J-S49023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    ORLANDO NUNEZ-FLORES

                             Appellant                 No. 218 MDA 2018


       Appeal from the Judgment of Sentence Entered December 20, 2017
                In the Court of Common Pleas of Lebanon County
                Criminal Division at No.: CP-38-CR-0001001-2017


BEFORE: SHOGAN, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                        FILED DECEMBER 04, 2018

        Appellant Orlando Nunez-Flores appeals from the December 20, 2017

judgment of sentence entered in the Court of Common Pleas of Lebanon

County (“trial court”), following his jury convictions for robbery in the first

degree, conspiracy to commit robbery in the first degree, robbery in the

second degree, conspiracy to commit robbery in the second degree, theft by

unlawful taking, conspiracy to commit theft by unlawful taking, receiving

stolen property, conspiracy to receive stolen property, terroristic threats, and

simple assault.1 Upon review, we affirm.

        The facts and procedural history of this case are uncontested.       In

connection with an armed robbery of a Fulton Bank branch office (the “Bank”)
____________________________________________


*   Former Justice specially assigned to the Superior Court.
118 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(a)(1), 3701(a)(vi), 3921(a), 3925(a),
2706(a)(1), and 2701(a)(3), respectively.
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in Schaefferstown, Lebanon County, Appellant was charged with the foregoing

offenses. The case proceeded to trial. As summarized by the trial court:

            At trial, the Commonwealth first called Lisa Marie Bickel, a
     teller at the [] Bank . . . . Ms. Bickel testified that on April 6,
     2007, around 11:30 in the morning, she was working at the Bank
     when she first heard some commotion and yelling when she
     looked up to see a man in the lobby of the Bank waving a gun in
     the air and yelling “get down or I’m going to shoot.” Ms. Bickel
     got down and then observed the perpetrator attempt to enter the
     teller area, but was unable to unlock the door, so he jumped over
     the counter. The perpetrator then pulled a bag out of his pocket
     and demanded that another teller, named Susan Tucker, put
     money into the bag. Ms. Tucker started at her own station and
     pulled the money out of the drawer and placed it into the bag, and
     then moved to the station to her left and did the same, after which
     the man pointed the gun at Ms. Tucker and she continued to move
     down each station and removing the money from the drawer and
     putting the money into the bag. After having taken the money
     from the various drawers, the perpetrator then jumped the
     counter and ran out the front door and to a waiting vehicle. Ms.
     Bickel described the perpetrator who came in as wearing a
     camouflage jacket drawn tight to his face, sunglasses, white
     gloves with red fingertips on them, jeans, sneakers and spoke in
     broken English with a Spanish accent. She also stated that as the
     suspect was waving the gun around, she was in fear that she
     might be shot by the suspect.

           While Ms. Bickel was testifying, the Commonwealth
     introduced and reviewed surveillance video from inside the Bank.
     Ms. Bickel provided brief narration of the video corresponding with
     her testimony. The day after the robbery, a State Trooper came
     into the Bank and gave a description of the individuals they had
     caught and indicated that one of the individuals walked with a
     limp. Ms. Bickel remembered that a man had come into the bank
     the day before the robbery asking to change a hundred dollar bill,
     but she was unable to provide change since he was not a bank
     customer. As the man exited the Bank, Ms. Bickel noticed that
     the man walked with a limp. There was surveillance video of the
     man the day before the robbery as well and the Commonwealth
     presented still photographs form the video. Ms. Bickel identified
     co-Defendant, [Roberto] Hernandez, as the man who entered the
     bank the day before the robbery. On cross-examination, Ms.
     Bickel admitted that she was unable to physically identify the
     suspect who robbed the bank on April 6, 2017 due to the heavy
     clothing worn by the suspect.

            The Commonwealth next called Heidi Swonger, a customer
     service representative with the Bank as a witness. Ms. Swonger
     testified that on April 6, 2017, at about 11:00 A.M., she was in
     her office when she noticed her manager looking toward the

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     entrance of the Bank with her hands up and then saw a man enter
     with a gun pointed at her manager. Realizing that the Bank was
     being robbed, Ms. Swonger then pushed the alarm button on her
     desk to notify the security department and the State Police. With
     the perpetrator instructing everyone to get down, Ms. Swonger
     got down onto the ground and shifted to the side of her desk so
     that she could watch what was happening. After the perpetrator
     entered the Bank with a gun pointed at her manager, Ms. Swonger
     observed the perpetrator attempt to get through the teller door,
     which was locked. Unsuccessful at opening the teller door, the
     perpetrator then jumped over the counter of the second teller
     window, pointed the gun at Ms. Tucker and pulled out a gray Wal-
     Mart bag while demanding that Ms. Tucker give him all the money.
     The perpetrator then followed Ms. Tucker to each teller station,
     gathering the money from each drawer, and then jumped back
     over the counter exiting through the front door. Ms. Swonger was
     then presented with a gray Wal-Mart bag listed as Exhibit 14,
     which she identified as similar to the bag that the perpetrator used
     the day of the robbery.

