J-S69036-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL MANUEL BERMUDEZ,

                            Appellant                 No. 386 MDA 2016


            Appeal from the Judgment of Sentence October 28, 2015
               in the Court of Common Pleas of Lebanon County
               Criminal Division at No.: CP-38-CR-0000423-2015


BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                          FILED OCTOBER 11, 2016

        Appellant, Michael Manuel Bermudez, appeals from the judgment of

sentence1 imposed on October 28, 2015,2 following his jury conviction of

three counts of robbery, five counts of criminal conspiracy, and two counts

of aggravated assault.3 We affirm.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Appellant purports to appeal from the trial court’s February 11, 2016 order
denying his post-sentence motions; however, an appeal is properly taken
from the judgment of sentence, not the order denying the motions. See
Commonwealth v. Chamberlain, 658 A.2d 395, 397 (Pa. Super. 1995).
2
  Although the court filed its sentencing order on November 2, 2015, the
record reveals that it imposed Appellant’s sentence in open court following a
hearing on October 28, 2015. We have amended the caption accordingly.
3
    See 18 Pa.C.S.A. §§ 3701(a)(1), 903(c), and 2702(a), respectively.
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      Appellant’s   co-defendant,   Ronald    Calderon,   has   raised   virtually

identical issues, which the trial court addressed in one opinion. (See Trial

Court Opinion, 2/11/16).    The two cases have not been consolidated, but

have been listed consecutively. Because of the similarity of the issues, we

will continue to treat these two cases together.     Thus our memoranda in

these matters, 386 MDA 2016, and in 387 MDA 2016, are also virtually

identical.

      We take the factual and procedural history in this matter from the trial

court’s February 11, 2016 opinion denying Appellant’s post-sentence motion,

and our review of the certified record.      On December 12, 2014, Appellant

was charged with one count each of robbery, conspiracy, and aggravated

assault, stemming from his participation in the robbery and shooting of

Conner Rivera on December 10, 2014. On February 26, 2015, the trial court

consolidated Appellant’s case with co-defendant Calderon for trial. On May

18, 2015, the Commonwealth filed an amended information charging

Appellant with three counts of robbery, five counts of conspiracy, and two

counts of aggravated assault.

      On September 4, 2015, a jury trial was held.                At trial, the

Commonwealth presented the testimony of Rivera, who testified that on

December 10, 2014, he was at the home of his paramour, Sasha Cruz. (See

N.T. Trial, 9/04/15, at 12). At 11:00 p.m., two males forced their way into

her home.    Rivera testified that he had no problem identifying both men

despite the fact that they wore masks, which partially obscured their faces,

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and he was one hundred percent certain that the people who robbed and

shot him were Appellant and Calderon. (See id. at 16-17, 35). He testified

that he went to high school with Calderon and they were in several classes

together, (see id. at 26-27), and while they were at school they “were okay.

[They] were cool.”    (Id. at 27).   Rivera further testified that he knew

Appellant from school, and that he had known him for longer than he knew

Calderon. (See id. at 27-28). He also testified that he knew Appellant from

around the neighborhood, and that he and Appellant were friends. (See id.

at 28).

      After forcing their way into the apartment, the men came upstairs and

demanded that Rivera show them where everything was, which he took to

mean the location of the drugs and money.       (See id. at 17-18).   Rivera

offered Calderon a small amount of marijuana that was in his pocket and

told him that he did not have anything.     (See id. at 19).    In response,

Calderon pulled out a gun.    (See id.).   Rivera then, in order to create a

diversion, told Calderon there was more in a safe located in a closet on the

balcony and led him to the balcony. (See id. at 19-20). When they were on

the balcony, the men began fighting and Calderon pistol-whipped Rivera

several times and then shot him in the arm. (See id. at 20-23).

      Rivera testified that he had smoked marijuana daily and had done so

earlier in the evening, but was not under the influence of marijuana at the

time of the robbery. (See id. at 18-19). Before going to the hospital for his




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injuries, Rivera hid both the marijuana and a bong because he was afraid

they would get him in trouble. (See id. at 23-24).

       Officer Brant Zimmerman, who interviewed Rivera after the shooting,

testified that Rivera identified Calderon as the shooter and Appellant as the

second person with him.         (See id. at 81-82).    Officer Zimmerman stated

that Rivera made no mention that he used or sold marijuana during the

initial interview. Officer Zimmerman also testified that he interviewed Cruz,

who told him that she was not able to identify the robbers, and who denied

that Rivera was involved in drug selling. (See id. at 84).

       Following trial, the jury convicted Appellant and Calderon on all

charges.     On October 28, 2015, the trial court sentenced Appellant to an

aggregate sentence of not less than five, nor more than twelve, years’

imprisonment.       On November 4, 2015, Appellant filed a post-sentence

motion challenging the weight and sufficiency of the evidence.          Calderon

filed a similar motion on November 9, 2015.           The trial court denied both

motions by order and opinion entered February 11, 2016. This timely appeal

followed.4

       Appellant raises two questions on appeal.


