Commonwealth v. Jones

COMMONWEALTH OF PENNSYLVANIA v. ISAIAH JONES, Appellant

J. S09008/15

No. 431 WDA 2014

SUPERIOR COURT OF PENNSYLVANIA

JUNE 24, 2015

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence, February 10, 2014, in the Court of Common Pleas of Westmoreland County

Criminal Division at No. CP-65-CR-0003493-2011

BEFORE: FORD ELLIOTT, P.J.E., BOWES AND ALLEN, JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.:

Isaiah Jones appeals from the judgment of sentence of February 10, 2014, following his conviction of robbery and related charges. After careful review, we vacate and remand for resentencing, but affirm in all other respects.

The trial court has summarized the history of this case as follows:

The Defendant was charged by Criminal Information filed at No. 3493 C 2011 with numerous violations of the Pennsylvania Crimes Code, including Robbery, Aggravated Assault, Simple Assault, Recklessly Endangering Another Person and Theft by Unlawful Taking. These charges arose from an incident that occurred on June 4, 2011 in Monessen, Westmoreland County, Pennsylvania. The testimony at trial established that on June 4, 2011, Jason McCullough was working as an employee of Del Rosa's Pizza Shop, and that part of his job involved delivering pizzas to individuals who had placed orders. McCullough testified that he knewIsaiah Jones before that date, but only knew him by his nickname, "Oogie." He testified that he had delivered an order to "Oogie" at 464 Reed Avenue in Monessen earlier that evening, and returned to deliver another order at approximately 10:00 p.m. McCullough related that as he approached the rear entrance to the residence, he was struck from behind and thrown to the ground. He further stated that the person who had assaulted him then placed a gun to the side of his head and demanded all of his money. McCullough gave the person some of the money that was in the pocket of his pants, and the person demanded that he give him all of the money or he would kill him. The person patted McCullough down, felt more money in his pocket and "pistol whipped" him before he removed the rest of the money from his pants. McCullough could see parts of the gun, and was able to describe the weapon.

When the person who assaulted and robbed him ran off, McCullough immediately screamed for help. The resident of the front apartment, Stephanie Shanefelt, let him inside her apartment and called 9-1-1 for him. McCullough told her, "Oogie robbed me, Oogie robbed me," and also called his employer at the pizza shop to tell him what had occurred. Although he never saw his face, McCullough recognized the voice of his attacker as that of the person who he knew as "Oogie," and identified "Oogie" at trial as the defendant, Isaiah Jones.

Stephanie Shanefelt testified that she had been inside her apartment on the evening of June 4, 2011 when McCullough rang her doorbell, thinking that the delivery was for her. She suggested that he try the rear apartment. Shortly thereafter, she heard yelling, and when she looked outside her window, she saw "the pizza man" running from around the side of the house and also saw "Oogie" running from behind the house and down the street. She stated that McCullough (the ["]pizza man") repeatedly said that "Oogie" had robbed him. She testified that she knew "Oogie" at the time of the incident, and also positively identified him at trial.

Some time after the incident, after Jones had been charged with these crimes, McCullough testified that he received an anonymous letter in the mail offering him $1,000.00 if he would not testify against Jones, and threatening him with "consequences" if he chose to do so. Jones' girlfriend, Pashun Pettiford, testified that Jones had written to her, instructed her to send a letter to McCullough, and specified exactly what words should be contained in that letter. She identified the letter that McCullough had received as being the letter she wrote at Jones' direction.

Keith Barber testified that on February 19, 2012, he h[e]ard sounds of a crash outside of his North Belle Vernon home at approximately 10:20 p.m. He saw that a SUV had collided with a tree across the street from hi[s] house. He heard police shouting to "come out of the car." He was on his way to see if his neighbor was all right, and noted that his back gate was open. He went to the back yard to investigate, and when he opened the door to his shed, a tall individual wearing a dark hoodie and jeans came out of the shed and ran away. Barber alerted the police that "they're back here," and the police gave chase. Barber testified that he immediately went into the shed and spotted a red ball cap that did not belong to him or any member of his family. Upon closer examination, Barber saw a cell phone and a gun and traces of blood inside of the shed. He stated that he had been in the shed earlier [and] that none of the items he discovered, nor the blood smears, had been there prior to his observing the unknown individual running out of the shed on that night. He promptly notified police of his discoveries. Police took custody of the gun that Barber found in his shed, and also preserved samples of the blood smears that were located in the interior of the shed. DNA analysis of the blood found inside Barber's shed matched the sample of blood that was subsequently obtained from Jones. DNA analysis of the gun found in theshed was inconclusive because it contained a DNA mixture from at least four individuals.

