J-S29036-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FREDDIE WIGGINS                            :
                                               :
                       Appellant               :   No. 921 EDA 2019

        Appeal from the Judgment of Sentence Entered November 5, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0006111-2016


BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                             FILED JULY 21, 2020

        Freddie Wiggins (Wiggins) appeals from the judgment of sentence

entered in the Court of Common Pleas of Philadelphia County (trial court) after

his bench conviction of Aggravated Assault, Endangering the Welfare of a Child

(EWOC) and Recklessly Endangering Another Person (REAP).1             After our

thorough review, we affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2702(a)(8) and (a)(9), 4304(a)(1), 2705 and 2701,
respectively.
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                                               I.

        We take the following factual background and procedural history from

the trial court’s September 20, 2019 opinion and our independent review of

the certified record.        On June 28, 2016, the Commonwealth filed an

Information against Wiggins charging him with committing two counts of

Aggravated Assault as second-degree felonies and one count of Aggravated

Assault as a first-degree felony pursuant to Section 2702 of the Crimes Code2

and related charges. The charges stemmed from an incident involving Wiggins

that occurred on February 26, 2016.




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2   The relevant portions of Section 2702 read, in pertinent part, that:

        (a) Offense defined.--A person is guilty of aggravated assault if
        he:

                                       *       *    *

              (8) attempts to cause or intentionally, knowingly or
        recklessly causes bodily injury to a child less than six years of age,
        by a person 18 years of age or older; or

              (9) attempts to cause or intentionally, knowingly or
        recklessly causes serious bodily injury to a child less than 13 years
        of age, by a person 18 years of age or older.

        (b) Grading.--Aggravated assault under subsection (a)(1), (2)
        and (9) is a felony of the first degree. Aggravated assault under
        subsection (a)(3), (4), (5), (6), (7) and (8) is a felony of the
        second degree.

18 Pa.C.S. § 2702(a)(8), (9), (b).


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     On July 31, 2018, Wiggins proceeded to a waiver trial.          Keyana

Broadnax, his ex-paramour and mother of the victim in this matter, testified

that on February 26, 2016, she, Wiggins and their two-year-old twins, NS.W.

and NI.W., went to an Applebee’s restaurant in Center City, Philadelphia at

approximately 4:30 p.m. Ms. Broadnax testified that NS.W.’s behavior had

been normal that day and that he had been to a regularly scheduled

appointment with his primary care provider the Monday before the incident

where everything had been normal. While seated at the table in Applebee’s,

the twins began whining and in an effort to quiet NS.W., Wiggins began

walking around the restaurant with him.    When they did not return to the

table, Ms. Broadnax went in search of them. After unsuccessfully looking for

a while, she knocked on the bathroom door and Wiggins announced that he

was inside. Wiggins left the bathroom with NS.W. to allow Ms. Broadnax and

NI.W. to use it. At that time, NS.W. appeared to Ms. Broadnax to be acting

normal. Less than a minute later, Wiggins returned to the bathroom in a panic

and alerted Ms. Broadnax that there was something wrong with NS.W. When

Ms. Broadnax touched NS.W.’s arm, it was limp and she noticed that “[h]e

looked like he was struggling to breathe, like his little body was not really

moving.” (N.T. Trial, 7/31/18, at 23). At that point, Ms. Broadnax panicked.

     Shortly thereafter, without informing Ms. Broadnax of where he was

going, Wiggins ran out of the restaurant with NS.W. Ms. Broadnax called him

at 6:30 p.m. to inquire about what was happening after picking up her two


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older children from school, and he told her that he was at Jefferson Hospital.

He explained that NS.W. had been resuscitated and would be transferred to

the Children’s Hospital of Philadelphia (CHOP) once he was stable.             Ms.

Broadnax arrived at CHOP between 7:00 and 7:30 p.m. Wiggins told her at

CHOP that NS.W. had fallen from the changing table at Applebee’s.

       Dr.   Natalie   Stavas,   a   physician   at   CHOP,   testified   as   the

Commonwealth’s expert in child abuse pediatrics. She confirmed that NS.W.’s

primary care appointment had occurred four days before the Applebee’s

incident. The records reflected that the examination was normal and reflected

that NS.W. was “reported to be well-appearing, in no distress, normal exam,

normal neurological exam, with no injuries on his body.” (N.T. Trial, 7/31/18,

at 74). Dr. Stavas concluded that based on NS.W.’s injuries, which included

retinal hemorrhages, bleeding around his brain and fractures of his lower

extremities, he was subjected to child abuse and that a short fall from the

changing table, by itself, would not result in the pattern of injury he suffered.

