Com. v. Riggins, R. ( 2017 )

J-S44014-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
RAHEIM RIGGINS,
Appellant No. 37 EDA 2016
Appeal from the Judgment of Sentence Entered November 6, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s):
CP-51-CR-0011009-2013
CP-51-CR-0012347-2013
CP-51-CR-0012349-2013
CP-51-CR-0012351-2013
CP-51-CR-0012352-2013
CP-51-CR-0013662-2013
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 01, 2017
Appellant, Raheim Riggins, appeals from the judgment of sentence of
an aggregate term of 36 to 72 years’ incarceration, imposed after he was
convicted of numerous offenses in six separate cases, including, inter alia,
rape, aggravated assault, unlawful restraint, indecent assault, burglary,
criminal conspiracy, and carrying a firearm without a license. On appeal,
Appellant challenges the sufficiency and weight of the evidence to sustain his
convictions, as well as discretionary aspects of his sentence. After careful
review, we find no merit to these claims. However, we sua sponte determine
that the trial court’s November 6, 2015 order that deems Appellant a Sexually
J-S44014-17
Violent Predator (SVP) under the Sexual Offender Registration and Notification
Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41, is illegal. Therefore, we vacate
in part, affirm in part, and remand for further proceedings.
The trial court set forth a lengthy summary of the facts and procedural
history of Appellant’s case, which we need not reproduce herein. See Trial
Court Opinion (TCO), 10/11/17, at 1-17. We only briefly note that Appellant
was charged with various offenses in six separate cases that were ultimately
consolidated for trial. On February 4, 2015, a jury convicted him of multiple
counts of robbery and conspiracy, as well as single counts of rape, aggravated
assault, burglary, unlawful restraint, indecent assault, carrying a firearm
without a license, and carrying a firearm on a public street in Philadelphia.
For these offenses, Appellant was sentenced to the aggregate term stated
supra. He was also determined to be an SVP, which carries a mandatory
lifetime registration requirement under SORNA. See 42 Pa.C.S. §
9799.15(a)(6).
Following Appellant’s conviction and sentencing, he filed timely post-
sentence motions in each case. Those motions were ultimately denied, and
Appellant filed timely notices of appeal in each case. The trial court then
directed Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Problematically, Appellant chose to file six different
(albeit very similar) Rule 1925(b) statements in each of his cases. Apparently,
the trial court did not realize that Appellant was filing multiple concise
statements. While the court ultimately drafted a well-reasoned and detailed
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J-S44014-17
opinion, see Trial Court Original Opinion (TCOO), 10/5/16, it inadvertently
erred by concluding that Appellant had waived his sufficiency of the evidence
claim(s) based on the single Rule 1925(b) statement the court assessed. More
significantly, the court also did not address two weight-of-the-evidence issues
raised by Appellant in the cases pertaining to victims J.H. and Earle Wilson.1
Consequently, we were constrained to issue a judgment order
remanding Appellant’s case for the trial court to draft a new opinion. We
directed the court to address the following five issues raised by Appellant on
appeal (which we determined were preserved through our examination of
Appellant’s six post-sentence motions and six Rule 1925(b) statements):
1. Whether the evidence was insufficient to sustain a verdict of
guilty [in the cases involving Ms. Hawkins, Mr. Wilson, and J.B.K.,]
where the victims were unable to identify [Appellant] as the
person who committed the crimes[?]
2. Whether the verdict was against the weight of the credible
evidence where[,] although a statement was read into the record
from Appellant regarding his supposed involvement in the robbery
of Earle Wilson, there was no other valid independent or
corroborating evidence[?]
3. Whether the verdict was against the weight of the credible
evidence in that[,] although a statement was read into the record
from [Appellant] regarding his supposed involvement in the
robbery and assault of J.B.K., there was no DNA analysis, no
identification or other independent or corroborating evidence[?]
4. The verdict was against the weight of the credible evidence in
that[,] although a statement was read into the record from
[Appellant] regarding his supposed involvement in the sexual
____________________________________________
1 To avoid such confusion in the future, Appellant’s counsel should consolidate
all claims in one post-sentence motion and one Rule 1925(b) statement.
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J-S44014-17
assault of Ms. Hawkins, the lack of identification along with the
DNA evidence at trial showed otherwise.
5. Whether the trial court imposed an illegal, excessively punitive
sentence where [the] aggregate sentence (36 to 72 years)
amounts to a life sentence for [] Appellant and Appellant received
an illegal sentence on the indecent assault[?] The [c]ourt failed
to consider the guidelines in fashioning an appropriate sentence
and failed to provide adequate reasons on the record.
Appellant’s Brief at 7-8.
On October 11, 2017, the trial court filed a new Rule 1925(a) opinion
addressing the above-stated claims. Preliminarily, the trial court “observed
that, notwithstanding the Superior Court’s Judgment Order, … the above
[sufficiency and weight of the evidence] issues – which were never presented
to the [c]ourt at any point – are waived on appeal.” TCO at 18 (emphasis in
original). According to the trial court, only one of Appellant’s Rule 1925(b)
statements was properly served on the court and, thus, the issues raised in
his other five Rule 1925(b) statements are waived. Id.
After carefully examining the six certified records before us (one for each
of Appellant’s six consolidated cases), we are compelled to reject the trial
court’s waiver decision. We stress that our appellate review is always limited
to the certified record before us. See Bennyhoff v. Pappert, 790 A.2d 313,
318 (Pa. Super. 2001) (stating “[i]t is black letter law in this jurisdiction that
an appellate court cannot consider anything which is not part of the record in
[the] case”). Nothing in the records in this case confirms that Appellant only
served the trial court with one Rule 1925(b) statement; rather, each certified
record contains a unique Rule 1925(b) statement (pertaining to the specific
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J-S44014-17
victim in the case), and each concise statement has attached to it a Certificate
of Service indicating that the document was served on the trial court on June
8, 2016. Notably, in drafting our previous Judgment Order, we had no way of
knowing that only one Rule 1925(b) statement was actually served on the trial
court; accordingly, given the fact that Appellant filed a Rule 1925(b)
statement, and a Certificate of Service, in each separate case, we deemed the
above-stated issues preserved for our review. Based on this record, we will
not now, in hindsight, change our determination that Appellant’s above-stated
issues were adequately preserved pursuant to Rule 1925(b).
Notwithstanding the trial court’s decision that Appellant’s sufficiency and
weight-of-the-evidence claims are waived on this basis, the court provides a
well-reasoned, alternative analysis of the merits of those issues. See TCO at
19-24. Having reviewed the certified record, the briefs of the parties, and the
applicable law, we conclude that the trial court’s discussion of those claims is
sound, and we adopt the court’s rationale as our own in rejecting Appellant’s
weight and sufficiency issues.
Additionally, we conclude that the analysis set forth by the trial court in
its original opinion filed on October 5, 2016, appropriately and completely
addresses the sentencing arguments that Appellant presents on appeal. See
TCOO at 21-25. Therefore, we adopt that portion of the court’s October 5,
2016 opinion as our own in rejecting Appellant’s discretionary aspects of
sentencing claim.
-5-
J-S44014-17
However, we are compelled to sua sponte vacate an illegal aspect of
Appellant’s sentence, namely, the November 6, 2015 sentencing order
deeming him an SVP. See Commonwealth v. Butler, No. 1225 WDA 2016,
*6 (Pa. Super. filed Oct. 31, 2017) (concluding that the issue discussed, infra,
implicates the legality of a defendant’s sentence). In Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017), our Supreme Court held that the
registration requirements under SORNA constitute criminal punishment, thus
overturning prior decisions deeming those registration requirements civil in
nature. Id. at 1218. On October 31, 2017, this Court ruled that,
since our Supreme Court has held [in Muniz] that SORNA
registration requirements are punitive or a criminal penalty to
which individuals are exposed, then under Apprendi [v. New
Jersey, 530 U.S. 466 (2000),] and Alleyne [v. United States,
133 S. Ct. 2151, 2163 (2013)], a factual finding, such as whether
a defendant has a “mental abnormality or personality disorder that
makes [him or her] likely to engage in predatory sexually violent
offenses[,]” 42 Pa.C.S.[] § 9799.12, that increases the length of
registration must be found beyond a reasonable doubt by the
chosen fact-finder. Section 9799.24(e)(3) identifies the trial court
as the finder of fact in all instances and specifies clear and
convincing evidence as the burden of proof required to designate
a convicted defendant as an SVP. Such a statutory scheme in the
criminal context cannot withstand constitutional scrutiny.
Butler, No. 1225 WDA 2016, at *11. Accordingly, the Butler panel held that
42 Pa.C.S. § 9799.24(e)(3) is unconstitutional. Id. at *11-12.
In light of Butler, we are compelled to conclude that the portion of the
November 6, 2015 sentencing order deeming Appellant an SVP is illegal. See
id. at *12. Accordingly, we vacate that portion of the sentencing order, and
remand Appellant’s case for the trial court to determine under what tier of
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J-S44014-17
SORNA Appellant must register, and to provide him with the appropriate notice
of his registration obligations under 42 Pa.C.S. § 9799.23. See id. at *13.
Portion of sentencing order deeming Appellant an SVP vacated.
Judgment of sentence affirmed in all other respects. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2017
-7-
._,.
-tcco Circulated 11/06/2017 10:05 AM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRllvHNAL TRIAL DfVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0011009-2013
CP-5 l-CR-0012347-2013
vs. CP-5 l-CR-0012349-2013
CP-51-CR-0012351-2013
RAHEIM A. RIGGINS a/k/a CP-51-CR-0012352-2013
RAHEEM RIGGENS a/k/a CP-5 l-CR-0013662-2013
. RAHEEM RIGGINS a/k/a R'9'.llns'.
C�m. v.
RAHEIMA RIGGINS a/k/a CP-51-CR.COHC00-:10!3Cplnion Raheim A.
RAHIEM RIGGINS a/k/a FILED
RAHIM AKBARR a/k/a
RAHIM RIGGINS 111111111111111/111111111 37 EDA 2016 OCT O 5 2016
7508367571
OPINION Appeals/Post Trial
Office of Judicial Rec<
SCHULMAN, S.I., J.
Raheim A. Riggins ('�Appellant") has appealed this Court's judgment of conviction and
sentence. This Court submits the following Opinion in accordance with the requirements of Pa.
R.A.P. 1925, and for the reasons set forth herein, recommends that its judgment be affirmed.
PROCEDURAL HISTORY
On February 4, 2015, following ajury trial before this Court, Appellant was convicted of:
five (5) counts of Robbery; one (1) count each of Rape, Aggravated Assault, Burglary, Unlawful
Restraint, Indecent Assault, Fi.rearms Not to Be Carried without a License, and Carrying
Firearms on Public Streets in Philadelphia; and ten (10) counts of Criminal Conspiracy (to
commit Robbery (5), Rape, Aggravated Assault, Burglary, Unlawful Restraint, and Indecent
Assault).
On November 6, 2015, upon review of the pre-sentence investigation report and
consideration of all relevant facts and circumstances of this case, this Court sentenced Appellant
to an aggregate term of 36 to 72 years' incarceration. He subsequently appealed, and this Court
·"
ordered him to file a Concise Statement of Matters Complained of on Appeal in accord with
Pa.R.A.P. 1925(b). Counsel for Appellant timely complied.
FACTUAL HISTORY
At trial, the Commonwealth first called Philadelphia Police Officer Andrew Revucky to
the stand. Officer Revucky testified that, on March 20, 2013 at approximately 3:00 a.m., he
received a radio call which took him to 2307 Clearfield Street in Philadelphia. There, he
J. t\-.
encountered complainant••••••· who was "very distraught, crying, very upset", and
stated that she had just been raped, beaten and burglarized by two black males. Specifically, she
said she heard and saw two black males come into her home wearing all black clothing, shining
flashlights; they held her down by her neck, bound her wrists and raped her. They also removed
numerous items of value and cash from her home. She eventually was able to free herself after
they left, and went to her neighbor's house to call police. (See N.T. 01/29/15, pp. 30-35).
?d.r\.
Next, the Commonwealth presented the testimony of complainant -•••••••· •
J.\-t.
