Com. v. Giddings, G.

J-A29010-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY RAHEEM GIDDINGS :
:
Appellant : No. 3493 EDA 2016
Appeal from the Judgment of Sentence January 21, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0015079-2012
BEFORE: LAZARUS, J., PLATT*, J., and STRASSBURGER*, J.
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 03, 2018
Gregory Raheem Giddings appeals from the judgment of sentence,
imposed in the Court of Common Pleas of Philadelphia County, following his
convictions for second-degree murder, burglary, robbery, conspiracy to
commit burglary and robbery, and two counts of Violation of the Uniform
Firearms Act (“VUFA”).1 After careful review, we affirm.
On September 19, 2014, a jury found Giddings guilty of the foregoing
charges following a trial presided over by the Honorable Rose Marie Defino-
Nastasi. On January 21, 2015, the trial court sentenced Giddings to life
imprisonment for the second-degree murder conviction; he received no
____________________________________________
118 Pa.C.S.A. § 2502, 18 Pa.C.S.A. § 3502, 18 Pa.C.S.A. § 3701, 18 Pa.C.S.A.
§ 903, 18 Pa.C.S.A. § 6106, and 18 Pa.C.S.A. § 6108, respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A29010-17
further penalty for the remaining convictions.2 On September 3, 2015,
Giddings filed a timely first pro se petition under the Post-Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. § 9541-9546, in which he claimed that counsel was
ineffective for failing to file a notice of appeal. The PCRA court appointed
David Rudenstein, Esquire, as Giddings’ counsel, and on May 22, 2016,
Giddings filed an amended petition asserting that trial counsel provided
ineffective assistance when he failed to file his requested appeal.3 On October
13, 2016, Giddings’ PCRA petition was granted, and his appellate rights were
reinstated nunc pro tunc. Both Giddings and the trial court have complied
with Pa.R.A.P. 1925. On appeal, Giddings raises the following issues:
1. The evidence was insufficient to sustain the verdict of guilty as
the Commonwealth failed to prove beyond a reasonable doubt
that Giddings engaged in a burglary or robbery and the death
of the victim did not occur during the course of a felony.
____________________________________________
2 On February 20, 2015, thirty days after Giddings’ sentencing hearing, trial
counsel W. Fred Harrison, Jr., Esquire, filed an untimely post-sentence motion
requesting a new trial. In his motion, Giddings alleged that (1) the verdict
was against the weight of the evidence, and (2) the evidence was insufficient
to support the verdict. Attorney Harrison titled the motion “POST TRIAL
MOTIONS NUNC PRO TUNC,” however, there is no indication in the record that
the trial court granted Giddings leave to file a post-sentence motion nunc pro
tunc. Accordingly, the motion was not entered in the certified docket. See
Pa.R.Crim.P. 720(A)(1) (“[A] written post-sentence motion shall be filed no
later than 10 days after imposition of sentence.”)
3 Giddings’ amended PCRA petition only sought the following relief: (1) an
evidentiary hearing to determine whether Giddings actually requested trial
counsel file an appeal, and (2) restoration of appellate rights nunc pro tunc.
Giddings’ amended petition did not seek restoration of his rights to file a post-
sentence motion. The Commonwealth did not oppose Giddings’ amended
PCRA petition.
-2-
J-A29010-17
2. The verdict was against the weight of the evidence as the
evidence only supports that Giddings was present at the scene
but not that he was committing a felony.
Brief of Appellant, at 6 (reworded for clarity).
Our standard of review in reviewing sufficiency claims is well settled:
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence admitted at trial
in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying the
above test, we may not weigh the evidence and substitute our
judgment for the fact-finder. In addition, we note that the facts
and circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the finder
of fact while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), quoting
Commonwealth v. Estepp, 17 A.3d 939, 943-44 (Pa. Super. 2011).
Here, the evidence presented at trial supported a finding that Giddings
set the warehouse robbery in motion, after which he fired two shots at the
fleeing victim; thus, he is responsible for the resultant death. See Trial Court
Opinion, 3/22/16, at 8-13.
Upon review of the parties’ briefs, the record, the relevant law and Judge
Defino-Nastasi’s decision, we find that the trial court’s well-reasoned decision
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J-A29010-17
comprehensively and correctly disposes of Giddings’ sufficiency issue on
appeal. Accordingly, we affirm in part based on Judge Defino-Nastasi’s
decision. We direct counsel to attach a copy of that opinion in the event of
further proceedings in this matter.
