J. S57012/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                   v.                    :
                                         :
JESSE LUMBERGER,                         :        No. 1238 WDA 2015
                                         :
                         Appellant       :


        Appeal from the Judgment of Sentence, February 23, 2015,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0003088-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 31, 2016

     Jesse Lumberger appeals from the judgment of sentence entered in

the Court of Common Pleas of Allegheny County following his conviction in a

waiver trial of two counts of robbery and one count each of theft by unlawful

taking, terroristic threats, simple assault, and recklessly endangering

another person.1        The trial court sentenced appellant to serve 10 to

20 years’ imprisonment, followed by 5 years’ probation.2 We affirm.



* Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3701(a)(1)(vi), 3921(a), 2706(a)(1),
2701(a)(3), 2705, respectively.
2
  The trial court’s Rule 1925(a) opinion reflects that it imposed a concurrent
10-year probationary term.      (Trial court opinion, 1/12/16 at 1.) The
February 23, 2015 sentencing order, however, reflects that the trial court
imposed a concurrent 5-year probationary term.             (Order of sentence,
2/23/15; Docket #12.)
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     The trial court set forth the following factual history:

                 It is around 2:00 p.m. and Merlyn Fenton is at
           her teller window at the Huntingdon Bank in
           McKeesport. She is attending to a female customer
           on this 15th day of May, 2013. The customer is
           engaged in conversation with another customer, a
           man, who is waiting in line at Ms. Fenton’s window.
           The dialogue allows Ms. Fenton a level of comfort to
           instruct the female customer to tell the male “to
           remove the cover off his face.”           The male
           immediately announced “this is a robbery.” The man
           jumps over a low teller window designed to
           accommodate a disabled customer and shouts: “I
           want money.” In his hand is a long object. It looks
           like a knife. It might be a foot long. Ms. Fenton
           backed up. She then “took all the money that he
           demanded and [gave] it to him.”[Footnote 2] He
           then ran out of the bank. Ms. Fenton then closed the
           bank’s door behind him.[Footnote 3]

                 [Footnote 2] It was later determined
                 that $1[,]595.00 was taken.

                 [Footnote 3] Commonwealth’s exhibits
                 2-8 are still photographs taken from
                 interior  surveillance   cameras      and
                 corroborate Ms. Fenton’s oral rendition.

                 Ms. Fenton, a diminutive 5’2”, described the
           robber as “thin”, “[a]lot taller than me”, a black man
           with “black hair”, “very young” and he wore clothing
           that was “not . . . bulky”.

                 Jose Vasquez was also in the bank. He was a
           manager. He noticed the robber wearing a “grayish
           shirt” with a “doo-rag over his face”,[Footnote 4]
           with a slim build and stood about 5’10”.

                 [Footnote 4]        Urban Dictionary of
                 “do-rag” is: a cloth, often made of nylon
                 and resembling a panty hose, worn over
                 the hair of one’s head.



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                 Soon after the robber fled the bank, local
          police arrive[d]. Officer Thomas Greene was the first
          to arrive. Once he learned the path the robber took,
          he directed other officers toward the cemetery about
          50 yards from the bank.           He followed soon
          thereafter. Based on experience, he knew of an
          access road about 20-25 yards inside the entrance
          gate to the cemetery. He found “some clothing”
          right in the center of that road about 25 yards from
          the cemetery’s entrance. Those items were some
          pants and a sweat shirt. These items were “no more
          than 50 yards” from the bank.

                Back at the bank, the investigation was
          ongoing.      Officer Joe Osinski was summoned to
          photograph the scene and possibly collect evidence.
          Based upon the robber’s path behind the counter,
          Osinski was able to develop a shoe print on the
          counter. It was from a Nike shoe. When done with
          these tasks, Osinski was directed to the cemetery.
          At the access road, “there were several pieces of
          clothing” “maybe a foot or two from each other.”
          This collection included blue jeans, a hoody and a
          blue t-shirt.

