Com. v. Giddings, N. ( 2021 )

J-S12011-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NELSON GIDDINGS :
:
Appellant : No. 1577 EDA 2020
Appeal from the Order Entered August 6, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003119-2018
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED: JUNE 3, 2021
Nelson Giddings appeals nunc pro tunc from the order,1 entered in the
Court of Common Pleas of Philadelphia County, granting him nunc pro tunc
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1 On September 30, 2020, our Court issued a rule to show cause (RTSC) as to
why the instant appeal should not be quashed because Giddings is not an
aggrieved party from the August 6, 2020 order granting him nunc pro tunc
relief. See Pa.R.A.P. 501. While counsel filed a response that did not directly
address the concern in our RTSC, on December 7, 2020, our Court entered an
order informing the parties that the issue raised in the RTSC “will be referred
to the panel assigned to decide the merits of the appeal.” Order, 12/7/20.
We note that “[i]t is implicit in Pennsylvania Rule of Appellate Procedure 904,
which governs the content of the notice of appeal, that the correct date of the
order appealed should be included in the notice of appeal.” Commonwealth
v. Martin, 462 A.2d 859, 860 (Pa. Super. 1983), overruled on other grounds,
Commonwealth v. Graves, 508 A.2d 1198 (Pa. 1986). Here, the notice of
appeal states that the appeal is from the August 6, 2020 order—granting
Giddings nunc pro tunc appellate rights—rather than from his underlying
judgment of sentence. On that basis alone, we could quash this appeal.
However, we are cognizant of the fact that our rules of appellate procedure
“shall be liberally construed to secure the just, speedy[,] and inexpensive
(Footnote Continued Next Page)
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rights to appeal from his June 21, 2019 judgment of sentence. After careful
review, we affirm.
On April 8, 2019, Giddings entered an open guilty plea to third-degree
murder and related offenses in connection with the death of a sixty-five-year-
old woman who he fatally shot three times in the abdomen and torso. The
facts underlying this matter were set forth by the trial court as follows:
On Friday, February 3, 2017, at approximately 8:28 p.m., there
was a well-being check for 327 North Holly Street, [where the
decedent, Winifred Harris, lived.] When officers arrived, they
noticed there was a window open in the back and they were unable
to get into any of the doors of the home. The officers went to the
back of that property and gained access to the property through
the second story window, which led them to the bathroom and
into the hallway of the decedent’s home.
The officers found [the decedent’s] body just inside of her
bedroom, which is in the front of the property. It was apparent
to the officers at the time that she was suffering from multiple
gunshot wounds. The medical examiner’s office arrived and
pronounced her dead on the scene.
[Philadelphia Homicide] Detective Tolliver investigated this case
and found the following: []n the late hours of February 1, 2017,
going into the early hours of February 2, 2017, Lakesha [sic]
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determination of every matter.” Pa.R.A.P. 105. Here, Giddings filed his notice
of appeal within 30 days of the date that his appellate rights were reinstated
nunc pro tunc. See Pa.R.A.P. 903 (time for appeal). Notably, Pa.R.A.P. 902
states that the “[f]ailure of an appellant to take any step other than the timely
filing of a notice of appeal does not affect the validity of the appeal, but it is
subject to such action as the appellate court deems appropriate, which may
include, but is not limited to, remand of the matter to the lower court so that
the omitted procedural step may be taken.” Pa.R.A.P. 902 (emphasis added).
Here, it is obvious from Giddings’ appellate brief, as well as the criminal
docketing statement indicating that he is challenging the discretionary aspect
of his sentence on appeal, that Giddings is appealing from his June 21, 2019
judgment of sentence. Therefore, we decline to quash the instant appeal.
