David Rodriguez v. Gerald Rozum ( 2013 )


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  •                                                             NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____
    No. 12-2881
    ______
    DAVID RODRIGUEZ
    v.
    GERALD L. ROZUM; THE DISTRICT OF THE COUNTY OF PHILADELPHIA; THE
    ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA,
    Appellants
    ______
    On Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Civil No. 2-11-cv-00393)
    District Judge: Honorable Jan E. DuBois
    ______
    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
    June 13, 2013
    Before: SCIRICA, HARDIMAN, and VAN ANTWERPEN, Circuit Judges
    (Filed: July 1, 2013)
    ______
    OPINION OF THE COURT
    ______
    VAN ANTWERPEN, Circuit Judge.
    After a non-jury waiver trial in the Philadelphia County Court of Common Pleas,
    Appellee David Rodriguez (―Rodriguez‖) was convicted of Murder in the Second
    Degree, Aggravated Assault, and Attempted Murder.1 He was acquitted of Robbery,
    Theft, and various other offenses. After exhausting his state court remedies, Rodriguez
    filed a petition for a writ of habeas corpus in the Eastern District of Pennsylvania,
    claiming that he was unconstitutionally convicted based on insufficient evidence. The
    District Court agreed and granted the petition. For the reasons set forth below, we
    reverse.
    I. The Trial2
    A. Steven MacNamee’s Testimony
    Rodriguez sold marijuana to Steven MacNamee (―Steven‖) three or four times a
    month over a five month period.3 Generally, Steven would purchase $400 worth of drugs
    at a time. On February 8, 1998, Steven and Rodriguez arranged to meet to conduct a
    drug transaction. Steven arrived in his white car, while Rodriguez arrived in a red station
    wagon, accompanied by Luis Casiano (―Casiano‖), who was Rodriguez‘s codefendant at
    trial, and an individual known as ―Macho.‖ Rodriguez and his two companions got into
    Steven‘s car. After seeing the drugs, Steven expressed doubts as to their quality. The
    parties agreed that Steven would take a sample of the drugs to his brother, for whom he
    1
    These crimes are, and were at the time of trial, codified at 18 Pa.C.S. § 2502(b) (second
    degree murder); 18 Pa.C.S. §§ 901 and 2502 (attempted murder); and 18 Pa.C.S. § 2702
    (aggravated assault).
    2
    This Court, like the District Court, views the evidence in the light most favorable to the
    Commonwealth, as it was the verdict winner at trial. Parker v. Matthews, 
    132 S. Ct. 2148
    , 2152 (2012) (per curiam).
    3
    There was a dispute at trial as to the type of drug—the Commonwealth alleged it was
    marijuana, while Rodriguez and his codefendant, Luis Casiano, alleged it was cocaine.
    The type of the drug does not affect the disposition of this case.
    2
    was purchasing them, and would let Rodriguez know if the drugs were acceptable.
    Steven said he would be willing to pay $350, as opposed to $400, for the current batch of
    drugs if Rodriguez could not provide a better product.
    Steven later paged Rodriguez to indicate the drugs were not acceptable.
    Rodriguez called Steven, and said he could not sell the drugs for $350; Steven said he
    would wait for Rodriguez to acquire a better product. Eventually, after an argumentative
    conversation, Rodriguez agreed to sell the drugs for the lower price.
    Steven brought his brother, David MacNamee (―David‖) to the meeting. David sat
    in the front passenger seat, and was tasked with counting the money during the ride to the
    meeting. Rodriguez again arrived in the red station wagon, accompanied by Casiano and
    Macho. Rodriguez parked immediately behind the MacNamees‘ car. According to
    Steven, Rodriguez, Casiano, and Macho all approached his car, and despite Steven‘s
    request that only Rodriguez enter, all three of them got into the back of Steven‘s car.4
    Macho sat in the rear driver-side seat, Rodriguez sat in the middle seat, and Casiano sat in
    the rear passenger-side seat. Once in the car, Macho handed the drugs to Rodriguez, who
    then handed them to David. David gave the money to Rodriguez. David either placed
    the drugs on the center console between the two front seats, or gave the drugs to Steven
    who placed them in the center console.
    At this point, Rodriguez began speaking Spanish to the individual Steven believed
    was Casiano. As this was happening, Steven turned forward to start the car, and he heard
    4
    At trial, there was a dispute as to whether Casiano ever got into Steven‘s car—the trial
    judge found that Casiano had not, and acquitted him of all charges. Whether Casiano
    was in the car is irrelevant to this matter.