She also explained that NS.W. would have enduring neurological problems.

Dr. Kirk Thibault testified as an expert witness in biomechanical engineering

and analysis on behalf of the defense. He concluded that the thirty-three inch

fall from a changing table to a tile floor with head impact was sufficient to

cause the injuries sustained by NS.W. (See N.T. Trial, 8/01/18, at 69, 106-

07).




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      After closing arguments, the court stated, “I find Mr. Wiggins guilty of

all charges. . . . I’m going to defer sentencing. I’m ordering a presentence

investigation [(PSI)] and a mental health evaluation.” (N.T. Trial, 8/06/18, at

32). Thereafter, when defense counsel confirmed that the Aggravated Assault

charge was graded as a felony of the first degree, the following exchange

occurred:

      THE COURT: I think they only went forward on the F-2, right?
      That’s what the bills have.

      [PROSECUTOR]: I have both. I have F-1 and F-2. I have F-1
      as count five.

      THE COURT: I think you said you were only moving on section
      eight. Isn’t that an F-2?

      [PROSECUTOR]: You Honor, so there were two counts of F-2,
      aggravated assault. And I meant that I was only moving forward
      on one. I don’t know why it was still two counts of F-2. So it was
      a count of F-2 and a count of F-1.

      THE COURT: You might want to take a look at the bills because
      they confuse me as to what was conceded or what you were
      moving on from the first day. I have circled the aggravated
      assault under subsection eight. That can be argued at sentencing.

(Id. at 33).

      The Trial Disposition and Dismissal Form filed contemporaneously with

the court’s announcing of the verdict reflects that Wiggins was “Adjudged

Guilty on all charges,” and, in pertinent part, identifies the court’s disposition

of guilt as to Aggravated Assault as both first- and second-degree felonies.

(Trial Disposition and Dismissal Form, 8/06/18, at 1).




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     At sentencing on November 5, 2018, the court and the parties again

addressed the grading of the Aggravated Assault charge as follows:

     [DEFENSE COUNSEL]: And Your Honor, we were unclear on
     which count of aggravated assault Your Honor had found him
     guilty of. There were three total aggravated assault counts.

     THE COURT: Ms. Fischer, you made some kind of amendment,
     right?

     [PROSECUTOR]: Yes. I don’t know why two F2s were billed, so
     we’re only proceeding on one. There is aggravated assault of a
     child less than 13, so it was an F1, and then there is also an F2
     and I believe Your Honor found him guilty of all of the charges,
     but it should only be one F2 aggravated assault. There’s no
     reason why there’s two.

     [DEFENSE COUNSEL]: I believe when we were in the back Your
     Honor had asked the Commonwealth what the deal was with the
     aggravated assault charge and Ms. Fischer I think verbatim said
     there should only be one F2.

     [PROSECUTOR]: Yes.

     [DEFENSE COUNSEL]: And I think unfortunately it wasn’t clear
     whether that was—to Your Honor whether that meant that Ms.
     Fischer was going forward on a count of F1 and a count of F2 or
     just an F2.

     [PROSECUTOR]: I never nolle prossed the F1.

     THE COURT: Okay. So there’s an F1 aggravated assault and an
     F2 aggravated assault but not a third.

(N.T. Sentencing, 11/05/18, at 5-6). Defense counsel raised no objection to

the court’s characterization of the grading of the Aggravated Assault charge

as both first- and second-degree. (See id.).

     Thereafter, the court sentenced Wiggins to a term of not less than seven

nor more than sixteen years’ incarceration on the Felony One Aggravated

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Assault, plus three years of probation, with all other convictions to run

concurrently. Wiggins filed a timely Post-Sentence Motion on November 14,

2018, in which he sought a new trial based on weight of the evidence. The

court denied the motion on March 1, 2019. Wiggins timely appealed. He and

the trial court have complied with Rule 1925. See Pa.R.A.P. 1925.

                                       II.

