Com. v. Givens, S.

J-S18030-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHARIF JOMAL GIVENS, II :
:
Appellant : No. 440 EDA 2022

Appeal from the Judgment of Sentence Entered December 3, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0003387-2019

BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 12, 2023

Appellant, Sharif Jomal Givens, II, appeals from the Judgment of

Sentence entered in the Delaware County Court of Common Pleas on

December 3, 2021, following his conviction for Robbery and Recklessly

Endangering Another Person (“REAP”).1 After careful review, we affirm

Appellant’s convictions but vacate his judgment of sentence and remand for

resentencing consistent with this decision.

We glean the following relevant facts and procedural history from the

certified record and the trial court’s Pa.R.A.P. 1925(a) Opinion. In the early

hours of April 28, 2019, Appellant robbed a Sunoco convenience store in

Haverford Township, while carrying a firearm. He obscured his face with a

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 3701(a)(1)(ii) and 2705, respectively.
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mask and his hands by wearing gloves. Relevantly, he wore a black

sweatshirt, sweatpants with a logo on one leg, and Nike sneakers with white

soles, while holding a Nike bag with a gold swoosh. Fearing for his life, the

convenience store clerk ran out of the store and called 911. After the clerk

left, Appellant stole Newport cigarettes and Juul smoking devices.

Minutes after leaving the Sunoco store, Appellant robbed a nearby 7-11

convenience store. He again entered the store brandishing a firearm and

wearing the same mask and clothing but without gloves, which revealed a

tattoo on his hand. The clerk complied with Appellant’s demand to hand over

Newport cigarettes, Juul smoking devices, and cash. After Appellant exited,

the clerk immediately called 911.

Both stores had security camera footage of the incidents. When police

reviewed the Sunoco store’s footage, they noticed that Appellant had entered

and made cash purchases at the store on two occasions earlier in the evening

without a mask and while wearing the same sweatpants and sneakers. In the

earlier appearances, Appellant wore a gray sweatshirt with a distinctive logo,

rather than a black sweatshirt. The earlier Sunoco videos also showed that

Appellant had a tattoo on his hand.

Police used the videos to identify Appellant. When police arrested

Appellant on May 11, 2021, he was carrying a Nike bag that matched the one

in the surveillance video and contained two Juul cigarettes and a Juul

cartridge. The officers also recovered from Appellant a gray sweatshirt with

the same distinctive logo as seen in the earlier Sunoco videos. The

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Commonwealth charged him with two counts of Robbery, two counts of REAP,

and numerous other related charges.

On September 9, 2021, five days before trial, the Commonwealth

received a report regarding the contents of Appellant’s phone, which police

had prepared in 2019 (“Cell Phone Report”). The Commonwealth asserted

that it informed Appellant’s counsel of the report on the same day it received

the report. The report contained inculpatory evidence that Appellant had

attempted to sell Newport cigarettes and Juul smoking devices less than 24-

hours after the robberies via text messages.

Before trial on September 14, 2021, Appellant’s counsel verbally filed a

motion in limine to exclude the Cell Phone Report based upon the

Commonwealth’s failure to disclose the inculpatory report earlier.2 The trial

court denied the motion, finding that Appellant had not been prejudiced by

the delayed disclosure.

At trial, the Commonwealth presented the testimony of the Sunoco

clerk, who identified Appellant as the perpetrator, as well as Haverford

Township Police Officer Michael Travaline who investigated the crime scene

and reviewed the store surveillance videos.3 During their testimonies, the

Commonwealth played the surveillance videos but did not formally move for

the admission of the videos into evidence. Additionally, Detective Christopher

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2 N.T., 9/14/21, at 4-7.

3 The 7-11 clerk also testified but was not able to identify the perpetrator.

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Tankelewicz of the Delaware County Criminal Investigation Division testified

regarding the text messages included in the Cell Phone Report.

On September 16, 2021, the jury found Appellant guilty of two counts

each of Robbery, as a first-degree felony, and of REAP, as a second-degree

misdemeanor.4 On December 3, 2021, the trial court sentenced Appellant to

a term of 120 to 240 months of incarceration for each Robbery conviction, to

be served consecutively, and a term of 18 to 36 months of incarceration for

each REAP conviction to be served concurrently with the related Robbery

conviction.5

Appellant filed a post-sentence motion on December 10, 2021, which

the trial court denied on January 10, 2022. Appellant filed a Notice of Appeal

on February 7, 2022. Thereafter, the trial court and Appellant complied with

Pa.R.A.P. 1925.

