                                                            NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                  _____

                                     No. 12-2881
                                       ______

                               DAVID RODRIGUEZ

                                          v.

GERALD L. ROZUM; THE DISTRICT OF THE COUNTY OF PHILADELPHIA; THE
       ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA,
                                                     Appellants
                              ______

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                          (D.C. Civil No. 2-11-cv-00393)
                      District Judge: Honorable Jan E. DuBois
                                       ______

                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   June 13, 2013

      Before: SCIRICA, HARDIMAN, and VAN ANTWERPEN, Circuit Judges

                                 (Filed: July 1, 2013)
                                        ______

                             OPINION OF THE COURT
                                     ______

VAN ANTWERPEN, Circuit Judge.

      After a non-jury waiver trial in the Philadelphia County Court of Common Pleas,

Appellee David Rodriguez (―Rodriguez‖) was convicted of Murder in the Second
Degree, Aggravated Assault, and Attempted Murder.1 He was acquitted of Robbery,

Theft, and various other offenses. After exhausting his state court remedies, Rodriguez

filed a petition for a writ of habeas corpus in the Eastern District of Pennsylvania,

claiming that he was unconstitutionally convicted based on insufficient evidence. The

District Court agreed and granted the petition. For the reasons set forth below, we

reverse.

                                       I. The Trial2

                           A. Steven MacNamee’s Testimony

       Rodriguez sold marijuana to Steven MacNamee (―Steven‖) three or four times a

month over a five month period.3 Generally, Steven would purchase $400 worth of drugs

at a time. On February 8, 1998, Steven and Rodriguez arranged to meet to conduct a

drug transaction. Steven arrived in his white car, while Rodriguez arrived in a red station

wagon, accompanied by Luis Casiano (―Casiano‖), who was Rodriguez‘s codefendant at

trial, and an individual known as ―Macho.‖ Rodriguez and his two companions got into

Steven‘s car. After seeing the drugs, Steven expressed doubts as to their quality. The

parties agreed that Steven would take a sample of the drugs to his brother, for whom he

1
  These crimes are, and were at the time of trial, codified at 18 Pa.C.S. § 2502(b) (second
degree murder); 18 Pa.C.S. §§ 901 and 2502 (attempted murder); and 18 Pa.C.S. § 2702
(aggravated assault).
2
 This Court, like the District Court, views the evidence in the light most favorable to the
Commonwealth, as it was the verdict winner at trial. Parker v. Matthews, 132 S. Ct.
2148, 2152 (2012) (per curiam).
3
 There was a dispute at trial as to the type of drug—the Commonwealth alleged it was
marijuana, while Rodriguez and his codefendant, Luis Casiano, alleged it was cocaine.
The type of the drug does not affect the disposition of this case.
                                              2
was purchasing them, and would let Rodriguez know if the drugs were acceptable.

Steven said he would be willing to pay $350, as opposed to $400, for the current batch of

drugs if Rodriguez could not provide a better product.

       Steven later paged Rodriguez to indicate the drugs were not acceptable.

Rodriguez called Steven, and said he could not sell the drugs for $350; Steven said he

would wait for Rodriguez to acquire a better product. Eventually, after an argumentative

conversation, Rodriguez agreed to sell the drugs for the lower price.

       Steven brought his brother, David MacNamee (―David‖) to the meeting. David sat

in the front passenger seat, and was tasked with counting the money during the ride to the

meeting. Rodriguez again arrived in the red station wagon, accompanied by Casiano and

Macho. Rodriguez parked immediately behind the MacNamees‘ car. According to

Steven, Rodriguez, Casiano, and Macho all approached his car, and despite Steven‘s

request that only Rodriguez enter, all three of them got into the back of Steven‘s car.4

Macho sat in the rear driver-side seat, Rodriguez sat in the middle seat, and Casiano sat in

the rear passenger-side seat. Once in the car, Macho handed the drugs to Rodriguez, who

then handed them to David. David gave the money to Rodriguez. David either placed

the drugs on the center console between the two front seats, or gave the drugs to Steven

who placed them in the center console.

       At this point, Rodriguez began speaking Spanish to the individual Steven believed

was Casiano. As this was happening, Steven turned forward to start the car, and he heard

4
  At trial, there was a dispute as to whether Casiano ever got into Steven‘s car—the trial
judge found that Casiano had not, and acquitted him of all charges. Whether Casiano
was in the car is irrelevant to this matter.
                                             3
a door open. He then heard three loud ―bangs,‖ and as he turned towards the rear of the

car, he saw several flashes and a window shatter. The shooting stopped briefly, and

Steven saw the individual he believed to be Casiano halfway out of the car, on the rear

passenger-side of the vehicle. After Steven said, ―You don‘t have to do this,‖ the

individual moved back into the car. During this pause in the shooting, Steven saw a hand

reach up to the center console and grab the drugs from it, and saw Rodriguez leaning

back against the back seat, holding the drugs in his hand. The individual Steven believed

to be Casiano began shooting again, hitting Steven in his right shoulder. The shooter

continued to move along the back seat and shot Steven in the face. Before exiting out the

rear driver-side door, the shooter fired one more shot, hitting Steven in the shoulder

again.