      On appeal, Wiggins claims that the trial court “lacked authority and

jurisdiction to deem [him] guilty” of First Degree Aggravated Assault at the

time of sentencing, since, at the time of trial and conviction, the court believed

that the Commonwealth was only proceeding on Second Degree Aggravated

Assault.   (Wiggins’ Brief, at 12).    He asserts that the court’s finding at

sentencing that Wiggins committed First-Degree Aggravated Assault required

it to impermissibly change its factual findings since a first-degree conviction

required a finding of serious bodily injury, while the second-degree conviction

only necessitated a finding of bodily injury. (See id. at 17). He maintains,

therefore, because he was not convicted of First Degree Aggravated Assault,

the court erred as a matter of law when it sentenced him “consistent with the




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maximum sentence for a first-degree felony” and above the statutory

maximum for a felony of the second degree.3 (Id.; see also id. at 13, 18).4

       The Commonwealth counters that any comments made by the court

after it announced the verdict of “guilty of all charges” are “irrelevant and

should be disregarded.”          (Commonwealth’s Brief, at 16-17).    Also, in

considering this issue, the trial court explained:

              A review of the bills of information reveals that [Wiggins]
       was charged with two counts of aggravated assault graded as
       felonies of the second degree, and one count of aggravated
       assault graded as a felony of the first degree. On August 6, 2018,
       [Wiggins] was found guilty by this court of the above referenced
       charges. Immediately following the guilty verdict, however, there
       was confusion as to whether the Commonwealth went forward
       with an aggravated assault charge of the first or second degree.
       The Commonwealth asserted that there were originally two counts
       of aggravated assault graded as second-degree felonies, but that
       there should only have been one, in addition to the count graded
       as a first-degree felony. The court deferred the issue until
       sentencing.     At the time of sentencing, the Commonwealth
       clarified that there was only one count of aggravated assault
       graded as a felony of the first degree and one count graded as a
       felony of the second degree. Defense counsel neither objected
       nor raised the issue in the post-sentence motion. See Pa.R.A.P.
       302(a) (providing for waiver of issues on appeal that were not
       raised in the lower court).
____________________________________________


3 In an apparent attempt to demonstrate that the court was unaware of what
it had convicted him of, Wiggins also mentions that the court stated at
sentencing that the Simple Assault charge merged with Aggravated Assault,
although the Commonwealth had nolle prossed this count. (See Wiggins’
Brief, at 9 n.5). We do not find this persuasive for the matter before us.

4“When reviewing the legality of a sentence, our standard of review is de novo
and our scope of review is plenary.” Commonwealth v. Melvin, 172 A.3d
14, 19 (Pa. Super. 2017), appeal denied, 187 A.3d 207 (Pa. 2018) (citation
omitted).


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             Nevertheless, the facts of the case clearly establish that
       [Wiggins] was guilty of intentionally, knowingly or recklessly
       causing serious bodily injury to a child, an F-1 aggravated assault.
       Therefore, [Wiggins]’ claim is without merit.

(Trial Court Opinion, 9/20/19, at 8-9) (record citations and some capitalization

omitted). We find the reasoning of the court persuasive.

                                               A.

       It is well-settled that “a court is without jurisdiction to convict a

defendant of a crime for which he was not charged, and a challenge to a

court's subject matter jurisdiction[5] is not waivable.” Commonwealth v.

Antidormi, 84 A.3d 736, 752 (Pa. Super. 2014), appeal denied, 95 A.3d 275

(Pa. 2014) (internal quotation marks and citation omitted). It is undisputed

that in this case, the Information charged Wiggins with both First- and

Second-Degree Aggravated Assault pursuant to 18 Pa.C.S. § 2702(a)(8), (9).

Therefore, he was put on notice of the charges against him, and the court was



____________________________________________


5 In the criminal context, two requirements are necessary for subject matter
jurisdiction: for subject matter jurisdiction in a criminal case: the court’s
competency to hear the case and formal notice to the defendant of the crimes
charged pursuant to the Sixth Amendment of the United States Constitution
and Article I, Section 9 of the Pennsylvania Constitution.                See
Commonwealth v. Serrano, 61 A.3d 279, 287 n.4 (Pa. Super. 2013). “[T]o
invoke [subject matter] jurisdiction ... it is necessary that the Commonwealth
confront the defendant with a formal and specific accusation of the crimes
charged. This accusation enables the defendant to prepare any defenses
available to him, and to protect himself against further prosecution for the
same cause; it also enables the trial court to pass on the sufficiency of the
facts alleged in the indictment or information to support a conviction.” Id.
(citation omitted).


