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.

OPINION BY LAZARUS, J.:                                    FILED JUNE 05, 2018

        Richard Hewlett appeals from the judgment of sentence, entered in the

Court of Common Pleas of Philadelphia County, following his convictions of

one count of aggravated assault1 and two counts of violating the Uniform

Firearms act.2 After careful review, we affirm.

        The Trial court summarized the facts of this case as follows:

        [Hewlett] was inside the Eagle Bar, 3653 Germantown Avenue,
        Philadelphia, on December 24, 2014, at approximately 11:00 PM.
        Later, Tiffany Johnson entered the bar, and shortly thereafter,
        proceeded to the ladies’ restroom. In doing so, she walked past
        [Hewlett] who was standing near the back door, approximately
        five (5) feet away from the restroom. A conversation ensued and
        [Hewlett] threatened her and demanded money stating she would
        have to “start paying rent.” [Johnson] refused his demand and
        [Hewlett] engaged her in a further verbal dispute. Another patron
        interrupted the exchange and [Johnson] entered the ladies’
____________________________________________


1   18 Pa.C.S.A. § 2702(a)(3).

2   18 Pa.C.S.A. §§ 6105, 6106.
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     restroom. [Hewlett] followed her into the restroom and struck her
     in the back of the head three (3) times. She turned to face him
     and [Hewlett] continued to strike her with a grayish black
     handgun. [Hewlett] struck her in the face and [] head with the
     gun. During the assault, which lasted two (2) to three (3)
     minutes, [Hewlett] took her wallet, identification, [a]ccess card,
     and $900.00 []. Afterward, Hewlett walked out of the restroom
     and back into the bar. [Johnson] came after him and demanded
     that he return her wallet. A further physical confrontation ensued
     and defendant struck her several times with his fists. [Johnson]
     stated that although the facility was dimly lit, she could see her
     attacker’s face. The following day, [Johnson] went to Albert
     Einstein Medical Center and was treated for a contusion on the
     right side of her forehead, a scar on her wrist, and an abrasion on
     the right side of her neck. The next day, [Johnson] gave a written
     statement to Sergeant Vincent Dayton.

     On December 31, 2014, Police Officers Timothy Stephan and Keith
     White attempted to stop [Hewlett] after he disregarded a stop sign
     while operating a green 1998 Ford Explorer with a Pennsylvania
     license plate. The officers activated their lights and siren[,] but
     [Hewlett] failed to stop and instead accelerated to over fifty-five
     (55) miles per hour in a residential area. A high-speed chase
     ensued through several intersections, including the red light at Old
     York Road and Erie Avenue, and a stop sign at Percy and Butler
     Street. The vehicle struck the curb and began to roll along the
     sidewalk on the 3000 block of Delhi Street where[,] defendant
     exited and fled on foot. Officer Stephan pursued him and
     observed [Hewlett] clutching his waistband while fleeing over a
     distance of one (1) to two (2) blocks. During the foot chase,
     [Hewlett] briefly crouched between two parked vehicles in the
     3800 block of [North] 10th street.        When Officer Stephan
     attempted to arrest him, defendant shoved the officer and
     continued to flee.

     Officer Stephan pursued [Hewlett] into the unlocked property at
     3823 [North] 10th street. Once inside, [Hewlett] assumed a
     fighting stance and squared off with Officer Stephan. A physical
     confrontation followed with defendant throwing several punches
     and at one point lifting Officer Stephan from the ground and
     dropping him to within a foot of a nearby glass table. Officer
     Joseph Marion and his partner responded to a request for backup.
     When he saw [Johnson] throw Officer Stephan toward the table,
     Officer Marion entered the affray and exchanged blows with

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      [Hewlett]. Finally, when [Hewlett] continued to resist arrest,
      Officer Marion engaged a probe from his Taser. The first probe
      did not stop [Hewlett] so he deployed a second one, which
      stunned [Hewlett] and officers were able to hand-cuff him. After
      [Hewlett’s] arrest, Officer Stephan recovered a loaded silver and
      black .40 caliber Smith and Wesson handgun from the area where
      [Hewlett] had crouched between two parked vehicles in the 3800
      block of [North] 10th street during the foot chase.

