J-S18015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

JOSHUA J. STOKES

                            Appellant                 No. 3094 EDA 2016


           Appeal from the Judgment of Sentence December 11, 2015
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-0000720-2011


BEFORE: PANELLA, J., SOLANO, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J.                              FILED APRIL 24, 2017

        Appellant, Joshua J. Stokes, appeals from the judgment of sentence

entered after a jury convicted him of, among others, first-degree murder.

Appellant raises multiple challenges to his convictions, including claims that

the trial court erred by incorrectly determining that he was competent to

stand trial and unconstitutionally precluding him from attending most of the

jury trial. We affirm.

        The trial court summarized the relevant factual of the case history as

follows.

        On the evening of August 29, 2010, the decedent, Stephanie
        Clory, Clory’s companion, Fabian Hall, and Clory’s daughter,
        Frankie Maria Batts, socialized at Hall’s home. At approximately
        11 p.m., Batts and Clory returned to their home at 54th Street
____________________________________________



    Former Justice specially assigned to the Superior Court.
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     and Regent Street. Once inside, Clory asked Batts for money to
     purchase beer. Upon Batts’ refusal, Clory told Batts that she was
     going to walk to [Appellant’s] house to get money from him.
     Clory left her house around 11:20 p.m.

           Clory walked about a block and a half to [Appellant’s]
     house at 1229 S. Peach Street. Once inside the house,
     [Appellant] confronted Clory about her relationship with Hall,
     and accused her of using him (the [Appellant]). [Appellant] then
     grabbed an eight-inch chef’s knife from the kitchen and stabbed
     Clory several times while in the front foyer. Clory attempted to
     escape by opening the front door, but [Appellant] stabbed her
     several more times. The stabbing sprayed Clory’s blood
     prominently along the front door and foyer wall.

            [Appellant] stabbed Clory so violently that he bent the
     knife’s blade. He dropped the bent knife in the foyer, retrieved a
     second knife from the kitchen, returned to the foyer, and
     resumed stabbing her. The continued stabbing resulted in a pool
     of blood, which stained the soles of [Appellant’s] white Reebok
     shoes. Before fleeing through the back door, [Appellant] threw
     the second knife in a kitchen wastebasket. In his haste,
     [Appellant] tracked bloody footprints from the foyer to the back
     door, and smeared the door handle with blood from his hands.
     As [Appellant] fled through the back door, he tracked blood
     through his back porch and fence.

                                    ***

            According to Philadelphia Deputy Chief Medical Examiner,
     Dr. Albert Chu, an expert in forensic pathology, Clory sustained
     nineteen distinct stab wounds, including two wounds that
     punctured her right lung, one wound that penetrated [] her liver,
     and one wound that severed her trachea. The right-chest
     wounds caused severe internal and external bleedings and
     prevented Clory’s right lung from exchanging oxygen. The
     wounds were insufficient to cause immediate loss of
     consciousness, but the combination of blood loss and Clory’s
     inability to breathe resulted in her death. Dr. Chu concluded, to
     a reasonable degree of medical certainty, that the cause of her
     death was homicide by multiple stab wounds.

                                    ***


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            After [Appellant] fled 1229 S. Peach Street, he walked to
      5655 Angora Terrace, where his mother, Eloise Lewis, lived.
      Lewis answered [Appellant’s] knocks at 12:30 a.m. and invited
      [Appellant] in, whereupon [Appellant] transferred blood from his
      hands onto Lewis’[s] front door. Once inside, [Appellant] told
      Lewis that he had beat a girl in the face and head with a knife.
      [Appellant] told Lewis that he did it because the girl was seeing
      another person named “Fab” and that he hoped the girl died.
      Afterwards, [Appellant] washed his hands in Lewis’[s] kitchen
      and splattered the decedent’s blood on the wall above the sink.

