Com. v. Stokes, N.

J-S21032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

NAFIS STOKES

Appellant No. 1837 EDA 2013

Appeal from the PCRA Order June 3, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003465-2007
CP-51-CR-0007499-2007

BEFORE: SHOGAN, J., ALLEN, J., and OTT, J.

MEMORANDUM BY OTT, J.: FILED DECEMBER 24, 2014

Nafis Stokes appeals from the order entered June 3, 2013, in the

Philadelphia County Court of Common Pleas, dismissing his first petition filed

pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq.

Stokes seeks relief from the judgment of sentence of an aggregate 16 to 32

years’ imprisonment imposed following his conviction of conspiracy to

commit murder1 and related offenses for the 2007 shooting of a 14-year-old

victim. Contemporaneous with this appeal, appointed counsel has filed a

Turner/Finley2 “no merit” letter and petition seeking leave to withdraw
____________________________________________

1
18 Pa.C.S. §§ 903 and 2502.
2
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
J-S21032-14

from representation. For the reasons set forth below, we affirm, and grant

counsel leave to withdraw.

The facts underlying Stokes’s arrest and conviction were summarized

in the opinion of this Court affirming his judgment of sentence on direct

appeal:

On January 8, 2007, fourteen-year-old M.L. and his friend were
seeking to purchase marijuana. The two boys proceeded down
Judson Street in Philadelphia where they encountered a group of
males, including [Stokes]. A member of the group asked M.L.
why he was on his block and ordered M.L. to leave. M.L.
responded that he could walk wherever he wanted and that the
individual did not own the block. After the verbal sparring, M.L.
and his friend entered a Chinese restaurant at the end of the
street. When M.L. exited, he was shot three times, once in the
lower back, left arm, and left groin. Although suffering from
three gunshot wounds, M.L. ran four blocks before collapsing in
the road. Police transported him immediately to Temple
University Hospital where he underwent emergency surgery. As
a result of the shooting, doctors removed M.L.’s left kidney.

Philadelphia detectives … interviewed M.L. after his release from
the hospital. M.L. informed police that the shooter was, “Black,
dark skin, tall but a little shorter than the other guy, short hair,
he’s always on Judson Street. Somebody told me his name is
Nafis.” N.T., 2/24/10, at 103. In addition, he told the
detectives that the shooter was not wearing a mask and that he
recognized him from seeing him on Judson Street for
approximately one year. After being shown a photograph of
[Stokes], M.L. confirmed that the photograph was of the
individual who shot him.

Police arrested [Stokes] at his mother’s home on Judson Street.
At the time of the arrest, [Stokes] was exiting the front bedroom
on the second floor of the house. A search of [Stokes’s] person
revealed six packets of marijuana. Additionally, in the bedroom
from which [Stokes] was seen departing, police found a .38
caliber revolver as well as a small amount of marijuana. The
gun recovered by police did not match ballistics for the weapon
that wounded M.L. In another bedroom, police located

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additional marijuana, [Stokes’s] identification card, and drug
paraphernalia. Thereafter, the Commonwealth charged [Stokes]
with attempted murder, conspiracy to commit murder,
aggravated assault, conspiracy to commit aggravated assault,
REAP, PIC, firearms not to be carried without a license, and
carrying firearms on public streets or public property in
Philadelphia. These charges stemmed from the shooting
incident. The Commonwealth also charged [Stokes] with
possession of marijuana, PIC, and persons not to possess
firearms.

M.L. subsequently identified [Stokes] as his attacker at [the]
preliminary hearing, stating that he knew [Stokes] did it and
that he had no doubt that [Stokes] shot him. However, at trial
M.L. testified differently, asserting that [Stokes] did not shoot
him and that he never told police that [Stokes] was the shooter.
According to M.L., [Stokes] was entering a car on the corner of
the street when the incident occurred. He also claimed that he
told police the same story. As a result of [M.L.’s] inconsistent
statements, the Commonwealth introduced [M.L.’s] preliminary
hearing testimony as substantive evidence and called the
assistant district attorney who presented the Commonwealth's
case at [Stokes’s] preliminary hearing. The district attorney
testified that M.L. had identified [Stokes] as his assailant.
Similarly, both [police detectives] stated that they took a
verbatim statement from M.L. identifying [Stokes] as his
attacker.

