J-S86009-16

2016 PA Super 265

* Former Justice specially assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

ISIAH EDWARD JAM TOOKS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2025 WDA 2015

Appeal from the Judgment of Sentence November 30, 2015

In the Court of Common Pleas of Allegheny County 

Criminal Division at No(s): CP-02-CR-0011051-2014, 

CP-02-CR-0011446-2014

BEFORE: GANTMAN, P.J., MOULTON, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.: FILED NOVEMBER 29, 2016

Appellant Isiah Edward Jam Tooks appeals the judgment of sentence 

entered in the Court of Common Pleas of Allegheny County on November 30, 

2015, following a jury trial. We affirm. 

The trial court aptly set forth the relevant procedural history and facts 

herein as follows:

This is a direct appeal from the judgment of sentence 

entered on November 30, 2015, following [Appellant’s] 

convictions at the above-captioned case numbers. At the 

criminal information filed at CC# 2014-11051, [Appellant] was 

charged with Robbery-Serious Bodily Injury (18 Pa. C.S.A. 

§3701(a)(1) (ii)) (Count One); Kidnapping (18 Pa. C.S.A. 

§2901(a)(1)) (Count Two); Unlawful Restraint (18 Pa. C.S.A. 

§2902(a)(1)) (Count Three); Terroristic Threats (18 Pa. §2706 

(a)(1)) (Count Four); Simple Assault (18 Pa. C.S.A. §2701(a)(3) 

(Count Five) and Conspiracy to Commit Robbery- Serious Bodily 

Injury (18 Pa. C.S.A. §903(c)) (Count Six). At the criminal 
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information filed at CC# 2014-11446, [Appellant] was charged 

with Criminal Solicitation (18 Pa. C.S.A. §902(A)) (Count One); 

Conspiracy to Commit Criminal Homicide and/or Intimidation of 

Witnesses or Victims (18 Pa. C.S.A. §903(a)(1)) (Count Two); 

and Intimidation of Witnesses or Victim (18 Pa. C.S.A. §4952) 

(Count Three).

A jury trial was conducted on these two (2) cases between 

August 11, 2015 and August 18, 2015. At the conclusion of trial, 

[Appellant] was found not guilty at Count One (Robbery) and 

Count Two (Kidnapping), and guilty of all of the remaining 

charges, including Count Three (Unlawful Restraint), Count Four 

(Terroristic Threats), Count Five (Simple Assault), and Count Six 

(Conspiracy to Commit Robbery) at CC# 2014-11051. 

[Appellant] was convicted of all counts at the information filed at 

CC# 2014-11446. Sentencing was deferred to allow for the 

preparation of a Presentence Investigation Report.

On August 19, 2015, the Commonwealth filed a "Notice of 

Intention to Proceed Under the Mandatory Provisions of 42 Pa. 

C.S.A. §9714." On October 28, 2015, [Appellant] filed a "Motion 

in Opposition to the Application of Mandatory Minimum 

Sentence." [Appellant’s] motion was heard during the 

sentencing hearing conducted on November 30, 2015. After 

considering the arguments and evidence presented at the 

sentencing, the court found that the ten (10) year mandatory 

minimum sentence under §9714 was applicable in light of 

[Appellant’s] prior conviction for Robbery of a Motor Vehicle and 

[Appellant’s] instant conviction for Conspiracy to Commit 

Robbery- Serious Bodily Injury. Accordingly, the court sentenced 

[Appellant] to a term of imprisonment of ten (10) to twenty (20) 

years at Count Six of the information filed at CC# 2014 -11051. 

[Appellant] was ordered to have no contact with the victim, 

Kevin Miller, and he was further ordered to pay restitution to the 

victim in the amount of $104. No further penalty was imposed at 

the remaining counts of conviction at that information, and 

[Appellant] received 483 days of time credit towards his 

sentence. 

At CC # 2014-11446, this court imposed a term of 

imprisonment of six (6) to twelve (12) years at Count One. This 

sentence was ordered to run concurrently with [Appellant’s] 

sentence at CC# 2014-11051. A consecutive five (5) year term 

of probation was imposed at Count Three. No further penalty 

was imposed at Count Two of the information, and [Appellant] 

was ordered to have no contact with the victim. No post-
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sentence motions were subsequently filed. This timely appeal 

followed.