Trial court opinion, 6/4/14 at 1-4 (footnote and citations omitted).

Following a jury trial held November 4, 6, and 7, 2013, appellant was found guilty of three counts of robbery, aggravated assault, simple assault, recklessly endangering another person, and theft by unlawful taking. On February 10, 2014, appellant was sentenced to a mandatory minimum of 5 to 10 years' incarceration at Count 1, robbery, pursuant to 42 Pa.C.S.A. § 9712(a) (visible possession of a firearm during commission of the offense). At Count 4, aggravated assault, appellant received a concurrent sentence of 1½ to 3 years; at Count 6, recklessly endangering, the trial court imposed no further sentence. The remaining charges merged for sentencing purposes. Therefore, appellant's aggregate sentence was 5 to 10 years' imprisonment. This timely appeal followed. Appellant has complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.

Appellant has raised the following issues for this court's review:

I. Did the Trial Court impose an illegal sentence in relying upon the mandatory sentence in 42 Pa.C.S.A. § 9712, in light of the Superior Court decision in Commonwealth v. Newman, 2014 PA Super 178 (2014), which declared the mandatory sentencing statute to be unconstitutional?

II. Did the Trial Court err in excluding from evidence the proposed testimony of alibi witnesses for Defendant?

III. Did the Trial Court err in allowing the Commonwealth to introduce evidence tending to show that Defendant possessed a firearm on an occasion approximately eight months after the offenses for which he was tried?

IV. Did the Trial Court err in refusing to grant a mistrial where the prosecuting attorney elicited testimony from a witness about an alleged conversation she had with Defendant's attorney, which testimony would have required counsel to become a witness in the trial to contradict the same?

Appellant's brief at 4.

In his first issue on appeal, appellant argues that his sentence is illegal. As stated above, the trial court imposed the 5 to 10-year mandatory minimum sentence for crimes committed with firearms pursuant to 42 Pa.C.S.A. § 9712. Following the United States Supreme Court's decision in Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013), Section 9712 has been held unconstitutional in its entirety. Commonwealth v. Ferguson, 107 A.3d 206, 213-216 (Pa.Super. 2015), discussing Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014); and Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc). Therefore, it is necessary to vacate appellant's sentence and remand forresentencing without consideration of the mandatory minimum sentence provided in Section 9712.¹

The Commonwealth argues that any error is harmless because appellant's sentence was within the guidelines and the trial court could have imposed the same sentence without applying the mandatory minimum sentence pursuant to Section 9712. The Commonwealth's argument is misplaced. Regardless of whether the trial court could have imposed the same sentence without relying on Section 9712 and remained within the guidelines, the fact of the matter is that the trial court did impose the mandatory 5 to 10-year sentence required by Section 9712, as requested by the Commonwealth. (Notes of testimony, sentencing, 2/10/14 at 2, 4.) See Commonwealth v. Cardwell, 105 A.3d 748, 750 (Pa.Super. 2014) ("It is also well-established that [i]f no statutory authorization exists for a particular sentence, that sentence is illegal and subject to correction. An illegal sentence must be vacated." (quotation marks and citation omitted)). In addition, the fact that the jury found appellant was in possession of a firearm at the time of the crime beyond a reasonable doubt is of no moment. (Notes of testimony, 11/4, 6-7/13 at 423.) The unconstitutional provisions of Section 9712 are not severable, and the trial court cannot create a new procedure in an effort to impose the mandatory minimum sentence incompliance with Alleyne by allowing the jury to determine the factual predicate of Section 9712. Ferguson, 107 A.3d at 216.

In his second issue on appeal, appellant argues that the trial court abused its discretion by excluding proposed alibi witnesses. According to appellant, two alibi witnesses, Earl Pinkney and Ethan Pinkney, could testify that he was not in the vicinity of his home at the time of the robbery. The trial court ruled that appellant could not call these witnesses at trial...