Appellant presents the following questions for our review:

1. Whether the trial court committed reversible error when it
denied Appellant’s motion in limine and permitted the prosecution
to introduce at trial the contents of a cellular telephone report
generated in 2019 but not provided to the defense until one week
prior to trial in September 2021, since that evidence constituted
mandatory discovery under Pa.R.Crim.P. 573(B)(1), and its

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4 Prior to trial, the court disposed of, or the Commonwealth withdrew, the
other related charges.

5 The initial sentencing order erroneously calculated the aggregate sentence

to be 138 to 276 months, instead of 240 to 480 months. On June 23, 2022,
the court issued an amended order correcting the aggregate term, after this
appeal had been filed. No party has challenged this correction.

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introduction violated Appellant’s state and federal constitutional
rights?

2. Whether the evidence is insufficient to sustain the convictions
for two counts of robbery and two counts of [REAP] since the
prosecution failed to prove Appellant’s identity as the offender in
either incident beyond a reasonable doubt?

3. Whether the eighteen to thirty-six month confinement
sentences for [REAP] are illegal since they exceed the two-year
statutory limit for second-degree misdemeanor offenses?

Appellant’s Br. at 6.

A.

Appellant first challenges the trial court’s admission of the Cell Phone

Report, which the prosecution provided to Appellant’s counsel five days before

trial. It is axiomatic that the “admission of evidence is within the sound

discretion of the trial court and will be reversed only upon a showing that the

trial court clearly abused its discretion.” Commonwealth v. Shelton, 170

A.3d 549, 552 (Pa. Super. 2017) (citation omitted). We will not find an abuse

of discretion unless the “ruling reflects manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support to be clearly

erroneous.” Id. (citation omitted). Where “the trial court indicated the reason

for its decision to admit [the evidence], our scope of review is limited to an

examination of the stated reason.” Commonwealth v. Minerd, 753 A.2d

225, 229 (Pa. 2000).

To protect defendant’s constitutional due process rights and to guard

against “trial by ambush,” Pennsylvania’s Rules of Criminal Procedure

mandate that the Commonwealth disclose various categories of information

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to defendants prior to trial. Commonwealth v. Ulen, 650 A.2d 416, 418

(Pa. 1994); see Pa.R.Crim.P. 573(B)(1); Commonwealth v. Brown, 200

A.3d 986, 993–94 (Pa. 2018) (interpreting Rule 573 as requiring disclosure

when evidence is requested by the defendant, material to the case, and within

the possession of the prosecutor). Relevant to the instant case, Rule

573(B)(1) applies to any “inculpatory statement” as well as “any results or

reports of scientific tests.” Pa.R.Crim.P. 573(B)(1)(b), (e).

In the event of a discovery violation, the trial court may order discovery,

grant a continuance, prohibit the introduction of the evidence, “or it may enter

such other order as it deems just under the circumstances.” Pa.R.Crim.P.

573(E). A discovery violation “does not automatically entitle [an] appellant to

a new trial[; r]ather, an appellant must demonstrate how a more timely

disclosure would have affected his trial strategy or how he was otherwise

prejudiced by the alleged late disclosure.” Brown, 200 A.3d at 993 (citation

omitted).

Appellant claims that the trial court erred in denying his motion in limine

regarding the Cell Phone Report, which he argued violated Pa.R.Crim.P.

573(B)(1) and his state and federal due process rights. Appellant’s Br. at 13

(citing U.S. CONST. AMENDS. V, VI, XIV; PA. CONST. ART. 1, § 9). We disagree

and instead conclude that the trial court did not abuse its discretion in denying

Appellant’s motion in limine.

Specifically, the trial court denied the motion, finding that the late

disclosure of the Cell Phone Report did not prejudice Appellant. N.T., 9/14/21,

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at 6-7. It reasoned that “defense counsel had the opportunity to view the

report prior to trial[;] there was no question as to the authenticity of the cell

phone and that it did belong to defendant[;] and there was no assertion that

the phone records were exculpatory.” Tr. Ct. Op. at 5-6.