            While investigating the murder, Detective Thomas Gaul
      conducted a record check, and discovered that [Appellant]
      owned 1229. S. Peach Street and listed 5655 Angora Terrace as
      an alternative address. The morning after the murder, between
      5:30 a.m. and 6:00 a.m., Detective Gaul arrived at 5655 Angora
      Terrace, where he discovered blood on the front door. Lewis
      greeted Detective Gaul and gave him permission to search the
      home. Detective Gaul also observed bloodstains on the kitchen
      wall. While searching the basement, Detective Gaul discovered
      [Appellant] hiding behind boxes. Detective Gaul noticed blood on
      [Appellant’s] shoes and seized them.

            At 6:40 a.m., uniform officers transported [Appellant] to
      the Philadelphia Homicide Unit, while Detective Gaul remained at
      5655 Angora Terrace to interview Lewis. Lewis told Detective
      Gaul that [Appellant] lived at 1229 S. Peach Street and repeated
      what [Appellant] had told her about beating a girl with a knife.

           Later that morning, on August 30, 2010, Detective Gaul
      gave [Appellant] written Miranda warnings and interviewed him.
      During the interview, [Appellant] admitted that he killed Clory
      because he disapproved of her relationship with Hall and felt that
      she was using him. [Appellant] initialed each Miranda warning
      and question and signed the bottom of each page.

Trial Court Opinion, 2/26/16, at 2-5 (citations to the record omitted).

      Appellant was arrested and charged with the murder of Clory and

possession of an instrument of crime, 18 Pa.C.S.A. §§ 2501 and 907,

respectively.



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       The trial court initially found Appellant incompetent to stand trial and

committed him to Norristown State Hospital. After lengthy proceedings

concerning Appellant’s competence to stand trial, Appellant was found to

have been malingering and declared competent.

       Following jury selection, Appellant refused to return to the courtroom

and the sheriffs were required to manually extract Appellant from the

holding cell. Appellant informed the court that he did not wish to be present

for his trial and threated to disrupt the proceedings. Following a verbal

colloquy, the trial court granted Appellant his wish and allowed Appellant to

remain in the holding cell for the majority of the trial.

       Ultimately, on December 11, 2015, a jury convicted Appellant of first-

degree murder and possession of an instrument of crime. This timely appeal

follows.1

       Appellant raises three issues on appeal. We first address his claim that

the evidence was insufficient to sustain his conviction for possession of an

instrument of a crime. See Appellant’s Brief, at 4. Appellant has waived this

issue. In order to preserve a sufficiency claim for appellate review, an

appellant must identify the specific element or elements of the crime he
____________________________________________


1
   Appellant’s initial appeal was quashed by a panel of this Court due to the
failure of the trial court to dispose of post-sentence motions prior to the
filing of Appellant’s appeal. See Commonwealth v. Stokes, 3094 EDA
2016 (Pa. Super., filed September 7, 2016) (unpublished memorandum).
This appeal follows the trial court’s denial of Appellant’s post-sentence
motions.



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alleges was insufficiently supported at trial. See, e.g., Commonwealth v.

Williams, 959 A.2d 1252, 1257-1258 (Pa. Super. 2008). Further, an

appellant can waive a claim if he fails to adequately develop the issue in his

appellate brief. See Commonwealth v. Delvalle, 74 A.3d 1081, 1086-87

(Pa. Super. 2013). Appellant failed not only to specify an element for his

sufficiency argument, but also completely and utterly fails to develop this

issue in his appellate brief. See Appellant’s Brief, at 4, 14. Thus, we find this

issue waived.

      Moving to the first of Appellant’s issues preserved for our review,

Appellant contends that the evidence was insufficient to sustain his

conviction for first-degree murder. See Appellant’s Brief, at 4, 14-24.

Specifically, he asserts that there was insufficient evidence of an intentional,

willful, deliberate, and premeditated killing to sustain this conviction. See

id., at 21. Instead, Appellant asserts that the evidence only supported a

conviction for voluntary manslaughter. See id., at 22-24.

      Our standard of review is well-settled.

      The standard we apply in reviewing the sufficiency of the
      evidence is whether, viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact[-]finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weight the evidence and substitute our judgment for
      that of the fact-finder. In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilty 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


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      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence. Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. 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.

Commonwealth v. Helsel, 53 A.3d 906, 917-918 (Pa. Super. 2012)

(citation omitted; brackets in original).

