J-S53027-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARK BIGGS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2750 EDA 2019

Appeal from the PCRA Order Entered September 10, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0015926-2013

BEFORE: SHOGAN, J., LAZARUS, J., and STRASSBURGER, J.*

MEMORANDUM BY LAZARUS, J.: FILED: JANUARY 4, 2021

Mark Biggs appeals from the order, entered in the Court of Common 

Pleas of Philadelphia County, denying his petition filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful 

review, we affirm.

In January of 2015, Biggs was convicted by a jury of attempted murder,1

criminal conspiracy,2 and violations of the Uniform Firearms Act (VUFA).

3

 The 

charges stemmed from a shooting that occurred on the evening of June 17, 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 901(a). See Information, 1/14/14, at 1 (indicating victim of 

attempted murder as Kimberly Jessie).

2 18 Pa.C.S.A. § 1102(c).

3 18 Pa.C.S.A. §§ 6105(a)(1) (persons not to possess firearms), 6106

(firearms not to be carried without a license) and 6108 (carrying firearms on 

public streets or public property in Philadelphia).
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2013, in North Philadelphia. The trial court summarized the facts underlying 

the case as follows:

On June 17, 2013, around one o’clock in the evening, Lakeisha 

Jessie was with her sons S[.]J[.] and J[.]Y[.] in North Philadelphia. 

S[.J.] asked his mother if he could spend the night at a friend’s 

house. When Lakeisha said no, S[.J.] called her a “b*t^h.” After 

this disagreement, Lakeisha’s nephew [] walked by and Lakeisha 

asked him to “beat up” S[.J.] for disrespecting her. [Her nephew] 

continued the physical confrontation with S[.J.] until Lakeisha told 

him to stop.

Later that evening, [Lakeisha’s nephew] and S[.J.] encountered 

one another and began fighting again. Lakeisha then noticed that 

her son J[.]Y[.’s] father, Monroe Yates [(Yates),] was arguing with 

[Lakeisha’s nephew] as well. At this time[,] Lakeisha called [her 

nephew’s] mother, her sister, Kimberly Jessie, to pick up her son. 

When Lakeisha told [Yates] to leave [her nephew] alone, he 

walked away towards Franklin Street.

Kimberly Jessie was with friends nearby on 10th Street when 

Lakeisha called her. As she walked down 9th Street near Pike 

Street to find her son [], Kimberly passed [Yates] and [Biggs]. 

She stopped to speak to [Yates] about the incident. While they 

were speaking, Kimberly’s [three] sons[,] Robert, Raheim[,] and 

Tyreek[,] approached them. Raheim said, “Nobody is going to do 

anything. Nobody is going to touch my family.” This made [Biggs] 

and [Yates] angry, and Kimberly walked them across the street. 

[Biggs] and [Yates] left together in a white vehicle.

At approximately 10:30 that evening, Officers Dayton Bennett and 

Joseph Marion responded to a report of shots fired in the area of 

9

th and Pike Streets. The initial call reported five or six shots fired. 

Upon arrival, the officers found a group of around 20 people 

gathered in the area. They also saw Kimberly Jessie lying on the 

curb between Percy and Delhi Streets. She had been shot and 

was in distress, screaming, “They tried to shoot my son. They 

tried to shoot my son. The mother f-ers tried to shoot my son.” 

Kimberly testified that she was shot in the right thigh, and that 

the bullet entered from the back and exited the front of her leg.

Lakeisha Jessie was also at the scene and spoke to Officer Marion 

when he arrived. Lakeisha identified [Biggs] and [Yates] as the 

shooters to Officer Marion at this time. Once Kimberly was 

transported to the hospital, Lakeisha was brought to East 
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Detective’s Division to make an official statement. Detectives 

Ronald Kahlan and Daley[4]interviewed Lakeisha at about 11:35 

[p.m.] At this time, Lakeisha again identified [Biggs] and [Yates] 

as the individuals who had shot at her nephew [] and his mother[,] 

Kimberly. She stated that she saw both men holding black 

handguns.

After being treated for her injuries, Kimberly Jessie was also 

interviewed by Detectives Kahlan and Daley that night. Detective 

Daley described her as “hysterical. She was in a lot of pain. She 

was upset, angry, [feeling] a lot of emotion.” Kimberly had 

brought the jeans she had been wearing to the detectives, who 

placed them on a property receipt. During this interview, Kimberly 

also identified [Biggs] and [Yates] as the shooters, and circled 

both of their pictures [on a photographic lineup]. She told 

detectives that she saw each man holding a handgun, one black 

and one silver. Although the interview was cut short due to the 

pain Kimberly was in, she was able to review and sign her 

statement that evening.

