Com. v. Lumberger, J.
1238 WDA 2015
| Pa. Super. Ct. | Oct 31, 2016Background
- Appellant Jesse Lumberger was convicted after a waiver (bench) trial of two counts of robbery, theft by unlawful taking, terroristic threats, simple assault, and recklessly endangering another person for a May 15, 2013 bank robbery; sentence: 10–20 years imprisonment plus probation.
- Teller Merlyn Fenton identified the robber in-court after observing Lumberger in a magistrate courtroom; surveillance photos showed a robber wearing jeans and a blue shirt/gray hoodie and stepping on the teller counter.
- Clothing (blue jeans, blue t-shirt, gray hoodie) was found on an access road in a cemetery ~20–50 yards from the bank; jeans and shirt were forensically linked to Lumberger as a possible contributor by conventional testing (mixtures) with probabilities (shirt ~1-in-193,500 for African‑American population; pants ~1-in-8,368) and further analyzed with TrueAllele statistical analysis producing very strong match statistics favoring Lumberger.
- A Nike shoe seized from Lumberger shared pattern elements with a shoeprint on the teller counter, though the expert could not positively identify the shoe as the print-maker.
- Lumberger argued (1) the trial court considered facts from a separate May 20, 2013 robbery (for which he was acquitted) not in evidence, violating due process; (2) identification was suggestive and evidence was insufficient; and (3) the verdict was against the weight of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Court considered facts from a separate May 20 robbery not in evidence | Commonwealth: trial court is presumed to ignore inadmissible/extra-record matters when acting as fact-finder | Lumberger: court relied on facts/testimony from separate proceeding (May 20 robbery) and Gaspersz’s confession, violating due process | Rejected — record shows Lumberger introduced the May 20 matter; court stated it disregarded that evidence and the claim lacked support |
| Sufficiency of the evidence to prove Lumberger committed the May 15 robbery | Commonwealth: identification, surveillance photos, clothing recovered near bank, DNA mixture results (conventional and TrueAllele) and corroborating circumstantial evidence suffice | Lumberger: teller ID was impermissibly suggestive; DNA/fingerprint/shoe evidence inconclusive; no confession | Rejected — viewing evidence in Commonwealth’s favor, circumstantial and DNA evidence supported conviction beyond a reasonable doubt |
| Weight of the evidence | Commonwealth: trial court weighed credibility and scientific evidence and found it credible | Lumberger: verdict shocks conscience given identification doubts, manager’s inability to ID, lack of DNA at bank, mixed DNA results, proximity of his residence to cemetery | Rejected — trial court did not abuse discretion; credibility and weight properly assigned to teller ID, photos, and DNA analyses |
| Failure to preserve pretrial identification suppression claim | Commonwealth: objection not timely; no motion in limine or contemporaneous objection | Lumberger: identification was tainted and should have been excluded | Rejected — claim waived for failure to make timely objection under Pa.R.E. 103(a) |
Key Cases Cited
- Commonwealth v. Pappas, 845 A.2d 829 (Pa. Super. 2004) (standard for reviewing sufficiency of evidence)
- Commonwealth v. Tha, 64 A.3d 704 (Pa. Super. 2013) (contemporaneous objection rule and waiver of evidentiary objections)
- Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013) (standard and deference for weight-of-the-evidence claims)
- Commonwealth v. Talbert, 129 A.3d 536 (Pa. Super. 2013) (verdict must shock conscience to sustain weight claim)
- Commonwealth v. Konias, 136 A.3d 1014 (Pa. Super. 2016) (trial court presumption to disregard inadmissible or extra-record evidence when acting as fact-finder)