•••testified that, in the early morning hours March 20, 2013, she was asleep in her bed
inside her home at 2303 Clearfield Street in Philadelphia, when she heard two men inside her
j,r\.
home. was 62 years old at the time. The men came upstairs with flashlights and
yelled, "This is the Fire Department", She jumped out of bed and screamed, at which point one
of them hit her in the head with a flashlight. One of the males then grabbed her forcefully by the
j.H·
throat while the other tried to put a pillow over her face. •••••desperately wriggled free
and said, "Please don't kill me. Please don't kill me." One of the males ordered her to put her
hands behind her back; they then tied her hands together with the belt from her bathrobe, tied
thermal pants around her mouth, and held her face down. (See N.T. 01/29/15, pp. 37-46, 77-78).
2
While one of the males was ransacking through her belongings, the other pulled down her
pajama bottoms, and tried to insert his penis into her anus. It did not go all the way in, so he
flipped her over onto her back) lifted up her legs, and again inserted his penis into her anus. After
a while, he flipped her over again onto her stomach, rubbed "something hot" on/around her
genitals, and then left the room. (See N.T. 01/29/15, pp. 44-52, 60).
Paralyzed from fear, and physically bound,
J.tf.
• lay in her bed for 20 minutes,
until it was "really quiet". She then wriggled her hands free, and removed the binding from her
mouth. She went downstairs and saw that both her back and front doors were wide open. She
grabbed her keys, ran to her neighbor's house at 2307 Clearfield Street, and called police. After
describing the above events to responding police officers,
.J,tl.
lliili.••• was transported to
Episcopal Hospital for a rape kit and medical treatment. She was observed to have a tear to her
anus, a swollen cheek, and a bruised forehead. (See N.T. 01/29/15, pp. 47, 51-53, 56-57, 61-62).
J.t\,
also testified that the intruders had taken her jewelry, two (2) flat screen
televisions, her cell phone, a digital camera, her wallet with $80 cash, and all her identification
and credit cards. She also noted that she had locked her doors before going to bed that night.
(See N.T. 01/29/15, pp. 41, 53-56).
Philadelphia Police Detective Thomas Martinka testified next for the Commonwealth.
Detective Martinka testified that, on March 20, 2013 at approximately 3:00 a.m., he was assigned
.j.\4.
to investigate the robbery and sexual assault of.llllliil••· Upon receiving the assignment, he
J.rl·
and his partner, Detective Taylor, went to Episcopal Hospital to interview•••••· After
recording a detailed description of the events, the detectives then went to ••I
...\ .\-L's
home,
which was being "held" by uniformed police officers as a crime scene. There, Detectives
Martinka and Taylor took photographs of the scene and collected various pieces of evidence,
J.tL
including purse, pillow case, robe, robe tie, and bed quilt -- all of which were
secured under property receipt for chemical (DNA) analysis. Additionally, Detective Martinka
testified that his Crime Scene Unit attempted to lift fingerprints from various locations inside the
home. (See N.T. 01/29/15, pp. 80-89).
The Commonwealth next called complainant Christopher Darrell Chandler to the stand.
Mr. Chandler testified that on July 26, 2013, at approximately 3:00 a.m., he was on his way home
from work, walking westbound on the 2600 block of Lehigh Avenue, when he was approached
by two black males. One of the males was approximately six feet (6') tall with a lighter
complexion and medium build, and the other was shorter, approximately five feet, seven inches
(5 "I") tall with a darker complexion and stocky build. When the males were a few feet from him,
Mr. Chandler saw that the shorter male was holding and pointing a gun below his waist. He
ordered Mr. Chandler to "stand right there." Mr. Chandler complied, and the taller male then
walked behind him and started rifling through his pockets. The males then ordered him to walk
around the corner with them, where it was darker. There, they went through his wallet, retrieved
his debit card and asked for his PIN; 1'1r. Chandler complied. The taller male took the card to an
ATM, while the shorter male continued to hold Mr, Chandler at gunpoint. When the taller male
returned, they told Mr. Chandler to "take a walk and don't look back". He walked straight home
and called police. (See N.T. 01/29/15, pp. 92�101).
When police arrived, Mr, Chandler declined to go looking through the area for his
attackers because he was "too shaken up'). Instead, he went to Central Detectives for an
interview, during which he provided a detailed physical descriptions of his assailants. Mr.
Chandler subsequently was shown a photo array at his home, from which array he positively
4
identified Appellant as his assailant. He also positively identified Appellant in court. (See N.T.
01/29/15, pp. 102-111 ).
Forensic Nurse Examiner Jenny Smith took the stand next for the Commonwealth. Nurse
Smith testified that, on March 20, 2013 at approximately 6:50 a.m., she examined•••
J.t\·
at the Sexual Assault Response Center. Nurse Smith testified that during the
J.tl.
examination, reported a sexual assault that also involved a weapon, hitting,
grabbing, pushing, gagging, strangulation, being tied up, and verbal threats. More specifically,
she had been hit with a flashlight, gagged with her own thermal pants, had her hands tied behind
her back, and reported both vaginal and anal penetration by penis. (See N.T. 01/29/15, pp. 122-
134).
.
Nurse Smith observed the injuries to 1•1 j.+t,
•••••
On the external of her vagina, I did note that she had a tear in an
area called the posterior fourchette as well as tenderness. I noted
that she had tenderness to the perineum, anus, as well as a tear on
her anus .... [On the inside of her vagina.] I noted that she had
bruising to the left and the right vaginal walls [ and] that she also
had internal tenderness to both vaginal walls and the cervix as
well.
(See N.T. 01/29/15, p. 137). Additionally, Nurse Smith observed various injuries to a
•••I
J,H, S
1
person, including: abrasions and lacerations to her mouth (upper and lower lips);
abrasions, tenderness and a laceration to her neck; an abrasion to her left hand; and a contusion to
J,*·�
her right knee. Nurse Smith also took numerous photographs of••••• injuries. (See
N.T. 01/29/15, pp. 134�136, 139).
J.H.
Nurse Smith further noted that •••••consented to multiple antibiotics to prevent
_j. t)J 5
STDs, Plan B contraceptive, and HIV prevention medication. Finally, in addition to dra\vinga
5
•••P blood for a DNA reference sample, Nurse Smith collected swabs of her internal and
external vagina, rectal area and perineum. (See N.T. 01/29/15, pp. 138-140).
The Commonwealth next presented the testimony of complainant Gregory K. Johnson.
Mr. Johnson testified that, on July 26, 2013 at approximately 4:45 a.m., he was on his way to
work, walking westbound on the 2600 block of Lehigh A venue, when he was approached by two
black males. One of the males was approximately five feet, seven inches (5'7'') tall and dark
skinned, and the other was approximately six feet, one inch (6' 1 H) tall with a lighter complexion;
both males were holding black handguns. The shorter male grabbed Mr. Johnson by the jacket
and said, "Get over there." The taller male pressed his handgun against Mr. Johnson's head and
said, "You heard what he said. Get over there." They pulled him over to a parked white van,
where the shorter male went through his pockets, while the taller male held his gun against Mr.
Johnson's head, and repeatedly stated, "I should shoot you." (See N.T. 01/29/15, pp. 143-149,
156-158).
The bandits made off with Mr. Johnson's necklace, $800 cash from his wallet,1 two cell
phones (one of which was for his job), $132 cash from his pants pocket, cigarettes and
eyeglasses. The altercation ended when the shorter male discarded Mr. Johnson's wallet to the
· ground, and told him to "stay facing one direction", at which time the males ran in the opposite
direction. Without a phone, Mr. Johnson then proceeded to retrieve his work truck and returned
to Lehigh Avenue, where he found a police car sitting at the intersection of 261h and Lehigh.
Upon giving a description to police, he reported to work (because if he did not show up for work,
he would not get paid). (See N.T. 01/29/15, pp. 149-154).
1
Mr. Johnson was carrying the cash because he was going to buy a present for his daughter's
upcoming birthday, (See N.T. 01/29115, p. 150).
6
.. ! On August 5, 2013, detectives interviewed Mr. Johnson at his home, during which he
described the robbery and provided a detailed physical description of h.is attackers. On the same
date, Mr. Johnson positively identified both Appellant and Co-Defendant Hashiem Clark, from
respective photo arrays, as his assailants. Mr. Johnson also positively identified Appellant and
Co-Defendant Clark in court. (See N.T. 01/29/15, pp. 154-161).
Complainant Earle Wilson also testified at trial. Mr. Wilson testified that, on July 21,
2013 at approximately 4:20 a.rn., he was walking to work on North 29111 Street at its intersection
with York Street, when he noticed two black males crossing the street and walking toward him.
One of the males was shorter with a dark complexion, and the other male was taller with a lighter
complex.ion. As they neared Mr. Wilson, the shorter male stated, "What are you looking at?"
Mr. Wilson responded, "Nothing. I'm messing with my keys." The shorter male replied, "I don't
like the way you said that", and then the males set in on him. The shorter male retrieved a black
handgun from his waistband and pressed it against Mr. Wilson's chest, while the taller male went
through his pockets. The males were standing side-by-side and facing Mr. Wilson. They took
his wallet, which contained $26, his SEPTA Transl'ass, bank card, Social Security card, and birth
certificate, among other things. The males then told Mr. Wilson to walk away; he complied. He
walked back to his home, and feeling very upset, told his wife he had just been robbed. Mr.
Wilson reported the robbery later that day after work. He was interviewed by detectives at his
home on August 14, 2013, at which he gave a detailed account of the above events. He was
shown photo arrays but not able to make a positive identification. However, he positively
identified Appellant and Co-Defendant Clark both at the preliminary hearing and at trial, as his
assailants. (See N.T. 01/30/1 S, pp. 9-49).
7
Next, the Commonwealth called complainant Alexander Smith to the witness stand. Mr.
Smith testified that, on August 2, 2013 at approximately 3 :30 a.m., he was walking on North l 61h
Street approaching Susquehanna Avenue, when two black males walked past him. He continued
walking for another half block, at which time the same two males ran up from behind, grabbed
him and pushed him against a parked trailer. Mr. Smith testified that he was then struck in the
back of the head with an object, and then punched in the face. One of the males, whom he
identified as Appellant, pressed a gun against his right side, while the other "tall, black" male
went through his pockets. Appellant and his cohort took Mr. Smith's wallet, which contained his
identification, debit and credit cards, and also took his iPod and car keys. They then told him to
nm, and Mr. Smith complied. He saw some kids sitting on a front porch on Diamond Street and
borrowed their phone to call police. After providing a description to the responding police
officer, he was transported to Central Detectives for an interview. Approximately one week later,
Mr. Smith was shown photo arrays, from which he positively identified Appellant. He also
positively identified Appellant in court. (See N.T. 01/30/15, pp. 50-68).
The Commonwealth next presented the testimony of complainant J.B.K., a minor. J.B.K.
testified that, on July 24, 2013 at approximately 11 :00 p.m., she was walking on the 2600 block
of North 22"d Street, when she was approached by two black males -- one of whom was short and
dark-skinned, and the other was tall. The taller male pulled out a black handgun, which
resembled "a police gun'>, and the shorter male instructed, "Grab her, get her up, take her across
the street"; the taller man obliged, grabbing J.B.K. by the back of the neck and pushing her across
the street. The taller male grabbed her purse and emptied its contents on the sidewalk. The
shorter male then pulled J.B.K. -- then just 15 years old -- into an adjacent alley, removed her
pants, reached beneath her underwear, and fondled her vagina. When the taller man appeared
8
and announced that he was "done", the males escorted J.B.K. out of the alley and told her to go
back where she came from and that "if [she) called the police, it was not going to be nice." (See
N.T. 01/30/15, pp. 81-95).
J.B.K. walked away and, after waiting until she was at a safe distance, borrowed a
pedestrian's cell phone to call police. Police arrived immediately; upon describing what had just
happened, she was transported to the Special Victim's Unit ("SVU"), where she was interviewed
by a female detective. Among other things, she described the physical characteristics and
clothing of the shorter male as: "African American, early 20s, dark skinned, short[,] bald, and
had a beard. He was wearing gray shorts and black sneakers." She described the second male
as: "African American, early 20s, tall". (See N.T. 01/30/15, pp. 96-99).2
Philadelphia Police Detective James Waring testified next for the Commonwealth.
