J-S22033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : PATRICK HICKSON : : Appellant : No. 2539 EDA 2021
Appeal from the Judgment of Sentence Entered November 8, 2021 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0002711-2018
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED DECEMBER 28, 2022
Patrick Hickson (“Hickson”) appeals from the judgment of sentence
imposed following his convictions for attempted first-degree murder, two
counts of aggravated assault, persons not to possess firearms, carrying
firearms without a license, possessing an instrument of crime, terroristic
threats, and recklessly endangering another person.1 We affirm.
On an afternoon in May 2018, Hickson and two men were in the parking
lot of a Coatesville restaurant when Dayvon Brown (“Brown”), arrived to pick
up food. See N.T., 8/10/21, at 8-13, 21. Brown talked to the two men who
had come with Hickson and then to Hickson, whom he had known for years as
“Peanut.” See id. at 173-86; Commonwealth Exhibits C-70, C-71. Their
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1See 18 Pa.C.S.A. §§ 901(a), 2502(a), 2702(a)(1), 2702(a)(4), 6105(a)(1), 6106(a)(1), 907, 2706(a)(1), 2705. J-S22033-22
discussion became heated and “Peanut” repeatedly threatened to kill Brown.
Brown saw “Peanut” reach for a gun that was sticking up from his waistband,
and Brown punched him in the face. Brown turned away and then heard four
gunshots, all of which were subsequently determined to have been fired from
the same gun. See N.T., 8/10/21, at 173-86; N.T., 8/11/21, 200-01;
Commonwealth Exhibits C-70, C-71.
After hearing the first shot, Brown dropped to the ground, crawled to
his SUV, and got in. He fled the scene before the police arrived. See N.T.,
8/10/21, at 38, 115, 128, 132-33, 138, 163-164, 170; N.T., 8/11/21, at 6,
38, 109-13. The police found Brown’s SUV ten minutes later. It had a bullet
strike mark on its exterior, and a portion of a bullet lodged under an inside
grille. See N.T., 8/11/21, at 84-89, 117-18.
Three men fled the scene including the gunman, who was wearing a
white sleeveless T-shirt according to an eyewitness. See N.T., 8/10/21, at
40-43, 58-64, 73, 76-77; N.T., 8/11/21, at 6, 12, 40-43, 49. Police arrested
Brown days later for an unrelated offense. He gave two statements
concerning the shooting. See id. at 173-86; Commonwealth’s Exhibits, C-70,
C-71.2
2 At trial, Brown recanted his statements including his identification of “Peanut.” His inconsistent prior videorecorded statements were admitted as substantive evidence pursuant to Commonwealth v. Lively, 610 A.2d 7, 10 (Pa. 1992) (holding that prior inconsistent statements recorded are admissible as substantive evidence). See N.T., 8/10/21, at 177.
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A little more than one month later, Officer Jose Colon of the Coatesville
Police Department was on patrol in a marked police car and saw Hickson,
whom he knew as “Peanut.” See N.T., 8/12/21, at 36, 39-40, 44-47. When
Officer Colon pulled up to him, Hickson fled. Another officer arrested him and
found him to be in possession of drugs. See id. at 14-19, 21, 25, 28. The
parties stipulated at trial that on the day of the shooting, Hickson did not have
a valid license to possess a firearm. See id. at 69.
A jury convicted Hickson of the above-listed offenses. The trial court
imposed an aggregate term of ten to twenty years of imprisonment. Hickson
filed a timely notice of appeal, and both he and the trial court complied with
Pa.R.A.P. 1925.
On appeal, Hickson raises the following issues for our review:
1. Did the trial court commit error by commenting on [Hickson’s] use of photographs . . . because said comments tainted and swayed the jury’s fact-finding function?
2. Did the trial court err[] by allowing the introduction of consciousness of guilt evidence and the related jury instruction?
3. Was the evidence produced at trial insufficient to sustain [Hickson’s] convictions for attempted murder and aggravated assault?
Hickson’s Brief at 6.
