J. S57012/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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