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McGruder, [Giddings], and Isaiah Reels went to . . . 300 North
Busti Street and [had] a conversation about robbing and
burglarizing a man [named Theodore Williams, or Teddy.] He was
known to keep drugs and money in the backyard of his property
on Holly Street, and was [the decedent’s neighbor.] [Giddings,
McGruder, and Reels] . . . drove to 41st Street, which is around
the corner from [the decedent’s home. Giddings] then exited the
vehicle with Reels. They walked down an alley near the back of
the properties. Reels acted as a lookout for [Giddings], and
[Giddings] went to the back where he drew out a firearm prior to
entering the home.
[Giddings] went into the back of the property where [the
decedent] lived and entered her house through that second story
window, using a crowbar. [U]pon entering the home, [the
decedent was there, and she was awake. Giddings] shot her three
times. He shot her [once] in the torso [and twice in the abdomen].
Two of those shots were fatal.
[As Giddings left the decedent’s home,] there was a 911 call from
a neighbor in which she reported to police that she heard screams
and cries for help from [the decedent. Giddings got] into the
vehicle with McGruder and also met up with Reels. . . . [S]everal
days later, the three convened again and [Giddings] told all of
them that he had shot the [decedent]. He told them he got the
wrong house.
[Giddings made] . . . phone calls in Delaware County where . . .
he would talk about his involvement in this case. He sent a letter
to McGruder talking about his involvement in the case, and
eventually [gave] a statement to Detective Tolliver where he
admitted all but shooting [the decedent]. He said that it was him,
that he was there, but refused to acknowledge the fact that he
went into the home.
[Giddings] is on video. . . . [The video] shows [Giddings] going
up [a T-bone alley. Reels and [Giddings] go down an alley but
then Giddings goes] into that back access area. He [goes] off
screen . . . for about an hour until that 911 call comes [in.] He
then reappeared in the alley, walked out with his gun still in his
hand. The time [that Giddings] left corresponds directly to when
that 911 call comes [in].
[Giddings] does not have a license to carry a firearm, and he is
also a convicted felon, which would make [him] statutorily
ineligible . . . to have that firearm in the first place.
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Trial Court Opinion, 10/10/19, at 2-3 (citation and indentations omitted).
On April 8, 2019, Giddings entered an open guilty plea to third-degree
murder,2 burglary,3 robbery,4 conspiracy to commit burglary,5 possession of
an instrument of crime (PIC),6 and two firearms offenses.7 On June 21, 2019,
the trial court sentenced Giddings to an aggregate sentence of 35-70 years’
imprisonment. Giddings filed a timely post-sentence motion to reconsider his
sentence, which the trial court denied. Giddings then filed an untimely direct
appeal, which our Court quashed on March 12, 2020. See Order, 3/12/20.
Giddings filed a petition to reinstate his appellate rights nunc pro tunc, which
the trial court granted on August 6, 2020. He then filed a timely notice of
appeal, see supra at n.1, and court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. On appeal, Giddings presents
one issue for our consideration: “Whether the trial court erred in imposing an
unreasonable sentence that does not comport with the applicable sentencing
guidelines.” Appellant’s Brief, at 3.
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2 18 Pa.C.S. § 2502(c).
3 18 Pa.C.S. § 3502(a)(11).
4 18 Pa.C.S. § 3701(a)(11).
5 18 Pa.C.S. § 903.
6 18 Pa.C.S. § 907(a).
7 18 Pa.C.S. § 6108 (carrying firearms in public in Philadelphia); id. at §
6106(a)(1) (firearms not to be carried without license).
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A challenge to the discretionary aspects of sentencing is not an appeal
guaranteed of right; rather, a defendant’s appeal is considered a petition for
permission to appeal. Commonwealth v. Williams, 562 A.2d 1385, 1386-
87 (Pa. Super. 1989) (en banc). An objection to the discretionary aspect of
sentencing is waived if it is not raised at the sentencing hearing or in a motion
to modify sentencing. Commonwealth v. Anderson, 830 A.2d 1013, 1017
(Pa. Super. 2003). An appellant who challenges the discretionary aspects of
his sentence must include in his brief a concise statement of the reasons relied
upon for allowance of appeal. Pa.R.A.P. 2119(f). In addition, appellate review
will only be granted if the appellant raises a substantial question. 42 Pa.C.S.A.