                At some point, Officer Osinski watched the
          bank’s surveillance tapes. The jeans recovered from
          the cemetery access road were the same jeans worn
          by the robber. Most influential to him was the jeans,
          when he saw them on the road, they had the same
          cuff on the bottom as the jeans of the robber. He
          also identified the t-shirt recovered as “hanging out
          of the back of the gray hoody[”] “from the
          surveillance photographs.”

                Five days after the robbery, [appellant] is at
          the McKeesport police station. Officer James Reed
          had [an] interaction with him. He takes [appellant’s]
          shoes. They are made by Nike.

                A few months later, in September 2013,
          Officer Reed and [appellant] are together again.
          Officer Reed got a “buccal swab for DNA sampling”
          purposes.


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                  Officer Reed was also present at the
            preliminary hearing in the courtroom of the
            McKeesport magistrate judge. He was right next to
            Ms. Fenton in the courtroom awaiting the start of the
            hearing. Ms. Fenton saw quite a few defendants
            being escorted in and out of the courtroom.
            [Appellant] was one of those. He exited a holding
            area and passed Reed and said “What’s up, Reed?”
            Reed’s response was a head nod. Ms. Fenton’s reply
            was more.     She grabbed Reed’s arm, and said,
            “That’s him.” His “height, the build and the way he
            looked” convinced Ms. Fenton that [appellant] was
            the robber.

                  Officer Reed also informed the Court that
            [appellant] lived on Pirl Street which is on the
            backside of the cemetery and many people use the
            cemetery as a short cut to get to and from the bank
            area of McKeesport to that area of Pirl Street.

                  Scientist Sara Bitner, from the Medical
            Examiner’s Office of Allegheny County, also provided
            evidence against [appellant].     She examined the
            3 items – blue t-shirt, blue jeans and gray hoody –
            found on the cemetery access road. She did a
            “tape lift” of areas where “epithelial cells” may be
            located on the clothing such as pockets of jeans and
            sleeves of the shirt. Her conclusion was [appellant]
            may have been a contributor to the shirt and jeans.
            Numerically, Ms. Bitner said the probability that
            [appellant] was the contributor on the blue shirt was
            “1 in 193,500” and for the blue jeans “it was 1 in
            8,368”.[Footnote 5][3]

3
  We set forth that portion of Sara Bitner’s direct examination regarding her
conclusions as to the scientific statistical probabilities that appellant was the
contributor of DNA found on the blue shirt, the gray sweat jacket, and the
blue jeans, as follows:

            Q.    I’m going to start. Let’s start with the tape lift
                  from the blue shirt. Did you get any results
                  from the tape lift from the blue shirt?



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          A.   Yes.

          Q.   And can you tell the Court what your results
               were in that particular case?

          A.   One compared to the profile of [appellant].
               [Appellant] could not be excluded as a possible
               contributor to the DNA mixture profile with
               statistics of 1 in 75,300 in the Caucasian
               population, 1 in 193,000 for the African-
               American population and 1 in 219,000 for the
               Hispanic population.

          Q.   Did you also later perform       DNA    testing
               involving another person?

          A.   Yes.

          Q.   Who was that?

          A.   Christopher Gaspersz.

          Q.   And what was the result relative to DNA testing
               for the blue shirt with Mr. Gaspersz?

          A.   No conclusions could be drawn concerning
               Mr. Gaspersz as a possible contributor to the
               mixture obtained.

          Q.   What about the results from the tape lift from
               the gray sweat jacket, which I believe is
               Exhibit -- I believe it’s 35.

          A.   Due to the partial nature of the profile
               obtained, I was unable to draw conclusions for
               either [appellant] or Mr. Gaspersz.

          Q.   What about the jeans, the tape lift from the
               interior pocket of the jeans or the hip pocket?

          A.   For the hip pocket of the jeans, [appellant]
               could not be excluded as a possible contributor


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               to that mixture, but no conclusions could be
               drawn for Mr. Gaspersz.

          Q.   Did your testing reveal as to how many
               possible contributors there were to these
               items?

          A.   We estimated or I estimated in each of the
               items a minimum of three possible contributors
               for each of the items.