On April 4, 2016, [Appellant] filed a timely1 Concise 

Statement of Errors Complained of on Appeal ("Concise 

Statement "), raising only one (1) issue for review: . . . . 

***

[Appellant’s] allegation of error is without merit. For the 

reasons that follow, [Appellant’s] conviction for Conspiracy to 

Commit Robbery-Serious Bodily Injury qualified as a "crime of 

violence" under §9714(g). Accordingly, this court did not err by 

imposing the mandatory minimum sentence under §9714(a)(1), 

and the sentence in this case should be upheld.

l. FACTUAL BACKGROUND

On July 31, 2014, at approximately 5:00 a.m., the victim, 

Kevin Miller, went to the Valero Gas Station in Homestead to 

purchase food before heading to work that morning. (Jury Trial 

Transcript, Volume 1 ("TT1"), 8/11/15- 8/14/15 and 8/18/15, p. 

81). When Mr. Miller walked into the store, he saw two (2) black 

men at the counter, and he noticed that they were looking at 

him in an unusual manner. (TT1, pp. 81 -82, 106-07, 117). He 

had never seen these men before, but during trial he identified 

[Appellant] as one of the men looking at him at the gas station 

that morning. (TT1, pp. 82-83, 105).

While at the Valero, Mr. Miller walked past [Appellant] and 

the other man, who was later identified as Tyrique Calloway, to 

find the items that he sought to purchase. (TT1, p. 82). When he 

approached the register to make payment, he saw that the men 

were still at the counter. (TT1, pp. 82, 107). [Appellant] and Mr. 

Calloway subsequently exited the store, and Mr. Miller paid for 

his items and walked out into the parking lot. (TT1, p. 83). Mr. 

Miller noticed that [Appellant] and Mr. Calloway were standing 

by a black SUV that was parked by one of the gas pumps. (TT1, 

pp. 84, 108). Mr. Miller instinctively began walking in the 

opposite direction to avoid walking past the men. (TT1, pp. 84, 

107-08, 117-18).

Mr. Miller was approximately thirty (30) yards from the gas 

station when he noticed the black SUV accelerate to approach 

him. (TT1, pp. 85-86, 108). He saw [Appellant] sitting in the 

passenger seat of the vehicle. (TT1, pp. 85-86). [Appellant] 

exited the vehicle and was holding what appeared to be an 
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assault rifle. (TT1, pp. 86-88). The weapon was large and dark, 

and it appeared to have a sawed off barrel. (TT1, pp. 86-87). 

[Appellant] aimed the weapon at Mr. Miller, prompting Mr. Miller 

to turn and attempt to flee. (TT1, pp. 88, 108). However, as he 

tried to run, Mr. Miller stumbled and fell to the ground. (TT1, pp. 

88, 108). Both [Appellant] and Mr. Calloway were on top of Mr. 

Miller after he fell. (TT1, p. 89).

[Appellant] pointed the weapon at Mr. Miller's face and 

asked him if he had a gun. (TT1, pp. 91, 108). Mr. Miller replied 

that he was unarmed, and [Appellant] then asked him where he 

had his money. (TT1, p. 91). Mr. Miller told [Appellant] that he 

did not have any money, but [Appellant] said "no, I think you 

were just at the store ... do you want me to shoot you ?" (TT1, 

p. 91). Mr. Miller told [Appellant] that he had a debit card, and 

[Appellant] asked him where an ATM machine was located. 

[Appellant] still had the weapon pointed at Mr. Miller during this 

verbal exchange. (TT1, pp. 91-92). Mr. Miller indicated that the 

Valero had an ATM machine, but [Appellant] replied that "we're 

not going back to that store." (TT1, p. 91). [Appellant] then 

pulled Mr. Miller off the ground and told him to get into the 

vehicle or he was going to be shot. (TT1, p. 92). Mr. Miller was 

forced into the vehicle at gun point and was instructed to get in 

the back seat area and face down. (TT1, pp. 92, 109). 

[Appellant] sat in the back of the vehicle with Mr. Miller, and Mr. 

Miller felt the weapon digging into his ribs as he was lying face 

down on the floor in the back of the car. (TT1, pp. 92-93).