§ 9781(b); Commonwealth v. Byrd, 657 A.2d 961, 963 (Pa. Super. 1995);
Williams, 562 A.2d at 1387. The existence of a substantial question must be
determined on a case-by-case basis. Commonwealth v. Cruz-Centeno,
668 A.2d 536, 545 (Pa. Super. 1995).
Giddings filed a timely post-sentence motion requesting the court
reconsider his sentence. Additionally, he has filed a timely notice of appeal
and has also included in his brief a concise statement of reasons relied upon
for appeal pursuant to Rule 2119(f). Accordingly, we must now determine
whether Giddings has raised a substantial question for our review.
In his Rule 2119(f) statement Giddings claims that:
At the earliest, [he] will be in his mid-seventies before becoming
eligible for parole [and that d]espite [his] tendering a non-
negotiated/open guilty plea, and expressing sincere remorse at
the time of sentencing for his actions that led to decedent’s death,
the sentence imposed is a de facto life sentence, as there is only
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a slim probability that [he] will live to see parole as the National
[C]enter for Health Studies places the average life expectancy for
black males at 71.8 years.
Appellant’s Brief, at 8-9.
We find that Giddings has presented a substantial question invoking our
appellate jurisdiction of his discretionary sentencing claim. Commonwealth
v. Foust, 163 A.3d 410 (Pa. 2017). However, we agree with the trial court
that the claim has no merit.
Here, the sentencing court considered: the seriousness of crime (the
murder of an unarmed sixty-five year old woman during a botched attempted
robbery of the decedent’s neighbor); a pre-sentence investigation (PSI)
report;8 mental health reports; and various mitigating factors (including
Giddings’ history of being abused as a child both mentally and physically and
his post-traumatic stress disorder). Moreover, the trial judge sufficiently
explained her reasons, on the record, for imposing an aggravated-range
sentence on Giddings’ conspiracy conviction, which included Giddings’ lack of
remorse, failed past attempts at rehabilitation, and lengthy criminal history.
See 42 Pa.C.S. § 9721(b).
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8 Where, as here, the court is in possession of a presentence report (PSI), we
“presume that the sentencing judge was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” Commonwealth v. Watson, 228 A.3d
928, 936 (Pa. Super. 2020), quoting Commonwealth v. Devers, 546 A.2d
12, 18 (Pa. 1988).
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In Foust, supra, our Supreme Court concluded that we “must consider
the individual sentences, not the aggregate, to determine if the trial court
imposed a term-of-years sentence which constitutes a de facto life sentence.
Id. at 438. Here, the trial court imposed the following sentences:
• Third-degree murder – 20-40 years’ imprisonment (standard-range
sentence);
• Burglary – 5-10 years’ imprisonment (mitigated-range sentence);
• Conspiracy (burglary) – 5-10 years’ imprisonment (aggravated-range
sentence);
• VUFA § 6105 violation – 5-10 years’ imprisonment (standard-range
sentence).9
Viewing Giddings’ sentences, individually, as we must under Foust, we
conclude that the trial court’s aggregate sentence was not an abuse of
discretion. Commonwealth v. Antidormi, 961 A.2d 884, 887 (Pa. Super.
2008) (reviewing court gives deference to “sentencing court . . . as [the latter]
is in the best position to view the defendant’s character, displays of remorse,
defiance or indifference, and the overall effect and nature of the crime” and
does “not disturb the [latter’s] judgment absent a manifest abuse of
discretion”); Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super.
1999) (en banc) (“Sentencing is a matter vested in the sound discretion of the
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9 Giddings also entered open guilty pleas to robbery, PIC, and section 6106
and 6108 VUFA violations, but received no penalty for those offenses.
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sentencing judge, and a sentence will not be disturbed on appeal absent a
manifest abuse of discretion.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/21
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