      During her testimony at trial, [Johnson] observed that a spectator,
      Maurice McCall, was using his cellphone in the courtroom. The
      use of any electronic device in the courtroom is prohibited and
      signs are posted to that effect on the courtroom doors. After the
      jurors were escorted out of the courtroom, the prosecutor stated:
      “people don’t want to give their names . . . it is because of
      behavior like this that people don’t want to come to court and
      testify.”   Upon examination of the phone’s content, it was
      discovered that [McCall] was sending messages directly related to
      [Johnson’s] testimony. [McCall] wrote, “This bitch just got on the
      stand on rich grove (phonetic).” This court admitted that evidence
      but did so with a curative instruction to the jury as to how they
      were to consider it. Additionally, [Johnson] testified that she
      received calls from [Hewlett] prior to her testimony at trial.
      During one of those calls, [Hewlett] identified himself as “Rick”
      and requested that [Johnson] not come to court and he told her
      that he would pay her. The jury also heard prison recordings of
      [Hewlett’s] telephone conversations. A stipulation as to the
      authenticity of the recordings was presented to the jury. One of
      the calls included a conversation wherein [Hewlett] stated, “They
      found a gun with no clip. The clip [is] on 10th street some fucking
      where. You know what I’m saying.” [Hewlett] also stated that he
      “was fighting the cops. I knocked like two, three cops up.”

Trial Court Opinion, 3/1/17, at 2-4 (citations to record omitted).

      On September 1, 2016, following a jury trial, the jury convicted Hewlett

of aggravated assault of a police officer and carrying a firearm without a

license. On the same date, pursuant to a stipulated waiver trial at which the

parties stipulated to Hewlett’s prior conviction of robbery and consequent

ineligibility to possess a firearm, the trial court convicted him of possession of


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a firearm by a prohibited person.     On November 6, 2015, the trial court

imposed consecutive terms of imprisonment of five to ten years for aggravated

assault, five to ten years for possession of a firearm by a prohibited person,

and three and one-half to seven years for carrying a firearm without a license,

for an aggregate term of 13½ to 27 years’ imprisonment. On November 13,

2016, Hewlett filed a post-sentence motion, which the court denied by

operation of law on March 15, 2016.      On March 16, 2016, Hewlett timely

appealed. Both Hewlett and the trial court have complied with Pa.R.A.P. 1925.

On appeal, Hewlett raises the following issues:

      1. Did the Commonwealth present sufficient evidence to find
      [Hewlett] guilty beyond a reasonable doubt?

      2. Did the trial court abuse [its] discretion when it allowed the
      Commonwealth to present evidence from a spectator’s cell phone
      that wasn’t relevant to [Hewlett] [sic] and [thus,] the prejudicial
      effect of the evidence outweighed the probative value?

Brief of Appellant, at 3.

      Hewlett first raises a sufficiency of the evidence claim. Our standard for

reviewing challenges to the sufficiency of the evidence is well-settled.

      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence. Any doubts regarding a defendant’s guilt may be
      resolved by the fact-finder unless the evidence is so weak and
      inconclusive that as a matter of law no probability of fact may be
      drawn from the combined circumstances. The Commonwealth

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      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the trier 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. Caban, 60 A.3d 120, 132-33 (Pa. Super. 2012), quoting

Commonwealth v. Quel, 27 A.3d 1033, 1037-38 (Pa. Super. 2011).

      First, Hewlett avers that the evidence was insufficient to support a

conviction for aggravated assault against a police officer because his “actions

rise no higher than resisting arrest . . . as the evidence does not support that

the appellant ‘attempted to cause or intentionally or knowingly caused bodily

injury to any of the officers’ involved in this case.” Brief of Appellant, at 14.

      In Pennsylvania, an individual is guilty of aggravated assault against a

police officer if he “attempts to cause or intentionally or knowingly cause a

bodily injury to a police officer . . . in the performance of duty[.]” 18 Pa.C.S.A.

§ 2702(a)(3).       To prove aggravated assault against a police officer “[t]he

Commonwealth need not establish that the [officer] actually suffered bodily

injury;   rather,    it   is   sufficient    to   support   a   conviction   if   the

Commonwealth established an attempt to inflict bodily injury.”

Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa. Super. 1994)

(emphasis added).         The term “officer” is defined as “the officers, agents,

employees and other persons referred to in subsection as follows: (1) Police

Officer[.]” 18 Pa.C.S.A. § 2702(c)(1).

