Com. v. Giggetts, C. ( 2021 )

J-S46025-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.0.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
CHARLES E. GIGGETTS
Appellant : No. 2963 EDA 2019
Appeal from the PCRA Order Entered October 3, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007804-2013
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED: JANUARY 29, 2021
Appellant, Charles E. Giggetts, appeals pro se from the order denying
his petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court summarized the factual and procedural history as
follows:
On April 18, 2013, [Appellant] car-jacked Lisa McLawler (the
“victim”) while she was pumping gas at a Sunoco Station. The
victim attempted to stop [Appellant] from driving away in her
vehicle and was dragged along-side her vehicle for a lengthy
distance. While being dragged, [Appellant] ran over the victim’s
foot, causing her to propel forward and slam face first into the
pavement of the gas station. The victim suffered 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.
On March 21, 2016, [Appellant] was found guilty by a jury
presided over by this [c]ourt of: robbery,! aggravated assault,?
and robbery of a motor vehicle. [Appellant] was originally
sentenced on May 13, 2016[,] to an aggregate sentence of fifteen
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to thirty years’ incarceration to be followed by ten years of
probation.
118 Pa.[C.S.] § 3701(a)(1)(i).
2 18 Pa.[C.S.] § 2702.
3 18 Pa.[C.S] § 3702.
On May 19, 2016, [Appellant] filed post-sentence motions
which were denied on August 1, 2016. On August 30, 2016,
[Appellant] filed a Notice of Appeal to the Superior Court.
On January 24, 2017, [Appellant] filed a pro se Post-
Conviction Relief Act (‘PCRA”) petition, which was premature
since [Appellant’s] appeal was not yet decided. On April 13, 2017,
[Appellant’s] PCRA petition was withdrawn without prejudice.
On September 11, 2017, the Superior Court vacated
[Appellant’s] judgement of sentence and remanded the case for
resentencing. [Appellant’s] conviction was affirmed in all other
respects. On October 11, 2017, [Appellant] filed a Petition for
Allowance of Appeal to the Pennsylvania Supreme Court. On
January 23, 2018, allocatur was denied. On April 24, 2018, the
[c]ourt resentenced [Appellant].*
4 [Appellant’s] overall sentence remained the same.
The [c]ourt corrected the sentence for robbery from
fifteen to thirty years which was greater than the
maximum, and instead sentenced [Appellant] to ten
to twenty [years] for robbery and a consecutive five
to ten years for robbery of a motor vehicle.
On May 16, 2018, [Appellant] filed the instant, timely, pro
se PCRA petition. On July 18, 2018, PCRA counsel was appointed.
On December 26, 2018, PCRA counsel filed an Amended PCRA
petition. On June 14, 2019, the Commonwealth filed a Motion to
Dismiss the PCRA petition.
On August 8, 2019, the court denied the instant PCRA
petition and issued a Notice of Intent to Dismiss Pursuant to Rule
907 (“907 Notice”). On August 26, 2019, [Appellant] filed a
response to the 907 Notice claiming ineffective assistance of PCRA
counsel. On September 6, 2019, PCRA counsel was permitted to
withdraw and new PCRA counsel was appointed on September 19,
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2019. On October 3, 2019, the PCRA [petition] was formally
dismissed.
On October 7, 2019, [Appellant] filed a Notice of Appeal to
the Superior Court. On October 9, 2019, [Appellant] filed a Motion
to Proceed Pro Se. On November 13, 2019, [Appellant] filed a pro
se 1925(b) Statement of Matters Complained of on Appeal. On
November 22, 2019, the Superior Court of Pennsylvania
remanded the matter to this [cJourt for a Grazier'! hearing. On
December 6, 2019, this [c]jourt conducted a Grazier hearing and
found [Appellant’s] waiver of counsel to be knowing, intelligent
and voluntary. During the Grazier hearing, [Appellant] stated that
he wished to proceed with his November 13, 2019, pro se 1925(b)
Statement of Matters Complained of on Appeal. On December 16,
2019, [Appellant] filed a Motion for Transcripts. On December 30,
2019, [Appellant] filed a pro se Application for Supplemental
Modification and/or Correction of the Records.®
> In this motion [Appellant] makes a bald assertion
that the notes of testimony have been altered to favor
the Commonwealth. [Appellant] bases his assertion
on his memory of what transpired during the tiral.