While they were driving in the car, [Appellant] kept 

demanding that Mr. Miller tell him the location of a nearby ATM 

Machine. (TT1, p. 93). [Appellant] threatened Mr. Miller in order 

to prompt an answer to his question, stating "do you want me to 

kill you?" [Appellant] further threatened Mr. Miller, asking him if 

he had a girlfriend or children that he ever wanted to see again. 

(TT1, p. 93). Mr. Miller never answered the questions about the 

ATM location, but then he suddenly felt the car stop. [Appellant] 

instructed Mr. Miller to exit the vehicle, and he did so, not 

knowing where they were. (TT1, p. 93). [Appellant] demanded 

Mr. Miller's ATM card, and, as he pulled his wallet from his back 

pocket, [Appellant] snatched the wallet from his hands. (TT1, 

pp. 94, 110). [Appellant] still had the weapon pointed at Mr. 

Miller as they walked towards the store, and [Appellant] made 

clear that he was going to shoot Mr. Miller if he did not 

cooperate. (TT1, p. 94). [Appellant] stayed outside of the store 

while Mr. Calloway escorted Mr. Miller into the store. (TT1, pp. 

95-96).
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When he walked into the store, Mr. Miller realized that he 

was inside of a BP station because he recognized one of the 

store clerks. (TT1, pp. 93-95, 113). Mr. Miller went to the ATM 

machine and tried to stall while making the transaction, 

although, with Mr. Calloway's "assistance," he eventually 

retrieved. $100. (TT1, pp. 95, 97, 114, 128). Mr. Calloway took 

the money from the ATM machine and returned the debit card to 

Mr. Miller. (TT1, pp. 98, 114, 129). 

The two men walked out of the store to where [Appellant] 

was waiting, still holding his weapon. (TT1, p. 98). [Appellant] 

said "let's go," and the three men started walking towards the 

back of the store. (TT1, p. 98). They approached a guard rail, 

and Mr. Miller saw that there were train tracks approximately 

seven (7) feet below the railing. (TT1, p. 99). [Appellant] told 

Mr. Miller to jump over the rail and walk the tracks, which went 

in the opposite direction of Mr. Miller's home. (TT1, pp. 99, 114-

15). Mr. Miller complied, believing that he was about to be shot. 

(TT1, pp. 99-100). Mr. Miller did not have his phone with him at 

this point because [Appellant] had taken it from him as they 

were walking. (TT1, pp. 100, 112). After walking for some time, 

Mr. Miller made his way back towards Homestead and ran into a 

friend who called the police for him. (TT1, pp. 101, 115).

Mr. Miller reported to the police the events that had 

occurred that morning. (TT1, pp. 101-02). He spoke to the police 

again a few days later, at which time he was informed that they 

had found his wallet. (TT1, pp. 101-02). As a result of the 

incident, Mr. Miller no longer felt safe, and he was traumatized. 

He even moved from his residence at the time into a new 

residence as a result of his fear. (TT1, pp. 103-04).

After [Appellant] was arrested, he was recorded through 

telephone calls that he placed at the jail, instructing his friends 

to employ "whatever means necessary" to prevent Mr. Miller 

from appearing and testifying at court. (TT1, pp. 232 -233).

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1

[Appellant] requested an extension of time to file his concise 

statement because he was awaiting transcripts.

Trial Court Opinion, filed 5/31/16, at 1-8.

In his brief, Appellant presents a single question for our review: 
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Was the application of the “second strike” mandatory minimum 

sentence under 42 Pa.C.S. § 9714(a)(1) illegal in violation of 

[Appellant’s] state and federal constitutional rights insofar as his 

conviction of criminal conspiracy does not qualify as a “crime of 

violence?” 

Brief for Appellant at 5. 

When determining the legality of one’s sentence, this Court applies a

well-settled scope and standard of review: 

If no statutory authorization exists for a particular sentence, that 

sentence is illegal and subject to correction. An illegal sentence 

must be vacated. In evaluating a trial court's application of a 

statute, our standard of review is plenary and is limited to 

determining whether the trial court committed an error of law.

Commonwealth v. Poland, 26 A.3d 518, 523 (Pa.Super. 2011) (citations 

omitted). 