    3
    a door open. He then heard three loud ―bangs,‖ and as he turned towards the rear of the
    car, he saw several flashes and a window shatter. The shooting stopped briefly, and
    Steven saw the individual he believed to be Casiano halfway out of the car, on the rear
    passenger-side of the vehicle. After Steven said, ―You don‘t have to do this,‖ the
    individual moved back into the car. During this pause in the shooting, Steven saw a hand
    reach up to the center console and grab the drugs from it, and saw Rodriguez leaning
    back against the back seat, holding the drugs in his hand. The individual Steven believed
    to be Casiano began shooting again, hitting Steven in his right shoulder. The shooter
    continued to move along the back seat and shot Steven in the face. Before exiting out the
    rear driver-side door, the shooter fired one more shot, hitting Steven in the shoulder
    again.
    Steven attempted to respond with his own firearm, heard another shot, noticed his
    brother was bleeding heavily, and drove to the hospital. As he pulled out, he collided
    with the red station wagon. As it drove past him, Steven saw the station wagon stop to
    allow the shooter to get in, and then continue to drive away. David died from his injuries
    while Steven survived, and eventually identified Rodriguez from a series of photo arrays.
    B. Detective Mangoni’s Testimony
    Detective Mangoni testified regarding a statement Rodriguez gave to police. In
    that statement, Rodriguez confirmed that he went to sell marijuana to Steven, and that he,
    Macho, and Casiano got into Steven‘s car, with Macho in the rear passenger seat,
    Rodriguez in the middle, and Casiano in the rear driver seat. Rodriguez gave the drugs to
    Macho, who handed them up front, and David handed the money to Rodriguez. A blue
    4
    van pulled up behind Steven‘s car, and Casiano left Steven‘s car and got into Rodriguez‘s
    red station wagon. Macho then pulled out a gun and shot David, and as Rodriguez was
    leaving the car, Macho began shooting Steven. Rodriguez ―took the weed back from
    Steve before [Rodriguez] got out of Steve‘s car.‖ (Transcript (―Tr.‖) 10/6/99 at 139.)
    Macho kept the money.
    After the shooting, Rodriguez drove them to Whitaker Avenue and parked the car,
    while Macho called a friend from a payphone. Macho‘s friend arrived soon thereafter,
    picked up all three individuals, leaving the red station wagon at the payphone, and drove
    Rodriguez and Casiano to Rodriguez‘s home. Rodriguez kept the drugs, while Macho
    kept both the gun and the money.5
    C. Luis Casiano’s Testimony
    Casiano testified that Rodriguez sold cocaine, not marijuana. Before Casiano and
    Rodriguez left Rodriguez‘s house to meet the MacNamees, Macho arrived to speak about
    some money that Macho owed to Rodriguez. Macho also wanted to buy more cocaine.
    Rodriguez said he was busy with another customer. Macho asked if he could accompany
    Rodriguez to the transaction with the MacNamees, and Rodriguez agreed.
    According to Casiano, at the meeting Steven said his car would be too crowded if
    they all got in, and so Casiano went back and waited in the red station wagon while
    Macho and Rodriguez entered Steven‘s car. As Casiano waited, a blue minivan with its
    5
    The Commonwealth also called a deputy Medical Examiner to testify as to the causes of
    David‘s death, and the distance from which the firearm was fired that killed him. The
    Commonwealth called other witnesses, but their testimony pertained solely to the case
    against Casiano, repeated testimony provided by other witnesses, or provided other
    evidence not relevant to this matter.
    5
    high beams on pulled up behind the red station wagon. He heard three shots from
    Steven‘s car, and saw Rodriguez crawl on the ground and run towards the station wagon.
    Rodriguez exited Steven‘s vehicle with the drugs in his hands. Rodriguez started the car
    and pulled up alongside Steven‘s car as more shots were fired. Macho then got in the
    station wagon, and they drove away; Rodriguez told Casiano that Macho had shot one of
    the MacNamees. Casiano testified that the minivan followed them as they drove away.
    After eluding the minivan, Rodriguez drove them to Whitaker Avenue, and Macho used a
    payphone to call a friend to pick them up. Rodriguez and Casiano left the station wagon
    because they were afraid to keep driving it, and got a ride home from Macho‘s friend.
    D. Rodriguez’s Testimony
    Rodriguez provided testimony similar to Casiano‘s regarding the events leading up
    to the shooting. Once in Steven‘s car, Macho passed the drugs to Rodriguez, who gave
    them to David. Rodriguez testified that he was sitting in the rear middle seat of Steven‘s
    car. According to Rodriguez, he and Steven disagreed on the appropriate price for the
    drugs. Rodriguez was exiting the car when he saw a blue minivan pull up; he then heard
    a gunshot. Rodriguez dove to the ground, and crawled towards the red station wagon.
    As Rodriguez drove away, he saw Macho get out of Steven‘s car—Macho told Rodriguez
    to stop, which he did, and Rodriguez allowed Macho to get into the car. At this point,
    Rodriguez drove to Whitaker Avenue, waited for Macho to use the payphone, and got a
    ride home from Macho‘s friend. Rodriguez took the drugs with him, but claimed the
    MacNamees had kept the money.