PCRA Opinion, 2/7/20, at 1-3. Appellant and the PCRA court complied with
Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1) Did the PCRA [c]lourt commit error of law in denying
[Appellant] a new trial or evidentiary hearing, where irrefutable
evidence was presented that trial counsel’s failure to properly
notify the court of [Appellant’s] alibi defense, investigate, and
present [Appellant’s] alibi defense witness at trial, manifest
violation of [Appellant’s] Due Process Rights and so undermined
the truth determining process that no reliable adjudication could
have taken place?
2) Did the PCRA [c]lourt commit error of law in denying
[Appellant] a new trial or evidentiary hearing, where irrefutable
evidence was presented that trial counsel’s failure to investigate,
1 Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998).
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seek out and present “Expert” Rebuttal Witness to refute the
Commonwealth’s Expert, under both state and federal laws
manifest “Structural Error” and a grave violation of [Appellant’s |
Due Process Rights and so undermined the truth determining
process, that no reliable adjudication could possibly have taken
place?
3) Did the PCRA [c]Jourt commit error of law in denying
[Appellant] a new trial or evidentiary hearing on the matters
raised in [Appellant’s] “907 Objection(s)” to Her Honor’s notice of
intent to dismiss, where Post-Conviction Counsel was ineffective
for failing to raise meritorious claims that trial counsel was also
ineffective for: (A) Agreeing to “Stipulations” tantamount to
making the outcome of the trial a foregone conclusion, (B) Failure
to provide a “Cogent Defense” for [Appellant], and (C) Failure to
object to the admission of “Physical Evidence” not Physically
presented at the trial.
Appellant’s Brief at 4.
When reviewing the propriety of an order denying PCRA relief, we
consider the record “in the light most favorable to the prevailing party at the
PCRA level.” Commonwealth v. Stultz, 114 A.3d 865, 872 (Pa. Super.
2015) (quoting Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super. 2014)
(en banc)). This Court is limited to determining whether the evidence of
record supports the conclusions of the PCRA court and whether the ruling is
free of legal error. Commonwealth v. Robinson, 139 A.3d 178, 185 (Pa.
2016). The PCRA court’s findings will not be disturbed unless there is no
support for them in the certified record. Commonwealth v. Lippert, 85 A.3d
1095, 1100 (Pa. Super. 2014).
Appellant’s issues on appeal allege ineffective assistance of counsel.
When considering an allegation of ineffective assistance of counsel, we note
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that counsel is presumed to have provided effective representation unless the
PCRA petitioner pleads and proves that: (1) the underlying claim is of
arguable merit; (2) counsel had no reasonable basis for his or her conduct;
and (3) appellant was prejudiced by counsel’s action or omission.
Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “In order to meet
the prejudice prong of the ineffectiveness standard, a defendant must show
that there is a ‘reasonable probability that but for counsel’s unprofessional
errors, the result of the proceeding would have been different.’”
Commonwealth v. Reed, 42 A.3d 314, 319 (Pa. Super. 2012). A claim of
ineffective assistance of counsel will fail if the petitioner does not meet any of
the three prongs. Commonwealth v. Simpson, 66 A.3d 253, 260 (Pa.
2013). “The burden of proving ineffectiveness rests with Appellant.”
Commonwealth v. Rega, 933 A.2d 997, 1018 (Pa. 2007).
Additionally, in a layered ineffectiveness claim, appellate counsel is not
ineffective for failing to raise an ineffective assistance of counsel issue where
the underlying claim lacks merit. As this Court has explained:
To prevail on a claim of appellate counsel ineffectiveness for
failure to raise an allegation of trial counsel ineffectiveness, a
PCRA petitioner must present a ‘layered’ claim, i.e., he or she
must present argument as to each of the three prongs of the
Pierce'?] test for each layer of allegedly _ ineffective
representation. To establish the arguable merit prong of a claim
of appellate counsel ineffectiveness for failure to raise a claim of
trial counsel ineffectiveness, the petitioner must prove that trial
counsel was ineffective under the three-prong Pierce standard.
2 Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).
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If the petitioner cannot prove the underlying claim of trial counsel
ineffectiveness, then petitioner’s derivative claim of appellate
counsel ineffectiveness of necessity must fail, and it is not
necessary for the court to address the other two prongs of the
Pierce test as applied to appellate counsel.
Commonwealth v. Paddy, 15 A.3d 431, 443 (Pa. 2011) (internal citations
omitted).
Upon review of the issues raised, the certified record, the briefs of the
parties, and the applicable legal authority, we conclude that the PCRA court’s
opinion entered on February 7, 2020, comprehensively and correctly disposes
of Appellant’s appeal. Accordingly, we affirm the PCRA court’s dismissal of
Appellant’s PCRA petition, and we do so based on the PCRA court's opinion.