In his first issue, Hickson asserts the trial court improperly commented
on his use of Commonwealth’s Exhibit C-36D, a photograph of the view from
the crime scene to a neighboring house, which the Commonwealth previously
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introduced at trial to illustrate the conditions around the restaurant and the
surrounding area. See N.T., 8/10/21, at 16-18.3 Specifically, on direct
examination, Tina Keen (“Keen”) testified that she heard the shooting from
her home, and saw three men running from the area of the restaurant,
including one with a gun. See N.T. 8/11/21, at 4-13. On cross-examination,
Hickson attempted, in relevant part, to impeach Keen’s testimony about what
she had seen by inquiring, using Exhibit C-36D, whether she had been able to
see the scene clearly. See id. at 18-22. When presented with Exhibit C-36D,
Keen initially stated that it was a fair and accurate depiction of the view from
the restaurant to her house, see id. at 23-24, and the following exchange
occurred:
Q. Now, Ms. Keen , again, this is C-36D. This is your house here?
A. Correct.
Q. These are two trees in front of your house?
A. That one is not a tree in front of our house. This portion – this bright green actually belongs to a tree that’s over here, so it’s sort of inaccurate.
Q. So, it’s a branch hanging down?
A. Whenever this picture was taken, it was.
Q. And there’s this tree though in front of your house, correct?
A. Correct. ____________________________________________
3 Hickson objected to the admission of the photographs because the prosecution did not introduce evidence about when they were taken. See N.T., 8/10/21, 17-18.
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Q. And in relation – and if you could use your laser pointer, I’d appreciate it. Your front door is where?
A. From this vantage point you took this picture, it’s about here.
Q. Okay.
The Court: These are 2021 photographs, are they not, this one? Commonwealth team, isn’t this a 2021 photograph?
[Prosecutor]: It is, your Honor, yes.
The Court: From July of this year?
[Prosecutor]: Yes.
A. These – this is a – perspective on this picture, I feel is a little off. These trees are tall enough that I can easily walk under those trees. So, they’re not low to the ground at all.
Q. Well, again, we’re looking at it from this angle.
The Court: And [defense counsel], I very seldom – this photograph is 30[-]some months different from the date of this incident, so I’m not sure of the value. The Commonwealth hasn’t objected, but my point is trees grow, branches grow. If you have a photograph from 2018, why don’t you use it?
Q. Your Honor, I did ask the witness if this was a fair and accurate representation of her house.
The Court: You didn’t ask her about the size of the trees compared to three years ago. Let’s move [] on.
N.T. 8/11/21,at 24-26 (emphases added).
Hickson’s issue assigns error to the trial court’s statement that “trees
grow, branches grow,” which, he says, implied that the photograph was not
an accurate depiction of the witness’s vantagepoint, strengthened Keen’s
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credibility, swayed the jury’s fact-finding function, and fundamentally
impacted the outcome of the trial in favor of the Commonwealth.4
As an initial matter, we note that Hickson made no objection to the trial
court’s remarks, and therefore deprived the court of the opportunity to correct
any possible error. His challenge to the trial court’s remark, first raised on
appeal is, thus, waived. See Pa.R.A.P. 302(a) (providing that issues not
raised in trial court are waived and cannot be raised for the first time on
appeal).
Even if reviewable, the trial court’s remarks would not merit relief. A
trial court has a right and sometimes a duty to question a witness to clarify
existing facts, though not in a biased or protracted manner. See
Commonwealth v. King, 549 A.2d 195, 197 (Pa. Super. 1998). A court
must exercise that right with caution, and with due regard for the common
4 Hickson does not challenge the trial court’s ruling that the photograph was inadmissible to cross-examine Keen because she could not authenticate it. Authentication of an exhibit, such as a photograph, may be provided where the proponent presents evidence sufficient to support a finding that the item is what the proponent claims it is. See Pa.R.E. 901(a), (b)(1); see also Commonwealth v. Jackson, 283 A.3d 814, 818 (Pa. Super. 2022). A court does not abuse its discretion where it declines to admit into evidence a photograph that a witness testifies is not an accurate depiction of what it purports to be. See Commonwealth v. Rosarius, 771 A.2d 29, 32 (Pa. Super. 2001). Keen testified that the photograph was not an accurate depiction of her view of the crime scene on the date of the crime. That testimony constituted a proper basis for the trial court to preclude its use to cross-examine her. Id.