Detectives John Ellis and McCullough[5] processed the scene of the 

shooting to search for evidence. After an initial search of the area 

did not yield any results, they went to Temple University Hospital 

to speak to Kimberly Jessie, who was still being treated at that 

time. They learned that she had been shot closer to 9th Street, 

and returned to the scene to refocus their search. They 

discovered two fired cartridge casings east of 9th Street, in an area 

that had not been previously secured as part of the crime scene. 

The first casing was found under a Chevrolet Impala parked at the 

southeast corner of 9th and Pike Streets. The second casing was 

recovered from under a Toyota Corolla in the same area. The 

Toyota Corolla appeared to have a bullet hole in the hood. Both 

fired cartridge casings were of the same make and model. 

Firearms examiner Letitia Cannon examined the fired cartridge 

casings and concluded that they had been fired from the same 

firearm.

Another bullet went into the home of Della Jamison at 3900 North 

Delhi Street, at the corner of Pike Street. Ms. Jamison testified 

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4 Detective Kahlan’s first name is found nowhere in the certified record on 

appeal.

5 Detective McCullough’s first name is found nowhere in the certified record 

on appeal.
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that she had heard what sounded like gunshots that evening, and 

thought something may have hit her home. Upon going upstairs 

later than night, she found damage to a hat and perfume bottle. 

Officer Malcom Scott investigated Ms. Jamison’s house the next 

day when she reported the damage. In his report, Officer Scott 

noted that a “possible bullet went through the front bedroom wall, 

traveled through the middle bedroom, and is lodged in the 

bedroom wall.”

On August 10, 2013, Sergeant Wali Shabazz was making an 

unrelated car stop at 10th and Butler Streets in the same 

neighborhood as the shooting and was approached by Kimberly 

Jessie. After finishing the car stop, Sergeant Shabazz walked over 

to Kimberly to speak with her. She told him that he should “be 

looking for the people that shot me,” and that she was “scared for 

[her]self and [her] kids.” Sergeant Shabazz asked her for the 

names of the men who shot her, and she responded with [Biggs’] 

and [Yates’] names.

Sergeant Shabazz found a warrant for [] Yates [], and went to the 

address listed at the 3900 block of Franklin Street. When [Yates] 

came to the door, Sergeant Shabazz, who was in full uniform, told 

him he was there to respond to a burglar[] alarm. When [Yates] 

replied that he did not have an alarm, Sergeant Shabazz excused 

himself and called for backup. When Sergeant Shabazz returned 

to the door, [Yates’] wife answered. [Yates] then tried to slam 

the door on Sergeant Shabazz and ran towards the back of the 

house. Sergeant Shabazz pursued him to the back door and was 

able to place [Yates] under arrest.

Sergeant Shabazz remained in touch with Kimberly Jessie 

regarding [Biggs], whose whereabouts were still unknown at the 

time. [Biggs] was not present in the City of Philadelphia, and was 

eventually apprehended by United States Marshalls [sic] on 

November 8, 2014.

Trial Court Opinion, 6/27/16, at 2-6 (citations to record omitted). Biggs and 

Yates were indicted by a grand jury and proceeded to a joint jury trial. At 

trial, both Kimberly and Lakeisha repudiated their prior statements to police

identifying Biggs and Yates as the shooters. 
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On January 28, 2015, a jury convicted Biggs of the above-mentioned 

offenses. On July 22, 2015, Biggs was sentenced to 10-20 years in prison for 

attempted murder, a consecutive sentence of 5-10 years’ imprisonment for 

persons not to possess firearms, and concurrent sentences of 10-20 years for 

conspiracy to commit murder, 3-6 years’ imprisonment for firearms not to be 

carried without a license, and 1-2 years in prison for carrying a firearm on 

public streets or public property in Philadelphia—an aggregate term of 15-30 

years’ imprisonment. Biggs filed a motion for reconsideration and a postsentence motion for extraordinary relief. The motions were denied by 

operation of law on November 23, 2015. Counsel filed a timely direct appeal 

challenging the sufficiency of the evidence supporting Biggs’ convictions, the 

court’s jury charge on identification, and the discretionary aspects of Biggs’

sentence. Counsel moved to withdraw from representing Biggs; the court 

granted counsel’s motion and appointed counsel for direct appeal. On appeal, 

our Court affirmed Biggs’ judgment of sentence. See Commonwealth v. 