The parties are directed to attach a copy of that opinion in the event of further
proceedings in this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Es¢
Prothonotary
Date: 1/29/21
Circulated 01/21/2021 12:00 PM
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CHARLES GIGGETTS : 2963 EDA 2019
OPINION
Rose Marie DeFino-Nastasi, J. February 07, 2020
PROCEDURAL HISTORY
On April 18, 2013, Charles Giggetts (the “Petitioner”), car-jacked Lisa McLawler (the
“victim”) while she was pumping gas at a Sunoco Station. The victim attempted to stop the
Petitioner from driving away in her vehicle and was dragged along-side her vehicle for a lengthy
distance. While being dragged, the Petitioner ran over the victim’s foot, causing her to propel
forward and slam face first into the pavement of the gas station. The victim suffered 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.
On March 21, 2016, the Petitioner was found guilty by a jury presided over by this Court
of: robbery,' aggravated assault,2 and robbery of a motor vehicle.? The Petitioner was originally
sentenced on May 13, 2016 to an aggregate sentence of fifteen to thirty years’ incarceration to be
followed by ten years of probation.
l¥8 Pa.S.C. § 3701(a(1)G).
218 Pa.S.C, § 2702.
3 18 Pa.S.C, § 3702.
On May 19, 2016, the Petitioner filed post-sentence motions which were denied on
August 1, 2016. On August 30, 2016, the Petitioner filed a Notice of Appeal to the Superior
Court.
On January 24, 2017, the Petitioner filed a pro se Post-Conviction Relief Act (“PCRA”)
petition, which was premature since the Petitioner’s appeal was not yet decided, On April 13,
2017, the Petitioner’s PCRA petition was withdrawn without prejudice.
On September 11, 2017, the Superior Court vacated the Petitioner’s judgement of
sentence and remanded the case for resentencing. The Petitioner’s conviction was affirmed in all
other respects. On October 11, 2017, the Petitioner filed a Petition for Allowance of Appeal to
the Pennsylvania Supreme Court. On January 23, 201 8, allocatur was denied. On April 24,
2018, the Court resentenced the Petitioner.’
On May 16, 2018, the Petitioner filed the instant, timely, pro se PCRA petition. On July
18, 2018, PCRA counsel was appointed. On December 26, 2018, PCRA counsel filed an
Amended PCRA petition. On June 14, 2019, the Commonwealth filed a Motion to Dismiss the
PCRA petition.
On August 8, 2019, the court denied the instant PCRA petition and issued a Notice of
Intent to Dismiss Pursuant to Rule 907 (“907 Notice”), On August 26, 2019, the Petitioner filed
a response to the 907 Notice claiming ineffective assistance of PCRA counsel. On September 6,
2019, PCRA counsel was permitted to withdraw and new PCRA counsel was appointed on
September 19, 2019. On October 3, 2019, the PCRA was formally dismissed.
4 The Petitioner’s overall sentence remained the same, The Court cotrected the sentence for robbery from fifteen to
thirty years which was greater than the maximum, and instead sentenced the Petitioner to ten to twenty for robbery
and a consecutive five to ten years for robbery of a motor vehicle.
2
On October 7, 2019, the Petitioner filed a Notice of Appeal to the Superior Court. On
October 9, 2019, the Petitioner filed a Motion to Proceed Pro Se. On November 13, 2019, the
Petitioner filed a pro se 1925(b) Statement of Matters Complained of on Appeal. On November
22, 2019, the Superior Court of Pennsylvania remanded the matter to this Court for a Grazier
hearing. On December 6, 2019, this Court conducted a Grazier hearing and found the
Petitioner’s waiver of counsel to be knowing, intelligent and voluntary. During the Grazier
hearing, the Petitioner stated that he wished to proceed with his November 13, 2019, pro se
1925(b) Statement of Matters Complained of on Appeal. On December 16, 2019, the Petitioner
filed a Motion for Transcripts. On December 30, 2019, the Petitioner filed a pro se Application
for Supplemental Modification and/or Correction of the Records.’ For ease of disposition, the
claims will be addressed in the following order:
1. The PCRA Court committed error of law when it denied the Petitioner an evidentiary
hearing and subsequent new trial where itrefutable evidence was presented that trial
counsel’s failure to properly notify the court of and present the Petitioner’s alibi defense
and alibi defense witness at trial, resulted in the Petitioner's wrongful conviction.
4. The PCRA Court committed error of law when it denied the Petitioner an evidentiary
hearing and subsequent new trial where irrefutable evidence was presented that trial
counsel’s failure to provide an expert rebuttal witness, under both state and federal laws,
represented a grave violation of the Petitioner’s due process rights to a constitutionally fair
and correct trial and so undermined the truth determining process that no reliable
adjudication could possibly have taken place.