    E. Trial Judge’s Decision
    6
    The trial judge issued her decision from the bench. She found that Macho was the
    shooter, and found Rodriguez guilty of second degree murder, attempted murder, and
    aggravated assault based on accomplice liability, because Rodriguez was responsible for
    Macho‘s presence in the MacNamees‘ car.       The judge found Rodriguez and Macho were
    conspirators in the crime of selling drugs, but that Rodriguez did not have the specific
    intent to kill David MacNamee. The judge found Rodriguez responsible for the drug
    transaction which resulted in a robbery, and since robbery is one of the enumerated
    underlying offenses for the purposes of second degree murder, the judge found Rodriguez
    guilty of second degree murder. The judge specifically stated that she did not believe it
    was Rodriguez‘s intent to commit a robbery, and therefore acquitted him of robbery.
    II. Appellate and Post-Conviction Proceedings
    On direct appeal, two judges of a three judge panel of the Pennsylvania Superior
    Court vacated Rodriguez‘s conviction, based on insufficient evidence.6 However, the
    Pennsylvania Superior Court heard the case en banc, and affirmed the conviction without
    a published opinion. Commonwealth v. Rodriguez, 
    860 A.2d 1134
     (Pa. Super. Ct. 2004).
    In its unpublished opinion, the en banc court found that the trial judge‘s remarks from the
    bench were not ―findings of fact‖ but instead were ―gratuitous prefatory remarks . . .
    intended to soften the blow of the guilty verdict and were offered as a courtesy to litigants
    and onlookers.‖ (Appendix (―App.‖) at 164.) The court determined that, based on the
    6
    The Superior Court panel initially found that a defendant cannot be convicted of second
    degree murder when he is acquitted of the underlying felony, and there is no common
    design to commit robbery. In so doing, the court relied on the trial judge‘s statements
    from the bench regarding Rodriguez‘s intent. The dissenting judge believed this reliance
    improper.
    7
    evidence admitted at trial and the reasonable inferences therefrom, viewed in the light
    most favorable to the prosecution, there was sufficient evidence to support the conviction.
    The en banc court mentioned the following as establishing sufficient evidence for
    accomplice liability: Rodriguez brought Macho, who owed Rodriguez money, to the
    drug transaction, where the MacNamees would be waiting with money; drove Macho
    away from the shooting and to a payphone; waited for Macho to call others; and switched
    getaway cars. (App. at 169.)
    The Pennsylvania Supreme Court denied allocatur. Rodriguez filed a
    Pennsylvania Post Conviction Relief Act (―PCRA‖) petition, which was denied. This
    denial was affirmed by the Pennsylvania Superior Court.
    Rodriguez filed a timely petition for a writ of habeas corpus under 
    28 U.S.C. § 2254
     in the Eastern District of Pennsylvania. A Magistrate Judge determined that
    Rodriguez was not entitled to relief. The District Court disagreed, finding that
    Rodriguez‘s conviction violated the Fourteenth Amendment of the Constitution because
    it was not supported by sufficient evidence. Specifically, the District Court found there
    was insufficient evidence that Rodriguez had the intent to commit or facilitate the
    commission of the robbery, and therefore there was insufficient evidence to establish
    second degree murder via accomplice liability. Appellants timely appealed, arguing that
    the District Court improperly ignored or discredited pivotal evidence, and misapplied
    Pennsylvania precedent. Rodriguez, needless to say, disagrees, and argues that the
    District Court appropriately determined his conviction was supported by insufficient
    evidence.
    8
    III. Standard and Scope of Review7
    ―As the District Court did not conduct an evidentiary hearing, our review of its
    order [granting] habeas relief is plenary.‖ Johnson v. Folino, 
    705 F.3d 117
    , 127 (3d Cir.
    2013). When a petitioner alleges entitlement to habeas relief by challenging the
    sufficiency of the evidence supporting his state court conviction, federal courts apply a
    ―twice-deferential standard‖ of review. Parker v. Matthews, 
    132 S. Ct. 2148
    , 2152
    (2012) (per curiam). Under the first part of this standard, ―[t]he evidence is sufficient to
    support a conviction whenever, ‗after viewing the evidence in the light most favorable to
    the prosecution, any rational trier of fact could have found the essential elements of the
    crime beyond a reasonable doubt.‘‖ 
    Id.
     (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 319
    (1979)). In applying this standard, we consider ―all of the evidence . . . in the light most
    favorable to the prosecution‖ and even if the record ―supports conflicting inferences [the
    reviewing court] must presume—even if it does not affirmatively appear in the record—
    that the trier of fact resolved any such conflicts in favor of the prosecution.‖ Jackson,
    
    443 U.S. at 319, 326
    .
