J-S20018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSIE ANN HEPPENSTALL                      :
                                               :
                       Appellant               :   No. 1128 WDA 2018

          Appeal from the Judgment of Sentence Dated August 1, 2018
      In the Court of Common Pleas of Greene County Criminal Division at
                        No(s): CP-30-CR-0000016-2018


BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED JUNE 26, 2019

       Josie Ann Heppenstall appeals from the judgment of sentence entered

following her jury-trial convictions for firearms not to be carried without a

license and fleeing or attempting to elude a police officer while endangering a

law enforcement officer or member of the general public by engaging in a

high-speed chase.1 She argues that the court erred in denying her motion for

acquittal, in admitting evidence, and in providing an inadequate cautionary

instruction. She further contends that her conviction cannot stand because the

jury returned inconsistent verdicts. We affirm.

       Heppenstall was arrested following a high-speed chase that occurred

around 8:30 p.m. on December 22, 2017, and charged with fleeing or

attempting to elude a police officer while engaging in a high speed chase,
____________________________________________


1 18 Pa.C.S.A. § 6106(a)(2) and 75 Pa.C.S.A. § 3733(a), (a.2)(2)(iii),
respectively.
J-S20018-19



firearms not to be carried without a license, persons not to possess firearms,

18 Pa.C.S.A. § 6105(a)(1), possession of a small amount of marijuana, 35

P.S. § 780-113(a)(31), and possession of drug paraphernalia, id. at 780-

113(a)(32).

      Before the start of trial, the Commonwealth nolle prossed the possession

of a small amount of marijuana charge because the substance had not been

tested. N.T., 5/10/18, at 4. The trial court then also dismissed the possession

of drug paraphernalia charge. Id. at 6-7. The trial court instructed the parties

“to not mention the search of [Heppenstall’s] purse,” which was where the

marijuana was discovered, “during the testimony in chief.” Id. at 8.

      The case proceeded to a jury trial. During opening statements, defense

counsel stated the defense would “not offer any evidence to disprove that

[Heppenstall] sped away from the police,” and stated that Heppenstall “eluded

the police.” Id. at 25-26.

      The Commonwealth then presented the testimony of Officer Zack

Howard, who testified that he was waiting at a red light when he heard a car

moving at a high rate of speed. Id. at 28. He then observed the car go through

an intersection at a high rate of speed. Id. Officer Howard activated his

emergency overhead lights and siren and attempted to initiate a traffic stop.

Id. Officer Howard followed the vehicle, which continued at a high rate of

speed. Id. at 29. In an attempt to stop the vehicle, Officer Howard was

traveling at maximum of 70 miles per hour on a road that had a 25-mile-per-

hour speed limit. Id. He observed the vehicle’s headlights go off for about five

                                     -2-
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seconds, and then reactivate. Id. Officer Howard finally caught the vehicle

after the vehicle crashed, and landed in a backyard, 100 feet from the

roadway. Id. at 31.

      Officer Howard testified that Heppenstall was the driver and sole

occupant of the car, which was titled and registered in Heppenstall’s name.

Id. at 38, 40. Officer Howard discovered a Hi-Point, 45-caliber pistol on the

floor under Heppenstall’s feet. Id. at 42. Heppenstall did not have a license to

carry the firearm. Id. at 45. Officer Howard testified there was documentation

that Heppenstall’s husband, Samuel Heppenstall (“Samuel”), had purchased

the firearm. Id. at 47. Officer Howard testified that Heppenstall told him the

firearm belonged to her husband. She informed Officer Howard that her

husband’s tactical vest also was in the car and claimed that she did not stop

because her brakes were not working. Id. at 48.

      During Officer Howard’s testimony, the Commonwealth played for the

jury a video from the dashboard camera of the police car. The trial court asked

Heppenstall whether she had an objection, and counsel stated, “[n]o objection

if the Court feels it’s appropriate and necessary.” Id. at 31. Following the

video, the Commonwealth moved for the admission of photographs showing

the curve just prior to where the vehicle crashed. Id. at 36. Heppenstall

objected, noting the photographs were cumulative of the video. Id. The trial

court overruled the objection and permitted the admission of the photographs.

Id.