         Steven attempted to respond with his own firearm, heard another shot, noticed his

brother was bleeding heavily, and drove to the hospital. As he pulled out, he collided

with the red station wagon. As it drove past him, Steven saw the station wagon stop to

allow the shooter to get in, and then continue to drive away. David died from his injuries

while Steven survived, and eventually identified Rodriguez from a series of photo arrays.

                            B. Detective Mangoni’s Testimony

         Detective Mangoni testified regarding a statement Rodriguez gave to police. In

that statement, Rodriguez confirmed that he went to sell marijuana to Steven, and that he,

Macho, and Casiano got into Steven‘s car, with Macho in the rear passenger seat,

Rodriguez in the middle, and Casiano in the rear driver seat. Rodriguez gave the drugs to

Macho, who handed them up front, and David handed the money to Rodriguez. A blue

                                              4
van pulled up behind Steven‘s car, and Casiano left Steven‘s car and got into Rodriguez‘s

red station wagon. Macho then pulled out a gun and shot David, and as Rodriguez was

leaving the car, Macho began shooting Steven. Rodriguez ―took the weed back from

Steve before [Rodriguez] got out of Steve‘s car.‖ (Transcript (―Tr.‖) 10/6/99 at 139.)

Macho kept the money.

      After the shooting, Rodriguez drove them to Whitaker Avenue and parked the car,

while Macho called a friend from a payphone. Macho‘s friend arrived soon thereafter,

picked up all three individuals, leaving the red station wagon at the payphone, and drove

Rodriguez and Casiano to Rodriguez‘s home. Rodriguez kept the drugs, while Macho

kept both the gun and the money.5

                             C. Luis Casiano’s Testimony

      Casiano testified that Rodriguez sold cocaine, not marijuana. Before Casiano and

Rodriguez left Rodriguez‘s house to meet the MacNamees, Macho arrived to speak about

some money that Macho owed to Rodriguez. Macho also wanted to buy more cocaine.

Rodriguez said he was busy with another customer. Macho asked if he could accompany

Rodriguez to the transaction with the MacNamees, and Rodriguez agreed.

      According to Casiano, at the meeting Steven said his car would be too crowded if

they all got in, and so Casiano went back and waited in the red station wagon while

Macho and Rodriguez entered Steven‘s car. As Casiano waited, a blue minivan with its

5
 The Commonwealth also called a deputy Medical Examiner to testify as to the causes of
David‘s death, and the distance from which the firearm was fired that killed him. The
Commonwealth called other witnesses, but their testimony pertained solely to the case
against Casiano, repeated testimony provided by other witnesses, or provided other
evidence not relevant to this matter.
                                            5
high beams on pulled up behind the red station wagon. He heard three shots from

Steven‘s car, and saw Rodriguez crawl on the ground and run towards the station wagon.

Rodriguez exited Steven‘s vehicle with the drugs in his hands. Rodriguez started the car

and pulled up alongside Steven‘s car as more shots were fired. Macho then got in the

station wagon, and they drove away; Rodriguez told Casiano that Macho had shot one of

the MacNamees. Casiano testified that the minivan followed them as they drove away.

After eluding the minivan, Rodriguez drove them to Whitaker Avenue, and Macho used a

payphone to call a friend to pick them up. Rodriguez and Casiano left the station wagon

because they were afraid to keep driving it, and got a ride home from Macho‘s friend.

                               D. Rodriguez’s Testimony

       Rodriguez provided testimony similar to Casiano‘s regarding the events leading up

to the shooting. Once in Steven‘s car, Macho passed the drugs to Rodriguez, who gave

them to David. Rodriguez testified that he was sitting in the rear middle seat of Steven‘s

car. According to Rodriguez, he and Steven disagreed on the appropriate price for the

drugs. Rodriguez was exiting the car when he saw a blue minivan pull up; he then heard

a gunshot. Rodriguez dove to the ground, and crawled towards the red station wagon.