    The second layer of deference only permits a federal court to set aside the state-
    court conviction if ―the decision was objectively unreasonable.‖ Matthews, 
    132 S. Ct. at 2152
     (internal citation and quotation marks omitted); see also Blystone v. Horn, 
    664 F.3d 397
    , 418 (3d Cir. 2011) (―[A] decision adjudicated on the merits in a state court and
    based on a factual determination will not be overturned on factual grounds unless [the
    7
    The District Court had jurisdiction under 
    28 U.S.C. §§ 1331
    , 2241, and 2254(a). We
    have jurisdiction pursuant to 
    28 U.S.C. §§ 1291
     and 2253.
    9
    state court‘s findings of fact are] objectively unreasonable in light of the evidence
    presented in the state-court proceeding.‖ (internal citation and quotation marks omitted)).
    We determine reasonableness based on the record evidence at the time of the state court
    adjudication. Blystone, 664 F.3d at 418.
    When reviewing a petition for writ of habeas corpus, alleging an unconstitutional
    conviction due to insufficient evidence, federal courts do not review the reasoning
    underlying the state court‘s decision. Instead, we focus on whether the state court‘s
    ultimate decision—affirmation of the conviction—was supported by sufficient record
    evidence. See 
    28 U.S.C. § 2254
    (d)(1)–(2) (providing that petition for writ shall only be
    granted if the state court‘s ―adjudication of the claim . . . resulted in a decision‖ that was
    contrary to federal law or based on ―unreasonable determination of the facts‖ (emphasis
    added)); Hollman v. Wilson, 
    158 F.3d 177
    , 180 n.3. (3d Cir. 1998) (noting state appellate
    court‘s reasoning was incorrect, but because result was proper, petitioner was not entitled
    to habeas relief); see also Cruz v. Miller, 
    255 F.3d 77
    , 86 (2d Cir. 2001) (explaining that
    when conducting habeas review, ―we are determining the reasonableness of the state
    courts‘ ‗decision,‘ 
    28 U.S.C. § 2254
    (d)(1), not grading their papers‖).
    The fact of a potentially inconsistent verdict does not affect our analysis, and does
    not affect the constitutionality of the conviction, even where the verdict was rendered by
    a judge rather than a jury. Harris v. Rivera, 
    454 U.S. 339
    , 345–48 (1981) (per curiam).
    ―Each count in an indictment is regarded as if it was a separate indictment‖ so
    ―[c]onsistency in the verdict is not necessary.‖ Dunn v. United States, 
    284 U.S. 390
    , 393
    10
    (1932).8 Therefore, Rodriguez‘s robbery acquittal does not preclude us from considering
    record evidence establishing his involvement in the robbery when we are reviewing the
    sufficiency of the evidence vis-à-vis his felony murder conviction.
    Our focus is whether, regardless of the reasoning of the state appellate court and
    the robbery acquittal, ―the record evidence could reasonably support a finding of guilt
    beyond a reasonable doubt.‖ Jackson, 
    443 U.S. at 318
    . We ―must consider all of the
    8
    Dunn went on to state, ―If separate indictments had been presented against the
    defendant for possession and for maintenance of a nuisance, and had been separately
    tried, the same evidence being offered in support of each, an acquittal on one could not be
    pleaded as res judicata of the other.‖ 
    284 U.S. at 393
    . A later case which upheld Dunn
    noted that this last sentence was no longer correct, because collateral estoppel may be
    invoked by a criminal defendant. United States v. Powell, 
    469 U.S. 57
    , 64 (1984). The
    Court did not discuss the specific language that ―[e]ach count in an indictment is regarded
    as if it was a separate indictment,‖ 
    id. at 62
    , but it did note that ―the Dunn rule rests on a
    sound rationale that is independent of its theories of res judicata, and it therefore survives
    an attack based upon its presently erroneous reliance on such theories.‖ 
    Id. at 64
    .
    Furthermore, several other Courts of Appeals have since invoked Dunn‘s ―separate
    indictment‖ language when deciding inconsistent verdict cases. See United States v.
    Coutentos, 
    651 F.3d 809
    , 824 (8th Cir. 2011) (―As the Supreme Court has explained,
    consistency in the verdict is not required because each count in an indictment is regarded
    as if it was a separate indictment.‖ (citing Powell, 
    469 U.S. at 62
    )); United States v.
    Redcorn, 
    528 F.3d 727
    , 734 (10th Cir. 2008) (―‗Each count in an indictment is regarded
    as if it was a separate indictment.‘‖ (quoting Powell, 
    469 U.S. at 62
    )); United States v.
    Pisman, 
    443 F.3d 912
    , 914 (7th Cir. 2006) (noting that Powell ―reiterated that each count
    in an indictment is regarded as if it were a separate indictment‖).
    In addition, this Court stated, in a pre-Powell case, that ―consistency in the
    verdicts is not necessary, even though the same evidence is offered in support of each.
    Each count in the present indictment charges a separate crime and it is enough if there is
    sufficient evidence to support the jury‘s verdict of guilty on any one.‖ United States v.
