J-S59004-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

DARNELL LEGGETT,

Appellant

: IN THE SUPERIOR COURT OF 

: PENNSYLVANIA

:

:

:

:

:

:

: No. 1505 EDA 2013

Appeal from the Judgment of Sentence Entered February 5, 2008,

In the Court of Common Pleas of Philadelphia County, 

Criminal Division, at No. CP-51-CR-0909771-2003.

BEFORE: SHOGAN, J., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 09, 2014

Appellant, Darnell Leggett, appeals nunc pro tunc from the judgment 

of sentence entered February 5, 2008. For the reasons that follow, we 

vacate and remand for resentencing.

We summarized the facts and early procedural history in a prior 

appeal, as follows:

On July 10, 2003, a violent altercation ensued [among 

Appellant], Patricia Herlocher, and William Higgins, Herlocher’s 

boyfriend, at a residence located at 1307 Foulkrod Street, in the 

City of Philadelphia. That evening, Herlocher, Higgins, and 

[Appellant] were smoking crack together in the basement of the 

residence, after which, Higgins went upstairs to lie down. 

Subsequently, Herlocher came upstairs and complained to 

Higgins that [Appellant] was acting “fresh” towards her and 

scaring her, and that she wanted [Appellant] to leave the house. 

Subsequently, [Appellant] left the house after Higgins confronted 

him with a shillelagh, which is a large walking stick. However, 

the confrontation turned extremely violent when [Appellant] 
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returned to the house, and struck Higgins in the head with the 

shillelagh repeatedly, and also stabbed him several times with a 

twelve inch steak knife. [Appellant] then followed Herlocher 

outside the house and stabbed her in the right buttock.

On August 11, 2003, [Appellant] was arrested and charged 

with two counts of aggravated assault and possessing 

instruments of crime. On March 1, 2004, following a jury trial, 

[Appellant] was convicted of one count of aggravated assault on 

Higgins, and also of possession of instruments of crime. 

Thereafter, on December 9, 2004, [Appellant] argued a postverdict motion for extraordinary relief, requesting a new trial. 

Specifically, [Appellant] argued that he should have been 

allowed to impeach Herlocher with a hospital record containing a 

notation in which she allegedly stated that her boyfriend’s exgirlfriend was the person who had stabbed her. On December 

22, 2004, the trial court granted [Appellant’s] motion for 

extraordinary relief, concluding that the court had made 

reversible error when it refused to allow [Appellant] to impeach 

Herlocher with the alleged prior inconsistent statement contained 

in the hospital record.

Commonwealth v. Leggett, 418 EDA 2005, 944 A.2d 794 (Pa. Super. filed 

November 30, 2007) (unpublished memorandum at 1–2). In that decision, 

this Court reversed, concluding that the trial court erred in finding that

Appellant “had established that the notation in the hospital record 

constituted a prior statement of Herlocher.” Id. at 5. Thus, we remanded 

the case for sentencing.

On February 5, 2008, the trial court sentenced Appellant to five to ten 

years of imprisonment for aggravated assault and four years of probation for 

two counts of recklessly endangering another person (“REAP”), to run 
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consecutively. The trial court summarized the ensuing procedural history as 

follows:

On June 27, 2008, the trial court held an evidentiary hearing on 

a post-sentence motion for a new trial, regarding an alleged 

stipulation about the medical records. [The Honorable Harold 

M.] Kane[, who is retired,] denied the motion on July 11, 2008. 

[Appellant] filed a pro se PCRA petition on January 30, 2009. 

The case was transferred to be heard by the Honorable Denis P. 

Cohen, Judge of the Court of Common Pleas, on January 20, 

2012.[1] A PCRA hearing was held on May 13, 2013.[2] At that 

hearing, Judge Cohen ordered that [Appellant’s] appellate rights 

be restored nunc pro tunc. [Appellant] filed his Notice of Appeal 

on May 21, 2013, and this [c]ourt issued its 1925(b) order on 

September 5, 2013. On October 7, 2013[, Appellant] filed a 

Motion for Extension of Time as well as a nunc pro tunc

Statement of Matters, setting forth the . . . matters for appeal.

