J-S69037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RONALD CALDERON,

                            Appellant                 No. 387 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-0000179-2015


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

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

        Appellant, Ronald Calderon, appeals from the judgment of sentence1

imposed on October 28, 2015, following his jury conviction of three counts of

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

assault.2 We affirm.

        Appellant’s co-defendant, Michael      Manuel Bermudez, 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
____________________________________________


*
    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
    See 18 Pa.C.S.A. §§ 3701(a)(1), 903(c), and 2702(a), respectively.
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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 of robbery, three counts of conspiracy, and two

counts of 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

Bermudez for trial. On May 19, 2015,3 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,

____________________________________________


3
 The Commonwealth filed a second amended information on May 18, 2015.
The information filed May 19, 2015, was the third and final.



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

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

testified that he went to high school with Appellant 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 Bermudez from school, and that he had known him for longer than he

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

Bermudez from around the neighborhood, and that he and Bermudez 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 Appellant 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,

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

diversion, told Appellant 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 Appellant 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 in trouble. (See id. at 23-24).

       Officer Brant Zimmerman, who interviewed Rivera after the shooting,

testified that Rivera identified Appellant as the shooter and Bermudez 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 Bermudez on all

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

aggregate sentence of not less than thirteen and one-half, nor more than

thirty-one years of imprisonment. On November 4, 2015, Bermudez filed a

post-sentence motion challenging the weight and sufficiency of the evidence.

Appellant 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 1, 2016. Pursuant to the trial
court’s order, Appellant filed a timely concise statement of errors complained
of on appeal on March 15, 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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      [1.] Whether the Commonwealth failed to provide sufficient
      evidence at trial to prove all charges beyond a reasonable
      doubt?

      [2.] Whether the jury’s verdicts were against the weight of the
      evidence?

(Appellant’s Brief, at 4).

      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
      notwithstanding all the facts, certain facts are so clearly of

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      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 4, 9-10).       However,

Appellant’s argument consists of a recitation of the standard of review, and

then a bulleted list of “sufficiency issues” that he asserts are present if “[the

victim’s] identification is viewed in the light most favorable to the

Commonwealth[.]”      (Id. at 9; see id. at 9-10).      Because his argument

solely consists of challenging the credibility of the victim, Appellant’s claim

concerns the weight, not the sufficiency, of the evidence. See Palo, supra



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at 1055.    Accordingly, we will consider Appellant’s first and 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 10-12). Specifically, he

argues that the jury should not have considered Rivera’s testimony credible

because of his drug use, and rather should have credited the testimony of

Ms. Cruz, who stated that she was not able to describe either intruder. (See

id. at 11). 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 noted that while “both

[Appellant] and Bermudez 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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