Com. v. Giddings, G.

CourtSuperior Court of Pennsylvania
DecidedJanuary 3, 2018
Docket3493 EDA 2016
StatusUnpublished

This text of Com. v. Giddings, G. (Com. v. Giddings, G.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Com. v. Giddings, G., (Pa. Ct. App. 2018).

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

-3- 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.

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