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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                       v.

JOSHUA STOKES

                            Appellant               No. 818 EDA 2015


          Appeal from the Judgment of Sentence September 6, 2012
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008090-2010
                                        CP-51-CR-0008091-2010


BEFORE: PANELLA, J., RANSOM, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                      FILED DECEMBER 27, 2016

       Appellant, Joshua Stokes, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for criminal conspiracy, aggravated assault, persons not to

possess firearms, firearms not to be carried without a license, possessing

instruments of crime (“PIC”), and intimidation of witnesses or victims.1 We

affirm.

       The relevant facts and procedural history of this case are as follows.

On May 3, 2010, Phillip Riddick confronted his neighbor, Nia Shaw, about

empty beer bottles and trash left on the steps of Mr. Riddick’s residence.
____________________________________________


1
 18 Pa.C.S.A. §§ 903(a)(1); 2702(a); 6105(a)(1); 6106(a)(1); 907(a); and
4952(a)(1), respectively.
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Appellant was present when Mr. Riddick and Ms. Shaw spoke. Shortly after

Mr. Riddick entered his residence, he heard several cars pulling up outside of

his home. He instructed his girlfriend, Marquita Taylor, and her children to

gather their belongings and leave the home.

      Mr. Riddick walked outside to his car, where he saw thirteen or

fourteen young men gathered nearby. He then observed Appellant walk to

the corner of the street and look around, before Malik Reed handed

Appellant a firearm taken from the trunk of a nearby vehicle. Mr. Reed and

Appellant began firing at Mr. Riddick through his car’s windshield, as Mr.

Riddick drove in reverse to avoid being shot. Appellant, Mr. Reed, and the

other young men then fled the scene.

      Approximately one week after the incident, Ms. Taylor reported to

police that Appellant had approached her as she sat outside of her home.

Ms. Taylor alleged Appellant told her, “You better not go to court,” or

“something will happen.” N.T. Trial, 7/12/12, at 49-50.

      Appellant proceeded to a jury trial. During the trial, one of the jurors

reported to the court that some jurors had discussed the case, and that

another juror stated Appellant was guilty. The court interviewed each of the

jurors, and declared a mistrial sua sponte. A new jury later convicted

Appellant   of   the   above   crimes.    The   court   ordered   a   pre-sentence

investigation report. The court sentenced Appellant to consecutive terms of

ten to twenty years’ incarceration each for the criminal conspiracy,


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aggravated assault, and intimidation convictions. The court also sentenced

Appellant to a consecutive term of five to ten years’ incarceration for the

persons not to possess firearms conviction, and concurrent terms of two and

one-half to five years’ incarceration each for PIC and firearms not to be

carried without a license, for an aggregate sentence of thirty-five to seventy

years’ incarceration. Appellant did not file a post-sentence motion.

       Appellant timely filed a notice of appeal. The court ordered Appellant

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b); Appellant failed to file a Rule 1925(b) statement. On

December 7, 2012, this Court dismissed Appellant’s appeal for failure to file

a docketing statement.

       Thereafter, Appellant filed a petition pursuant to the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After the court appointed

counsel, Appellant filed an amended petition. Following a hearing, the PCRA

court granted Appellant’s petition and permitted him to file a direct appeal

nunc pro tunc.

       Appellant timely filed a notice of appeal. The court ordered Appellant

to file a Rule 1925(b) statement, and Appellant complied.2


____________________________________________


2
   Appellant’s Rule 1925(b) statement was technically untimely. However,
this Court may address the merits of a criminal appeal when an appellant
files an untimely Rule 1925(b) statement, if the trial court addressed the
issues raised on appeal. See Commonwealth v. Burton, 973 A.2d 428 (Pa.
(Footnote Continued Next Page)


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      Appellant raises the following issues on appeal:

          Whether the [t]rial [c]ourt erred in declaring a mistrial sua
          sponte when the defense never requested one[?]

          Whether the [t]rial [c]ourt erred in sentencing Appellant to
          thirty-five  (35)    to   seventy    (70)   years[’]   state
          incarceration[?]

          Whether the verdict was contrary to law as being based on
          insufficient evidence for the following charges: aggravated
          assault, criminal conspiracy to commit murder and
          aggravated assault, intimidation of [a] witness, [PIC,] and
          VUFA.

Appellant’s Brief, at 10.

      Appellant first argues the original empaneled jury could have fairly

deliberated Appellant’s case. Appellant contends the conversations some

jurors reported relating to the trial were innocuous, and jurors commonly

misunderstand their obligations at the beginning of a trial. Appellant

questions the trial court’s determination that these conversations tainted the

trial, concluding that the trial court abused its discretion by declaring a

mistrial. We disagree.