3. PCRA counsel was ineffective for failing to argue the following claims in the Amended
PCRA Petition:
a. Trial counsel was ineffective for stipulating to the lesser included offenses and
withdrawing all of the pre-trial motions.
b. Trial counsel was ineffective for failing to object to the admission of physical
evidence, absent actual production.
c. Trial counsel was ineffective for failing to call any defense witnesses.
5 In this motion the Petitioner makes a bald assertion that the notes of testimony have been altered to favor the
Commonwealth. The Petitioner bases his assertion on his memory of what transpired during the trial.
3
STATEMENT. OF FACTS
The Superior Court has previously summarized the relevant facts 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 tutned around, a man was in her vehicle. She started screaming
for him to get out. In a statement to police, she described the 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 recovered the stolen vehicle within thirty minutes
of the carjacking at 7:15 am., abandoned on Lenape Road in Philadelphia,
approximately a quarter-mile from the Sunoco Gas Station.
Trooper Andrew Martin responded to the Sunoco Gas Station and obtained
video footage of the incident from the station. A description of the suspect was
generated 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, ie., 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 [the Petitioner]
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 [the Petitioner], 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 [the Petitioner]. When he did, [the Petitioner]
stated he had “cards,” “$10 to $20 to fill your tank up.” Trooper Clarke told [the
Petitioner] he was going to the ATM and contacted his supervisor. He observed
[the Petitioner] 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. The
vehicle moved from the front of the gas station around the corner, The driver, later
identified as [the Petitioner], exited the vehicle and started walking toward the
convenience store at the station. [The Petitioner] was wearing the same black shoes
with red shoelaces visible in the video of the carjacking.
Trooper Holdeman exited his vehicle and identified himself. [The
Petitioner] turned and ran westbound through the parking lot of the gas station
toward an alley. After a brief chase, [the Petitioner] was apprehended. A number
of stolen identification cards and credit cards were recovered from [the Petitioner’s]
person. Complainant's identification cards and credit cards, including the TD Bank
card used at Citgo Gas Station on April 18, 2013, were recovered in the center
console of {the Petitioner’s] Hyundai Santa Fe.
John Milo, Forensic DNA Scientist for the Pennsylvania State Police,
testified that the following swabs were taken from the vehicle: twa 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 visible 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 [the Petitioner],
Complainant, and one random, unselated 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 [the Petitioner], 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
Caucasian population; and 26 quadrillion times more likely to occur under the
scenatio that it is a mixture of DNA originating from [the Petitioner], the
Complainant, and one random, unrelated person as opposed to the scenario that it
5
originated from a mixture of DNA from two random, unrelated people in the
Hispanic population.
Superior Court Opinion, 9/11/2017 at 1-5.
ANALYSIS
1. Timeliness
Under the PCRA, any petition for post-conviction relief, including a second or
subsequent one, must be filed within one year of the date the judgment of sentence becomes
final. 42 Pa.C.S. § 9545(b)(1). Here, the Court resentenced the Petitioner on April 24, 2018, and
the Petitioner filed his PCRA petition twenty two days later on May 16, 2018. The instant
PCRA petition is timely, and can be addressed on the merits.
2. Alibi Defense
The Petitioner’s first claim on appeal is that trial counsel was ineffective for failing to
investigate and call Penny Giggetts, the Petitioner’s mother who was an alibi witness that would
have testified that the Petitioner was asleep at Ms. Giggetts’ house at the time of the robbery.
To raise a successful claim alleging ineffective assistance of counsel, the Petitioner must
show “(1) that the underlying claim is of arguable merit; (2) that counsel’s course of conduct was
without a reasonable basis designed to effectuate his client’s interest; and (3) that the petitioner
was prejudiced by counsel’s ineffectiveness.” Commonwealth v. Bracey, 795 A.2d 935, 942 (Pa.
2001) (quating Commonwealth v. Kimball, 724 A.2d 326, 333 (Pa. 1999).
The law provides that, counsel is presumed to be effective and the defendant bears the
burden of establishing ineffectiveness. Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).
In order to establish that trial counsel’s representation was deficient, the defendant must prove
that the underlying claim has arguable merit and that counsel’s conduct lacked any reasonable
basis. Commonwealth v. Durst, 559 A.2d 504, 505 (Pa. 1989), Further, a defendant cannot be
6
granted any relief absent the additional showing that counsel’s conduct adversely affected the
outcome of the trial. In assessing a claim of ineffectiveness, when it is clear that defendant has
not met the prejudice prong, the court may dispose of the claim on that basis alone, without a
determination of whether the first two prongs have been met. Commonwealth y, Travaglia, 661
A.2d 352, 357 (Pa. 1995). Counsel cannot be ineffective for failing to pursue a meritless claim.
