J-S82022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 MICHAEL HERNANDEZ                        :
                                          :
                    Appellant             :    No. 3921 EDA 2017

           Appeal from the Judgment of Sentence June 30, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0015339-2013


BEFORE:    LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                         FILED FEBRUARY 08, 2019

      Appellant, Michael Hernandez, appeals from the judgment of sentence

entered on June 30, 2017, as made final by the denial of Appellant’s post-

sentence motion on July 20, 2017. We affirm.

      The trial court thoroughly and ably summarized the evidence presented

during Appellant’s bench trial.

        [During Appellant’s trial,] the Commonwealth presented the
        testimony of the [Victim, J.G.], as well as investigating Police
        Officer [Robert] Filler and Detective Ronald Kahlan. . . .


        [The Victim’s Testimony]

        [On] November 20, 2013, the [Victim] was working as a pizza
        delivery person for DiNapoli's Pizza. He went on a delivery
        that evening in his car to 3735 [North] 7th Street. He had
        with him a pizza and cheesesteak to deliver to that location,
        together with the store receipt for the food which had printed
        on it the customer's phone number. The person answering
        the door at that address told [the Victim] that they did not

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       order the food. [The Victim] then received a call from his
       store manager and based upon this call he drove his car
       further up that same block and parked it close to a parking
       spot outside 3725 [North] 7th and while he was attempting
       to get the food out of the other side of the car, a male, later
       identified as [Appellant], appeared, pointed a gun at his head
       and told him to "put the food on the step" and the [Victim]
       complied. [Appellant] then told [the Victim] to give him his
       money which he did, as well as his cell phone which [the
       Victim] retrieved from his delivery car. [The Victim] then got
       back into his car and drove away from the scene after being
       instructed by [Appellant] to "keep driving straight and don't
       come back, don't look back." As he was driving away he was
       able to see [Appellant] walk over to where the food was
       placed and pick it up.

       According to [the Victim], his assailant was about 5'6” or 5'7"
       and was wearing a black vest and hoodie and had a mask
       covering the bottom half of his face, everything below the
       eyes. Although it was dark out[,] there were street lights and
       some house lights on and there was enough light so that he
       could see [Appellant’s] face. Following the robbery, [the
       Victim] gave a statement to the police and was thereafter
       shown a photo array by the detectives and from that array
       he was able to pick out [Appellant] as the person who had
       robbed him.

       On cross-examination [the Victim] stated that he had never
       seen [Appellant] before this incident and that the mask he
       was wearing came up above his nose. [The Victim] testified
       that the hood of [Appellant’s] hoodie was not on during this
       incident and that the incident lasted about five to ten
       minutes. [The Victim] did acknowledge[] that at the
       preliminary hearing, which took place just a few weeks
       following the robbery, he testified that [Appellant's] hood was
       up, not down, and that the entire robbery took place in about
       30-45 seconds. However, [the Victim] testified that there
       was no doubt in his mind that he was able to identify
       [Appellant] and that the detectives did not help him pick out
       [Appellant]. He told the detectives that the incident occurred
       at 10:30 [p.m]. Although [Appellant] was approximately 28
       years old when the robbery occurred, [the Victim] told the
       detectives that the person who robbed him was about 18-20
       years old. However, [the Victim,] when asked by defense

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       counsel how old [A]ppellant looked at trial that day
       responded that [A]ppellant looked to be 20-25 [years old].

       [The Victim] confirmed that he had no doubt that [Appellant]
       was the person who robbed him that night. In response to
       the [trial] court's question as to why there was no doubt that
       [A]ppellant was the one who did this, [the Victim testified]:

          [it wasn't just the eyes. It was the top half, so the top half
          of his face is exactly to the picture. . . . His eyes were
          bagg[y] and darker than most and you could tell if he was
          seen again. . . . His hair was exactly the same as the
          picture. N.T. Trial, 7/11/16, at 49].

                                     ...


       [Investigating Police Officer Robert Filler’s Testimony]

       Officer Filler testified that on November 20, 2013, based upon
       a flash radio call he received, he went in his patrol car to the
       3700 block of [North] 7th Street to look for a person who
       committed a gunpoint robbery, as well as to survey the block
       for cameras. He located a camera at 3735 [North] 7th Street
       and obtained the films from that camera which contained two
       [] different viewing angles. Portions of both tracks were
       played in court while Officer Filler testified as to what he
       observed on the videos as part of his investigation. . . .