Detective Waring testified that, along with his partner, Detective Ralph Domenic, he is a member
of Central Detectives' Special Investigative Unit, and works exclusively on robberies. As part of
his work, Detective Waring reviews all robbery complaints that come in, in order to look for
"patterns" -- �' similar incidents, in the same areas, similar descriptions of the offenders,
weapons used, et cetera. (See N.T. 01/30/15, pp. 136-139).
Detective Waring observed one such pattern in a specific set of robberies in July and
August 2013:
In each of the robberies there were two black males. The
descriptions for most of them were taller black male and a shorter
2
The Commonwealth next called Philadelphia Police Officer Andrew McCrea, Detective
Keenya Taylor, and Detective Linda Pace, respectively. Officer McCrea testified that he
responded to the above incident concerning J.B.K., prepared the initial (75-48) report, and
ultimately transported J.B.K. to the SVU. Detective Taylor testified that she interviewed J.B.K.
at the SVU on the night of the attack. Detective Pace testified that, on August 8, 2013, she
conducted a follow-up interview of J.B.K. at her residence for the purpose of presenting a photo
array, but J.B.K. was unable to make an identification. (See N.T. 01/30/15, pp. 114-134).
9
black male. They were occurring, for the most part, along Lehigh
Avenue and maybe a couple blocks south of there with handguns.
A lot of them -- well, most of them were after midnight and then
up until 3:00 or 4:00 in the morning. So that's what -- I mean, we
recognized the pattern pretty easily.
(N.T. 01/30/15, p. 139).
Detective Waring testified that the above pattern applied to the robberies of Christopher
Chandler, Gregory Johnson, Earle Wilson, Alex Smith, and J.B.K. Accordingly, he canvassed
the area looking for surveillance videos, and was able to find a couple from neighborhood stores.
The videos, which were shown to the jury, depicted two males walking to/from the robberies of
Mr. Chandler and Mr. Johnson (Mr. Johnson also appeared in one the videos as he was being
robbed). The same two males were wearing the same clothes in both videos; they matched the
descriptions as reported by Mr. Chandler and Mr. Johnson; and were traveling in the direction
consistent with said reports. Still images of the males also were shown to the jury. Detective
Waring testified that he attempted, but could not find, surveillance videos pertinent to the
robberies of Earle Wilson, Alex Smith and J.B.K. (Sec N.T. 01/30/15, pp. 143-158).
Detective Waring testified that, consistent with police protocol, he posted the videos on
YouTube. Information subsequently received from viewers, led him to follow up with Mr.
Johnson at his residence on August 5, 2013. Detective Waring presented him with a photo array,
from which Mr. Johnson positively identified Appellant as one of his assailants. Later that day.
Detective Waring obtained and executed a warrant to search Appellant's home. Appellant was
not home; however, Detective Waring encountered a woman by the name of Sharita Gaines, who
was in possession of proceeds from one of the robberies, to wit, Mr. Smith's iPod (as confirmed
by Mr. Smith per its contents). The iPod was recorded on a property receipt and returned to Mr.
Smith. (Sec N.T. 01/30/15, pp. 159-165).
10
Detective Waring transported Ms. Gaines to Central Detectives for an interview. As a
result of the interview, he developed a second suspect�- Co-Defendant Clark. Accordingly, he
met with Mr. Johnson and presented him with a second photo array that included Co-Defendant
Clark. Mr. Johnson positively identified Co-Defendant Clark as the other male who had robbed
him. Detective Waring thereafter presented photo arrays to Mr. Chandler, who positively
identified Appellant as his assailant; Mr. Chandler was unable to identify Co-Defendant Clark
from the second array. (See N.T. 01/30/15, pp. 165-170).
Detective Waring obtained arrest warrants for Appellant and Co-Defendant Clark, the
latter of whom was taken into custody first. Co-Defendant Clark consented to a formal interview
on August 13, 2013. In his interview, Co-Defendant Clark provided detailed accounts of the
robberies of Messrs. Johnson, Chandler, Smith and Wilson; he admitted to committing these
robberies with the "same guy" each time. (See N.T. 01/30/15, pp. 189-198).
Early the next day, August 14, 2013, Appellant attempted to tum himself in at a Federal
Immigration Custody Enforcement (ICE) building. Police were notified and he was taken into
custody; on the same date, Appellant agreed to be interviewed. Appellant provided detailed
accounts of the robberies of Messrs. Johnson, Chandler, Smith and Wilson, which he admitted to
committing with the same "other guy". (See N.T. 01/30/15, pp. 199-218).
Detective Waring also testified that as part of the intake process, the height and weight of
arrestees are recorded. In that regard, at the time of their respective arrests, Appellant was five
feet, seven inches (5'7") tall and weighed 155 pounds, and Co-Defendant Clark was six feet (6')
tall and weighed 195 pounds. (See N.T. 02/02/15, pp. 7-8).3
3
The Commonwealth next presented the expert testimony of Deanna Zarzecki, a forensic
scientist with the Philadelphia Office of Forensic Science. Ms. Zarzecki testified that she was
asked to analyze various items collected under property receipt from residence,
J.\-VS
11
The Commonwealth also called its expert DNA analyst, Gregory Van Alstin, to the stand.
Mr. Van Alstin, who works in the DNA lab at the Philadelphia Office of Forensic Science,
testified that he conducted DNA comparison analyses of samples from the items collected at •·
J.�.'..s
lilill• residence. Specifically, Mr. Van Alstin extracted DNA profiles from the collected
items and compared them with the known DNA profiles of
J,tj,
• , Co-Defendant Clark,
J ·tt· \j
and Appellant. Based on his analysis, Mr. Van Alstin was able to determine that 1lill
1
••111111.
j ,\1,
robe tie had one major DNA contributor -- ••••• -- along with two minor contributors.
While the DNA from the minor contributors was insufficient to render a conclusive
determination, Mr. Van Alstin was able to conclude that at least one of the minor contributors
J.t\.
was a male. Further, Mr. Van Alstin was able to determine that both Appellant and •••••
J.tt,:S
were equal contributors to the shoulder strap/zipper of • handbag. Mr. Van Alstin
issued these findings to a reasonable degree of scientific certainty (See N.T. 02/02/15, pp. 62-73,
77-79).4
Next, the Commonwealth called Sharita Gaines to the stand. Ms. Gaines testified that she
had been Appellant's girlfriend since 2011, and still was his girlfriend at the time of trial. Ms.
Gaines testified that during the period of March to August 2013, she recalled seeing Appellant
and Co-Defendant Clark together periodically. In August 2013, Philadelphia Police Detectives
searched her house, at which time they recovered an iPod from her purse. Ms. Gaines testified
that she had obtained the iPod from Appellant. On the same date of the search, she was taken to ·
for the presence of: (1) acid phosphatase (an enzyme present in seminal fluid); (2)P-30 (a
protein found in seminal fluid); and (3) sperm. Ms. Zarzecki was unable to detect the presence
of any of the above substances. (See N.T. 02/02/15, pp. 35-59).
4
Mr. Van Alstin observed that the remaining samples that he tested either contained data that
was insufficient for comparison or no inclusions for Appellant or Co-Defendant Clark. (See
N.T. 02/02/15, p. 79).
12
Central Detectives for an interview, at which time she was shown two surveillance videos from
the robberies; Ms. Gaines identified Appellant and Co-Defendant Clark in the surveillance
videos. Ms. Gaines also positively identified Appellant and Co-Defendant Clark from another
surveillance video shown at trial. Finally, Ms. Gaines admitted to observing a flat screen
television in her home that she had not seen before, i.e., waking up in the morning to see it on her
floor. Appellant told her at the time that he had gotten it from the junkyard. (See N.T. 02/02/15,
pp. 86-96).
The Commonwealth next called Detective Kevin Gage to the stand. Detective Gage
testified that, upon being assigned to
j.�.15
• case on March 20, 2013, he went around her
neighborhood looking for surveillance videos. He was successful in locating surveillance
J
footage from a pizza parlor across the street from ••••• '\z.a
• , residence. The video, which was
•
taken on March 20, 2013, was shown to the jury at trial; it depicted two males hovering in front
j.\t'.5
of and alongside••••• residence shortly before 2:00 a.m., and the same two males
reemerging at 2:44 a.m. carrying items in their hands. (Sec N.T. 0_2/02/15, pp. 113-134).
Additionally, Detective Gage testified that various items from the scene were submitted to
the chemical lab for forensic analysis. Information received from the lab led to the development
of Appellant as a suspect. On August 5, 2013, he assembled a photo array and presented it to a
j .\4.
•••· but she was unable to identify him. On the following day, Detective Gage and several
other.members from the SVU went to Appellant's address on Corlies Street; neither Appellant
nor his girlfriend, Sharita Gaines, was home. He located Ms. Gaines, however, at a grocery store
around the corner. He described the nature of his investigation, and asked if she would come to
the SVU to speak further about it; she agreed. There, he showed Ms. Gaines the same
surveillance video, from which she was able to positively identify both males as Appellant and
13
Co-Defendant Clark. Ms. Gaines also provided a statement documenting the above
identification, which was submitted into evidence. (See N.T. 02/02/15, pp. 135-142).
Detective Gage thereafter obtained arrest warrants for Appellant and Co-Defendant Clark,
the latter of whom was taken into custody on August 13, 2013. Co-Defendant Clark consented to
an interview, during which he admitted to participating in the robbery and burglary of J.B.K. and
j .\-\.
•llilllil•a,respectively, but denying any role in their sexual assaults. (See N.T: 02/02/15, pp.
143�168).
On the following day, Detective Gage learned that Appellant had attempted to tum
himself in at a Federal ICE building .. Appellant was transported to the SVU, where he agreed to
be interviewed. In relevant part, Appellant admitted to breaking into ••••t
J.\-\.'$
residence,
sexually assaulting her, and taking her valuables:
QUESTION: Okay. You and the other guy are inside and
what happened next?
ANSWER: When we went upstairs, we thought we heard
voices, but it wasn't voices. It was one voice from inside the door
in the back bedroom. We went into the back bedroom and the
other guy grabbed her and I went in and assisted him. \Ve grabbed
her and this is when the other guy was grabbing her. The other
guy was choking her. She wasn't kicking or punching. Then we
were asking her where he was at or where the money was at. She
was saying, No, he isn't here. We was in there for a minute; ten or
fifteen minutes. I think I did the dumbest thing I could have done
to keep her to shut up.
QUESTION: What did you to to her?
ANSWER: I actually didn't do anything to her. I pulled
my pants down and then I did it. I did the dumbest thing I could
have done. I put my dick in her.
QUESTION: \.Vhere did you put your dick?
14
ANSWER: I didn't go into her butt. I put it into her
vagina. I did this while I told her I would give her something to
holler about. I just went off. I didn't let it go on for long. I
snapped back out of it. The other guy was just sitting there on the
chair looking at me. I just stepped back there and then I was just
tripping. I got off of her. Then the other guy was sitting there with
his pants down and the next thing I know -- I remember is the other
guy coming over with some kind of rag or something with some
kind of soap or something. He got on her. I was in the bedroom
and I was snorting powder. I saw the other guy on her. Then I
believe he was having sex with her, too. I saw him. He was
rubbing her to clean her up afterward, He then told me he had
soap on his hands and that he threatened her. Then he cleaned her
up. The whole time I was just sitting there and my mind was
blacking out. Then we got out of there.
QUESTION: What did you take from the house before you
and the other guy left?
ANSWER: Two TVs and a air-conditioner. I think there
was a couple of pieces of jewelry, too. I didn't get any money or
anything. He may have [gotten] some.
(See N.T. 02/02/15, pp. 168-169; N.T. 02/03/15, pp. 10-29).
Detective Gage testified that Appellant also was questioned about the robbery and sexual
assault of J.B.K. Appellant admitted to participating in the robbery -- i.e., accompanying the
other guy who pressed a gun against her side, and further, going through her handbag for
valuables -- but denied sexually assaulting her:
QUESTION: You didn't take anything from her that night
but you were there when the other guy pointed his gun at the girl
and then started going through her bag, correct?
