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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JESSE LUMBERGER, : No. 1238 WDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, February 23, 2015,
in the Court of Common Pleas of Allegheny County
Criminal Division at No. CP-02-CR-0003088-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 31, 2016
Jesse Lumberger appeals from the judgment of sentence entered in
the Court of Common Pleas of Allegheny County following his conviction in a
waiver trial of two counts of robbery and one count each of theft by unlawful
taking, terroristic threats, simple assault, and recklessly endangering
another person.1 The trial court sentenced appellant to serve 10 to
20 years’ imprisonment, followed by 5 years’ probation.2 We affirm.
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3701(a)(1)(ii), 3701(a)(1)(vi), 3921(a), 2706(a)(1),
2701(a)(3), 2705, respectively.
2
The trial court’s Rule 1925(a) opinion reflects that it imposed a concurrent
10-year probationary term. (Trial court opinion, 1/12/16 at 1.) The
February 23, 2015 sentencing order, however, reflects that the trial court
imposed a concurrent 5-year probationary term. (Order of sentence,
2/23/15; Docket #12.)
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The trial court set forth the following factual history:
It is around 2:00 p.m. and Merlyn Fenton is at
her teller window at the Huntingdon Bank in
McKeesport. She is attending to a female customer
on this 15th day of May, 2013. The customer is
engaged in conversation with another customer, a
man, who is waiting in line at Ms. Fenton’s window.
The dialogue allows Ms. Fenton a level of comfort to
instruct the female customer to tell the male “to
remove the cover off his face.” The male
immediately announced “this is a robbery.” The man
jumps over a low teller window designed to
accommodate a disabled customer and shouts: “I
want money.” In his hand is a long object. It looks
like a knife. It might be a foot long. Ms. Fenton
backed up. She then “took all the money that he
demanded and [gave] it to him.”[Footnote 2] He
then ran out of the bank. Ms. Fenton then closed the
bank’s door behind him.[Footnote 3]
[Footnote 2] It was later determined
that $1[,]595.00 was taken.
[Footnote 3] Commonwealth’s exhibits
2-8 are still photographs taken from
interior surveillance cameras and
corroborate Ms. Fenton’s oral rendition.
Ms. Fenton, a diminutive 5’2”, described the
robber as “thin”, “[a]lot taller than me”, a black man
with “black hair”, “very young” and he wore clothing
that was “not . . . bulky”.
Jose Vasquez was also in the bank. He was a
manager. He noticed the robber wearing a “grayish
shirt” with a “doo-rag over his face”,[Footnote 4]
with a slim build and stood about 5’10”.
[Footnote 4] Urban Dictionary of
“do-rag” is: a cloth, often made of nylon
and resembling a panty hose, worn over
the hair of one’s head.
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Soon after the robber fled the bank, local
police arrive[d]. Officer Thomas Greene was the first
to arrive. Once he learned the path the robber took,
he directed other officers toward the cemetery about
50 yards from the bank. He followed soon
thereafter. Based on experience, he knew of an
access road about 20-25 yards inside the entrance
gate to the cemetery. He found “some clothing”
right in the center of that road about 25 yards from
the cemetery’s entrance. Those items were some
pants and a sweat shirt. These items were “no more
than 50 yards” from the bank.
Back at the bank, the investigation was
ongoing. Officer Joe Osinski was summoned to
photograph the scene and possibly collect evidence.
Based upon the robber’s path behind the counter,
Osinski was able to develop a shoe print on the
counter. It was from a Nike shoe. When done with
these tasks, Osinski was directed to the cemetery.
At the access road, “there were several pieces of
clothing” “maybe a foot or two from each other.”
This collection included blue jeans, a hoody and a
blue t-shirt.
At some point, Officer Osinski watched the
bank’s surveillance tapes. The jeans recovered from
the cemetery access road were the same jeans worn
by the robber. Most influential to him was the jeans,
when he saw them on the road, they had the same
cuff on the bottom as the jeans of the robber. He
also identified the t-shirt recovered as “hanging out
of the back of the gray hoody[”] “from the
surveillance photographs.”
Five days after the robbery, [appellant] is at
the McKeesport police station. Officer James Reed
had [an] interaction with him. He takes [appellant’s]
shoes. They are made by Nike.
A few months later, in September 2013,
Officer Reed and [appellant] are together again.
Officer Reed got a “buccal swab for DNA sampling”
purposes.
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Officer Reed was also present at the
preliminary hearing in the courtroom of the
McKeesport magistrate judge. He was right next to
Ms. Fenton in the courtroom awaiting the start of the
hearing. Ms. Fenton saw quite a few defendants
being escorted in and out of the courtroom.
[Appellant] was one of those. He exited a holding
area and passed Reed and said “What’s up, Reed?”