      On cross-examination of Officer Howard, the following occurred:

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         Q: And were you able to determine whether the tactical vest
         also belonged to –

         [Assistant District Attorney (“ADA”)]: I’ll object, Your Honor
         to the relevance of the vest, it’s not been –

         [Defense Counsel]: It’s certainly relevant because –

         The Court: Overrule. Overrule, I understand, but I don’t
         think –

         [ADA]: Well, it’s not legal to have a tactical vest in your
         vehicle.

         The Court: No, no, overrule, and I don’t want to say why.
         Go ahead.

Id. at 52-53. Further, Officer Howard responded “[n]o” when asked, “Other

than the fact that the gun was at or near her feet at the time you noticed it,

is there any other evidence that you have that she had the intent to control

or even knew this gun was in the car?” Id. at 58.

      The Commonwealth next called a certified mechanic, Tony Staggers, to

testify as an expert. Heppenstall objected, stating his testimony was

cumulative   because “[w]e’ve already seen pictures, we’ve seen the

dashboard, I’ve already indicated her guilt as to this.” Id. at 61. The trial court

overruled the objection and permitted his testimony.

      Staggers testimony included the following:

         Q. In late December of last year, what inspection work did
         you do on a Ford Focus belonging to a Ms. Heppenstall?

         A. Yes, I was asked to look the vehicle over because
         supposedly the brakes did not work and accelerator
         supposedly stopped and –

         [Defense counsel]: Objection, I don’t think there was any
         testimony –



                                       -4-
J-S20018-19


          The Court: That’s fine, you’re right. So sustain the objection
          and forget about the last. It was just why he looked at it.
          So disregard the last statement. Go ahead, Mr. Lock.

Id. at 63.

       Staggers then testified that the brakes were “in real good working

order.” Id. When the ADA asked Staggers about the condition of the throttle

and accelerator, defense counsel objected, noting “there’s no[] testimony with

respect to the accelerator not working, I feel it’s not relevant.” Id. at 63-64.

The trial court overruled the objection, reasoning, “I think the mechanical

condition is relevant and not particularly prejudicial.” Id. at 64. Staggers

testified that the throttle and accelerator were in working order. Id.

       The Commonwealth rested and Heppenstall moved to dismiss the

firearm charges, arguing the Commonwealth did not establish Heppenstall had

dominion over or the ability to control the firearm, or that she was aware the

firearm was in the car. Id. at 65-66. The trial court denied the motion, finding

the issue was for the trier of fact. Id. at 66.

       Heppenstall’s husband, Samuel, testified for the defense. Samuel is

employed as a security guard and a member of the US Army National Guard.

Id. at 70. He testified that he purchased the gun found in the vehicle and

usually carried the gun on his person for protection. Id. at 70-71, 74.2

According to his testimony, on December 22, 2017, he and Heppenstall had

only one operational vehicle. Id. at 76. He testified that he had been using

____________________________________________


2 Among the admitted pictures of the gun was a picture of Samuel in the
tactical vest with the firearm. N.T., 5/10/18, at 75.

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the vehicle to run errands during the day, and had kept his gun under the

front seat during the errands. Id. at 76. That night, he worked security at a

school sporting event. Id. He drove the vehicle to the event, with Heppenstall

as a passenger. Id. at 77. Heppenstall was to pick him up after the event. Id.

at 77-78. He could not bring his gun to his security job that evening and,

although he usually locked the gun in the trunk when he could not take it with

him, on that day, he was “running a little bit late for work [and] was in a

rush.” Id. at 78. He said that he did not tell Heppenstall it was under the seat

and she did not acknowledge that she knew it was there. Id.

      On cross-examination, Samuel agreed that the gun was unloaded, he

carried an unloaded gun for protection, and the gun had an unloaded

magazine in it. Id. at 80. He stated he carried a loaded magazine in his pocket.

Id.

      The parties stipulated that Heppenstall had a felony conviction that

prohibited her from possessing a firearm. Id. at 20.

      During closings, the ADA stated:

         First, why a man, [Samuel], familiar and trained with
         firearms, would carry an unloaded gun in his wife’s vehicle
         for protection. A gun doesn’t do much good unless it has
         bullets in it. And secondly, it doesn’t make sense why Josie
         Heppenstall, a mother of two, would lead a police officer on
         a high-speed chase which was over almost two miles which
         resulted in her leaving the scene in an ambulance. And,
         ladies and gentlemen, the explanation for that first issue is
         that Mr. Heppenstall didn’t put the gun in that vehicle that
         day. He wasn’t going to carry an unloaded gun for personal
         protection. And as far as the second issue, why Ms.
         Heppenstall, mother of two, would risk life and limb leading


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J-S20018-19


         a police officer on a high speed chase is that she did know
         that gun was in that vehicle and she knew as a person not
         to possess a firearm due to that prior felony conviction, she
         really, really did not want to get caught with that gun in that
         car by Officer Howard.