****

Related to the shooting incident, the jury returned not guilty
verdicts on the counts charging attempted murder, PIC, and
both firearms violations. Thus, the jury appeared to have
concluded that the prosecution failed to prove beyond a
reasonable doubt that [Stokes] was the actual shooter and
possessed a gun during the shooting. However, the jury did find
[Stokes] guilty of conspiracy to commit murder, aggravated
assault, conspiracy to commit aggravated assault, and REAP.[3]
With respect to the drug related charges, the jury found [Stokes]

____________________________________________

3
18 Pa.C.S. §§ 903, 2502, 2702(a)(1), and 2705, respectively.

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guilty of possession of a controlled substance and PIC.[4] In a
separate proceeding, the trial court adjudicated [Stokes] guilty
of the person not to possess firearms charge.[5]

Commonwealth v. Stokes, 38 A.3d 846, 850-851 (Pa. Super. 2011).

On May 17, 2010, the trial court imposed an aggregate sentence of 16

to 32 years’ imprisonment.6 Stokes filed a direct appeal to this Court, which

affirmed his judgment of sentence on December 1, 2011. Stokes, supra.7
____________________________________________

4
35 P.S. § 780-113(a)(16) and 18 Pa.C.S. § 907, respectively.
5
18 Pa.C.S. § 6105.
6
The trial court applied the deadly weapon enhancement, pursuant to 204
Pa. Code § 303.10(a)(2), to the guideline ranges for Stokes’s convictions of
conspiracy, aggravated assault, REAP, and possession of a controlled
substance. The court also imposed a mandatory minimum five year
sentence, pursuant to 42 Pa.C.S. § 9712, for his conviction of aggravated
assault, based upon the court’s finding that Stokes committed the offense
while visibly possessing a firearm. Accordingly, for the shooting incident
(Docket No. 51-CR-0003465-2007), the trial court imposed consecutive
sentences of 10 to 20 years’ imprisonment for conspiracy to commit murder
and five to 10 years’ imprisonment for aggravated assault, and a concurrent
sentence of one to two years’ imprisonment for the charge of REAP. For the
drugs and weapons found in Stokes’s mother’s home (Docket No. 51-CR-
0007499-2007), the court imposed a consecutive sentence of one to two
years’ imprisonment for possession of a firearm, and concurrent sentences
of 30 days for possession of a controlled substance, and one to two years for
possession of an instrument of crime.
7
Stokes raised the following issues on direct appeal: (1) the evidence was
insufficient to support his conviction of PIC; (2) the jury’s verdict was
inconsistent; (3) the trial court erred when it refused to submit a special
interrogatory regarding whether Stokes possessed the drugs in the bedroom
where the police found the firearm; (4) the court erred in imposing the
Section 9712 mandatory minimum and the deadly weapon enhancement,
when the jury acquitted him of the charges related to possession of a
firearm during the shooting incident; (5) the court erred when it permitted
the prosecution to elicit impermissible voucher testimony from a police
(Footnote Continued Next Page)

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Thereafter, on June 12, 2012, Stokes filed a timely, counseled PCRA petition.

After providing Stokes with notice of its intent to dismiss the petition without

first conducting an evidentiary hearing pursuant to Pa.R.Crim.P. 907, the

PCRA court entered the following order on May 24, 2013:

AND NOW, this 24th day of May, 2013, this Court having
determined that the issues raised by Petitioner in his Post
Conviction Relief Act Petition are without merit, this matter is
DISMISSED, pursuant to Commonwealth v. Finley, 550 A.2d 213
Pa.Super. 1988. 907 Notice previously sent. Defense attorney,
Teri Himebaugh, Esquire is permitted to withdraw from further
representation of Petitioner. Petitioner may however, proceed
on appeal on a pro se basis or with retained counsel. In Forma
Pauperis status to continue.