As Rodriguez drove away, he saw Macho get out of Steven‘s car—Macho told Rodriguez

to stop, which he did, and Rodriguez allowed Macho to get into the car. At this point,

Rodriguez drove to Whitaker Avenue, waited for Macho to use the payphone, and got a

ride home from Macho‘s friend. Rodriguez took the drugs with him, but claimed the

MacNamees had kept the money.

                               E. Trial Judge’s Decision
                                            6
       The trial judge issued her decision from the bench. She found that Macho was the

shooter, and found Rodriguez guilty of second degree murder, attempted murder, and

aggravated assault based on accomplice liability, because Rodriguez was responsible for

Macho‘s presence in the MacNamees‘ car.       The judge found Rodriguez and Macho were

conspirators in the crime of selling drugs, but that Rodriguez did not have the specific

intent to kill David MacNamee. The judge found Rodriguez responsible for the drug

transaction which resulted in a robbery, and since robbery is one of the enumerated

underlying offenses for the purposes of second degree murder, the judge found Rodriguez

guilty of second degree murder. The judge specifically stated that she did not believe it

was Rodriguez‘s intent to commit a robbery, and therefore acquitted him of robbery.

                    II. Appellate and Post-Conviction Proceedings

       On direct appeal, two judges of a three judge panel of the Pennsylvania Superior

Court vacated Rodriguez‘s conviction, based on insufficient evidence.6 However, the

Pennsylvania Superior Court heard the case en banc, and affirmed the conviction without

a published opinion. Commonwealth v. Rodriguez, 860 A.2d 1134 (Pa. Super. Ct. 2004).

In its unpublished opinion, the en banc court found that the trial judge‘s remarks from the

bench were not ―findings of fact‖ but instead were ―gratuitous prefatory remarks . . .

intended to soften the blow of the guilty verdict and were offered as a courtesy to litigants

and onlookers.‖ (Appendix (―App.‖) at 164.) The court determined that, based on the

6
  The Superior Court panel initially found that a defendant cannot be convicted of second
degree murder when he is acquitted of the underlying felony, and there is no common
design to commit robbery. In so doing, the court relied on the trial judge‘s statements
from the bench regarding Rodriguez‘s intent. The dissenting judge believed this reliance
improper.
                                             7
evidence admitted at trial and the reasonable inferences therefrom, viewed in the light

most favorable to the prosecution, there was sufficient evidence to support the conviction.

The en banc court mentioned the following as establishing sufficient evidence for

accomplice liability: Rodriguez brought Macho, who owed Rodriguez money, to the

drug transaction, where the MacNamees would be waiting with money; drove Macho

away from the shooting and to a payphone; waited for Macho to call others; and switched

getaway cars. (App. at 169.)

       The Pennsylvania Supreme Court denied allocatur. Rodriguez filed a

Pennsylvania Post Conviction Relief Act (―PCRA‖) petition, which was denied. This

denial was affirmed by the Pennsylvania Superior Court.

       Rodriguez filed a timely petition for a writ of habeas corpus under 28 U.S.C. §

2254 in the Eastern District of Pennsylvania. A Magistrate Judge determined that

Rodriguez was not entitled to relief. The District Court disagreed, finding that

Rodriguez‘s conviction violated the Fourteenth Amendment of the Constitution because

it was not supported by sufficient evidence. Specifically, the District Court found there

was insufficient evidence that Rodriguez had the intent to commit or facilitate the

commission of the robbery, and therefore there was insufficient evidence to establish

second degree murder via accomplice liability. Appellants timely appealed, arguing that

the District Court improperly ignored or discredited pivotal evidence, and misapplied

Pennsylvania precedent. Rodriguez, needless to say, disagrees, and argues that the

District Court appropriately determined his conviction was supported by insufficient

evidence.

                                             8
                           III. Standard and Scope of Review7

       ―As the District Court did not conduct an evidentiary hearing, our review of its

order [granting] habeas relief is plenary.‖ Johnson v. Folino, 705 F.3d 117, 127 (3d Cir.

2013). When a petitioner alleges entitlement to habeas relief by challenging the

sufficiency of the evidence supporting his state court conviction, federal courts apply a

―twice-deferential standard‖ of review. Parker v. Matthews, 132 S. Ct. 2148, 2152

(2012) (per curiam). Under the first part of this standard, ―[t]he evidence is sufficient to

support a conviction whenever, ‗after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.‘‖ Id. (quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)). In applying this standard, we consider ―all of the evidence . . . in the light most

favorable to the prosecution‖ and even if the record ―supports conflicting inferences [the

reviewing court] must presume—even if it does not affirmatively appear in the record—

that the trier of fact resolved any such conflicts in favor of the prosecution.‖ Jackson,

443 U.S. at 319, 326.

       The second layer of deference only permits a federal court to set aside the state-

court conviction if ―the decision was objectively unreasonable.‖ Matthews, 132 S. Ct. at

2152 (internal citation and quotation marks omitted); see also Blystone v. Horn, 664 F.3d

397, 418 (3d Cir. 2011) (―[A] decision adjudicated on the merits in a state court and

based on a factual determination will not be overturned on factual grounds unless [the


7
 The District Court had jurisdiction under 28 U.S.C. §§ 1331, 2241, and 2254(a). We
have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
                                              9
state court‘s findings of fact are] objectively unreasonable in light of the evidence

presented in the state-court proceeding.‖ (internal citation and quotation marks omitted)).