    Dolasco, 
    184 F.2d 746
    , 749 (3d Cir. 1950) (citation and footnote omitted). Two years
    prior to Dolasco, the Supreme Court noted that res judicata applied in criminal as well as
    civil cases. See Sealfon v. United States, 
    332 U.S. 575
    , 578 (1948) (―But res judicata
    may be a defense in a second prosecution. That doctrine applies to criminal as well as
    civil proceedings and operates to conclude those matters in issue which the verdict
    determine though the offenses be different.‖ (citations omitted)).
    11
    evidence admitted by the trial court‖ when making this determination. McDaniel v.
    Brown, 
    558 U.S. 120
    , 131 (2010).
    IV. Sufficiency of the Evidence
    In determining the sufficiency of the evidence, we assess the record evidence in
    light of the relevant controlling state law defining the elements of the crime or theories of
    liability. Jackson, 
    443 U.S. at 319
    , 324 n.16; see also Orban v. Vaughn, 
    123 F.3d 727
    ,
    731 (3d Cir. 1997) (stating we analyze such claims ―with explicit reference to the
    substantive elements of the criminal offense as defined by state law‖).
    A. Relevant Pennsylvania Law
    In determining that there was insufficient evidence to sustain Rodriguez‘s
    conviction, the District Court erred by ignoring controlling Pennsylvania case law and
    key evidence in the record.
    A person commits second degree murder by committing a criminal homicide
    ―while defendant was engaged as a principal or an accomplice in the perpetration of a
    felony.‖ 18 Pa.C.S. § 2502(b). For purposes of second degree murder, ―perpetration of a
    felony‖ is defined as ―the act of the defendant in engaging in or being an accomplice in
    the commission of, or an attempt to commit, or flight after committing, or attempting to
    commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson,
    burglary, or kidnapping.‖ Id. at § 2502(d). Therefore, while robbery is an attendant
    felony for purposes of second degree murder, drug trafficking is not.
    In Pennsylvania, a defendant commits robbery if ―in the course of committing a
    theft, he: (i) inflicts serious bodily injury upon another‖ or ―commits or threatens
    12
    immediately to commit any felony of the first or second-degree.‖ Id. at § 3701(1). ―An
    act shall be deemed ‗in the course of committing a theft‘ if it occurs in an attempt to
    commit theft or in flight after the attempt or commission.‖ Id. at § 3701(2).
    A person is an accomplice in the commission of a crime if: ―(1) with the intent of
    promoting or facilitating the commission of the offense, he: (i) solicits such other person
    to commit it; or (ii) aids or agrees or attempts to aid such other person in planning or
    committing it; or (2) his conduct is expressly declared by law to establish his complicity.‖
    Id. at § 306(c).
    In Pennsylvania, a defendant need not be convicted of the underlying felony to be
    convicted of second degree murder: ―[w]hat is required is that the actor be found guilty of
    a homicide in the progress of committing a felony with sufficient evidence to establish a
    felony was in process and the killing occurred.‖ Commonwealth v. Munchinski, 
    585 A.2d 471
    , 483 (Pa. Super. Ct. 1990).
    To establish accomplice liability, the Commonwealth ―must show by substantive
    evidence that the accused was an ‗active partner in the intent to commit [the crime].‘‖
    Commonwealth v. Wright, 
    344 A.2d 512
    , 514 (Pa. Super. Ct. 1975) (quoting
    Commonwealth v. McFadden, 
    292 A.2d 358
     (Pa. 1972)). ―An agreement is not required,
    as only aid is required‖ and ―[t]he least degree of concert or collusion in the commission
    of the offense is sufficient to sustain a finding of responsibility as an accomplice.‖
    Commonwealth v. Graves, 
    463 A.2d 467
    , 470 (Pa. Super. Ct. 1983).                   Evidence
    establishing that a defendant was an accessory after the fact is alone insufficient to hold
    13
    an individual liable as an accomplice. Commonwealth v. McCleary, 
    381 A.2d 434
    , 436
    (Pa. 1977).9
    B. The District Court’s Analysis
    The District Court purported to first address the en banc Pennsylvania Superior
    Court‘s decision to determine whether it was unreasonable and to then, independently,
    analyze the record evidence to assess its sufficiency. As the latter analysis is dispositive,
    we focus on it.
    1. The District Court Misapplied Relevant Pennsylvania Case Law
    The District Court, when conducting its independent review of the record, divided
    the potential evidence of Rodriguez‘s intent into two types: pre-shooting and post-
    shooting evidence. The District Court determined there was no pre-shooting evidence of
    an intent to facilitate or promote the commission of a crime, which is one method of
    establishing accomplice liability in Pennsylvania. 18 Pa.C.S. § 306(c). It then concluded
    that the post-shooting evidence was insufficient, relying on the rule that ―mere presence
    at the scene of the offense is not sufficient to establish culpability as an aider and abettor,
    nor is presence at the scene in combination with flight from the scene.‖ Moore v. Deputy
    9
    It would be possible to distinguish McCleary from this case. In McCleary, the
    Pennsylvania Supreme Court rejected the idea that ―one who only aids flight without
    participating in the felony plan and without knowledge of a death in the commission of
    the felony can be held responsible for the killing.‖ 381 A.2d at 436 (emphasis added).