After careful review of the record, we agree with the trial court’s

analysis. We note that Appellant baldly objected to the admission of the report

based solely upon the “delay and lateness in the discovery process[,]” without

explaining how the delay impacted the defense or showing any prejudice

resulting from the delayed disclosure. N.T., 9/14/21, at 5.

Before this Court, Appellant asserts for the first time that the delayed

disclosure of the report prevented him from preparing a defense. Appellant’s

Br. at 17. Appellant did not raise this argument before the trial court. N.T.,

9/14/21, at 4-6. Thus, we find Appellant waived this aspect of his claim.

Pa.R.A.P. 302(a).

Accordingly, we conclude that the trial court did not abuse it discretion

in denying Appellant’s motion in limine and admitting the Cell Phone Report.

B.

Appellant next challenges the sufficiency of the evidence, claiming

mistaken identity. Appellant’s Br. at 20-23. “A claim challenging the

sufficiency of the evidence is a question of law.” Commonwealth v.

Widmer, 744 A.2d 745, 751 (Pa. 2000). When reviewing challenges to the

sufficiency of the evidence, we consider whether “there is sufficient evidence

to enable the fact-finder to find every element of the crime beyond a

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reasonable doubt.” Commonwealth v. Jones, 271 A.3d 452, 458 (Pa.

Super. 2021), appeal denied, 282 A.3d 1122 (Pa. 2022), and cert. denied sub

nom. Jones v. Pennsylvania, 143 S. Ct. 469 (2022) (citation omitted). In

regard to establishing a perpetrator’s identity “common items of clothing and

general physical characteristics are usually insufficient to support a

conviction[;]” however, “such evidence can be considered to establish identity

in conjunction with other circumstances and identification testimony.”

Commonwealth v. Williams, 255 A.3d 565, 579 (Pa. Super. 2021).

Central to Appellant’s argument, appellate courts review “all the

evidence admitted at trial in the light most favorable to the verdict winner”

and may not reweigh the evidence nor substitute our judgment for that of the

factfinder. Jones, 271 A.3d at 457-58 (citation omitted and emphasis added).

Instead, we defer to the factfinder, who assesses “the credibility of witnesses

and the weight of the evidence” and “is free to believe all, part or none of the

evidence.” Id. at 458 (citation omitted).

Appellant argues that the Commonwealth failed to demonstrate that he

perpetrated the crimes as required by the relevant provisions of the Crimes

Code.6 In so doing, Appellant argues that this Court should not consider the
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6 Specifically, “[a] person is guilty of robbery if, in the course of committing a

theft, he . . . threatens another with or intentionally puts him in fear of
immediate serious bodily injury[.]” 18 Pa.C.S. § 3701(a)(1)(ii). In turn, REAP
requires that “[a] person commits a misdemeanor of the second degree if he
recklessly engages in conduct which places or may place another person in
danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. Appellant does
not contest the sufficiency of the evidence supporting any element of these
offenses other than the identity of the perpetrator.

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surveillance videos because the Commonwealth did not move for their

admission into evidence. Thus, he asserts that the videos are not within this

Court’s scope of review as they were not admitted at trial. Appellant’s Br. at

23.

We conclude that Appellant waived this claim based upon on our recent

decision in Jones. As in the instant case, Jones involved a crime captured

on surveillance video, which was played for the court as factfinder, but which

the Commonwealth did not move for admission into evidence. Jones, 271

A.3d at 455. This Court emphasized that “[a]t no time during trial, or even in

his post sentence motion, did [Jones] ever contend that the video was not

part of the evidence before the trial court.” Id. at 457. We explained that

“[w]here a party does not object to the trial court’s consideration of items not

formally admitted into evidence despite notice that the trial court viewed the

items as evidence on which it could make findings, the objection to

consideration of the unadmitted items is waived.” Id.

As in Jones, we conclude that Appellant waived his ability to challenge

the surveillance videos based on the lack of formal admission. Appellant did

not object to the utilization of the surveillance videos, which were played for

the jury and supported by testimony of the Sunoco clerk and Officer Travaline.

