J-S74029-17

                                2018 PA Super 151


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 RICHARD HEWLETT                          :
                                          :
                    Appellant             :   No. 906 EDA 2016

          Appeal from the Judgment of Sentence November 6, 2015
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0000583-2015


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

CONCURRING OPINION BY BOWES, J.:

      I join the learned Majority’s disposition of Appellant’s sufficiency

challenges. I disagree, however, with my colleagues’ finding that Appellant

waived his claim that the trial court abused its discretion when it permitted

the Commonwealth to introduce evidence that witness Tiffany Johnson felt

intimidated due to the actions of a spectator. I would reach the merits and

find no abuse of discretion. Finally, I distance myself from language that not

only approves of the trial judge searching spectators’ cell phones, but tacitly

encourages judges to do so in the future.

      I first address why there is no waiver herein.    During Ms. Johnson’s

testimony, Appellant objected to a question and the court asked to see counsel

at sidebar. I quote the relevant exchange in full:

      THE COURT: Let the record reflect the jurors have left the room.
      What was that about?
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     THE SHERIFF: There is a reason, Your Honor.

     THE COURT: Is there anyone in this courtroom recording these
     proceedings or photographing anyone here?

     THE SHERIFF: Your Honor, give me one second, all right. Come
     on, Man.

     (Sheriff escorted the defendant out the courtroom.)

     THE COURT: There is a big sign on the door that says don't bring
     phones into the courtroom. Don't use them if they're in here. I
     will ask my question again. Is there anybody here taking
     photographs or recording these proceedings?

     THE SHERIFF: Your Honor I don't know what the young man in
     the red is doing but I did have to ask him to put his phone away
     once already. So I don't know what's going on. I am watching the
     custody. I'm doing the best I can in the audience.

     THE COURT: Are you recording these proceedings?

     MALE VOICE: No, no when you stepped out the courtroom I
     thought it was okay for me to just put in my text message. I ain't
     taking pictures.

     THE COURT CRIER: There is no cell phone usage in the courtroom,
     period.

     MALE VOICE: I am not using it.

     THE COURT CRIER: All cells [sic] phones are supposed to be off.

     THE COURT: Why is it that every trial someone comes into this
     building intent on recording and photographing?

     FEMALE VOICE: No, Your Honor, he is not recording anything.

     THE COURT: We're going to find out, aren't we? See what's on his
     phone.

     THE WITNESS: He had the phone up like this (indicating).

     THE SHERIFF: You want it, Your Honor?

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     THE COURT: Did you look at it? I have an obligation to conduct
     this case, sir, in a civil fashion, the way people conduct themselves
     in a civil society. That means that no one should be threatened,
     you or this witness, and she has represented that you
     photographed her.

     MALE VOICE: Your Honor, you can look in my phone right now.

     THE COURT: Well I just want to you [sic] know why.

     MALE VOICE: But listen to me.

     THE COURT: If you had kept your phone in your pocket, we
     wouldn't be having this discussion.

     MALE VOICE: Your Honor, I need my phone.

     THE COURT: Every single trial.

     MALE VOICE: I need to get a ride home.

     THE COURT: What is your name?

     MALE VOICE: Maurice McCall.

     THE COURT: Come to the bar. On the other side. What is your
     name?

     MAURICE MCCALL: Maurice McCall, sir.

     THE COURT: Spell your first name.

     MAURICE MCCALL: M-A-U-R-I-C-E.

     THE COURT: Spell your last name.

     MAURICE MCCALL: M-C-C-A-L-L.

     THE COURT: One more time.

     MAURICE MCCALL: M-C-C-A-L-L.

     THE COURT: What is your date of birth?

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              ....

      THE COURT: Sir, this is a public courtroom. Everyone is welcome
      but you have to follow the rules.

      MAURICE MCCALL: Okay, sir.

      THE COURT: Keep your phone in your pocket. Have a seat.

      (At 2:45 p.m. the Court took a brief recess.)

