J-S82022-18

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL HERNANDEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3921 EDA 2017

Appeal from the Judgment of Sentence June 30, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0015339-2013

BEFORE: LAZARUS, J., OLSON, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 08, 2019

Appellant, Michael Hernandez, appeals from the judgment of sentence

entered on June 30, 2017, as made final by the denial of Appellant’s postsentence motion on July 20, 2017. We affirm.

The trial court thoroughly and ably summarized the evidence presented 

during Appellant’s bench trial.

[During Appellant’s trial,] the Commonwealth presented the 

testimony of the [Victim, J.G.], as well as investigating Police 

Officer [Robert] Filler and Detective Ronald Kahlan. . . .

[The Victim’s Testimony]

[On] November 20, 2013, the [Victim] was working as a pizza 

delivery person for DiNapoli's Pizza. He went on a delivery 

that evening in his car to 3735 [North] 7th Street. He had 

with him a pizza and cheesesteak to deliver to that location, 

together with the store receipt for the food which had printed 

on it the customer's phone number. The person answering 

the door at that address told [the Victim] that they did not 
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order the food. [The Victim] then received a call from his 

store manager and based upon this call he drove his car 

further up that same block and parked it close to a parking 

spot outside 3725 [North] 7th and while he was attempting 

to get the food out of the other side of the car, a male, later 

identified as [Appellant], appeared, pointed a gun at his head 

and told him to "put the food on the step" and the [Victim]

complied. [Appellant] then told [the Victim] to give him his 

money which he did, as well as his cell phone which [the 

Victim] retrieved from his delivery car. [The Victim] then got 

back into his car and drove away from the scene after being

instructed by [Appellant] to "keep driving straight and don't 

come back, don't look back." As he was driving away he was 

able to see [Appellant] walk over to where the food was 

placed and pick it up. 

According to [the Victim], his assailant was about 5'6” or 5'7"

and was wearing a black vest and hoodie and had a mask 

covering the bottom half of his face, everything below the 

eyes. Although it was dark out[,] there were street lights and 

some house lights on and there was enough light so that he 

could see [Appellant’s] face. Following the robbery, [the 

Victim] gave a statement to the police and was thereafter 

shown a photo array by the detectives and from that array 

he was able to pick out [Appellant] as the person who had 

robbed him. 

On cross-examination [the Victim] stated that he had never 

seen [Appellant] before this incident and that the mask he 

was wearing came up above his nose. [The Victim] testified 

that the hood of [Appellant’s] hoodie was not on during this 

incident and that the incident lasted about five to ten 

minutes. [The Victim] did acknowledge[] that at the 

preliminary hearing, which took place just a few weeks 

following the robbery, he testified that [Appellant's] hood was 

up, not down, and that the entire robbery took place in about 

30-45 seconds. However, [the Victim] testified that there 

was no doubt in his mind that he was able to identify 

[Appellant] and that the detectives did not help him pick out 

[Appellant]. He told the detectives that the incident occurred 

at 10:30 [p.m]. Although [Appellant] was approximately 28 

years old when the robbery occurred, [the Victim] told the 

detectives that the person who robbed him was about 18-20 

years old. However, [the Victim,] when asked by defense 
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counsel how old [A]ppellant looked at trial that day 

responded that [A]ppellant looked to be 20-25 [years old]. 

[The Victim] confirmed that he had no doubt that [Appellant]

was the person who robbed him that night. In response to 

the [trial] court's question as to why there was no doubt that 

[A]ppellant was the one who did this, [the Victim testified]:

[it wasn't just the eyes. It was the top half, so the top half 

of his face is exactly to the picture. . . . His eyes were 

bagg[y] and darker than most and you could tell if he was 

seen again. . . . His hair was exactly the same as the 

picture. N.T. Trial, 7/11/16, at 49].

. . .

[Investigating Police Officer Robert Filler’s Testimony]

Officer Filler testified that on November 20, 2013, based upon 

a flash radio call he received, he went in his patrol car to the 

3700 block of [North] 7

th Street to look for a person who

committed a gunpoint robbery, as well as to survey the block 

for cameras. He located a camera at 3735 [North] 7

th Street 

and obtained the films from that camera which contained two 

[] different viewing angles. Portions of both tracks were 

played in court while Officer Filler testified as to what he 

observed on the videos as part of his investigation. . . .

Officer Filler testified that while viewing the video as part of 

his investigation, he believed he had found a point on the 

video that captured the encounter of the actual[] robbery.

