J. S53041/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHARLES GIGGETTS, : No. 2773 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, May 13, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0007804-2013
BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 11, 2017
Charles Giggetts appeals from the May 13, 2016 judgment of sentence
imposed after a jury found him guilty of aggravated assault, robbery, and
robbery of a motor vehicle.1 For the following reasons, we vacate the
judgment of sentence and remand this matter for resentencing; appellant’s
convictions are affirmed in all other respects.
The trial court summarized the relevant facts of this case as follows:
On April 18, 2013, at approximately 6:45 a.m.,
Complainant Lisa McLawler stopped to get gasoline
at a Sunoco Gas Station on the corner of City Avenue
and Conshohocken State Road in Philadelphia. As
she was filling her 2010 Chrysler Sebring with
gasoline, she heard her car door close. She never
heard it open. When she turned around, a man was
in her vehicle. She started screaming for him to get
out. In a statement to police, she described the
1
18 Pa.C.S.A. §§ 2702, 3701, and 3702, respectively.
J. S53041/17
assailant as a black man, dark skin, facial hair, full
beard, he appeared to be wearing a hoodie or some
type of sweatshirt. She testified that he was an
“older gentleman,” not the teenager-type.
The Complainant had left her keys in the car
and the driver’s side window down. She reached
into the car through the window and started blaring
the horn to draw attention. The man sped off in the
vehicle as she was still reaching into it. As he did,
he dragged her a lengthy distance, running over her
right foot, causing her to propel forward and slam
face first onto the pavement of the Sunoco station.
She testified that she sustained multiple sprains and
severe bruising, a large cut on her foot, and burns
down the right side of her body from her breast to
her hip. She had a hematoma the size of a tennis
ball on her left hip that did not heal for
approximately three months. As a result of this
incident, she has chronic back pain and is no longer
able to wear high heels.
The Complainant had her iPad, cell phone, and
handbag containing multiple credit cards in her
vehicle. She immediately put a hold on all of her
accounts within the first hour of the incident. One of
her credit cards was used and another transaction
was attempted, but did not go through because of
the hold. She received a call that her handbag was
at the Upper Darby Post Office approximately one
week after the incident. Her identification cards and
debit cards were no longer in her handbag.
Corporal Kenneth Wilson, Pennsylvania State
Police, recovered the stolen vehicle within
thirty minutes of the carjacking at 7:15 a.m.,
abandoned on Lenape Road in Philadelphia,
approximately a quarter-mile from the Sunoco Gas
Station.
Trooper Andrew Martin, Pennsylvania State
Police, responded to the Sunoco Gas Station and
obtained video footage of the incident from the
station. A description of the suspect was generated
-2-
J. S53041/17
based on the video: black, non-Hispanic male,
approximately 6 feet, wearing a gray hoodie, blue
jeans, and distinct sneakers with red trim, red
tongue, and red laces. The suspect walked with a
gait, i.e. he would swing his right foot as he walked
with his left.
Trooper Martin was informed of an
unauthorized use of the Complainant’s credit card
approximately thirty to forty-five minutes after the
carjacking at a Citgo Gas Station at 4626 Lancaster
Avenue. He provided the attendee with the credit
card information and obtained a video of the person
who attempted to use the card. The video was
played for the jury. A man fitting the description of
the assailant is seen at the pump where the credit
card was used. He was driving a silver Hyundai
Santa Fe with a “distinctive rack on the top.”
Records showed that [appellant] was the owner of
that vehicle.
Trooper Michael Clarke was off-duty at the
same Citgo Gas Station at 7:00 p.m. on April 19,
2013, the day after the incident, when he observed a
man matching the description of the assailant,
identified as [appellant], in a silver Hyundai Santa Fe
with a distinctive roof rack. He had seen the videos
from the Sunoco Gas Station where the carjacking
occurred and the Citgo Gas Station where the
Complainant’s credit card was used when he was
on-duty earlier that day.
Trooper Clarke approached [appellant]. When
he did, [appellant] stated he had “cards,” “[$]10 to
$20 to fill your tank up.” Trooper Clarke told
[appellant] he was going to the ATM and contacted
his supervisor. He observed [appellant] deal with
five or six other people and fill up their tanks with
credit cards in exchange for cash as he waited for
officers to arrive.
