Com. v. Tooks, I.

J-S86009-16
2016 PA Super 265COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ISIAH EDWARD JAM TOOKS :
:
Appellant : No. 2025 WDA 2015
Appeal from the Judgment of Sentence November 30, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011051-2014,
CP-02-CR-0011446-2014
BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED NOVEMBER 29, 2016
Appellant Isiah Edward Jam Tooks appeals the judgment of sentence
entered in the Court of Common Pleas of Allegheny County on November 30,
2015, following a jury trial. We affirm.
The trial court aptly set forth the relevant procedural history and facts
herein as follows:
This is a direct appeal from the judgment of sentence
entered on November 30, 2015, following [Appellant’s]
convictions at the above-captioned case numbers. At the
criminal information filed at CC# 2014-11051, [Appellant] was
charged with Robbery-Serious Bodily Injury (18 Pa. C.S.A.
§3701(a)(1) (ii)) (Count One); Kidnapping (18 Pa. C.S.A.
§2901(a)(1)) (Count Two); Unlawful Restraint (18 Pa. C.S.A.
§2902(a)(1)) (Count Three); Terroristic Threats (18 Pa. §2706
(a)(1)) (Count Four); Simple Assault (18 Pa. C.S.A. §2701(a)(3)
(Count Five) and Conspiracy to Commit Robbery- Serious Bodily
Injury (18 Pa. C.S.A. §903(c)) (Count Six). At the criminal
* Former Justice specially assigned to the Superior Court.
J-S86009-16
information filed at CC# 2014-11446, [Appellant] was charged
with Criminal Solicitation (18 Pa. C.S.A. §902(A)) (Count One);
Conspiracy to Commit Criminal Homicide and/or Intimidation of
Witnesses or Victims (18 Pa. C.S.A. §903(a)(1)) (Count Two);
and Intimidation of Witnesses or Victim (18 Pa. C.S.A. §4952)
(Count Three).
A jury trial was conducted on these two (2) cases between
August 11, 2015 and August 18, 2015. At the conclusion of trial,
[Appellant] was found not guilty at Count One (Robbery) and
Count Two (Kidnapping), and guilty of all of the remaining
charges, including Count Three (Unlawful Restraint), Count Four
(Terroristic Threats), Count Five (Simple Assault), and Count Six
(Conspiracy to Commit Robbery) at CC# 2014-11051.
[Appellant] was convicted of all counts at the information filed at
CC# 2014-11446. Sentencing was deferred to allow for the
preparation of a Presentence Investigation Report.
On August 19, 2015, the Commonwealth filed a "Notice of
Intention to Proceed Under the Mandatory Provisions of 42 Pa.
C.S.A. §9714." On October 28, 2015, [Appellant] filed a "Motion
in Opposition to the Application of Mandatory Minimum
Sentence." [Appellant’s] motion was heard during the
sentencing hearing conducted on November 30, 2015. After
considering the arguments and evidence presented at the
sentencing, the court found that the ten (10) year mandatory
minimum sentence under §9714 was applicable in light of
[Appellant’s] prior conviction for Robbery of a Motor Vehicle and
[Appellant’s] instant conviction for Conspiracy to Commit
Robbery- Serious Bodily Injury. Accordingly, the court sentenced
[Appellant] to a term of imprisonment of ten (10) to twenty (20)
years at Count Six of the information filed at CC# 2014 -11051.
[Appellant] was ordered to have no contact with the victim,
Kevin Miller, and he was further ordered to pay restitution to the
victim in the amount of $104. No further penalty was imposed at
the remaining counts of conviction at that information, and
[Appellant] received 483 days of time credit towards his
sentence.
At CC # 2014-11446, this court imposed a term of
imprisonment of six (6) to twelve (12) years at Count One. This
sentence was ordered to run concurrently with [Appellant’s]
sentence at CC# 2014-11051. A consecutive five (5) year term
of probation was imposed at Count Three. No further penalty
was imposed at Count Two of the information, and [Appellant]
was ordered to have no contact with the victim. No post-
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sentence motions were subsequently filed. This timely appeal
followed.
