J-S86009-16

                                 2016 PA Super 265

COMMONWEALTH 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-


                                    -2-
J-S86009-16


     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

                                   -3-
J-S86009-16


     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).

                                    -4-
J-S86009-16


            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:




                                     -5-
J-S86009-16


       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

____________________________________________


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)


                                           -6-
J-S86009-16


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).




                                            -7-
J-S86009-16


      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




                                     -8-
J-S86009-16


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.



____________________________________________


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).



                                            -9-
J-S86009-16


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


                                   - 10 -
J-S86009-16


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




                                    - 11 -
