 
    618 Pa. 262
    , 289, 
    55 A.3d 1108
    , 1124 (2012).
    The requirement of reasonable belief encompasses two
    aspects, one subjective and one objective. First, the
    defendant must have acted out of an honest, bona fide
    belief that he was in imminent danger, which involves
    consideration of the defendant's subjective state of mind.
    Second, the defendant's belief that he needed to defend
    himself with deadly force, if it existed, must be
    reasonable in light of the facts as they appeared to the
    defendant, a consideration that involves an objective
    analysis.
    Commonwealth v. Mouzon, 
    617 Pa. 527
    , 551, 
    53 A.3d 738
    ,
    752 (2012). As the Mouzon Court observed, the 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. [T]his would be an incomplete and inaccurate view
    of the circumstances for self-defense purposes.” Id. at 549, 
    53 A.3d at 751
    . To claim self-defense, the defendant must be free
    from fault in provoking or escalating the altercation that led to
    the offense, before the defendant can be excused from using
    deadly     force.   
    Id.
        (emphasis     added).    Likewise,    the
    Commonwealth can negate a self-defense claim by proving the
    - 12 -
    J-S16020-16
    defendant “used more force than reasonably necessary to
    protect against death or serious bodily injury.” Commonwealth
    v. Truong, 
    2012 PA Super 8
    , 
    36 A.3d 592
    , 599 (Pa.Super.
    2012) (en banc).
    When the defendant’s own testimony is the only evidence of self-
    defense, the Commonwealth must still disprove the asserted
    justification and cannot simply rely on the jury’s disbelief of the
    defendant’s testimony:
    The “disbelief of a denial does not, taken alone, afford
    affirmative proof that the denied fact existed so as to
    satisfy a proponent's burden of proving that fact.” The
    trial court’s statement that it did not believe Appellant's
    testimony is no substitute for the proof the
    commonwealth was required to provide to disprove the
    self-defense claim.
    Commonwealth v. Reynolds, 
    2003 PA Super 400
    , 
    835 A.2d 720
    , 731 (Pa.Super. 2003) (quoting Torres, supra). If there are
    other witnesses, however, who provide accounts of the material
    facts, it is up to the fact finder to “reject or accept all, part or
    none of the testimony of any witness.” Commonwealth v.
    Gonzales, 
    415 Pa. Super. 564
    , 
    609 A.2d 1368
    , 1370 (Pa.Super.
    1992).
    A number of factors, including whether complainant was armed,
    any actual physical contact, size and strength disparities
    between the parties, prior dealings between the parties,
    threatening or menacing actions on the part of complainant, and
    general circumstances surrounding the incident, are all relevant
    when determining the reasonableness of a defendant's belief
    that the use of deadly force was necessary to protect against
    death or serious bodily injuries. See Commonwealth v. Soto,
    
    657 A.2d 40
    , 
    441 Pa. Super. 241
     (Pa.Super. 1995) (concurring
    opinion by Olszewski, J.) (collecting cases for this general
    proposition). No single factor is dispositive. 
    Id.
     Furthermore, a
    physically larger person who grabs a smaller person does not
    automatically invite the smaller person to use deadly force in
    response. Commonwealth v. Hill, 
    427 Pa. Super. 440
    , 
    629 A.2d 949
     (Pa.Super. 1993).
    Commonwealth v. Smith, 
    97 A.3d 782
    , 787 (Pa. Super. 2014).
    - 13 -
    J-S16020-16
    Based on our careful review, we conclude the Commonwealth’s
    evidence supports the jury’s verdict of murder of the third degree.       The
    Commonwealth showed Gonzalez felt “disrespected,” 7 that he confronted the
    victim and a struggle ensued, that the victim suffered fatal stab wounds to
    the chest and neck, and that the victim’s wounds were not self-inflicted. The
    Commonwealth presented evidence including Gonzalez’s statements to
    police at his apartment and at police headquarters;8 photographs of the
    ____________________________________________
    7
    N.T., 9/30/2014, at 87 (direct examination testimony of Officer Craig
    Berger).
    8
    Officer Berger testified that at the apartment, Gonzalez stated that “[w]hen
    he went to confront [the victim] about [eating all of his food] that [the
    victim] had punched him in the face.” N.T., 9/30/2014, at 88. Officer
    Berger further testified “[Gonzalez] then stated that [the victim] grabbed a
    knife and [Gonzalez] stated that he grabbed the knife and then he kind of
    ended right there.” 
    Id.
     Gonzalez did not go any further; he asked the
    officer, “What would you do?” Id. at 89, 100.