Trooper Christopher Holdeman responded to
the Citgo based on the tip from Trooper Clarke. He
surveilled the Hyundai Santa Fe for two minutes.
-3-
J. S53041/17
The vehicle moved from the front of the gas station
around the corner. The driver, later identified as
[appellant], exited the vehicle and started walking
toward the convenience store at the station.
[Appellant] was wearing the same black shoes with
red shoelaces visible in the video of the carjacking.
Trooper Holdeman exited his vehicle and
identified himself. [Appellant] turned and ran
westbound through the parking lot of the gas station
toward an alley. After a brief chase, [appellant] was
apprehended. A number of stolen identification
cards and credit cards were recovered from
[appellant’s] person. [Complainant’s] identification
cards and credit cards, including the TD Bank card
used at the Citgo Gas Station on April 18, 2013,
were recovered in the center console of [appellant’s]
Hyundai Santa Fe.
....
John Milo, Forensic DNA Scientist for the
Pennsylvania State Police, testified that the following
swabs were taken from the vehicle: two swabs of
the steering wheel, one swab of the rear-view
mirror, one swab of the inside door latch, one swab
of the door latch, one swab of the driver’s seat
adjustment bar, and one swab of the gear shifter.
He was able to obtain viable DNA from the top half
and bottom half of the steering wheel.
The DNA profile obtained from the swab of the
top of the steering wheel was a mixture of three
individuals. A major component consisted of two
individuals. The DNA mixture profile was 480 trillion
times more likely to occur under the scenario that it
is a mixture of DNA originating from [appellant],
Complainant [] and one random, unrelated person as
opposed to the scenario that it originated from a
mixture of DNA from two random, unrelated people
in the African-American population; 200 quadrillion
times more likely to occur under the scenario that it
is a mixture of DNA originating from [appellant], the
Complainant, and one random, unrelated person as
-4-
J. S53041/17
opposed to the scenario that it originated from a
mixture of DNA from two random, unrelated people
in the Caucasian population; and 26 quadrillion times
more likely to occur under the scenario that it is a
mixture of DNA originating from [appellant], the
Complainant, and one random, unrelated person as
opposed to the scenario that it originated from a
mixture of DNA from two random, unrelated people
in the Hispanic population.
Trial court opinion, 11/7/16 at 1-5 (citations to notes of testimony omitted;
quotation marks in original).
Appellant was subsequently arrested and charged with multiple crimes
in connection with this incident. On March 15, 2016, appellant proceeded to
a jury trial before the Honorable Rose Marie DeFino-Nastasi. The jury found
appellant guilty of aggravated assault, robbery, and robbery of a motor
vehicle on March 18, 2016. On May 13, 2016, the trial court sentenced
appellant to 15 to 30 years’ imprisonment for robbery and 10 years’
probation for aggravated assault. The trial court found that appellant’s
robbery of a motor vehicle conviction merged with robbery for sentencing
purposes. (Sentencing order, 5/13/16; certified record at no. 38.) On
May 19, 2016, appellant filed a post-sentence motion challenging,
inter alia, the weight of the evidence. Thereafter, on May 23, 2016,
appellant filed a post-sentence motion for reconsideration of his sentence.
-5-
J. S53041/17
The trial court denied appellant’s motions on August 1, 2016. This timely
appeal followed on August 30, 2016.2
Appellant raises the following issues for our review:
A. [WHETHER] THE TRIAL COURT ERRED WHEN
IT FOUND APPELLANT [] GUILTY OF
AGGRAVATED ASSAULT, ROBBERY AND
ROBBERY OF A MOTOR VEHICLE AS THERE
WAS INSUFFICIENT EVIDENCE TO PROVE
THESE CRIMES BEYOND A REASONABLE
DOUBT[?]
B. [WHETHER] THE TRIAL COURT ERRED WHEN
IT FOUND APPELLANT [] GUILTY OF
AGGRAVATED ASSAULT, ROBBERY AND
ROBBERY OF A MOTOR VEHICLE, AS THE
VERDICT WAS AGAINST THE WEIGHT OF THE
EVIDENCE[?]