Biggs, No. 3558 EDA 2015 (Pa. Super. filed May 12, 2017) (unpublished 

memorandum decision). Biggs filed a petition for allowance of appeal, which 

the Pennsylvania Supreme Court denied on October 12, 2017.

On February 15, 2018, Biggs filed a timely pro se PCRA petition raising 

more than 100 issues. On April 17, 2018, the court appointed PCRA counsel, 

who filed amended and supplemental amended petitions on his behalf. On 

July 24, 2019, the court issued Pa.R.Crim.P. 907 notice of its intent to dismiss 

Biggs’ petition without further proceedings, deeming all issues “without 
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merit.” See Pa.R.Crim.P. 907 Notice, 7/24/28, at 1. Biggs did not file a 

response. On September 10, 2018, the court dismissed Biggs’ petition. Biggs 

filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. He raises the following issues 

for our consideration:

(1) Did the trial court err in denying [Biggs] an evidentiary 

hearing when [he] asserted that appellate [] counsel was 

ineffective for failing to raise an issue raised by [trial] 

counsel concerning a charge relating to the credibility of a 

[C]ommonwealth witness?

(2) Did the trial court err in denying [Biggs] an evidentiary 

hearing when [Biggs] asserted that trial [] counsel was 

ineffective in failing to move for judgment of acquittal on 

the violation of the three [(VUFA)] offenses when [the 

C]ommonwealth failed to prove that the barrel length of the 

firearm was less than 15 inches?

(3) Was the sentence imposed on the criminal conspiracy 

offense illegal because the offense merges with [the] 

attempted murder offense for the purpose of sentenc[ing]?

Appellant’s Brief, at 2.

Our standard of review for an order denying PCRA relief is whether the 

record supports the PCRA court’s determination, and whether the PCRA court’s 

determination is free of legal error. Commonwealth v. Allen, 732 A.2d 582, 

586 (Pa. 1999). Moreover, a defendant is entitled to an evidentiary hearing 

in PCRA proceedings when he or she raises material issues of fact. 

Pa.R.Crim.P. 908(A)(2).

With respect to claims of ineffective assistance of counsel, we begin with 

the presumption that counsel is effective. Commonwealth v. Spotz, 47 A.3d 

63, 76 (Pa. 2012). To prevail on an ineffectiveness claim, a petitioner must 
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plead and prove, by a preponderance of the evidence, three elements: (1) 

the underlying legal claim has arguable merit; (2) counsel had no reasonable 

basis for his or her action or inaction; and (3) the petitioner suffered prejudice 

because of counsel’s action or inaction. Id. (citation omitted).

In his first issue, Biggs contends that appellate counsel was ineffective 

for failing to raise on direct appeal whether the trial court erred in denying 

trial counsel’s request for a flight instruction with regard to Commonwealth 

witness, Kimberly Jessie.

Our standard of review in addressing challenges to jury instructions is 

an abuse of discretion. Commonwealth v. Leber, 802 A.2d 648, 651 (Pa. 

Super. 2002). Instantly, defense counsel requested the court issue a flight 

instruction with regard to witness Kimberly Jessie “and her absenting herself 

from the grand jury.” N.T. Jury Trial, 1/26/15, at 35. Specifically, counsel 

stated, “I know that historically[,] traditionally going back to — flight is — [a] 

flight charge is given against the defendant, but I think that in this particular 

case, we have evidence that the Commonwealth’s primary complaining 

witness fled the grand jury [proceeding].” Id. In response to the request, 

the trial judge noted that the issue of a witness’s flight was one of credibility 

that the jury, as factfinder, could assess, and, therefore, did not issue the 

instruction. Id. at 36. 

Trial counsel was correct in his assertion that a flight instruction is 

traditionally available to the prosecution where “the defendant has fled or 

concealed himself immediately after the crime occurred or at some time later.” 
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Commonwealth v. Milligan, 693 A.2d 1313, 1317 (Pa. Super. 1997), citing 

Note to Pa.S.S.J.I. (Crim) 3.14. However, in Milligan, our Court considered 

for the first time whether such an instruction is available to a defendant who 

is attempting to establish that another person, rather than him/herself, is the 

true guilty party. Id. Concluding that an instruction is available to a party 

other than the defendant, our Court stated, “it would appear that, once a 

defendant properly introduces evidence that someone fled the crime scene, 

the trial court is duty bound to instruct the jury concerning the significance of 

this evidence.” Id.

