J-S84020-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KEVIN CURTIS HILTON                        :
                                               :
                       Appellant               :   No. 3593 EDA 2017

           Appeal from the Judgment of Sentence October 23, 2017
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011010-2016


BEFORE: BENDER, P.J.E., OTT, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                    FILED MAY 14, 2019

       Kevin Curtis Hilton appeals from the judgment of sentence imposed on

October 23, 2017, in the Court of Common Pleas of Philadelphia County,

following his non-jury conviction of one count each of aggravated assault,

resisting arrest, reckless endangerment, possession of a firearm prohibited,

firearms not to be carried without a license, carrying firearms in public in

Philadelphia, and possession of a controlled substance.1 On October 23, 2017,

the trial court sentenced him to 8½ to 17 years’ imprisonment. On appeal,

Hilton challenges:        (1) the sufficiency of the evidence underlying his

aggravated assault conviction; and (2) the trial court’s decision to grant the


____________________________________________


118 Pa.C.S.A. §§ 2702(a)(6), 5104, 2705, 6105(a)(1), 6106(a)(1), 6108, and
35 P.S. § 780-113(a)(16), respectively.
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Commonwealth’s motion to amend the bills of information after the rendering

of the verdict. Based upon the following, we affirm.

        The trial court set out the relevant facts and procedural history as

follows:

        The [C]ommonwealth called two witnesses in their case in chief.
        Philadelphia Police Officers Justin Morris and Thomas Morrow.

                                         ****

        Officer Morris testified as follows.       He was on duty as a
        Philadelphia Police Officer on September 25, 2016[,] and was
        assigned to work the Puerto Rican Day Parade detail at the comer
        of 6th and Sedgley. He observed [Hilton] with a female walking
        down 6th Street toward Tioga. As [Hilton] adjusted his shirt
        upward, the [O]fficer saw the handle of a firearm in his waistband.
        Officer Morris followed [Hilton] down the street and approximately
        three quarters (3/4) of the way down the block, [Hilton] stopped,
        turned around and looked at the officer. Officer Morris then pulled
        his service revolver, kept it at his side, and told [Hilton,] “I saw
        what was in your waistband.” [Hilton] then put his hand on his
        shirt where the [O]fficer had seen the gun handle and responded
        with “I don’t have nothing” and turned around and continued
        walking down 6th Street.

        Officer Morris then followed [Hilton] down the street and while
        doing so he waved over fellow Police Officers Morrow and
        Narine,[2] who also were on detail at the parade across the street
        on the corner of 6th and Tioga. As the fellow officers approached,
        Officer Morris, who had already holstered his own firearm, pushed
        [Hilton] up against a wall. When the other officers arrived from
        across the street [Hilton’s] chest was against the wall and Officer
        Morris was facing the wall directly behind [Hilton]. Responding
        Officer Morrow was to the far left of them, close to [Hilton’s] left
        side and Officer Narine was to Officer Morris’s immediate left.

        [Hilton] then took his right hand and placed it onto the firearm
        that was under his shirt. While [Hilton] was attempting to pull his
____________________________________________


2   Officer Narine’s first name is not included in the certified record.

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     hand and the firearm up, Officer Morris was using his own right
     hand to push [Hilton’s] hand down so as to try and keep the
     firearm in [Hilton’s] waistband. However, [Hilton] was able to pull
     the firearm up and pointed it in the direction of Officer Morrow’s
     “center mass” with his finger on the trigger for two or three
     seconds. Officer Morris believed that [Hilton] was then going to
     shoot Officer Morrow. Officer Morris was then able to twist
     [Hilton’s] hand backward and pull the firearm out of [Hilton’s]
     hand before any shots were fired.

     Although [Hilton] continued to resist the officers’ attempts to
     subdue and arrest him, [he] was eventually handcuffed, arrested
     and searched. Recovered from [Hilton] were thirteen (13) clear
     packets that tested positive for the presence of both heroin and
     cocaine, and the firearm, which was a black 9mm handgun with
     one live round in the chamber and four in the magazine.

     The Commonwealth then played and offered into evidence a 28[-
     ]second You Tube video depicting a portion of the confrontation
     between [Hilton] and the police officers. Officer Morris testified
     that the video did not begin until after the firearm had already
     been pointed in Officer Morrow’s direction and after Officer Morris
     had already managed to take the gun from [Hilton].

     On cross-examination[,] Officer Morris agreed it was possible that
     during his struggle with [Hilton] for his firearm [Hilton] may have
     had his firearm pointed at Officer Morrow for less than the 2-3
     seconds that he testified to on direct examination.