Order, 5/24/2013. Although the PCRA court indicated that it permitted

counsel to withdraw pursuant to Turner/Finley, neither a motion to

withdraw nor a Turner/Finley “no-merit” letter is included in the certified

record.

On June 3, 2013, the PCRA court entered a “Corrected Order” which

decreed: “following a review of the pleadings, record, evidence and

_______________________
(Footnote Continued)

detective relative to the affidavit of probable cause and criminal complaint;
(6) the court abused its discretion when it admitted hearsay testimony from
another police detective; and (7) the court erred when it permitted the
prosecution to impermissibly bolster the credibility of the victim. See id. at
852-853.

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argument of counsel, the Petitioner’s petition for post-conviction relief is

DISMISSED.” Order, 6/3/2013. A timely pro se appeal followed.8

When the appeal first appeared before this panel, we noted that the

certified record did not contain a petition to withdraw or Turner/Finley “no

merit” letter, and the trial court provided no reason in its opinion for its

decision permitting counsel to withdraw. Because Stokes is an indigent,

first-time PCRA petitioner, he is entitled to representation to assist him in

litigating an appeal from the order denying his PCRA petition. See

Pa.R.Crim.P. 904(C). Accordingly, we remanded the case to the PCRA court

with direction to appoint counsel within 30 days. See Commonwealth v.

Stokes, 1837 EDA 2013 (unpublished memorandum at 5) (Pa. Super. May

9, 2014).

The court complied with our directive, and, on July 22, 2014, newly

appointed counsel filed an application to withdraw and accompanying

Turner/Finley “no merit” letter. Although the Commonwealth was granted

an extension of time to file a responsive brief, it failed to do so by the date

mandated by this Court. See Order, 9/2/2014 (granting extension of time

to file appellee brief until October 20, 2014). Accordingly, the appeal is now

ready for our review.
____________________________________________

8
Although not directed to do so by the PCRA court, Stokes, on July 9, 2013,
filed a pro se concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b).

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However, prior to addressing the merits of the appeal, we must first

consider whether counsel has fulfilled the procedural requirements for

withdrawal as outlined in Turner/Finley:

Counsel petitioning to withdraw from PCRA representation must
… review the case zealously. Turner/Finley counsel must then
submit a “no-merit” letter to the trial court, or brief on appeal to
this Court, detailing the nature and extent of counsel’s diligent
review of the case, listing the issues which petitioner wants to
have reviewed, explaining why and how those issues lack merit,
and requesting permission to withdraw. Counsel must also send
to the petitioner: (1) a copy of the “no merit” letter/brief; (2) a
copy of counsel’s petition to withdraw; and (3) a statement
advising petitioner of the right to proceed pro se or by new
counsel.
***

[W]here counsel submits a petition and no-merit letter that …
satisfy the technical demands of Turner/Finley, the court —
trial court or this Court — must then conduct its own review of
the merits of the case. If the court agrees with counsel that the
claims are without merit, the court will permit counsel to
withdraw and deny relief.

Commonwealth v. Doty, 48 A.3d 451, 454 (Pa. Super. 2012) (citation

omitted).

Here, counsel has complied with the procedural aspects of

Turner/Finley by filing a “no merit” letter, providing Stokes with a copy of

that letter and the petition to withdraw, and advising Stokes of his right to

proceed pro se or with private counsel. See Motion Seeking Permission to

Withdraw as Counsel, 7/22/2014. Therefore, we proceed to a consideration

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of whether the PCRA court erred in dismissing the petition. 9 See Doty,

supra.

When reviewing an order dismissing a PCRA petition, we must

determine whether the PCRA court’s findings of fact are supported by the

record, and whether its legal conclusions are free from error.

Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014). “Great deference

is granted to the findings of the PCRA court, and these findings will not be

disturbed unless they have no support in the certified record.”

Commonwealth v. Carter, 21 A.3d 680, 682 (Pa. Super. 2011) (citation

omitted).