      To sustain a conviction for first-degree murder, the Commonwealth

must prove beyond a reasonable doubt that the defendant committed an

“intentional killing.” 18 Pa.C.S.A. § 2502(a). An intentional killing is defined

as “[k]illing by means of poison, or by lying in wait, or by any other kind of

willful, deliberate and premediated killing.” 18 Pa.C.S.A. § 2502(d). Further,

our Supreme Court has held that, in order to support a conviction of first-

degree murder, the Commonwealth must establish that: a human being was

unlawfully killed; the defendant was responsible for the killing; and the

defendant       acted    with   malice   and     a     specific    intent    to   kill.   See

Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa. 2013). A jury may

infer the specific intent to kill, as well as malice, based upon a defendant’s

use   of    a   deadly    weapon   on    “a    vital   part   of    the     victim’s   body.”

Commonwealth v. Houser, 18 A.3d 1128, 1133-1134 (Pa. 2011) (citation

omitted).

      Here, it is undisputed that the victim was unlawfully killed and

Appellant does not appear to contest that the Commonwealth provided



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sufficient evidence to prove that he was responsible for the killing. As noted,

Appellant    challenges       only   the   third    element   and    avers    that    the

Commonwealth’s evidence does not establish specific intent to kill or malice

and therefore only supports voluntary manslaughter. However, our review of

the evidence establishes that the Commonwealth presented sufficient

evidence—Appellant stabbed the victim nineteen times, puncturing her

trachea, lung and liver. Further, when Appellant’s first knife bent, he ceased

his attack only long enough to retrieve another knife. This clearly supports

the jury’s inference that Appellant acted with malice and specific intent to

kill. See id.

        Further, contrary to his claim, the evidence does not support

Appellant’s assertion that the stabbing stemmed from an angry confrontation

with Clory and therefore occurred in the heat of passion. At trial, Appellant

testified that he had not spoken to Clory, and therefore had no problem with

her, for months prior to her death. Although Lewis’s statements to the police

supports the inference that Appellant was upset due to Clory’s relationship

with Hall, there is no evidence that Clory provoked Appellant with this

relationship on the night of her murder. See Commonwealth v. Mason,

130 A.3d 601, 630 (Pa. 2015) (holding evidence of previous issues between

Appellant and victim insufficient to support heat of passion defense;

Appellant must show “provocation on the part of the victim immediately

prior   to   the   attack).    Accordingly,    we    agree    with   the   trial   court’s




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determination that there was sufficient evidence of malice and specific intent

to kill to support a first-degree murder conviction.

      Next, Appellant argues that the trial court erred by declaring him

competent to stand trial. See Appellant’s Brief, at 4, 25-31. Appellant points

to   his   “testimony   at   the    competency     hearing   and    outrageous

conduct/statements before and during trial and sentencing” to show that he

was “clearly not competent to stand trial.” Id., at 29. Under these

circumstances, Appellant contends that the trial court erred in determining

that Appellant was competent to stand trial. See id., at 25. Thus, Appellant

contends he is entitled to a new trial. See id., at 31.

      In reviewing Appellant’s contention, we note the following standard.

      A defendant is presumed competent and it is his burden to show
      otherwise, the determination of which is within the sound
      discretion of the trial court. When a competency hearing takes
      place, incompetency may be established by a preponderance of
      the evidence. The sensitive nature of competency determination
      requires the appellate courts to afford great deference to the
      conclusions of the trial court, which has had the opportunity to
      observe the defendant personally. When the record supports the
      trial court’s determination, we will not disturb it.

Commonwealth v. Stevenson, 64 A.3d 715, 720 (Pa. Super. 2013)

(internal citations omitted). Further, our Supreme Court has stated that

      [w]here there is reason to doubt a defendant’s competency, the
      trial court is required to conduct a competency hearing.
      Competency is measured according to whether the defendant
      has sufficient ability at the pertinent time to consult with counsel
      with a reasonable degree of rational understanding, and to have
      a rational as well as a factual understanding of the proceedings.