      The Crimes Code defines the mens rea of “intent” as follows:


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      A person acts intentionally with respect to a material
      element of an offense when:

             (i) if the element involves the nature of his conduct or a
      result thereof, it is his conscious object to engage in conduct
      of that nature or to cause such a result; and

            (ii) if the element involves the attendant circumstance, he
      is aware of the existence of such circumstances or he believes or
      hopes that they exist.

18 Pa.C.S.A. § 302(b)(1) (emphasis added).

      When Officer Stephan confronted Hewlett in the property located at

3823 North 10th Street, Hewlett raised his hands, clenched them into fists,

and assumed a fighting stance. Hewlett threw a punch at Officer Stephan and

threw the officer’s body towards a glass table, which he narrowly avoided.

Immediately afterward, Officers Marion and Ortiz entered the property.

Hewlett punched Officer Marion in the face, in the “area in between the nose

and the upper lip.” N.T. Jury Trial, 9/2/15, at 43. After Hewlett struck Officer

Marion’s face, Officer Ortiz tackled Hewlett to the ground. Although no further

“significant strikes” contacted any of the officers, Hewlett continued to kick,

elbow and punch the three officers. Id. at 21. In light of the foregoing, the

evidence presented by the Commonwealth was clearly sufficient to sustain a

conviction of aggravated assault against a police officer. Caban, supra.

      Next, Hewlett avers that the evidence is insufficient to sustain a

conviction for carrying a firearm without a license and possession of a firearm

by a prohibited person.

      The Uniform Firearms Act provides, in relevant part, as follows:


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     § 6105. Persons not to possess, use, manufacture, control, sell
     or transfer firearms

     (a) Offense Defined.--

           (1) A person who has been convicted of an offense
           enumerated in subsection (b), within or without this
           Commonwealth, regardless of the length of sentence or
           whose conduct meets the criteria in subsection (c) shall not
           possess, use, control, sell, transfer or manufacture or obtain
           a license to possess, use, control, sell, transfer or
           manufacture a firearm in this Commonwealth.

     (b) Enumerated offenses.—The following offense shall
     apply to subsection (a):

                                *     *      *

     Section 3701 (relating to robbery)[.]

                                *     *      *

     § 6106. Firearms not to be carried without a license.

     (a) Offense defined.—

           (1) Except as provided in paragraph (2), any person who
           carries a firearm in any vehicle or any person who carries a
           firearm concealed on or about his person, except in his place
           of abode or fixed place of business, without a valid and
           lawfully issued license under this chapter commits a felony
           of the third degree.

18 Pa.C.S.A. §§ 6105(a) and (b), 6106(a).

     In order to convict a defendant for possession of a firearm by a

prohibited person, the Commonwealth must prove the defendant was

previously convicted of a specific offense enumerated in section 6105.

Commonwealth v. Jemison, 98 A.3d 1254, 1261 (Pa. 2014). In order to



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convict   a   defendant   for   carrying   a   firearm   without   a   license,   the

Commonwealth must prove: that the weapon was a firearm; that the firearm

was unlicensed; and that where the firearm was concealed on or about the

person, it was outside his home or place of business. Commonwealth v.

Parker, 847 A.2d 745, 750 (Pa. Super. 2004).             The Commonwealth may

sustain its burden of proving every element of a crime beyond a reasonable

doubt by means of wholly circumstantial evidence. Commonwealth v. Wise,

171 A.3d 784, 790 (Pa. Super. 2017).

      Here, Hewlett exited a vehicle, following a high-speed chase, and fled

from police while clutching his waistband.          Police, during their pursuit,

observed Hewlett crouching between two vehicles and viewed him place an

item between the two parked cars. Later, police recovered a .40 caliber Smith

and Wesson handgun from the area where Hewlett had been crouching.

Additionally, Hewlett admitted to carrying a firearm in recorded prison

telephone conversation with his girlfriend. In light of Hewlett’s admission and

the police officers’ observations, a fact-finder could reasonably conclude that

Hewlett had been in possession of the handgun.           See Commonwealth v.

Schley, 136 A.3d 511, 519 (Pa. Super. 2016), quoting Commonwealth v.