ANSWER: Yes. But we didn't rape her.
QUESTION: When you were going through her pockets,
do you think she felt that was a sexual assault?
ANS\VER: Actually she didn't have no pockets. When
she was walking up, the other guy was able to go right up to her
and walk her right into the park. She had a skirt on with no
15
ISSUES ON APPEAL
Appellant raises the following issues on appeal:
1. The evidence was insufficient to sustain a verdict of
guilty where the victim was unable to identify the
defendant as the person who committed the crime.
2. The verdict was against the weight of the credible
evidence in that although a statement was read into the
record from [Appellant] regarding his supposed
involvement in the robbery and assault of [J.B.K.]) there
was no DNA analysis or other independent evidence.
3. There was inadequate identification evidence to
sustain a verdict of guilty.
4. The sentence imposed was or may not have been
within the sentencing guidelines as (Appellant] was
sentenced to what amounts to a life sentence without proper
explanation.
5. The sentence imposed is illegal/improper in that
[Appellant] could be sentenced to a term of imprisonment
of a greater degree than that of which he was convicted.
6. The trial court imposed an excessively punitive
sentence where the sentence (4 to 8 years) and the
aggregate sentence (36 to 72 years) amounts to a life
sentence for [Appellant]. The Court failed to consider the
guidelines in fashioning an appropriate sentence and failed
to provide adequate reasons on the record.
7. The sentence imposed is violative of [Appellant's]
constitutional right to be free of excessive punishment
pursuant to the 8111 Amendment to the United States
Constitution and the Pennsylvania Constitution.
8. The Commonwealth engaged in a discovery
violation regarding still photographs pulled from the
videotapes in that the photographs were not previously
provided, and the particular frames were not identified to
counsel as pictures that were intended to be utilized during
trial. The images were inflammatory and prejudicial.
17
(Appellant's Rule 1925(b) Statement, ,r� 1-8).
DISCUSSION
1. Appellant's Sufficiency Claim Is Waived,
Appellant claims that the evidence was insufficient to sustain one of the myriad, but
unspecified, verdicts of guilty in this case because one of the numerous, but unspecified, victims
was unable to identify him. This claim -- which is utterly vague and incapable of meaningful
evaluation -- is waived pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).
Pennsylvania Rule of Appellate Procedure 1925(b)(4) (Requirements; waiver)
specifically mandates that statements of matters complained of on appeal "shall concisely
identify each ruling or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge." Pa.R.A.P. 1925(b)(4)(ii).
When the trial comt has to guess what issues an appellant is
appealing, that is not enough for meaningful review. When an
appellant fails adequately to identify in a concise manner the issues
sought to be pursued on appeal, the trial court is impeded in its
preparation of a legal analysis which is pertinent to those issues. In
other words, a Concise Statement which is too vague to allow the
court to identify the issues raised on appeal is the functional
equivalent of no Concise Statement at all.
Commonwealth v. Lagenella, 17 A.3d 1257, 1265 (Pa. Super.2011) (internal citations and
quotations omitted); see also Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006) (same).
Thus, Appellant's claim -- which is woefully vague and requires the Court to guess at the issues
-- is incapable of meaningful review and should be deemed waived. See Lagenella, supra;
Lineberger, supra; Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. Super. 2001); Pa.R.A.P.
1925(b)(4)(ii).
18
.. )t
resolve any doubts regarding a defendant's guilt 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."
Commonwealth v. Patterson, 940 A.2d 493, 500 (Pa. 'super. 2007).
A motion for a new trial on the grounds that the verdict is contrary to the weight of the
evidence, concedes that the evidence was sufficient to sustain the verdict. Commonwealth v.
Widmer, 744 A.2d 745, 751 (Pa. 2000) (citation omitted). In reviewing a weight claim, trial
judges must not simply "reassess" the credibility of the witnesses, as they "do not sit as the
thirteenth juror," Id. at 752 (citation omitted). "Rather, the role of the trial judge is to determine
that '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.
Instantly, having presided over Appellant's jury trial, this Court is confident that the
jury's verdict with regard to J.B.K. was soundly supported by the weight of the evidence.
Indeed, J.B.K. 's testimony was detailed, consistent and uncontradicted, and the jury certainly
was entitled to credit her testimony. Simply put, the jury's verdict was hardly contrary to the
evidence to the effect of shocking one's sense of justice.
3. Appellant's Second Sufficiency Claim Is Waived.
Next, Appellant claims that "[t[here was inadequate identification evidence to sustain a
verdict of guilty." This claim -- prohibitively nonspecific -- is waived for the reasons set forth in
Discussion Section 1, supra. In any event, the Court observes that any theoretical inadequacy of
identification evidence is overcome by the mountain of other evidence establishing Appellant's
guilt for the offenses in this case beyond a reasonable doubt.
20
4-7. The Court Did Not Abuse I ts Discretion in Imposing Sentence.
Appellant's next four claims comprise challenges to the discretionary aspects of
sentencing. These claims are without merit.
Preliminarily, while Appellant uses the term "illegal" and alleges a violation of the 81h
Amendment, he does not present a claim of "illegal sentence". m[A]n illegal sentence is one that
exceeds the statutory limits.!" Commonwealth v. Berry, 877 A.2d 479, 482 (Pa, Super. 2005)
(en bane) (quoting Conunonwealth v. Bradley, 575 Pa. 141, 834 A.2d 1127, 1131 (Pa. 2003).
Alternatively, '" if no statutory authorization exists for a particular sentence, that sentence is
illegal and subject to correction."' Berry at 483 ( quoting Commonwealth v. Lipinski, 841 A.2d
537, 539. (Pa. Super. 2004). Neither of the above applies here.
'593 A.2d 899, 901 (Pa.
Super. 1991) (citations and quotations omitted). "[I]n assessing a claim that a sentence is so
disproportionate as to violate the eighth amendment, '[rjeviewing courts ... should grant
substantial deference to the broad authority that legislatures necessarily possess in determining
the types and limits of punishment for crimes .... " Id. (citations and quotations omitted).
It is well settled that sentencing is a matter vested in the discretion of the sentencing court
and will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v.
Gribble, 703 A.2d 426, 43 7 (Pa. 1997). "In this context, an abuse of discretion is not shown
merely by an error in judgment. Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision."
21
r
Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (en bane) (citations and internal
quotations omitted). A reviewing court must accord great weight to the sentencing court's
discretion because it is in the best position to view a defendant's character, exhibition of
remorse, indifference, and the general nature of the crime. See Commonwealth v. Siena, 752
A.2d 910, 915 (Pa. Super. 2000); Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super.
1999) ( en bane).
Here, Appellant essentially claims that this Court abused its discretion by imposing
consecutive sentences -- for his multiple robberies, rape, aggravated assault and conspiracy
convictions -- and by allegedly failing to provide reasons justifying same. The record, however,
clearly reflects that this Court considered all relevant facts and circumstances and thoroughly
explained its rationale prior to imposing sentence. Specifically, in addition to Appellant's
presentence investigation report and the sentencing guidelines, this Court expressly considered
the violent nature and circumstances of Appellant's offenses, his SVP status, the protection of
the public, the gravity of the offenses, the character and condition of Appellant, his family
background and support, his children, his scant work history, his passive expression ofremorse,
and his substantial prior record -- which, just as an adult, comprised seventeen (17) arrests,
eleven (11) convictions, thirteen (13) commitments, eight (8) violations and seven (7)
revocations. (See N.T. 11/06/15, pp. 58-60, 82-133).
7
It bears noting that Appellant did not remotely receive the maximum sentence allowed, and in
fact, received the benefit of having no further penalty imposed on 11 of his convictions -- 9 of
which were felonies of the first degree. (See N.T. 11/06/15, pp. 128-132).
22
Among other things, this Court expressed the following on the record:
THE COURT: All right. Thank you, Mr. Riggins. I have,
of course, reviewed the presentence report, the mental health and
the defendant's record. Certainly as has already been stated, Mr.
Riggins had au extremely difficult childhood saying that he had
been molested by an uncle in his teens. The records reflect he was
put in protective custody and commit[ted] to DHS. Also was
committed by the Court to DHS.
However, Mr. Riggins reports being raised by his parents
and that his parents remained together throughout his childhood.
He reports graduating from high school but the transcripts shows
that he withdrew in the ninth grade. ·
There were apparently a number of homes in Philadelphia
also in Atlanta, Georgia where Mr. Riggins resided. Mr. Riggins
was married or is married and has seven children with six different
women and notably one with a minor who was 14 years old.
Mr. Riggins has been shot, according to him, three tunes I
believe, stabbed two times and has a very significant mental health
history including according to the reports a 302 [involuntary]
commitment in 2001, has hallucinations, hearing voices, coupled
with substance abuse, marijuana, Xanax, cocaine on the mental
health summary. The diagnosis is post-traumatic stress, bipolar
and substance abuse.
Mr. Riggins states he enjoys reading and writing poetry.
There's been a small employment history with Wal-Mart in 2011.
In regard to the criminal record, Mr. Riggins had no
juvenile -- well, he had a record two arrests but no adjudications;
however, starting at age 18 as an adult, 17 arrests; 11 convictions;
13 commitments; eight violations; seven revocations. Well, at age
23 a gun conviction and then five violations on that one sentence.
Age 26 corruption of a minor and that I believe was in
regard to the 14-year-old girl who then got pregnant and gave birth
to one of Mr. Riggins' children, correct? And that leads us to the
current offenses.
Mr. Riggins, the jury found that your participation in the
offenses committed against constituted rape, the
j,�·
23
'
evidence was more than sufficient to support their verdict as I said
earlier. The attack on was horrific. It was inhuman.
j. r\.
Well, she was 65 at the time she testified, so she was 62 at
the time of the offense, and I do recall that there was soS!wroblem
Sf
that you had with ij9n and, therefore, you knew I •- [ .
You targeted 2 2 • 1 - knowing that she lived al one and you
brought Mr. Clark with you as yow· enforcer.
The two of you broke into her house, [ ] you got into her
house by saying you were the fire department. You hit her in the
head with a flashlight, put a pillow over her face, locked her doors.
She begged you not to kill her. She tried to get away from you.
Both you and Mr. Clark were in her bedroom. She was tied with
her bath[robe] belt. Her hands were tied. She was tied with her
pajama pants around her mouth so she could not scream. Mr.
Clark left and, Mr. Riggins, you proceeded to rape a 62-year-old
woman in her own bedroom in her own bed.
F
jj,
I • suffered certainly physical injuries as well as
unimaginable psychological and mental injury.
And as if that weren't enough, then in July just four months
later you [ and] Mr, Clark began your crime spree of holding up at
gunpoint four gentlemen who were in various locations at 4:00 in
the morning, 3:00 in the morning, 26th and Lehigh; a 53-year-old
man; Mr. Chandler, a gunpoint robbery, 26th and Lehigh; a 55-
year-old truck driver, Gregory Johnson, gunpoint robbery, 4:20
a.m., 29th and York; 41-year-old Earle Wilson gunpoint robbery;
August 2°d, 3:30 in the morning, 16th and Susquehanna; 21-year-
old Alex Smith, gunpoint robbery, you being the gunman, you
being identified as holding the gun.
Well, I guess chronologically this was in July, the 15-year-
old J.B.K., homeless girl clearly a problem, clearly not somebody
who would ever be able to defend themselves. While Mr. Clark in
that case held the gun, you took her into the alley, you put your
hands into her underwear and fondled her, a l S-year-old girl and
then robbed her.
I will say Mr. Riggins, I have been on the bench for ten
years and I've presided over some pretty bad cases. I don't know
that I've encountered a more cruel series of criminal activity as this
has been. And to force thesewomen particularly the women to
come into court and testify in front of a group of strangers about
24
.,
what happened to them was a heartbreaking experience I'm sure
for the jury as well as for the Court.
Certainly, as I said earlier, my job is to fashion a sentence
that addresses a number of issues, that is your personal upbringing
and ability to right yourself from what was a very difficult
childhood. The potential-for rehabilitation again having been
through 11 convictions, 13 commitments and eight violations of
probation and parole, you have shown yourself, Mr. Riggins, not to
be amenable to rehabilitation efforts that have gone on from Judges
before me, from probation officers through the courts for many,
many, many years to where at age 37 you are still committing
violent crime.