We determine reasonableness based on the record evidence at the time of the state court

adjudication. Blystone, 664 F.3d at 418.

       When reviewing a petition for writ of habeas corpus, alleging an unconstitutional

conviction due to insufficient evidence, federal courts do not review the reasoning

underlying the state court‘s decision. Instead, we focus on whether the state court‘s

ultimate decision—affirmation of the conviction—was supported by sufficient record

evidence. See 28 U.S.C. § 2254(d)(1)–(2) (providing that petition for writ shall only be

granted if the state court‘s ―adjudication of the claim . . . resulted in a decision‖ that was

contrary to federal law or based on ―unreasonable determination of the facts‖ (emphasis

added)); Hollman v. Wilson, 158 F.3d 177, 180 n.3. (3d Cir. 1998) (noting state appellate

court‘s reasoning was incorrect, but because result was proper, petitioner was not entitled

to habeas relief); see also Cruz v. Miller, 255 F.3d 77, 86 (2d Cir. 2001) (explaining that

when conducting habeas review, ―we are determining the reasonableness of the state

courts‘ ‗decision,‘ 28 U.S.C. § 2254(d)(1), not grading their papers‖).

       The fact of a potentially inconsistent verdict does not affect our analysis, and does

not affect the constitutionality of the conviction, even where the verdict was rendered by

a judge rather than a jury. Harris v. Rivera, 454 U.S. 339, 345–48 (1981) (per curiam).

―Each count in an indictment is regarded as if it was a separate indictment‖ so

―[c]onsistency in the verdict is not necessary.‖ Dunn v. United States, 284 U.S. 390, 393



                                              10
(1932).8 Therefore, Rodriguez‘s robbery acquittal does not preclude us from considering

record evidence establishing his involvement in the robbery when we are reviewing the

sufficiency of the evidence vis-à-vis his felony murder conviction.

       Our focus is whether, regardless of the reasoning of the state appellate court and

the robbery acquittal, ―the record evidence could reasonably support a finding of guilt

beyond a reasonable doubt.‖ Jackson, 443 U.S. at 318. We ―must consider all of the


8
  Dunn went on to state, ―If separate indictments had been presented against the
defendant for possession and for maintenance of a nuisance, and had been separately
tried, the same evidence being offered in support of each, an acquittal on one could not be
pleaded as res judicata of the other.‖ 284 U.S. at 393. A later case which upheld Dunn
noted that this last sentence was no longer correct, because collateral estoppel may be
invoked by a criminal defendant. United States v. Powell, 469 U.S. 57, 64 (1984). The
Court did not discuss the specific language that ―[e]ach count in an indictment is regarded
as if it was a separate indictment,‖ id. at 62, but it did note that ―the Dunn rule rests on a
sound rationale that is independent of its theories of res judicata, and it therefore survives
an attack based upon its presently erroneous reliance on such theories.‖ Id. at 64.
Furthermore, several other Courts of Appeals have since invoked Dunn‘s ―separate
indictment‖ language when deciding inconsistent verdict cases. See United States v.
Coutentos, 651 F.3d 809, 824 (8th Cir. 2011) (―As the Supreme Court has explained,
consistency in the verdict is not required because each count in an indictment is regarded
as if it was a separate indictment.‖ (citing Powell, 469 U.S. at 62)); United States v.
Redcorn, 528 F.3d 727, 734 (10th Cir. 2008) (―‗Each count in an indictment is regarded
as if it was a separate indictment.‘‖ (quoting Powell, 469 U.S. at 62)); United States v.
Pisman, 443 F.3d 912, 914 (7th Cir. 2006) (noting that Powell ―reiterated that each count
in an indictment is regarded as if it were a separate indictment‖).
         In addition, this Court stated, in a pre-Powell case, that ―consistency in the
verdicts is not necessary, even though the same evidence is offered in support of each.
Each count in the present indictment charges a separate crime and it is enough if there is
sufficient evidence to support the jury‘s verdict of guilty on any one.‖ United States v.
Dolasco, 184 F.2d 746, 749 (3d Cir. 1950) (citation and footnote omitted). Two years
prior to Dolasco, the Supreme Court noted that res judicata applied in criminal as well as
civil cases. See Sealfon v. United States, 332 U.S. 575, 578 (1948) (―But res judicata
may be a defense in a second prosecution. That doctrine applies to criminal as well as
civil proceedings and operates to conclude those matters in issue which the verdict
determine though the offenses be different.‖ (citations omitted)).