Id. at 89 (emphasis added).

      After closings, defense counsel requested a sidebar conference, at which

counsel stated that the ADA’s closing left the jury with “the incorrect

impression that the only reason she would possibly be leaving the scene was

because she had a gun that she knew about. When in reality, there was

marijuana in that car which is just as plausible [a] reason.” Id. at 91. Counsel

stated he did not mention the marijuana because the court told the parties

not to reference it. Id. Counsel requested a cautionary instruction. Id. at 92.

Following the sidebar, the trial court issued the following cautionary

instruction:

         I don’t recall whether or not when you were here for jury
         selection, we talked about an allegation that there was
         marijuana in the car. There [were] rulings by the Court,
         which had nothing really to do with the parties, where an
         allegation of marijuana was dismissed. So the only reason
         we bring that up now is because, again – and I would stress
         that the arguments of counsel are simply that - but we bring
         that up because of the circumstance that [the ADA] asks
         you to consider why it was that she was fleeing. And
         [defense counsel] has said yes, she was fleeing, referred to
         her as a knucklehead or however that might be. So just so
         that you know, that piece of evidence, let’s call it that, is
         that there was originally that charge. That was dismissed by
         the Court and so I guess that is we give you that to
         essentially give you a complete picture.

Id. at 94-95. Defense counsel said the cautionary instruction was “fine,” id.

at 95, and did not object.


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       The jury found Heppenstall guilty of firearms not to be carried without

a license and fleeing or attempting to elude a police officer, but not guilty of

possession of firearm by prohibited person.3 The trial court sentenced

Heppenstall to two concurrent terms of ten to 23 months’ incarceration.

Heppenstall filed a timely Notice of Appeal.

       Heppenstall raises the following issues:

          I. Did the trial judge commit an abuse of discretion by
          permitting Tony Staggers to testify regarding the condition
          of the brakes and accelerator of the Ford Focus Ms.
          Heppenstall was driving?

          II. Did the trial court commit an abuse of discretion by
          denying [Heppenstall’s] request for a cautionary instruction
          after the Commonwealth violated a Pre-Trial Order entered
          by the trial judge barring either side from mentioning
          [Heppenstall] was in possession of marijuana in her vehicle?

          III. Was the inconsistency of the jury’s verdict in which they
          found [Heppenstall] not guilty of Count I Person Not to
          Possess, Manufacture, Control, Sell or Transfer Firearms, 18
          Pa. C.S.A. § 6105(A)(1), but they found [Heppenstall] guilty
          of Firearms Not to be Carried Without a License, 18 Pa.
          C.S.A. § 6106(A)(2), such that it should nullify the jury’s
          verdict as to the latter charge?

          IV. Did the trial court abuse its discretion in permitting the
          Commonwealth to show dash cam video of [Heppenstall]
          attempting to elude the Waynesburg Police when counsel,
          in his opening, conceded [Heppenstall’s] guilt in this regard
          and objected to the use of same at trial?


____________________________________________


3 The trial court also found Heppenstall guilty of the following summary
offenses: driving a vehicle at a safe speed, 75 Pa.C.S.A. § 3361; careless
driving, 75 Pa.C.S.A. § 3714; turning movements and required signals, 75
Pa.C.S.A. § 3334(a); driving without lights to avoid identification, 75 Pa.C.S.A.
§ 3734; and reckless driving, 75 Pa.C.S.A. § 3736.

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J-S20018-19


         V. Did the trial court abuse its discretion in refusing to grant
         [Heppenstall’s] Motion to Dismiss at the conclusion of the
         Commonwealth’s case when the only evidence produced by
         the Commonwealth as to Heppenstall’s possession of the
         firearm in question was its proximity to where she was
         sitting after her car came to a stop following its hitting an
         embankment?

         VI. Did the trial court error in refusing to grant a directed
         verdict for [Heppenstall] and against the Commonwealth at
         the conclusion of the trial when the only competent evidence
         as to [Heppenstall’s] ownership of the gun was its proximity
         to her feet after her vehicle stopped upon hitting an
         embankment?