As Dr. Ziv said it is unusual, and I said this to (Co·
Defendant] Clark, for a man of your age to still be committing the
type of violent offenses that you committed, it's not the usual.
Generally by your point in time in your life men have slowed
down. You have a family of seven children who you claim you are
concerned about and need to support. Your work history, I think
included 'only the Wal-Mart, so I don't think that supporting them
has been uppermost in your mind. You can remain seated while I
impose your sentence.
(See N.T. I 1/06/15, pp. 121-128). Thus, the record demonstrates that, contrary to Appellant's
contentions, this Court carefully and explicitly considered all relevant factors and circumstances
in crafting a sentence tailored to this case. As such, Appellant is due no relief.
8. The Use of Still Images Did Not Comprise a Discovery Violation
Finally, Appellant contends that the Commonwealth engaged in a discovery violation by
using still photographs pulled from videotapes, which he contends, were inflammatory and
prejudicial. This claim is without merit.
"[Qjuestions involving discovery in criminal cases lie within the discretion of the trial
court and that court's decision will not be reversed unless such discretion was abused."
Commonwealth v. A.G., 955 A.2d 1022, 1025 (Pa. Super. 2008) (citation omitted). "Not merely
an error in judgment, an abuse of discretion occurs when the law is overridden or misapplied, or
25
the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or
ill-will, as shown by the evidence on record." Commonwealth v. Montalvo, 986 A.2d 84, 94
(Pa. 2009) (citation omitted).
Pennsylvania Rule of Criminal Procedure 573 (Pretrial Discovery and Inspection), in
relevant part provides:
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).
Here, prior to the second day of testimony, Appellant objected to the proposed
introduction of still images from surveillance videos on the bases that they comprised a
discovery violation and were prejudicial to the defense. Upon hearing argument from both sides
outside the presence of the jury, the Court determined that the photos were taken from videos
that already had been turned over during discovery, and as such, there was no discovery
violation. (See N.T. 01/30/15, pp. 6�7). Indeed, Appellant could have pul1ed the same images at
any point prior to trial had he wished to do so. Nor did Appellant suffer prejudice merely
because the photographs appeared to depict him. The photographs comprised demonstrative
evidence and were properly utilized as such. Appellant's claim is without merit.
26
�I �-
CONCLUSION
Based on the reasons set forth in the foregoing Opinion, this Court's judgment of
sentence should be affirmed.
BY THE COURT:
27
,.,
iCO Circulated 11/06/2017 10:05
.
FILED!
' AM
I
OCT 11 2917
IN T:IE COURT OF COMMON PLEAS OF PHILADELPHIA COUNottice of Jud1c1al1Records
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA Appeals/Post Trial
CRIMINAL TRIAL DIVISION I
!
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0011009-2013 I
CP-5 l-CR-0012347-2013 I'
- ·· ,CP-51-CR-OO 12349-2013
CP·5\.CR-OOl£l49-20
1Ji,= v R-.ggns Rat>emA CP-51-CR-0012351-2013
vs. 'CP-51-CR-0012352-2013
RAHEIM RIGGINS
111111111111111 IIII I II
8016312591
Ill CP-5l-CR-0013662-2013
.·37 EDA 2016
SUPPLEMENTAL OPINION I'
1·
SCHULMAN, S.I., J.
This matter is before the Court following remand by the Superior Court for analysis of
five additional issues deemed preserved (in six Rule I 925(b) statements apparently filed by
I
r
counsel for Appellant). See Commonwealth v. Riggins, No. 37 EDA 2016 (September 26, 2017) �
1:
(Judgment Order). Based on the reasons set forth in this Court's previous Ruic I 925(a) Opinion
J;
(filed October 5, 2016), and for the reasons set forth herein, the Court recommends that its
judgment be affirmed.
PROCEDURAL HISTORY
On February 4, 2015, following a jury trial before this Court, Appellant was convicted of: '
five (5) counts of Robbery; one (l) count each of Rape, Aggravated Assault, Burglary, Unlawful
Restraint, Indecent Assault, Firearms Not to Be Carried without a License, and Carrying
'
Firearms on Public Streets in Philadelphia; and ten ( l 0) counts of Criminal Conspiracy (to J.
commit Robbery (5), Rape, Aggravated Assault, Burglary, Unlawful Restraint, and Indecent
Assault).
On November 6, 2015, upon review of the pre-sentence investigation report and
consideration of all relevant facts and circumstances of this case, the Court sentenced Appellant
..
I
. •' \';
I
.;
·, '
., ' .
to an aggregate term of 36 to 72 years' incarceration. Following the denial of post-sentence
motions, Appellant timely filed a Notice of Appeal. On May 19, 2016, the Court ordered him to
file a Concise Statement of Matters Complained of on Appeal in accord with Pa.R.A.P. l 925(b). i
Counsel for Appellant apparently filed six different Rule 1925(b) statements -- but served
the Court with only one. In the lone Rule l 925(b) statement provided to the Court, Appellant
raised eight issues, each of which the Court addressed in its Rule J 925(a) Opinion filed on
October 5, 2016.
On September 26, 2017, the Superior Court issued a Judgment Order remanding the case
to this Court for analysis of five additional issues that the Superior Court deemed preserved in
Appellant's six separate Rule l925(b) statements. See Commonwealth v. Riggins, No. 37 EDA
2016 (September 26, 2017) (Judgment Order).
FACTUAL HISTORY
At trial, the Commonwealth first called Philadelphia Police Officer Andrew Revucky to
the stand. Officer Revucky testified that, on March 20, 2013 at approximately 3:00 a.m., he
received a radio call which took him to 2307 Clearfield Street in Philadelphia. There, he
j.\-L
encountered complainant ••••••, who was "very distraught, crying, very upset", and
stated that she had just been raped, beaten and burglarized by two black males. Specifically, she
said she heard and saw two black males come into her home wearing all black clothing, shining j.
flashlights; they held her down by her neck, bound her wrists and raped her. They also removed J
;
numerous items of value and cash from her home. She eventually was able to free herself after
they left, and went to her neighbor's house to call police. (Sec N.T. 01/29/15, pp. 30-35).
I
The Court issued one Order listing all six consolidated cases in the caption.
2
J. rt.
·•·'
l
Next, the Commonwealth presented the testimony of complainant
.J. tt.
•••testified that, in the early morning hours March 20, 2013, she was asleep in her bed
inside her home at 2303 Clearfield Street in Philadelphia, when she heard two men inside her
home. ••••I
.),\-t.
was 62 years old at the time. The men came upstairs with flashlights and
I
I
yelled, "This is the Fire Department". She jumped out of bed and screamed, at which point one l·
I
of them hit her in the head with a flashlight. One of the males then grabbed her forcefully by the
J, \-\, I
throat while the other tried to put a pillow over her face. - desperately wriggled free
and said, "Please don't kill me. Please don't kill me." One of the males ordered her to put her I:
itI
hands behind her back; they then tied her hands together with the belt from her bathrobe, tied
I
I
thermal pants around her mouth, and held her face down. (See N.T. 01/29/15, pp. 37-46, 77-78). '.
I
While one of the males was ransacking through her belongings, the other pulled down her i
I'
pajama bottoms, and tried to insert his penis into her anus. It did not go all the way in, so he
flipped her over onto her back, lifted up her legs, and again inserted his penis into her anus. After t
I
a while, he flipped her over again onto her stomach, rubbed "something hot" on/around her
genitals, and then left the room. (See N.T. 01/29/15, pp. 44-52, 60).
-J.H.
Paralyzed from fear, and physically bound, -Jay in her bed for 20 minutes,
until it was "really quiet". She then wriggled her hands free, and removed the binding from her
mouth. She went downstairs and saw that both her back and front doors were wide open. She
grabbed her keys, ran to her neighbor's house at 2307 Clearfield Street, and called police. After
describing the above events to responding police officers,
J.\-\,
• I was transported to
Episcopal Hospital for a rape kit and medical treatment. She was observed to have a tear to her
anus, a swollen cheek, and a bruised forehead. (See N.T. 01/29/15, pp. 47, 51-53, 56-57, 61-62).
II
3
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>,.
j. rl,.
•••• also testified that the intruders had taken her jewelry, two (2) flat screen
r,
televisions, her cell phone, a digital camera, her wallet with $80 cash, and all her identification :
,,
and credit cards. She also noted that she had locked her doors before going to bed that night. I
(See N.T. 01/29/15� pp. 41, 53"56).
>
Philadelphia Police Detective Thomas Martinka testified next for the Commonwealth.
i:
Detective Martinka testified that, on March 20, 2013 at approximately 3:00 a.m., he was assigned,
to investigate the robbery and sexual assault of
j .t\-.
, Upon receiving the assignment, he:
!
J.r\-.
and his partner, Detective Taylor, went to Episcopal Hospital to interview•••••· After
d·H·'s
z home,
recording a detailed description of the events, the detectives then went to•••••••••
which was being "held" by uniformed police officers as a crime scene. There, Detectives
Martinka and Taylor took photographs of the scene and collected various pieces of evidence,
J.H.'s
including • purse, pillow case, robe, robe tie, and bed quilt -- all of which were
secured under property receipt for chemical (DNA) analysis. Additionally, Detective Martinka
testified that his Crime Scene Unit attempted to lift fingerprints from various locations inside the
home. (See N.T. 01/29/15, pp. 80-89).
The Commonwealth next called complainant Christopher Darrell Chandler to the stand.
'
Mr. Chandler testified that on July 26, 2013, at approximately 3:00 a.m., he was on his way home,
from work, walking westbound on the 2600 block of Lehigh Avenue, when he was approached
by two black males. One of the males was approximately six feet (6') tall with a lighter
complexion and medium build, and the other was shorter, approximately five feet, seven inches
(5'7") tall with a darker complexion and stocky build. When the males were a few feet from him, '.
Mr. Chandler saw that the shorter male was holding and pointing a gun below his waist. He
ordered Mr. Chandler to "stand right there." Mr. Chandler complied, and the taller male then
4 I
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walked Behind hi� and started rifling through his pockets. The males then ordered him to walk
around the comer with them, where it was darker. There, they went through his wallet, retrieved I
his debit card and asked for his PIN; Mr. Chandler complied. The taller male took the card to an
ATM, while the shorter male continued to hold Mr. Chandler at gunpoint. When the taller male
returned, they told Mr. Chandler to "take a walk and don't look back". He walked straight home
and called police. (See N.T. 01/29/15, pp. 92-101).
When police arrived, Mr. Chandler declined to go looking through the area for his
attackers because he was "too shaken up". Instead, he went to Central Detectives for an
interview, during which he provided a detailed physical descriptions of his assailants. ·Mr.
Chandler subsequently was shown a photo array at his home, from which array he positively
identified Appellant as his assailant. He also positively identified Appellant in court. (See N.T.
01/29/15, pp. I 02-1 U):�
Forensic Nurse Examiner Jenny Smith took the stand next for the Commonwealth. Nurse
Smith testified that, on March 20, 2013 at approximately 6:50 a.rn., she examined•••
J.tt.
�t the Sexual Assault Response Center. Nurse Smith testified that during the
J.H.
examination, •lli.lliil•reported a sexual assault that also involved a weapon, hitting,
grabbing, pushing, gagging, strangulation, being tied up, and verbal threats. More specifically,
she had been hit with a flashlight, gagged with her own thermal pants, had her hands tied behind Ii;
her back, and reported both vaginal and anal penetration by penis. (See N.T. 01/29/15, pp. 122-
134).
.j, tt.
Nurse Smith observed the injuries to•••••
On the external of her vagina, I did note that she had a tear in an
area called the posterior fourchette as well as tenderness. I noted
that she had tenderness to the perineum, anus, as well as a tear on
J
5 !.
/:
11
..
her anus .... [On the inside of her vagina.] I noted that she had
bruising to the left and the right vaginal walls [and] that she also
had internal tenderness to both vaginal walls and the cervix as
well.
(See N.T. 01/29/15, p. 137). Additionally, Nurse Smith observed various injuries to•.