                                             11
evidence admitted by the trial court‖ when making this determination. McDaniel v.

Brown, 558 U.S. 120, 131 (2010).

                              IV. Sufficiency of the Evidence

       In determining the sufficiency of the evidence, we assess the record evidence in

light of the relevant controlling state law defining the elements of the crime or theories of

liability. Jackson, 443 U.S. at 319, 324 n.16; see also Orban v. Vaughn, 123 F.3d 727,

731 (3d Cir. 1997) (stating we analyze such claims ―with explicit reference to the

substantive elements of the criminal offense as defined by state law‖).

                              A. Relevant Pennsylvania Law

       In determining that there was insufficient evidence to sustain Rodriguez‘s

conviction, the District Court erred by ignoring controlling Pennsylvania case law and

key evidence in the record.

       A person commits second degree murder by committing a criminal homicide

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

felony.‖ 18 Pa.C.S. § 2502(b). For purposes of second degree murder, ―perpetration of a

felony‖ is defined as ―the 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.‖ Id. at § 2502(d). Therefore, while robbery is an attendant

felony for purposes of second degree murder, drug trafficking is not.

       In Pennsylvania, a defendant commits robbery if ―in the course of committing a

theft, he: (i) inflicts serious bodily injury upon another‖ or ―commits or threatens

                                             12
immediately to commit any felony of the first or second-degree.‖ Id. at § 3701(1). ―An

act shall be deemed ‗in the course of committing a theft‘ if it occurs in an attempt to

commit theft or in flight after the attempt or commission.‖ Id. at § 3701(2).

       A person is an accomplice in the commission of a crime if: ―(1) with the intent of

promoting or facilitating the commission of the offense, he: (i) solicits such other person

to commit it; or (ii) aids or agrees or attempts to aid such other person in planning or

committing it; or (2) his conduct is expressly declared by law to establish his complicity.‖

Id. at § 306(c).

       In Pennsylvania, a defendant need not be convicted of the underlying felony to be

convicted of second degree murder: ―[w]hat is required is that the actor be found guilty of

a homicide in the progress of committing a felony with sufficient evidence to establish a

felony was in process and the killing occurred.‖ Commonwealth v. Munchinski, 585 A.2d

471, 483 (Pa. Super. Ct. 1990).

       To establish accomplice liability, the Commonwealth ―must show by substantive

evidence that the accused was an ‗active partner in the intent to commit [the crime].‘‖

Commonwealth v. Wright, 344 A.2d 512, 514 (Pa. Super. Ct. 1975) (quoting

Commonwealth v. McFadden, 292 A.2d 358 (Pa. 1972)). ―An agreement is not required,

as only aid is required‖ and ―[t]he least degree of concert or collusion in the commission

of the offense is sufficient to sustain a finding of responsibility as an accomplice.‖

Commonwealth v. Graves, 463 A.2d 467, 470 (Pa. Super. Ct. 1983).                   Evidence

establishing that a defendant was an accessory after the fact is alone insufficient to hold



                                             13
an individual liable as an accomplice. Commonwealth v. McCleary, 381 A.2d 434, 436

(Pa. 1977).9

                             B. The District Court’s Analysis

       The District Court purported to first address the en banc Pennsylvania Superior

Court‘s decision to determine whether it was unreasonable and to then, independently,

analyze the record evidence to assess its sufficiency. As the latter analysis is dispositive,

we focus on it.

         1. The District Court Misapplied Relevant Pennsylvania Case Law

       The District Court, when conducting its independent review of the record, divided

the potential evidence of Rodriguez‘s intent into two types: pre-shooting and post-

shooting evidence. The District Court determined there was no pre-shooting evidence of

an intent to facilitate or promote the commission of a crime, which is one method of

establishing accomplice liability in Pennsylvania. 18 Pa.C.S. § 306(c). It then concluded

that the post-shooting evidence was insufficient, relying on the rule that ―mere presence

at the scene of the offense is not sufficient to establish culpability as an aider and abettor,

nor is presence at the scene in combination with flight from the scene.‖ Moore v. Deputy


9
  It would be possible to distinguish McCleary from this case. In McCleary, the
Pennsylvania Supreme Court rejected the idea that ―one who only aids flight without
participating in the felony plan and without knowledge of a death in the commission of
the felony can be held responsible for the killing.‖ 381 A.2d at 436 (emphasis added).
Here, the evidence establishes Rodriguez‘s knowledge of, and participation in, the
robbery, and his knowledge of the murder, as it happened mere feet away from him.
However, we do not decide this case by distinguishing it from McCleary; it is obvious
under other, affirmative Pennsylvania holdings that Rodriguez‘s conviction was
supported by sufficient evidence.