           Ms. Swonger further testified that after the perpetrator left
     the Bank, she proceeded to the second set of doors at the
     entrance and observed the perpetrator walking down the street
     and getting into the front passenger side of a gray, four-door
     sedan that was parked in an alley, travelling west toward Lebanon.
     Ms. Swonger was shown a picture of co-Defendant, Hernandez’s
     vehicle and identified the vehicle as the sedan she saw the day of
     the robbery. The Commonwealth also presented Ms. Swonger
     with the still photographs of the day before the robbery. Ms.
     Swonger indicated that she observed the interaction between Ms.
     Bickel and the individual the day before the robbery and identified
     co-Defendant Hernandez as the individual who came into the Bank
     looking to change the one-hundred dollar bill.

            Susan Tucker, the teller at the Bank with whom the suspect
     interacted also took the stand as a witness for the Commonwealth.
     Ms. Tucker testified that on April 6, 2017, the suspect entered the
     Bank dressed in the camouflage jacket with the hood pulled tight
     around his face, but that she could see the suspect had dark skin
     from her observation of his nose and cheeks. Ms. Tucker stated
     that the suspect had the gun pointed at her as he told everyone
     to get down. Ms. Tucker remembered the suspect continuing to
     use the gun to point after he jumped the counter. Ms. Tucker
     noted that in each active drawer, there is a special money stack
     containing a GPS tracker that is activated through a pressure
     sensor plate and during the April 6, 2017 robbery, she pulled the
     GPS-enabled stacks of money from each drawer and placed them
     into the Wal-Mart bag that the suspect gave to her.

           The Commonwealth next called Laura Sutherly as a witness.
     Ms. Sutherly testified that she is a regional first responder for
     Fulton Bank, which means that she responds to a bank robbery
     within her region, including the Schaefferstown branch. On April
     6, 2017, Ms. Sutherly responded to a report from the Bank of a

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     robbery and, upon arrival, helped to secure the location for the
     ensuing investigation and to ensure that there was assistance
     from the human resources department for the affected
     employees. Ms. Sutherly also testified that she performed an
     audit at the Bank to determine the amount of stolen money and
     found that the robbery resulted in a total loss of $2963.00

            Chief Michael Lee Lesher (“Chief Lesher”) of the South
     Lebanon Township Police Department testified that on April 6,
     2017, at approximately 11:35 A.M. he was notified through a
     mobile application that a GPS notification from the Bank had been
     received indicating that the Bank had been robbed. Chief Lesher,
     along with other officers from the police department pursued the
     GPS signal as it traveled along local roads. Chief Lesher was able
     to determine the location of the GPS signal as it came from a gray
     sedan. After following the gray sedan for a short while, Chief
     Lesher activated his lights and siren as the sedan was at a red
     stop light and pulled at an angle in front of the sedan. The driver
     of the sedan then pulled the vehicle up an embankment and
     moved around the police car, upon which Chief Lesher took pursuit
     of the sedan. Chief Lesher continued his pursuit of the sedan
     through the local streets eventually losing sight of the vehicle,
     regaining sight of the vehicle, and losing sight again. Chief Lesher
     then heard the radio transmission that the sedan had been
     involved in an accident. Upon arriving on the scene of the
     accident, Chief Lesher observed that the police officers on scene
     had the driver of the sedan in custody, but noticed the passenger
     running away from the vehicle clutching what appeared to be a
     bag in his hand.

