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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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


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          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.


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          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


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             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.




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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.


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     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[’]



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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



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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



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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


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            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.



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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




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