          THE COURT: If I understand this correctly, the shirt
          and the pants, [appellant] may have been a person
          that handled them, but given there are three
          contributors, you can’t exclude -- you can’t say
          definitively whether it’s his DNA specifically, but
          you’re giving a probability of 1 in 197,000,
          something to that effect for the shirt, but the
          sweatshirt you can’t make any determination; and
          the pants would fall in that same category that
          possibly it could have been him because what you
          got -- his DNA would have been included within a
          broader sample of DNA that you retrieved from that
          item?

          THE WITNESS: That is correct, Your Honor.

          THE COURT: Okay. Let’s move on.

          Q.   Were these conclusions reached to            a
               reasonable degree of scientific certainty?

          A.   Yes, they were.

          THE COURT: What was the statistic on the shirt and
          on the pants?

          THE WITNESS: For the shirt the statistic for the
          African-American population was 1 in 193,500. For
          the pants it was 1 in 8,368.

          THE COURT: 1 in 8,368?


                                 -6-
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                 [Footnote 5] No DNA testing was done
                 on the hooded jacket.

                  Joining the Commonwealth’s science based
           presentation was Dr. Mark Perlin. Perlin is the “chief
           scientist and executive officer at Cybergenetics”.
           Cybergenetics “is a bio-information company that
           specializes in computer based interpretation of
           forensic DNA computer evidence.           In essence,
           through its computer based program, True Allele,
           Cybergenetics is able to take “complex DNA
           evidence” and separate “out the genetic types” which
           can then be “compared with the genetic type of
           other people in order to produce a DNA match
           statistic.”    As clarified on cross-examination,
           Dr. Perlin does not do the “biological part” of the
           DNA testing, he does “the statistical analysis of the
           data to separate out the genotypes and the match
           statistic.” The underlying data Dr. Perlin used was
           obtained from Ms. Bitner. Dr. Perlin’s conclusions
           were that [appellant] and another individual had
           “contact with the pants” and only one person had
           “contact with the shirt.”        Dr. Perlin quantified
           [appellant’s] probability of being the only contributor
           to the blue shirt as “117 quintillion times more
           probable”. As for the blue jeans, Dr. Perlin pegged
           [appellant’s] probability of being a contributor at
           “1.82 quadrillion”.

                The    government    closed   its  evidentiary
           presentation with expert Robert Levine. Mr. Levine
           examined the Nike shoe taken from [appellant] and
           compared it to the photographs of the shoe print
           from the counter of the bank where the robber had
           stepped. He was not able to say “the left shoe that
           was submitted was the shoe that made the
           shoeprint.”




           THE WITNESS: That is correct.

Notes of testimony, 12/2/14 at 121-123.


                                    -7-
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                 Upon the government resting its case,
           [appellant] called one witness – Detective James
           Reed.      After this robbery, [Detective] Reed
           interviewed the teller, Ms. Fenton. She told him that
           the person who did the May 15th robbery also robbed
           the bank 5 days later.

                 The Court then heard closing arguments from
           counsel. Its verdict was split – not guilty of all
           charges where Mr. Vasquez[4] was identified – and
           guilty of all other charges. A pre-sentence report
           was ordered and sentencing took place on
           February 23, 2015.

Trial court opinion, 1/12/16 at 2-5 (citations to notes of testimony and

footnote 1 omitted).

     Appellant raises the following issues for our review:

           1.    Whether the trial court erred by denying
                 [a]ppellant his fundamental rights of due
                 process and a fair trial when it considered facts
                 not offered or admitted into evidence in this
                 matter,    specifically   including  facts   and
                 testimony from a separate court proceeding
                 relating to a separate robbery at the same
                 bank for which [a]ppellant was acquitted by a
                 jury?