Commonwealth v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003).
In addition to meeting the Strickland/Peirce requirements for ineffectiveness, to establish
that counsel was ineffective for failing to call a witness, the Petitioner must demonstrate that: (1)
the witness existed; (2) the witness was available to testify for the defense; (3) counsel knew of
the witness; (4) the witness was willing to testify for the defense; and (5) the absence of the
witness’s testimony was so prejudicial as to deny him a fair trial. Commonwealth v, Washington,
927 A.2d $86, 599 (Pa. 2007) (citing Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261,
275 (Pa. 2000)).
Furthermore, when a defendant makes a “knowing, voluntary, and intelligent decision
concerning trial strategy” the petitioner waives the right to claim ineffective assistance of
counsel based on that trial strategy. Commonwealth v. Pander, 100 A.3d 622, 642 (Pa. Super.
2014). Specifically, when a defendant is colloquied on the availability of alibi witnesses, and
agrees with trial counsel’s decision not to call the available alibi witnesses, trial counsel cannot
be later found ineffective for failing to call the purported alibi witnesses. Id, at 643,
During initial remarks to the prospective jurors, the Court read Penny Giggetts’ name as a
potential witness listed by the defense. Notes of Testimony (“N.T.”), 3/15/2016 at 20.
Thereafter, upon the Commonwealth resting on their case in chief, the following exchange
occurred:
THE COURT: Are you calling any witnesses?
DEFENSE COUNSEL: No, Your Honor.
THE COURT: Did you discuss that with your client?
DEFENSE COUNSEL: Yes.
THE COURT: Are you satisfied, Mr. Giggetts, with that?
THE PETITIONER: Yes, ] am.
N.T., 3/17/2016 at 6.
The Court directly asked the Petitioner if he was satisfied with the decision to rest
without calling any witnesses, and the Petitioner responded in the affirmative. Therefore, the
Petitioner assented to counsel’s strategy. Pander, 100 A.3d at 642.
Even if on could find that the Court’s colloquy of the Petitioner was insufficient to waive
his ineffective assistance of counsel claim, the Petitioner’s claim fails to meet all of the
requirements of Washington.
Although the Petitioner has satisfied the first four requirements: the witness existed, the
witness was available to testify for the defense; counsel knew of the witness; and, the witness
was willing to testify for the defense; he cannot satisfy the fifth requirement, that the absence of
the witness’s testimony was So prejudicial as to deny him a fair trial.
The affidavit provided by the Petitioner from Penny Giggetts states that the Petitioner
was at home with her on the moming of April 18, 2013, and that Penny Giggetts knows this to be
true because she does not sleep. The affidavit provides no further details.
The evidence presented by the Commonwealth was overwhelming. The Commonwealth
presented video evidence of the Petitioner carjacking the victim. A second video depicts the
Petitioner using the victim’s credit card at a nearby gas station to purchase gas to fill a car
registered to the Petitioner. In both videos, the Petitioner is wearing a distinctive pair of shoes
with red trim. The following day, the Petitioner is arrested wearing the same distinctive pair of
shoes, at the same nearby gas station, standing next to his car, using stolen credit cards to fill up
people’s gas tanks in exchange for cash. Inside the Petitioner’s vehicle, police discovered the
victim’s driver’s license and bank cards. Furthermore, the Petitioner’s DNA was found inside
the victim’s vehicle.
When considering the barebones affidavit provided by the Petitioner’s mother against the
totality of the overwhelming evidence presented by the Commonwealth, it is clear that the
Petitioner was not prejudiced by the absence of the testimony proffered in the affidavit.
Therefore, the Petitioner’s claim has no merit.
3. DNA Expert Testimony
The Petitioner’s second claim is that trial counsel was ineffective for failing to investigate
ihe DNA evidence and to present expert testimony to rebut the Commonwealth’s expert’s
conclusions. Additionally, Petitioner claims that the PCRA court erred in not conducting an
evidentiary hearing to allow a DNA expert consulted by PCRA counsel to refute some of the
expert’s findings.