On April 4, 2016, [Appellant] filed a timely1 Concise
Statement of Errors Complained of on Appeal ("Concise
Statement "), raising only one (1) issue for review: . . . .
***
[Appellant’s] allegation of error is without merit. For the
reasons that follow, [Appellant’s] conviction for Conspiracy to
Commit Robbery-Serious Bodily Injury qualified as a "crime of
violence" under §9714(g). Accordingly, this court did not err by
imposing the mandatory minimum sentence under §9714(a)(1),
and the sentence in this case should be upheld.
l. FACTUAL BACKGROUND
On July 31, 2014, at approximately 5:00 a.m., the victim,
Kevin Miller, went to the Valero Gas Station in Homestead to
purchase food before heading to work that morning. (Jury Trial
Transcript, Volume 1 ("TT1"), 8/11/15- 8/14/15 and 8/18/15, p.
81). When Mr. Miller walked into the store, he saw two (2) black
men at the counter, and he noticed that they were looking at
him in an unusual manner. (TT1, pp. 81 -82, 106-07, 117). He
had never seen these men before, but during trial he identified
[Appellant] as one of the men looking at him at the gas station
that morning. (TT1, pp. 82-83, 105).
While at the Valero, Mr. Miller walked past [Appellant] and
the other man, who was later identified as Tyrique Calloway, to
find the items that he sought to purchase. (TT1, p. 82). When he
approached the register to make payment, he saw that the men
were still at the counter. (TT1, pp. 82, 107). [Appellant] and Mr.
Calloway subsequently exited the store, and Mr. Miller paid for
his items and walked out into the parking lot. (TT1, p. 83). Mr.
Miller noticed that [Appellant] and Mr. Calloway were standing
by a black SUV that was parked by one of the gas pumps. (TT1,
pp. 84, 108). Mr. Miller instinctively began walking in the
opposite direction to avoid walking past the men. (TT1, pp. 84,
107-08, 117-18).
Mr. Miller was approximately thirty (30) yards from the gas
station when he noticed the black SUV accelerate to approach
him. (TT1, pp. 85-86, 108). He saw [Appellant] sitting in the
passenger seat of the vehicle. (TT1, pp. 85-86). [Appellant]
exited the vehicle and was holding what appeared to be an
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assault rifle. (TT1, pp. 86-88). The weapon was large and dark,
and it appeared to have a sawed off barrel. (TT1, pp. 86-87).
[Appellant] aimed the weapon at Mr. Miller, prompting Mr. Miller
to turn and attempt to flee. (TT1, pp. 88, 108). However, as he
tried to run, Mr. Miller stumbled and fell to the ground. (TT1, pp.
88, 108). Both [Appellant] and Mr. Calloway were on top of Mr.
Miller after he fell. (TT1, p. 89).
[Appellant] pointed the weapon at Mr. Miller's face and
asked him if he had a gun. (TT1, pp. 91, 108). Mr. Miller replied
that he was unarmed, and [Appellant] then asked him where he
had his money. (TT1, p. 91). Mr. Miller told [Appellant] that he
did not have any money, but [Appellant] said "no, I think you
were just at the store ... do you want me to shoot you ?" (TT1,
p. 91). Mr. Miller told [Appellant] that he had a debit card, and
[Appellant] asked him where an ATM machine was located.
[Appellant] still had the weapon pointed at Mr. Miller during this
verbal exchange. (TT1, pp. 91-92). Mr. Miller indicated that the
Valero had an ATM machine, but [Appellant] replied that "we're
not going back to that store." (TT1, p. 91). [Appellant] then
pulled Mr. Miller off the ground and told him to get into the
vehicle or he was going to be shot. (TT1, p. 92). Mr. Miller was
forced into the vehicle at gun point and was instructed to get in
the back seat area and face down. (TT1, pp. 92, 109).
[Appellant] sat in the back of the vehicle with Mr. Miller, and Mr.
Miller felt the weapon digging into his ribs as he was lying face
down on the floor in the back of the car. (TT1, pp. 92-93).