Where, as here, the only claims raised on appeal challenge the

effectiveness of counsel, our review is well-settled:

We begin our analysis of ineffectiveness claims with the
{ "pageset": "S21
presumption that counsel is effective. To prevail on
his ineffectiveness claims, Appellant must plead and prove, by a
preponderance of the evidence, three elements: (1) the
{ "pageset": "Sdc
underlying legal claim has arguable merit; (2)
counsel had no reasonable basis for his action or inaction; and
(3) Appellant suffered prejudice because of counsel’s action or
inaction. With regard to the second, i.e., the “reasonable basis”
prong, we will conclude that counsel’s chosen strategy lacked a
reasonable basis only if Appellant proves that “an alternative not
chosen offered a potential for success substantially greater than
the course actually pursued.” To establish the third, i.e., the
prejudice prong, Appellant must show that there is a reasonable

____________________________________________

9
Stokes has not filed a response to counsel’s “no-merit” letter.

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probability that the outcome of the proceedings would have been
different but for counsel’s action or inaction.

Commonwealth v. Spotz, 18 A.3d 244, 259-260 (Pa. 2011) (internal

citations omitted). “Failure to establish any prong of the test will defeat an

ineffectiveness claim.” Commonwealth v. Keaton, 45 A.3d 1050, 1061

(Pa. 2012) (citations omitted).

The first issue addressed in the “no-merit” letter asserts trial counsel’s

ineffectiveness for failing to object when the trial court permitted the jury to

review M.L.’s statement to police during its deliberations, but not the

transcript from M.L.’s preliminary hearing testimony.

The determination of whether a trial exhibit should be permitted to go

out with the jury during deliberations, “is within the discretion of the trial

judge, and such decision will not be overturned absent an abuse of

discretion.” Commonwealth v. Parker, ___ A.3d ___, 2014 PA Super 253,

*6 (Pa. Super. Nov. 6, 2014) (quotation omitted). “Our courts have rarely

found that materials given to juries during deliberations constitute reversible

error.” Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012),

appeal denied, 63 A.3d 772 (Pa. 2013)

This claim arose from the following circumstances. During its

deliberations, the jury sent the following note to the trial court:

Could we ask you to repeat your instructions on aggravated
assault, attempted murder, use of the complainant victim’s
original testimony from preliminary hearing and statement to
detective? Can we see these statements from the victim?

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N.T., 2/26/2010, at 4. Stokes’s counsel objected to sending any of the

victim’s prior statements or testimony to the jury, arguing “the jury is going

to have to rely on their memory only.” Id. at 6-7. However, after

determining that M.L.’s entire police statement was read to the jury and

moved into evidence, the trial court decided to allow the jury to review the

statement during its deliberations. Id. at 17-18. However, the trial court

did not to allow the jury to review M.L.’s testimony during Stokes’s

preliminary hearing because the entire hearing transcript was not read to

the jury during trial. Id. at 18. Rather, the trial court instructed the jury as

follows:

As far as the preliminary hearing notes, I cannot send that back
with you. In addition, in order to parse out what was actually
placed in the record from the notes, we would have to go
through a lot of testimony, and I think that here we run into a
danger of confusing more of the issue than we might be
answering.

So what I’m going to ask the foreperson is if you can
identify a particular area of questioning in regard to the
preliminary hearing testimony and write that down for me, I can
attempt to answer it for you.

Id. at 20. The jury did not return with any further questions before

delivering its verdict.

Based upon the foregoing, we find Stokes was not prejudiced by

counsel’s failure to object to the court’s ruling. The trial court soundly

declined to allow the entire preliminary hearing transcript to go out with the

jury because the entire transcript was not admitted into evidence.

Furthermore, the court provided the jury with the opportunity to return with

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a specific question regarding M.L.’s preliminary hearing testimony.