Trial counsel did not consult a DNA expert. While PCRA counsel did, she did not
request the expert to prepare a formal report and indicated that she had a preliminary email from
the DNA expert, Arthur Young, which she read into the court record. PCRA counsel stated that
she would have the expert prepare a more comprehensive report if the court ordered an
evidentiary hearing. Thereafter, PCRA counsel read the email from Mr. Young into the court
record:
I see an immediate problem, and that's that the report gives a statistical value that
is “stacked,” against the Defendant. Where it calculates the probability of victim
9
plus Defendant versus two unknowns on 4 mixture of at least three people? It's the
victim's car, I presume, so her DNA should be a given, in which case, the formula
is victim plus Defendant versus victim plus one unknown. This would have
dropped the number into the billions range. 1 notice that the report is from 2014
which is interesting because I don't believe PSP -- I guess that is Pennsylvania State
Police -- still has this practice today. I'll compare this against the testimony but at
this point, it is not a question of whether he said anything wrong but how many
wrong things he said. There is no clear third person, only a clear second person.
At best, if you accept what was published in the report as true, then there may be a
third person. The report says that based on the results at genetic loci THO1, D21,
Penta E, D5, D16, VWA, D8, TPOX and FGA, which means that those are the loci
that the calculations are based on. However, at Penta E, there's a 5 that does not
belong to either the Defendant or the victim. At THO1, there is a minor 9.3, which
may or may not have been discounted because it's a minor but that leaves a 7, and
both the victim and the Defendant have a 7. That's like saying I found a black hair
at the crime scene and the suspect has black hair even though the victim has black
hair too, This same thing happened at two other points, TPOX and D8. At D2i,
there's a minor (31) that doesn't belong to either the victim or the Defendant. The
report says that additional minor/less intense alleles were also present in certain
genetic loci which means there are foreign alleles that don't belong to any of the
references we have. The total list of foreign alleles come under five points; D3,
Penta E, THO1, D21 and D7.
N.T., 8/7/2019 at 7-10 (emphasis added).
Notably, the initial findings of Mr. Young would have, at best, changed the statistical
likelihood that it was the Petitioner’s DNA in the victim’s car from the quadrillions to the
billions. The findings did not exclude the Petitioner as a contributor. The evidence would be of
no moment since the DNA evidence was of minimal evidentiary value in light of the independent
overwhelming evidence against the Petitioner.
Furthermore, the Petitioner was not entitled to an evidentiary hearing on the issue. The
right to an evidentiary hearing in a PCRA is not absolute. Commonwealth v. Grayson, 212 A.3d
1047, 1054 (Pa. Super. 2019). The PCRA court may decline to hold an evidentiary hearing if the
petitioner’s claim is patently frivolous. id. As previously established, the Petitioner’s claim had
no merit, therefore the PCRA court acted within its discretion to deny the Petitioner an
evidentiary hearing.
10
argue certain meritorious claims in the Amended Petition. Specifically:
ineffective for stipulating to lesser i
to object to the admission of physical evidence,
trim); and (3) trial counsel was ineffective for failing to call any
Petitioner characterizes as presenting “no cogent defense.
The Petitio
4, Ineffective Assistance of PCRA Counsel
(1) trial counsel was
on Appeal, 11/13/2019 at 3-5.
A claim of ineffective assistance of PCRA counsel raises the issue of a layered
ineffective assistance of counsel claim.
To plead and prove ineffective assistance of counsel a petitioner must
establish: (1) that the underlying issue has arguable merit; (2) counsel's actions
lacked an objective reasonable basis; and (3) actual prejudice resulted from
counsel's act or failure to act. Commonwealth v. Chmiel, 30 A.3d 1111, 1127 (Pa.
2011). Where the defendant asserts a layered ineffectiveness claim he must
properly argue each prong of the three-prong ineffectiveness test for each separate
attorney. Id. at 1128; see also Commonwealth v. Reyes, 870 A.2d 888 (Pa,
2005); Commonwealth v, McGill, 832 A.2d 1014 (Pa. 2003).
Layered claims of ineffectiveness “are not wholly distinct from the
underlying claims{,]” because “proof of the underlying claim is an essential element
of the derivative ineffectiveness claim[.]” Commonwealth v. Collins, 888 A.2d 564,
584 (Saylor, J. concurring); Reyes, at 896 (proving three prong ineffectiveness test
for trial counsel establishes arguable merit to appellate counsel's ineffectiveness).
“In determining a layered claim of ineffectiveness, the critical inquiry is whether
the first attorney that the defendant asserts was ineffective did, in fact, render
ineffective assistance of counsel. If that attorney was effective, then subsequent
counsel cannot be deemed ineffective for failing to raise the underlying issue.”
Commonwealth v. Burkett, 5 A.3d 1260, 1270 (Pa. Super. 2010).
Commonwealth v. Rykard, 55 A.3d 1177, 1189-90 (Pa. Super. 2012).