Widmer, 744 A.2d 745, 751 (Pa. 2000) (Commonwealth is entitled at trial to

all reasonable inferences arising from the evidence).          Furthermore, both

parties stipulated to Hewlett’s prior conviction of robbery and consequent

ineligibility to possess a firearm. 18 Pa.C.S.A. § 6106.




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      Hewlett’s only cogent challenge to the sufficiency of the evidence is that

“a discrepancy [existed] as to the location of the recovered firearm” where

police “testified . . . that [it] was recovered on the 3800 block of 10th [S]treet

however, police paperwork stated that [it] was recovered from the 3800 block

of Delhi Street.” Brief of Appellant, at 16. This argument is without avail.

Mere conflict in the evidence does not render it insufficient; any discrepancies

are for the fact finder to resolve. Commonwealth v. Hargrave, 745 A.2d

20, 22 (Pa. Super. 2000).

      Hewlett’s final claim on appeal is that the trial court abused its discretion

when it allowed the Commonwealth to present evidence from a spectator’s

cell phone that was irrelevant and prejudiced his defense. Hewlett has waived

this claim on appeal.

      At his jury trial, Hewlett objected to the Commonwealth’s request to

present evidence of a spectator’s cell phone; however, upon the court’s

request, counsel for Hewlett agreed to and drafted a curative instruction.

Specifically, Hewlett’s draft curative instruction, which was adopted by the

trial court, stated that any testimony regarding a spectator’s attempt to

photograph Johnson be considered only for the “effect, if any, it had” on the

witness’s testimony and that “there is no evidence that [Hewlett] . . . solicited

this behavior.” N.T. Jury Trial, 9/2/15, at 181. Hewlett acquiesced to the trial

court’s ruling and complied with its instruction to furnish it with a curative




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instruction. Therefore, he has waived any challenge to the court’s ruling.3

Commonwealth v. Einhorn, 911 A.2d 960, 976 (Pa. Super. 2006), citing

Commonwealth v. Hill, 388 A2d 689, 692 (Pa. 1978) (defendant who

requests and receives relief for alleged error may not seek additional relief at

later time). See also Commonwealth v. Hallowell, 439 A.2d 1140, 1141

(Pa. 1981) (litigant who seeks and receives specific relief for a given error

cannot seek additional relief at a later time), citing Commonwealth v.

Hoskins, 403 A.2d 521, 526 n. 12 (Pa. 1978) (“since [appellant] failed to do

anything more than object and request to the striking of testimony in some

instances, he received all the relief requested and cannot now seek further

relief.”).4
____________________________________________


3 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.

4 Even if Hewlett had not waived this claim, it is meritless. At trial, Johnson
noticed a man in the courtroom texting and attempting to photograph her on
his cell phone. The trial court stopped the proceedings, excused the jury,
examined the man’s cell phone and found a recent text message in which he
told an unknown party that “[Johnson] just got on the stand on rich grove
(phonetic).” Consequently, the trial court confiscated the phone and allowed
the Commonwealth to elicit evidence of the spectator’s use of the phone in
the courtroom on the condition that Hewlett draft a curative instruction for the



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       Judgment of sentence affirmed.

       Judge Ransom joins this Opinion.

       Judge Bowes files a Concurring Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/5/18




____________________________________________


jury. The text message was not submitted to the jury, but the Commonwealth
was ultimately permitted to offer Johnson’s testimony that she saw a man in
the courtroom using his phone during her testimony and then attempt to
photograph her.

It was well within the sound discretion of the trial court to allow evidence that
bore on Johnson’s credibility and the effect that the spectator’s actions had on
her testimony. Pa.R.E. 607; Commonwealth v. Golphin, 161 A.3d 1009,
1026 (Pa. Super. 2017) (evidence that bears on the credibility of witness is
relevant and admissible). Her immediate report of the incident to the deputy
sheriff demonstrates that she was disturbed and/or afraid of the spectator’s
attempt to record her while providing testimony. The jury presumably
followed the curative instruction Hewlett drafted, and thus, it eliminated any
potential prejudice. Commonwealth v. Poplawski, 130 A.3d 697, 717 (Pa.
2015), citing Commonwealth v. Carter, 643 A.2d 61, 77 (1994) (trial court’s
instruction to jury not to consider statements as evidence cured any potential
prejudice).

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