                                              14
Comm’r(s) of SCI-Huntingdon, 946 F.2d 236, 244 (3d Cir. 1991) (citing Commonwealth

v. Goodman, 350 A.2d 810 (Pa. 1976) and Commonwealth v. Jones, 435 A.2d 223, 225

(Pa. Super. Ct. 1981)). As a result, the court found that there was insufficient evidence to

establish Rodriguez had intended to commit or facilitate the commission of the robbery

of the MacNamees.

       As an initial matter, the above quotation, upon which the District Court relies, only

partially states the rule in Pennsylvania: though it is true that presence at and flight from

a crime scene, alone, are insufficient to establish accomplice liability, such evidence

when combined ―with other direct or circumstantial evidence may provide a sufficient

basis for conviction provided the conviction is predicated upon more than mere suspicion

or conjecture.‖ Commonwealth v. Rosetti, 469 A.2d 1121, 1123 (Pa. Super. Ct. 1983)

(citation omitted).

       A review of the facts of Rosetti demonstrates that Rodriguez‘s conviction was

―based on more than mere suspicion or conjecture.‖ Id. In Rosetti, the appellant was

convicted of criminal trespass under a theory of accomplice liability. The victim heard a

noise at his door, went to answer it, and saw appellant standing twenty feet away.

Rosetti, 469 A.2d at 1122. After the victim closed the door, he heard another noise at the

door, and then witnessed a second man through a small window in the door. Id. When

the victim‘s phone rang, appellant and his companion fled, and were seen fleeing

together, conversing as they ran, and appellant‘s companion was arrested with a pipe

wrench in his possession. Id. at 1122–23. The court found the following facts sufficient

to establish accomplice liability: Appellant was seen outside the home when the crime

                                             15
began; Appellant‘s companion was then seen breaking into the home moments later;

Appellant and companion fled together; they were seen conversing together in flight a

short time later near the crime scene; a pipe wrench was found in possession of

Appellant‘s companion. Id. at 1124.

      Here, there is sufficient ―other direct or circumstantial evidence‖ of Rodriguez‘s

conduct to establish accomplice liability. First, Rodriguez was not merely present at the

crime scene as an innocent bystander: he was an active participant in the robbery, taking

the drugs from the MacNamees‘ after they had given Macho the money and after Macho

had begun shooting. Second, Rodriguez did more than simply flee from a crime scene at

which he happened to be present: he began fleeing, stopped his escape to assist Macho‘s

flight, drove Macho to a payphone, and then waited while Macho procured new

transportation so Rodriguez could abandon his car. Just like the defendant in Rosetti,

Rodriguez was present when the crime occurred, and he and the principal (Macho) fled

together, in concert. Unlike the defendant in Rosetti, evidence established that Rodriguez

was also an active participant in the crime. Additionally, immediately before the

shooting commenced, Rodriguez spoke in Spanish to the shooter, a language not

understood by the MacNamees. The timing of this conversation and its

incomprehensibility to the victims, the fact that Rodriguez acted in apparent concert with

Macho by reaching forward to take the drugs during a brief pause in the shooting, and




                                            16
Rodriguez‘s and Macho‘s cooperative flight from the scene, was more than enough

evidence, in light of Rosetti, to sustain Rodriguez‘s conviction.10

           2. The District Court Ignored Relevant Pennsylvania Case Law

       Aside from misapplying applicable Pennsylvania case law, the District Court also

ignored decisions from Pennsylvania courts which establish that the defendant‘s conduct

after the underlying felony or murder can provide sufficient evidence of the defendant‘s

intent to commit the underlying felony. Commonwealth v. Legg, 417 A.2d 1152, 1154–

55 (Pa. 1980); Commonwealth v. Waters, 418 A.2d 312, 318 (Pa. 1980).