J.Vf.'S .
$ I I 7 person, including: abrasions and lacerations to her mouth (upper and lower lips); ,
l
abrasions, tenderness and a laceration to her neck; an abrasion to her left hand; and a contusion td
I
J,\t,'3 I
her right knee. Nurse Smith also took numerous photographs of injuries. (See
N.T. 01/29/15, pp. 134-136, 139).
J. \t,
Nurse Smith further noted that••••• consented to multiple antibiotics to prevent I
STDs, Plan B contraceptive, and HIV prevention medication. Finally, in addition to drawing•
.J .H. 's I
- blood for a DNA reference sample, Nurse Smith collected swabs of her internal and I
I
external vagina, rectal area and perineum. (See N.T. 01/29/15, pp. 138-140). I
The Commonwealth next presented the testimony of complainant Gregory K. Johnson.
Mr. Johnson testified that, on July 26, 2013 at approximately 4:45 a.m., he was on his way to I
I
work, walking westbound on the 2600 block of Lehigh Avenue, when he was approached by two I
black males. One of the males was approximately five feet, seven inches (5 'T') tall and dark
skinned, and the other was approximately six feet, one inch (6, 1 ») tall with a lighter complexion; ,
both males were holding black handguns. The shorter male grabbed Mr. Johnson by the jacket
and said, "Get over there." The taller male pressed his handgun against Mr. Johnson's head and .
said, "You heard what he said. Get over there." They pulled him over to a parked white van, 1.
where the shorter male went through his pockets, while the taller male held his gun against Mr.
Johnson's head, and repeatedly stated, "I should shoot you." (See N.T. 01/29/15, pp. 143-149)
156-158).
6
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t
The bandits made off with Mr. Johnson's necklace, $800 cash from his wallet/ two cell \
phones (one of which was for his job), $132 cash from his pants pocket, cigarettes and
eyeglasses. The altercation ended when the shorter male discarded Mr. Johnson's wa11et to the
ground, and told him to "stay facing one direction", at which time the males ran in the opposite
direction. Without a phone, Mr. Johnson then proceeded to retrieve his work truck and returned
to Lehigh A venue, where he found a police car sitting at the intersection of 261h and Lehigh.
Upon giving a description to police, he reported to work (because if he did not show up for work, :
he would not get paid). (See N.T. 01/29/15, pp. 149-154).
On August 5, 2013, detectives interviewed Mr. Johnson at his home, during which he
described the robbery and provided a detailed physical description of his attackers. On the same ·
I
·,
date, Mr. Johnson positively identified both Appellant and Co-Defendant Hashiem Clark, from
respective photo arrays, as his assailants. Mr. Johnson also positively identified Appellant and
Co-Defendant Clark in court. (See N.T. 01/29/15, pp. 154-161).
Complainant Earle Wilson also testified at trial. Mr. Wilson testified that, on July 21, .
2013 at approximately 4:20 a.m., he was walking to work on North 291h Street at its intersection
with York Street, when he noticed two black males crossing the street and walking toward him.
One of the males was shorter with a dark complexion, and the other male was taller with a lighter
r
complexion. As they neared Mr. Wilson, the shorter male stated, "What are you looking at?"
Mr. Wilson responded, "Nothing. I'm messing with my keys." The shorter male replied, "I don't ,
like the way you said that", and then the males set in on him. The shorter male retrieved a black
handgun from his waistband and pressed it against Mr. Wilson's chest, while the taller male went
2
Mr. Johnson was carrying the cash because he was going to buy a present for his daughter's
upcoming birthday. (See N.T. Ol/29/15, p. 150).
7
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through his pockets. The males were standing side-by-side and facing Mr. Wilson. They took
his wallet, which contained $26, his SEPTA TransPass, bank card, Social Security card, and birth
certificate, among other things. The males then told Mr. Wilson to walk away; he complied. He ;
I
walked back to his home, and feeling very upset, told his wife he had just been robbed. Mr.
Wilson reported the robbery later that day after work. He was interviewed by detectives at his
·. I
home on August 14, 2013, at which he gave a detailed account of the above events. He was
shown photo arrays but not able to make a positive identification. However, he positively
identified Appellant and Co-Defendant Clark both at the preliminary hearing and at trial, as his
assailants. (See N.T. 01/30/15, pp. 9A9).
Next, the Commonwealth called complainant Alexander Smith to the witness stand. Mr.
Smith testified that, on August 2, 2013 at approximately 3:30 a.m., he was walking on North 16th
Street approaching Susquehanna A venue, when two black males walked past him. He continued '
walking for another half block, at which time the same two males ran up from behind, grabbed
him and pushed him against a parked trailer. Mr. Smith testified that he was then struck in the
back of the head with an object, and then punched in the face. One of the males, whom he
identified as Appellant, pressed a gun against his right side, while the other "tall, black', male
went through his pockets. Appellant and his cohort took Mr. Smith's wallet, which contained his
identification, debit and credit cards, and also took his iPod and car keys. They then told him to
run, and Mr. Smith complied. He saw some kids sitting on a front porch on Diamond Street and
borrowed their phone to call police. After providing a description to the responding police
officer, he was transported to Central Detectives for an interview. Approximately one week later,
Mr. Smith was shown photo arrays, from which he positively identified Appellant. He also
positively identified Appellant in court. (See N.T. 01/30/15, pp. 50-68).
8
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•• II·
The Commonwealth next presented the testimony of complainant J.B.K., a minor. J.B.K'.
testified that, on July 24, 2013 at approximately 11 :00 p.m., she was walking on the 2600 block :
of North 22"d Street, when she was approached by two black males -- one of whom was short and
I
dark-skinned, and the other was tall. The taller male pulled out a black handgun, which
!
resembled "a police gun", and the shorter male instructed, "Grab her, get her up, take her across
the street"; the taller man obliged, grabbing J.B.K. by the back of the neck and pushing her across'
i
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the street. The talier male grabbed her purse and emptied its contents on the sidewalk. The
shorter male then pulled J.B.K. -- then just 15 years old·- into an adjacent alley, removed her
pants, reached beneath her underwear, and fondled her vagina. When the taller man appeared
and announced that he was "done", the males escorted J.B.K. out of the alley and told her to go
back where she came from and that "if [she] called the police, it was not going to be nice." (See
N.T. 01/30/15, pp. 81-95).
J.B.K. walked away and, after waiting until she was at a safe distance, borrowed a
pedestrian's cell phone to call police. Police arrived immediately; upon describing what had just
happened, she was transported to the Special Victim's Unit (l(SVU"), where she was interviewed
by a female detective. Among other things, she described the physical characteristics and
clothing of the shorter male as; "African American, early 20s, dark skinned, short[,] bald, and
had a beard. He was wearing gray shorts and black sneakers." She described the second male
as: "African American, early 20s, tall". (See N.T. 01/30/15, pp. 96-99).3
3
The Commonwealth next called Philadelphia Police Officer Andrew McCrea, Detective
Keenya Taylor, and Detective Linda Pace, respectively. Officer McCrea testified that he
responded to the above incident concerning J.B.K., prepared the initial (75-48) report, and
ultimately transported J.B.K. to the SVU. Detective Taylor testified that she interviewed J.B.K.
at the SVU on the night of the attack. Detective Pace testified that, on August 8, 2013, she
conducted a follow-up interview of J .B.K. at her residence for the purpose of presenting a photo
array, but J.B.K. was unable to make an identification. (See N.T. 01/30/15, pp. 114-134).
9
l
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...
Philadelphia Police Detective James Waring testified next for the Commonwealth.
Detective Waring testified that, along with his partner, Detective Ralph Domenic, he is a member
I
of Central Detectives' Special Investigative Unit, and works exclusively on robberies. As part of
his work, Detective Waring reviews all robbery complaints that come in, in order to look for
"patterns" -- �. similar incidents, in the same areas, similar descriptions of the offenders,
weapons used, et cetera. (See N.T. 01/30/15, pp. 136-139).
Detective Waring observed one such pattern in a specific set of robberies in July and
August 2013:
In each of the robberies there were two black males. The
descriptions for most of them were taller black male and a shorter
black male. They were occurring, for the most part, along Lehigh
A venue and maybe a couple blocks south of there with handguns.
A lot of them -- well, most of them were after midnight and then
up until 3:00 or 4:00 in the morning. So that's what -- I mean, we
recognized the pattern pretty easily.
(N.T. 01/30/15, p. 139).
Detective Waring testified that the above pattern applied to the robberies of Christopher
Chandler, Gregory Johnson, Earle Wilson, Alex Smith, and J.B.K. Accordingly, he canvassed
the area looking for surveillance videos, and was able to find a couple from neighborhood stores.
The videos, which were shown to the jury, depicted two males walking to/from the robberies of
Mr. Chandler and Mr. Johnson (Mr. Johnson also appeared in one the videos as he was being
robbed). The same two males were wearing the same clothes in both videos; they matched the
descriptions as reported by Mr. Chandler and Mr. Johnson; and were traveling in the direction
consistent with said reports. Still images of the males also were shown to the jury. Detective
Waring testified that he attempted, but could not find, surveillance videos pertinent to the
robberies of Earle Wilson, Alex Smith and lB.K. (See N.T. Ol/30/15, pp. 143-158).
10
Detective Waring testified that, consistent with police protocol, he posted the videos on
YouTube. Information subsequently received from viewers, led him to follow up with Mr.
Johnson at his residence on August 5, 2013. Detective Waring presented him with a photo array.]
from which Mr. Johnson positively identified Appellant as one of his assailants. Later that day, ,
Detective Waring obtained and executed a warrant to search Appellant's home. Appellant was
not home; however, Detective Waring encountered a woman by the name of Sharita Gaines, who l
I
was in possession of proceeds from one of the robberies, to wit, Mr. Smith's iPod (as confirmed
by Mr. Smith per its contents). The iPod was recorded on a property receipt and returned to Mr. ,
Smith. (See N.T. 01/30/15, pp. 159-165).
Detective Waring transported Ms. Gaines to Central Detectives for an interview. As a
result of the interview, he deveJoped a second suspect -- Co-Defendant Clark. Accordingly, he
met with Mr. Johnson and presented him with a second photo array that included Co-Defendant
Clark. Mr. Johnson positively identified Co-Defendant Clark as the other male who had robbed
him. Detective Waring thereafter presented photo arrays to Mr. Chandler, who positively
identified Appellant as his assailant; Mr. Chandler was unable to identify Co-Defendant Clark
from the second array. (See N.T. 01/30/15, pp. 165-170).
Detective Waring obtained arrest warrants for Appellant and Co-Defendant Clark, the
latter of whom was taken into custody first. Co-Defendant CJark consented to a formal interview
on August 13, 2013. In his interview, Co-Defendant Clark provided detailed accounts of the
robberies of Messrs. Johnson, Chandler, Smith and Wilson; he admitted to committing these
robberies with the "same guy" each time. (See N.T. 01/30/15, pp. 189-198).
Early the next day, August 14, 2013, Appellant attempted to turn himself in at a Federal
Immigration Custody Enforcement (ICE) building. Police were notified and he was taken into
1I
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custody; on the same date, Appellant agreed to be interviewed. Appellant provided detailed \
)
accounts of the robberies of Messrs. Johnson, Chandler, Smith and Wilson> which he admitted to
'
committing with the same "other guy". (See N.T. 01/30/15, pp. 199-218).
1
Detective Waring also testified that as part of the intake process, the height and weight of
arrestees are recorded. In that regard, at the time of their respective arrests, Appellant was five
feet, seven inches (5 'r) tall and weighed 155 pounds, and Co-Defendant Clark was six feet (6')
tall and weighed 195 pounds. (See N.T. 02/02/15, pp. 7-8).4
The Commonwealth also called its expert DNA analyst, Gregory Van Alstin, to the stand. 1
Mr. Van Alstin, who works in the DNA Jab at the Philadelphia Office of Forensic Science,
testified that he conducted DNA comparison analyses of samples from the items collected at•·
J.\-\.)S
-residence. Specifically, Mr. Van Alstin extracted DNA profiles from the collected
J.H.) .
items and compared them with the known DNA profiles of Co-Defendant Clark,
J. t-\. l5
and Appellant. Based on his analysis, Mr. Van Alstin was able to determine that lliilillllil••
J.t\.
robe tie had one major DNA contributor �- -- along with two minor contributors.