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law preference for clarification by adversarial cross-examination. See id.
Trial courts should not ask questions that usurp or unduly encroach upon the
fact-finding function of the jury by suggesting judicial disbelief of particular
testimony or an opinion on one or more issues for one side against another.
Id. (internal citations omitted). Within these constraints, the law permits a
trial court to participate in trial proceedings to ensure that justice is done, in
recognition of the fact that “a courtroom is a court of justice and not just a
battleground for the tilting of attorneys or a testing of their wits and oratory,
to so limit it would often jeopardize or defeat justice.” Id. (internal quotations
and citations omitted). Not every unwise remark made by a court in the
course of trial compels a mistrial. Even where a defendant has timely
requested a mistrial (here, Hickson did not) that relief is only available where
the remark is prejudicial, i.e., it is of such a nature, or delivered in such a
manner that it may reasonably be held to have deprived the accused of a fair
and impartial trial. See Commonwealth v. Jones, 683 A.2d 1181, 1191
(Pa. 1996).
In its opinion, the trial court states that its remarks did not taint or sway
the jury, but ensured that the jury was considering only relevant and proper
evidence. See Trial Court Opinion, 1/31/22, at 4-7. We do not agree with
Hickson’s assertion that the trial court’s comment strengthened Keen’s
credibility, swayed the jury’s fact-finding function, and fundamentally
impacted the outcome of the trial in favor of the Commonwealth. It was
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Keen’s assertion that the photograph was “sort of inaccurate” that led the trial
court to inquire about when the photograph had been taken. Immediately
after the trial court ascertained that the photograph had been taken thirty or
so months after the incident, Keen stated that the photograph’s perspective
was “a little off.” See N.T., 8/11/22, at 25. She continued, “These trees are
tall enough that I can easily walk under those trees. So, they’re not low to
the ground at all.” See id.
Keen’s testimony supported the trial court’s observation that trees and
branches grow. Additionally, the court made its commonsense remark after
Hickson persisted in cross-examining the witness with the photograph, despite
her repeated statements indicating that she could not authenticate it because
it was “inaccurate” or “a little off.” The trial court’s statement did not express
judicial disbelief of particular testimony, but simply stated why Keen could not
declare that the photograph accurately depicted her vantage at the time of
incident. The trial court’s comment served the interests of clarification and
placed clarity above the “tilting of attorneys”. See King, 549 A.2d at 197
(citation omitted). Thus, we conclude that the trial court’s comment did not
prejudice Hickson, particularly in light of other evidence demonstrating that
Hickson shot at the victim.5 Accordingly, we find no merit to Hickson’s claim
5 Commonwealth v. Hammer, 494 A.2d 1054 (Pa. 1985), which Hickson cites, is distinguishable. There, the trial court repeatedly interrupted defense counsel’s examination of his client: once for the court to advocate in favor of (Footnote Continued Next Page)
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that the trial court improperly bolstered Keen’s testimony or biased the jury
in the Commonwealth’s favor.
Hickson’s second issue asserts that the trial court abused its discretion
by admitting evidence of his flight from an arresting officer to show
consciousness of guilt, and also challenges the trial court’s flight instruction.
Hickson asserts that he fled not because of his involvement in the incident but
because he had drugs in his possession, did not know he was wanted for the
crime, and his Fifth Amendment rights would have been implicated had he
testified that he fled from the officer because he was in possession of drugs.
