J-S40014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RICHARD OMAR ROQUE-GONZALEZ,

                            Appellant                No. 1893 MDA 2013


         Appeal from the Judgment of Sentence September 19, 2013
               In the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0002985-2012


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

MEMORANDUM BY BENDER, P.J.E.:                       FILED AUGUST 26, 2014

       Richard Omar Roque-Gonzalez appeals from the judgment of sentence

of twelve to twenty-

2013, following a jury trial resulting in his conviction for robbery, aggravated

assault, simple assault, recklessly endangering another person, disorderly

conduct, and harassment.1 We affirm.

       The evidence at trial established the following:    In the afternoon of

June 3, 2012, Fernando Pindeda was on his lunch break, sitting outside in

the 100 block of South 8th Street in the City of Reading, Pennsylvania.

Appellant, along with two other individuals, approached Mr. Pindeda and

____________________________________________


1
 Respectively, 18 Pa.C.S. §§ 3701(a)(1)(i), 2702(a)(1), 2701(a)(1), 2705,
5503(a)(4), and 2709(a)(1).
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asked for money. Mr. Pindeda knew Appellant from the neighborhood. He

refused to give any money to Appellant and pushed Appellant.        Appellant

pulled a gun, shot Mr. Pindeda, and fled the scene. A single bullet struck Mr.

Pindeda in an ankle, passed through, and lodged in his other leg. Neither

Appellant nor his accomplices took any money or property from Mr. Pindeda.

      We highlight the following testimony of Mr. Pindeda:

      Q     Okay. And, sir, you said three individuals came up to you?

      A     Yes.

      Q     What did those individuals do?

      A     They asked for the money I had in my pocket.

      Q     And what did you do?

      A

      Q    Now, these three individuals, had you ever seen any of
      them prior to that date?

      A     Yes, and he is here.

      Q     Okay. And, sir, where have you seen that individual prior
      to that date?

      A     In front.

      Q     Okay. In front of what?

      A     In front of the place I was working.



      Q    Okay. And, sir, you said that these individuals demanded
      your money and that you did not give it to them?

      A     No.

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       Q      What else did you do?

       A                                                           them,
       and sat down again.

       Q      Okay. And what happened when you sat down again?

       A      One of them shot at me.

Notes of Testimony (N.T.), 07/10-11/2013, at 63-64.

       Following this incident, Mr. Pindeda positively identified Appellant on

several occasions: (1) in a photo array presented to him on June 4, 2012

(the day after the shooting), which was compiled after he gave a detailed

description of Appellant to the police;2 (2) at the preliminary hearing held

June 15, 2012; and (3) at trial. Nevertheless, on two different occasions,

Mr. Pindeda refused to identify Appellant: (1) when the police initially

presented the photo array to Mr. Pindeda on June 3, 2012, shortly after his

assault, and (2) during his initial testimony at the preliminary hearing.

       During his trial testimony, Mr. Pindeda explained that he refused to



testimony of Officer Aaron Demko indicated that Mr. Pindeda had not yet

received any pain medication for his injuries.     See N.T. at 136-37.      Mr.

Pindeda further testified that he initially refused to identify Appellant at the

preliminary hearing because a friend of Appellant had threatened him. See
____________________________________________


2
  Mr. Pindeda described Appellant as a Puerto Rican male, who wore his hair
in a ponytail and whose lip is pierced. See N.T. at 133.



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N.T. at 76; see also



        Following his conviction, the trial court sentenced Appellant to seven to



incarceration for aggravated assault. The court imposed a consecutive, one-

year period of probation for disorderly conduct.        All other charges merged

for sentencing purposes.

        Appellant    timely    filed   post-sentence   motions   challenging   the

sufficiency and weight of the evidence, as well as discretionary aspects of his

sentence. The trial court denied his motions without a hearing. Appellant

timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The

trial court filed a responsive opinion.

        On appeal, Appellant first challenges the sufficiency of the evidence
                                                                      3
presented in support of his conviction. See

        The standard for reviewing the sufficiency of the evidence is
        whether the evidence admitted at trial and all reasonable
        inferences drawn therefrom, when viewed in the light most
        favorable to the Commonwealth as the verdict winner, is
        sufficient to support all the elements of the offenses beyond a
        reasonable doubt.