While the DNA from the minor contributors was insufficient to render a conclusive
determination, Mr. Van Alstin was able to conclude that at least one of the minor contributors
j.t-\-.
was a male, Further, Mr. Van Alstin was able to determine that both Appellant and•iililill••
J.H.i.s
were contributors to the DNA from the shoulder strap/zipper of handbag. Mr. Van
l·
4
The Commonwealth next presented the expert testimony of Deanna Zarzecki, a forensic
scientist with the Philadelphia Office of Forensic Science. Ms. Zarzecki j�tw(ithat she was
asked to analyze various items collected under property receipt from residence,
for the presence of: (1) acid phosphatase (an enzyme present in seminal fluid); (2) p.30 (a
protein found in seminal fluid); and (3) sperm. Ms. Zarzecki was unable to detect the presence
of any of the above substances. (See N.T. 02/02/15, pp. 35-59).
\.
12
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Alstin issued these findings to a reasonable degree of scientific certainty (See N .T. 02/02/15, pp.
i.
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62-73, 77- 79).
Next, the Commonwealth called Sharita Gaines to the stand. Ms. Gaines testified that she '.
had been AppelJant's girlfriend since 2011, and still was his girlfriend at the time of trial. Ms. l·
I'
Gaines testified that during the period of March to August 2013, she recalled seeing Appellant
and Co-Defendant Clark together periodically. In August 2013, Philadelphia Police Detectives
searched her house, at which time they recovered an iPod from her purse. Ms. Gaines testified
that she had obtained the iPod from Appellant. On the same date of the search, she was taken to
Central Detectives for an interview, at which time she was shown two surveillance videos from
the robberies; Ms. Gaines identified Appellant and Co-Defendant Clark in the surveillance
videos. Ms. Gaines also positively identified Appellant and Co-Defendant Clark from another
surveillance video shown at trial. Finally, Ms. Gaines admitted to observing a flat screen
television in her home that she had not seen before, i.e., waking up in the morning to see it onher
floor. Appellant told her at the time that he had gotten it from the junkyard. (See N.T. 02/02/15,
pp. 86-96).
The Commonwealth next called Detective Kevin Gage to the stand. Detective Gage
j.\\.l.S
testified that, upon being assigned to case on March 20, 2013, he went around her I:
neighborhood looking for surveillance videos. He was successful in locating surveillance
j.\'\,'.5
footage from a pizza parlor across the street from ••••• residence. The video, which was
taken on March 20, 2013, was shown to the jury at trial; it depicted two males hovering in front I:
1:
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Mr. Van Alstin observed that the remaining samples that he tested either contained data that
was insufficient for comparison or no inclusions for Appellant or Co-Defendant Clark. (See
N.T. 02/02/15, p. 79).
13
J.rt. )5
of and alongside•II••• residence shortly before 2:00 a.m., and the same two males
reemerging at 2:44 a.m. carrying items in their hands. (See N.T. 02/02/15, pp. 113-134).
Additionally, Detective Gage testified that various items from the scene were submitted to
the chemical lab for forensic analysis. Information received from the lab led to the development :
of Appellant as a suspect. On August 5, 20 I 3, he assembled a photo array and presented it to
J.H. .
•1. !
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Z , but she was unable to identify him. On the following day, Detective Gage and several ,
other members from the SVU went to Appellant's address on Corlies Street; neither Appellant
nor his girlfriend, Sharita Gaines, was home. He located Ms. Gaines, however, at a grocery store
around the corner. He described the nature of his investigation, and asked if she would come to
the SVU to speak further about it; she agreed. There, he showed Ms. Gaines the same
surveillance video, from which she was able to positively identify both males as Appellant and
Co-Defendant Clark Ms. Gaines also provided a statement documenting the above
identification, which was submitted into evidence. (See N.T. 02/02/15, pp. 135·142).
Detective Gage thereafter obtained arrest warrants for Appellant and Co-Defendant Clark,
the latter of whom was taken into custody on August 13, 2013. Co-Defendant Clark consented to
I
an interview, during which he admitted to participating in the robbery and burglary of J.B.K. and
j,\-\-.
•••••· respectively, but denying any role in their sexual assaults. (See N.T. 02/02/15, pp.
143-168).
On the following day, Detective Gage learned that Appellant had attempted to turn
himself in at a Federal ICE building. Appellant was transported to the SVU, where he agreed to
.j. \-t '>£
be interviewed. In relevant part, Appellant admitted to breaking into••••• residence,
sexually assaulting her, and taking her valuables:
1·
14
QUESTION: Okay. You and the other guy are inside and
what happened next?
ANSWER: When we went upstairs, we thought we heard
voices; but it wasn't voices. It was one voice from inside the door
in the back bedroom. We went into the back bedroom and the
other guy grabbed her and I went in and assisted him. We grabbed
her and this is when the other guy was grabbing her. The other
guy was choking her. She wasn't kicking or punching. Then we
were asking her where he was at or where the money was at. She
was saying, No, he isn't here. We was in there for a minute; ten or
fifteen minutes. I think I did the dumbest thing I could have done
to keep her to shut up.
QUESTION: What did you do to her?
ANSWER: I actually didn't do anything to her. I pulled
my pants down and then I did it. I did the dumbest thing I could
have done. I put my dick in her.
QUESTION: Where did you put your dick?
ANSWER: I didn't go into her butt. I put it into her
vagina. I did this while I told her I would give her something to
holler about. I just went off. I didn't let it go on for long. I-
snapped back out of it. The other guy was just sitting there on the
chair looking at me. I just stepped back there and then I was just
tripping. I got off of her. Then the other guy was sitting there with
his pants down and the next thing I know ·- I remember is the other
guy coming over with some kind of rag or something with some ,·
kind of soap or something. He got on her. I was in the bedroom
and I was snorting powder. I saw the other guy on her. Then I I
believe he was having sex with her, too. I saw him. He was
rubbing her to clean her up afterward. He then told me he had
soap on his hands and that he threatened her. Then he cleaned her
up. The whole time I was just sitting there and my mind was
blacking out. Then we got out of there. I
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QUESTION: What did you take from the house before you
and the other guy left?
ANSWER: Two TVs and a air-conditioner. I think there
was a couple of pieces ofjewelry, too. I didn't get any money or
anything. He may have [gotten] some.
15
(See N.T. 02/02/15, pp. 168-169; N.T. 02/03/15, pp. 10-29).
Detective Gage testified that Appellant also was questioned about the robbery and sexual i
I
assault of J.B.K. Appellant admitted to participating in the robbery -- i.e., accompanying the
other guy who pressed a gun against her side, and further, going through her handbag for
valuables -- but denied sexually assaulting her:
QUESTION: You didn't take anything from her that night
but you were there when the other guy pointed his gun at the girl
and then started going through her bag, correct?
ANSWER: Yes. But we didn't rape her.
QUESTION: When you were going through her pockets,
do you think she felt that was a sexual assault?
ANSWER: Actually she didn't have no pockets. When
she was walking up, the other guy was able to go right up to her
and walk her right into the park. She had a skirt on with no
pockets. She had a shirt on with her stuff hanging all out. Nobody
touched her. After that, I told her to walk straight down. Nobody
touched her vagina. Once the bag was empty, there was nothing
else to do. I didn't grab her pussy. I looked when she was pulling
at her clothes and shaking them. I looked to see if anything else
fell out, but I didn't touch her.
(See N.T. 02/03/15, pp. 33-37).
Finally, the Commonwealth rested its case with stipulated evidence establishing that
neither Appellant nor Co-Defendant Clark possessed a valid license or permit to carry a firearm
at the time of the above events. (See N.T. 02/03/15, pp. 70-71).6
l
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6
Neither Appellant nor Co-Defendant Clark testified at trial. For his case-in-chief, Co-
Defendant Clark briefly called Detective Ralph Domenic, Detective Waring's partner, to discuss
"
j.
recent changes to the photo array process. Specifically, approximately one month prior to trial,
the Philadelphia Police Department changed its photo identification process so that instead of
one sheet with eight (8) smaller photographs, witnesses are presented with six (6) individual ((8 x
I 0,, photographs. (See N .T. 02/03/15, pp. 89-99).
16
Based on all the above evidence, the jury found Appellant guilty of the above-referenced
offenses, and this Court subsequently imposed sentence as previously set forth.
ISSUES ON APPEAL
In its Judgment Order, the Superior Court identified the following issues for review:
l. Whether the evidence was insufficient to sustain a verdict of
guilty [in the cases involving Ms. Hawkins, Mr. Wilson, and
J.B.K.,] where the victims were unable to identify (Appellant] as
the person who committed the crimes[?]
2. Whether the verdict was against the weight of the credible
evidence where[,] although a statement was read into the record
from Appellant regarding his supposed involvement in the robbery
of �n, there was no other valid independent or
corroborating evidence[?]
3. Whether the verdict was against the weight bf the credible
evidence in that[,) although a statement was read into the record
from Appellant regarding his supposed involvement in the robbery
and assault of [J.B.K.], there was no DNA analysis, no
identification or other independent or corroborating evidence[?]
4. The verdict was against the weight of the credible evidence in
thatj.] although a statement was read into the record from
(Appella����!J��.!1is supposed involvement in the sexual
. assault o� the Jack of identification along with the
DNA evidence at trial showed otherwise.
5. Whether the trial court imposed an illegal, excessively punitive
sentence where [the] aggregate sentence (36 to 72 years) amounts
to a life sentence for [] Appellant and Appellant received an illegal
sentence on the indecent assault(?] The [ c]ourt failed to consider
the guidelines in fashioning an appropriate sentence and failed to
provide adequate reasons on the record.
Commonwealth v. Riggins, No. 3 7 EDA 2016 (September 26, 2017) (Judgment Order), pp. 2�3
(brackets in original).
17
DISCUSSION
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At the outset it must be observed that, notwithstanding the Superior Court's Judgment
Order, this Court still is of the opinion that the above issues -- which were never presented to the
Court al any point -- are waived on appeal.
In its Judgment Order, the Superior Court observed:
... Appellant was charged in six separate cases, which
were consolidated for trial Following his conviction and
sentencing, he filed timely post-sentence motions in each case.
Those motions were ultimately denied, and Appellant filed timely
notices of appeal in each case. The tnal court then directed
Appellant to file a Pa.R.A.P. l 925(b) concise statement of errors
complained of on appeal. Problematically, Appellant chose to file
six different (albeit similar) Rule l 925(b) statements in each of his
cases. Apparently, the trial court did not realize that Appellant was ·•
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filing multiple concise statements. While the court ultimately I
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drafted a well-reasoned and detailed opinion, it inadvertently erred
I
by concluding that Appel lant had waived his sufficiency of the
evidence claim(s) based on the single Rule l 925(b) statement the
court assessed.
Commonwealth v. Riggins, No. 37 EDA 2016 (September 26, 2017) (Judgment Order), pp. 1-2. I!
As the Superior Court correctly noted, Appellant's cases were consolidated into a single
action for trial; accordingly, this Court issued a single Order directing Appellant to file and serve
a Rule 1925(b) statement within 21 days. Significantly, counsel for Appellant provided the I'
Court with only one (I) Rule 1925(b) statement, setting forth eight (8) issues, each of which the
Court addressed in its Rule l 925(a) Opinion.
No other Rule 1925(b) statements were ever served on the Court; thus the Court had
nothing else to address in its Opinion. Appellant's failure to serve the Court with copies of the
alleged other Rule 1925(b) statements run afoul of both the letter and spirit of Rule 1925, and in
fact, already has hampered review. As such, the Court finds the above issues waived.
,,
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Notwithstanding waiver, in the interests of judicial and temporal efficiency, the Court
shall address the merits of the above claims. For the reasons that follow, each is without merit.
