J-A03012-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEVEN FREDRICK STOKES JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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,3theft by unlawful 

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

5

 Upon

careful review, we affirm.

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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 

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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-appellatecounsel’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. 

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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 crossexamine 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 

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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 crossexamine 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

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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 crossexamination).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/16/2020