While the video played in court, Officer Filler testified as 

follows regarding what appeared to him to be the [Victim] 

and [Appellant]:

“Yes; the driver got out of the vehicle. Right at that area 

there was . . . an interaction. After the car drives off, we 

see an individual go into a house across the street. . . ." 

The [trial] court then noted for the record that the video 

"appears to show two figures in back of the car, there was 

some walking around. . . . The car drives off . . . down the 

street. There's a figure of somebody walking on the sidewalk 
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and then entering a house that's approximately three houses 

down from where the car was stopped." Officer Filler testified

that after viewing the video he went to the scene again to 

determine which house had a "screen door" that was seen 

opening on the video. Based upon this information, he

determined that the property that the individual seen on the 

video entering was 3718 [North] 7

th Street, as neither 

property on either side of this property had screen doors. 

Officer Filler then testified that there was a food delivery 

receipt (Exhibit C-1) for the actual delivery in issue that was 

found hanging up in the store [DiNapoli's] during his

investigation and that his investigation revealed that the 

customer phone number that was found printed on the 

receipt went to a payphone at 7th and Butler Streets near 

where the robbery had occurred. 

On cross-examination, Officer Filler stated that he did not 

know if the 11:07 pm [] time stamp on the home surveillance 

film was accurate and acknowledged that although he didn't 

know the exact time the robbery occurred, he was able to 

narrow the time down working back from when his patrol car 

first drove down the street to investigate to when the robbery 

would have occurred. Officer Filler did not follow-up on why 

the store receipt of the delivery had a 'Departure Time' of 

6:12:10. However, th[e trial] court notes that the [Victim]

testified that the robbery occurred at 10:30 [p.m.] and 

Officer Filler testified that it was after that time that he 

received a radio call about a gunpoint robbery. Officer Filler 

acknowledged that given the poor quality of the video he

could not say that it was [Appellant] on the video. 

On redirect, Officer Filler testified that he was able to narrow 

the time sequence of events in the video because the video 

shows the delivery driv[er] actually coming to the address of 

3735 [North 7th Street] and going up to the door and then 

shows the driver driving down the block to where the robbery 

occurred and this time period was not much further to when

his patrol car drove down that street later that night. 

. . .

[Detective Ronald Kahlan’s Testimony]
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As part of his investigation of the robbery [Detective Kahlan]

viewed the surveillance video and saw a male run into a 

house. However, the detective agreed that he could not tell 

if the figure in the video was male or female. Similar to the 

testimony of Office Filler, Detective Kahlan testified that in 

viewing the video he determined that there was a screen door 

on the property that the figure seen in the video was seen 

entering and that the property address of 3718 [North] 7

th

Street was the only house it could be as the houses on either 

side of it did not have a screen door. 

Detective Kahlan checked with the Bureau of Motor Vehicles 

for the address of 3718 [North] 7

th Street and found that at 

that address there was one licensed driver and that a check 

of the driver's license photo of that driver matched the 

description given by the [Victim] of the person who had 

robbed him. Based upon that information, Detective Kahlan 

created a photo array and showed it to the [Victim], who 

selected [Appellant's] picture as the person who had robbed 

him. The detective put the photo array together using the 

description from [Appellant's] driver's license, as well as from 

the description given by the [Victim]. The computer then 

produced seven other photos which, together with that of 

[Appellant], form[ed] the photo array shown to the [Victim]

two days after the robbery. 

Detective Kahlan testified that he then obtained a search 

warrant for the property located at 3718 [North] 7

th Street 

and upon execution, a black vest and a delivery receipt were

recovered at the property. The delivery receipt (Exhibit C7)[fn.3] was recovered in the middle of the first floor on the 

dining room table. 

[fn.3] Exhibit C-7 was the food delivery receipt recovered 

from [Appellant’s] home whereas C-1 was a second food 

delivery receipt found hanging at DiNapoli’s Pizza, where 

the [Victim] was working the evening he was robbed.

On cross-examination, Detective Kahlan confirmed that the 

[Victim] picked out [Appellant] as the one who robbed him 

"on his own" without being told by the detective, and that he 

told the detective that he recognized [A]ppellant's eyes. . . .
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Trial Court Opinion, 2/15/18, at 2-7 (internal citations and emphasis and some 

internal capitalization and footnotes omitted).

The trial court found Appellant guilty of: robbery, persons not to 

possess firearms, theft by unlawful taking, receiving stolen property, carrying 

firearms in public in Philadelphia, possessing an instrument of crime, 

terroristic threats, simple assault, and recklessly endangering another 

person.