     On redirect-examination, Officer Morris testified that during his
     struggle to take the firearm from [Hilton], [Hilton] was “very
     strong” and was using “a lot of effort” to continue to pull the gun
     up from his waistband and point it in the direction of Officer
     Morrow.

                                  ****

     Officer Morrow testified as follows.       He was on duty as a
     Philadelphia Police Officer on September 25, 2016[,] and was
     assigned to work the Puerto Rican Day Parade detail at the comer
     of 6th and Tioga with his partner, Officer Narine. At approximately
     5:00p.m., Officer Narine told him that Officer Morris had flagged
     him for their assistance in what appeared to be a stop of a male.
     Officer Morrow then saw Officer Morris midway up the block on

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      6th Street. When he arrived he saw that Officer Morris had
      [Hilton] up against a wall and [O]fficer Morris then screamed the
      word “gun” as a warning to the responding officers that [Hilton]
      possessed a firearm. Officer Morrow testified that while Officer
      Morris was trying to disarm [Hilton], [Hilton’s] body was bladed to
      the left facing where Officer Morrow was now positioned about a
      foot away to prevent [Hilton’s] escape. He observed the firearm
      being held by [Hilton] and saw Officer Morris attempting to disarm
      him. Officer Morrow agreed that [Hilton] was actively raising the
      gun against Officer Morris’s downward action. He then saw
      [Hilton’s] arm and wrist come up with the barrel of the gun pointed
      at his midsection with [Hilton’s] finger on the trigger. Officer
      Morrow testified that he thought that he was about to be shot and
      possibly killed.

      On cross-examination, Officer Morrow stated that although he
      testified at the preliminary hearing that the gun was pointed at
      him for ten seconds it may have only been for two or three
      seconds. He agreed that in the statement that he gave to
      detectives following [Hilton’s] arrest he stated that he had
      observed [Hilton] “twisting the gun up and the gun was pointed
      at my direction.” However, Officer Morrow testified that he now
      believes that [Hilton] wasn’t twisting when he pointed the gun at
      him but rather was putting his hand and gun out towards him.

Trial Court Opinion, 3/29/2018, at 3-6 (footnotes and record citations

omitted).

      A bench trial was conducted on June 1, 2017. Following argument, the

trial court found Hilton guilty of the aforementioned charges and not guilty of

attempted murder. However, the trial court found Hilton guilty of aggravated

assault under 18 Pa.C.S.A. § 2702(a)(6), which the Commonwealth had not

charged in the bills of information. N.T. Trial, 6/01/2017, at 120. Therefore,

the Commonwealth asked to amend the bills and defense counsel agreed to

the amendment. Id.




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       On October 23, 2017, the trial court sentenced Hilton as referenced

above.      On October 25, 2017, defense counsel filed a motion for

reconsideration of sentence and a motion to withdraw as counsel. The trial

court denied the motion for reconsideration of sentence but granted the

motion to withdraw as counsel on October 31, 2017; the court also appointed

new counsel to represent Hilton on appeal.          On November 1, 2017, Hilton

filed a timely notice of appeal.        In response to the trial court’s order, on

December 20, 2017, after the court granted him an extension of time, Hilton

filed a timely concise statement of errors complained of on appeal. On March

29, 2018, the trial court issued an opinion.

       In his first claim, Hilton argues that the evidence was not sufficient to

sustain his conviction for aggravated assault.3 Specifically, he contends that

the Commonwealth failed to prove that he “intentionally attempted by physical

menace to put any police officer in fear of imminent serious bodily injury.”

Hilton’s Brief, at 19. We disagree.

       Our standard of review for a claim of insufficient evidence is as follows:

       The determination of whether sufficient evidence exists to support
       the verdict is a question of law; accordingly, our standard of
       review is de novo and our scope of review is plenary. In assessing
       [a] sufficiency challenge, we must determine whether viewing all
       the evidence admitted at trial in the light most favorable to the
       [Commonwealth], there is sufficient evidence to enable the
       factfinder to find every element of the crime beyond a reasonable
       doubt.     [T]he facts and circumstances established by the
____________________________________________


3 Hilton does not challenge the sufficiency of the evidence underlying the
remaining charges.

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      Commonwealth need not preclude every possibility of innocence.
      . . . [T]he finder of fact while passing upon the credibility of
      witnesses and the weight of the evidence produced, is free to
      believe all, part[,] or none of the evidence.

Commonwealth v. Edwards, 177 A.3d 963, 969-970 (Pa. Super. 2018)

(quotation marks and citations omitted).

      The trial court convicted Hilton of violating 18 Pa.C.S.A. § 2702(a)(6).

