J-S38020-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GARTH HIGGIN : : Appellant : No. 635 EDA 2025
Appeal from the Judgment of Sentence Entered October 18, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005390-2021
BEFORE: McLAUGHLIN, J., KING, J., and BENDER, P.J.E.
MEMORANDUM BY KING, J.: FILED FEBRUARY 27, 2026
Appellant, Garth Higgin, appeals from the judgment of sentence entered
in the Philadelphia County Court of Common Pleas, following his jury trial
convictions for attempted murder1 and related offenses. We affirm.
The trial court opinion set forth the relevant facts of this appeal as
follows:
A. The Shooting Incident
Video footage from surveillance cameras at the Sunoco gas station located on the corner of Hunting Park Avenue and Broad Street in Philadelphia shows that an Audi SUV drove into the gas station’s parking lot at approximately 8:15 p.m. on October 28, 2020. The footage shows a man, later identified as [Appellant], walk from the area of the parked Audi to the entrance area of the gas station’s mini mart. [Appellant] was wearing a black Golden State Warriors hat, a yellow shirt, dark-colored jeans with rips in the front, and ____________________________________________
1 18 Pa.C.S.A. § 901(a) (section 2502 related). J-S38020-25
tan chukka boots. A group of unknown males stood near [Appellant] at the entrance area of the mini-mart, and after about a minute, the group of males walked off-camera towards the area where the Audi was parked. About 90 seconds later, the Audi sped out of the parking lot, driven by an unknown person. [Appellant] chased after the Audi on foot but was unable to catch up to it.
Less than a minute later, [Appellant] approached the front passenger side door of a minivan in the gas station’s parking lot. Some of the same males who had earlier walked together towards the Audi were inside the minivan. [Appellant] grabbed one of the males from the minivan, brandished a firearm, and dragged the male through the gas station parking lot towards a sidewalk near the road. Kareem Rawlings was later identified as the male grabbed by [Appellant] from the minivan.
As [Appellant] dragged Mr. Rawlings to the sidewalk near the street, [Appellant] struck Mr. Rawlings repeatedly in the head. When they reached the sidewalk, [Appellant] continued to strike Mr. Rawlings on his head, knocking him to the ground. [Appellant] then shot his firearm at Mr. Rawlings multiple times while standing directly next to him. After suffering gunshots to his head, Mr. Rawlings got up and ran away onto the street.
B. The Post-Shooting Investigation
Soon after the shooting, Mr. Rawlings flagged down police officers in a patrol car. Mr. Rawlings was bleeding from his face and holding his eye. He explained to the officers that he had just been shot in the eyes and could not see. The officers immediately transported Mr. Rawlings to the closest hospital.
At the hospital, Mr. Rawlings received treatment for gunshot wounds to his left eye, left ear, right cheek, back, shoulder and neck. After doctors determined that the injury to Mr. Rawling’s eye was inoperable, doctors surgically removed Mr. Rawling’s left eyeball from his eye socket.
Police responded to the scene of the shooting and recovered surveillance video footage from multiple cameras at the
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Sunoco gas station. On October 29, 2020, the day after the shooting, Officer Paniagua and his partner encountered an abandoned Audi SUV that had crashed into a sidewalk pole. The Audi was found about two miles away from the Sunoco gas station. Records showed that the registered owner of the Audi was a woman (“T.S.”), and that the woman was married to [Appellant]. After reviewing [Appellant’s] driver’s license photograph and surveillance videos of the shooter, Detective Falcone identified [Appellant] as a suspect for the shooting.
On October 30, 2020, detectives executed a search warrant at [Appellant’s] home and recovered clothing items that appeared to be the same items worn by the shooter, including a black Golden State Warriors hat, dark-colored jeans with rips in the front, and a pair of tan boots. Police also found a piece of mail bearing [Appellant’s] name with his home address.
(Trial Court Opinion, filed 4/22/25, at 2-5) (internal footnotes and record
citations omitted).
The Commonwealth filed a criminal complaint against Appellant on
October 30, 2020. Thereafter, the case experienced delays due to the
pandemic and certain continuance requests. On May 16, 2024, Appellant filed
a pretrial motion to dismiss the charges, pursuant to Pa.R.Crim.P. 600. The
court conducted a Rule 600 hearing on May 24, 2024. At the conclusion of
the hearing, the court denied Appellant’s Rule 600 motion. Appellant’s jury
trial commenced on May 28, 2024.
Following trial, the jury convicted Appellant of attempted murder and
related offenses. On October 18, 2024, the court sentenced Appellant to an
aggregate term of twenty (20) to forty (40) years’ imprisonment. Appellant
timely filed a post-sentence motion on October 28, 2024. In it, Appellant
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alleged that the court imposed an excessive sentence considering Appellant’s
background, remorse, and potential for rehabilitation. On February 13, 2025,
the court denied Appellant’s post-sentence motion.