While they were driving in the car, [Appellant] kept
demanding that Mr. Miller tell him the location of a nearby ATM
Machine. (TT1, p. 93). [Appellant] threatened Mr. Miller in order
to prompt an answer to his question, stating "do you want me to
kill you?" [Appellant] further threatened Mr. Miller, asking him if
he had a girlfriend or children that he ever wanted to see again.
(TT1, p. 93). Mr. Miller never answered the questions about the
ATM location, but then he suddenly felt the car stop. [Appellant]
instructed Mr. Miller to exit the vehicle, and he did so, not
knowing where they were. (TT1, p. 93). [Appellant] demanded
Mr. Miller's ATM card, and, as he pulled his wallet from his back
pocket, [Appellant] snatched the wallet from his hands. (TT1,
pp. 94, 110). [Appellant] still had the weapon pointed at Mr.
Miller as they walked towards the store, and [Appellant] made
clear that he was going to shoot Mr. Miller if he did not
cooperate. (TT1, p. 94). [Appellant] stayed outside of the store
while Mr. Calloway escorted Mr. Miller into the store. (TT1, pp.
95-96).
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When he walked into the store, Mr. Miller realized that he
was inside of a BP station because he recognized one of the
store clerks. (TT1, pp. 93-95, 113). Mr. Miller went to the ATM
machine and tried to stall while making the transaction,
although, with Mr. Calloway's "assistance," he eventually
retrieved. $100. (TT1, pp. 95, 97, 114, 128). Mr. Calloway took
the money from the ATM machine and returned the debit card to
Mr. Miller. (TT1, pp. 98, 114, 129).
The two men walked out of the store to where [Appellant]
was waiting, still holding his weapon. (TT1, p. 98). [Appellant]
said "let's go," and the three men started walking towards the
back of the store. (TT1, p. 98). They approached a guard rail,
and Mr. Miller saw that there were train tracks approximately
seven (7) feet below the railing. (TT1, p. 99). [Appellant] told
Mr. Miller to jump over the rail and walk the tracks, which went
in the opposite direction of Mr. Miller's home. (TT1, pp. 99, 114-
15). Mr. Miller complied, believing that he was about to be shot.
(TT1, pp. 99-100). Mr. Miller did not have his phone with him at
this point because [Appellant] had taken it from him as they
were walking. (TT1, pp. 100, 112). After walking for some time,
Mr. Miller made his way back towards Homestead and ran into a
friend who called the police for him. (TT1, pp. 101, 115).
Mr. Miller reported to the police the events that had
occurred that morning. (TT1, pp. 101-02). He spoke to the police
again a few days later, at which time he was informed that they
had found his wallet. (TT1, pp. 101-02). As a result of the
incident, Mr. Miller no longer felt safe, and he was traumatized.
He even moved from his residence at the time into a new
residence as a result of his fear. (TT1, pp. 103-04).
After [Appellant] was arrested, he was recorded through
telephone calls that he placed at the jail, instructing his friends
to employ "whatever means necessary" to prevent Mr. Miller
from appearing and testifying at court. (TT1, pp. 232 -233).
______
1
[Appellant] requested an extension of time to file his concise
statement because he was awaiting transcripts.
Trial Court Opinion, filed 5/31/16, at 1-8.
In his brief, Appellant presents a single question for our review:
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Was the application of the “second strike” mandatory minimum
sentence under 42 Pa.C.S. § 9714(a)(1) illegal in violation of
[Appellant’s] state and federal constitutional rights insofar as his
conviction of criminal conspiracy does not qualify as a “crime of
violence?”
Brief for Appellant at 5.
When determining the legality of one’s sentence, this Court applies a
well-settled scope and standard of review:
If no statutory authorization exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence
must be vacated. In evaluating a trial court's application of a
statute, our standard of review is plenary and is limited to
determining whether the trial court committed an error of law.
Commonwealth v. Poland, 26 A.3d 518, 523 (Pa.Super. 2011) (citations
omitted).
