J-S59004-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :      IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                       Appellee         :
                                        :
            v.                          :
                                        :
DARNELL LEGGETT,                        :
                                        :
                       Appellant        :      No. 1505 EDA 2013


     Appeal from the Judgment of Sentence Entered February 5, 2008,
          In the Court of Common Pleas of Philadelphia County,
            Criminal Division, at No. CP-51-CR-0909771-2003.


BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.:                      FILED DECEMBER 09, 2014

      Appellant, Darnell Leggett, appeals nunc pro tunc from the judgment

of sentence entered February 5, 2008.       For the reasons that follow, we

vacate and remand for resentencing.

      We summarized the facts and early procedural history in a prior

appeal, as follows:

            On July 10, 2003, a violent altercation ensued [among
      Appellant], Patricia Herlocher, and William Higgins, Herlocher’s
      boyfriend, at a residence located at 1307 Foulkrod Street, in the
      City of Philadelphia. That evening, Herlocher, Higgins, and
      [Appellant] were smoking crack together in the basement of the
      residence, after which, Higgins went upstairs to lie down.
      Subsequently, Herlocher came upstairs and complained to
      Higgins that [Appellant] was acting “fresh” towards her and
      scaring her, and that she wanted [Appellant] to leave the house.
      Subsequently, [Appellant] left the house after Higgins confronted
      him with a shillelagh, which is a large walking stick. However,
      the confrontation turned extremely violent when [Appellant]
____________________
*Retired Senior Judge assigned to the Superior Court.
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     returned to the house, and struck Higgins in the head with the
     shillelagh repeatedly, and also stabbed him several times with a
     twelve inch steak knife. [Appellant] then followed Herlocher
     outside the house and stabbed her in the right buttock.

             On August 11, 2003, [Appellant] was arrested and charged
     with two counts of aggravated assault and possessing
     instruments of crime. On March 1, 2004, following a jury trial,
     [Appellant] was convicted of one count of aggravated assault on
     Higgins, and also of possession of instruments of crime.
     Thereafter, on December 9, 2004, [Appellant] argued a post-
     verdict motion for extraordinary relief, requesting a new trial.
     Specifically, [Appellant] argued that he should have been
     allowed to impeach Herlocher with a hospital record containing a
     notation in which she allegedly stated that her boyfriend’s ex-
     girlfriend was the person who had stabbed her. On December
     22, 2004, the trial court granted [Appellant’s] motion for
     extraordinary relief, concluding that the court had made
     reversible error when it refused to allow [Appellant] to impeach
     Herlocher with the alleged prior inconsistent statement contained
     in the hospital record.

Commonwealth v. Leggett, 418 EDA 2005, 944 A.2d 794 (Pa. Super. filed

November 30, 2007) (unpublished memorandum at 1–2). In that decision,

this Court reversed, concluding that the trial court erred in finding that

Appellant “had established that the        notation in the hospital record

constituted a prior statement of Herlocher.” Id. at 5. Thus, we remanded

the case for sentencing.

     On February 5, 2008, the trial court sentenced Appellant to five to ten

years of imprisonment for aggravated assault and four years of probation for

two counts of recklessly endangering another person (“REAP”), to run




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consecutively. The trial court summarized the ensuing procedural history as

follows:

      On June 27, 2008, the trial court held an evidentiary hearing on
      a post-sentence motion for a new trial, regarding an alleged
      stipulation about the medical records. [The Honorable Harold
      M.] Kane[, who is retired,] denied the motion on July 11, 2008.
      [Appellant] filed a pro se PCRA petition on January 30, 2009.
      The case was transferred to be heard by the Honorable Denis P.
      Cohen, Judge of the Court of Common Pleas, on January 20,
      2012.[1] A PCRA hearing was held on May 13, 2013.[2] At that
      hearing, Judge Cohen ordered that [Appellant’s] appellate rights
      be restored nunc pro tunc. [Appellant] filed his Notice of Appeal
      on May 21, 2013, and this [c]ourt issued its 1925(b) order on
      September 5, 2013. On October 7, 2013[, Appellant] filed a
      Motion for Extension of Time as well as a nunc pro tunc
      Statement of Matters, setting forth the . . . matters for appeal.