N.T., 9/15/21, 15-18, 33, 56-57. Moreover, Appellant’s counsel, as well as

the trial court and the Commonwealth, proceeded as if the videos had been

admitted for the jury’s consideration. Indeed, Appellant’s counsel addressed

the surveillance videos in cross examination as well as in his closing argument

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by highlighting details in the videos to challenge the identification of Appellant

as the perpetrator. N.T., 9/15/21, at 18-21, 61-66; N.T., 9/16/21, at 16, 19.

Additionally, Appellant did not provide the trial court an opportunity to address

this aspect of his broader sufficiency claim as he did not raise it prior to his

briefing to this Court.7 Accordingly, we conclude that Appellant waived his

challenge to the consideration of the video for purposes of his sufficiency of

the evidence claim.

Appellant also contends that the jury’s verdict was based on “conjecture

and speculation[,]” even when including the surveillance videos, which he

asserts were low-quality. Appellant’s Br. at 23. He argues that neither clerk

“had a good opportunity to observe the offender[,]” given the short duration

of the encounters and the mask obscuring the perpetrator’s face Id. at 21.

Appellant emphasizes that the 7-11 clerk never identified Appellant as the

perpetrator and that the Sunoco clerk identified him only after watching the

surveillance videos. Id. at 22. He further observes that the Commonwealth

did not present additional physical evidence tying him to the crimes, such as

fingerprint evidence or the firearm. Appellant, thus, maintains that the

Commonwealth failed to produce sufficient evidence that he perpetrated the

crimes. We disagree.

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7 While Appellant raised the overarching issues of the sufficiency of the
evidence in his Pa.R.A.P. 1925(b) Statement, he did not specifically address
the Commonwealth’s failure to move for admission of the surveillance videos
before the trial court. Pa.R.A.P. 1925(b) Statement of Errors Complained of
on Appeal, 3/4/22, at 2.

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The record reflects that the Commonwealth presented the jury with

abundant evidence tying Appellant to the gun-point robberies of the Sunoco

and 7-11 stores, including surveillance video of Appellant without a mask in

the Sunoco store prior to the robberies and while masked during both

robberies. The trial court noted that Appellant was identifiable in the

surveillance videos based upon his hand tattoos, “other matching physical

features[,]” and the “distinct emblem” on his clothing. Tr. Ct. Op. at 2.

Moreover, upon arrest, the police found him in possession of Juul smoking

devices in the Nike bag, along with the gray sweatshirt with a distinctive logo,

in addition to a cell phone with messages offering for sale Newport cigarettes

and Juul smoking devices hours after the robbery. Id. at 2-3. Appellant’s

sufficiency of the evidence claim fails.

C.

Finally, Appellant challenges the legality of the 18 to 36-month sentence

that the trial court imposed for each REAP conviction. While Appellant did not

raise this issue until his briefing to the Court, we recognize that a challenge

to the legality of a sentence is non-waivable. See Commonwealth v.

Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013).

“When reviewing the legality of a sentence, our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Lekka, 210

A.3d 343, 355 (Pa. Super. 2019) (citation omitted). After determining that a

sentence is illegal, this Court may “amend the sentence directly[;] however,

if “a correction by this Court may upset the sentencing scheme envisioned by

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the sentencing court, the better practice is to remand.” Id. at 358-59

(citations omitted).

Appellant asserts, and the Commonwealth concedes, that his 18 to 36-

month sentences for the REAP convictions are illegal because they exceed the

two-year statutory maximum sentence for a second-degree misdemeanor.

Appellant’s Br. at 24; Commonwealth’s Br. at 21-22. We are constrained to

agree.

The Crimes Code defines REAP as a “misdemeanor of the second degree”

and designates that the sentence of imprisonment “shall not be more than . . .

two years in the case of a misdemeanor of the second degree.” 18 Pa.C.S.

§§ 2705, 1104(2). Accordingly, the trial court’s imposition of a maximum

sentence of 36 months for Appellant’s REAP convictions is patently illegal. As

vacating only the REAP sentences may upset the trial court’s sentencing

scheme, we vacate the judgment of sentence and remand to the trial court

for resentencing on all the convictions.

Convictions affirmed. Judgment of sentence vacated, and case

remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/12/2023

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