Trial Court Opinion, 12/26/13, at 2.

Appellant raises the following issues on appeal:

A. Whether The Verdict of Was Insufficient as a Matter of Law 

and Against the Weight of the Evidence where the Testimony 

was based on the inconsistent testimony of the complainant who 

admitted to using drugs at the time of the incident?

B. Whether The trial court erred in denying [Appellant’s] post 

sentence motion there was a stipulation between the parties with 

 

1

 It appears that the significant delay between the filing of the PCRA petition 

on January 30, 2009, and the PCRA hearing on January 20, 2012, occurred 

due to multiple withdrawals of counsel and multiple requests for 

continuances by the defense, on February 11, 2011, July 29, 2011, 

September 30, 2011, January 20, 2012, January 30, 2012, March 9, 2012, 

April 16, 2012, May 18, 2012, June 18, 2012, September 24, 2012, 

November 5, 2012, November 30, 2012, and February 15, 2013.

2

 The notes of testimony from this hearing are not in the record certified to 

us on appeal.
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regard to a statement made by the complainant in the medical 

records that should have been admissible at trial?

Appellant’s Brief at 5 (verbatim).

Appellant combines his contention that the verdict was not supported 

by sufficient evidence with his claim that it was against the weight of the 

evidence. In reviewing the sufficiency of the evidence, we must determine 

whether the evidence admitted at trial and all reasonable inferences drawn 

therefrom, viewed in the light most favorable to the Commonwealth as 

verdict winner, were sufficient to prove every element of the offense beyond 

a reasonable doubt. Commonwealth v. Rivera, 983 A.2d 1211 (Pa. 

2009). It is within the province of the fact-finder to determine the weight to 

be accorded to each witness’s testimony and to believe all, part, or none of 

the evidence. Commonwealth v. Diamond, 83 A.3d 119 (Pa. 2013). The 

Commonwealth may sustain its burden of proving every element of the 

crime by means of wholly circumstantial evidence. Commonwealth v. 

Hansley, 24 A.3d 410 (Pa. Super. 2011). Moreover, as an appellate court, 

we may not re-weigh the evidence and substitute our judgment for that of 

the fact-finder. Commonwealth v. Kelly, 78 A.3d 1136 (Pa. Super. 2013).

Appellant’s argument that the verdict is not supported by sufficient 

evidence is based on his contention that the trial testimony of victim William 

Higgins “did not make sense.” Appellant’s Brief at 10. Appellant asserts 

that Higgins, who admitted having a nervous condition, “confronted the 
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Appellant with a large stick . . . and then claimed that he put the stick down 

even though the Appellant did not leave after being threatened with harm.” 

Appellant’s Brief at 10. Appellant also avers that the victim testified he was 

repeatedly beaten and stabbed with a knife, but his medical records revealed 

that his only injuries were a five-centimeter scalp laceration and two 

lacerations on his leg. Id.

We conclude that Appellant’s challenge to the sufficiency of the 

evidence is waived because Appellant failed to specify which elements of the 

crimes were not satisfied. In Commonwealth v. Williams, 959 A.2d 1252 

(Pa. Super. 2008), we stated, “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 evidence was insufficient. This 

Court can then analyze the element or elements on appeal.” Id., 959 A.2d 

at 1257. Here, such specificity is lacking in Appellant’s claim of error and, 

therefore, Appellant’s claim is unreviewable.