Section 2702 states, in relevant part:

      (a) Offense defined.--A person is guilty of aggravated assault if
      he:

                                        ****

              (6) attempts by physical menace to put any of the
              officers, agents, employees or other persons
              enumerated in subsection (c), while in the
              performance of duty, in fear of imminent serious
              bodily injury[.]

18 Pa.C.S.A. § 2702(a)(6).

      Here,    as   detailed   above,   the   uncontradicted   evidence   at    trial

demonstrated that Officer Morris saw a gun in Hilton’s waistband.              When

stopped, Hilton did not drop the gun or allow Officer Morris to pat him down

but instead actively resisted. During the struggle, and despite Officer Morris’s

attempt to hold Hilton’s hand down, Hilton reached into his waistband, pulled

out the loaded and operable gun, and, with his finger on the trigger, pointed

it at Officer Morrow. Hilton continued to point the gun at Officer Morrow for a

few seconds until Officer Morris was able to twist his hand and ultimately

wrestle the gun away. Officer Morris testified that he believed Hilton intended


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to shoot Officer Morrow, and Officer Morrow testified that he was in fear of his

life.

        This evidence is sufficient to find Hilton guilty of aggravated assault.

See Commonwealth v. Sheppard, 837 A.2d 555, 558 (Pa. Super. 2003)

(holding evident sufficient to sustain conviction under 18 Pa.C.S.A. §

2702(a)(6), where defendant pointed gun at uniformed police officer and

initially refused instruction to drop weapon); Commonwealth v. Little, 614

A.2d 1146, 1152 (Pa. Super. 1992) (holding act of pointing gun at another

person can constitute attempt by physical menace to put another in fear of

serious bodily injury), appeal denied, 618 A.2d 399 (Pa. 1992). Moreover,

Hilton’s argument, which is primarily a series of alternate explanations for his

actions, is less an attack on the sufficiency of the evidence and more a request

that we reweigh the evidence in his favor, a claim that is not before this Court.

Hilton’s Brief, at 21-30; see also Commonwealth v. W.H.M., Jr., 932 A.2d

155, 160 (Pa. Super. 2007) (claim that finder-of-fact should not have believed

victim’s version of events goes to weight, not sufficiency of evidence). Hilton’s

first claim lacks merit.

        In his second and final claim, Hilton contends that the trial court erred

in allowing the Commonwealth to amend the bills of information after the

verdict to include a charge under 18 Pa.C.S.A. § 2702(a)(6). Hilton’s Brief, at

30-37. However, Hilton waived this claim.




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      At trial, the court, after hearing the evidence, convicted Hilton under 18

Pa.C.S.A. § 2702(a)(6), rather than Section (a)(2) as originally charged by

the Commonwealth.       N.T. Trial, 6/01/2017, at 120. The following then

occurred:

      [The Commonwealth]: Can I just make a motion, Your Honor, to
      officially amend the bills for that charge?

      The Court: You can. I believe —

      [Defense Counsel]: I think it’s a lesser included.

      [The Commonwealth]: I do as well.

      The Court: As a jury, I could charge myself on that, just like I
      could charge a jury.

      [Defense Counsel]: The Commonwealth can amend up through
      sentencing, I believe, so I don’t have an objection.

      [The Commonwealth]: I just want to make sure.

      The Court: It’s 2702(a)(6).

Id. (emphasis added).

      Thus, it is evident that, not only did Hilton not object to the amendment,

he actually acquiesced. Our Supreme Court has held that failure to raise a

contemporaneous objection constitutes a waiver of the claim.               See

Commonwealth v. Powell, 956 A.2d 406, 419 (Pa. 2008), cert. denied, 556

U.S. 1131 (2009). Furthermore, this Court will not overlook waiver simply

because the trial court addressed the issue in its 1925(a) opinion.        See

Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1287-1289 (Pa.

Super. 2004) (en banc) (holding defendant’s failure to object to admissibility

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of inflammatory photographs before or during trial waived issue for review on

appeal, despite fact defendant raised claim in Pa.R.A.P. 1925(b) statement

and court addressed it in opinion).            In addition, an appellant cannot raise

issues for the first time in a Rule 1925(b) statement. See Commonwealth

v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for first

time in Rule 1925(b) statement are waived). Thus, Hilton waived his second

claim.4

       For all the foregoing reasons, we affirm Hilton’s judgment of sentence.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/19




____________________________________________


4 We note as did the trial court, see Trial Ct. Op. at 11, that the conviction
pursuant to Section (a)(6) resulted in a downgrade of the charge from an F-1
to an F-2.

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