We first examine whether Hickson preserved his appellate challenge to
the trial court’s evidentiary ruling. The record shows that one day before the
prosecution introduced evidence of his flight from Officer Colon, Hickson
asserted that the evidence would be cumulative and “prejudicial,” and that
a police statement Hammer was disputing; a second time for the court to suggest an inconsistency in Hammer’s testimony; and a third time for the court to question Hammer in a manner to reinforce a point the Commonwealth had already made, questioning his state of mind, and undermining a defense expert. See id. at 1061-64. Here, the trial court did not offer an opinion about critical issues in the case. Nor do we agree with Hickson’s assertion that the trial court “concluded for the jury” that the photograph was not an accurate depiction. Reply Brief at 2 (emphasis in original). It was the witness’s own testimony, not the trial court’s statement, that established that the photograph was not an accurate depiction of conditions at the time of the crime.
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mere presence and flight after a crime did not demonstrate consciousness of
guilt. See N.T., 8/11/21, at 125.6
Hickson did not assert, at the time of his objection, before or after
Officer Colon’s testimony, or in his Rule 1925(b) statement, the claim he now
asserts on appeal, i.e., that the flight evidence was inadmissible because to
refute it he would have had to acknowledge his exposure to criminal liability
in another case. Hickson may not have review of this argument against the
admissibility of the flight evidence first raised on appeal. See
Commonwealth v. McFalls, 251 A.3d 1286, 1293 (Pa. Super. 2021) (stating
that an appellant may not raise a different theory of relief for the first time on
appeal), appeal denied, 278 A.3d 301 (Pa. 2022); Commonwealth v.
Rivera, 238 A.3d 482, 499 (Pa. Super. 2020) (holding that this Court cannot
review a legal theory offered in support of a claim where that theory was not
presented to the trial court), appeal denied, 250 A.3d 1158 (Pa. 2021).
Even if reviewable, Hickson’s challenges to the evidence of his flight
would not merit relief. The admissibility of evidence is in the trial court’s
discretion and will not be reversed absent an abuse of that discretion. See
Commonwealth v. DeJesus, 880 A.2d 608, 614 (Pa. 2005). An abuse of
6 Hickson’s assertion that (“[w]e’ve already got it on camera, people fleeing or running”), see N.T., 8/11/21, at 125, was apparently an objection to the admission of video evidence of his flight from the crime scene, rather than the evidence the prosecution sought to introduce of his flight from Officer Colon one month later.
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discretion exists where the trial court overrides or misapplies the law, or where
the judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will. See Commonwealth v. Norton, 201 A.3d 112,
120 (Pa. 2019). Evidence is admissible to establish a defendant’s
consciousness of guilt where he committed a crime, knew he was wanted and
fled or concealed himself. See Commonwealth v. Lukowich, 875 A.2d
1169, 1173 (Pa. Super. 2005). A jury may infer from the circumstances
surrounding his flight that a defendant was aware of his fugitive status. See
Commonwealth v. Hudson, 955 A.2d 1031, 1036 (Pa. Super. 2008).
In this case, Officer Colon was in uniform in a marked police car when
Hickson, whom he knew as “Peanut,” fled upon seeing him before hearing the
reason the officer wanted him to stop. See N.T., 8/12/21, at 17-19, 28-29.
Further, Hickson himself elicited, over a prosecution objection, Officer Colon’s
testimony that he was “pretty sure” that a member of the police department
had previously attempted to serve an arrest warrant on Hickson at Hickson’s
house. See id. at 30. Additionally, Hickson, not the prosecutor, elicited
testimony that he was found with drugs when he was arrested. See id. at
28. Thus, there was evidence that Hickson committed the crimes charged in
this case, knew that he was wanted, and fled to avoid apprehension.
Accordingly, the trial court did not abuse its discretion by admitting evidence
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of Hickson’s flight. See Hudson, 955 A.2d at 1036; Lukowich, 875 A.2d at
1173.7
Hickson next asserts that the trial court abused its discretion by giving
a flight instruction because there was allegedly no evidence that he knew
about the outstanding warrant for his arrest.
To preserve a challenge to a jury instruction, an appellant must have
objected to the charge at trial. See Commonwealth v. Davis, 273 A.3d
1228, 1246 (Pa. Super. 2022). A general objection to a jury charge will not
preserve an issue for appeal, specific exception must be taken to the allegedly
improper language. See Pa.R.A.P. 302(b); see also Pa.R.Crim.P. 647(C)
(providing that no portion of a jury instruction may be assigned as error unless
specific objections are made thereto before the jury retires to begin its
deliberations).