       Officer Filler testified that while viewing the video as part of
       his investigation, he believed he had found a point on the
       video that captured the encounter of the actual[] robbery.
       While the video played in court, Officer Filler testified as
       follows regarding what appeared to him to be the [Victim]
       and [Appellant]:

          “Yes; the driver got out of the vehicle. Right at that area
          there was . . . an interaction. After the car drives off, we
          see an individual go into a house across the street. . . ."

       The [trial] court then noted for the record that the video
       "appears to show two figures in back of the car, there was
       some walking around. . . . The car drives off . . . down the
       street. There's a figure of somebody walking on the sidewalk

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       and then entering a house that's approximately three houses
       down from where the car was stopped." Officer Filler testified
       that after viewing the video he went to the scene again to
       determine which house had a "screen door" that was seen
       opening on the video. Based upon this information, he
       determined that the property that the individual seen on the
       video entering was 3718 [North] 7th Street, as neither
       property on either side of this property had screen doors.

       Officer Filler then testified that there was a food delivery
       receipt (Exhibit C-1) for the actual delivery in issue that was
       found hanging up in the store [DiNapoli's] during his
       investigation and that his investigation revealed that the
       customer phone number that was found printed on the
       receipt went to a payphone at 7th and Butler Streets near
       where the robbery had occurred.

       On cross-examination, Officer Filler stated that he did not
       know if the 11:07 pm [] time stamp on the home surveillance
       film was accurate and acknowledged that although he didn't
       know the exact time the robbery occurred, he was able to
       narrow the time down working back from when his patrol car
       first drove down the street to investigate to when the robbery
       would have occurred. Officer Filler did not follow-up on why
       the store receipt of the delivery had a 'Departure Time' of
       6:12:10. However, th[e trial] court notes that the [Victim]
       testified that the robbery occurred at 10:30 [p.m.] and
       Officer Filler testified that it was after that time that he
       received a radio call about a gunpoint robbery. Officer Filler
       acknowledged that given the poor quality of the video he
       could not say that it was [Appellant] on the video.

       On redirect, Officer Filler testified that he was able to narrow
       the time sequence of events in the video because the video
       shows the delivery driv[er] actually coming to the address of
       3735 [North 7th Street] and going up to the door and then
       shows the driver driving down the block to where the robbery
       occurred and this time period was not much further to when
       his patrol car drove down that street later that night.

                                     ...


       [Detective Ronald Kahlan’s Testimony]

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       As part of his investigation of the robbery [Detective Kahlan]
       viewed the surveillance video and saw a male run into a
       house. However, the detective agreed that he could not tell
       if the figure in the video was male or female. Similar to the
       testimony of Office Filler, Detective Kahlan testified that in
       viewing the video he determined that there was a screen door
       on the property that the figure seen in the video was seen
       entering and that the property address of 3718 [North] 7th
       Street was the only house it could be as the houses on either
       side of it did not have a screen door.

       Detective Kahlan checked with the Bureau of Motor Vehicles
       for the address of 3718 [North] 7th Street and found that at
       that address there was one licensed driver and that a check
       of the driver's license photo of that driver matched the
       description given by the [Victim] of the person who had
       robbed him. Based upon that information, Detective Kahlan
       created a photo array and showed it to the [Victim], who
       selected [Appellant's] picture as the person who had robbed
       him. The detective put the photo array together using the
       description from [Appellant's] driver's license, as well as from
       the description given by the [Victim]. The computer then
       produced seven other photos which, together with that of
       [Appellant], form[ed] the photo array shown to the [Victim]
       two days after the robbery.

       Detective Kahlan testified that he then obtained a search
       warrant for the property located at 3718 [North] 7th Street
       and upon execution, a black vest and a delivery receipt were
       recovered at the property. The delivery receipt (Exhibit C-
       7)[fn.3] was recovered in the middle of the first floor on the
       dining room table.

          [fn.3] Exhibit C-7 was the food delivery receipt recovered
          from [Appellant’s] home whereas C-1 was a second food
          delivery receipt found hanging at DiNapoli’s Pizza, where
          the [Victim] was working the evening he was robbed.

       On cross-examination, Detective Kahlan confirmed that the
       [Victim] picked out [Appellant] as the one who robbed him
       "on his own" without being told by the detective, and that he
       told the detective that he recognized [A]ppellant's eyes. . . .


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Trial Court Opinion, 2/15/18, at 2-7 (internal citations and emphasis and some

internal capitalization and footnotes omitted).