    Here, the evidence establishes Rodriguez‘s knowledge of, and participation in, the
    robbery, and his knowledge of the murder, as it happened mere feet away from him.
    However, we do not decide this case by distinguishing it from McCleary; it is obvious
    under other, affirmative Pennsylvania holdings that Rodriguez‘s conviction was
    supported by sufficient evidence.
    14
    Comm’r(s) of SCI-Huntingdon, 
    946 F.2d 236
    , 244 (3d Cir. 1991) (citing Commonwealth
    v. Goodman, 
    350 A.2d 810
     (Pa. 1976) and Commonwealth v. Jones, 
    435 A.2d 223
    , 225
    (Pa. Super. Ct. 1981)). As a result, the court found that there was insufficient evidence to
    establish Rodriguez had intended to commit or facilitate the commission of the robbery
    of the MacNamees.
    As an initial matter, the above quotation, upon which the District Court relies, only
    partially states the rule in Pennsylvania: though it is true that presence at and flight from
    a crime scene, alone, are insufficient to establish accomplice liability, such evidence
    when combined ―with other direct or circumstantial evidence may provide a sufficient
    basis for conviction provided the conviction is predicated upon more than mere suspicion
    or conjecture.‖ Commonwealth v. Rosetti, 
    469 A.2d 1121
    , 1123 (Pa. Super. Ct. 1983)
    (citation omitted).
    A review of the facts of Rosetti demonstrates that Rodriguez‘s conviction was
    ―based on more than mere suspicion or conjecture.‖ 
    Id.
     In Rosetti, the appellant was
    convicted of criminal trespass under a theory of accomplice liability. The victim heard a
    noise at his door, went to answer it, and saw appellant standing twenty feet away.
    Rosetti, 469 A.2d at 1122. After the victim closed the door, he heard another noise at the
    door, and then witnessed a second man through a small window in the door. Id. When
    the victim‘s phone rang, appellant and his companion fled, and were seen fleeing
    together, conversing as they ran, and appellant‘s companion was arrested with a pipe
    wrench in his possession. Id. at 1122–23. The court found the following facts sufficient
    to establish accomplice liability: Appellant was seen outside the home when the crime
    15
    began; Appellant‘s companion was then seen breaking into the home moments later;
    Appellant and companion fled together; they were seen conversing together in flight a
    short time later near the crime scene; a pipe wrench was found in possession of
    Appellant‘s companion. Id. at 1124.
    Here, there is sufficient ―other direct or circumstantial evidence‖ of Rodriguez‘s
    conduct to establish accomplice liability. First, Rodriguez was not merely present at the
    crime scene as an innocent bystander: he was an active participant in the robbery, taking
    the drugs from the MacNamees‘ after they had given Macho the money and after Macho
    had begun shooting. Second, Rodriguez did more than simply flee from a crime scene at
    which he happened to be present: he began fleeing, stopped his escape to assist Macho‘s
    flight, drove Macho to a payphone, and then waited while Macho procured new
    transportation so Rodriguez could abandon his car. Just like the defendant in Rosetti,
    Rodriguez was present when the crime occurred, and he and the principal (Macho) fled
    together, in concert. Unlike the defendant in Rosetti, evidence established that Rodriguez
    was also an active participant in the crime. Additionally, immediately before the
    shooting commenced, Rodriguez spoke in Spanish to the shooter, a language not
    understood by the MacNamees. The timing of this conversation and its
    incomprehensibility to the victims, the fact that Rodriguez acted in apparent concert with
    Macho by reaching forward to take the drugs during a brief pause in the shooting, and
    16
    Rodriguez‘s and Macho‘s cooperative flight from the scene, was more than enough
    evidence, in light of Rosetti, to sustain Rodriguez‘s conviction.10
    2. The District Court Ignored Relevant Pennsylvania Case Law
    Aside from misapplying applicable Pennsylvania case law, the District Court also
    ignored decisions from Pennsylvania courts which establish that the defendant‘s conduct
    after the underlying felony or murder can provide sufficient evidence of the defendant‘s
    intent to commit the underlying felony. Commonwealth v. Legg, 
    417 A.2d 1152
    , 1154–
    55 (Pa. 1980); Commonwealth v. Waters, 
    418 A.2d 312
    , 318 (Pa. 1980).
    In Legg, the Pennsylvania Supreme Court held that a defendant must have formed
    the intent to commit the underlying felony prior to the killing to sustain a conviction of
    second degree murder. 