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Commonwealth v. Davido, 106 A.3d 611, 639 (Pa. 2014) (per curiam)

(internal citations omitted).

      The trial court explained its competency finding as follows.

            In January and February 2015, the Honorable Sheila
      Woods-Skipper held hearings to determine whether [Appellant]
      was competent to stand trial. At those hearings, Dr. Miles C.
      Landenheim – a board certified psychiatrist – stated that the
      [Appellant] was malingering and was “devoid of any appreciable
      psychiatric symptomatology that would otherwise impair him
      from being able to participate and assist in his defense.” Dr.
      Landenhein based his finding on several factors, including
      examinations of [Appellant] as well as unsolicited conversations
      he had with prison personnel who informed Dr. Landenheim that
      [Appellant] acted in an appropriate manner and spoke lucidly
      with prison employees when the doctor was not present. He
      placed toothpaste on his face only when he was in court or when
      he saw a psychiatrist.

            Dr. Landenheim further found [Appellant] to have “above
      average intellectual capability” and that he was “able to
      assimilate information fairly easily and successfully.” [Appellant]
      was able to clearly communicate subtle medical issues to the
      medical staff at the prison. Dr. Landenheim also reviewed
      investigative reports, where [Appellant] was able to make
      accusations against other prisoners. Further, prison call
      recordings between [Appellant] and his mother showed that
      [Appellant] was able to follow the “intricacies of how much
      money was being sent to him and the monetary value of the
      food that he was being sent.” Dr. Landenheim found that
      [Appellant] better understood the money than his mother, who
      was handling the account. [Appellant] was also interested in
      watching television news programs.

            [Appellant], however, argues that Dr. Landenheim’s
      conclusions were speculative. Although [Appellant] was not
      cooperative in Dr. Landenheim’s examinations, Dr. Landenheim
      examined him on four occasions. Based on those examinations,
      Dr. Landenheim’s concluded that if [Appellant] were cooperative,
      he “fully expect[ed] . . . that with a reasonable degree of
      medical and psychiatric certainty[,] that [Appellant] would have


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      demonstrated    an   adequate       understanding   of   the   legal
      proceedings.”

             Following the competency hearings, Judge Woods-Skipper
      found no psychiatric impairment that precluded [Appellant’s]
      participation in a trial. Judge Woods-Skipper also made a factual
      finding that [Appellant] was malingering. This [trial court] finds
      no reason to disagree with Judge Woods-Skipper’s findings.
      During the court of the trial before this [trial court, Appellant]
      did not exhibit any signs of a mental disorder; nor did he
      remotely appear that he was unable to participate and assist in
      his defense. [Appellant] took the stand twice before [the trial
      court]-for a motion hearing and in his own defense at trial. Both
      times [Appellant] gave prompt and coherent answers to
      counsels’ questions. [Appellant] has failed to meet his burden
      and was thus competent to stand trial.

Trial Court Opinion, 2/26/16, at 10-11.

      We have reviewed the record and find that the trial court did not abuse

its discretion in concluding that Appellant was competent during his trial and

sentencing. Because the record supports the trial court’s conclusion, we will

not disturb the trial court’s exercise of its discretion. See Stevenson, 64

A.3d at 720. Thus, we find no merit to Appellant’s second issue on appeal.

      Finally, Appellant contends that he was denied a fair trial because he

was absent from the courtroom for most of his trial. See Appellant’s Brief, at

4, 32-38. Appellant contends that the mere fact that he was absent from

trial, coupled with his incompetency, precluded a fair trial. See id., at 38.

We disagree.

      The Sixth Amendment to the United States Constitution protects a

defendant’s right to be present at his criminal trial. See U.S. Const. Amend.

6. See also Taylor v. United States, 414 U.S. 17, 20 (1973). Additionally,



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in Pennsylvania, this right is protected by Article I, Section 9 of the

Pennsylvania Constitution and by Pennsylvania Rule of Criminal Procedure

602(a). See Pa. Const, Art. 1 § 9.; Pa.R.Crim.P. 602(a). See also

Commonwealth v. Tizer, 684 A.2d 597, 604 (Pa. Super. 1996). However,

our courts have held that this is a right that may be waived either impliedly,

due to a defendant’s actions, or expressly. See Commonwealth v. Vega,

719 A.2d 227, 229-230 (Pa. 1998); Commonwealth v. Sullens, 619 A.2d

1349, 1351 (Pa. 1992).