       In Legg, the Pennsylvania Supreme Court held that a defendant must have formed

the intent to commit the underlying felony prior to the killing to sustain a conviction of

second degree murder. Id. at 1154. However, the court reaffirmed the principle that ―the

intent to commit the felony when the act of killing occurred [may be] established by an

inference arising from circumstances or acts committed very shortly after the slaying.‖


10
   The two Pennsylvania cases upon which this Court relied in Moore to explain that
presence at and flight from a crime scene alone are insufficient to establish accomplice
liability provide illustrative applications of the principle.
        In Commonwealth v. Goodman, Appellant‘s codefendant was seen coming from
the rear of a building holding a box of frozen meat. The codefendant was ordered by
police to stand against the wall. Appellant then emerged from the exit and was also told
to stand against the wall. The codefendant threw the box at police and fled, Appellant
then fled in the opposite direction. Appellant was rearrested thirty minutes later with no
inculpatory evidence in his possession. This was insufficient to sustain the conviction for
burglary and larceny. Goodman, 350 A.2d at 811–12.
        In Commonwealth v. Jones, Appellant was seen running from an alley
approximately one block from the burglarized store. The only other evidence against
Appellant was testimony from an officer that no one else was present on the street. 435
A.2d at 225–26.
        As explained supra, the evidence establishes that Rodriguez‘s role in the robbery
and murder was much greater than those of the defendants in these paradigmatic cases.
                                             17
Id. at 1155 (emphasis added); see also id. at n.4. In Waters, the court determined that the

same principle applied when trying to prove a common design to commit the underlying

felony. 418 A.2d at 318.

       This principle was applied in Commonwealth v. Olds, 469 A.2d 1072 (Pa. Super.

Ct. 1983). In that case, Olds, Bonner, and Allen were driving around town, when Bonner

suggested robbing a cigar store. Id. at 1074. Olds said he wanted to get something to eat,

and the group drove to the cigar store, at which point Allen said, ―I‘m going to rob the

store,‖ to which Olds replied, ―yeah right.‖ Id. In the store, Olds went to purchase a bag

of chips at the register; as he was doing so, Allen followed another customer out of the

store, fired a shot, and after the customer offered his wallet, shot the customer twice. Id.

Olds and Allen jumped in the car as Bonner pulled up, and Bonner dropped them off near

Olds‘s house. Id. at 1075. Olds was convicted of second degree murder based on

conspiracy liability, which requires the same finding of intent as accomplice liability. Id.;

see also Commonwealth v. Anderson, 402 A.2d 546, 549 (Pa. Super. Ct. 1979) (―The

intent required for criminal conspiracy is the same as that required for accomplice

liability: ‗intent of promoting or facilitating the commission of the offense.‘‖)

       The Superior Court affirmed the conviction, noting that the common intent to

commit the underlying offense could be ―inferred from the circumstances or acts

committed either before or shortly after the slaying.‖ Olds, 469 A.2d at 1075. The court

found ―[i]t is especially significant that the three participants arrived at the scene together

and left together after the crime had been committed. We find, therefore, that the jury in

this case was entitled to conclude that appellant was aware of an incipient robbery and

                                              18
performed acts evidencing an agreement to participate therein.‖ Id. (citation omitted).

The court noted that this evidence was more than ―mere presence at the scene of a crime

[or] mere association with a perpetrator,‖ as that alone would be insufficient. Id.

       Here, the evidence is far stronger than that in Olds. Rodriguez drove Macho, the

shooter, to the location, and Rodriguez watched as Macho shot the MacNamees at close

range. Unlike the defendant in Olds, who did not actively participate in the robbery,

Rodriguez took the drugs from the MacNamees as they were being shot. Then, again

unlike the defendant in Olds who was merely a passenger, Rodriguez halted his flight

from the scene of the crime to allow Macho to enter his vehicle, drove Macho away from

the scene, and took him to a payphone. Rodriguez then waited while Macho called

another friend and abandoned the getaway car. After securing Macho‘s and his own

escape, Rodriguez took the drugs while Macho took the money. The evidence regarding

Rodriguez‘s involvement in the crime, both during and after the shooting, was far greater

than that which supported the conviction in Olds, and is precisely the sort of post-offense

conduct which may provide circumstantial evidence of criminal intent under Legg.

                  3. The District Court Ignored Dispositive Evidence

       This application of Pennsylvania law to the evidence highlights the third error

committed by the District Court: the District Court both ignored key evidence and failed

to view evidence in the light most favorable to the Commonwealth.




                                            19
       For example, the District Court determined that the en banc Superior Court

erroneously concluded that ―Macho took the cash, and Rodriguez took the drugs.‖11

(App. at 64.) The District Court found that ―the record is devoid of any evidence that

‗Macho took the cash‘‖ and that ―[t]he evidence was that the drugs were in [Rodriguez‘s]

possession when Macho began shooting, and there is no analysis-worthy evidence as to

what happened to the money after the shooting began.‖ (Id.) This is a false summation

of the record evidence, and appears to involve an impermissible credibility determination.