1. Sufficiency of the Evidence
Appellant claims that the evidence was insufficient to sustain the jury's verdicts of guilty 1•
J.". t
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as to , Mr. Wilson and J.B.K. because they were unable to identify Appellant
These claims fail.?
a. Sufficiency Standard
In evaluating a challenge to the sufficiency of the evidence, a reviewing court must view '
the evidence in the light most favorable to the Commonwealth as verdict winner. rt accepts as
true all the evidence, direct and circumstantial, and all reasonable inferences arising therefrom
upon which the finder of fact could properly have based its verdict, in determining whether the
evidence and inferences are sufficient to support the challenged conviction. Commonwealth v.
Carroll, 507 A.2d 819, 820 (Pa. 1986), Commonwealth v. Griscavage, 517 A 2d 1256, 1259 (Pa.
1986); Commonwealth v. Hopkins, 74 7 A.2d 910, 913 (Pa. Super. 2000).
"[Tjhe facts and circumstances established by the Commonwealth need not preclude
every possibility of innocence." Commonwealth v. Jones, 874 A.2d 108, 120 (Pa. Super. 2005);
7Appellant's sufficiency claims additionally are waived due to utter lack of specificity. As the
Superior Court "has consistently held":
If Appellant wants to preserve a claim that the evidence was insufficient, then the
1925(b) statement needs to specify the element or elements upon which the
I'
evidence was insufficient. This Court can then analyze the element or elements
on appeal. [Where a] I 925(b) statement [ ] does not specify the allegedly
unproven elements[,] ... the sufficiency issue is waived [on appeal].
Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa Super. 2015) (citations omitted). Here,
Appellant does not cite which offenses, let alone elements, he is challenging on appeal. As such,
his sufficiency claims are waived. See id.
19
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see Commonwealth v. Rippy, 732 A.2d 1216, 1218-1219 (Pa. Super. 1999) (while conviction
must be based on more than mere speculation, "the Commonwealth need not establish guilt to a
mathematical certainty") "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." Commonwealth v.
Hutchinson, 947 A.2d 800, 806 (Pa. Super. 2008) (emphasis in original); see also
Commonwealth v. Sneddon, 738 A.2d 1026, 1027 (Pa. Super. 1999)
"The Commonwealth may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial evidence." Commonwealth v.
Jones, 874 A.2d at 120. Thus, the decision of the trier of fact will not be disturbed where there is
support for the verdict in the record. Commonwealth v. Bachert, 453 A.2d 931, 935 (Pa 1982).
When assessing the sufficiency of the evidence, this Court "may not weigh the evidence and
substitute (its] judgment for that of the fact-finder." Commonwealth v. Yetrini, 734 A.2d 404,
407 (Pa. Super. 1999).
"Moreover, in applying the above test, the entire record must be evaluated and all
evidence actually received must be considered" Hutchinson, 947 A2d at 806. "Finally, the trier
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." M_
b. Application
J'
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Applying the foregoing principles, Appellant's sufficiency claims fail. It bears noting at
I
the outset that Appellant's claims rest exclusively on lack of identification by the above victims. !
Appellant, however, overlooks the fact that he identified himself by admitting to participating in
each of the above attacks. In that regard, he does not challenge the voluntariness of his
confessions. Simply put, Appellant's confessions, combined with the detailed testimony of the
above complaining witnesses, police officers, detectives, and Appellant's girlfriend, Ms. Games
(who identified him on the surveillance videos), in addition to the DNA evidence and video
surveillance>- amply sustain the jury's verdicts in this case. Cf. Commonwealth v. Gonzalez,
109 A.3d 711, 721, (Pa. Super.), appeal denied, 125A.3d1198 (Pa. 2015) (victim's
uncorroborated testimony is sufficient to support a rape conviction); see also Commonwealth v.
Jones, 874 A.2d at 120 (Commonwealth may sustain its burden of proof by means of wholly
circumstantial evidence).
2-4. Weight of the Evidence
Next> Appellant claims that he is entitled to a new trial on the allegation that the jury's
-:f.t\.
verdicts, with respect to Mr. Wilson, J.B.K. and•••••· were against the weight of the
evidence. For the reasons that follow, Appellant's claim is unavailing
a. Weight Standard
Given the primary role of the jury in determining questions
of credibility and evidentiary weight, [the] settled but extraordinary
power vested in trial judges to upset a jury verdict on grounds of
evidentiary weight is very narrowly circumscribed. A new trial is
warranted on weight of the evidence grounds only «in truly
extraordinary circumstances, i.e., when the jury's verdict is 'so
contrary to the evidence that it shocks one's sense of justice and
the award of a new trial is imperative so that right may be given
another opportunity to prevail.'"
:
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Criswell v. King, 834 A.2d 505, 512 (Pa. 2003) (emphasis in original) (citations omitted). Thus,
!
"the initial determination regarding the weight of the evidence was for the fact finder", the jury m
this case, which "was free to believe all, some or none of the evidence". Commonwealth v.
Habay, 934 A.2d 732, 737 (Pa. Super. 2007) (citation omitted); see also Commonwealth v.
Manchas, 633 A.2d 618, 623 (Pa Super. 1993) (it is the exclusive role of the jury to evaluate the
credibility of the witnesses and to resolve any conflicts in the testimony). "Additionally, the
evidence at trial need not preclude every possibility of innocence, and the fact-finder is free to
resolve any doubts regarding a defendant's guilt 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."
Commonwealth v. Patterson, 940 A.2d 493, 500 (Pa. Super. 2007).
A motion for a new trial on the grounds that the verdict is contrary to the weight of the
evidence, concedes that the evidence was sufficient to sustain the verdict. Commonwealth v
Widmer, 744 A.2d 745, 751 (Pa. 2000) ( citation omitted). In reviewmg a weight clarrn, trial
judges must not simply "reassess" the credibility of the witnesses, as they "do not sit as the
thirteenth juror." Id. at 752 (citation omitted). "Rather, the role of the trial judge is to determine
that '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 ,,, 19...
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b. Application
22
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· Instantly, having presided over Appellant's jury trial, the Court is confident that the
jury's verdicts with regard to Mr. Wilson, J.B.K. and Ms. Hawkins, were soundly supported by
the weight of the evidence. Nonetheless, Appellant's claims fail.
i.-ii. Mr. Wilson and J.B.K.
With respect to the attacks against Mr. Wilson and J.B.K., Appellant claims that, other
than his confession, there was "no other valid independent or corroborating evidence». Thus,
Appellant really is challenging the sufficiency, not the weight, of the evidence In that regard, it
is well settled that a weight of the evidence claim concedes that the evidence was sufficient to
sustain the verdict. Commonwealth v Widmer, 744 A 2d ay 751. For this reason alone,
Appellant's claims fail.
Even assuming arguendo that Appellant's premise is correct -- i.e., that there was no
other evidence of guilt (and of course there was) -- he essentially is claiming that the testimony
of Mr. Wilson and J.B.K. was not credible. However, sitting as fact finder, the jury certainly was
entitled to believe or disbelieve any of the evidence, including the above victims' testimony and
Appellant's confession. See Commonwealth v. Habay, 934 A.2d at 737. Indeed, it was the jury's
exclusive function to evaluate the credibihty of the witnesses and to resolve any conflicts in the
testimony. See Commonwealth v. Manchas, 633 A.2d at 623. Appellant for that matter does not
cite any conflicts in testimony, nor does the record support any In fact, the testimony of Mr.
Wilson and J.B.K. was detailed, consistent and uncontradicted, and the jury certainly was
entitled to credit it. Simply put, the jury's verdict was hardly contrary to the evidence to the
1·
effect of shocking one's sense of justice. I
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111. Ms. Hawkins
23
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J .tt.
Appellant's claim with respect to •• is slightly different. He alleges that the
verdict was against the weight of the evidence because, other than his confesston, "the lack of
identification along with the DNA evidence at trial showed otherwise." Thus, while he still
essentially challenges the sufficiency of the evidence, which is of no avail, he apparently is
arguing that the DNA evidence established his innocence. Of course, the DNA evidence, or any '.1
lack thereof, did no such thing.8 Nor would it in the face of the ample competent evidence -- i:
including but not limited to Appellant's own confession and his girlfriend's identification of him
in the surveillance video walking away from
J• .tPS• 3 residence carrying large objects --
which the jury certainly was entitled to credit in reaching its verdict. In sum, there simply exists
no basis for disturbing the jury's sound verdict.
5. Sentencing
Finally, Appellant claims that the Court erred by imposing an illegal sentence, and
abused its discretion by imposing an excessive sentence without considering the sentencing
guidelines or providing adequate reasons the record. Appellant's sentencing claims are devoid of
merit.
Preliminarily, while Appellant uses the term "illegal», he does not present a claim of
"illegal sentence", "'[A]n illegal sentence is one that exceeds the statutory limits."'
Commonwealth v. Berry, 877 A.2d 479, 482 (Pa. Super. 2005) (en bane) (quoting
Commonwealth v. Bradley, 575 Pa 141, 834 A.2d 1127, J 131 (Pa 2003). Alternatively, '"ifno
statutory authorization exists for a particular sentence, that sentence is illegal and subject to
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8
Based on his DNA analysis, Mr. Van Alstin was able to deterrn1w
as a contributor to the DNA from the shoulder strap/zipper oft ) w�kI Appellant was included
' handbag (recovered
at her residence).
'
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correction."' Berry at 483 (quoting Commonwealth v.·,Lipinski, 841 A.2d 537, 539. (Pa. Super.
2004). Neither of the above applies here.
In fact, far from imposing "an illegal sentence on the indecent assault", the Court actually
imposed no further penalty -- i.e., no sentence at all -- on the indecent assault conviction:
THE COURT: ... And on 0013662-2013 ... There will be no
further penalty on the robbery charge or the indecent assault
(N.T. 11/06/15, p. 129). Thus, Appellant's claim of "illegal sentence" is emphatically meritless.
Appellant's discretionary aspects of sentencing claims fare no better. It is well settled
that sentencing is a matter vested in the discretion of the sentencing court and w111 not be
disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Gribble, 703 A 2d
426, 437 (Pa. 1997). "In this context, an abuse of discretion is not shown merely by an error in
judgment. Rather, the appellant must establish, by reference to the record, that the sentencing
court ignored or misapplied the Jaw, exercised its judgment for reasons of partiality, prejudice,
bias or ill will, or arrived at a manifestly unreasonable decision." Commonwealth v. Rodda, 723
A.2d 212, 214 (Pa. Super. 1999) (en bane) (citations and internal quotations omitted) A
reviewing court must accord great weight to the sentencing court's discretion because it is in the
best position to view a defendant's character, exhibition of remorse, indifference, and the general
nature of the crime. See Commonwealth v. Sierra, 752 A.2d 910, 915 (Pa. Super. 2000);
Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999)@ bane).
Here, the record demonstrates that the Court considered all relevant facts and
circumstances and thoroughly explained its rationale prior to imposing sentence. Specifically, in
1.
.
addition to Appellant's presentence investigation report and the sentencing guidelines, this Court I
I,
expressly considered the violent nature and circumstances of Appellant's offenses, his SVP
25 r
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status, the protection of the public, the gravity of the offenses, the character and condition of
Appellant, his family background and support, his children, his scant work history, his
passive
expression of remorse, and his substantial prior record -· which, just as an adult,
comprised
seventeen ( l 7) arrests, eleven ( l l) convictions, thirteen ( 13) commitments, eight (8) violations
and seven (7) revocations. (See N.T. l l/06/15, pp. 82� l 33). Thus, Appellant's
sentencing
claims are utterly meritless,
CONCLUSION
Based on the foregoing reasons, as well as those set forth in the Court's previous Rule
l 925(a) Opinion, this Court' s judgment of sentence should be affirmed.
BY THE_��T:�
/!)hJz__
DATE: -..:. . . . , ....._,,,. ._.__,_
��
SUSAN I. SCHULMAN, J
26
I,
PROOF OF SERVICE
I, Darece Williford, secretary to Honorable Susan I. Schulman, hereby certify that I
served, on October 11, 2017 by first-class mail, postage prepaid, a true and correct copy of
the foregoing Opinion on the following:
Leanne l. Litwin, Esquire
100 South Broad Street
Suite 2126
Philadelphia, PA 19110 ,.
Hugh Burns, ADA
District Attorney's Office
Three South Penn Square
Philadelphia, PA 19107
Darece Williford