         VII. Did the cumulative effect of all of the errors on
         evidentiary rulings deprive [Heppenstall] of a fair trial?

Heppenstall’s Br. at 3-4. For ease of disposition, we will address Heppenstall’s

claims out of order.

   I. Motion to Dismiss

      Heppenstall claims the trial court erred in denying her motion to dismiss

the firearm charges following the Commonwealth’s case. She claims the

Commonwealth failed to present sufficient evidence that she possessed the

firearm. She argues the gun was not on her person, but found near her feet

after a car accident and that her husband explained that he had left the gun

in the car. She argues that mere presence does not establish constructive

possession. She also claims that her fleeing is not evidence that she illegally

possessed the firearm, as she also possessed marijuana.

      A challenge to the sufficiency of the evidence at the close of the

Commonwealth’s case-in-chief is treated as a motion for judgment of

acquittal. See Pa.R.Crim.P. 606(a)(1). “A motion for judgment of acquittal


                                      -9-
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challenges the sufficiency of the evidence to sustain a conviction on a

particular charge, and is granted only in cases in which the Commonwealth

has failed to carry its burden regarding that charge.” Commonwealth v.

Hutchinson, 947 A.2d 800, 805 (Pa.Super. 2008) (quoting Commonwealth

v. Andrulewicz, 911 A.2d 162, 165 (Pa.Super. 2006)).

      When reviewing a sufficiency of the evidence claim, we must determine

whether, when viewed in a light most favorable to the verdict winner, the

evidence at trial and all reasonable inferences therefrom are sufficient for the

trier of fact to find that each element of the crime charged is established

beyond a reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150,

152 (Pa.Super. 2003). “The Commonwealth may sustain its burden of proving

every element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence.” Commonwealth v. Brown, 23 A.3d 544, 559

(Pa.Super. 2011) (en banc) (quoting Hutchinson, 947 A.2d at 805-06).

      18 Pa.C.S.A. § 6106(a) prohibits any person from “carr[ying] a firearm

in any vehicle. . . without a valid and lawfully issued license under this

chapter[.]” 18 Pa.C.S.A. § 6106(a). To convict a defendant under this section

where the firearm was found in a vehicle, the Commonwealth must establish

that the weapon was a firearm, it was unlicensed, and the weapon was in the

defendant’s vehicle. See id. Further, “the Commonwealth must establish that

a defendant acted ‘intentionally, knowingly or recklessly’ with respect to each

element” of 18 Pa.C.S.A. § 6106(a). Commonwealth v. Scott, 176 A.3d 283,

291 (Pa.Super. 2017). The Commonwealth may prove “the defendant had

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knowledge of the existence and location of the items at issue ‘from

examination of the totality of the circumstances surrounding the case,’ such

as whether the contraband was located in an area ‘usually accessible only to

the defendant.’” Commonwealth v. Hall, 199 A.3d 954, 961 (Pa.Super.

2018) (quoting Commonwealth v. Thompson, 428 A.2d 223, 224

(Pa.Super. 1981)).

      The Commonwealth presented evidence that Heppenstall was the driver

and sole occupant of a vehicle that led a police officer on a high-speed chase,

the vehicle was registered to Heppenstall, the firearm was found at her feet,

and Heppenstall was not licensed to carry a firearm. This was sufficient to

support a conviction for carrying firearms without a license.

   II. Evidentiary Rulings

      We       review   evidentiary   rulings      for   an   abuse        of        discretion.

Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015). “An abuse of

discretion may not be found merely because an appellate court might have

reached    a    different   conclusion,    but     requires   a   result        of    manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.” Id. (quoting Commonwealth v.

Sherwood, 982 A.2d 483, 495 (Pa. 2009)).

      Relevant evidence is admissible unless “otherwise provided by law.”

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008) (quoting Pa.R.Evid.

402). Evidence is relevant if “it has any tendency to make a fact more or less

probable than it would be without the evidence [and] the fact is of

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consequence in determining the action.” Pa.R.Evid. 401. Further, “[t]he court

may exclude relevant evidence if its probative value is outweighed by a danger

of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Pa.R.Evid. 403.

      The crime of fleeing or attempting to elude a police officer is defined as:

“Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle

to a stop, or who otherwise flees or attempts to elude a pursuing police officer,

when given a visual and audible signal to bring the vehicle to a stop.” 75

Pa.C.S.A. § 3733(a). Heppenstall was charged with fleeing or attempting to

elude a police officer as a felony of the third-degree, which requires proof of

an   additional    element,   here,   that   Heppenstall   “endanger[ed]   a   law

enforcement officer or member of the general public due to [her] engaging in

a high-speed chase.” Id. at 3733(a.2)(2)(iii).