Reed’s response was a head nod. Ms. Fenton’s reply
was more. She grabbed Reed’s arm, and said,
“That’s him.” His “height, the build and the way he
looked” convinced Ms. Fenton that [appellant] was
the robber.
Officer Reed also informed the Court that
[appellant] lived on Pirl Street which is on the
backside of the cemetery and many people use the
cemetery as a short cut to get to and from the bank
area of McKeesport to that area of Pirl Street.
Scientist Sara Bitner, from the Medical
Examiner’s Office of Allegheny County, also provided
evidence against [appellant]. She examined the
3 items – blue t-shirt, blue jeans and gray hoody –
found on the cemetery access road. She did a
“tape lift” of areas where “epithelial cells” may be
located on the clothing such as pockets of jeans and
sleeves of the shirt. Her conclusion was [appellant]
may have been a contributor to the shirt and jeans.
Numerically, Ms. Bitner said the probability that
[appellant] was the contributor on the blue shirt was
“1 in 193,500” and for the blue jeans “it was 1 in
8,368”.[Footnote 5][3]
3
We set forth that portion of Sara Bitner’s direct examination regarding her
conclusions as to the scientific statistical probabilities that appellant was the
contributor of DNA found on the blue shirt, the gray sweat jacket, and the
blue jeans, as follows:
Q. I’m going to start. Let’s start with the tape lift
from the blue shirt. Did you get any results
from the tape lift from the blue shirt?
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A. Yes.
Q. And can you tell the Court what your results
were in that particular case?
A. One compared to the profile of [appellant].
[Appellant] could not be excluded as a possible
contributor to the DNA mixture profile with
statistics of 1 in 75,300 in the Caucasian
population, 1 in 193,000 for the African-
American population and 1 in 219,000 for the
Hispanic population.
Q. Did you also later perform DNA testing
involving another person?
A. Yes.
Q. Who was that?
A. Christopher Gaspersz.
Q. And what was the result relative to DNA testing
for the blue shirt with Mr. Gaspersz?
A. No conclusions could be drawn concerning
Mr. Gaspersz as a possible contributor to the
mixture obtained.
Q. What about the results from the tape lift from
the gray sweat jacket, which I believe is
Exhibit -- I believe it’s 35.
A. Due to the partial nature of the profile
obtained, I was unable to draw conclusions for
either [appellant] or Mr. Gaspersz.
Q. What about the jeans, the tape lift from the
interior pocket of the jeans or the hip pocket?
A. For the hip pocket of the jeans, [appellant]
could not be excluded as a possible contributor
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to that mixture, but no conclusions could be
drawn for Mr. Gaspersz.
Q. Did your testing reveal as to how many
possible contributors there were to these
items?
A. We estimated or I estimated in each of the
items a minimum of three possible contributors
for each of the items.
THE COURT: If I understand this correctly, the shirt
and the pants, [appellant] may have been a person
that handled them, but given there are three
contributors, you can’t exclude -- you can’t say
definitively whether it’s his DNA specifically, but
you’re giving a probability of 1 in 197,000,
something to that effect for the shirt, but the
sweatshirt you can’t make any determination; and
the pants would fall in that same category that
possibly it could have been him because what you
got -- his DNA would have been included within a
broader sample of DNA that you retrieved from that
item?
THE WITNESS: That is correct, Your Honor.
THE COURT: Okay. Let’s move on.
Q. Were these conclusions reached to a
reasonable degree of scientific certainty?
A. Yes, they were.
THE COURT: What was the statistic on the shirt and
on the pants?
THE WITNESS: For the shirt the statistic for the
African-American population was 1 in 193,500. For
the pants it was 1 in 8,368.
THE COURT: 1 in 8,368?
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[Footnote 5] No DNA testing was done
on the hooded jacket.
Joining the Commonwealth’s science based
presentation was Dr. Mark Perlin. Perlin is the “chief
scientist and executive officer at Cybergenetics”.
Cybergenetics “is a bio-information company that
specializes in computer based interpretation of
forensic DNA computer evidence. In essence,
through its computer based program, True Allele,
Cybergenetics is able to take “complex DNA
evidence” and separate “out the genetic types” which
can then be “compared with the genetic type of
other people in order to produce a DNA match
statistic.” As clarified on cross-examination,
Dr. Perlin does not do the “biological part” of the
DNA testing, he does “the statistical analysis of the
data to separate out the genotypes and the match
statistic.” The underlying data Dr. Perlin used was
obtained from Ms. Bitner. Dr. Perlin’s conclusions
were that [appellant] and another individual had
“contact with the pants” and only one person had
“contact with the shirt.” Dr. Perlin quantified
[appellant’s] probability of being the only contributor
to the blue shirt as “117 quintillion times more
probable”. As for the blue jeans, Dr. Perlin pegged
[appellant’s] probability of being a contributor at
“1.82 quadrillion”.