      “It is within a trial judge’s discretion to declare a mistrial sua sponte

upon the showing of manifest necessity, and absent an abuse of that

discretion, we will not disturb his or her decision.” Commonwealth v. Orie,

88 A.3d 983, 995 (Pa. Super. 2014), appeal denied, 99 A.3d 925 (Pa. 2014)

                       _______________________
(Footnote Continued)

Super. 2009) (en banc). The trial court’s opinion addressed each of
Appellant’s issues on appeal; therefore, we decline to waive them.



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(internal citations omitted). “Reviewing courts use no mechanical formula in

determining whether a trial court had a manifest need to declare a mistrial.”

Commonwealth v. Leister, 712 A.2d 332, 335 (Pa. Super. 1998). The trial

judge has broad discretion in determining the necessity of a mistrial. See id.

      Instantly, after two days of testimony, Juror Number Four in

Appellant’s first trial reported to the court conversations she had overheard

between other jurors. That juror stated that two other jurors had repeatedly

declared Appellant was guilty, and a third juror had written “guilty” in the air

as the jurors listened to testimony. The court interviewed all of the jurors

individually. Other jurors corroborated Juror Number Four’s story.

      We find no abuse of discretion in the trial court’s action. The

comments the jurors reported were serious infractions as they evidenced

obvious bias among several jurors, flatly contradicting their sworn oath to

“truly try the issue joined between the Commonwealth and the defendant(s),

and a true verdict render according to the evidence.’’ 234 Pa.Code. §

640(B). The trial court acted properly to safeguard the proceeding by sua

sponte declaring a mistrial under such troubling circumstances in the jury

box. Thus, Appellant’s first issue merits no relief.

      Appellant next asserts the trial court imposed a grossly excessive

sentence. Appellant maintains the trial court failed to provide on the record

sufficient reasoning for its departure from the sentencing guidelines.

Appellant concedes his claim is a challenge to the discretionary aspects of


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his sentence. See Appellant’s Brief, at 24-27.

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at
      sentencing or in a motion to reconsider and modify sentence,
      see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (internal

citation omitted).

      “An appellant must, pursuant to Pennsylvania Rule of Appellate

Procedure 2119(f), articulate the manner in which the sentence violates

either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process.” Commonwealth v. Shugars, 895 A.2d 1270, 1274 (Pa. Super.

2006) (internal citations omitted). A “substantial question” as to the

inappropriateness of the sentence under the Sentencing Code exists “only

when the appellant advances a colorable argument that the sentencing

judge’s actions were either: (1) inconsistent with a specific provision of the

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Sentencing Code; or (2) contrary to the fundamental norms which underlie

the sentencing process.” Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.

Super. 2012) (internal citations omitted). “As to what constitutes a

substantial question, this Court does not accept bald assertions of

sentencing errors. An appellant must articulate the reasons the sentencing

court’s actions violated the sentencing code.” Moury, 992 A.2d at 170.

      Here, Appellant’s direct appeal rights were reinstated nunc pro tunc,

and so his notice of appeal is considered timely. Nevertheless, Appellant

failed to preserve his issue at sentencing or in a motion to reconsider and

modify sentence. See id. Consequently, we find Appellant has waived his

discretionary aspects of sentencing claim.

      Further, had Appellant preserved the claim, we would have found that

his Rule 2119(f) statement fails to raise a substantial question for our

review; it is nothing but a bald allegation that the trial court imposed an

excessive sentence. See Glass; Moury.

      In his final issue, Appellant argues the Commonwealth failed to

present sufficient evidence to sustain any of his convictions. Appellant claims

the Commonwealth failed to prove his actions were intentional, or that he

attempted to cause serious bodily injury to Mr. Riddick. Appellant concedes

he is not permitted to possess a firearm, but directs our attention to the

failure of the police to locate the firearm allegedly used in the incident as

proof he did not possess a weapon. He also asserts the Commonwealth


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failed to show the existence of any agreement between himself and Mr. Reed

that would constitute conspiracy. Additionally, he contends Ms. Taylor was

motivated to lie about his conduct, and therefore her testimony about the

alleged threats was insufficient to convict him of witness intimidation. We

disagree.

      The following standard governs our review of a challenge to the

sufficiency of the evidence.