           2.    Whether the trial court erred by finding
                 [a]ppellant guilty of two counts of robbery, one
                 count of theft by unlawful taking, one count of
                 terroristic threats, one count of simple assault,
                 and one count of recklessly endangering

4
  We note that Dr. Levine was unable to effect a positive identification
between the shoeprint and the shoes that were submitted for analysis
because of the quality of the shoeprint lifted from the bank counter. He
was, however, able to state that the left Nike shoe seized from appellant and
the shoeprint he analyzed had the same combination of pattern elements
and the same intersecting points where the different pattern elements
intersect. (Notes of testimony, 12/2/14 at 170-171.)


                                    -8-
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                   another person because the evidence was
                   insufficient to establish [a]ppellant as the
                   person who committed the crimes beyond a
                   reasonable doubt?

            3.     Whether the trial court’s nonjury verdict
                   finding [a]ppellant guilty of two counts of
                   robbery, one count of theft by unlawful taking,
                   one count of terroristic threats, one count of
                   simple assault, and one count of recklessly
                   endangering another person was against the
                   weight of the evidence?

Appellant’s brief at 7.

      For ease of discussion, we will address appellant’s challenges to the

sufficiency and the weight of the evidence prior to addressing his claim that

the trial court considered facts not offered or admitted into evidence.

                   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 proof 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 the evidence actually received must be
            considered. Finally, the trier of fact while passing
            upon the credibility of witnesses and the weight of


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             the evidence produced, is free to believe all, part or
             none of the evidence.

Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)

(citation omitted).

      Appellant contends that the evidence was insufficient to prove that he

committed the crimes because the “pretrial identification [by the bank teller]

was impermissibly suggestive,” and she “should have been precluded from

making an in-court identification.” (Appellant’s brief at 28.) The gravamen

of appellant’s complaint, therefore, goes to the admission of this evidence,

and not to its sufficiency.

      Pennsylvania Rule of Evidence 103(a) provides that a party may claim

error in the admission of evidence only if he, on the record, “makes a timely

objection, motion to strike, or motion in limine,” and “states the specific

ground, unless it was apparent from the context[.]” Pa.R.E. 103(a)(1)(A)-

(B). “We have long held that ‘[f]ailure to raise a contemporaneous objection

to the evidence at trial waives that claim on appeal.’” Commonwealth v.

Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (citations omitted).

      Here, the record reflects that appellant failed to file a pre-trial motion

in limine to suppress the bank teller’s identification testimony, failed to

object during her testimony, and failed to move to strike after her

testimony.

      Therefore, appellant waives this issue on appeal. See id.




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     Appellant next complains that the verdict was against the weight of

the evidence.

           The essence of appellate review for a weight claim
           appears to lie in ensuring that the trial court’s
           decision has record support.         Where the record
           adequately supports the trial court, the trial court
           has acted within the limits of its discretion.

           ....

           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.

           ....

           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.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations,

quotation marks, and emphasis omitted).        “In order for a defendant to

prevail on a challenge to the weight of the evidence, ‘the evidence must be

so tenuous, vague and uncertain that the verdict shocks the conscience of




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the court.’”        Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super.

2013).

      Here, appellant complains that his conviction “shocks one’s sense of

justice” because the bank teller’s identification of appellant was unreliable;

the bank manager was unable to identify appellant; appellant never

confessed; appellant’s DNA was not found in the bank or on a sweat shirt

found in the cemetery; appellant’s fingerprints were not found at the bank;

the DNA evidence should not be given significant weight because appellant

lives by the cemetery; and the trial court did not properly weigh the DNA

evidence found on the blue jeans. (Appellant’s brief at 30-34.)

      We decline appellant’s invitation to assess the bank teller’s credibility

and reweigh the evidence, including what weight should be assigned to the

scientific evidence. The trial court, as fact-finder, had the duty to determine

the credibility of the testimony and evidence presented at trial. (See id.)

Appellate courts cannot and do not substitute their judgment for that of the

fact-finder.    (Id.)    Here, the trial court found the bank teller’s testimony

credible and further found that it was corroborated by the photographic

evidence.       The trial court also found the scientific evidence credible,

including the overwhelming amount of DNA evidence.                A careful review of

the record supports our conclusion that the trial court did not abuse its

discretion     in    denying   appellant’s   weight   of   the   evidence   challenge.

