J-A03012-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEVEN FREDRICK STOKES JR.                 :
                                               :
                       Appellant               :   No. 1065 MDA 2019

       Appeal from the Judgment of Sentence Entered November 6, 2017
    In the Court of Common Pleas of York County Criminal Division at No(s):
                          CP-67-CR-0006004-2016


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                              FILED MARCH 16, 2020

        Steven Fredrick Stokes, Jr., appeals nunc pro tunc from the judgment

of sentence, entered in the Court of Common Pleas of York County, after a

jury convicted him of four counts of robbery1 and one count each of possession

of a firearm (persons not to possess),2 aggravated assault,3 theft by unlawful

taking,4 and giving false identification to law enforcement authorities.5 Upon

careful review, we affirm.


____________________________________________


1   18 Pa.C.S.A. § 3701(a)(1).

2   18 Pa.C.S.A. § 6105(a)(1).

3   18 Pa.C.S.A. § 2702(a)(1).

4   18 Pa.C.S.A. § 3921(a).

5   18 Pa.C.S.A. § 4914(a).
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       On August 10, 2016, Saquan Darby and his coworkers, Alexa Moody,

Brianna Strickland, and Actavia Weeks, were socializing outside of Moody’s

house when Stokes approached them brandishing a gun. N.T. Trial, 9/11/17,

at 75-76. Stokes pointed his gun at each of their faces and demanded they

give him everything they had. Id. at 77-79, 213. After taking Darby’s cell

phone, wallet, and watch, Stokes ordered Darby to lay flat on his stomach

with his face on the ground, arms extended, and fingers spread; Darby

complied. Id. at 79-81, 213-14. With Darby on the ground, Stokes frisked

the three women, groping their breasts and genitals, but none had anything

on them of value. Id. at 81, 102, 117, 220. Stokes began to walk away, but

turned around after a few steps, said “something along the lines of, ‘[as a]

matter of fact . . . fuck it,’” and shot Darby in the head as he lay on the ground.

Id. at 83, 103, 118, 222. Once Stokes walked away again, Moody called the

police from inside her home and Strickland rushed Darby to the hospital. Id.

at 84, 104. Minutes after the shooting, Darby told Officer Daniel Kling that

Stokes shot him in the head.        Id. at 230-34.     Darby later told hospital

personnel that he was shot as he attempted to run from Stokes. Id. at 112,

125.

       Officer Alex Sable responded to a report of a shooting over police

dispatch; he quickly located Stokes, who matched the description of the

suspect. Id. at 239-42. When Stokes saw Officer Sable approach him, he

fled. Id. at 242-43. After a foot chase involving multiple officers, Stokes was

apprehended and taken into police custody.         Id. at 243-44, 274.     Officer

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Christopher Husted found an empty gun in Stokes’ front pocket. Id. at 274-

75. When Officer Husted asked Stokes to identify himself, Stokes said that

his name was “Albert Philistine” or “Allen Philistine.” Id. at 278. Stokes also

told Officer Husted that he had not fired a gun in years. Id. Stephanie Horner,

a gunshot residue expert, testified that material removed from Stokes’ hand

just minutes after the report of the shooting tested positive for gunshot

residue. Id. at 193-94.

       Following Stokes’ arrest, the trial court held a preliminary hearing on

September 14, 2016, during which Darby testified that he was lying flat on

his stomach when Stokes shot him. N.T. Preliminary Hearing, 9/14/16, at 6.

Attorney Erin Thompson from the Public Defender’s Office cross-examined

Darby without objection. Id. at 8-16. However, because Darby did not sign

medical releases until the day of the preliminary hearing, neither the

Commonwealth nor defense counsel had, at the time of that hearing, a copy

of Darby’s statement to hospital staff indicating that he said he was shot as

he attempted to run from Stokes. Trial Court Opinion, 6/8/18, at 1-4.

       After the preliminary hearing, the Commonwealth lost contact with

Darby, and he was unavailable for trial despite numerous attempts to contact

and locate him.6      Id. at 1-2. The Commonwealth filed a motion in limine

____________________________________________


6 The Commonwealth took several steps to locate Darby, including calling
Darby on the phone, sending contact letters to his last known address, locating
and calling the mother of Darby’s son with instructions to contact the District
Attorney’s office, sending detectives to Darby’s last known address with



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seeking admission of Darby’s preliminary hearing testimony, which the trial

court granted after a hearing on September 8, 2017.

       At trial, the Commonwealth read the transcript of Darby’s preliminary

hearing testimony into the record without objection from Stokes. N.T. Trial,

9/11/17, at 206-24. Stokes admitted into evidence Darby’s hospital report,

which contained his prior inconsistent statement, and the parties stipulated to

the jury that Darby informed hospital officials that he was shot while trying to

run from Stokes. Id. at 292-93. Ultimately, on September 14, 2017, the jury

found Stokes guilty of the above-mentioned crimes.

       On November 6, 2017, the court sentenced Stokes to an aggregate term

of imprisonment of 20-40 years. Stokes filed a post-sentence motion, which

the court denied on March 1, 2018. Stokes timely filed a notice of appeal.

Stokes’ appeal was dismissed on January 22, 2019, for his then-appellate-

counsel’s failure to file a brief. On May 29, 2019, Stokes timely filed a PCRA

petition to reinstate his appellate rights nunc pro tunc, which the court granted

on June 7, 2019. On June 28, 2019, Stokes timely filed a notice of appeal,

nunc pro tunc, to this Court. Both the trial court and Stokes complied with

Pa.R.A.P. 1925.