The government closed its evidentiary
presentation with expert Robert Levine. Mr. Levine
examined the Nike shoe taken from [appellant] and
compared it to the photographs of the shoe print
from the counter of the bank where the robber had
stepped. He was not able to say “the left shoe that
was submitted was the shoe that made the
shoeprint.”
THE WITNESS: That is correct.
Notes of testimony, 12/2/14 at 121-123.
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Upon the government resting its case,
[appellant] called one witness – Detective James
Reed. After this robbery, [Detective] Reed
interviewed the teller, Ms. Fenton. She told him that
the person who did the May 15th robbery also robbed
the bank 5 days later.
The Court then heard closing arguments from
counsel. Its verdict was split – not guilty of all
charges where Mr. Vasquez[4] was identified – and
guilty of all other charges. A pre-sentence report
was ordered and sentencing took place on
February 23, 2015.
Trial court opinion, 1/12/16 at 2-5 (citations to notes of testimony and
footnote 1 omitted).
Appellant raises the following issues for our review:
1. Whether the trial court erred by denying
[a]ppellant his fundamental rights of due
process and a fair trial when it considered facts
not offered or admitted into evidence in this
matter, specifically including facts and
testimony from a separate court proceeding
relating to a separate robbery at the same
bank for which [a]ppellant was acquitted by a
jury?
2. Whether the trial court erred by finding
[a]ppellant guilty of two counts of robbery, one
count of theft by unlawful taking, one count of
terroristic threats, one count of simple assault,
and one count of recklessly endangering
4
We note that Dr. Levine was unable to effect a positive identification
between the shoeprint and the shoes that were submitted for analysis
because of the quality of the shoeprint lifted from the bank counter. He
was, however, able to state that the left Nike shoe seized from appellant and
the shoeprint he analyzed had the same combination of pattern elements
and the same intersecting points where the different pattern elements
intersect. (Notes of testimony, 12/2/14 at 170-171.)
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another person because the evidence was
insufficient to establish [a]ppellant as the
person who committed the crimes beyond a
reasonable doubt?
3. Whether the trial court’s nonjury verdict
finding [a]ppellant guilty of two counts of
robbery, one count of theft by unlawful taking,
one count of terroristic threats, one count of
simple assault, and one count of recklessly
endangering another person was against the
weight of the evidence?
Appellant’s brief at 7.
For ease of discussion, we will address appellant’s challenges to the
sufficiency and the weight of the evidence prior to addressing his claim that
the trial court considered facts not offered or admitted into evidence.
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 proof 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 the evidence actually received must be
considered. Finally, the trier of fact while passing
upon the credibility of witnesses and the weight of
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the evidence produced, is free to believe all, part or
none of the evidence.
Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted).
Appellant contends that the evidence was insufficient to prove that he
committed the crimes because the “pretrial identification [by the bank teller]
was impermissibly suggestive,” and she “should have been precluded from
making an in-court identification.” (Appellant’s brief at 28.) The gravamen
of appellant’s complaint, therefore, goes to the admission of this evidence,
and not to its sufficiency.
Pennsylvania Rule of Evidence 103(a) provides that a party may claim
error in the admission of evidence only if he, on the record, “makes a timely
objection, motion to strike, or motion in limine,” and “states the specific
ground, unless it was apparent from the context[.]” Pa.R.E. 103(a)(1)(A)-
(B). “We have long held that ‘[f]ailure to raise a contemporaneous objection
to the evidence at trial waives that claim on appeal.’” Commonwealth v.
Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (citations omitted).
Here, the record reflects that appellant failed to file a pre-trial motion
in limine to suppress the bank teller’s identification testimony, failed to
object during her testimony, and failed to move to strike after her
testimony.
Therefore, appellant waives this issue on appeal. See id.
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Appellant next complains that the verdict was against the weight of
the evidence.
The essence of appellate review for a weight claim
appears to lie in ensuring that the trial court’s
decision has record support. Where the record
adequately supports the trial court, the trial court
has acted within the limits of its discretion.
....
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 greater weight that to ignore them or to
give them equal weight with all the facts is to deny
justice.
....
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.
Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (citations,
quotation marks, and emphasis omitted). “In order for a defendant to
prevail on a challenge to the weight of the evidence, ‘the evidence must be
so tenuous, vague and uncertain that the verdict shocks the conscience of
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the court.’” Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super.
2013).