Therefore, this claim lacks merit.



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        We finally address appellant’s claim that the trial court erred because

it considered facts not offered or admitted into evidence, specifically “facts

and circumstances of another robbery that occurred on May 20, 2013, for

which [appellant] was acquitted.” (Appellant’s brief at 23.)

        The record reflects that prior to conducting the waiver trial that is the

subject of this appeal, the trial court presided over a jury trial where

appellant was acquitted of a separate bank robbery that occurred on May 20,

2013.     In that case, Christopher Gaspersz confessed to committing the

May 20, 2013 robbery.

        The record further reflects that although Mr. Gaspersz did not testify at

the trial that is the subject of this appeal, he was mentioned during its

course, and the issue of whether Mr. Gaspersz could have perpetrated the

May 15, 2013 robbery was before the trial court sitting as fact-finder. When

a trial court sits as a fact-finder, it “is presumed to know the law, ignore

prejudicial     statements,      and      disregard     inadmissible   evidence.”

Commonwealth v. Konias, 136 A.3d 1014, 1021 (Pa.Super. 2016)

(citation omitted).

        In its opinion on this issue, the trial court stated:

              . . . The first reaction the Court has is that
              [appellant] is the one who injected the prior matter
              into this trial.      During cross-examination of
              Detective Reed, [appellant’s] lawyer asked him




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            about Mr. Gaspersz’ confession.[5] So, [it is] a little
            hard for this Court to understand the current
            argument when it was [appellant] himself that
            brought this matter to the forefront.[Footnote 6]

                  [Footnote 6]       [Appellant’s] closing
                  argument    continued    to   push   the
                  argument and inference about the
                  May 20th matter. (“This is the second
                  time we’ve been through this.” [] “Again,
                  based on previous testimony that you’ve
                  heard . . . but the other case as well,
                  Mr. Gaspersz [wore] his clothes.” []
                  “Your Honor is privy to the testimony of

5
  In rendering the verdict in this case, the trial court provided further context
to this issue, as follows:

            I believe when I look at the entirety of the
            circumstances -- and it is circumstantial in some
            respects, but the probability of [Fenton] having a
            visceral reaction she had to him when she saw him,
            for her having the description she gives of him, for
            his DNA to be on the blue shirt in the concentration it
            is with respect to the scans from the bank, with
            respect to the distance to his mom’s house is almost
            a straight line, I believe that this issue about
            Gaspersz is a red herring.

                 I believe Gaspersz is a flunky and a friend that
            would say anything he could say to extricate his
            buddy, [appellant], from his liability in robbing this
            bank. And I think that that’s a nonissue in this case,
            because he didn’t testify here.

                  I believe if anyone looks through that cheap
            doo-rag hanging over his face, it’s clearly not
            Gaspersz who went in the bank. The same person
            that went in the bank is the person that had on the
            same clothing that were [sic] found in the cemetery,
            and it’s him. He knows it. I mean, I think we’re
            playing games. He knows he did it.

Notes of testimony, 12/2/14 at 198-199.


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                     Mr. Gaspersz where he admitted he
                     robbed that bank three times.”).

                      That aside, this Court did what the law requires
               in such a situation – disregard material that it may
               know from other cases and judge guilt on what is
               properly before this Court. This was exemplified
               during closing argument and the Court’s summation.
               The government began its speech with an objection
               about Mr. Gaspersz not testifying in this case. The
               Court’s response was that it knows that. Implicit to
               all in the courtroom, by tone and tenor, is that the
               Court would not be considering that material. Later,
               the Court described the Gaspersz matter as a
               “red herring” and a “non-issue” in this case. The
               assertion that this Court erred by considering
               evidence of the prior robbery is simply lacking in
               support.

Trial court opinion, 1/12/16 at 6 (citations to notes of testimony omitted).

      After a careful review of the record, we agree with the learned trial

court that the record belies appellant’s contention that the trial court

considered evidence of the May 20, 2013 robbery.            Therefore, this claim

lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/31/2016




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