____________________________________________


instructions to contact the District Attorney’s office, utilizing internet
databases including Lexis-Nexus/Accurint and Visual Alert, and contacting
local police in the jurisdiction they believed Darby may have been located.
Trial Court Opinion, 6/8/18, at 1-2. Stokes conceded that Darby was
unavailable for trial and that the Commonwealth’s attempts to contact and
locate him constitute a good faith effort. Id. at 3.


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       On appeal, Stokes raises the following issue for our review: “Did the

trial court err when it permitted the Commonwealth to enter into the record

[Darby’s] testimony from [Stokes’] preliminary hearing, even though after the

preliminary hearing and prior to trial, new impeachment evidence involving

[Darby] came to light[?]” Brief of Appellant, at 5.

       Instantly, Stokes claims that the trial court erred in granting the

Commonwealth’s motion in limine to admit Darby’s preliminary hearing

testimony.7     Id. at 10.     Stokes argues that he was denied a full and fair

opportunity to cross examine Darby at the preliminary hearing, in violation of

his constitutional right to confront witnesses against him, because at that

time, Stokes was “denied access” to “vital impeachment evidence[;]”

specifically, Darby’s statement to hospital personnel. Id. at 16.

       It is well-established that,

       [u]nder both our federal and state constitutions, a criminal
       defendant has the right to confront and cross-examine witnesses
       against him at trial. However, it is [also] well-established that an
       unavailable witness’ prior recorded testimony from a preliminary
       hearing is admissible at trial and will not offend the right of
       confrontation, provided the criminal defendant had counsel and a
       full opportunity to cross-examine that witness at the prior
       proceeding. . . . The Commonwealth may not be deprived of its
       ability to present inculpatory evidence at trial merely because the
       defendant, despite having the opportunity to do so, did not cross-
       examine the witness at the preliminary hearing stage as
       extensively as he might have done at trial. However, where the
       defense, at the time of the preliminary hearing, was denied access
____________________________________________


7 “A ruling on a motion in limine on record is sufficient to preserve the issue
for appeal, without renewal of the objection or offer at trial.” Trach v. Fellin,
817 A.2d 1102, 1107 n.3 (Pa. Super. 2003) (en banc).

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       to vital impeachment evidence, a full and fair opportunity to cross-
       examine the unavailable witness may be deemed to have been
       lacking at the preliminary hearing. The opportunity to impeach a
       witness is particularly important where the Commonwealth’s
       entire case hinges upon the testimony of the unavailable witness.

Commonwealth v. Johnson, 758 A.2d 166, 169 (Pa. Super. 2000)

(emphasis added) (internal citations omitted); see also Pa.R.E. 804(b)(1)

(governing admissibility of unavailable witness’ prior testimony); Crawford

v. Washington, 541 U.S. 36 (2004) (“Where testimonial evidence is at

issue[,] . . . the Sixth Amendment demands what the common law require[s]:

unavailability and a prior opportunity for cross examination.”).

       Stokes and the Commonwealth agree that this court’s standard of

review for a trial court’s ruling on a motion in limine is an “evidentiary abuse

of discretion standard.” Brief of Appellant, at 4 (quoting Commonwealth v.

Zugay, 745 A.2d 639, 644-45 (Pa. Super. 2000)); Brief of Appellee, at 5

(quoting Crespo v. Hughes, 167 A.3d 168, 177 (Pa. Super. 2017)).8

However, we have explained that “[w]hether [an appellant] was denied [his]

right to confront a witness under the [C]onfrontation [C]lause of the Sixth

Amendment is a question of law for which our standard of review is de

novo and our scope of review is plenary.” Commonwealth v. Yohe, 39 A.3d

381, 382 (Pa. Super. 2012).

       At the hearing on the motion in limine, the court explained: “the only

issue is whether or not the fact that [the hospital] report did not become
____________________________________________


8 Unlike the matter sub judice, neither of these cases dealt with any
Confrontation Clause issue. See Zugay, supra; Crespo, supra.


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known until after the hearing[] therefore disallows the Commonwealth from

being able to introduce to the jury the alleged victim’s preliminary hearing

testimony.” N.T. Preliminary Hearing, 9/14/16, at 14. Essentially, the issue

is whether Stokes had a full and fair opportunity to cross-examine Darby at

the preliminary hearing where Darby’s prior inconsistent statements were not

discovered by either party until after the hearing; if Stokes had such an

opportunity,   then   the   testimony     was    properly   admitted.        See

Commonwealth v. Bazemore, 614 A.2d 684, 686 (Pa. 1992) (“the

opportunity to cross-examine must be fair given the circumstances of the

particular matter”) (emphasis removed).

      Where, as here, the Commonwealth did not know of or possess Darby’s

prior inconsistent statement at the preliminary hearing, the Commonwealth

did not deny Stokes access to that statement. Accordingly, Stokes was not

denied a    full and fair   opportunity    to   cross-examine   Darby   by   the

Commonwealth at the preliminary hearing, and he is entitled to no relief. In

Commonwealth v. Leak, 22 A.3d 1036 (Pa. Super. 2011), we held that

where the prosecutor did not possess the victim’s hospital records at the time

of the preliminary hearing, the “record does not establish that the

Commonwealth denied [appellant] access to the hospital records in question.”

Id. at 1045. Additional case law supports the conclusion that, for an appellant

to be “denied” vital impeachment evidence such that his Sixth Amendment

rights were violated, the Commonwealth must fail to turn over some evidence

actually in its possession. See Bazemore, supra (no opportunity for full and

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fair cross-examination where “Commonwealth knows, but does not disclose to

the defense at any time prior to the preliminary hearing . . . that the witness

has made an inconsistent prior statement) (emphasis added); Johnson,

supra (where Commonwealth possesses but fails to disclose witness’ prior

inconsistent statement, defendant is denied full and fair opportunity for cross-

examination).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/16/2020




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