Here, Biggs attempts to argue that a flight instruction is appropriate 

when a Commonwealth witness absents him/herself from grand jury 

proceedings. The facts underlying the instant case are drastically different 

than those in Milligan where the defendant used a flight instruction as a

defense where there was an “abundance of evidence” that a third party fled 

from a crime scene, thus implying that party’s guilt. Id. at 1318. Here, Biggs 

did not attempt to introduce evidence that Kimberly Jessie fled the crime scene 

or that she was the guilty party who committed attempted murder. Rather,

Kimberly was an eyewitness to and an ultimate victim of the shooting incident; 

she fully cooperated with the police and was never a suspect. Therefore, we 

agree with the trial judge that the issue regarding Kimberly’s flight from grand 

jury proceedings was a matter of credibility best left to the jury; it was not 

appropriate for a flight instruction. Milligan, supra. Accordingly, we cannot 
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find that appellate counsel was ineffective for failing to raise this meritless 

issue on appeal.6

In his next issue on appeal, Biggs contends that trial counsel was 

ineffective for failing to move for judgment of acquittal on his VUFA offenses

when the Commonwealth did not prove that the barrel length of the firearm 

used by Biggs was less than 15 inches. Specifically, he asserts that the 

Commonwealth did not establish the length of the barrel at trial where “the 

alleged weapon was never found and introduced into eviden[ce] and the only 

description of it was a small black handgun kept in the pocket of a hoodie.”7 

Appellant’s Brief, at 11.

In order to convict Biggs of the charged VUFA offenses, the 

Commonwealth had to prove that Biggs possessed, used or carried a firearm. 

See 18 Pa.C.S.A. §§ 6105(a)(1); 6106; and 6108. Pursuant to 18 Pa.C.S.A. 

§ 6102, a “firearm” is defined as:

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6

In his closing argument, defense counsel highlighted the fact that Kimberly 

Jessie “ran out of” the second grand jury proceedings, despite being 

subpoenaed to attend. See N.T. Jury Trial, Closing Arguments, 1/26/15, at 

33-35.

7 The trial court, the Commonwealth and even Biggs incorrectly state that 

Lakeisha described Biggs’ gun as “a black gun . . . he stuck in his hoodie.” In 

fact, that specific description was given by Lakeisha with regard to Yates’ gun. 

See N.T. Jury Trial, 1/22/15 (Vol. I), at 36 (statement by Lakeisha Jessie 

indicating “[a] few minutes later I heard screaming coming from 3800 Percy 

Street and I saw Monroe [Yates] had a black gun and he stuck it in his 

hoodie pocket”) (emphasis added).
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Any pistol or revolver with a barrel length less than 15 

inches, any shotgun with a barrel length less than 18 inches or 

any rifle with a barrel length less than 16 inches, or any pistol, 

revolver, rifle or shotgun with an overall length of less than 26 

inches. The barrel length of a firearm shall be determined by 

measuring from the muzzle of the barrel to the face of the closed 

action, bolt or cylinder, whichever is applicable.

18 Pa.C.S.A. § 6102 (emphasis added). 

During trial, evidence was offered to establish that the barrel length of 

Biggs’ gun was less than 15 inches. Specifically, in her statement to police 

following the shooting, Lakeisha Jessie stated that she saw Biggs8 “pull[] a 

black handgun from the front of his pants in his waist and cock[] the gun” and

that the gun “was black . . . [and] looked like [a] police gun.” N.T. Jury Trial, 

1/22/15, at 37, 41. Additionally, Detective Daley confirmed that Lakeisha 

gave him a signed statement saying that she witnessed Biggs remove a black 

handgun and shoot at Raheim. N.T. Jury Trial, 1/22/15 (Vol. I), at 168-69. 

