Com. v. Bermudez, M. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL MANUEL BERMUDEZ,
Appellant No. 386 MDA 2016
Appeal from the Judgment of Sentence October 28, 2015
in the Court of Common Pleas of Lebanon County
Criminal Division at No.: CP-38-CR-0000423-2015
BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 11, 2016
Appellant, Michael Manuel Bermudez, appeals from the judgment of
sentence1 imposed on October 28, 2015,2 following his jury conviction of
three counts of robbery, five counts of criminal conspiracy, and two counts
of aggravated assault.3 We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Appellant purports to appeal from the trial court’s February 11, 2016 order
denying his post-sentence motions; however, an appeal is properly taken
from the judgment of sentence, not the order denying the motions. See
Commonwealth v. Chamberlain, 658 A.2d 395, 397 (Pa. Super. 1995).
2
Although the court filed its sentencing order on November 2, 2015, the
record reveals that it imposed Appellant’s sentence in open court following a
hearing on October 28, 2015. We have amended the caption accordingly.
3
See 18 Pa.C.S.A. §§ 3701(a)(1), 903(c), and 2702(a), respectively.
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Appellant’s co-defendant, Ronald Calderon, has raised virtually
identical issues, which the trial court addressed in one opinion. (See Trial
Court Opinion, 2/11/16). The two cases have not been consolidated, but
have been listed consecutively. Because of the similarity of the issues, we
will continue to treat these two cases together. Thus our memoranda in
these matters, 386 MDA 2016, and in 387 MDA 2016, are also virtually
identical.
We take the factual and procedural history in this matter from the trial
court’s February 11, 2016 opinion denying Appellant’s post-sentence motion,
and our review of the certified record. On December 12, 2014, Appellant
was charged with one count each of robbery, conspiracy, and aggravated
assault, stemming from his participation in the robbery and shooting of
Conner Rivera on December 10, 2014. On February 26, 2015, the trial court
consolidated Appellant’s case with co-defendant Calderon for trial. On May
18, 2015, the Commonwealth filed an amended information charging
Appellant with three counts of robbery, five counts of conspiracy, and two
counts of aggravated assault.
On September 4, 2015, a jury trial was held. At trial, the
Commonwealth presented the testimony of Rivera, who testified that on
December 10, 2014, he was at the home of his paramour, Sasha Cruz. (See
N.T. Trial, 9/04/15, at 12). At 11:00 p.m., two males forced their way into
her home. Rivera testified that he had no problem identifying both men
despite the fact that they wore masks, which partially obscured their faces,
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and he was one hundred percent certain that the people who robbed and
shot him were Appellant and Calderon. (See id. at 16-17, 35). He testified
that he went to high school with Calderon and they were in several classes
together, (see id. at 26-27), and while they were at school they “were okay.
[They] were cool.” (Id. at 27). Rivera further testified that he knew
Appellant from school, and that he had known him for longer than he knew
Calderon. (See id. at 27-28). He also testified that he knew Appellant from
around the neighborhood, and that he and Appellant were friends. (See id.
at 28).
After forcing their way into the apartment, the men came upstairs and
demanded that Rivera show them where everything was, which he took to
mean the location of the drugs and money. (See id. at 17-18). Rivera
offered Calderon a small amount of marijuana that was in his pocket and
told him that he did not have anything. (See id. at 19). In response,
Calderon pulled out a gun. (See id.). Rivera then, in order to create a
diversion, told Calderon there was more in a safe located in a closet on the
balcony and led him to the balcony. (See id. at 19-20). When they were on
the balcony, the men began fighting and Calderon pistol-whipped Rivera
several times and then shot him in the arm. (See id. at 20-23).
Rivera testified that he had smoked marijuana daily and had done so
earlier in the evening, but was not under the influence of marijuana at the
time of the robbery. (See id. at 18-19). Before going to the hospital for his
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injuries, Rivera hid both the marijuana and a bong because he was afraid
they would get him in trouble. (See id. at 23-24).
Officer Brant Zimmerman, who interviewed Rivera after the shooting,
testified that Rivera identified Calderon as the shooter and Appellant as the
second person with him. (See id. at 81-82). Officer Zimmerman stated
that Rivera made no mention that he used or sold marijuana during the
initial interview. Officer Zimmerman also testified that he interviewed Cruz,
who told him that she was not able to identify the robbers, and who denied
that Rivera was involved in drug selling. (See id. at 84).
Following trial, the jury convicted Appellant and Calderon on all
charges. On October 28, 2015, the trial court sentenced Appellant to an
aggregate sentence of not less than five, nor more than twelve, years’
imprisonment. On November 4, 2015, Appellant filed a post-sentence
motion challenging the weight and sufficiency of the evidence. Calderon
filed a similar motion on November 9, 2015. The trial court denied both
motions by order and opinion entered February 11, 2016. This timely appeal
followed.4
Appellant raises two questions on appeal.