1

 On June 30, 2017, the trial court sentenced Appellant to serve an 

aggregate term of ten to 20 years in prison for his convictions. 

The trial court denied Appellant’s post-sentence motion on July 20, 2017 

and Appellant filed a timely notice of appeal.2 Appellant raises one claim on 

appeal:

Was the evidence insufficient to sustain the [trial] court’s 

[decision] since the alleged perpetrator wore a mask 

obscuring his face and thereby render[ed] the [V]ictim’s 

identification of [Appellant] inherently unreliable?

Appellant’s Brief at 3.

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1 18 Pa.C.S.A. §§ 3701(a)(1)(ii), 6105(a)(1), 3921(a), 3925(a), 6108, 

907(a), 2706(a)(1), 2701(a), and 2705, respectively.

2 The trial court ordered Appellant to file and serve a concise statement of 

errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate 

Procedure 1925(b). Appellant complied with the trial court’s order and, within 

Appellant’s Rule 1925(b) statement, Appellant raised the following claim:

Was the evidence insufficient to sustain the [trial] court’s 

[decision] since the alleged perpetrator wore a mask 

obscuring his face and[,] thereby, rendering the [V]ictim’s 

identification of [Appellant] inherently unreliable?

Appellant’s Rule 1925(b) Statement, 11/9/17, at 1.
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We review Appellant's sufficiency of the evidence challenge under the 

following standard:

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 [that of] 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. Brown, 23 A.3d 544, 559–560 (Pa. Super. 2011) (en 

banc), quoting Commonwealth v. Hutchinson, 947 A.2d 800, 805–806 (Pa.

Super. 2008). As our Supreme Court has held, a claim that “the testimony 

presented to the [fact-finder] was so unreliable and contradictory that the[] 

verdict could only have been arrived at through speculation and conjecture . 

. . [is] a challenge to the sufficiency [of the evidence].” Commonwealth v. 

Brown, 52 A.3d 1139, 1156 n.18 (Pa. 2012). 

According to Appellant, the evidence was insufficient to support his 

convictions because the “gunman’s face was obscured by a mask.” Appellant’s 
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Brief at 9. Further, within Appellant’s brief, Appellant claims that the evidence 

was insufficient because “the Commonwealth’s case was riddled with 

inconsistencies.” Id. The former claim fails; the latter claim is waived. 

Appellant first claims that the trial court’s decision was “pure 

speculation” and that the evidence was insufficient to support his convictions, 

as the “gunman’s face was obscured by a mask.” Id. In making this claim, 

Appellant apparently suggests that the mask’s obstruction made it so that 

there was no way the Victim could have possibly identified Appellant as his 

assailant. This claim fails. 

As the trial court explained, its decision was not the result of speculation 

or conjecture and the evidence was indeed sufficient to support Appellant’s 

convictions:

The [Victim] repeatedly testified [that he had] no doubt that 

[Appellant] was the individual who had robbed him. Although 

the perpetrator wore a mask which hid most of his face[, the 

Victim] described the perpetrator as having distinctive 

features – his “eyes were bagg[y] and darker than most” and 

his hair was “exactly” the same as the picture in the photo 

array.

Trial Court Opinion, 2/15/18, at 13-14. 

The evidence also demonstrates that: immediately following the 

robbery, the assailant entered Appellant’s house; the food receipt was found 

in Appellant’s home; and, “a black vest described by [the Victim] as being 

worn by his assailant [was] found in [A]ppellant’s house.” See id. at 15-16.
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Put simply, the evidence in this case was not “so unreliable and 

contradictory that the[ fact-finder’s decision] could only have been arrived at 

through speculation and conjecture.” Brown, 52 A.3d at 1156 n.18. Thus, 

Appellant’s first sufficiency of the evidence claim fails. 

For Appellant’s second sub-claim on appeal, Appellant contends that the 

evidence was insufficient to support his convictions because “the 

Commonwealth’s case was riddled with inconsistencies.” Appellant’s Brief at 

9. This claim is waived, as the claim was never raised in Appellant’s Rule 

1925(b) statement. See Appellant’s Rule 1925(b) Statement, 11/9/17, at 1 

(Appellant claimed only that the evidence was “insufficient to sustain the 

[trial] court’s [decision] since the alleged perpetrator wore a mask obscuring 

his face and[,] thereby, render[ed] the [V]ictim’s identification of [Appellant] 

inherently unreliable”); see also Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not 

included in the [Rule 1925(b) statement] . . . are waived”).

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/8/19