Despite having counsel of record, Appellant timely filed a pro se notice
of appeal on February 25, 2025. On March 6, 2025, the court ordered
Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained
of on appeal. Appellant responded by filing a request to proceed pro se in this
Court. On April 28, 2025, we remanded the matter for an on-the-record
examination of Appellant’s waiver of counsel, pursuant to Commonwealth v.
Grazier, 552 Pa. 9, 713 A.2d 81 (1998). The trial court scheduled the
Grazier hearing for May 19, 2025, but Appellant refused to participate. On
June 2, 2025, this Court ordered Appellant to continue with counsel on
appeal.2
Appellant now raises the following issues for this Court’s review:
The sentence imposed on [Appellant] was harsh and excessive and an abuse of discretion since the [trial] court failed to properly consider all of the sentencing factors of 42 Pa.C.S.A. § 9721(b) or any mitigating evidence when it imposed the sentence in question.
The evidence introduced at trial and all reasonable inferences derived from the evidentiary record, viewed in the light most favorable to the Commonwealth as verdict ____________________________________________
2 While Appellant’s request to proceed pro se was pending, trial counsel filed
a motion to withdraw on March 7, 2025. On March 12, 2025, the trial court permitted trial counsel to withdraw. The court also appointed current counsel to represent Appellant on appeal. That same day, current counsel timely filed a Rule 1925(b) statement on Appellant’s behalf.
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winner, is insufficient to establish all elements of attempted murder beyond a reasonable doubt, as to [Appellant].
The evidence introduced at trial and all reasonable inferences derived from the evidentiary record, viewed in the light most favorable to the Commonwealth as verdict winner, is insufficient to establish all elements of aggravated assault beyond a reasonable doubt, as to [Appellant].
The evidence introduced at trial and all reasonable inferences derived from the evidentiary record, viewed in the light most favorable to the Commonwealth as verdict winner, is insufficient to establish all elements of VUFA 6106 beyond a reasonable doubt, as to [Appellant].
The evidence introduced at trial and all reasonable inferences derived from the evidentiary record, viewed in the light most favorable to the Commonwealth as verdict winner, is insufficient to establish all elements of VUFA 6108 beyond a reasonable doubt, as to [Appellant].
The evidence introduced at trial and all reasonable inferences derived from the evidentiary record, viewed in the light most favorable to the Commonwealth as verdict winner, is insufficient to establish all elements of PIC 18 Pa.C.S.A. § 907 beyond a reasonable doubt, as to [Appellant].
The evidence introduced at trial and all reasonable inferences derived from the evidentiary record, viewed in the light most favorable to the Commonwealth as verdict winner, is insufficient to establish all elements of REAP beyond a reasonable doubt, as to [Appellant].
The verdict of guilty on all offenses was against the weight of the evidence.
The trial court erred when it denied [Appellant’s Rule] 600 motion since the Commonwealth was not duly diligent and more than 365 days passed prior to bringing this case to trial (noting that discovery was not fully complete a week before trial).
The trial court erred in its ruling on the discovery sanction
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that the Commonwealth could not play a video sent just prior to trial (which showed the car abandoned and damaged and made it more likely to be [Appellant’s] car and to have been stolen).
The court erred by allowing the Commonwealth to have an officer testify about a car seen in a precluded body cam video after the Commonwealth had clearly prejudiced the defense by not passing a video relating to the car until at or near the time of trial and the video itself was precluded from the trial.
(Appellant’s Brief at 9-11).3
In his first issue, Appellant argues that the sentencing court: 1) abused
its discretion by failing to consider all sentencing factors, pursuant to 42
Pa.C.S.A. § 9271(b); 2) imposed a sentence in the aggravated range without
considering mitigating factors; and 3) failed to provide an on-the-record
statement of reasons in support of the sentence. Appellant’s claims challenge
the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right.” Commonwealth v. Phillips, 946 A.2d
103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S.Ct. 2450, 174
L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary aspects of
sentencing issue:
We conduct a four-part analysis to determine: (1) whether ____________________________________________
3 Although Appellant raises eleven (11) issues, the argument section of Appellant’s brief is divided into six (6) parts. Such drafting violates Pa.R.A.P. 2119(a), which requires the argument section to “be divided into as many parts as there are questions to be argued.” Consequently, we address the six claims as advanced in the argument section of the brief.
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appellant has filed a timely notice of appeal, see Pa.R.A.P 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (quoting Commonwealth v.
Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)).
When appealing the discretionary aspects of a sentence, an appellant
must invoke this Court’s jurisdiction by including in his brief a separate concise
statement demonstrating a substantial question as to the appropriateness of
the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f).
The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court’s evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases.