N.T., 9/2/15, at 174-78. It appears that the recess was for the trial judge to

search McCall’s cell phone, as the proceedings resume with the following:

      THE COURT: What does that one entry say? There is at least one
      entry here, sir, where you text the following words: This bitch just
      got on the stand on rich grove (phonetic).

      You've got nothing better to do than come to court and carry on
      in this fashion? This phone will be held in the event the District
      Attorney's Office wishes to get a search warrant and search your
      phone, and if it's appropriate, it's their decision, not mine, to take
      action. So your phone will be held until such time as a decision is
      made.

      MAURICE MCCALL: All right.

      THE COURT: And you or no one else is to bring a cell phone in this
      courtroom.

Id. at 178.

      The Commonwealth informed the trial court that it intended to elicit from

Ms. Johnson what she observed:

      [COMMONWEALTH]: Yes. I would be asking to present this
      information to the jury. This is corroboration of what this witness
      has been going through: Calls, intimidation. When he makes the
      argument in his closing that people don't want to give their names,
      that that's some error on the Commonwealth, it's because of
      behavior like this that people don't want to come to court and

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J-S74029-17


      testify. And she doesn't want to give names of people in the
      courtroom. And it's direct evidence of what's happening while
      she's taking the stand.

            ....

      THE COURT: . . . So how do you propose to do that?

      [COMMONWEALTH]: Well, I will ask this witness, Your Honor, did
      she notice someone, you know, pulling out the phone in the
      courtroom and she alerted the court staff. After that I will have a
      detective here tomorrow to do a search warrant, have Your Honor
      sign it, look into the phone and testify to what he found on the
      phone.

            ....

      [APPELLANT]: Oh, I'm sorry, Your Honor. Please note my
      objection to the admission of any of that evidence regarding
      what happened with the phone. There is no evidence that my
      client knows the man in the red shirt, was acting at his direction
      or that it has anything to do with this case. The admission of that
      evidence would be purely prejudicial and not probative of any
      element in this case.

      THE COURT: You will give a curative instruction as to how
      they should receive it and I will tell them there is no evidence that
      your client solicited the behavior and that they may receive the
      evidence for one purpose only, for what effect, if any, it had on
      this witness' testimony.

      [APPELLANT]: Understood, Your Honor.

Id. at 179-81 (emphases added).

      Trial resumed, and the Commonwealth asked Ms. Johnson if she

“notice[d] any behavior from someone in the audience?” Id. at 182. She

explained that she saw a man put his phone up, causing her to tell a courtroom

officer. The trial judge then stated, “Ladies and Gentlemen, what you heard

must be received by you for one purpose only; that is what effect, if any, it

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had on Ms. Johnson’s testimony. There is no evidence that the defendant,

Hewlett, solicited this behavior.” Id. at 183.

       The Majority determines that Appellant waived his claim because “upon

the court’s request, counsel for Hewlett agreed to and drafted a curative

instruction.” Majority Opinion, at 9. I respectfully disagree. The trial judge

unmistakably denied Appellant’s motion to bar any mention of the incident,

and ordered Appellant to draft a curative instruction. The phrase “you will

give a curative instruction” cannot possibly be construed as a request.

       Additionally, the Majority appears to attach significance to the fact that

Appellant stated “Understood, Your Honor” after the trial court denied his

motion and ordered him to craft a curative instruction.1         If the Majority

construes that response as waiving any objection, I disagree with that

conclusion as well. In context, Appellant was plainly stating that he respected

and understood, but did not agree with, the trial court’s ruling. From now on,

litigants would be well-advised never to agree in any fashion with a court’s



____________________________________________


1 The Majority’s analysis is asymmetrical in that it finds that Appellant
“acquiesced to the trial court’s ruling” by furnishing a curative instruction and
thereby “waived any challenge to the court’s ruling.” Majority Opinion, at 9-
10. There is nothing to cure if Appellant was, in fact, waiving his objection to
the admission of such evidence. This is not a situation where the litigant
agreed to a curative instruction as an alternative to some other relief. See
Commonwealth v. Thoeun Tha, 64 A.3d 704, 713 (Pa.Super. 2013) (noting
that counsel “agreed to the trial court's proposed curative instruction in lieu
of granting the motion for judgment of acquittal”).