Appellant claims the trial court erred in imposing a sentence pursuant 

to the second-strike provision of Pennsylvania's recidivist sentencing statute, 

Section 9714(a)(1),1 because his conviction for Criminal Conspiracy at 

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1 We are aware that the Pennsylvania Supreme Court has granted allowance 

of appeal in Commonwealth v. Bragg, 143 A.3d 890 (Pa. 2016) to 

determine the following issue: “Should the mandatory minimum sentence 

imposed by the trial court under 42 Pa.C.S.A. § 9714 be vacated, and this 

matter remanded for a new sentencing hearing, due to the fact that § 9714 

is unconstitutional as currently drafted?” Our Supreme Court consolidated 

this matter with two other cases, Commonwealth v. Macklin, 143 A.3d 

890 (Pa. 2016), which questions “[w]hether the government is required to 

include notice of its intent to seek a mandatory penalty under a recidivist 

statute within the charging document since such mandatory penalties equate 

to new, aggravated crimes?” and Commonwealth v. Sachette, 143 A.3d 

890 (Pa. 2016) wherein the issue to be examined is whether “[a]ssuming 

arguendo the trial record supports the verdict for unlawful contact with a 

(Footnote Continued Next Page)
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Criminal Information No. 2014-11051 is not a crime of violence as defined in 

Section 9714(g). Brief for Appellant at 13. Appellant opines that as he was 

adjudged not guilty of Robbery but guilty of Simple Assault, the jury could 

have found only that he attempted to put the victim in fear of imminent 

serious bodily injury. Id. at 14. Appellant further reasons that: 

Under Section 9714(g), 42 Pa.C.S., in order for the crime 

of Conspiracy to Commit Robbery to constitute a “crime of 

(Footnote Continued) _______________________

minor, is the 25 to 50 year sentence otherwise unconstitutional?” 

Notwithstanding, Appellant’s challenge herein does not pertain to the 

constitutionality of Section 9714 as written, but rather concerns whether 

the trial court properly applied his Criminal Conspiracy conviction 

thereunder. In this regard, this Court has stated the following:

In Alleyne [v. United States, ___ U.S. ____, 133 S.Ct. 

2151, 186 L.Ed.2d 314 (2013)], the Supreme Court of the 

United States held that the Sixth Amendment requires that any 

fact—other than a prior conviction—that increases a mandatory 

minimum sentence for an offense must be submitted to the jury 

and proven beyond a reasonable doubt. Importantly, Alleyne

did not overturn prior precedent that prior convictions are 

sentencing factors and not elements of offenses. Alleyne, 133 

S.Ct. at 2160 n. 1; see also Almendarez–Torres v. United 

States, 523 U.S. 224, 243–44, 118 S.Ct. 1219, 1230–31, 140 

L.Ed.2d 350 (1998).

Section 9714 increases mandatory minimum sentences 

based on prior convictions. See 42 Pa.C.S. § 9714(a)(1). 

Accordingly, this section is not unconstitutional under Alleyne. 

See Alleyne, supra; see also Commonwealth v. Akbar, 91 

A.3d 227, 239 n. 9 (Pa.Super. 2014), appeal granted and order 

vacated on other grounds, ––– Pa. ––––, 111 A.3d 168 (2015).

Commonwealth v. Reid, 117 A.3d 777, 784–85 (Pa.Super. 2015). 

 
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violence,” a jury must find the defendant guilty under Section 

3701(a)(1)(i), (ii) or (iii), 18 Pa.C.S. However, neither the 

Criminal Information nor the jury instructions on Criminal 

Conspiracy explicitly state this requirement. In fact, as 

discussed above, the jury found [Appellant] not guilty of 

Robbery, but guilty of Simple Assault. Thus it is not clear 

whether the jury made the necessary finding to trigger the 

imposition of the “second strike” statute. 

For this reason, [Appellant’s] current conviction for 

Criminal Conspiracy cannot qualify as a “crime of violence” and 

thus should not properly be considered as a second strike 

triggering the application of the mandatory minimum sentence in 

this matter as the same lacks specificity in its charge. See 

Commonwealth v. Gunn, 803 A.2d 751 (Pa.Super. 2002).

Id. at 14-15. 

42 Pa.C.S.A. § 9714(a), provides, in relevant part, that mandatory 

minimum sentences are to be imposed upon certain repeat offenders as 

follows: 

Any person who is convicted in any court of this Commonwealth 

of a crime of violence shall, if at the time of the commission of 

the current offense the person had previously been convicted of 

a crime of violence, be sentenced to a minimum sentence of at 

least ten years of total confinement, notwithstanding any other 

provision of this title or other statute to the contrary. Upon a 

second conviction for a crime of violence, the court shall give the 

person oral and written notice of the penalties under this section 

for a third conviction for a crime of violence. Failure to provide 

such notice shall not render the offender ineligible to be 

sentenced under paragraph (2).