____________________________________________
4
Appellant filed his notice of appeal on March 3, 2016. Pursuant to the trial
court’s order, Appellant filed a timely concise statement of errors complained
of on appeal on March 21, 2016. See Pa.R.A.P. 1925(b). The trial court
issued an order on April 6, 2016, adopting the reasoning set forth in its
February 11, 2016 opinion. See Pa.R.A.P. 1925(a).
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A. Did the [t]rial [c]ourt err in ruling that the Commonwealth
presented evidence at trial that was sufficient to sustain a
conviction of all of the offenses charged?
B. Did the [t]rial [c]ourt err in ruling that the jury’s verdict was
not against the weight of the evidence so as to warrant a new
trial under Pa.R.Crim.P. Rule [sic] 607?
(Appellant’s Brief, at 5).
Our standard of review for a sufficiency of the evidence claim is well-
established:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Palo, 24 A.3d 1050, 1054–55 (Pa. Super. 2011),
appeal denied, 34 A.3d 828 (Pa. 2011) (citation omitted). Additionally,
A motion for a new trial based on a claim that the verdict
is against the weight of the evidence is addressed to the
discretion of the trial court. A new trial should not be granted
because of a mere conflict in the testimony or because the judge
on the same facts would have arrived at a different conclusion.
Rather, the role of the trial judge is to determine that
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notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight
with all the facts is to deny justice. It has often been stated that
a new trial should be awarded when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice and
the award of a new trial is imperative so that right may be given
another opportunity to prevail.
An appellate court’s standard of review when presented
with a weight of the evidence claim is distinct from the standard
of review applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear
and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial court’s
determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations and
emphasis omitted).
In his first issue, Appellant claims that the evidence was insufficient to
support his convictions. (See Appellant’s Brief, at 5, 9-14). However, in his
argument he challenges the credibility of the victim’s testimony, and argues
“[a]side from the questionable identification by Mr. Rivera, there was no
evidence pointing to the identity of either suspect.” (Id. at 12). Thus,
Appellant’s claim concerns the weight, not the sufficiency, of the evidence.
See Palo, supra at 1055. Accordingly, we will consider Appellant’s first and
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second issues together. Moreover, even if Appellant had properly developed
a challenge to the sufficiency of the evidence, it would not merit relief.
Under the Crimes Code, a person may be convicted of aggravated
assault, graded as a felony of the first degree, if she/he “attempts to cause
serious bodily injury to another, or causes such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life[.]” 18 Pa.C.S.A. § 2702(a)(1). The
Code defines “serious bodily injury” as “[b]odily injury which creates a
substantial risk of death or which causes serious, permanent disfigurement,
or protracted loss or impairment of the function of any bodily member or
organ.” 18 Pa.C.S.A. § 2301. The Crimes Code defines robbery as:
§ 3701. Robbery.
(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
* * *
(ii) threatens another with or intentionally puts him in
fear of immediate serious bodily injury;
(iii) commits or threatens immediately to commit any
felony of the first or second degree;
(iv) inflicts bodily injury upon another or threatens
another with or intentionally puts him in fear of
immediate bodily injury;
18 Pa.C.S.A. § 3701(a)(1)(ii-iv). Finally,
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[a] person is guilty of conspiracy with another person or persons
to commit a crime if with the intent of promoting or facilitating
its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S.A. § 903(a).
Upon review, we would conclude that the evidence was sufficient to
support Appellant’s convictions of aggravated assault, robbery, and criminal
conspiracy. Viewing all evidence in the light most favorable to the
Commonwealth as verdict winner, as we are required to do by our standard
of review, the evidence clearly establishes beyond a reasonable doubt that
Appellant is guilty on all counts. See Palo, supra at 1054-55. Appellant’s
first claim, even if properly developed, would not merit relief.
In his second issue, Appellant claims that the trial court erred in
denying his motion for a new trial because the jury’s verdict was against the
weight of the evidence. (See Appellant’s Brief, at 14-17). Specifically, he
argues that the evidence identifying him as involved in the shooting was
contradictory and inconsistent, and that instead the evidence suggested that
he was with his brother or girlfriend at the time, and that somebody else
committed the crime. (See id. at 15-17). We disagree.
In this case, the trial court declined to upset the verdict of the jury,
noting that the issue was one of credibility, and the jury was free to believe
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all, part, or none of the testimony presented. It stated that while “both
Calderon and [Appellant] vigorously challenged Rivera’s identification at
trial, and while each has proffered numerous arguments . . . why Rivera
should not be believed, the ultimate decision of whether Rivera is believable
was for the jury. In this case, the jury obviously found Rivera credible.”
(Trial Ct. Op., at 10) (unnecessary capitalization omitted).
Upon review, we conclude that the trial court did not palpably abuse
its discretion in deciding that the jury’s verdict was not against the weight of
the evidence. See Clay, supra at 1054-55. Appellant’s claims do not merit
relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2016
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