Com. v. Wiggins, F.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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