            Officer Randall J. Morgan (“Officer Morgan”) testified that on
     April 6, 2017, he heard the report of the robbery and the vehicle
     pursuit and came upon him. As the vehicle passed Officer Morgan,
     he observed two individuals in the front seat of the car. Officer
     Morgan then turned his vehicle around and began pursuing an
     Oldsmobile. After having pursued the vehicle a short while, Officer
     Morgan watched the Oldsmobile drive into a chain-link fence,
     whereupon, he used his vehicle to drive the Oldsmobile further
     into the fence and prevent it from escaping. The passenger fled
     the Oldsmobile, but the officers on scene were able to pull the
     driver, later identified as co-Defendant Hernandez, out of the
     vehicle and take him into custody. Officer Morgan returned to the
     Oldsmobile where he observed a black handgun, a pistol and an
     orange and white pair of gloves on the passenger side. On cross-
     examination, Officer Morgan admitted that he was unable to
     identify the passenger who fled the scene.

           Sergeant Andrew Herberg (“Sergeant Herberg”) of the
     North Lebanon Township Police Department testified that as he
     was approaching the scene of the accident in aftermath of the
     pursuit, he observed an individual wearing a dark long-sleeved
     shirt and jeans running toward his vehicle with another officer,
     Sergeant John Hess, in foot pursuit behind the individual.
     Sergeant Herberg then exited his vehicle, jumped over a nearby

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     fence and joined in pursuit of the individual. After pursuing the
     individual throughout yards and down alleys, the officers lost sight
     of the individual and decided to regroup. The officers were also
     receiving updates on the GPS signal and the indication was that
     the GPS signal was nearby to their location. As they were
     backtracking through the area where the individual was last seen,
     Sergeant Herberg noticed a porch with several items, including a
     lawnmower, a bicycle and a blue tarp from which he saw the
     individual’s legs sticking out from underneath. Sergeant Herberg
     drew his service weapon and ordered the individual to come out
     and put his hands up. The gray bag full of money was found
     underneath the individual.        Sergeant Herberg identified the
     individual he found and arrested that day as Appellant.

            Trooper Daniel Walmer (“Trooper Walmer”) of the
     Pennsylvania State Police testified that on the day of the robbery,
     he received a notification of the robbery while he was in training,
     but upon arrival at his barracks, he was asked to obtain a search
     warrant for one of Appellant’s shoes and the car owned by co-
     Defendant Hernandez. Upon obtaining the search warrants and
     receiving the shoes and the vehicle into possession, Trooper
     Walmer searched the vehicle and found a camouflage jacket, a
     pair of work gloves with red palms, sunglass and two guns, later
     identified as BB guns. All of the items were photographed and
     admitted into evidence at trial for the jury to view. The search of
     the vehicle also yielded a green and gray hat that was later
     identified as a hat identical to the one that Hernandez had worn
     during his visit to the Bank the day before the robbery. Trooper
     Walmer also counted the money that was in the gray Wal-Mart
     bag found with Appellant, the total amount of which was
     $2963.00. On cross-examination, Trooper Walmer admitted that
     no fingerprints or DNA evidence was found on any of the items
     recovered.

            Trooper David Lebron (“Trooper Lebron”), who is fluent in
     both English and Spanish, testified that on April 6, 2017, he served
     as an interpreter during an interview that Trooper Matthew
     Templin conducted with Hernandez.           During the interview,
     Hernandez told the Troopers that he received a call from a friend
     asking him for a ride, however, his friend did not tell him exactly
     where he needed to go. After traveling from Harrisburg to
     Lebanon and picking up his friend, Hernandez denied knowing
     where the Bank was located, but admitted that he drove his friend
     to the Bank and that his friend directed him to take the car to a
     specific alley. After his friend exited the Bank and got back into
     the car, he directed Hernandez to drive back toward Lebanon.
     Hernandez admitted that he and his friend initially fled the police
     after they attempted to pull the car over and led the police on a
     high-speed chase resulting in the ensuing accident. Hernandez
     told Trooper Lebron that after the crash, his friend got out of the
     car and took off running. Hernandez denied knowledge of the
     robbery or of any of the handguns that were located in the car.