____________________________________________


4
  Appellant filed his notice of appeal on March 3, 2016. Pursuant to the trial
court’s order, Appellant filed a timely concise statement of errors complained
of on appeal on March 21, 2016. See Pa.R.A.P. 1925(b). The trial court
issued an order on April 6, 2016, adopting the reasoning set forth in its
February 11, 2016 opinion. See Pa.R.A.P. 1925(a).



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      A. Did the [t]rial [c]ourt err in ruling that the Commonwealth
      presented evidence at trial that was sufficient to sustain a
      conviction of all of the offenses charged?

      B. Did the [t]rial [c]ourt err in ruling that the jury’s verdict was
      not against the weight of the evidence so as to warrant a new
      trial under Pa.R.Crim.P. Rule [sic] 607?

(Appellant’s Brief, at 5).

      Our standard of review for a sufficiency of the evidence claim is well-

established:

             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. Palo, 24 A.3d 1050, 1054–55 (Pa. Super. 2011),

appeal denied, 34 A.3d 828 (Pa. 2011) (citation omitted). Additionally,

            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

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     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 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) (citations and

emphasis omitted).

     In his first issue, Appellant claims that the evidence was insufficient to

support his convictions. (See Appellant’s Brief, at 5, 9-14). However, in his

argument he challenges the credibility of the victim’s testimony, and argues

“[a]side from the questionable identification by Mr. Rivera, there was no

evidence pointing to the identity of either suspect.”    (Id. at 12).       Thus,

Appellant’s claim concerns the weight, not the sufficiency, of the evidence.

See Palo, supra at 1055. Accordingly, we will consider Appellant’s first and




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second issues together. Moreover, even if Appellant had properly developed

a challenge to the sufficiency of the evidence, it would not merit relief.

      Under the Crimes Code, a person may be convicted of aggravated

assault, graded as a felony of the first degree, if she/he “attempts to cause

serious bodily injury to another, or causes such injury intentionally,

knowingly    or   recklessly   under    circumstances    manifesting    extreme

indifference to the value of human life[.]” 18 Pa.C.S.A. § 2702(a)(1). The

Code defines “serious bodily injury” as “[b]odily injury which creates a

substantial risk of death or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or

organ.” 18 Pa.C.S.A. § 2301. The Crimes Code defines robbery as:

      § 3701. Robbery.

         (a) Offense defined.—

         (1) A person is guilty of robbery if, in the course of
         committing a theft, he:

                                  *     *    *

            (ii) threatens another with or intentionally puts him in
            fear of immediate serious bodily injury;

            (iii) commits or threatens immediately to commit any
            felony of the first or second degree;

            (iv) inflicts bodily injury upon another or threatens
            another with or intentionally puts him in fear of
            immediate bodily injury;

18 Pa.C.S.A. § 3701(a)(1)(ii-iv). Finally,




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      [a] person is guilty of conspiracy with another person or persons
      to commit a crime if with the intent of promoting or facilitating
      its commission he:

         (1) agrees with such other person or persons that they or
         one or more of them will engage in conduct which
         constitutes such crime or an attempt or solicitation to
         commit such crime; or

         (2) agrees to aid such other person or persons in the
         planning or commission of such crime or of an attempt or
         solicitation to commit such crime.

18 Pa.C.S.A. § 903(a).

      Upon review, we would conclude that the evidence was sufficient to

support Appellant’s convictions of aggravated assault, robbery, and criminal

conspiracy.    Viewing all evidence in the light most favorable to the

Commonwealth as verdict winner, as we are required to do by our standard

of review, the evidence clearly establishes beyond a reasonable doubt that

Appellant is guilty on all counts. See Palo, supra at 1054-55. Appellant’s

first claim, even if properly developed, would not merit relief.

      In his second issue, Appellant claims that the trial court erred in

denying his motion for a new trial because the jury’s verdict was against the

weight of the evidence. (See Appellant’s Brief, at 14-17). Specifically, he

argues that the evidence identifying him as involved in the shooting was

contradictory and inconsistent, and that instead the evidence suggested that

he was with his brother or girlfriend at the time, and that somebody else

committed the crime. (See id. at 15-17). We disagree.

      In this case, the trial court declined to upset the verdict of the jury,

noting that the issue was one of credibility, and the jury was free to believe

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all, part, or none of the testimony presented.      It stated that while “both

Calderon and [Appellant] vigorously challenged Rivera’s identification at

trial, and while each has proffered numerous arguments . . . why Rivera

should not be believed, the ultimate decision of whether Rivera is believable

was for the jury.      In this case, the jury obviously found Rivera credible.”

(Trial Ct. Op., at 10) (unnecessary capitalization omitted).

          Upon review, we conclude that the trial court did not palpably abuse

its discretion in deciding that the jury’s verdict was not against the weight of

the evidence. See Clay, supra at 1054-55. Appellant’s claims do not merit

relief.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/11/2016




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