Com. v. Roque-Gonzalez, R. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RICHARD OMAR ROQUE-GONZALEZ,
Appellant No. 1893 MDA 2013
Appeal from the Judgment of Sentence September 19, 2013
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002985-2012
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 26, 2014
Richard Omar Roque-Gonzalez appeals from the judgment of sentence
of twelve to twenty-
2013, following a jury trial resulting in his conviction for robbery, aggravated
assault, simple assault, recklessly endangering another person, disorderly
conduct, and harassment.1 We affirm.
The evidence at trial established the following: In the afternoon of
June 3, 2012, Fernando Pindeda was on his lunch break, sitting outside in
the 100 block of South 8th Street in the City of Reading, Pennsylvania.
Appellant, along with two other individuals, approached Mr. Pindeda and
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1
Respectively, 18 Pa.C.S. §§ 3701(a)(1)(i), 2702(a)(1), 2701(a)(1), 2705,
5503(a)(4), and 2709(a)(1).
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asked for money. Mr. Pindeda knew Appellant from the neighborhood. He
refused to give any money to Appellant and pushed Appellant. Appellant
pulled a gun, shot Mr. Pindeda, and fled the scene. A single bullet struck Mr.
Pindeda in an ankle, passed through, and lodged in his other leg. Neither
Appellant nor his accomplices took any money or property from Mr. Pindeda.
We highlight the following testimony of Mr. Pindeda:
Q Okay. And, sir, you said three individuals came up to you?
A Yes.
Q What did those individuals do?
A They asked for the money I had in my pocket.
Q And what did you do?
A
Q Now, these three individuals, had you ever seen any of
them prior to that date?
A Yes, and he is here.
Q Okay. And, sir, where have you seen that individual prior
to that date?
A In front.
Q Okay. In front of what?
A In front of the place I was working.
Q Okay. And, sir, you said that these individuals demanded
your money and that you did not give it to them?
A No.
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Q What else did you do?
A them,
and sat down again.
Q Okay. And what happened when you sat down again?
A One of them shot at me.
Notes of Testimony (N.T.), 07/10-11/2013, at 63-64.
Following this incident, Mr. Pindeda positively identified Appellant on
several occasions: (1) in a photo array presented to him on June 4, 2012
(the day after the shooting), which was compiled after he gave a detailed
description of Appellant to the police;2 (2) at the preliminary hearing held
June 15, 2012; and (3) at trial. Nevertheless, on two different occasions,
Mr. Pindeda refused to identify Appellant: (1) when the police initially
presented the photo array to Mr. Pindeda on June 3, 2012, shortly after his
assault, and (2) during his initial testimony at the preliminary hearing.
During his trial testimony, Mr. Pindeda explained that he refused to
testimony of Officer Aaron Demko indicated that Mr. Pindeda had not yet
received any pain medication for his injuries. See N.T. at 136-37. Mr.
Pindeda further testified that he initially refused to identify Appellant at the
preliminary hearing because a friend of Appellant had threatened him. See
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2
Mr. Pindeda described Appellant as a Puerto Rican male, who wore his hair
in a ponytail and whose lip is pierced. See N.T. at 133.
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N.T. at 76; see also
Following his conviction, the trial court sentenced Appellant to seven to
incarceration for aggravated assault. The court imposed a consecutive, one-
year period of probation for disorderly conduct. All other charges merged
for sentencing purposes.
Appellant timely filed post-sentence motions challenging the
sufficiency and weight of the evidence, as well as discretionary aspects of his
sentence. The trial court denied his motions without a hearing. Appellant
timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The
trial court filed a responsive opinion.
On appeal, Appellant first challenges the sufficiency of the evidence
3
presented in support of his conviction. See
The standard for reviewing the sufficiency of the evidence is
whether the evidence admitted at trial and all reasonable
inferences drawn therefrom, when viewed in the light most
favorable to the Commonwealth as the verdict winner, is
sufficient to support all the elements of the offenses beyond a
reasonable doubt.