       There is evidence in the record that Macho took the money. Detective Mangoni

testified about the contents of statements that Rodriguez gave to the police. According to

Mangoni, Rodriguez said that he had taken the drugs from the MacNamees, that Macho

took the money, and that Macho kept the money after dropping off Rodriguez and

Casiano. (Tr. 10/6/99 at 139 (―Macho had the money with him‖ after getting into

Appellee‘s car after the shooting); id. at 140 (―Macho took [the gun] with him and the

money.‖).) Steven MacNamee also testified that the money had changed hands before

the shooting. (Tr. 10/4/99 at 57.)

       In addition, evidence established the drugs were not in Rodriguez‘s possession

when the shooting began. According to Steven, the drugs had been placed in the center

console when the shooting began, and during a brief pause after the first shots were fired,

he saw a hand reach up and take the drugs from the center console, and he then turned

around and saw Rodriguez holding the drugs in his hand. (Tr. 10/5/99 at 17.) It is

11
  This is but one example of the District Court mistakenly focusing on the state appellate
court‘s reasoning, rather than the record evidence as a whole.

                                            20
unclear why the District Court found this evidence was not ―analysis-worthy,‖ or why the

District Court found it was able to make such a determination. See Marshall v.

Lonberger, 459 U.S. 422, 434 (1983) (―28 U.S.C. § 2254(d) gives federal habeas courts

no license to redetermine credibility of witnesses whose demeanor has been observed by

the state trial court, but not by them.‖)

         The District Court disregards evidence regarding Rodriguez‘s conduct after the

shooting. According to the District Court, ―no evidence in the record shows that

petitioner‘s conduct after Macho shot the MacNamees was anything more than fearful

flight from a scene at which a customer had unexpectedly shot two men.‖ (App. at 63.)

In reaching this conclusion, the District Court failed to discuss the fact that Rodriguez

began to drive away, saw Macho, who he had just seen kill two people at close range, and

paused to allow Macho to get into his car and thus provide him an avenue of escape. The

District Court similarly disregarded the evidence that Rodriguez drove Macho to a

payphone, got into a second getaway car with Macho, and abandoned his car, which

demonstrates a degree of concert indicative of common or shared intent. Rosetti, 469

A.2d at 1122–23; Olds, 469 A.2d at 1075.

         The District Court also discredited Steven‘s testimony by, for example, noting that

Steven

            testified at trial that the money had exchanged hands before the
            shooting began. However, this testimony was shown on cross-
            examination to be inconsistent with Steven MacNamee‘s statement
            to police and his preliminary hearing testimony. Moreover, neither
            the trial court nor the en banc Superior Court analyzed or cited
            Steven MacNamee‘s testimony.


                                             21
 (App. at 64 n. 20 (citations omitted).) Aside from once again impermissibly focusing on

the reasoning of the state courts, rather than the record evidence, the District Court

weighed the evidence, which the Supreme Court has clearly and vehemently proscribed.

Lonberger, 459 U.S. at 434; see also Matthews, 132 S. Ct. at 2149 (noting lower federal

court‘s decision was ―a textbook example of what the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA) proscribes: using federal habeas corpus review as a

vehicle to second-guess the reasonable decisions of state courts‖ (internal quotation

marks omitted)).

       In sum, the District Court ignored several important Pennsylvania cases and

disregarded dispositive facts in the record, to wit: Macho owed Rodriguez money;

Rodriguez drove Macho to the transaction with the MacNamees; he had Macho rather

than Casiano accompany him into the MacNamees‘ car; he spoke briefly in Spanish to

Macho immediately before the shooting began; he took the drugs from the MacNamees

as Macho began shooting them, during a brief pause in the shooting; he exited the vehicle

and began to drive away, but stopped the car to allow Macho to get in; he drove to a

payphone to allow Macho to make a phone call; he waited for Macho to make that phone

call, and then for Macho‘s friend to arrive; he got a ride with Macho‘s friends and

abandoned the car he used to escape the crime scene; Macho‘s friends drove him home;

and he kept the drugs while Macho kept the money. When this evidence is viewed in

conjunction with applicable Pennsylvania case law, it is more than sufficient to establish

that Rodriguez acted ―with the intent of promoting or facilitating the commission of the

[robbery]‖ by ―aid[ing] . . . [Macho] in . . . committing it.‖ 18 Pa.C.S. § 306(c).

                                             22
                                     V. Conclusion

      For the foregoing reasons, the judgment of the District Court is reversed, and the

matter is remanded for further proceedings consistent with this opinion.




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