      A. Testimony of Mechanic

      Heppenstall first alleges the trial court abused its discretion by

permitting Staggers to testify regarding the condition of the vehicle’s brakes

and accelerator.

      During Staggers’ testimony, the following occurred:

         [Q]: In late December of last year, what inspection work did
         you do on a Ford Focus belong[ing] to Ms. Heppenstall?

         [A]: Yes, I was asked to look the vehicle over because
         supposedly the brakes did not work and supposedly the
         accelerator stopped[.]


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J-S20018-19



N.T., 5/10/18, at 63. Heppenstall objected because, although Officer Howard

had testified that Heppenstall claimed the brakes were not working, he had

not testified that she claimed the accelerator was not working. The trial court

sustained the objection, and instructed the jury to “disregard the last

statement.” Id. Staggers then testified that the brakes, throttle, and the

accelerator were operational.

      The trial court did not abuse its discretion. To establish Heppenstall fled

or eluded the police, the Commonwealth had to show she willfully engaged in

a high-speed chase. Stagger’s testimony that the vehicle’s brakes and

accelerator were operational was probative of Heppenstall’s intent. Further,

the probative value of the evidence that the accelerator was operational

outweighed any unfair prejudice. The trial court sustained the objections to

Stagger’s answer stating someone claimed the accelerator was not working,

and informed the jury to disregard the answer. Further, in his answer,

Staggers never claimed that Heppenstall told him the accelerator was not

working.

      B. Dashboard Camera Video and Tactical Vest

      Heppenstall next argues the trial court abused its discretion when it

permitted the Commonwealth to show the jury the video from the police car’s

dashboard camera. She claims that she conceded during her opening

statement that she tried to elude Officer Howard and therefore the court erred

in admitting the video. She claims the video inflamed the jury’s emotions.




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Heppenstall also claims that the Commonwealth incorrectly told the jurors it

was illegal for Heppenstall’s husband to be in possession of a tactical vest.

      Heppenstall waived her objection to the admission of the video from the

dashboard camera. She did not object to the admission of the evidence at

trial. Pa.R.Evid. 103(a)(1); Commonwealth. v. Thoeun Tha, 64 A.3d 704,

713 (Pa.Super. 2013).

      Even if she had not waived the issue, we would conclude it lacked merit.

The trial court explained that the video showed Heppenstall “proceeded

through an intersection at high speed and showed the Police Officer’s path in

pursuing the vehicle and ultimately the crash site.” Trial Court Opinion, filed

Oct. 21, 2018, at 8 (“1925(a) Op.”). It concluded that “the use of the video

evidence was wholly appropriate and no error was committed by the Court in

its admission.” Id.

      The trial court did not abuse its discretion. To establish a conviction for

fleeing or attempting to elude police officer as a third-degree felony, the

Commonwealth had to establish Heppenstall endangered a law enforcement

officer or member of the general public by engaging in a high-speed chase.

75 Pa.C.S.A. § 3733(a.2)(a)(iii). Here, Heppenstall stated during her opening

that she “would not offer evidence to disprove that [Heppenstall] sped away

from police” and conceded she “eluded police,” N.T., 5/10/18, at 25, and the

court stated during the jury instructions that Heppenstall’s counsel said she

fled. Id. at 106. However, Heppenstall said nothing about the other elements

of the crime, and the Commonwealth was still required to meet its burden of

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establishing all elements of fleeing or attempting to elude a police officer,

including that she endangered others by engaging in a high-speed chase,

beyond a reasonable doubt. The video was probative and did not cause unfair

prejudice.

      In this section, Heppenstall also attempts to argue the court erred

regarding the exchange regarding the tactical vest found in the car.

Heppenstall, however, has waived the claim. She did not object to the

Commonwealth’s comments at trial. Rather, the Commonwealth objected to

Heppenstall’s questions regarding the vest. Further, she suffered no prejudice

from the exchange.

