J-S01042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RIGOBERTO HERNANDEZ                        :
                                               :
                       Appellant               :   No. 1098 MDA 2018

       Appeal from the Judgment of Sentence Entered December 20, 2017
      In the Court of Common Pleas of Lebanon County Criminal Division at
                        No(s): CP-38-CR-0001002-2017


BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                       FILED FEBRUARY 19, 2019

        Rigoberto Hernandez (Hernandez) appeals from the judgment of

sentence imposed by the Court of Common Pleas of Lebanon County (trial

court) following his jury conviction of two counts of Robbery, 18 Pa.C.S. §§

3701(a)(1)(ii), 3701(a)(1)(vi), and related offenses.1 We affirm.

        On April 6, 2017, at approximately 11:30 a.m., Hernandez and his co-

defendant, Orlando Nunez-Flores (Nunez-Flores), drove to the Fulton Bank

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Hernandez was also convicted of two counts of Criminal Conspiracy to
Commit Robbery, 18 Pa.C.S. § 903; and one count each of Theft by Unlawful
Taking, 18 Pa.C.S. § 3921(a); Criminal Conspiracy to Commit Theft by
Unlawful Taking, 18 Pa.C.S. § 903; Receiving Stolen Property, 18 Pa.C.S. §
3925(a); Criminal Conspiracy to Receive Stolen Property, 18 Pa.C.S. § 903;
Fleeing or Attempting to Elude a Police Officer, 75 Pa.C.S. § 3733(a);
Recklessly Endangering Another Person, 18 Pa.C.S. § 2705; and Reckless
Driving, 75 Pa.C.S. § 3736(a).
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located in Schaefferstown, Lebanon County. Nunez-Flores entered the bank

and demanded money from the tellers at gunpoint, while Hernandez waited in

his vehicle. After Nunez-Flores obtained $2,963.00 in cash, some of which

was GPS-enabled for tracking, he ran out the front door and into Hernandez’s

vehicle.   Responding police officers pursued the GPS signal coming from

Hernandez’s sedan, which led to a high-speed chase ending with Hernandez’s

car crashing into a chain link fence. Police officers pulled Hernandez out of

the vehicle and took him into custody. Nunez-Flores fled the scene but after

a foot chase was captured with cash obtained from the robbery.

      Hernandez and Nunez-Flores proceeded to a jury trial in October 2017.

At its conclusion, both were found guilty of the above-referenced offenses.

The trial court sentenced Hernandez to an aggregate term of not less than

sixteen nor more than forty-nine years’ incarceration.      Hernandez filed a

timely post-sentence motion, which the trial court denied. Hernandez timely

appealed and complied with the court’s directive to file a concise statement of

errors complained of on appeal. See Pa.R.A.P. 1925.

                                         I.

      On appeal, Hernandez again challenges the judgment of sentence and

contends that he is entitled to a new trial for the same reasons that he did in

his post-trial motions, i.e., that there was insufficient evidence to establish

that he was an accomplice to the robbery and the jury verdict was against the

weight of the evidence.    The crux of his argument is that he was not an




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accomplice2 to the robbery because he was wholly unaware of and did not

participate in the bank robbery.


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2 A person is an accomplice of another person in the commission of an offense
if with the intent of promoting or facilitating the commission of the offense,
“he . . . . aids or agrees or attempts to aid such other person in planning or
committing it or his conduct is expressly declared by law to establish his
complicity.”     18 Pa.C.S.A. § 306(c).       A person is therefore “"legally
accountable for the conduct of another person when . . . . he is an accomplice
of such other person in the commission of the offense.” 18 Pa.C.S.A. § 306(b).
Our Supreme Court has summarized the requirements for establishing
accomplice liability as follows:

               A person is deemed an accomplice of a principal if “with the
       intent of promoting or facilitating the commission of the offense,
       he: (i) solicit[ed the principal] to commit it; or (ii) aid[ed] or
       agree[d] or attempt[ed] to aid such other person in planning or
       committing it.” 18 Pa.C.S. § 306; Commonwealth v. Spotz, 552
       Pa. 499, 716 A.2d 580, 585 (1998). Accordingly, two prongs must
       be satisfied for a defendant to be found guilty as an “accomplice.”
       First, there must be evidence that the defendant intended to aid
       or promote the underlying offense. Second, there must be
       evidence that the defendant actively participated in the crime by
       soliciting, aiding, or agreeing to aid the principal. While these two
       requirements may be established by circumstantial evidence, a
       defendant cannot be an accomplice simply based on evidence that
       he knew about the crime or was present at the crime scene. There
       must be some additional evidence that the defendant intended to
       aid in the commission of the underlying crime, and then did or
       attempted to do so. With regard to the amount of aid, it need not
       be substantial so long as it was offered to the principal to assist
       him in committing or attempting to commit the crime.