Giddings next claims that his conviction is against the weight of the
evidence; however, Giddings has waived this claim on appeal. To preserve a
challenge to the weight of the evidence, a defendant must raise the claim
before the trial court in a motion for a new trial: (1) orally, before sentencing;
(2) by written motion, before sentencing; or (3) in a post-sentence motion.
Pa.R.Crim.P. 607. An appellate claim raising the weight of the evidence is
therefore a challenge to the trial court’s exercise of discretion in ruling on the
claim in the first instance, and must be preserved below. Commonwealth
v. West, 937 A.2d 516, 521 (Pa. Super. 2007).
Instantly, Giddings did not raise a weight claim at any time during trial
or by filing a post-sentence motion pursuant to Pa.R.Crim.P. 720(a).
Additionally, Giddings did not seek reinstatement of his post-sentence motion
rights in either his pro se PCRA petition or his counseled petition.4 Therefore,
____________________________________________
4 In any event, Giddings’ belated weight claim is meritless. This court’s
“standard of review when presented with a weight of the evidence claim is
distinct from the standard of review applied by the trial court. Appellate
review of a weight claim is a review of the exercise of discretion, not of the
underlying question of whether the verdict is against the weight of the
evidence.” Commonwealth v. Mucci, 143 A.3d 399, 410-11 (Pa. Super.
2016), quoting Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).
“In order for an appellant to prevail on a challenge to the weight of the
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J-A29010-17
Giddings has waived his weight claim. See Commonwealth v. Washington,
825 A.2d 1264, 1265-66 (Pa. Super. 2003).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/3/2018
____________________________________________
evidence, ‘the evidence must be so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.’” Id. at 411, quoting
Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).
Here, the jury believed the Commonwealth’s evidence proved beyond a
reasonable doubt that Giddings shot and killed the victim during the
commission of an armed robbery. Trial Court Opinion, 11/22/16, at 13-14. It
is within the province of the jury as fact-finder to resolve all issues of
credibility, resolve conflicts in evidence, make reasonable inferences from the
evidence, believe all, none, or some of the evidence, and ultimately adjudge
defendant guilty. Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa.
Super. 2006). We discern no abuse of discretion by the trial court in finding
that the verdict was not so contrary to the evidence as to shock one’s sense
of justice.
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0035_Opinion
Circulated 12/18/2017 03:53 PM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0015079-2012
v. 3493 EDA 20 lo
GREGORY R. GIDDINGS
(aka Gregory Raheem Giddings)
FILED
OPINION MAR 22 20�
Rose Marie Defino-Nastasi, J. Criminal Appeals Unit
First Judicial District of PA
PROCEDURAL HISTORY
On September 19, 2014, the Defendant was found guilty after a jury trial, presided over
by the Honorable Rose Marie Defino-Nastasi, of Second Degree Murder, 18 Pa.C.S. § 2502, as
a felony of the first degree; Burglary, 18 Pa.C.S. § 3502, as a felony of the first degree; Robbery,
18 Pa.C.S. § 3701, as a felony of the first degree; Conspiracy to Commit Burglary and Robbery,
18 Pa.C.S. § 903, each a felony of the first degree; Violation of the Uniform Firearms Act
(VUFA), 18 Pa.C.S. § 6106, as a felony of the third degree; and VUFA, 18 Pa.C.S. § 6108, as a
misdemeanor of the first degree. N.T. 01/19/15 at pp. 145-148.
On January 21, 2015, the Defendant was sentenced to life imprisonment for the second
degree murder conviction; and no further penalty for the remaining convictions.
On September 3, 2015, the Defendant filed a timely prose Post-Conviction Relief Act
(PCRA) petition, claiming that counsel was ineffective for failing to file a notice of appeal.
David Rudenstein, Esq. was appointed PCRA counsel and filed an amended petition requesting
Defendant's appellate rights to be reinstated nunc pro tune. On October 13, 2016, Defendant's
CP·St-Cll-OOt507!J.20t2 C-011�" v. Ciddmgs, G86 A.3d 272, 275-76 (Pa. Super. 2014) (citing Com. v.