Commonwealth v. Mitchell, 839 A.2d 202, 205 (Pa. 2003) (citing
Commonwealth v. Miller, 664 A.2d 1310, 1314 (Pa. 1995)). The fact-
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3
Appellant does not challenge his sentence on appeal.
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Commonwealth v. Ramtahal, 33 A.3d
602, 607 (Pa. 2011) (citing Commonwealth v. Laird, 988 A.2d 618, 624
(Pa. 2010)).
robbery, the Commonwealth must prove that, in the course of committing a
theft, Appellant inflicted serious bodily injury upon Mr. Pindeda. See
Commonwealth v. Uderra, 706 A.2d 334, 341 (Pa. 1998);
Commonwealth v. Robinson, 936 A.2d 107, 110 (Pa. Super. 2007); 18
Pa.C.S. 3701(a)
occurs when a defendant performs an act that cons
Commonwealth v. Ennis, 574
A.2d 1116, 1120 (Pa. Super. 1990); 18 Pa.C.S. § 901(a).
Appellant contends that the Commonwealth failed to present any
evidence that he committed or attempted to commit a theft.4 According to
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4
Appellant concedes that the evidence was sufficient to establish that
Appellant inflicted serious bodily injury upon Mr. Pindeda. See
Brief at 17.
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the contrary that the evidence demonstrated that Mr. Pindeda believed
Appellant and his companions were playing a prank, that Mr. Pindeda
Commonwealth did not establish robbery. We disagree.
Based upon the testimony of Mr. Pindeda, the jury could reasonably
rather something more sinister. Appellant confronted Mr. Pindeda
accompanied by two other individuals, not alone, and Mr. Pindeda felt
sufficiently threatened to protect himself. Taking this evidence in the light
most favorable to the Commonwealth as verdict winner, we conclude that
Appellant took a substantial step toward the commission of a theft. 5 Thus,
when considered along with evidence that Appellant inflicted serious bodily
injury upon Mr. Pindeda, the Commonwealth presented sufficient evidence
that Appellant committed robbery.
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5
The testimony is unclear as to whether Appellant asked Mr. Pindeda for
money, or if it was one of his companions. Appellant does not raise this
distinction in his argument. Nevertheless, the lack of clarity does not impact
accountable for the conduct of another person when he is an accomplice of
knowingly and voluntarily cooperates with or aids another in the commission
Commonwealth v. Calderini, 611 A.2d 206, 208 (Pa. Super.
1992) (internal quotation marks omitted); 18 Pa.C.S. § 306(c)(1)(ii).
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Appellant also challenges each of his convictions based upon the
weight of the evidence. See
Appellant consistently) and, thus, wholly incredible. Further, Appellant
highlights what he deems deficiencies in the evidence collected by police,
including an absence of physical evidence linking him to the crime.
-sentence motion challenging the
Commonwealth v. Nypaver, 69 A.3d 708, 717 (Pa. Super. 2013) (internal
quotation omitted).
[W]e may only reverse the lower court's verdict if it is so
contrary to the evidence as to shock one's sense of justice.
Moreover, where the trial court has ruled on the weight claim
below, an appellate court's role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)).
nd we discern no abuse
the evidence and contradictions in the testimony of any witnesses are for the
fact- Id. (citing Commonwealth v. Tharp, 830 A.2d
519, 528 (Pa. 2003)); see also Ramtahal, 33 A.3d at 607.
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Here, though Mr. Pindeda refused or was otherwise unable to identify
Appellant on two occasions, he nonetheless positively identified Appellant
several times, including at trial. Moreover, evidence suggesting Mr. Pindeda
was threatened with further violence should he choose to testify against
Appellant provided the jury with a reasonable explanation for his reluctance
trial test
eyewitness testimony, the absence of physical evidence, such as bullet
verdict. Sanders, 42 A.3d at 331; Ramtahal, 33 A.3d at 607.
evidence claims are without merit. Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2014
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