Appellant’s challenge to the sufficiency of the evidence fails on a 

separate basis as well. While Appellant presented his question in terms of 

sufficiency, the argument portion of the brief is an attack on victim Higgins’s 

credibility. It is well settled that a challenge to the credibility of a witness is 

a challenge to the weight of the evidence and not the sufficiency of the 

evidence. Commonwealth v. Lopez, 57 A.3d 74, 80 (Pa. Super. 2012). 
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Accordingly, Appellant’s claim fails. See Commonwealth v. Small, 741 

A.2d 666, 672 (Pa. 1999) (stating that, although the appellant phrased his 

claim as a challenge to the sufficiency of the evidence, the challenge actually 

goes to the weight of the evidence, and as such, the appellant’s challenge to 

the sufficiency of the evidence must fail).

An allegation that the verdict is against the weight of the evidence is 

addressed to the discretion of the trial court. Commonwealth v. 

Ramtahal, 33 A.3d 602 (Pa. 2011). “An appellate court, therefore, reviews 

the exercise of discretion, not the underlying question whether the verdict is 

against the weight of the evidence.” Id. at 609. A trial judge cannot grant 

a new trial due to a mere conflict in testimony or because he would have 

arrived at a different conclusion on the same facts. Commonwealth v. 

Edwards, 903 A.2d 1139 (Pa. 2006). Instead, a new trial should be 

granted “only in truly extraordinary circumstances . . . .” Id. at 1149.

The trial court will award a new trial only when the jury’s verdict is so 

contrary to the evidence as to shock one’s sense of justice. 

Commonwealth v. Diggs, 949 A.2d 873 (Pa. 2008). “In determining 

whether this standard has been met, appellate review is limited to whether 

the trial judge’s discretion was properly exercised, and relief will be granted 

only where the facts and inferences of record disclose a palpable abuse of 

discretion.” Id. at 879. Thus, “the trial court’s denial of a motion for a new 
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trial based on a weight of the evidence claim is the least assailable of its 

rulings.” Rivera, 983 A.2d at 1225.

The trial court concluded that Appellant’s weight-of-the-evidence claim 

was waived for failure to raise the issue in the trial court. See Pa.R.Crim.P. 

607(A). We agree. As we have stated:

A weight of the evidence claim must be preserved either in a 

post-sentence motion, by a written motion before sentencing, or 

orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealth 

v. Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to 

properly preserve the claim will result in waiver, even if the trial 

court addresses the issue in its opinion. Commonwealth v. 

Sherwood, 982 A.2d 483, 494 (Pa. 2009).

Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa. Super. 2014) 

(quoting Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 

2012). Although Appellant filed a post-sentence motion, he did not assail 

the weight of the evidence as an issue, nor did he “make any other oral or 

written motion challenging the verdict as against the weight of the 

evidence.” Trial Court Opinion, 12/26/13, at 4. We agree with the trial 

court that Appellant has waived this matter, and we decline to address its 

merits. Id.

Appellant next contends that the trial court erred in denying his postsentence motion challenging the admissibility of a notation in Victim 

Herlocher’s hospital records to impeach her testimony. Initially, we note 

that Appellant, in a two-paragraph argument, fails to cite any relevant 
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authority in support of his claim. As we recently stated in Commonwealth

v. Samuel, 2014 PA Super 236, ___ A.3d ___ (Pa. Super. 2014), in holding 

an issue waived because it was undeveloped and failed to cite relevant law:

The only case law . . .cite[d] in support of this claim is the 

standard of review . . . . Again, we will not comb the record for 

the facts in support of [a] claim and we will not develop 

arguments on [the appellant’s] behalf. This issue is waived. 

Mulholland, 702 A.2d at 1034 n. 5; Gould, 912 A.2d at 873.

Id., ___ A.3d at ___, 2014 PA Super at *3 (citing Commonwealth v. 

Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. 1997), and Commonwealth v. 

Gould, 912 A.2d 869, 873 (Pa. Super. 2006)). Thus, we could find this 

issue waived.

The trial court stated the following in disposing of this issue:

Defendant claims that the female victim’s purported 

statement in the medical records should have been admitted to 

impeach her testimony. However, this issue has already been 

addressed and ruled upon by the Superior Court. 

