Com. v. Hernandez-Nunez, L. (memorandum)
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J-S14012-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. LUIS HERNANDEZ-NUNEZ Appellant No. 1537 EDA 2012 Appeal from the Judgment of Sentence May 8, 2012 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0001824-2011 BEFORE: LAZARUS, J., OLSON, J., and FITZGERALD, J.* MEMORANDUM BY LAZARUS, J. FILED JUNE 05, 2013 Luis Hernandez-Nunez appeals from the judgment of sentence, entered in the Court of Common Pleas of Lehigh County, after a jury found him guilty of robbery,1 conspiracy,2 burglary,3 criminal trespass,4 and theft.5 We affirm. ____________________________________________ * Former Justice specially assigned to the Superior Court. 1 18 Pa.C.S.A. § 3701(a)(1). 2 18 Pa.C.S.A. § 903. 3 18 Pa.C.S.A. § 3502. 4 18 Pa.C.S.A. § 3503(a)(1)(ii). 5 18 Pa.C.S.A. § 3921. J-S14012-13 In the pre-dawn hours of January 15, 2011, Hernandez-Nunez s coconspirator, Chrissy Martinez, lured two men ( the victims ) to a vacant apartment undergoing renovations in Allentown. At the apartment, three other men ( the assailants ) assaulted the victims, striking them with a handgun, and robbed them of approximately $600, their cellphones, and their wallets. Hernandez-Nunez, Martinez, and the three assailants had broken into the apartment earlier that evening. Hernandez-Nunez was waiting outside the apartment during the robbery. He had been involved in planning the robbery, provided the handgun the assailants used, and after the robbery, drove Martinez, then his girlfriend, away from the scene. After the guilty verdict, the trial court sentenced Hernandez-Nunez to serve an aggregate sentence of 7 to 16 years of incarceration. On appeal, Hernandez-Nunez challenges both the weight and sufficiency of the evidence presented on all of the charges, and complains that the trial court erred in barring the jury from taking the weapon used in the robbery into the jury room during deliberations. The central thrust of Hernandez-Nunez s weight of the evidence arguments is that the Commonwealth s chief witness again him, his coconspirator Martinez, should not be believed, and thus the verdict was so contrary to the evidence as to shock one s sense of Commonwealth v. Hawkins, 701 A.2d 492, 501 (Pa. 1997). justice. In its Pa.R.A.P. 1925(a) opinion, the trial court notes that it was the prerogative of the jury to believe or disbelieve testimony and that it cannot shock one s -2- J-S14012-13 sense of justice where the jury has simply chosen to believe the testimony of one witness over the testimony of another. We agree with this statement, and accordingly we affirm. The trial court also addresses Hernandez-Nunez s sufficiency arguments, reviewing the elements of each charge and demonstrating how the testimony and evidence presented could reasonably lead a jury to find Hernandez-Nunez guilty. Again, we affirm. Finally, Hernandez-Nunez s challenge to the trial court s decision not to allow the jury to take the weapon allegedly used in the robbery into deliberations is also without merit. A trial court s decision as to which exhibits may be taken out with the jury is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. Commonwealth v. Hawkins, 701 A.2d 492, 512 (Pa. 1997). Additionally, the jury may take with it such exhibits as the trial judge deems proper . . . with the exception of trial transcripts, confessions, and the information or indictment. Pa.R.Crim.P. 646. The decision not to include the weapon with the rest of the evidence was within the sound discretion of the trial court. Accordingly, this claim also fails. We rely on the Honorable Kelly Banach s Rule 1925(a) opinion in affirming Hernandez-Nunez s sentence on appeal. We instruct the parties to attach a copy of Judge Banach s decision in the event of further proceedings in the matter. Judgment of sentence affirmed. -3- J-S14012-13 Judgment Entered. Prothonotary Date: 6/5/2013 -4-
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