   III. Prosecutorial Misconduct

      Heppenstall next claims the trial court abused its discretion when it

provided an inadequate cautionary instruction after the Commonwealth

violated a pre-trial order barring mention that Heppenstall was in possession

of marijuana. She claims that the Commonwealth violated this order by

arguing during closing that Heppenstall did not stop because she knew the

firearm was in the car. Heppenstall claims the Commonwealth “knew full well

that Ms. Heppenstall was in possession of marijuana/drug paraphernalia and

that other reasons existed for her attempting to elude police.” Heppenstall’s

Br. at 14.

      We review a claim of prosecutorial misconduct for an abuse of discretion.

Commonwealth v. Jones, 191 A.3d 830, 835 (Pa.Super. 2018). “[A]ny

challenged prosecutorial comment must not be viewed in isolation, but rather

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must be considered in the context in which it was offered.” Id. Further, we

review of a prosecutor’s comment to determine “whether a defendant received

a fair trial, not a perfect trial.” Id. (quoting Commonwealth v. Jaynes, 135

A.3d 606, 615 (Pa.Super. 2016)). Therefore, a prosecutor’s statements during

closing argument will form the basis of a grant of a new trial only where “the

unavoidable effect of such comments would be to prejudice the jury, forming

in their minds fixed bias and hostility toward the defendant so they could not

weigh the evidence objectively and render a true verdict.” Id. (quoting

Jaynes, 135 A.3d at 615).

      In its closing, the Commonwealth stated:

            [I]t doesn’t make sense why . . . Heppenstall, a mother of
            two, would lead a police officer on a high speed chase which
            was over almost two miles which resulted in her leaving the
            scene in an ambulance. . . . [S]he did know that gun was in
            that vehicle and she knew as a person not to possess a
            firearm due to that prior felony conviction, she really, really
            did not want to get caught with that gun in that car by
            Officer Howard.

N.T., 5/10/18, at 89. Heppenstall then asked for, and the trial court provided,

a cautionary instruction informing the jury that Heppenstall had also had

marijuana with her, which would also provide incentive to flee. Id. at 94-95.

Afterward, Heppenstall stated the cautionary instruction was fine, did not

lodge any complaint or objection to the instruction, and did not request a

mistrial.

      Heppenstall has waived any claim as to a mistrial because she did not

request a mistrial following closing, and waived a challenge to the cautionary


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instruction by agreeing to the instruction. See Pa.R.Crim.P. 605(B) (providing

“[w]hen an event prejudicial to the defendant occurs during trial only the

defendant may move for a mistrial; the motion shall be made when the event

is disclosed”); Commonwealth v. Gooding, 818 A.2d 546, 552 (Pa.Super.

2003) (explaining failure to make timely, specific objection to jury instruction

waives challenge to content of jury instruction on appeal).

      Further, even if she had not waived the claim, we would conclude it

lacked merit. The trial court explained that the Commonwealth did not violate

a rule or order of the court when it inferred that Heppenstall’s motivation to

flee was her possession of a firearm. It also stated that Heppenstall objected,

and the trial court “remedied any misconception by an appropriate

instruction.” 1925(a) Op. at 5.

      The trial court did not abuse its discretion. The Commonwealth did not

mention Heppenstall’s possession of marijuana. Further, although the

possession of marijuana may have led her to flee, the possession of the

firearm also may have provoked flight, particularly in light of the evidence

presented at trial. Further, following Heppenstall’s objection, the trial court

provided the requested cautionary instruction.

   IV. Inconsistent Verdicts

      Heppenstall next argues that relief is warranted based on the jury’s

inconsistent verdicts. She notes that the jury found her guilty of carrying

firearms not to be carried without a license but not guilty of persons not to

possess firearms. She argues that “[d]espite [the trial court’s] best effort to

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explain to the jury what possession was, they were obviously confused.”

Heppenstall’s Br. at 14.

      Inconsistent verdicts “are allowed to stand so long as the evidence is

sufficient to support the conviction.” Commonwealth v. Miller, 35 A.3d

1206, 1208 (Pa. 2012). “[A]n acquittal cannot be interpreted as a specific

finding in relation to some of the evidence.” Id. at 1209 (quoting

Commonwealth v. Carter, 282 A.2d 375, 376 (Pa. 1971)). Rather, “an

acquittal of a charge for which there was sufficient evidence for conviction is

an occasion of a ‘jury’s assumption of a power which [it] had no right to

exercise, but to which [it was] disposed through lenity.’” Id. (quoting Carter,

282 A.2d at 376) (alterations in original).

      Here, because sufficient evidence supported the carrying a firearm

without a license conviction, no relief is due.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2019




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