See Commonwealth v. Murphy, 577 Pa. 275, 844 A.2d 1228, 1234 (2004).
(internal citations omitted). “The driver of a ‘get away’ car can be found guilty
as an accomplice if it is reasonable to infer that he was aware of the actual
perpetrator’s intention. His agreement to effectuate the escape aids the
perpetrator in the planning and commission of the actual crime." Corn. v.
Wright, 344 A.2d 512, 515 (Pa. Super. 1975).


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       After a thorough review of the record and the applicable law, we

conclude that there is no merit to Hernandez’s claim that the evidence was

insufficient to support the verdict. The trial court gave a thorough summary

of the overall facts presented at trial. (See Trial Ct. Op., at 2-10). The facts

pertaining to Hernandez’s involvement as an accomplice to the robbery are as

follows:

      Lisa Marie Bickel, a teller, after testifying about the robbery,
       stated the day after the robbery, a State Trooper came to the bank
       and gave a description of the individuals caught indicating that
       one of the individuals walked with a limp. She stated that she
       remembered that a man had come into the bank the day before
       the robbery asking to change a one-hundred-dollar bill but she
       was unable to provide change since he was not a bank customer.
       A surveillance video from inside the bank from the day before the
       robbery was played for the jury. She identified the man who
       walked with a limp in the video as Hernandez.

      Heidi Swonger, a bank customer service representative, again
       after testifying about the robbery, stated that after the robber left
       the bank, she proceeded to the second set of doors at the entrance
       and observed him walking down the street and getting into the
       front passenger side of a gray, four-door sedan that was parked
       in an alley down the street from the Bank. Ms. Swonger was
       shown a picture of Hernandez’s vehicle and identified the vehicle
       as the sedan she saw the day of the robbery. She also stated that
       she observed the interaction between Ms. Bickel and the individual
       the day before the robbery and identified Hernandez as the
       individual who came into the bank looking to change the one-
       hundred-dollar bill.

      Susan Tucker, the bank teller from whom the money was taken,
       stated that she placed the GPS-enabled stacks of money from
       each drawer and placed them into the Wal-Mart bag that the
       suspect gave to her.

      Chief Michael Lee Lesher of the South Lebanon Township Police
       Department testified that he was notified through a mobile
       application that a GPS notification from the Bank that it had been

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      robbed. Along with other officers, he pursued the GPS signal and
      was able to determine that it was coming from a gray sedan. After
      he activated his vehicle’s lights and siren and pulled in front of the
      sedan, he noticed two occupants in the front of the sedan.
      Hernandez, the driver of the sedan, then pulled the vehicle up an
      embankment and moved around the police car and drove away.
      He then continued his pursuit through the local streets and
      eventually lost sight of the vehicle. He then heard on the radio
      that the sedan had been involved in an accident. Upon arriving
      on the scene of the accident, Chief Lesher observed the driver of
      the sedan, Hernandez, in custody, but noticed the passenger
      running away from the vehicle clutching what appeared to be a
      bag in his hand.

     Officer Randall J. Morgan testified he pursued the vehicle and
      watched it drive into a chain link fence, whereupon, he used his
      vehicle to block it. The passenger fled, but the officers on scene
      were able to pull the driver, later identified as Hernandez, out of
      the vehicle and take him into custody. When he returned to the
      vehicle, he observed a black handgun, a pistol and an orange and
      white pair of gloves on the passenger side.

     Sergeant Andrew Herberg of the North Lebanon Police
      Department testified that as he approached the scene of the
      accident, he observed an individual wearing a dark long-sleeved
      shirt and jeans running toward his vehicle. Along with another
      officer, he pursued that individual on foot eventually losing sight
      of him. As they were backtracking through the area where the
      individual was last seen, he noticed an individual’s legs sticking
      out from underneath a blue tarp. Sergeant Herberg drew his
      service weapon and ordered the individual to come out and put
      his hands up and found a gray bag full of money underneath the
      individual who later was identified Nunez–Flores.


  Hernandez does not dispute any of the evidence as outlined above. Instead

he testified that he was at his home in Harrisburg when he received a phone

call from an acquaintance he knew as Bayamon through a drug rehabilitation

support program, asking for a ride to Lebanon.         He stated that he drove

Bayamon to a certain location because Bayamon was going to try to borrow


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some money to give to Hernandez for gas. When Bayamon got back to the

car, he told him to drive back to Lebanon. He testified that when he stopped

at a light when the police car pulled in front of them, he stated that Bayamon

then took out a gun and told him if he stopped, that he would shoot him.

When the car ran into the fence and the police vehicle pushed it from behind,

he stated that he stayed with the car because he had no reason to run. When

questioned on cross-examination, Hernandez denied that Nunez-Flores was

the man that he drove to the bank on April 6, 2017.

   We agree with the trial court that there was sufficient evidence to convict

Hernandez as an accomplice to the robbery of the bank. As the trial court

reasoned:

      [Hernandez] testified that a man known only to him as Bayamon
      called him for a ride and that he traveled from Harrisburg to
      Lebanon in order to give this person a ride. However, he also
      noted that he didn't know this person very well. [Hernandez] then
      denied that he knew that Bayamon intended or had robbed the
      Bank. However, several Bank employees and witnesses at trial
      testified that [Hernandez] had entered the Bank a day before the
      robbery. [Hernandez] essentially admitted as such during cross-
      examination of Ms. Bickel when he stated “[t]his is regarding the
      5th of April . . . [t]he day I entered the bank.”