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ruling, lest this Court later mistake courtesy for capitulation. Finding waiver

on these terms discourages civility and promotes combativeness. In my view,

Appellant preserved his objection, and I would reach the merits of his claim.

       Nonetheless, I find no trial court error in allowing the Commonwealth to

ask Ms. Johnson what she observed. The trial judge was present and able to

discern if Ms. Johnson’s demeanor was affected by her observations, and I

agree that an instruction was warranted if her testimony was influenced by

what she saw.2 Furthermore, the trial court did not inform the jury what the

messages said, and there is no indication that the jury was aware that the

trial judge conducted his own review of the phone.3 I therefore agree that the

instruction was proper.


____________________________________________


2  As it relates to the subsequent search of the cell phone, it is impossible to
determine to what extent, if any, the discovery of the message influenced the
trial court’s decision to permit the introduction of Ms. Johnson’s observations.
In my view, the instruction was warranted whether actual intimidation
occurred or not, because it was Ms. Johnson’s behavior on the stand combined
with her subjective belief that justified the instruction. In short, whether Ms.
Johnson was actually intimidated is immaterial, the question is whether she
believed that she was being intimidated.

My finding that the court did not err therefore rests on the understanding that
the witness’s testimony was, in fact, affected in some fashion by her belief
that she was being intimidated, warranting an instruction to the jury to aid its
assessment of her demeanor. To the extent the Majority suggests that the
instruction was permitted because the search of McCall’s cell phone appeared
to corroborate that belief, I disagree.

3 While I find no error, I believe that it is preferable in such situations to
instruct the jury that there was no evidence that witness intimidation actually
occurred, and that the spectator may have been using the phone for a benign
purpose.

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J-S74029-17


       I now address the Majority’s footnote discussing the trial court’s search

of McCall’s cell phone. I would think that this Court would recognize the oddity

of a trial judge donning the hat of a police officer and searching a spectator’s

phone for evidence. The Majority, however, believes that the search was a

proper mechanism to enforce its cell phone restriction policy:

       We are aware of the recent decision of our Supreme Court,
       Commonwealth v. Fulton, __ A.3d __, 2018 WL 987963 (Pa.
       February 21, 2018), in which the Court held that evidence
       gathered from a cell phone powered on without a warrant could
       not be used against a defendant. Here, we make no determination
       as to whether the contents of the spectator’s cell phone could be
       used against either the spectator or the defendant, where the
       defense formulated a curative instruction that was accepted by
       the trial court and read to the jury. Rather, we simply affirm
       the authority of a trial court to enforce its order that a cell
       phone may not be used in its courtroom for any purpose,
       particularly during a trial and especially if the effect of such use is
       to intimidate a witness while she is testifying.

Majority Opinion, at 10 n.3 (emphasis added).

       It is difficult to read this language as anything other than an approval

of the search, which I do not join. First, it seems to me that McCall consented

to the search in the hopes that the judge would immediately return the phone.

N.T., 9/2/15, at 93 (“Your Honor, you can look in my phone right now.”).

Accordingly, we should decline to address whether the judge would have been

permitted to search without that consent, which he clearly intended to do.4



____________________________________________


4Moreover, McCall is obviously not a party to this litigation, and we lack any
advocacy on this point.


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J-S74029-17


Id. (“We’re going to find out, aren’t we? See what’s on his phone.”). Having

dipped our toe in these waters for no discernible reason, I must note my

disagreement with the Majority’s compulsion to “affirm the authority of a trial

court to enforce its order that a cell phone may not be used for any purpose.”