Phillips, supra at 112 (emphasis in original) (internal citation and quotation
marks omitted). “If the Commonwealth objects to the appellant’s failure to
comply with Pa.R.A.P. 2119(f), the sentencing claim is waived for purposes of
review.” Commonwealth v. Griffin, 149 A.3d 349, 353 (Pa.Super. 2016),
affirmed, 652 Pa. 127, 207 A.3d 827 (2019).
Instantly, Appellant’s brief fails to set forth a separate concise statement
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demonstrating that there is a substantial question, pursuant to Rule 2119(f).
The Commonwealth has objected to this deficiency. (See Commonwealth’s
Brief at 14). Thus, Appellant’s first issue is waived. See Griffin, supra.
In his second issue, Appellant insists that the Commonwealth’s trial
evidence failed to establish the identity of the shooter. Regarding the footage
from the surveillance cameras at the crime scene, Appellant insists that “[t]he
video … was clearly of someone else since the 911 call gave the description of
the shooter as someone in his 20s. However, Appellant was 45 years old at
the time.” (Appellant’s Brief at 33). Appellant also emphasizes that: 1) the
shooting victim did not testify at trial; 2) the eyewitnesses from the gas station
did not testify at trial; 3) the Commonwealth did not produce fingerprint or
DNA evidence to place Appellant at the crime scene; 4) the Commonwealth
did not test Appellant’s clothing for gunshot residue; and 5) the
Commonwealth did not present cell phone or GPS data to place Appellant at
the crime scene. Appellant concludes that the Commonwealth presented
insufficient evidence to support the convictions. Appellant’s claim is waived.
“In order to preserve a challenge to the sufficiency of the evidence on
appeal, an appellant’s Rule 1925(b) statement must state with specificity the
element or elements upon which the appellant alleges that the evidence was
insufficient.” Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa.Super.
2016), appeal denied, 640 Pa. 386, 163 A.3d 403 (2016) (quoting
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super. 2013)). “Such
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specificity is of particular importance in cases where, as here, Appellant was
convicted of multiple crimes each of which contains numerous elements that
the Commonwealth must prove beyond a reasonable doubt.”
Commonwealth v. Ellison, 213 A.3d 312, 321 (Pa.Super. 2019), appeal
denied, 656 Pa. 205, 220 A.3d 531 (2019) (quoting Stiles, supra at 982).
“Therefore, when an appellant’s [Rule] 1925(b) statement fails to specify the
element or elements upon which the evidence was insufficient, ... the
sufficiency issue is waived on appeal.” Id. (internal quotation marks omitted).
Instantly, Appellant’s Rule 1925(b) statement presented his sufficiency
issues as follows:
The evidence introduced at trial and all reasonable inferences derived from the evidentiary record, viewed in the light most favorable to the Commonwealth as verdict winner, is insufficient to establish all elements of [the offense] beyond a reasonable doubt, as to [Appellant].
(Rule 1925(b) Statement, filed 3/12/25, at ¶¶2-7). In each paragraph of the
Rule 1925(b) statement, Appellant used the above-quoted language and
merely added the name of each offense for which the jury convicted him. 4 At
no point did Appellant mention that he sought to challenge the evidence
supporting his identification as the shooter.
The trial court subsequently reviewed Appellant’s Rule 1925(b)
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4 Without requesting the trial court’s permission, Appellant filed an amended
Rule 1925(b) statement on March 13, 2025. In the amended Rule 1925(b) statement, Appellant presented his sufficiency claims in an identical manner. (See Amended Rule 1925(b) Statement, filed 3/13/25, at ¶¶2-7).
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statement, and it determined that the claims were too vague to review:
Here, the Statement of Errors fails to specify any of the allegedly unproven elements of any of [Appellant’s] crimes of conviction. For each offense, the Statement of Errors simply declares, in boilerplate fashion, that the evidence was insufficient to establish “all elements” of the offense. This language is too vague to enable the [c]ourt to determine which elements [Appellant] is contesting. Accordingly, his claims that the evidence was insufficient are waived.
(Trial Court Opinion at 5-6) (record citation omitted).
We agree with the trial court’s conclusion. The Commonwealth
presented six (6) witnesses and more than twenty (20) exhibits over two days
of trial. Appellant, however, failed to identify the specific evidence now at
issue, and the trial court was left to guess what evidence Appellant sought to
challenge on appeal. On this basis, Appellant’s second issue is waived. See
Ellison, supra; Stiles, supra.
In his third issue, Appellant argues that his convictions were against the
weight of the evidence. Appellant, however, failed to raise any objection to
the weight of the evidence in the trial court. Therefore, Appellant’s claim is
waived. See Pa.R.Crim.P. 607(A) (stating that defendant must raise weight
claim with trial judge in first instance). See also Commonwealth v. Cox,
231 A.3d 1011, 1018 (Pa.Super. 2020) (stating weight challenge must be
preserved either in post-sentence motion, written motion before sentencing,
or orally prior to sentencing; appellant’s failure to avail himself of any of
prescribed methods for presenting weight issue to trial court constitutes
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waiver of that claim).
