A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose
Click to download OpinionC v. Stokes

The Superior Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. Nafis STOKES, Appellant, 2011 WL 5999870, 2011 PA Super 261, No. 1390 EDA 2010 (Dec. 1, 2011). This was an appeal from a Judgment of Sentence imposed by Judge Susan Schulman of the Court of Common Pleas of Philadelphia County. The case was before Judges BOWES, SHOGAN, and FREEDBERG. Judge Bowes wrote the Opinion.

Stokes appealed from a judgment of sentence of sixteen to thirty-two years incarceration imposed by the trial court after his convictions for conspiracy to commit murder, aggravated assault, conspiracy to commit aggravated assault, recklessly endangering another person, possession of an instrument of crime, possession of a controlled substance (marijuana), and person not to possess a firearm. The jury returned not guilty verdicts on charges of 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 Appellant was the actual shooter and possessed a gun during the shooting. At sentencing, the Commonwealth invoked 42 Pa.C.S. § 9712, and requested that the court sentence Appellant to a five-year mandatory term based on possession of a firearm during a crime of violence. In addition, the Commonwealth invoked the deadly weapon used enhancement for determining Appellant’s sentencing guideline ranges. Appellant argued that because the jury found him not guilty of the firearms charges, PIC and attempted murder, it had concluded that he was innocent of possessing and using a firearm during the shooting. The Commonwealth countered that the trial judge could determine at sentencing, based on the preponderance of the evidence, whether the mandatory sentence applied. The court agreed with the Commonwealth and held that trial testimony that Appellant did not shoot the victim or have a gun during the incident was incredible. Accordingly, the court imposed the mandatory minimum sentence of five years for the aggravated assault charge and applied the deadly weapon used enhancement in ascertaining the guideline ranges for Appellant’s additional convictions, except his PIC and person not to possess firearms convictions. The court also sentenced Appellant to ten to twenty years incarceration for conspiracy to commit murder, and one to two years imprisonment on the persons not to possess firearms count. These sentences were imposed consecutively. In addition, the court sentenced Appellant to concurrent terms of incarceration of one to two years for both REAP, PIC, and thirty days imprisonment for possession of marijuana. Thus the Appellant’s aggregate sentence was sixteen to thirty-two years imprisonment.

On appeal, the chief issue raised was whether a defendant who is adjudicated not guilty of the charges that implicate possession of a firearm may still receive both a mandatory firearm sentence and application of the sentencing guidelines’ deadly weapon used enhancements based on a trial court’s finding at sentencing that the Commonwealth established by a preponderance of the evidence that the defendant used a firearm. The jury concluded that Appellant was not guilty of PIC and two different firearm violations with regard to the shooting of M.L. It also found him not guilty of attempted murder. Hence, it appears that the jury rejected the Commonwealth’s position that Appellant possessed a firearm during the shooting. Instead, the jury seems to have determined that Appellant conspired with and apparently was an accomplice to the actual shooter. Pursuant to Commonwealth v. Dickson, 918 A.2d 95 (Pa.2007), a conspirator or accomplice cannot lawfully be sentenced under § 9712. The court at sentencing, however, expressly stated that the victim’s trial testimony was incredible and that the Commonwealth proved by a preponderance of the evidence that Appellant possessed and used a firearm during the shooting. By substituting its own credibility determination in place of the jury, Appellant contended the court committed reversible error. He also submitted that the trial court erred in applying the deadly weapon used enhancement to his charges based on its finding, under 42 Pa.C.S. § 9712, that Appellant visibly possessed and utilized a gun during the commission of the conspiracy and aggravated assault. Because the jury found him not guilty of possessing or using a firearm during the aggravated assault, the Appellant reasoned that the trial court could not constitutionally impose the mandatory sentence based on its own differing credibility determination.

The plain language of 42 Pa.C.S. § 9712 allows the sentencing court to determine by a preponderance of the evidence if a defendant visibly possessed or used a firearm during the commission of statutorily-defined crimes of violence. In reaching its decision, the court will consider the evidence at trial and any additional evidence presented by the Commonwealth. Sentencing factors like the one at issue do not need to be proven beyond a reasonable doubt, nor even included in a criminal information or indictment. The Court held that a sentencing court may reject a jury’s acquittal in determining whether a defendant possessed or used a firearm under 42 Pa.C.S. § 9712. For purposes of determining the firearm mandatory sentence, the sentencing court was not bound, although it must consider, the jury’s acquittal regarding Appellant’s actual possession of the firearm.

Judge Bowers wrote that the Appellant was not being punished more harshly for a crime he did not commit; he was being punished within a range of sentences already provided for by law based on facts determined by the jury. Since the sentencing court’s findings did not mandate an increase in his sentences beyond that which the court could have handed down solely based on the jury verdict, neither Appellant’s due process or jury trial rights were violated by imposition of § 9712 or utilization of the deadly weapon used enhancement based on the trial courts finding under a preponderance of the evidence standard that Appellant possessed a firearm.

Attorney Teri B. Himebaugh of Schwenksville represented the Appellant.

The Free Student Research Center is now OPEN. It will be open on Mondays, Wednesdays and Fridays, from 9AM to 3PM. The Free Student Research Center is available for use by attorneys who are current members of the Philadelphia Bar Association’s Criminal Justice Section and who are court-appointed to the case for which they seek research (either state or CJA!).

The Free Student Research Center is located in the Jack Myers Memorial Lounge on the Third Floor of the CJC. You may make a research request in person or via the Criminal Justice Section website at http://www.philadelphiabar.org/page/CJResearch

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