The trial court found that Hickson waived his claim by failing to raise an
objection to the instruction. See Trial Court Opinion, 1/31/22, at 7-8
(unnumbered). We agree with the trial court that Hickson did not preserve
his appellate challenge to the trial court’s flight instruction. See Trial Court
Opinion, 1/31/22, at 8. Hickson did not object to the instruction and his claim
7 Hickson cites no law for the proposition that properly admissible other crimes evidence is excludable because a defendant would have to implicate himself in another crime to refute that evidence. Moreover, having himself elicited Officer Colon’s testimony about the drugs found on his arrest, Hickson had the means to suggest an alternate reason for his flight without offering his own allegedly compromising testimony.
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is therefore unreviewable on appeal. See Davis, 273 A.3d at 1246; see also
Pa.R.A.P. 302(b); Pa.R.Crim.P. 647(C).8
Even if Hickson’s unpreserved jury instruction challenge were
reviewable, it would fail. A trial court has broad discretion in formulating jury
instructions where it presents the law to the jury in a clear, adequate, and
accurate manner. See Lukowich, 875 A.2d at 1174. We review jury
instructions for an abuse of discretion or error of law. See Commonwealth
v. Rush, 162 A.3d 530, 540 (Pa. Super. 2017). Trial courts are invested with
broad discretion in crafting jury instructions, and such instructions will be
upheld where they clearly and accurately present the law to the jury. See
Commonwealth v. Simpson, 66 A.3d 253, 274 (Pa. 2013). A reviewing
court considers the entire charge as a whole, rather than isolated fragments,
and considers it against the background of all evidence presented to determine
whether error is committed, i.e., if the instruction as a whole is inadequate,
unclear, or has a tendency to mislead or confuse the jury on a material issue.
See Commonwealth v. Grimes, 982 A.2d 559, 564 (Pa. Super. 2009). A
flight instruction is proper where a person has reason to know that he was
wanted for a crime and flees or conceals himself from law enforcement
8 Hickson claims he preserved his jury instruction issue by objecting to the admission of evidence of his flight. The law is otherwise. See Commonwealth v. Baker, 963 A.2d 495, 505-06 (Pa. Super. 2008) (holding that an appellant does not preserve an objection to a jury instruction where he states a request for a jury instruction but does not object to the instruction the trial court gives).
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authorities. See Commonwealth v. Tha, 64 A.3d 704, 714 (Pa. Super.
2013).
The trial court gave a flight instruction that was permissive, allowing the
jury to determine whether the flight evidenced consciousness of guilt and
informing them that flight alone was not sufficient to prove guilt:
[A] defendant’s subsequent flight from the scene of a crime . . . is not sufficient to establish that a defendant committed a crime. The defendant’s presence at the scene of the crime or his subsequent flight or knowledge, however, may be considered by the jury along with other evidence in the case. There was evidence, including[] the testimony of Officer Jose Colon that tended to show that the defendant fled from the police . . .. the credibility, weight and effect of this evidence is for you to decide.
Generally speaking, when a crime has been committed and a person thinks he is or may be accuse of committing it and he flees or conceals himself, such flight or concealment is a circumstance tending to prove the person is conscious of guilt. Such flight or concealment does not necessarily show consciousness of guilt in every case. A person may feel or hide for some other motive and may do so even though innocent. Whether the flight or concealment in this case should be looked at as tending to prove guilt depends upon the facts and circumstances of this case and especially upon motives that may have prompted the flight or concealment.
N.T., 8/12/21, 160-62 (emphases added).