       The trial court found Appellant guilty of:    robbery, persons not to

possess firearms, theft by unlawful taking, receiving stolen property, carrying

firearms in public in Philadelphia, possessing an instrument of crime,

terroristic threats, simple assault, and recklessly endangering another

person.1 On June 30, 2017, the trial court sentenced Appellant to serve an

aggregate term of ten to 20 years in prison for his convictions.

       The trial court denied Appellant’s post-sentence motion on July 20, 2017

and Appellant filed a timely notice of appeal.2 Appellant raises one claim on

appeal:

          Was the evidence insufficient to sustain the [trial] court’s
          [decision] since the alleged perpetrator wore a mask
          obscuring his face and thereby render[ed] the [V]ictim’s
          identification of [Appellant] inherently unreliable?

Appellant’s Brief at 3.

____________________________________________


1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 6105(a)(1), 3921(a), 3925(a), 6108,
907(a), 2706(a)(1), 2701(a), and 2705, respectively.

2 The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Appellant complied with the trial court’s order and, within
Appellant’s Rule 1925(b) statement, Appellant raised the following claim:

          Was the evidence insufficient to sustain the [trial] court’s
          [decision] since the alleged perpetrator wore a mask
          obscuring his face and[,] thereby, rendering the [V]ictim’s
          identification of [Appellant] inherently unreliable?

Appellant’s Rule 1925(b) Statement, 11/9/17, at 1.

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     We review Appellant's sufficiency of the evidence challenge under the

following standard:

        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 [that of] 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. Brown, 23 A.3d 544, 559–560 (Pa. Super. 2011) (en

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805–806 (Pa.

Super. 2008). As our Supreme Court has held, a claim that “the testimony

presented to the [fact-finder] was so unreliable and contradictory that the[]

verdict could only have been arrived at through speculation and conjecture .

. . [is] a challenge to the sufficiency [of the evidence].” Commonwealth v.

Brown, 52 A.3d 1139, 1156 n.18 (Pa. 2012).

     According to Appellant, the evidence was insufficient to support his

convictions because the “gunman’s face was obscured by a mask.” Appellant’s



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Brief at 9. Further, within Appellant’s brief, Appellant claims that the evidence

was insufficient because “the Commonwealth’s case was riddled with

inconsistencies.” Id. The former claim fails; the latter claim is waived.

      Appellant first claims that the trial court’s decision was “pure

speculation” and that the evidence was insufficient to support his convictions,

as the “gunman’s face was obscured by a mask.” Id. In making this claim,

Appellant apparently suggests that the mask’s obstruction made it so that

there was no way the Victim could have possibly identified Appellant as his

assailant. This claim fails.

      As the trial court explained, its decision was not the result of speculation

or conjecture and the evidence was indeed sufficient to support Appellant’s

convictions:

        The [Victim] repeatedly testified [that he had] no doubt that
        [Appellant] was the individual who had robbed him. Although
        the perpetrator wore a mask which hid most of his face[, the
        Victim] described the perpetrator as having distinctive
        features – his “eyes were bagg[y] and darker than most” and
        his hair was “exactly” the same as the picture in the photo
        array.

Trial Court Opinion, 2/15/18, at 13-14.

      The evidence also demonstrates that:          immediately following the

robbery, the assailant entered Appellant’s house; the food receipt was found

in Appellant’s home; and, “a black vest described by [the Victim] as being

worn by his assailant [was] found in [A]ppellant’s house.” See id. at 15-16.




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      Put simply, the evidence in this case was not “so unreliable and

contradictory that the[ fact-finder’s decision] could only have been arrived at

through speculation and conjecture.” Brown, 52 A.3d at 1156 n.18. Thus,

Appellant’s first sufficiency of the evidence claim fails.

      For Appellant’s second sub-claim on appeal, Appellant contends that the

evidence   was    insufficient   to   support   his   convictions   because   “the

Commonwealth’s case was riddled with inconsistencies.” Appellant’s Brief at

9. This claim is waived, as the claim was never raised in Appellant’s Rule

1925(b) statement. See Appellant’s Rule 1925(b) Statement, 11/9/17, at 1

(Appellant claimed only that the evidence was “insufficient to sustain the

[trial] court’s [decision] since the alleged perpetrator wore a mask obscuring

his face and[,] thereby, render[ed] the [V]ictim’s identification of [Appellant]

inherently unreliable”); see also Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not

included in the [Rule 1925(b) statement] . . . are waived”).

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/8/19




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