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             Trooper Robert Wessner (“Trooper Wessner”), a full-time
      member of the Forensic Services Unit of the Pennsylvania State
      Police and the trooper who processed the crime scene at the Bank,
      testified that the public nature of the Bank made it difficult to
      obtain fingerprints from the surfaces inside the bank. Moreover,
      obtaining shoeprint impressions was problematic as well since
      banks often use plastic laminate on surfaces, which doesn’t keep
      shoe impressions very well. However, trooper Wessner was able
      to observe and photograph a partial shoe impression from a
      placemat that was on the counter where the suspect placed his
      foot while jumping over the counter. Trooper Wessner then
      compared the shoeprint impression that he photographed with a
      photograph of the shoe that had been collected from Appellant.
      Trooper Wessner found significant similarity between the
      shoeprint impression and Appellant’s shoe. Photographs of the
      impression and the shoes, along with a document that Trooper
      Wessner created placing both the impression and photograph
      side-by-side for comparison, were presented to the jury. On
      cross-examination, Trooper Wessner admitted that the boots
      described were sold through Wal-Mart, which is a common seller
      of shoes and boots, and that Trooper Wessner could not identify
      the size of the boot impression obtained from the Bank.

             Appellant testified that he had been underneath the tarp for
      approximately an hour and a half because he feared for his life
      and he was hiding from some people with whom he had problems
      that might beat him up. Appellant denied being at the Bank or
      participating in the robbery. Appellant further denied knowing
      anything about the bag of money that was found near him.

             Hernandez testified that he was at his home on Harrisburg
      when he received a phone call from an acquaintance he knew as
      Bayamon through a drug rehabilitation support program, asking
      for a ride to Lebanon. Hernandez drove Bayamon to a certain
      location. Bayamon was going to try to borrow some money to
      give to Hernandez for gas and when Bayamon got back to the car,
      he told Hernandez to drive back to Lebanon. Fifteen minutes later,
      they were stopped at a light when the police car pulled in front of
      them. Hernandez claims that Bayamon then took out a gun and
      told Hernandez to drive and if he stopped, Bayamon would shoot
      him. Because Hernandez is unfamiliar with the area, Bayamon
      was giving him quick directions to turn here and turn there. When
      the car ran into the fence and the police vehicle pushed it from
      behind, Hernandez stayed with the car because he had no reason
      to run.    When questioned on cross-examination, Hernandez
      denied that Appellant was the man that he drove with on April 6,
      2017, or that Appellant had visited the Bank the day earlier.

Trial Court Opinion, 3/22/18, at 2-10 (internal citations omitted) (sic).




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         Following trial, the jury convicted Appellant of robbery in the first

degree, conspiracy to commit robbery in the first degree, robbery in the

second degree, conspiracy to commit robbery in the second degree, theft by

unlawful taking, conspiracy to commit theft by unlawful taking, receiving

stolen property, conspiracy to receive stolen property, terroristic threats, and

simple assault. On December 20, 2017, the trial court sentenced Appellant to

an aggregate term of 11½ to 47 years’ imprisonment. Appellant did not file

any post-sentence motions. Instead, he timely appealed to this Court. The

trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.       Appellant complied, raising three assertions of

error:

         1. Whether the verdict of guilt was against the weight and
         sufficiency of the evidence presented at trial[.]

         2. Whether the [trial court] committed prejudicial error by
         structuring a sentence with an eleven and one-half (11.5)
         minimum given the testimony and evidence presented at trial[.]

         3. Whether the [trial court] committed prejudicial error by not
         merging count II conspiracy/robbery into count 1 robbery for
         purposes of sentencing[.]

Rule 1925(b) Statement (unnecessary capitalizations omitted) In response,

the trial court issued a Pa.R.A.P. 1925(a) opinion, concluding that Appellant is

not entitled to relief.

         On appeal, Appellant repeats the same issues for our review.

Preliminarily, we note that we are unable to review Appellant’s second issue

on appeal, because he has failed to include it in the argument section of his

brief, much less develop it in any coherent fashion. As a result, the second

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issue is abandoned, as we cannot meaningfully review it.2         See Pa.R.A.P.

2119(a) (stating that the argument section of the parties’ briefs “shall be

divided into as many parts as there are questions to be argued; and shall have

at the head of each part—in distinctive type or in type distinctly displayed—

the particular point treated therein, followed by such discussion and citation

of authorities as are deemed pertinent.”); Commonwealth v. Johnson, 985

A.2d 915, 924 (Pa. 2009), (“[W]here an appellate brief fails to provide any

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is

waived.”) (citation omitted), cert. denied, 562 U.S. 906 (2010); see also

Commonwealth v. Murchinson, 899 A.2d 1159, 1160 (Pa. Super. 2006)