Appellant claims the trial court erred in imposing a sentence pursuant
to the second-strike provision of Pennsylvania's recidivist sentencing statute,
Section 9714(a)(1),1 because his conviction for Criminal Conspiracy at
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1
We are aware that the Pennsylvania Supreme Court has granted allowance
of appeal in Commonwealth v. Bragg, 143 A.3d 890 (Pa. 2016) to
determine the following issue: “Should the mandatory minimum sentence
imposed by the trial court under 42 Pa.C.S.A. § 9714 be vacated, and this
matter remanded for a new sentencing hearing, due to the fact that § 9714
is unconstitutional as currently drafted?” Our Supreme Court consolidated
this matter with two other cases, Commonwealth v. Macklin, 143 A.3d
890 (Pa. 2016), which questions “[w]hether the government is required to
include notice of its intent to seek a mandatory penalty under a recidivist
statute within the charging document since such mandatory penalties equate
to new, aggravated crimes?” and Commonwealth v. Sachette, 143 A.3d
890 (Pa. 2016) wherein the issue to be examined is whether “[a]ssuming
arguendo the trial record supports the verdict for unlawful contact with a
(Footnote Continued Next Page)
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Criminal Information No. 2014-11051 is not a crime of violence as defined in
Section 9714(g). Brief for Appellant at 13. Appellant opines that as he was
adjudged not guilty of Robbery but guilty of Simple Assault, the jury could
have found only that he attempted to put the victim in fear of imminent
serious bodily injury. Id. at 14. Appellant further reasons that:
Under Section 9714(g), 42 Pa.C.S., in order for the crime
of Conspiracy to Commit Robbery to constitute a “crime of
_______________________
(Footnote Continued)
minor, is the 25 to 50 year sentence otherwise unconstitutional?”
Notwithstanding, Appellant’s challenge herein does not pertain to the
constitutionality of Section 9714 as written, but rather concerns whether
the trial court properly applied his Criminal Conspiracy conviction
thereunder. In this regard, this Court has stated the following:
In Alleyne [v. United States, ___ U.S. ____, 133 S.Ct.
2151, 186 L.Ed.2d 314 (2013)], the Supreme Court of the
United States held that the Sixth Amendment requires that any
fact—other than a prior conviction—that increases a mandatory
minimum sentence for an offense must be submitted to the jury
and proven beyond a reasonable doubt. Importantly, Alleyne
did not overturn prior precedent that prior convictions are
sentencing factors and not elements of offenses. Alleyne, 133
S.Ct. at 2160 n. 1; see also Almendarez–Torres v. United
States, 523 U.S. 224, 243–44, 118 S.Ct. 1219, 1230–31, 140
L.Ed.2d 350 (1998).
Section 9714 increases mandatory minimum sentences
based on prior convictions. See 42 Pa.C.S. § 9714(a)(1).
Accordingly, this section is not unconstitutional under Alleyne.
See Alleyne, supra; see also Commonwealth v. Akbar, 91
A.3d 227, 239 n. 9 (Pa.Super. 2014), appeal granted and order
vacated on other grounds, ––– Pa. ––––, 111 A.3d 168 (2015).
Commonwealth v. Reid, 117 A.3d 777, 784–85 (Pa.Super. 2015).
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violence,” a jury must find the defendant guilty under Section
3701(a)(1)(i), (ii) or (iii), 18 Pa.C.S. However, neither the
Criminal Information nor the jury instructions on Criminal
Conspiracy explicitly state this requirement. In fact, as
discussed above, the jury found [Appellant] not guilty of
Robbery, but guilty of Simple Assault. Thus it is not clear
whether the jury made the necessary finding to trigger the
imposition of the “second strike” statute.
For this reason, [Appellant’s] current conviction for
Criminal Conspiracy cannot qualify as a “crime of violence” and
thus should not properly be considered as a second strike
triggering the application of the mandatory minimum sentence in
this matter as the same lacks specificity in its charge. See
Commonwealth v. Gunn, 803 A.2d 751 (Pa.Super. 2002).
Id. at 14-15.