      The Majority assumes, with no citation to authority, that the trial judge’s

duty to oversee an orderly trial permitted a search of McCall’s cell phone. That

conclusion ignores Fourth Amendment concepts as applied to an issue that, to

my understanding, is grounded in an interplay of the First and Sixth

Amendments to the United States Constitution. “We start with the proposition

that it is a ‘public trial’ that the Sixth Amendment guarantees to the ‘accused.’

The purpose of the requirement of a public trial was to guarantee that the

accused would be fairly dealt with and not unjustly condemned.” Estes v.

Texas, 381 U.S. 532, 538–39 (1965). The High Court has also recognized a

First Amendment right to attend a criminal trial. Richmond Newspapers,

Inc. v. Virginia, 448 U.S. 555 (1980) (plurality); Globe Newspaper Co. v.

Superior Court for Norfolk Cty., 457 U.S. 596, 603 (1982) (“Although there

was no opinion of the Court in [Richmond Newspapers], seven Justices

recognized that this right of access is embodied in the First Amendment, and

applied to the States through the Fourteenth Amendment.”).           Hence, the

public may attend the trial, but “the atmosphere essential to the preservation

of a fair trial—the most fundamental of all freedoms—must be maintained at

all costs.” Estes, supra at 540.


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      I thus have no issue with the trial judge’s order or enforcement thereof.

Where I depart from my learned colleagues is their assumption that the court’s

authority to enforce its cell phone restriction justified the search. As indicated

by the foregoing authorities, I view the cell phone order as a permissible

restriction of otherwise-protected First Amendment activity due to the

overriding governmental interest in preserving the integrity of the trial. Thus,

McCall was subject to the cell phone regulation as a condition of entering the

courtroom.    The Majority missteps, however, by presuming that a lawful

restriction of First Amendment rights means that a spectator has somehow

checked his Fourth Amendment rights at the door as well.

      I will assume arguendo that the court was permitted to seize the phone

as opposed to employing other measures, such as ejecting McCall from the

courtroom or initiating contempt proceedings. Once seized, the interest in

enforcing decorum has been satisfied. Simply put, it is irrelevant why McCall

was using his cell phone. Perhaps McCall was intimidating the witness, but

maybe he was texting a friend, reading Twitter, or checking a sports score.

The trial judge did not know what McCall was doing with his phone, which is

precisely why he searched it.

      Judges are not vested with the power to investigate crime or to collect

evidence, and a judge’s role in the investigatory process is neutral.        See

Commonwealth v. Dougalewicz, 113 A.3d 817, 824 (Pa.Super. 2015)

(“[F]or a search to be reasonable under the Fourth Amendment or Article I,


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Section 8, police must obtain a warrant, supported by probable cause and

issued by an independent judicial officer, prior to conducting the search.”)

(quoting Commonwealth v. Gary, 91 A.3d 102, 107 (Pa. 2014)).

Furthermore, I recognize that discussing Fourth Amendment concepts of

unreasonable   searches   and   seizures     assumes   a   State    actor.     See

Commonwealth v. Demor, 942 A.2d 898 (Pa.Super. 2008) (off-duty

paramedic in uniform was not State actor when he directed driver to turn into

a parking lot while police responded to scene; therefore, exclusionary rule did

not apply). None of this is to say that the trial judge was a State actor for

these purposes or that McCall’s Fourth Amendment rights were violated. The

point is that the Majority does not recognize a distinction between preventing

witness intimidation, which the trial judge was surely authorized to do, and

prosecuting witness intimidation, which the trial judge has no authority to

do. There is no doubt that witness intimidation is a serious crime, 18 Pa.C.S.

§ 4952.   If the judge believed that McCall was committing that crime, he

should have referred the matter to the proper personnel.           It is practically

certain that many such persons were in the criminal courthouse halls, if not

the courtroom itself.

      In sum, there was no need to search the phone. Whether McCall was

intimidating a witness or using his phone for some benign purpose, his actions

interfered with the solemn administration of justice and warranted remedial

steps on that basis alone.    If the trial judge believed a crime was being


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committed, the proper course was to let law enforcement officials investigate

the matter. For these reasons, I cannot join those portions of the opinion.




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