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competent to rule on them. See Serrano, supra at 287 n.4. Any claim of

lack of subject matter jurisdiction does not merit relief.

                                       B.

      Wiggins argues, however, that although he was charged with First-

Degree Aggravated Assault, he was not convicted of it, thus rendering his

sentence illegal. We disagree, as the record reflects that the court convicted

Wiggins of all charges at the time of trial.

      “[T]he verdict rendered by the trial judge after a non-jury trial is a

general verdict and, after recording such a verdict, the authority of the trial

judge over it would be the same as in the case of verdict by a jury[.]”

Commonwealth v. Parker, 451 A.2d 767, 770 (Pa. Super. 1982) (citation

omitted); see also Pa.R.Crim.P. 621(A) (“When a jury trial is waived, the trial

judge shall determine all questions of law and fact and render a verdict which

shall have the same force and effect as a verdict of a jury.”).

      In this case, the judge declared a verdict finding Wiggins guilty of all

charges which, pursuant to the Information, included Aggravated Assault as

both first- and second-degree felonies, a fact that defense counsel expressly

observed at the time of the verdict. Although the court then expressed some

confusion as to whether the Commonwealth was proceeding under both

causes of action, the Trial Disposition and Dismissal Form reflects that Wiggins

was adjudged guilty on all charges, including First- and Second- Degree

Aggravated Assault.    After declaring its verdict, the court stated that any


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argument about the degree of Aggravated Assault would be deferred until

sentencing.     At sentencing, after the Commonwealth and defense counsel

spoke, the court repeated that both degrees of Aggravated Assault were

before it, a fact with which defense counsel did not object.

       Based on the foregoing, Wiggins’ claim that the court did not convict

him of First-Degree Aggravated Assault at the time of trial is not persuasive.

                                               C.

       Moreover, contrary to his claim that the court only made factual findings

to support a Second-Degree charge,6 the court explained in its opinion that:

             This court, sitting as fact-finder, found the evidence and
       testimony presented by the Commonwealth to be credible, and
       found that NS.W’s injuries constituted serious bodily injury.
       Specifically, Ms. Broadnax testified that NS.W’s behavior had been
       normal during the day leading up to the incident in Applebee’s.
       (See N.T. Trial, 7/31/18, at 18-19). She also stated that NS.W.
       had a primary care appointment on the Monday before he went to
       the hospital. (See id. at 39). Dr. Staves confirmed that NS.W.’s
       primary care appointment took place on February 22, 2016, and
       that his examination was normal.[a] (Id. at 74). Dr. Stavas also
       explained that, due to his injuries, NS.W. would have enduring
       neurological problems. (See id. at 119). “It was within the
       province of [this court] as fact-finder to resolve all issues of
       credibility, resolve conflicts in the evidence, make reasonable
       inferences from the evidence, [and] believe all, none, or some of
       the evidence. . . .” Commonwealth v. Charlton, 902 A.2d 554,
       562 (Pa. Super. 2006) (citation omitted). After doing so, this


____________________________________________


6 Wiggins assumes this without any evidence of same. The record reflects
that the court did not make any factual findings at the time it announced its
verdict and was not authorized to do so. See Commonwealth v. Samuel,
961 A.2d 57, 63-64 (Pa. 2008) (“Special verdicts in which the finder of fact
makes specific findings beyond guilty or not guilty are impermissible in
Pennsylvania criminal cases.”).

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      court found that the Commonwealth proved [Wiggins] guilty of
      the charges beyond a reasonable doubt. . .

                aSpecifically, Dr. Stavas stated, “At that primary[]
         care visit[,] he is reported to be well-appearing, in no
         distress, normal exam, normal neurological exam, with no
         injuries on his body.” (Id. at 74).

(Trial Ct. Op., at 5-6) (unnecessary capitalization omitted; record citation

formatting provided).

      Based on the foregoing, where the Commonwealth provided Wiggins

with notice of the charges against him and the trial court convicted him of all

of them, finding that the evidence was sufficient to support a conviction for

Aggravated Assault of the First-Degree, it did not err in sentencing him for the

Felony One. Wiggins’ argument in this regard fails and we affirm the judgment

of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/20




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