Supreme Court, appellate counsel is not constitutionally required to raise every possible claim
According to the United States Supreme Court and a plurality of the Pennsylvania
11
ner’s third claim on appeal is that PCRA counsel was ineffective for failing to
neluded offenses; (2) trial counsel was ineffective for failing
absent actual production (the shoes with the red
defense witnesses, which the
” Statement of Matters Complained of
for relief, Commonwealth v. Jones, 815 A.2d 598, 613 (Pa. 2002) (citing Jones v. Barnes, 463
U.S. 745, 750-54 (1983). Furthermore, “cJounsel may forego even arguably meritorious issues
in favor of claims which, in the exercise of counsel’s objectively reasonable professional
judgement, offered a greater prospect of securing relief.” Jones, 815 A.2d at 61 8. The “process
of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far
from being evidence of incompetence, is the hallmark of effective appellate advocacy.” Smith v.
Murray, 477 U.S, 527, 536 (1986) (quoting Barnes, 463 U.S. at 751-52). “Generally, only when
ignored issues are clearly stronger than those presented, will the presumption of effective
assistance of counsel be overcome.” Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986) (quoted
with approval in Smith v. Robbins, 528 U.S. 259, 288 (2000),
As a preliminary matter, PCRA counsel cannot be ineffective simply for failing to raise
every issue that the Petitioner believes was meritorious. Before examining any issue it is crucial
to remember that PCRA counsel is presumed to have been effective. Furthermore, by advancing
only those claims that PCRA counsel believed were meritorious, PCRA counsel was
demonstrating the hallmark of effective appellate advocacy. Consequently, the Petitioner's
claim that PCRA counsel was ineffective is without merit.
A. Trial Counsel was Ineffective for Stipulating to Lesser Included Offenses and PCRA
Counsel was Ineffective for Failure to Raise the Issue.
In the Petitioner’s Response to the 907 Notice he claims that PCRA counsel was
ineffective for failing to assert trial counsel’s ineffectiveness for entering into stipulations with
the Commonwealth to the lesser included offenses of theft, receiving stolen property, theft from
a motor vehicle, access device fraud, and other related minimal offenses. The Petitioner alleges,
12
that in exchange for the stipulations, trial counsel was required to withdraw all of the pre-trial
motions filed by the defense.
The Petitioner misapprehends what occurred at the beginning of the trial. Trial counsel
did not stipulate to any lesser included offenses, the Commonwealth simply chose not proceed
on them. Furthermore, there is no evidence of record of a guid pro quo such that trial counsel
agreed to withdraw pre-trial motions in exchange for the Commonwealth withdrawing the lesser
included offenses. The only discussion which appears of record is that the Commonwealth
indicated that it would not be seeking to admit certain evidence that the defendant wanted
excluded so that the defense then withdrew its motions. N.T., 3/15/16 at 3-4. Therefore, trial
counsel and PCRA counsel cannot be found ineffective.
B. Trial Counsel was Ineffective for Failing to Object to Physical Evidence and PCRA
Counsel was Ineffective for Failure to Raise the issue.
In the Petitioner’s Response to the 907 Notice he claims that PCRA counsel was
ineffective for failing to assert trial counsel’s inefiectiveness for failing to object to admission of
physical evidence, absent actual production. Specifically:
While the “Red Shoes” were seemingly a focal point in which the court determined
that its reasoning for dismissing the petitioner's PCRA petition, because the
defendant was allegedly arrested in a pair of Red Shoes like the ones that the
perpetrator was seen whearing [sic] in the videos, the petitioner emphatically
declares that be in fact was wearing the shoes that he got arrested in at the time of
the trial and therefore, attorney Page was constitutionally ineffective for not
objecting to the shoes not being produced, instead of simply being stated to have
been in the possession of by the Commonwealth, An alleged “Smoking Gun” must
be produced. Attorney Page knew this, but chose to laugh and joke with the
prosecution and take her word when she said that she would bring them in if he
wanted her to. As he did in fact ask where they were. ..
Petitioner’s Statement of Matter’s Complained of on Appeal, November 11, 2019 at 5.
13
Once again the Petitioner misapprehends what occurred. The Commonwealth never
claimed to have possession of the red shoes. The jury was shown video from the incident and
video from the arrest. The jury was able to make a comparison based on the videos and come to
their own conclusion regarding the similarities with regard to the red shoes as well as other
points of comparison between the person who committed the carjacking and the Petitioner.
Therefore, trial counsel and PCRA counsel cannot be found ineffective.