C. [WHETHER] THE TRIAL COURT ERRED WHEN
IT SENTENCED APPELLANT [] TO A TERM OF
INCARCERATION WHICH WAS MANIFESTLY
EXCESSIVE, AS IT DEPARTED FROM THE
PENNSYLVANIA SENTENCING GUIDELINES
AND WAS IN EXCESS OF THE MANDATORY
MINIMUM SENTENCE[?]
Appellant’s brief at 2.3
2
The record reflects that on September 1, 2016, the trial court ordered
appellant to file a concise statement of errors complained of on appeal, in
accordance with Pa.R.A.P. 1925(b), within 30 days. Appellant filed a timely
Rule 1925(b) statement on September 15, 2016, and supplemental
statements on September 21 and 30, 2016. Thereafter, on November 7,
2016, the trial court filed its Rule 1925(a) opinion.
3
For the ease of our discussion, we have elected to address appellant’s
claims in a slightly different order than presented in his brief.
-6-
J. S53041/17
We begin by addressing appellant’s claim that he was sentenced
beyond the statutory maximum for the crime of robbery, which implicates
the legality of his sentence. (See appellant’s brief at 20.) “The
determination as to whether the trial court imposed an illegal sentence is a
question of law; our standard of review in cases dealing with questions of
law is plenary.” Commonwealth v. Stradley, 50 A.3d 769, 772 (Pa.Super.
2012) (citation omitted). Instantly, both the Commonwealth and the trial
court concede that this case should be remanded for resentencing because
the sentence imposed for robbery was beyond the statutory maximum.
(Commonwealth’s brief at 13; see also trial court opinion, 11/7/16 at 10.)
We agree.
The record reflects that appellant was previously convicted of
third-degree murder and was subject to mandatory minimum sentencing
provisions as a second-strike offender. See 42 Pa.C.S.A. § 9714. As noted,
the trial court sentenced appellant to 15 to 30 years’ imprisonment for
robbery, which clearly exceeds the statutory maximum of 20 years’
imprisonment for a first-degree felony. See 18 Pa.C.S.A. § 1103(1). The
trial court acknowledged the excessive nature of appellant’s sentence in its
November 7, 2016 opinion, noting that it mistakenly believed that
appellant’s robbery of a motor vehicle conviction merged with his robbery
conviction and that it “intended to sentence [appellant] to an aggregate
sentence of fifteen (15) to thirty (30) years plus ten (10) years[’]
-7-
J. S53041/17
probation.” (Trial court opinion, 11/7/16 at 1 n.1 (emphasis added).)
Accordingly, we vacate appellant’s May 13, 2016 judgment of sentence and
remand this matter for resentencing.
Appellant next argues that there was insufficient evidence to sustain
his convictions for aggravated assault, robbery, and robbery of a motor
vehicle. (Appellant’s brief at 14.) We disagree.
In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted
at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the
Commonwealth as verdict winner, is sufficient to
prove every element of the offense beyond a
reasonable doubt. As an appellate court, we may
not re-weigh the evidence and substitute our
judgment for that of the fact-finder. Any question of
doubt is for the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no
probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009)
(citations omitted), appeal denied, 4 A.3d 1054 (Pa. 2010).
A person will be found guilty of aggravated assault if he “attempts to
cause serious bodily injury to another, or causes such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life[.]” 18 Pa.C.S.A. § 2702(a)(1).
Serious bodily injury is defined as “bodily injury which creates a substantial
risk of death or which causes serious, permanent disfigurement, or
protracted loss or impairment of the function of any bodily member or
-8-
J. S53041/17
organ.” 18 Pa.C.S.A. § 2301. A person will be found guilty of robbery “if, in
the course of committing a theft, he . . . inflicts serious bodily injury upon
another[.]” 18 Pa.C.S.A. § 3701(a)(1)(i). Likewise, a person will be found
guilty of robbery of a motor vehicle, a felony of the first degree, “if he steals
or takes a motor vehicle from another person in the presence of that person
or any other person in lawful possession of the motor vehicle.” 18 Pa.C.S.A.