See Commonwealth v. Rozplochi, 561 A.2d 25, 31-32 (Pa. Super. 1989) 

(where one witness testified defendant’s weapon was inside envelope that was 

“about this high” and “not too wide,” and another witness testified defendant 

had “small black gun,” evidence sufficient to show barrel length of gun fell 

within prescribed dimensions defined in section 6102). Eyewitness testimony 

that Biggs pulled his gun from the waist of his pants was sufficient for the jury 

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8 At trial, Kimberly and Lakeisha identified Biggs as an individual they knew 

by the name of “Saladine Sweets.” N.T. Jury Trial, 1/21/15, at 26; N.T. Jury 

Trial, 1/22/15, at 9.
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to infer that the gun possessed by Biggs had a barrel length of less than 15 

inches. Thus, we find no merit to this ineffectiveness claim. Spotz, supra.

Finally, Biggs contends that his sentence is illegal where his sentence 

for criminal conspiracy9 should have merged with his sentence for attempted 

murder under 18 Pa.C.S.A. § 906.

10

 Again, we find no merit to this claim.11

“A claim that crimes should have merged for sentencing purposes raises 

a challenge to the legality of the sentence.” Commonwealth v. Nero, 58 

A.3d 802, 806 (Pa. Super. 2012). Thus, our standard of review is de novo

and our scope is plenary. Id. Under section 906 of the Crimes Code:

§ 906. Multiple convictions of inchoate crimes barred

A person may not be convicted of more than one of the inchoate 

crimes of criminal attempt, criminal solicitation or criminal 

conspiracy for conduct designed to commit or culminate in the 

commission of the same crime.

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9 First, we point out that the Commonwealth amended its information to 

change its original charge of criminal conspiracy under 18 Pa.C.S.A. § 903 to 

conspiracy to commit murder under 18 Pa.C.S.A. § 1102(c). See

Commonwealth’s Memorandum for Sentencing, 7/21/15, at 5 n.1; see also

Sentencing Form, 7/22/15, at 3 (noting original conspiracy charge under 

section 903 “inactive” and “changed” to conspiracy to commit murder under 

section 1102(c)). Thus, contrary to Biggs’ argument in his appellate brief, he 

was not convicted and sentenced under section 903. 

10 Other than a blanket statement that his inchoate sentences should have 

merged, Biggs provides absolutely no legal analysis or argument to support 

his claim that he was subjected to an illegal sentence. See Pa.R.A.P. 2119.

11 The trial court states in its Rule 1925(a) opinion that “the record plainly 

shows that [Biggs’] inchoate convictions did merge for the purpose of 

sentencing.” Trial Court Opinion, 8/3/20, at 10. However, this misses the 

mark. Section 906 prohibits a court from convicting a defendant of more than 

one inchoate crime for conduct committed at the same time. Moreover, the 

court did sentence Biggs separately on each inchoate crime, albeit running the 

sentences concurrently. 
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18 Pa.C.S.A. § 906. See Commonwealth v. Grekis, 601 A.2d 1284, 1295 

(Pa. Super. 1992) (section 906 “is designed to eliminate multiple . . . 

judgments of sentence for conduct which constitutes preparation for a single 

criminal objective.”). “[I]nchoate crimes merge only when directed to the 

commission of the same crime, not merely because they arise out the same 

incident.” Commonwealth v. Graves, 508 A.2d 1198, 1198 (Pa. 1986). 

Here, Biggs was not convicted of more than one inchoate offense for the 

same crime; thus, his sentence is not illegal. Biggs’ conviction for attempted 

murder was for a different victim (Kimberly Jessie) than his conviction for 

criminal conspiracy to commit murder (Raheim J[.]). See N.T. Jury Trial, 

1/28/15, at 18-19 (stating that Biggs charged with attempted murder for 

“sho[oting] at Kimberly Jessie” with the “specific intent to kill [her]” and with 

the “fully formed intent to kill[.]”); see also id. at 19 (stating Biggs charged 

with conspir[ing] with intent to kill Raheim J[.] by “fir[ing] with the intent to 

kill Ra[heim] J[.] . . . at the time [he] in fact shot Kimberly Jessie.[]”). Because 

the two inchoate crimes were intended to culminate in the commission of two 

different crimes, Biggs’ sentence “did not run afoul of [s]ection 906.” 

Commonwealth v. Jacobs, 39 A.3d 977, 978 (Pa. 2012) (where record 

established each inchoate crime (attempted escape and conspiracy to commit 

escape) had separate criminal purpose, sentence did not violate section 906). 

Where there is no merit to this underlying claim, counsel cannot be deemed 

ineffective. Spotz, supra.

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/4/21