C. Trial Counsel was Ineffective for Failing to Call Any Defense Witnesses and PCRA
Counsel was Ineffective for Failing to Raise the Issue.
In the Petitioner’s Response to the 907 Notice he claims that PCRA counsel was
ineffective for failing to assert trial counsel’s ineffectiveness for not presenting a cogent defense.
The Petitioner specified that a cogent defense would have entailed “appropriate cross-
examination of DNA expert John A. Milo” and presenting counsel’s “declared witnesses.”
Petitioner declares his witnesses as Penny Giggetts, the victim, Krystal Marshall and the
Petitioner.
The Petitioner’s claim is partially belied by the record. PCRA counsel advanced the
claim regarding the DNA expert and Penny Giggetts and the PCRA court addressed them.
As to the victim; she was called as a witness and thoroughly cross-examined. The
Petitioner gives no reason why the defense needed to call her.
As to the Petitioner being called as a witness, he voluntarily declined after being
colloquied by the court. The decision whether or not to testify rests solely on the defendant.
Commonwealth v. Sandusky, 203 A.3d 1033, 1076 (Pa, Super. 2019). Moreover, “where a
defendant voluntarily waives his right to testify after a colloquy, he generally cannot argue that
trial counsel was ineffective in failing to call him to the stand.” Commonwealth v. Rigg, 84 A.3d
141080, 1086 (Pa. Super. 2014). The following colloquy transpired between the court and the
Petitioner:
THE COURT: You need to understand that you have the absolute right to choose
to testify or to choose not to testify, that although your attorney can advise you, in
the end, you must make that decision alone. Do you understand that?
THE DEFENDANT: Yes, ma'am.
THE COURT: Did your attorney discuss the pros and cons, good points and bad
points, about whether or not you should testify?
THE DEFENDANT: Yes, he did, ma’am.
THE COURT: Did you understand everything that he was saying to you?
THE DEFENDANT: Yes, I did, ma'am.
THE COURT: Did he offer you his advice on whether you should testify?
THE DEFENDANT: Yes, he did, ma'am.
THE COURT: Did you make your own decision, however, as to whether or not you
should testify?
THE DEFENDANT: Absolutely.
THE COURT: What is that decision?
THE DEFENDANT: That I will not.
THE COURT: Did anyone promise you anything to get you not to testify?
THE DEFENDANT: No, ma'am.
THE COURT: Did anyone threaten you to get you not to testify?
THE DEFENDANT: No, ma'am,
THE COURT: Are you doing it of your own free will?
THE DEFENDANT: For the most part.
THE COURT: Is it your free choice? Now you know you can do whatever you
want.
THE DEFENDANT: Yes, ma’am.
N.T., 3/17/2016 at 4.
Finally, as to witness, Crystal Marshall, who was interviewed by a State Trooper and not
called for trial, the entirety of her statement is as follows:
1 was in the Sunoco. I came out and a car flew by. I thought it was being chased by
police, It was driving at a high rate of speed. I saw a B/M from the side driving the
car. He looked tall and had brown skin. The car was gray. Then I saw (sic) lying on
the ground. I went back into the store to tell them to call police. I thought it was a
hit and run accident. I then went to help Lisa.
Commonwealth Exhibit 1, at 27.
15
The Petitioner claims that this witness would not have been able to identify him and that
the description she gave did not fit the Petitioner. While it is true that his witness gave a very
general description based on her limited view inside a speeding car; “he looked tall and had
brown skin,” it is not true that her generic description did not fit the Petitioner. Marshall’s
testimony would not have inculpated nor exculpated the Petitioner. Therefore, her absence had
no effect on the outcome of this trial. As such, trial counsel and PCRA counsel cannot be found
ineffective.
CONCLUSION
Based on the foregoing, the court’s denial of Charles Giggetts’ PCRA Petition should be
affirmed.
By the Court:
} i
Kad? Mh
Robe Marie DeFino-Nastasi, J.
16
Commonwealth v. Charles Giggetts
CP-51-CR-0007804-2013
Opinion
Proof of Service
L hereby certify that ] am this day serving the foregoing Court Order upon the person(s),
and in the manner indicated below, which service satisfies the requirements of Pa.R.CrimP. 114:
Petitioner: Charles Giggetts
DP0008
SCI - Albion
10745 Route 18
Albion, PA 16475-0001
Type of Service: Certified mail
District Attorney: Appeals Unit
Philadelphia District Attorney’s Office
3 South Penn Square
Philadelphia, PA 19107
Type of Service: Inter-Office mail
Date: 2/7/2020
Jota.
Bryai Foster
Law Clerk to the
Honorable Rose Marie DeFino-Nastasi