    After Gonzalez was Mirandized at police headquarters, he told
    Detectives Vasquez and Ferraro during questioning that the victim had
    stabbed himself, and that he didn’t know what had happened. See N.T.,
    10/1/2014, at 51–52 (direct examination testimony of Detective Vasquez),
    169–170 (direct examination testimony of Officer Ferraro).
    Detective Vasquez testified that at the interview at police headquarters
    “[w]e did everything from offering him the explanation of … him defending
    himself where the victim may have attacked him to him defending himself
    by going to get another knife, taking the knife from the victim to use against
    the victim, in – in his own self-defense and as you will see that none of that
    – he wouldn’t agree to any of that.” Id. at 52.
    Detective Ferraro testified the content of what Gonzalez stated in the
    interview was basically the same as he had stated after he was Mirandized
    (Footnote Continued Next Page)
    - 14 -
    J-S16020-16
    crime scene,9 of Gonzalez at the crime scene,10 and of the injuries of the
    victim;11 and a forensic pathologist, who testified regarding the nature of the
    _______________________
    (Footnote Continued)
    and questioned at his apartment by Detective Ferraro with the interpretation
    assistance of Officer Villa. Id. at 169, 162–169.
    The Commonwealth played the police headquarters interview video at
    trial, and the jurors followed along with the transcript.      See N.T.,
    10/1/2014, at 176–177, 185–190; Commonwealth Exhibits 28 (interview
    transcript/translation) and 69 (recorded interview).
    9
    The photographs included photographs of blood spatter in the apartment,
    and a photograph of two knives in the kitchen sink and blood around the
    sink area. See N.T., 9/30/2014, at 72; Exhibits 20 and 21. Detective
    Vasquez testified he saw water with a reddish tint in the sink. N.T.,
    10/1/2014, at 34.
    10
    Officer Berger testified he saw that Gonzalez had a laceration on the head,
    other small lacerations, a cut to his hand, and was covered in blood spatter.
    N.T., 9/30/2014, at 78–82. When EMS arrived, Gonzalez refused treatment.
    Id. at 91–92.
    Detective Vasquez testified that at police headquarters, the only
    injuries he identified on Gonzalez were an abrasion above his eye where it
    appeared he had been punched, and some “very superficial lacerations” on
    two of his fingers – the index and middle finger. N.T., 10/1/2014, at 36–37.
    Gonzalez was covered in blood. Id. at 38. Officer Vasquez did not observe
    any cuts or slashes or knife wounds. Id. Detective Vasquez testified that in
    his experience when an individual stabs a person, their hand will slide over
    the top of the knife and “you get small cuts from either the top end of the
    blade or the blade itself[.]” Id. at 39. He stated when he observed
    Gonzalez’s hand, he saw these small lacerations inside Gonzalez’s fingers.
    Id. at 39–40.
    11
    The victim’s injuries included a stab wound to the right side of the neck of
    about one inch, a wound on the left side of his chest of approximately two
    inches, slight stab wounds on the back of the victim, and a stab wound on
    the victim’s left leg near the kneecap. See N.T., 10/1/2014, at 78–81.
    - 15 -
    J-S16020-16
    victim’s wounds.12 Viewing the evidence in the light most favorable to the
    Commonwealth as verdict winner, the jury could properly conclude that the
    Commonwealth’s         evidence      negated       Gonzalez’s   self-defense   claim.
    Specifically, based on the evidence presented by the Commonwealth and
    reasonable inferences derived therefrom, the jury could find that Gonzalez
    did not reasonably believe that deadly force was necessary or that Gonzalez
    used more force than reasonably necessary and that Gonzalez was not free
    from fault in provoking or continuing the use of force. Accordingly, we find
    Gonzalez’s challenge to the sufficiency of the evidence to establish third
    degree murder warrants no relief.
    ____________________________________________
    12
    Dr. Bollinger testified the cause of death was “multiple sharp force
    injuries” and the manner of death was homicide. N.T., 10/1/2014, at 120.
    She identified “nine sharp force injuries” and also “areas of blunt force
    trauma.” Id. at 121. She noted a “gaping” wound in the victim’s left chest
    area. Id. at 125. That wound measured one and seven-eighth inches
    across, and two and one-half to three and one-half inches deep, and the
    heart was penetrated by the knife. Id. The wound was lethal. Id. at 127.
    Another lethal wound was a one-half inch stab wound to the right aspect of
    the victim’s neck, and the tributaries of the jugular vein were penetrated by
    the knife. Id. at 128-130. Dr. Bollinger testified the wounds “may very well
    be” consistent with two separate knives. Id. at 131. Dr. Bollinger noted
    other superficial incised wounds to the victim’s torso and extremities,
    including a larger wound over the left thigh and knee. Id. at 132. Dr.