9
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Bostick, 958 A.2d 543, 560 (Pa. Super. 2008), app. denied, 987 A.2d 158 (Pa. 2009)
(quoting Com. v. Smith, 956 A.2d 1029, 1035-36 (Pa. Super. 2008) (en bane).
"To secure a conviction for second-degree murder, the Commonwealth must prove that
the defendant committed a murder while [he] was engaged ... in the perpetration of a felony."
18 Pa.C.S. § 2502(b) (internal quotation marks omitted). "'Perpetration of a felony' is statutorily
defined in a very broad manner, encompassing, inter alia, '[t]he act of the defendant in engaging
in ... the commission of, or an attempt to commit, ... robbery ... " Commonwealth v. Miller, 35
A.3d 1206, 1212 (Pa. 2012) (quoting 18 Pa.C.S. § 2502(d).
A person commits robbery if, "in the course of committing a theft, he: (i) inflicts serious
bodily injury upon another; (ii) threatens another with or intentionally puts him in fear of
immediate serious bodily injury; (iii) [or] commits or threatens immediately to commit any
felony of the first or second degree." 18 Pa.C.S. § 3701(a)(l)(i)-(iii). "An act shall be deemed 'in
the course of committing a theft' if it occurs in an attempt to commit a theft or in flight after the
attempt or commission." Id. at§ 3701(a)(2). A theft means taking unlawful control of or
exercising unlawful control over the movable property of another with intent to deprive him
thereof. See 18 Pa.C.S. § 3921. It is not necessary that a defendant have successfully completed a
theft in order to commit robbery. See Com. v. Robinson, 936 A.2d 107, 110 (Pa. Super. 2007).
The elements of the offense of burglary are defined as the entry of a building or occupied
structure thereof, with the intent to commit a crime therein, unless the premises are at the time
open to the public or the actor is licensed or privileged to enter. 18 Pa.C.S. 3502. The specific
intent required to make out a burglary charge may be found in defendant's words, conduct, or
from the attendant circumstances together with all reasonable inferences therefrom.
10
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Commonwealth v. Atkins, 232 Pa.Super, 206, 335 A.2d 375 (1975); Commonwealth v. Carroll,
412 Pa. 525, 194 A.2d 911 (1963).
A defendant also may be guilty of robbery or burglary as an accomplice or co-conspirator
as long as the defendant possessed the requisite mens rea to commit the criminal act and the
additional elements of accomplice liability or conspiratorial liability are established. Com. v.
Mitchell, 135 A.3d 1097, 1102 (Pa. Super.), app. denied, 145 A.3d 725 (Pa. 2016). Conspiracy is
defined as follows:
(a) Definition of conspiracy.-A person is guilty of conspiracy with another
person or persons to commit a crime if with the intent of promoting or facilitating
its commission he:
(1) Agrees with such other person or persons that they or one or more of them
will engage in conduct which constitutes such crime or an attempt or
solicitation to commit such crime; or
(2) Agrees to aid such other person or persons in the planning or commission
of such crime or of an attempt or solicitation to commit such a crime. .!
,!
.I
"n,,
18 Pa.C.S. § 903(a). Where a conspiracy has multiple criminal objectives, a person is guilty of '!
only one conspiracy so long as such multiple crimes are the object of the same agreement or
p
continuous conspiratorial relationship. 18 Pa.C.S. § 903(c). Even if the conspirator did not act as :I
!
a principal in committing the underlying crime, he is still criminally liable for the actions of his '
.1
co-conspirators in furtherance of the conspiracy. Com. v. McCall, 911 A.2d 992, 996-97 (Pa. '
Super. 2006) (citation omitted).
'1:
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It is clear that sufficient evidence was presented at trial to support the Defendant's
conviction for burglary of the Budd plant. The Defendant and his co-conspirators broke into the
building and retrieved copper piping from throughout the premises. The evidence established
that no permission was given to any of the co-conspirators to enter the premises or to remove any
items. The manholes in the factory were taken apart in order to remove the copper piping, after
which the pipes were taken elsewhere to be sold.
The evidence at trial showed that, initially, the Defendant and his co-conspirators broke
into the Budd plant to steal copper. However, that plan was revised once the Defendant and his
co-conspirators determined that the decedent and Kashief Bailey were not going to give them
their cut of the proceeds. At that point, the Defend ant decided that he would wait until the
decedent and Bailey cut the copper and then take it from them by force with a gun. According to
Brittingham, when Brittingham suggested they wait and take what was left behind the Defendant
said, "[N]o, fuck that, we wiJl take the whole thing."