Commonwealth v. Leggett, J. A14021/06, No. 418 Eastern 

District Appeal 2005 at 4 (Unpublished). On a second appeal, an 

appellate court may not alter the resolution of a legal question 

previously decided by the same appellate court. Commonwealth 

v. Starr, 541 Pa. 564, 574 (1995); see also discussion of 

collateral estoppel in Commonwealth v. Holder, 569 Pa. 474, 

479-80 (2002). Defendant is essentially trying to relitigate the 

question of the admissibility of the statement in the medical 

records. The Superior Court in 2007 held that there was no 

evidence that the statement at issue was actually made by the 

female victim. Thus, it could not be admitted as a prior 

inconsistent statement, and it was not error to exclude it. 

Leggett, No. 418 Eastern District Appeal 2005 at 4-5. The 

defendant cannot now re-argue this same issue.
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Trial Court Opinion, 12/26/13, at 6. Accord Commonwealth v. Leggett, 

418 EDA 2005, 944 A.2d 794 (Pa. Super. filed November 30, 2007) 

(unpublished memorandum at 4-5). We agree with the trial court and 

conclude the issue lacks merit.

Finally, we note that in its Pa.R.A.P. 1925(a) opinion, the trial court 

stated the following concerning the sentence imposed:

The Notes of Testimony confirm that [Appellant] was 

arraigned solely on two counts of Aggravated Assault and one 

count of PIC. (N.T. 02/26/2004 at 4). He was not arraigned on 

any REAP charges. (Id.) The jury returned a verdict of guilty on 

the Aggravated Assault of Ms. Herlocher, not guilty on the 

Aggravated Assault of Mr. Higgins, and guilty on PIC. (N.T. 

03/01/2004 at 97-98). On the same day that the jury returned 

this verdict, the trial court signed the two REAP Bills of 

Information, approving the nolle prosequi of those charges.

The sentencing order (Form 6-288A), dated February 5, 

2008, located in the Quarter Session file and signed by the trial 

judge, specified the following sentence: 5-10 years 

incarceration for Aggravated Assault, concurrent with any other 

sentence now serving; no further penalty for PIC; 2 years 

consecutive probation on each of two counts of REAP. 

Accordingly, the two-year consecutive probationary sentences on 

each of the REAP charges [were] illegal as [Appellant] was 

neither convicted nor even arraigned on any REAP charge.

This issue was not raised by either the defense or the 

Commonwealth.

Trial Court Opinion, 12/26/13, at 2 n.3. The trial court thus requests that 

we remand the case so that the trial court can vacate the illegal sentence. 

The Commonwealth has joined in that request. Commonwealth’s Brief at 4 

n.1. It is beyond peradventure that Appellant could not properly be 
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sentenced on charges for which he had not previously been charged, 

arraigned, or indicted. See, e.g., Commonwealth v. Thompson, 289 A.2d 

222 (Pa. Super. 1972) (“This defendant was sentenced under the Gun 

Possession Law . . . without having previously been charged, arraigned, or 

indicted therefor, which is contrary to the law.”) Id.

The question we are thus faced with is whether we may merely vacate 

the sentence directly or must remand for resentencing. “[W]here a case 

requires a correction of sentence, this [C]ourt has the option of either 

remanding for resentencing or amending the sentence directly.” 

Commonwealth v. Klein, 795 A.2d 424, 430–431 (Pa. Super. 2002). In 

other words, if we can vacate the illegal sentence without upsetting the trial 

court’s overall sentencing scheme, we need not remand for resentencing. 

Commonwealth v. Thur, 906 A.2d 552, 570 (Pa. Super. 2006).

Here, although we could vacate the sentence, in part, to remove the 

illegal probationary sentence for REAP, we believe the prudent course is to 

vacate the entire sentence and remand for resentencing. See 

Commonwealth v. Williams, 550 A.2d 579 (Pa. Super. 1988) (where the 

sentence vacated may affect the sentence imposed by the court, we must 

remand).

Judgment of sentence vacated. Case remanded for resentencing 

consistent with this memorandum. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/9/2014