§ 3702(a).
Viewing the evidence in the light most favorable to the
Commonwealth, the verdict winner, we find that there is overwhelming
evidence to support appellant’s convictions in this matter. The evidence
introduced at trial established that on the morning of April 18, 2013,
appellant carjacked the victim as she was pumping gas and proceeded to
drag her body a substantial distance across the parking lot when she tried to
intervene. (Notes of testimony, 3/16/16 at 36-38, 52-53.) The record
reflects that the victim suffered substantial bodily injuries, including multiple
sprains and a tennis-ball-sized hematoma on her left hip. (Id. at 38-42.) At
trial, the Commonwealth introduced video surveillance of the incident, which
depicted an individual matching appellant’s age and description, wearing
distinctive black-and-red shoes, and walking with a notable gait. (Id. at
71-72, 78-81.) A second video introduced at trial placed appellant at a
second gas station approximately 45 minutes later using one of the victim’s
credit cards. (Id. at 83-94.) The record further reflects that appellant was
-9-
J. S53041/17
apprehended the following day, wearing the identical shoes as those seen in
the first video and in possession of the victim’s identification and credit
cards. (Id. at 202-213.) Subsequent tests determined that appellant’s DNA
matched DNA found on the victim’s steering wheel. (Id. at 96-98,
149-162.) Based on the foregoing, we find that appellant’s claim that there
was insufficient evidence to sustain his convictions for aggravated assault,
robbery, and robbery of a motor vehicle must fail.
In his final claim, appellant argues that the verdict was against the
weight of the evidence because “[the victim] had no idea whatsoever who
assaulted her and robbed her of her motor vehicle.” (Appellant’s brief at
17.) “An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court.” Commonwealth v. Galvin,
985 A.2d 783, 793 (Pa. 2009) (citation omitted), cert. denied, 559 U.S.
1051 (2010).
[W]here the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against
the weight of the evidence. Rather, appellate review
is limited to whether the trial court palpably abused
its discretion in ruling on the weight claim.
Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa.Super. 2012) (citation
omitted).
Our supreme court has long recognized that,
[b]ecause the trial judge has had the opportunity to
hear and see the evidence presented, an appellate
court will give the gravest consideration to the
- 10 -
J. S53041/17
findings and reasons advanced by the trial judge
when reviewing a trial court’s determination that the
verdict is against the weight of the evidence. One of
the least assailable reasons for granting or denying a
new trial is the lower court’s conviction that the
verdict was or was not against the weight of the
evidence and that a new trial should be granted in
the interest of justice.
This does not mean that the exercise of discretion by
the trial court in granting or denying a motion for a
new trial based on a challenge to the weight of the
evidence is unfettered. In describing the limits of a
trial court’s discretion, we have explained[,] [t]he
term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate
conclusion within the framework of the law, and is
not exercised for the purpose of giving effect to the
will of the judge. Discretion must be exercised on
the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions.
Discretion is abused where the course pursued
represents not merely an error of judgment, but
where the judgment is manifestly unreasonable or
where the law is not applied or where the record
shows that the action is a result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations and
emphasis omitted).
Instantly, we discern no abuse of discretion on the part of the trial
court in rejecting appellant’s weight claim. (See trial court opinion, 11/7/16
at 9-10.) “[T]he 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. Andrulewicz, 911 A.2d 162, 165
(Pa.Super. 2006) (citation omitted), appeal denied, 926 A.2d 972 (Pa.
- 11 -
J. S53041/17
2007). Here, the jury evidently found that the video surveillance recordings,
DNA evidence, and the fact that the victim’s property was discovered in
appellant’s possession weighed heavily in favor of its determination that
appellant was the person who committed the offenses in question, and
elected not to believe appellant’s version of the events. We are precluded
from reweighing the evidence and substituting our judgment for that of the
fact-finder. Clay, 64 A.3d at 1055.
Based on the foregoing, we vacate the May 13, 2016 judgment of
sentence and remand this matter for resentencing. Appellant’s convictions
are affirmed in all other respects.
Judgment of sentence vacated. Case remanded for resentencing.
Convictions affirmed in all other respects. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2017
- 12 -