    Bollinger testified that wound may be a defensive wound. Id. at 134. Dr.
    Bollinger also stated there was “some blunt force trauma to the head.” Id.
    at 138.
    - 16 -
    J-S16020-16
    Gonzalez next claims the trial court erred in denying his motion to
    suppress statements that he gave to police at the scene and at police
    headquarters. Specifically, he argues:
    [Gonzalez] does not contest that he was given his Miranda
    Rights at the scene and at police headquarters; however, he
    does believe that a review of the testimony shows that the
    statements were given to an individual who had just gone
    through an extremely traumatic occurrence. There was no doubt
    that [Gonzalez] had suffered from some type of assault
    regardless of whether or not it was of his own actions or caused
    by the victim. There was also evidence that [Gonzalez] had
    suffered physical injuries resulting from the altercation.
    Additionally, the voluntariness of [Gonzalez’s] consent was
    based upon an assumption that he could understand the
    explanations of his rights regardless of his lack of understanding
    of the English language.       [Gonzalez] had suffered physical
    injuries from the altercation with the victim and, on at least one
    occasion, had requested access to bathroom facilities but was
    denied such access. In summary, the environment in which
    statements were given was so coercive as to strip from the
    process any voluntariness in [Gonzalez’s] actions.
    Gonzalez’s Brief at 24–25.
    Our standard of review is, as follows:
    In reviewing a suppression court’s denial of a suppression
    motion,
    we may consider only the evidence of the Commonwealth
    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 suppression court’s factual findings
    are supported by the record, we are bound by these
    findings and may reverse only if the court’s legal
    conclusions are erroneous.
    Commonwealth v. Jones, 
    605 Pa. 188
    , 
    988 A.2d 649
    , 654 (Pa.
    2010) (citing Commonwealth v. Bomar, 
    573 Pa. 426
    , 
    826 A.2d 831
    , 842 (Pa. 2003)). Nonetheless, we exercise plenary
    - 17 -
    J-S16020-16
    review over the suppression court’s conclusions of law. 
    Id.
    (citations omitted).
    Commonwealth v. Johnson, 
    107 A.3d 52
    , 93 (Pa. 2014).
    When deciding a motion to suppress a confession, the
    touchstone inquiry is whether the confession was
    voluntary. Voluntariness is determined from the totality of
    the circumstances surrounding the confession. The
    question of voluntariness 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. The Commonwealth
    has the burden of proving by a preponderance of the
    evidence that the defendant confessed voluntarily.
    Commonwealth v. Nester, 
    551 Pa. 157
    , 162-163, 
    709 A.2d 879
    , 882 (1998) (citations and footnote omitted).
    When assessing voluntariness pursuant to the totality of
    the circumstances, a court should look at the following
    factors: 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.
    
    Id. at 164
    , 
    709 A.2d at 882
     (citations omitted). “The
    determination of whether a confession is voluntary is a
    conclusion of law and, as such, is subject to plenary review.”
    Commonwealth v. Templin, 
    568 Pa. 306
    , 310, 
    795 A.2d 959
    ,
    961 (2002), citing Nester, 
    supra.
    Commonwealth v. Harrell, 
    65 A.3d 420
    , 434 (Pa. Super. 2013).
    The trial court has provided a cogent analysis of Gonzalez’s statements
    to police in his home and at police headquarters, and our review confirms
    that there is no basis upon which to disturb the trial court’s denial of the
    motion to suppress. Moreover, because we conclude further elaboration is
    - 18 -
    J-S16020-16
    unwarranted,     we   adopt   the   trial   court’s   pre-trial   opinion   regarding
    Gonzalez’s suppression as our own for purposes of this appeal.              See Trial
    Court Opinion, 5/27/2014.       Therefore, we reject Gonzalez’s suppression
    challenge.
    Finally, Gonzalez claims the trial court erred in its evidentiary ruling
    that allowed into evidence various photographs of blood spatter, pools of
    blood, and the deceased victim.
    In Commonwealth v. Robinson, 
    864 A.2d 460
     (Pa. 2004), the
    Pennsylvania Supreme Court set out the law to be applied in these
    circumstances:
    It has been a steadfast principle of our jurisprudence that
    pictures of the victim are not per se inadmissible. In relation to
    admissibility of these photographs, we have promulgated the
    following test:
    [A] court must determine whether the photograph is
    inflammatory. If not, it may be admitted if it has
    relevance and can assist the jury’s understanding of the
    facts. If the photograph is inflammatory, the trial court
    must decide whether or not the photographs are of such
    essential evidentiary value that their need clearly
    outweighs the likelihood of inflaming the minds and
    passions of the jurors. If an inflammatory photograph is
    merely cumulative of other evidence, it will not be
    deemed admissible.