Commonwealth v. Mitchell, 839 A.2d 202, 205 (Pa. 2003) (citing

Commonwealth v. Miller, 664 A.2d 1310, 1314 (Pa. 1995)).                  The fact-


____________________________________________


3
    Appellant does not challenge his sentence on appeal.



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J-S40014-14


                                         Commonwealth v. Ramtahal, 33 A.3d

602, 607 (Pa. 2011) (citing Commonwealth v. Laird, 988 A.2d 618, 624

(Pa. 2010)).




robbery, the Commonwealth must prove that, in the course of committing a

theft, Appellant inflicted serious bodily injury upon Mr. Pindeda.            See

Commonwealth           v.    Uderra,      706    A.2d   334,   341   (Pa.   1998);

Commonwealth v. Robinson, 936 A.2d 107, 110 (Pa. Super. 2007); 18

Pa.C.S. 3701(a)




occurs when a defendant performs an act that cons

                                                  Commonwealth v. Ennis, 574

A.2d 1116, 1120 (Pa. Super. 1990); 18 Pa.C.S. § 901(a).

       Appellant contends that the Commonwealth failed to present any

evidence that he committed or attempted to commit a theft.4 According to




____________________________________________


4
  Appellant concedes that the evidence was sufficient to establish that
Appellant inflicted serious bodily injury upon Mr. Pindeda. See
Brief at 17.



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the contrary that the evidence demonstrated that Mr. Pindeda believed

Appellant and his companions were playing a prank, that Mr. Pindeda




Commonwealth did not establish robbery. We disagree.

       Based upon the testimony of Mr. Pindeda, the jury could reasonably



rather   something      more     sinister.     Appellant   confronted   Mr.   Pindeda

accompanied by two other individuals, not alone, and Mr. Pindeda felt

sufficiently threatened to protect himself. Taking this evidence in the light

most favorable to the Commonwealth as verdict winner, we conclude that

Appellant took a substantial step toward the commission of a theft. 5 Thus,

when considered along with evidence that Appellant inflicted serious bodily

injury upon Mr. Pindeda, the Commonwealth presented sufficient evidence

that Appellant committed robbery.



____________________________________________


5
  The testimony is unclear as to whether Appellant asked Mr. Pindeda for
money, or if it was one of his companions. Appellant does not raise this
distinction in his argument. Nevertheless, the lack of clarity does not impact

accountable for the conduct of another person when he is an accomplice of

knowingly and voluntarily cooperates with or aids another in the commission
             Commonwealth v. Calderini, 611 A.2d 206, 208 (Pa. Super.
1992) (internal quotation marks omitted); 18 Pa.C.S. § 306(c)(1)(ii).



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J-S40014-14


        Appellant also challenges each of his convictions based upon the

weight of the evidence.     See



Appellant consistently) and, thus, wholly incredible.        Further, Appellant

highlights what he deems deficiencies in the evidence collected by police,

including an absence of physical evidence linking him to the crime.

                                              -sentence motion challenging the



Commonwealth v. Nypaver, 69 A.3d 708, 717 (Pa. Super. 2013) (internal

quotation omitted).

        [W]e may only reverse the lower court's verdict if it is so
        contrary to the evidence as to shock one's sense of justice.
        Moreover, where the trial court has ruled on the weight claim
        below, an appellate court's role is not to consider the underlying
        question of whether the verdict is against the weight of the
        evidence. Rather, appellate review is limited to whether the trial
        court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)).



                                                        nd we discern no abuse



the evidence and contradictions in the testimony of any witnesses are for the

fact-                       Id. (citing Commonwealth v. Tharp, 830 A.2d

519, 528 (Pa. 2003)); see also Ramtahal, 33 A.3d at 607.


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J-S40014-14


      Here, though Mr. Pindeda refused or was otherwise unable to identify

Appellant on two occasions, he nonetheless positively identified Appellant

several times, including at trial. Moreover, evidence suggesting Mr. Pindeda

was threatened with further violence should he choose to testify against

Appellant provided the jury with a reasonable explanation for his reluctance



trial test

eyewitness testimony, the absence of physical evidence, such as bullet



verdict. Sanders, 42 A.3d at 331; Ramtahal, 33 A.3d at 607.



evidence claims are without merit. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/26/2014




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