Trial Court Opinion, 12/26/13, at 2.

      Appellant raises the following issues on appeal:

      A. Whether The Verdict of Was Insufficient as a Matter of Law
      and Against the Weight of the Evidence where the Testimony
      was based on the inconsistent testimony of the complainant who
      admitted to using drugs at the time of the incident?

      B. Whether The trial court erred in denying [Appellant’s] post
      sentence motion there was a stipulation between the parties with



1
  It appears that the significant delay between the filing of the PCRA petition
on January 30, 2009, and the PCRA hearing on January 20, 2012, occurred
due to multiple withdrawals of counsel and multiple requests for
continuances by the defense, on February 11, 2011, July 29, 2011,
September 30, 2011, January 20, 2012, January 30, 2012, March 9, 2012,
April 16, 2012, May 18, 2012, June 18, 2012, September 24, 2012,
November 5, 2012, November 30, 2012, and February 15, 2013.
2
  The notes of testimony from this hearing are not in the record certified to
us on appeal.

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      regard to a statement made by the complainant in the medical
      records that should have been admissible at trial?

Appellant’s Brief at 5 (verbatim).

      Appellant combines his contention that the verdict was not supported

by sufficient evidence with his claim that it was against the weight of the

evidence. 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, were sufficient to prove every element of the offense beyond

a reasonable doubt.     Commonwealth v. Rivera, 983 A.2d 1211 (Pa.

2009). It is within the province of the fact-finder to determine the weight to

be accorded to each witness’s testimony and to believe all, part, or none of

the evidence. Commonwealth v. Diamond, 83 A.3d 119 (Pa. 2013). The

Commonwealth may sustain its burden of proving every element of the

crime by means of wholly circumstantial evidence.           Commonwealth v.

Hansley, 24 A.3d 410 (Pa. Super. 2011). Moreover, as an appellate court,

we may not re-weigh the evidence and substitute our judgment for that of

the fact-finder. Commonwealth v. Kelly, 78 A.3d 1136 (Pa. Super. 2013).

      Appellant’s argument that the verdict is not supported by sufficient

evidence is based on his contention that the trial testimony of victim William

Higgins “did not make sense.”        Appellant’s Brief at 10.   Appellant asserts

that Higgins, who admitted having a nervous condition, “confronted the


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Appellant with a large stick . . . and then claimed that he put the stick down

even though the Appellant did not leave after being threatened with harm.”

Appellant’s Brief at 10. Appellant also avers that the victim testified he was

repeatedly beaten and stabbed with a knife, but his medical records revealed

that his only injuries were a five-centimeter scalp laceration and two

lacerations on his leg. Id.

      We conclude that Appellant’s challenge to the sufficiency of the

evidence is waived because Appellant failed to specify which elements of the

crimes were not satisfied. In Commonwealth v. Williams, 959 A.2d 1252

(Pa. Super. 2008), we stated, “If Appellant wants to preserve a claim that

the evidence was insufficient, then the 1925(b) statement needs to specify

the element or elements upon which the evidence was insufficient. This

Court can then analyze the element or elements on appeal.” Id., 959 A.2d

at 1257. Here, such specificity is lacking in Appellant’s claim of error and,

therefore, Appellant’s claim is unreviewable.

      Appellant’s challenge to the sufficiency of the evidence fails on a

separate basis as well. While Appellant presented his question in terms of

sufficiency, the argument portion of the brief is an attack on victim Higgins’s

credibility. It is well settled that a challenge to the credibility of a witness is

a challenge to the weight of the evidence and not the sufficiency of the

evidence.   Commonwealth v. Lopez, 57 A.3d 74, 80 (Pa. Super. 2012).