    Id. at 1154
    . However, the court reaffirmed the principle that ―the
    intent to commit the felony when the act of killing occurred [may be] established by an
    inference arising from circumstances or acts committed very shortly after the slaying.‖
    10
    The two Pennsylvania cases upon which this Court relied in Moore to explain that
    presence at and flight from a crime scene alone are insufficient to establish accomplice
    liability provide illustrative applications of the principle.
    In Commonwealth v. Goodman, Appellant‘s codefendant was seen coming from
    the rear of a building holding a box of frozen meat. The codefendant was ordered by
    police to stand against the wall. Appellant then emerged from the exit and was also told
    to stand against the wall. The codefendant threw the box at police and fled, Appellant
    then fled in the opposite direction. Appellant was rearrested thirty minutes later with no
    inculpatory evidence in his possession. This was insufficient to sustain the conviction for
    burglary and larceny. Goodman, 350 A.2d at 811–12.
    In Commonwealth v. Jones, Appellant was seen running from an alley
    approximately one block from the burglarized store. The only other evidence against
    Appellant was testimony from an officer that no one else was present on the street. 
    435 A.2d at
    225–26.
    As explained supra, the evidence establishes that Rodriguez‘s role in the robbery
    and murder was much greater than those of the defendants in these paradigmatic cases.
    17
    Id. at 1155 (emphasis added); see also id. at n.4. In Waters, the court determined that the
    same principle applied when trying to prove a common design to commit the underlying
    felony. 418 A.2d at 318.
    This principle was applied in Commonwealth v. Olds, 
    469 A.2d 1072
     (Pa. Super.
    Ct. 1983). In that case, Olds, Bonner, and Allen were driving around town, when Bonner
    suggested robbing a cigar store. Id. at 1074. Olds said he wanted to get something to eat,
    and the group drove to the cigar store, at which point Allen said, ―I‘m going to rob the
    store,‖ to which Olds replied, ―yeah right.‖ Id. In the store, Olds went to purchase a bag
    of chips at the register; as he was doing so, Allen followed another customer out of the
    store, fired a shot, and after the customer offered his wallet, shot the customer twice. Id.
    Olds and Allen jumped in the car as Bonner pulled up, and Bonner dropped them off near
    Olds‘s house. Id. at 1075. Olds was convicted of second degree murder based on
    conspiracy liability, which requires the same finding of intent as accomplice liability. Id.;
    see also Commonwealth v. Anderson, 
    402 A.2d 546
    , 549 (Pa. Super. Ct. 1979) (―The
    intent required for criminal conspiracy is the same as that required for accomplice
    liability: ‗intent of promoting or facilitating the commission of the offense.‘‖)
    The Superior Court affirmed the conviction, noting that the common intent to
    commit the underlying offense could be ―inferred from the circumstances or acts
    committed either before or shortly after the slaying.‖ Olds, 469 A.2d at 1075. The court
    found ―[i]t is especially significant that the three participants arrived at the scene together
    and left together after the crime had been committed. We find, therefore, that the jury in
    this case was entitled to conclude that appellant was aware of an incipient robbery and
    18
    performed acts evidencing an agreement to participate therein.‖ Id. (citation omitted).
    The court noted that this evidence was more than ―mere presence at the scene of a crime
    [or] mere association with a perpetrator,‖ as that alone would be insufficient. Id.
    Here, the evidence is far stronger than that in Olds. Rodriguez drove Macho, the
    shooter, to the location, and Rodriguez watched as Macho shot the MacNamees at close
    range. Unlike the defendant in Olds, who did not actively participate in the robbery,
    Rodriguez took the drugs from the MacNamees as they were being shot. Then, again
    unlike the defendant in Olds who was merely a passenger, Rodriguez halted his flight
    from the scene of the crime to allow Macho to enter his vehicle, drove Macho away from
    the scene, and took him to a payphone. Rodriguez then waited while Macho called
    another friend and abandoned the getaway car. After securing Macho‘s and his own
    escape, Rodriguez took the drugs while Macho took the money. The evidence regarding
    Rodriguez‘s involvement in the crime, both during and after the shooting, was far greater
    than that which supported the conviction in Olds, and is precisely the sort of post-offense
    conduct which may provide circumstantial evidence of criminal intent under Legg.
    3. The District Court Ignored Dispositive Evidence
    This application of Pennsylvania law to the evidence highlights the third error
    committed by the District Court: the District Court both ignored key evidence and failed
    to view evidence in the light most favorable to the Commonwealth.
    19
    For example, the District Court determined that the en banc Superior Court
    erroneously concluded that ―Macho took the cash, and Rodriguez took the drugs.‖11
    (App. at 64.) The District Court found that ―the record is devoid of any evidence that
    ‗Macho took the cash‘‖ and that ―[t]he evidence was that the drugs were in [Rodriguez‘s]
    possession when Macho began shooting, and there is no analysis-worthy evidence as to
    what happened to the money after the shooting began.‖ (Id.) This is a false summation
    of the record evidence, and appears to involve an impermissible credibility determination.