(deeming appellant’s claims waived under Pa.R.A.P. 2119(a) because he did

not develop meaningful argument with specific references to relevant case law

and to the record to support his claims); Commonwealth v. Heilman, 867

A.2d 542, 546 (Pa. Super. 2005) (recognizing that failure to provide “such

discussion and citation of authorities as are deemed pertinent” may result in

waiver); Commonwealth v. Cornelius, 856 A.2d 62, 77 (Pa. Super. 2004)



____________________________________________


2 Even if it were not abandoned, Appellant still would not be entitled to relief.
Because Appellant did not file any post-sentence motions, he waived his
discretionary aspects of sentencing claim. See Commonwealth v. Evans,
901 A.2d 528, 534 (Pa. Super. 2006) (holding that the defendant’s challenges
to the discretionary aspects of sentencing were waived because he failed to
raise the claims at the sentencing hearing or file a post-sentence motion as
required by Pa.R.Crim.P. 720).

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(declining to review appellant’s claim where there was limited explanation and

development of the argument).

      We now turn to Appellant’s first issue, which invokes a sufficiency and

weight of the evidence challenge. With respect to the former, it is settled that

to preserve a challenge to the sufficiency of the evidence on appeal, an

appellant’s Rule 1925(b) statement must state with specificity the element or

elements of the crime upon which the appellant alleges the evidence was

insufficient. See Commonwealth v. Garland, 63 A.3d 339, 334 (Pa. Super.

2013); See also Commonwealth v. Garang, 9 A.3d 237, 246 (Pa. Super.

2010) (“[W]hen challenging the sufficiency of the evidence on appeal, the

Appellant’s 1925 statement must specify the element or elements upon which

the evidence was insufficient in order to preserve the issue for appeal.”)

(quotations and citation omitted). “Such specificity is of particular importance

in cases, where, as here, the appellant was convicted of multiple crimes each

of which contains numerous elements that the Commonwealth must prove

beyond a reasonable doubt.” Garland, 63 A.3d at 344 (citations omitted).

In Garland, the appellant’s Rule 1925(b) statement simply stated, “[t]he

evidence was legally insufficient to support the convictions.” Id. The panel

found the claim waived, noting, among other things, that the appellant “failed

to specify which elements he was challenging in his Rule 1925(b) statement.”

Id.

      Instantly, Appellant’s sufficiency challenge, as set forth in his Rule

1925(b) statement, and reasserted in his statement of questions involved on

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appeal, lacks specificity. In particular, Appellant only generally challenges the

sufficiency of the evidence underlying his multiple convictions related to the

armed bank robbery. Appellant fails to list the elements of the crimes in his

brief upon which the evidence is insufficient. Accordingly, we conclude that

Appellant has failed to preserve his sufficiency-of-the-evidence claim for lack

of specificity. See Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super.

2015) (holding that appellant’s “boilerplate” concise statement declaring “that

the evidence was insufficient to support his conviction” was too vague even

where Tyack was convicted only of one crime).

      Appellant’s weight of the evidence argument is also waived.         Under

Pa.R.Crim.P. 607, a challenge to the weight of the evidence generally must be

preserved in a post-sentence motion. “As noted in the comment to Rule 607,

the purpose of this rule is to make it clear that a challenge to the weight of

the evidence must be raised with the trial judge or it will be waived.”

Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004), appeal

denied, 863 A.2d 1143 (Pa. 2004). A claim challenging the weight of the

evidence generally cannot be raised for the first time in a Rule 1925(b)

statement. Commonwealth v. Burkett, 830 A.2d 1034 (Pa. Super. 2003).

An appellant’s failure to avail himself of any of the methods for presenting a

weight of the evidence issue to the trial court constitutes waiver of that claim,

even if the trial court responds to the claim in its Rule 1925(a) opinion. Id.

Instantly, Appellant failed to challenge the weight of the evidence at




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sentencing.   Additionally, as mentioned, he did not file any post-sentence

motions. Accordingly, his weight of the evidence claim is waived.

      Appellant’s final argument that conspiracy to commit robbery and

robbery should have merged for purposes of sentencing also lacks merit. It

is settled that “[t]he crime of conspiracy . . . is separate and distinct from the

underlying substantive crime.”     Commonwealth v. Ritter, 615 A.2d 442,

444 (Pa. 1992). Furthermore, “the crime of conspiracy does not merge with

the   substantive   offense    that   is   the   subject   of   the   conspiracy.”

Commonwealth v. Jacquez, 113 A.3d 834, 838 (Pa. Super. 2015) (citations

omitted).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/04/2018




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