42 Pa.C.S.A. § 9714(a)(1). 

42 Pa.C.S.A. § 9714(g) defines a crime of violence as, inter alia, a 

robbery as defined under 18 Pa.C.S.A. § 3701(a)(1)(i), (ii), or (iii), and 

indicates that inchoate crimes like “criminal attempt, criminal conspiracy or 
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criminal solicitation to commit . . . any of the offenses listed above 

constitute[] [] crime[s] of violence.” 42 Pa. C.S.A. § 9714(g). 

Count One of the Criminal Information filed at No. 2014-11051 

charged Appellant with Robbery- Serious Bodily Injury under 18 Pa.C.S.A. 

3701(a)(1)(i) or (ii) and graded the offense as a first-degree felony. 2 Count 

Six thereof charged Appellant with Criminal Conspiracy and indicated that 

“with the intent of promoting or facilitating the crime(s) charged above, 

[Appellant] conspired and agreed with Tyrique Calloway that they, or one or 

more of them, would engage in conduct constituting such crimes. . . . ” The 

overt act pertaining to the charge of Criminal Conspiracy states that 

Appellant “took United States Currency from Kevin Miller by threat of force. . 

. .” In addition, at the conclusion of trial, the trial court instructed the jury 

generally that Appellant had been charged with Criminal Conspiracy “in each 

information,” and specifically stated that “[t]he information at No. 

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2 These Subsections provide: 

(1) A person is guilty of robbery if, in the course of committing 

a theft, he:

(i) inflicts serious bodily injury upon another; 

(ii) threatens another with or intentionally puts him in 

fear of immediate serious bodily injury[.] 

18 Pa.C.S.A. § 3701(a)(1)(i), (ii). 
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201411051 alleges that [Appellant] engaged in a conspiracy to commit 

robbery and kidnapping." N.T. Trial, 8/14/15, at 413. 

Moreover, while Appellant makes no mention of this fact, as the 

Commonwealth notes in its appellate brief, the certified record contains the 

jury’s verdict slip. Count 6 thereof asked the jury to consider the charge of 

Criminal Conspiracy as it related only to Robbery and Kidnapping and reads 

as follows: 

Guilty: COUNT 6: Criminal Conspiracy 

Guilty :Robbery

Not Guilty :Kidnapping

Appellant clearly was charged with, and acquitted of, Robbery under 

18 Pa.C.S.A. §§ 3701(a)(1)(i) or (ii), and there cannot be any dispute that 

these Subsections constitute felonies of the first degree. Indeed, Appellant 

was neither charged with nor prosecuted under any other subsections of the 

Robbery statute. Contrary to Appellant’s argument, the trial court correctly 

determined the jury was presented only with qualifying sections of the 

Robbery statute that involved the threat of and/or fear of serious bodily 

injury; therefore, it could have convicted Appellant only of Criminal 

Conspiracy to commit Robbery as a felony of the first degree. Appellant 

received a ten-year mandatory minimum sentence for this conviction 

pursuant to 42 Pa.C.S.A. § 9714(a) due to a prior conviction for robbery of a 

motor vehicle. As there was no ambiguity concerning Appellant’s conviction 
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of Criminal Conspiracy to commit Robbery, his reliance on Commonwealth 

v. Gunn, 803 A.2d 751 (Pa.Super. 2002), is inapt. Therein, a panel of this 

Court vacated the appellant’s sentence upon concluding the trial court had 

erred in sentencing the appellant to an increased term under Section 9714 in 

light of the Commonwealth’s failure to provide any evidence that the 

appellant previously had been convicted of two crimes of violence as defined 

by that statute. Id. at 753. 

In light of the foregoing, the trial court properly considered Appellant’s 

Criminal Conspiracy conviction to be a crime of violence under 42 Pa.C.S.A. 

§ 9714(g) and applied the mandatory minimum sentence under Section 

9714(a)(1). Thus, Appellant’s challenge to the legality of his sentence is 

meritless. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/29/2016