    There is evidence in the record that Macho took the money. Detective Mangoni
    testified about the contents of statements that Rodriguez gave to the police. According to
    Mangoni, Rodriguez said that he had taken the drugs from the MacNamees, that Macho
    took the money, and that Macho kept the money after dropping off Rodriguez and
    Casiano. (Tr. 10/6/99 at 139 (―Macho had the money with him‖ after getting into
    Appellee‘s car after the shooting); id. at 140 (―Macho took [the gun] with him and the
    money.‖).) Steven MacNamee also testified that the money had changed hands before
    the shooting. (Tr. 10/4/99 at 57.)
    In addition, evidence established the drugs were not in Rodriguez‘s possession
    when the shooting began. According to Steven, the drugs had been placed in the center
    console when the shooting began, and during a brief pause after the first shots were fired,
    he saw a hand reach up and take the drugs from the center console, and he then turned
    around and saw Rodriguez holding the drugs in his hand. (Tr. 10/5/99 at 17.) It is
    11
    This is but one example of the District Court mistakenly focusing on the state appellate
    court‘s reasoning, rather than the record evidence as a whole.
    20
    unclear why the District Court found this evidence was not ―analysis-worthy,‖ or why the
    District Court found it was able to make such a determination. See Marshall v.
    Lonberger, 
    459 U.S. 422
    , 434 (1983) (―
    28 U.S.C. § 2254
    (d) gives federal habeas courts
    no license to redetermine credibility of witnesses whose demeanor has been observed by
    the state trial court, but not by them.‖)
    The District Court disregards evidence regarding Rodriguez‘s conduct after the
    shooting. According to the District Court, ―no evidence in the record shows that
    petitioner‘s conduct after Macho shot the MacNamees was anything more than fearful
    flight from a scene at which a customer had unexpectedly shot two men.‖ (App. at 63.)
    In reaching this conclusion, the District Court failed to discuss the fact that Rodriguez
    began to drive away, saw Macho, who he had just seen kill two people at close range, and
    paused to allow Macho to get into his car and thus provide him an avenue of escape. The
    District Court similarly disregarded the evidence that Rodriguez drove Macho to a
    payphone, got into a second getaway car with Macho, and abandoned his car, which
    demonstrates a degree of concert indicative of common or shared intent. Rosetti, 469
    A.2d at 1122–23; Olds, 469 A.2d at 1075.
    The District Court also discredited Steven‘s testimony by, for example, noting that
    Steven
    testified at trial that the money had exchanged hands before the
    shooting began. However, this testimony was shown on cross-
    examination to be inconsistent with Steven MacNamee‘s statement
    to police and his preliminary hearing testimony. Moreover, neither
    the trial court nor the en banc Superior Court analyzed or cited
    Steven MacNamee‘s testimony.
    21
    (App. at 64 n. 20 (citations omitted).) Aside from once again impermissibly focusing on
    the reasoning of the state courts, rather than the record evidence, the District Court
    weighed the evidence, which the Supreme Court has clearly and vehemently proscribed.
    Lonberger, 
    459 U.S. at 434
    ; see also Matthews, 
    132 S. Ct. at 2149
     (noting lower federal
    court‘s decision was ―a textbook example of what the Antiterrorism and Effective Death
    Penalty Act of 1996 (AEDPA) proscribes: using federal habeas corpus review as a
    vehicle to second-guess the reasonable decisions of state courts‖ (internal quotation
    marks omitted)).
    In sum, the District Court ignored several important Pennsylvania cases and
    disregarded dispositive facts in the record, to wit: Macho owed Rodriguez money;
    Rodriguez drove Macho to the transaction with the MacNamees; he had Macho rather
    than Casiano accompany him into the MacNamees‘ car; he spoke briefly in Spanish to
    Macho immediately before the shooting began; he took the drugs from the MacNamees
    as Macho began shooting them, during a brief pause in the shooting; he exited the vehicle
    and began to drive away, but stopped the car to allow Macho to get in; he drove to a
    payphone to allow Macho to make a phone call; he waited for Macho to make that phone
    call, and then for Macho‘s friend to arrive; he got a ride with Macho‘s friends and
    abandoned the car he used to escape the crime scene; Macho‘s friends drove him home;
    and he kept the drugs while Macho kept the money. When this evidence is viewed in
    conjunction with applicable Pennsylvania case law, it is more than sufficient to establish
    that Rodriguez acted ―with the intent of promoting or facilitating the commission of the
    [robbery]‖ by ―aid[ing] . . . [Macho] in . . . committing it.‖ 18 Pa.C.S. § 306(c).
    22
    V. Conclusion
    For the foregoing reasons, the judgment of the District Court is reversed, and the
    matter is remanded for further proceedings consistent with this opinion.
    23