The Defendant's own statement placed himself on the ramp shooting the gun. Bailey
testified that he saw the Defendant jump in front of his vehicle and point a black handgun at the
decedent and start shooting. Brittingham heard the Defendant yell "drop it" or "stop" before the
gunshots. Once the Defendant engaged in this action he became the principal actor in the robbery
and therefore the second degree murder.
The Defendant claims that he fired only after Bailey attempted to hit him with the vehicle
and only at the tires. This is a distinction without a difference under the doctrine of felony
murder. There is no requirement of specific intent. The malice for second degree murder is the
commission of the underlying robbery. Furthermore, the gunshot wound to the decedent's back
12
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' ·----�1.ol;....u"(._ _, _J ; , 1,- .
and the damage to the car belie this assertion. There were two bullet holes on the passenger's
side and one to the windshield. Since the Defendant set the robbery in motion, he is liable for the
death regardless. The evidence viewed in the light most favorable to the Commonwealth as
verdict winner, was sufficient to sustain the jury's verdict of guilt.
· Issue II
Defendant argues that the verdict was against the weight of the evidence because the
Commonwealth failed to prove beyond a reasonable doubt the charges of murder in the second
degree, robbery, burglary and conspiracy to commit robbery and burglary.
The weight of the evidence is exclusively for the finder of fact who is free to believe all,
part, or none of the evidence and to determine the credibility of witnesses. Com. v. Devine, 26
A.3d 1139, 1147 (Pa. Super. 2011), app. denied, 42 A.3d 1059 (Pa. 2012) (citations omitted).
"[A] true weight of the evidence challenge concedes that sufficient evidence exists to sustain the
verdict but questions which evidence is to be believed." Com. v. Thompson, 106 A.3d 742, 758
(Pa. Super. 2014). Accordingly, "[ojne of the least assailable reasons for granting or denying a
new trial is the lower court's conviction that the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the interest of justice." Com. v. Clay, 64 A.3d
1049, 1055 (Pa. 2013). A trial judge should not grant a new trial due to "a mere conflict in the
testimony or because the judge on the same facts would have arrived at a different conclusion."
Clay, 64 A.3d at I 055. Instead, the trial court must examine whether "notwithstanding all the
facts, certain facts are so clearly of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice." id c11 1055. Only where the jury verdict "is so
contrary to the evidence as to shock one's sense of justice" should a trial court afford a Defendant
a new trial. Id
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The weight of the evidence is exclusively for the finder of fact. The jury's verdict in this
case signifies that it believed the overwhelming direct and circumstantial evidence which proved
beyond a reasonable doubt that the Defendant shot and killed the decedent while he was engaged
in the commission of an armed robbery. The mere conflict in the testimony as to whether the
Defendant aimed to shoot at the tires of the vehicle to avoid being hit or at the decedent is
irrelevant to that determination. It is evident that the jury verdict is not so contrary to the
evidence as to shock one's sense of justice, and therefore, the verdict was not against the weight
of the evidence.
CONCLUSION
Based on the foregoing, the judgment of sentence of the trial court should be affirmed.
By the Court:
I ose Marie Def'ino-Nastasi, J.
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:_ .;;...._.___._ .... -.... ·-------'-----·�... ·.· . ' _.... .....
Commonwealth v, Gregory R. Giddings
CP-Sl-CR-0015079-2012
Opinion
Proof of Service
I hereby certify that I 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.Crim.P. 114:
Defendant: Gregory R. Giddings, L W 1024
SCI Rockview
1 Rockview Place
Box A
Bellefonte, PA 16823
Type of Service: () Personal (x) First Class Mail () Other, Please Specify:
Counsel: David Rudenstein, Esq.
9411 Evans Street
Philadelphia, PA 19115
Type of Service: () Personal (x) First Class Mail () Other, Please Specify:
District Attorney: Philadelphia District Attorney's Office
Widener Bldg.
3 South Penn Square
Philadelphia, PA 19107
Type of Service: ( ) Personal ( ) First Class Mail (x) Inter-Office
Date: 03/22/17
1, sq.
Law Clerk to the onorable Rose Marie Defino-Nastasi