However, the jury declined to do so. Moreover, as the PCRA court explained

in its opinion, “permitting the jury to read through the preliminary hearing

transcript hardly would have altered the outcome of [Stokes’s] trial” since

M.L.’s testimony “only inculpated” Stokes. PCRA Court Opinion, 8/1/2013,

at 12. Based upon our review of the preliminary hearing transcript, we

agree. Therefore, Stokes has failed to demonstrate he was prejudiced by

the trial court’s ruling, and, accordingly, he is entitled to no relief on this

claim. See Spotz, supra.

The next ineffectiveness claim raised in the “no-merit” letter

challenges trial counsel’s failure to object to M.L.’s hearsay testimony that

“somebody” told him the shooter’s name was “Nafis.” See N.T., 2/23/2010,

at 76, 86. One of the investigating detectives testified that M.L. recognized

the assailant from the street, and learned his name after calling someone

and asking that person “what’s the name of that boy on the street … that’s

always trying to mess with my sister.” N.T., 2/24/2010, at 108.

A statement is hearsay if it was made while the declarant was not

“testifying at the current trial or hearing” and it was offered “in evidence to

prove the truth of the matter asserted in the statement.” Pa.R.E. 801.

Although M.L. learned the name of the shooter from someone who did not

testify at trial, that fact was not offered to prove that the shooter was,

indeed, Stokes. Rather, as the PCRA court noted in its opinion, the

testimony was offered “to explain how the victim came to know [Stokes’s]

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name and to offer it to police.” PCRA Court Opinion, 8/1/2013, at 12. As

there was no basis for a hearsay objection, we will not find trial counsel

ineffective for failing to assert a meritless objection. Commonwealth v.

Buterbaugh, 91 A.3d 1247, 1256 (Pa. Super. 2014). Moreover, M.L.

identified Stokes as the shooter both in a photograph provided by police

shortly after the shooting, and during the preliminary hearing. Therefore,

Stokes cannot demonstrate he was prejudiced by counsel’s failure to object

to M.L.’s testimony that he learned Stokes’s name from someone else.

Spotz, supra.

Lastly, the “no-merit” letter asserts trial counsel’s ineffectiveness for

failing to object to testimony from a Commonwealth witness that improperly

bolstered credibility of the victim, M.L. Again, we conclude no relief is

warranted.

This claim arose from the following circumstances. As noted above,

M.L.’s trial testimony differed from his testimony at Stokes’s preliminary

hearing. Indeed, at trial, M.L. stated that all of the gunmen wore masks and

he could not identify Stokes as one of the people who shot at him. N.T.,

2/23/2010, at 62, 75. When confronted with his prior testimony, M.L.

claimed he did not remember testifying at Stokes’s preliminary hearing. Id.

at 70-72, 94-95. Therefore, the Commonwealth called Assistant District

Attorney (ADA) Joseph McGlynn who represented the Commonwealth at

Stokes’s preliminary hearing. ADA McGlynn confirmed M.L. answered the

questions that were reflected in the transcript from the preliminary hearing.

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Of particular significance, ADA McGlynn testified that when M.L. was asked,

“Who put the gun up,” M.L. responded, “The boy right here in the seat” and

pointed to Stokes. N.T., 2/24/2010, at 90. Thereafter, the trial prosecutor

asked ADA McGlynn to describe M.L.’s demeanor at the preliminary hearing.

The following exchange took place:

[ADA McGlynn:] Well, I would say this – I mean, I don’t think
my recollection is that he wasn’t necessarily one way or another.
He – when I interacted with him, he wasn’t necessarily friendly.
I know that he had a family member with him, but he was
answering my questions. He was not hostile and he wasn’t
warm and fuzzy. He just really answered my questions.

Q. When the judge asked him questions, was he able to respond
to the judge’s questions?

[ADA McGlynn:] Absolutely.

Q. Was he able to respond in a non-hostile way?

[ADA McGlynn:] Absolutely. Yes, his demeanor on the stand
was similar to when he talked to me when he was off the stand.
That was just I guess the facts.

Q. Was there any hesitation in the answers that he gave to you
or to the judge?

[ADA McGlynn:] Not at all.