      Furthermore, Ms. Swonger testified that she saw [Hernandez’s]
      car waiting in an alley for Mr. Nunez-Flores. Ms. Swonger then
      identified a photograph of the vehicle that she saw. When the
      photograph was presented, [Hernandez] objected stating that
      “[the District Attorney is] showing a picture of my car.” Again,
      [Hernandez] admitted that the photograph was of his car and Ms.
      Swonger identified the vehicle as the one waiting for Mr. Nunez-
      Flores.

      Viewing the facts in the light most favorable to the Commonwealth
      as the verdict winner, we find that the Commonwealth presented

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       sufficient evidence in order to prove [Hernandez’s] liability as an
       accomplice to the robbery.           Multiple witnesses identified
       [Hernandez] as an individual that entered the very same bank the
       day before and [Hernandez’s] car was identified as the getaway
       vehicle. It is certainly within the jury’s purview to infer from the
       circumstances that [Hernandez] intended, agreed and indeed, did
       aid in the commission of the crime.

                                               II.

       Hernandez contends that because neither he nor Nunez-Flores testified

that they took any part in the robbery, he should be granted a new trial

because the jury placed too great a weight on the Commonwealth’s witnesses

regarding his participation in the robbery.3 Again, as the trial court cogently

observed:

____________________________________________


3 “A motion for a new trial based on a claim that the verdict is against the
weight of the evidence is addressed to the discretion of the trial court. A new
trial should not be granted because of a mere conflict in the testimony or
because the judge on the same facts would have arrived at a different
conclusion.    Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of greater weight that
to ignore them or to give them equal weight with all the facts is to deny justice.
It has often been stated that a new trial should be awarded when the jury’s
verdict is so contrary to the evidence as to shock one’s sense of justice and
the award of a new trial is imperative so that right may be given another
opportunity to prevail.

An appellate court’s standard of review when presented with a weight of the
evidence claim is distinct from the standard of review applied by the trial
court:

       Appellate review of a weight claim is a review of the exercise of
       discretion, not of the underlying question of whether the verdict
       is against the weight of the evidence. Because the trial judge has
       had the opportunity to hear and see the evidence presented, an
       appellate court will give the gravest consideration to the findings



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       The Commonwealth not only presented multiple eyewitnesses to
       the robbery who also identified [Hernandez] as the individual who
       entered the Bank a day before the robbery, but also some who
       identified his vehicle from photographs as the getaway car.
       [Hernandez] admitted to the actions in his testimony, but denies
       that he knew of the robbery or that Mr. Nunez-Flores was the
       perpetrator, though he admitted knowing Mr. Nunez-Flores
       otherwise.

       We find [Hernandez’s] claims to be incredulous. Having already
       determined that the evidence presented to the jury at trial was
       sufficient to sustain the [Hernandez’s] conviction and therefore,
       the verdict of the jury does not shock the conscience of this Court.
       The jury, as the trier of fact, “is free to believe all, none or part of
       the testimony presented at trial.” Corn. v. Gibbs, 981 A.2d 274,
       282 (Pa. Super. 2009). “The weight of evidence is not a question
       of mathematics, but depends on its effect in inducing belief.”
       Braunschweiger v. Waits, 36 A. 155, 156 (Pa. 1897). In
       deciding whether to give credence to one witness’ testimony over
       another’s, the jury may be led by several factors, including “[t]he
       manner and appearance of the witness, the character of his story,
       and its inherent probability.” Id. The jury was free to weigh the
       testimony of the Commonwealth’s witnesses versus the testimony
       presented by the Defendant and make its own determination as
       to credibility and belief.        This Court cannot disturb such
       determinations of the jury and the Defendant is not entitled to
       relief on this claim.




____________________________________________


       and reasons advanced by the trial judge when reviewing a trial
       court’s determination that the verdict is against the weight of the
       evidence. One of the least assailable reasons for granting or
       denying a new trial is the lower court’s conviction that the verdict
       was or was not against the weight of the evidence and that a new
       trial should be granted in the interest of justice.”

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013) (internal
citations and quotation marks omitted) (emphasis in original).


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     We see no basis in the trial court’s reasoning to find that it abused its

discretion in finding that the verdict was not against the weight of the

evidence.

     Because viewing the evidence in the light most favorable to the

Commonwealth as verdict winner, the Commonwealth presented sufficient

evidence to establish Hernandez’s guilt where witnesses identified him as an

individual who had entered the bank on the day before the robbery and

identified his car as the getaway vehicle; and Hernandez’s claim of ignorance

of the robbery was incredulous, and the jury’s verdict did not shock the

conscience, we affirm the judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2019




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