189 A.3d 1004
Pa. Super. Ct.2018Background
- On Dec. 24, 2014, Tiffany Johnson testified that Richard Hewlett followed her into a bar restroom, struck her multiple times with a handgun, and robbed her of cash and cards; she sought medical treatment and later gave a written statement.
- On Dec. 31, 2014, police attempted to stop Hewlett after a traffic infraction; he fled at high speed, exited a rolling vehicle, fled on foot clutching his waistband, and engaged officers in a violent struggle inside an unlocked property.
- Officers recovered a loaded .40 caliber Smith & Wesson handgun from the area where Hewlett had crouched during the foot chase; recorded inmate phone calls included Hewlett admitting to carrying a gun and fighting police.
- Jury trial (Sept. 1, 2016) resulted in convictions for aggravated assault of a police officer and carrying a firearm without a license; a stipulated bench trial conviction followed for possession of a firearm by a prohibited person based on a prior robbery conviction.
- Sentence: consecutive terms totaling 13½ to 27 years. Post-sentence motion denied; timely appeal followed.
- During trial, a spectator (Maurice McCall) used a cell phone; the judge inspected the phone, found a text referencing the testifying witness, ordered the phone held, and permitted limited testimony about the spectator’s phone use with a curative instruction drafted by defense counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated assault of a police officer | Commonwealth: evidence shows Hewlett punched and fought officers, attempted to inflict bodily injury while they were performing duties | Hewlett: conduct was mere resistance to arrest, not attempt to cause bodily injury to officers | Held: Conviction affirmed — evidence (punches, lifting/dropping an officer, continued kicks/strikes) sufficed to show attempt to inflict bodily injury |
| Sufficiency of evidence for firearm offenses (carrying unlicensed firearm; possession by prohibited person) | Commonwealth: circumstantial evidence (flight clutching waistband, observing concealment, gun recovered where he crouched, recorded admission, stipulation of prior robbery) proves possession and unlawful carrying | Hewlett: inconsistencies about location of recovered gun and lack of direct proof of possession defeat proof beyond a reasonable doubt | Held: Conviction affirmed — circumstantial evidence and admission sufficed; evidentiary discrepancies go to credibility, not sufficiency |
| Admission of testimony about spectator’s cell-phone conduct (witness intimidation) | Commonwealth: testimony showing that the spectator used phone to photograph/text during testimony is relevant to witness credibility and explains reluctance to identify people | Hewlett: admission was irrelevant and highly prejudicial; no evidence linking Hewlett to spectator; objected to introduction of phone evidence | Held: Majority: claim waived because defense drafted and agreed to a curative instruction; in any event, no abuse of discretion — testimony admitted for limited purpose; concurring judge would reach merits and also find no abuse but criticizes the judge’s phone search |
| Trial judge’s search/inspection of spectator’s phone | Commonwealth implied necessity to inspect for intimidation evidence | Hewlett (and concurring opinion): trial judge searching a spectator’s phone raises Fourth Amendment and neutrality concerns; search/investigatory role inappropriate without warrant | Held: Majority declines to decide constitutionality of using phone contents against defendant (citing Fulton), but affirms authority to enforce no-phone courtroom rule; concurring judge dissents from endorsing judge-conducted phone searches and would have avoided endorsing that practice |
Key Cases Cited
- Commonwealth v. Caban, 60 A.3d 120 (Pa. Super. 2012) (standard for sufficiency review and deference to jury credibility findings)
- Commonwealth v. Jemison, 98 A.3d 1254 (Pa. 2014) (elements required for conviction under 18 Pa.C.S. § 6105)
- Commonwealth v. Parker, 847 A.2d 745 (Pa. Super. 2004) (elements for carrying a firearm without a license)
- Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000) (permitting reasonable inferences from circumstantial evidence)
- Commonwealth v. Poplawski, 130 A.3d 697 (Pa. 2015) (jury instruction can cure potential prejudice from contested evidence)
- Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018) (addressing use of evidence gathered from a powered-on cell phone without a warrant)