42 Pa.C.S.A. § 9714(a), provides, in relevant part, that mandatory
minimum sentences are to be imposed upon certain repeat offenders as
follows:
Any person who is convicted in any court of this Commonwealth
of a crime of violence shall, if at the time of the commission of
the current offense the person had previously been convicted of
a crime of violence, be sentenced to a minimum sentence of at
least ten years of total confinement, notwithstanding any other
provision of this title or other statute to the contrary. Upon a
second conviction for a crime of violence, the court shall give the
person oral and written notice of the penalties under this section
for a third conviction for a crime of violence. Failure to provide
such notice shall not render the offender ineligible to be
sentenced under paragraph (2).
42 Pa.C.S.A. § 9714(a)(1).
42 Pa.C.S.A. § 9714(g) defines a crime of violence as, inter alia, a
robbery as defined under 18 Pa.C.S.A. § 3701(a)(1)(i), (ii), or (iii), and
indicates that inchoate crimes like “criminal attempt, criminal conspiracy or
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criminal solicitation to commit . . . any of the offenses listed above
constitute[] [] crime[s] of violence.” 42 Pa. C.S.A. § 9714(g).
Count One of the Criminal Information filed at No. 2014-11051
charged Appellant with Robbery- Serious Bodily Injury under 18 Pa.C.S.A.
3701(a)(1)(i) or (ii) and graded the offense as a first-degree felony. 2 Count
Six thereof charged Appellant with Criminal Conspiracy and indicated that
“with the intent of promoting or facilitating the crime(s) charged above,
[Appellant] conspired and agreed with Tyrique Calloway that they, or one or
more of them, would engage in conduct constituting such crimes. . . . ” The
overt act pertaining to the charge of Criminal Conspiracy states that
Appellant “took United States Currency from Kevin Miller by threat of force. .
. .” In addition, at the conclusion of trial, the trial court instructed the jury
generally that Appellant had been charged with Criminal Conspiracy “in each
information,” and specifically stated that “[t]he information at No.
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2
These Subsections provide:
(1) A person is guilty of robbery if, in the course of committing
a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts him in
fear of immediate serious bodily injury[.]
18 Pa.C.S.A. § 3701(a)(1)(i), (ii).
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201411051 alleges that [Appellant] engaged in a conspiracy to commit
robbery and kidnapping." N.T. Trial, 8/14/15, at 413.
Moreover, while Appellant makes no mention of this fact, as the
Commonwealth notes in its appellate brief, the certified record contains the
jury’s verdict slip. Count 6 thereof asked the jury to consider the charge of
Criminal Conspiracy as it related only to Robbery and Kidnapping and reads
as follows:
Guilty: COUNT 6: Criminal Conspiracy
Guilty :Robbery
Not Guilty :Kidnapping
Appellant clearly was charged with, and acquitted of, Robbery under
18 Pa.C.S.A. §§ 3701(a)(1)(i) or (ii), and there cannot be any dispute that
these Subsections constitute felonies of the first degree. Indeed, Appellant
was neither charged with nor prosecuted under any other subsections of the
Robbery statute. Contrary to Appellant’s argument, the trial court correctly
determined the jury was presented only with qualifying sections of the
Robbery statute that involved the threat of and/or fear of serious bodily
injury; therefore, it could have convicted Appellant only of Criminal
Conspiracy to commit Robbery as a felony of the first degree. Appellant
received a ten-year mandatory minimum sentence for this conviction
pursuant to 42 Pa.C.S.A. § 9714(a) due to a prior conviction for robbery of a
motor vehicle. As there was no ambiguity concerning Appellant’s conviction
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of Criminal Conspiracy to commit Robbery, his reliance on Commonwealth
v. Gunn, 803 A.2d 751 (Pa.Super. 2002), is inapt. Therein, a panel of this
Court vacated the appellant’s sentence upon concluding the trial court had
erred in sentencing the appellant to an increased term under Section 9714 in
light of the Commonwealth’s failure to provide any evidence that the
appellant previously had been convicted of two crimes of violence as defined
by that statute. Id. at 753.
In light of the foregoing, the trial court properly considered Appellant’s
Criminal Conspiracy conviction to be a crime of violence under 42 Pa.C.S.A.
§ 9714(g) and applied the mandatory minimum sentence under Section
9714(a)(1). Thus, Appellant’s challenge to the legality of his sentence is
meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2016
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