      In the event a defendant wishes to expressly waive his right to be

present at his trial, our Supreme Court has held that a trial court must

conduct a colloquy to ensure that the accused is aware of his constitutional

right to be present and the risk he ensues by waiving them. See Vega, 719

at 230-231.

      Such an inquiry would necessarily include, at a minimum, a
      discussion of whether the defendant understands that if trial
      proceeds without his presence: (1) he would be unable to
      participate in the selection of the jury; (2) he waives his right to
      confront and cross-examine witnesses; (3) he will not be present
      to testify in his own defense; and (4) any claim challenging
      effective assistance of counsel will be severly limited since the
      defendant has chosen not to participate in his defense and will
      be unable to aid counsel during trial.

Id., at 231.

      When we as an appellate court review a challenge to the validity
      of a waiver of the right to be present at trial, we look to the
      record to determine whether all the necessary information
      concerning the nature of the right and the risk of not exercising
      that right was communicated to the appellant. If such
      information was communicated to the appellant the waiver will

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     not be disturbed. The focal point of this analysis is whether the
     [a]ppellant made an informed choice.

Commonwealth v. Faulk, 928 A.2d 1061, (Pa. Super. 2007) (internal

quotations and citations omitted).

     In the instant case, following jury selection, the following exchange

occurred:

     THE COURT: Mr. Stokes, since we recessed, it’s my
     understanding that you initially refused to come back into the
     courtroom. And you have indicated that you did not want to
     come back into the courtroom. After the sheriffs told me that, I
     instructed [defense counsel] to go into the booth and the sheriffs
     to put you in the booth so you can have a discussion about
     whether or not that was in your best interest, to absent yourself
     from the courtroom.

           [Defense counsel] has reported to me that he has had
     some discussions with you and I have asked the sheriffs to bring
     you back out. So I need to take a few minutes to explain to you
     so that you understand what will happen if you absent yourself
     from the courtroom.

           First of all, you have a constitutional right to be present
     during your trial. You can waive that right, in other words, you
     can give up your right to be present during trial. But there are
     certain risks that you are taking if you choose to absent yourself
     from this trial. I want to make sure you understand those
     because there is a danger and a disadvantage to you if you
     choose not to be present during your trial.

           Now, first of all, you picked your jury, that’s done. The
     next step in the proceeding is for the Commonwealth to call
     witnesses. You are waiving your right to confront and cross-
     examine the witnesses. [Defense counsel] will do it for you, but
     he will have no opportunity to speak with you while the
     witnesses are there and ask any questions that you may want
     him to ask.

          Also, if you absent yourself from the courtroom, you will
     not be available to testify on your own behalf just like you


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      testified on the motion. And you will severely limit any claim that
      you might have to ineffective assistance of counsel if you’re not
      present to inform counsel and give him the information that you
      think he needs to do a good job.

            So do you have any questions about what rights you’re
      giving up if you choose not to be present during your trial?

Notes of Testimony, 12/8/15, at 93-95.

      Although Appellant initially indicated that he was confused, after the

trial court explained the rights for a second time, Appellant confirmed that

he understood the rights he wanted to waive. Following Appellant’s

decisions, the trial court obtained audio and video equipment to ensure that

Appellant was able to monitor the trial. The trial court also offered Appellant

multiple opportunities to return to trial, which Appellant refused.

      Our review of the record clarifies that the trial court’s colloquy closely

tracks the language mandated by in Vega. The trial court ensured that

Appellant understood his rights, and acted properly in allowing him to waive

these rights. Further, the trial court ensured that Appellant had multiple

opportunities to return to his trial and observe the trial from his holding cell.

Appellant obviously now regrets that decision, but there is no evidence that

his waiver then was anything other than knowing and voluntary. Appellant’s

final issue on appeal merits no relief.

      Judgment of Sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2017




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