Id. at 92-93. Stokes argues this testimony constituted impermissibly

bolstering of the Commonwealth’s primary witness.

“It is well settled that as long as a prosecutor does not assert his

personal opinions, he or she may, within reasonable limits, comment on the

credibility of a Commonwealth witness.” Commonwealth v. Simmons,

662 A.2d 621, 639 (Pa. 1995) (citation omitted). Moreover, an assistant

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district attorney who handled an earlier phase of a prosecution may testify in

a later phase of a trial so long as the testimony does not “improperly bolster

a witness’s credibility in the eyes of the jury,” by either placing “the prestige

of the government behind the witness by personal assurances of the

witness’s veracity[,]” or indicating “that information which is not before the

jury supports the witnesses’ testimony.” Commonwealth v. Randall, 758

A.2d 669, 676 (Pa. Super. 2000) (citations omitted), appeal denied, 764

A.2d 1067 (Pa. 2000).

This Court’s decision in Randall is instructive. In that case, the

Commonwealth’s key witness testified more favorably for the

Commonwealth at trial than he had at the preliminary hearing. He explained

that he had not told the “whole truth” earlier because he was scared. Id. at

676-677. After defense counsel cross-examined the witness with his

preliminary hearing testimony, the Commonwealth was permitted to call the

ADA who handled the preliminary hearing “for the very narrow purpose of

establishing the demeanor of [the witness] at the preliminary hearing,

namely whether or not he was scared.” Id. at 677. On appeal, this Court

found no abuse of discretion on the part of the trial court in permitting this

testimony. We explained:

[The ADA] did not at any time express a belief as to whether he
thought [the witness] was telling the truth when he testified or
that he thought [the witness] to be a credible and accurate
witness. Consequently, [the ADA] was in no way offering his
personal opinion whatsoever as to [the witness’s] credibility as a
witness or otherwise vouching for [the witness] to the jury,
actions which would have been manifestly improper. Neither did

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[the ADA] attempt to support [the witness’s] prior testimony by
referring to matters that were not already in evidence.

Id. at 678.

The testimony of ADA McGlynn in the present case was similar to that

of the ADA in Randall. Here, the victim testified less favorably for the

Commonwealth during trial, than he had at the preliminary hearing. The

Commonwealth called ADA McGlynn to describe victim’s demeanor during

the preliminary hearing testimony, particularly whether the victim hesitated

when identifying of Stokes as one of the shooters. Notably, ADA McGlynn

did not give his personal opinion of whether the victim’s prior testimony

was truthful, nor did he refer to matters not in evidence. Accordingly, we

agree with the PCRA court that this issue has no arguable merit.

As mandated by law, we have independently reviewed the record and

agree with counsel that the current appeal has no merit.10 See Doty,
____________________________________________

10
We note that the five-year mandatory minimum sentencing provision in 42
Pa.C.S. § 9712, imposed in the present case based upon the trial court’s
determination that Stokes committed a crime of violence while visibly
possessing a firearm, has been found to be unconstitutional in light of the
United States Supreme Court’s decision in Alleyne v. United States, 133
S.Ct. 2151 (U.S. 2013). See Commonwealth v. Valentine, ___ A.3d ___,
2014 PA Super 220 (Pa. Super. October 3, 2014). However, an en banc
panel of this Court in Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014) (en banc), determined that the Alleyne decision had only limited
retroactivity, that is, it applied only to criminal cases that were still pending
on direct review at the time it was filed. Id. at 90. In the present case,
Stokes’s judgment of sentence became final on December 1, 2011, when
this Court affirmed his sentence on direct appeal. Because Alleyne was not
decided until June 17, 2013, it does not provide Stokes with the opportunity
for relief.

(Footnote Continued Next Page)

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supra, 48 A.3d at 457. Therefore, we grant counsel’s petition to withdraw

and affirm the order dismissing Stokes’s petition for PCRA relief.

Order affirmed. Application for leave to withdraw as counsel granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/24/2014

_______________________
(Footnote Continued)

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