In his fourth issue, Appellant attempts to challenge the trial court’s
denial of his Rule 600 motion. Aside from a few citations to Rule 600 and its
related case law, the entirety of Appellant’s argument is as follows:
The trial court erred when it denied [Appellant’s Rule] 600 motion since the Commonwealth was not duly diligent and more than 365 days passed prior to bringing this case to trial, noting that discovery was not fully complete a week before trial.
(Appellant’s Brief at 37).
Here, Appellant fails to provide any argument to attack the trial court’s
calculation of the adjusted run date. Appellant also fails to analyze the
pandemic-related delays, as well as the record from the Rule 600 hearing.
Thus, Appellant makes no effort to explain how the evidence did not support
the trial court’s finding about the Commonwealth’s due diligence. Absent
more, Appellant’s Rule 600 challenge is waived. See Commonwealth v.
Taylor, 277 A.3d 577, 590-91 (Pa.Super. 2022) (reiterating that failure to
develop adequate argument in appellate brief may result in waiver of claim
under Pa.R.A.P. 2119; arguments that are inappropriately developed are
waived).
Appellant’s fifth issue is similarly undeveloped. There, Appellant
provides one sentence of analysis to attack the propriety of a discovery
sanction that the court imposed on the Commonwealth:
The trial court erred in its ruling on the discovery sanction that the Commonwealth could not play a video sent just
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prior to trial which showed the car abandoned and damaged and made it more likely to be [Appellant’s] car and to have been stolen.
(Appellant’s Brief at 39).
As the trial court noted, Appellant “fails to explain how or why the
[c]ourt erred by precluding the Commonwealth from using the body-camera
video at trial as a discovery sanction.” (Trial Court Opinion at 7). Likewise,
Appellant offers no analysis of how the court abused its discretion, or how
Appellant suffered prejudice. See Commonwealth v. Brown, 200 A.3d 986,
993 (Pa.Super. 2018) (stating court may grant trial continuance, prohibit
introduction of evidence, or enter any order it deems just if discovery violation
occurs; court has broad discretion in choosing appropriate remedy for
discovery violation; defendant seeking relief from discovery violation must
demonstrate prejudice). Thus, Appellant’s fifth issue is also waived.
In his final issue, Appellant raises another claim related to the discovery
sanction. Specifically, Appellant complains that the discovery sanction should
have also prohibited a police witness from testifying about the abandoned
vehicle that was depicted in the precluded body-camera footage. Appellant
insists that the Commonwealth “had clearly prejudiced the defense by not
passing a video relating to the car until … the time of trial, and the video itself
was precluded from trial.” (Appellant’s Brief at 40). Appellant concludes that
the court abused its discretion by allowing the police witness to testify about
the vehicle. We disagree.
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Pennsylvania Rule of Criminal Procedure 573 governs a trial court’s
power to sanction a party for the failure to comply with mandatory discovery
requirements:
Rule 573. Pretrial Discovery and Inspection
* * *
(E) Remedy. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.
Pa.R.Crim.P. 573(E).
This provision gives the trial court broad discretion in formulating remedies for a failure to comply with discovery requirements. Accordingly, our standard of review of a trial court’s decision to sanction a party under [Rule 573(E)] is whether the trial court committed an abuse of discretion.
Commonwealth v. Galloway, 771 A.2d 65, 68 (Pa.Super. 2001) (internal
citations and quotation marks omitted).
Instantly, the trial court observed that Appellant could not establish that
its evidentiary ruling amounted to an abuse of discretion:
Here, [Appellant] has failed to identify any part of the record indicating that [the trial c]ourt’s decision was the result of partiality, prejudice, bias or ill-will. Thus, [Appellant] has failed to meet his heavy burden of showing that [the trial c]ourt abused its discretion in denying [Appellant’s] request to sanction the Commonwealth by precluding the officers from testifying about their observations of the crashed Audi that they discovered on the day after the shooting. As the [c]ourt explained when the [c]ourt denied the request, there
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was an insufficient basis for the [c]ourt to grant the additional sanction requested by [Appellant] because the Commonwealth properly provided discovery materials to [Appellant] well in advance of trial regarding the officers’ discovery of the Audi and its damaged condition.
(Trial Court Opinion at 8-9).
Here, Appellant makes no attempt to explain why the discovery
materials he actually received did not provide him with adequate notice of the
officers’ observations about the damaged Audi. Absent more, we cannot say
that the court abused its discretion under Rule 573(E), and Appellant is not
entitled to relief on his final issue. See Galloway, supra. Accordingly, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
Date: 2/27/2026
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