Here, appellant complains that his conviction “shocks one’s sense of
justice” because the bank teller’s identification of appellant was unreliable;
the bank manager was unable to identify appellant; appellant never
confessed; appellant’s DNA was not found in the bank or on a sweat shirt
found in the cemetery; appellant’s fingerprints were not found at the bank;
the DNA evidence should not be given significant weight because appellant
lives by the cemetery; and the trial court did not properly weigh the DNA
evidence found on the blue jeans. (Appellant’s brief at 30-34.)
We decline appellant’s invitation to assess the bank teller’s credibility
and reweigh the evidence, including what weight should be assigned to the
scientific evidence. The trial court, as fact-finder, had the duty to determine
the credibility of the testimony and evidence presented at trial. (See id.)
Appellate courts cannot and do not substitute their judgment for that of the
fact-finder. (Id.) Here, the trial court found the bank teller’s testimony
credible and further found that it was corroborated by the photographic
evidence. The trial court also found the scientific evidence credible,
including the overwhelming amount of DNA evidence. A careful review of
the record supports our conclusion that the trial court did not abuse its
discretion in denying appellant’s weight of the evidence challenge.
Therefore, this claim lacks merit.
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We finally address appellant’s claim that the trial court erred because
it considered facts not offered or admitted into evidence, specifically “facts
and circumstances of another robbery that occurred on May 20, 2013, for
which [appellant] was acquitted.” (Appellant’s brief at 23.)
The record reflects that prior to conducting the waiver trial that is the
subject of this appeal, the trial court presided over a jury trial where
appellant was acquitted of a separate bank robbery that occurred on May 20,
2013. In that case, Christopher Gaspersz confessed to committing the
May 20, 2013 robbery.
The record further reflects that although Mr. Gaspersz did not testify at
the trial that is the subject of this appeal, he was mentioned during its
course, and the issue of whether Mr. Gaspersz could have perpetrated the
May 15, 2013 robbery was before the trial court sitting as fact-finder. When
a trial court sits as a fact-finder, it “is presumed to know the law, ignore
prejudicial statements, and disregard inadmissible evidence.”
Commonwealth v. Konias, 136 A.3d 1014, 1021 (Pa.Super. 2016)
(citation omitted).
In its opinion on this issue, the trial court stated:
. . . The first reaction the Court has is that
[appellant] is the one who injected the prior matter
into this trial. During cross-examination of
Detective Reed, [appellant’s] lawyer asked him
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about Mr. Gaspersz’ confession.[5] So, [it is] a little
hard for this Court to understand the current
argument when it was [appellant] himself that
brought this matter to the forefront.[Footnote 6]
[Footnote 6] [Appellant’s] closing
argument continued to push the
argument and inference about the
May 20th matter. (“This is the second
time we’ve been through this.” [] “Again,
based on previous testimony that you’ve
heard . . . but the other case as well,
Mr. Gaspersz [wore] his clothes.” []
“Your Honor is privy to the testimony of
5
In rendering the verdict in this case, the trial court provided further context
to this issue, as follows:
I believe when I look at the entirety of the
circumstances -- and it is circumstantial in some
respects, but the probability of [Fenton] having a
visceral reaction she had to him when she saw him,
for her having the description she gives of him, for
his DNA to be on the blue shirt in the concentration it
is with respect to the scans from the bank, with
respect to the distance to his mom’s house is almost
a straight line, I believe that this issue about
Gaspersz is a red herring.
I believe Gaspersz is a flunky and a friend that
would say anything he could say to extricate his
buddy, [appellant], from his liability in robbing this
bank. And I think that that’s a nonissue in this case,
because he didn’t testify here.
I believe if anyone looks through that cheap
doo-rag hanging over his face, it’s clearly not
Gaspersz who went in the bank. The same person
that went in the bank is the person that had on the
same clothing that were [sic] found in the cemetery,
and it’s him. He knows it. I mean, I think we’re
playing games. He knows he did it.
Notes of testimony, 12/2/14 at 198-199.
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Mr. Gaspersz where he admitted he
robbed that bank three times.”).
That aside, this Court did what the law requires
in such a situation – disregard material that it may
know from other cases and judge guilt on what is
properly before this Court. This was exemplified
during closing argument and the Court’s summation.
The government began its speech with an objection
about Mr. Gaspersz not testifying in this case. The
Court’s response was that it knows that. Implicit to
all in the courtroom, by tone and tenor, is that the
Court would not be considering that material. Later,
the Court described the Gaspersz matter as a
“red herring” and a “non-issue” in this case. The
assertion that this Court erred by considering
evidence of the prior robbery is simply lacking in
support.
Trial court opinion, 1/12/16 at 6 (citations to notes of testimony omitted).
After a careful review of the record, we agree with the learned trial
court that the record belies appellant’s contention that the trial court
considered evidence of the May 20, 2013 robbery. Therefore, this claim
lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2016
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