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Accordingly, Appellant’s claim fails.    See Commonwealth v. Small, 741

A.2d 666, 672 (Pa. 1999) (stating that, although the appellant phrased his

claim as a challenge to the sufficiency of the evidence, the challenge actually

goes to the weight of the evidence, and as such, the appellant’s challenge to

the sufficiency of the evidence must fail).

      An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court.               Commonwealth v.

Ramtahal, 33 A.3d 602 (Pa. 2011). “An appellate court, therefore, reviews

the exercise of discretion, not the underlying question whether the verdict is

against the weight of the evidence.” Id. at 609. A trial judge cannot grant

a new trial due to a mere conflict in testimony or because he would have

arrived at a different conclusion on the same facts.          Commonwealth v.

Edwards, 903 A.2d 1139 (Pa. 2006).              Instead, a new trial should be

granted “only in truly extraordinary circumstances . . . .” Id. at 1149.

      The trial court will award a new trial only when the jury’s verdict is so

contrary   to   the   evidence   as     to    shock   one’s   sense   of   justice.

Commonwealth v. Diggs, 949 A.2d 873 (Pa. 2008).                  “In determining

whether this standard has been met, appellate review is limited to whether

the trial judge’s discretion was properly exercised, and relief will be granted

only where the facts and inferences of record disclose a palpable abuse of

discretion.” Id. at 879. Thus, “the trial court’s denial of a motion for a new




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trial based on a weight of the evidence claim is the least assailable of its

rulings.” Rivera, 983 A.2d at 1225.

     The trial court concluded that Appellant’s weight-of-the-evidence claim

was waived for failure to raise the issue in the trial court. See Pa.R.Crim.P.

607(A). We agree. As we have stated:

     A weight of the evidence claim must be preserved either in a
     post-sentence motion, by a written motion before sentencing, or
     orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth
     v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to
     properly preserve the claim will result in waiver, even if the trial
     court addresses the issue in its opinion. Commonwealth v.
     Sherwood, 982 A.2d 483, 494 (Pa. 2009).

Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014)

(quoting Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super.

2012).   Although Appellant filed a post-sentence motion, he did not assail

the weight of the evidence as an issue, nor did he “make any other oral or

written motion challenging the verdict as against the weight of the

evidence.”    Trial Court Opinion, 12/26/13, at 4.   We agree with the trial

court that Appellant has waived this matter, and we decline to address its

merits. Id.

     Appellant next contends that the trial court erred in denying his post-

sentence motion challenging the admissibility of a notation in Victim

Herlocher’s hospital records to impeach her testimony.      Initially, we note

that Appellant, in a two-paragraph argument, fails to cite any relevant




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authority in support of his claim. As we recently stated in Commonwealth

v. Samuel, 2014 PA Super 236, ___ A.3d ___ (Pa. Super. 2014), in holding

an issue waived because it was undeveloped and failed to cite relevant law:

     The only case law . . .cite[d] in support of this claim is the
     standard of review . . . . Again, we will not comb the record for
     the facts in support of [a] claim and we will not develop
     arguments on [the appellant’s] behalf. This issue is waived.
     Mulholland, 702 A.2d at 1034 n. 5; Gould, 912 A.2d at 873.

Id., ___ A.3d at ___, 2014 PA Super at *3 (citing Commonwealth v.

Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. 1997), and Commonwealth v.

Gould, 912 A.2d 869, 873 (Pa. Super. 2006)).         Thus, we could find this

issue waived.