    “The admissibility of photos of the corpse in a homicide case is a
    matter within the discretion of the trial court, and only an abuse
    of discretion will constitute reversible error.” As we also
    explained …:
    A criminal homicide trial is, by its very nature,
    unpleasant, and the photographic images of the injuries
    inflicted are merely consonant with the brutality of the
    - 19 -
    J-S16020-16
    subject of inquiry. To permit the disturbing nature of the
    images of the victim to rule the question of admissibility
    would result in exclusion of all photographs of the
    homicide victim, and would defeat one of the essential
    functions of a criminal trial, inquiry into the intent of the
    actor. There is no need to so overextend an attempt to
    sanitize the evidence of the condition of the body as to
    deprive the Commonwealth of opportunities of proof in
    support of the onerous burden of proof beyond a
    reasonable doubt. Further, the condition of the victim’s
    body provides evidence of the assailant's intent, and,
    even where the body's condition can be described
    through testimony from a medical examiner, such
    testimony does not obviate the admissibility of
    photographs.
    Robinson, 864 A.2d at 501–502 (citations omitted).
    Here, the record reflects objections were raised only with regard to six
    photographs, which were all photographs of the deceased.             See N.T.,
    10/1/2014, at 65.     The trial court allowed admission of two of these
    photographs, Exhibits 31 and 32. See id. at 70.
    The trial court, in support of its ruling explained:
    At trial, counsel for [Gonzalez] objected to the admission of
    several autopsy photographs, specifically Commonwealth Exhibit
    31 (depicting a stab wound to the victim’s chest), Exhibit 32
    (depicting a close-up photograph of the stab wound to the
    victim’s chest), Exhibit 33 (depicting a stab wound to the
    victim’s leg), Exhibit 59 (depicting the upper body of the victim),
    Exhibit 60 (depicting the victim’s chest and arms), and Exhibit
    65 (depicting the victim’s left leg). After argument, the Court
    determined that Commonwealth Exhibits 33, 59, 60, and 65
    would be excluded. Prior to being shown these photographs, the
    Court issued a cautionary instruction to the jury, to warn them
    that the photographs were unpleasant but valuable in their
    consideration and to ask the jurors to be dispassionate in their
    consideration of the photographs.
    - 20 -
    J-S16020-16
    The Court has reviewed the photographic evidence actually
    admitted at Trial, and based on the relevant case law and the
    individual photographs themselves, we believe the admission of
    the photographs were probative of [Gonzalez’s] intent to kill, his
    assertion of self defense, …, and the manner of the victim’s
    death.
    Trial Court Opinion, 3/16/2015, at 16–17.
    We have reviewed Commonwealth’s Exhibits 31 and 32, and we
    discern no abuse of discretion in the trial court’s decision to admit these
    photographs.        Although Gonzalez argues that the photographs were
    unnecessary because there was no question that the victim died from stab
    wounds and expert testimony set out the cause of death, 13 “the fact that a
    medical examiner can describe the victim’s wounds to the jury does not
    render photographs of those wounds irrelevant.” Commonwealth v.
    Haney, 
    131 A.3d 24
    , 38 (Pa. 2015) (quotations and citation omitted). The
    trial court carefully weighed the evidentiary value of the six, objected-to
    photographs, and excluded all but two, finding Exhibits 30 and 31 were
    probative in assisting the jury on the issues of intent to kill and self defense.
    Moreover, prior to publishing the exhibits to the jury, the trial court issued a
    cautionary instruction, see N.T., 10/1/2014, at 77–78, and the jury is
    presumed to have followed the court’s instruction. See Commonwealth v.
    ____________________________________________
    13
    Gonzalez’s Brief at 22.
    - 21 -
    J-S16020-16
    Walter, 
    119 A.3d 255
    , 286-87 (Pa. 2015), cert. denied, ___ U.S. ___
    (January 25, 2016). Accordingly, Gonzalez’s final claim fails.
    Judgment of sentence affirmed.14
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/16/2016
    ____________________________________________
    14
    In the event of further proceedings, the parties are directed to attach the
    trial court’s May 7, 2014 opinion addressing Gonzalez’s motion to suppress.
    - 22 -
    Received 07/20/2015 Superior Court Eastern District
    Circulated 07/25/2016 01:43 PM
    Filed 07/20/2015 Superior Court Eastern District
    3435 EDA 2014