      As a general matter, our standard of review of sufficiency claims
      requires that we evaluate the record in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. Evidence
      will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. [T]he facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant’s innocence. Any doubt about
      the defendant’s guilt is to be resolved by the fact finder unless
      the evidence is so weak and inconclusive that, as a matter of
      law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)

(citation omitted).

      “A person is guilty of aggravated assault if he attempts to cause

serious bodily injury to another, or causes such injury intentionally,

knowingly    or   recklessly   under    circumstances   manifesting   extreme

indifference to the value of human life,” or “attempts to cause or

intentionally or knowingly causes bodily injury to another with a deadly


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weapon[.]” 18 Pa.C.S.A. § 2702(a)(1), (a)(4).

      Instantly, the Commonwealth presented testimony from Mr. Riddick

that Appellant pointed a loaded firearm at him. Mr. Riddick stated Appellant

fired several shots at close range. Ms. Taylor also testified she heard

gunshots and saw Appellant and Mr. Reed running in the opposite direction

of Mr. Riddick’s vehicle. The Commonwealth also provided testimony from

several investigating officers, who reported seeing bullet holes in Mr.

Riddick’s vehicle and recovered several shell casings from the street.

      Given   this    testimony,   a     jury   possessed     sufficient    evidence    to

determine that Appellant intentionally, knowingly, or recklessly used a

deadly   weapon      in   an   attempt    to    cause   Mr.   Riddick      bodily   injury.

Consequently, the Commonwealth presented sufficient evidence to convict

Appellant of aggravated assault.

      A conspiracy conviction requires that the Commonwealth established

“that the defendant (1) entered into an agreement to commit or aid in an

unlawful act with another person or persons, (2) with a shared criminal

intent and (3) an overt act was done in furtherance of the conspiracy.”

Commonwealth v. McCall, 911 A.2d 992, 996 (Pa. Super. 2006) (citation

omitted).

      Here, Mr. Riddick testified that Appellant accepted a firearm from Mr.

Reed. Both men immediately began firing at Mr. Riddick. Ms. Taylor testified

she heard gunshots and saw Mr. Reed shooting at Mr. Riddick’s car. Ms.


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Taylor gave evidence that both Mr. Reed and Appellant ran away from the

vehicle after the shooting. The shooting constituted the overt act necessary

to establish conspiracy. We agree with the trial court that such evidence was

sufficient to establish the men conspired to commit aggravated assault.

     We next consider Appellant’s challenge to his possession offenses.

Where the Commonwealth establishes a defendant was not permitted to

carry a firearm and presents evidence that the defendant possessed a

weapon, such evidence is sufficient to sustain the defendant’s conviction

under 18 Pa.C.S.A. § 6105(a)(1). See Commonwealth v. Antidormi, 84

A.3d 736, 758 (Pa. Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014).

“[A]ny person who carries a firearm in any vehicle or any person who carries

a firearm concealed on or about his person … without a valid and lawfully

issued license under this chapter commits a felony of the third degree.” 18

Pa.C.S.A. § 6106(a)(1). A person is guilty of PIC if he: “possesses any

instrument of crime with intent to employ it criminally.” 18 Pa.C.S.A. §

907(a).

     Appellant’s   argument   that    the     Commonwealth   lacked   sufficient

evidence to convict him of his firearms offenses, without providing the gun

Appellant allegedly used, is meritless. Appellant concedes he is not

permitted to possess a firearm. The Commonwealth provided eyewitness

testimony from Mr. Riddick that Appellant had a gun, and he used it to

commit a crime. Thus, the Commonwealth provided sufficient evidence to


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convict Appellant of persons not to possess firearms, firearms not to be

carried without a license, and PIC.

      Appellant’s final conviction was for witness intimidation. An individual

is guilty of witness intimidation if he:

      with the intent to or with the knowledge that his conduct will
      obstruct, impede, impair, prevent or interfere with the
      administration of criminal justice, he intimidates or attempts to
      intimidate any witness or victim to:


      (1) Refrain from informing or reporting to any law enforcement
      officer, prosecuting official or judge concerning any information,
      document or thing relating to the commission of a crime.

18 Pa.C.S.A. § 4952(a)(1).

      Here, Ms. Taylor testified that Appellant approached her as she sat

outside of her home. Appellant told Ms. Taylor, “You better not go to court,”

“or, you know, something will happen.” Ms. Taylor asserted she felt

threatened    by   Appellant’s   conduct,      and   immediately   reported   the

conversation to police. Appellant’s warning to Ms. Taylor not to go to court

established sufficient evidence to convict him of witness intimidation.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/27/2016




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