     The trial court stated the following in disposing of this issue:

            Defendant claims that the female victim’s purported
     statement in the medical records should have been admitted to
     impeach her testimony. However, this issue has already been
     addressed     and   ruled   upon    by   the  Superior    Court.
     Commonwealth v. Leggett, J. A14021/06, No. 418 Eastern
     District Appeal 2005 at 4 (Unpublished). On a second appeal, an
     appellate court may not alter the resolution of a legal question
     previously decided by the same appellate court. Commonwealth
     v. Starr, 541 Pa. 564, 574 (1995); see also discussion of
     collateral estoppel in Commonwealth v. Holder, 569 Pa. 474,
     479-80 (2002). Defendant is essentially trying to relitigate the
     question of the admissibility of the statement in the medical
     records. The Superior Court in 2007 held that there was no
     evidence that the statement at issue was actually made by the
     female victim.    Thus, it could not be admitted as a prior
     inconsistent statement, and it was not error to exclude it.
     Leggett, No. 418 Eastern District Appeal 2005 at 4-5. The
     defendant cannot now re-argue this same issue.




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Trial Court Opinion, 12/26/13, at 6. Accord Commonwealth v. Leggett,

418 EDA 2005, 944 A.2d 794 (Pa. Super. filed November 30, 2007)

(unpublished memorandum at 4-5).         We agree with the trial court and

conclude the issue lacks merit.

       Finally, we note that in its Pa.R.A.P. 1925(a) opinion, the trial court

stated the following concerning the sentence imposed:

             The Notes of Testimony confirm that [Appellant] was
       arraigned solely on two counts of Aggravated Assault and one
       count of PIC. (N.T. 02/26/2004 at 4). He was not arraigned on
       any REAP charges. (Id.) The jury returned a verdict of guilty on
       the Aggravated Assault of Ms. Herlocher, not guilty on the
       Aggravated Assault of Mr. Higgins, and guilty on PIC. (N.T.
       03/01/2004 at 97-98). On the same day that the jury returned
       this verdict, the trial court signed the two REAP Bills of
       Information, approving the nolle prosequi of those charges.

             The sentencing order (Form 6-288A), dated February 5,
       2008, located in the Quarter Session file and signed by the trial
       judge, specified the following sentence:           5-10 years
       incarceration for Aggravated Assault, concurrent with any other
       sentence now serving; no further penalty for PIC; 2 years
       consecutive probation on each of two counts of REAP.
       Accordingly, the two-year consecutive probationary sentences on
       each of the REAP charges [were] illegal as [Appellant] was
       neither convicted nor even arraigned on any REAP charge.

       This issue was not raised by either the defense or the
       Commonwealth.

Trial Court Opinion, 12/26/13, at 2 n.3. The trial court thus requests that

we remand the case so that the trial court can vacate the illegal sentence.

The Commonwealth has joined in that request. Commonwealth’s Brief at 4

n.1.    It is beyond peradventure that Appellant could not properly be


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sentenced on charges for which he had not previously been charged,

arraigned, or indicted. See, e.g., Commonwealth v. Thompson, 289 A.2d

222 (Pa. Super. 1972) (“This defendant was sentenced under the Gun

Possession Law . . . without having previously been charged, arraigned, or

indicted therefor, which is contrary to the law.”) Id.

      The question we are thus faced with is whether we may merely vacate

the sentence directly or must remand for resentencing.             “[W]here a case

requires a correction of sentence, this [C]ourt has the option of either

remanding      for   resentencing   or    amending      the    sentence   directly.”

Commonwealth v. Klein, 795 A.2d 424, 430–431 (Pa. Super. 2002). In

other words, if we can vacate the illegal sentence without upsetting the trial

court’s overall sentencing scheme, we need not remand for resentencing.

Commonwealth v. Thur, 906 A.2d 552, 570 (Pa. Super. 2006).

      Here, although we could vacate the sentence, in part, to remove the

illegal probationary sentence for REAP, we believe the prudent course is to

vacate   the    entire   sentence   and    remand      for    resentencing.    See

Commonwealth v. Williams, 550 A.2d 579 (Pa. Super. 1988) (where the

sentence vacated may affect the sentence imposed by the court, we must

remand).

      Judgment of sentence vacated.              Case remanded for resentencing

consistent with this memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/9/2014




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