Evidence that the police had attempted to serve an arrest warrant at
Hickson’s house and that Hickson fled from Officer Colon tended to show he
had reason to know that he was wanted for this crime and fled or concealed
himself from authorities. The trial court’s closing instruction, which allowed
the jury to determine whether Hickson’s actions manifested consciousness of
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guilt, closely followed the Standard Criminal Jury Instruction § 3.14, and was
properly issued under the facts of this case. See Tha, 64 A.3d at 714.9 Thus,
even had Hickson preserved his challenge to the trial court’s instruction, he
would not be due relief.
In his final issue, Hickson contends that the evidence was insufficient to
support his convictions for attempted murder and aggravated assault because
the evidence did not show his specific intent to kill or seriously injure the
victim. He directs our attention to the absence of testimony that he pointed
his gun at the victim while shooting.
When reviewing a sufficiency of the evidence claim, an appellate court
determines whether the evidence, viewed in the light most favorable to the
Commonwealth, and with all reasonable inferences therefrom, is sufficient to
establish every element of the offense beyond a reasonable doubt. See
Commonwealth v. Haney, 131 A.3d 24, 33 (Pa. 2015). The Commonwealth
may sustain its burden of proof by means of wholly circumstantial evidence.
See Commonwealth v. Williams, 255 A.3d 565, 578 (Pa. Super. 2021).
A person commits the crime of attempt when with the intent to commit
a specific crime he does any act which constitutes a substantial step toward
9 Hickson asserts on appeal that he fled only because he had drugs in his possession. The trial court’s instruction did not preclude the jury from crediting this explanation. That the jury did not accept Hickson’s version of events does not prove that it was an error of law to give a flight instruction that the facts of record supported.
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its commission. See 18 Pa.C.S.A. § 901(a). Evidence is sufficient to sustain
a conviction of attempted murder if the accused takes a substantial step
toward the commission of a killing, with the specific intent to commit such an
act. See Commonwealth v. Dale, 836 A.2d 150, 153 (Pa. Super. 2013). A
person commits aggravated assault where, inter alia, he attempts to cause
serious bodily injury to another, see 18 Pa.C.S.A. § 2702(a)(1), or attempts
to cause bodily injury to another with a deadly weapon. See 18 Pa.C.S.A.
§ 2702(a)(4). A person is presumed to intend the natural and probable
consequences of his actions. See Commonwealth v. Lewis, 911 A.2d 558,
564 (Pa. Super. 2006). Intent may be provided by direct or circumstantial
evidence and inferred from acts, conduct, or attendant circumstances). Cf.
Commonwealth v. Matthew, 909 A.2d 1254, 1259 (Pa. 2006) (holding that
an accused attempts to cause serious bodily injury to another with a deadly
weapon by repeatedly threatening to kill him even without firing a single
shot); see also Commonwealth v. Sanders, 627 A.2d 183, 187 (Pa. Super.
1993) (holding that accused attempted to cause bodily injury to his victim
where he held a gun to his head and threatened to kill him).
The trial court found that Brown’s prior videotaped testimony, which was
admitted as substantive evidence at trial, the descriptions by other
eyewitnesses, and surveillance video from shortly before the shooting, showed
that Hickson repeatedly threatened to kill Brown, drew a gun when Brown
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turned around, and fired his gun repeatedly in Brown’s vicinity. See Trial
Court Opinion, 1/31/22, at 8-11.
We affirm the trial court’s conclusion that the evidence was sufficient to
sustain Hickson’s attempted murder and aggravated assault convictions.
Hickson took a substantial step toward killing the victim when he threatened
repeatedly to kill him, drew a gun from his waistband, and fired several shots
that struck the victim’s car, one of which left a strike mark on the outside of
the car and one of which penetrated the interior. See Matthew, 909 A.2d at
1259; Dale, 836 A.2d at 153. The same evidence of Hickson’s threats to kill
Brown, Brown’s statement that he crawled to his car after the first shot and
got inside, and that Hickson’s bullets struck the outside of Brown’s car and
penetrated its interior was sufficient to prove Hickson’s intent to inflict serious
bodily injury on Brown, and his intent to inflict bodily injury with a deadly
weapon. See Matthew, 909 at 1259; see also Lewis, 911 A.2d at 564;
Sanders, 627 A.2d at 187. No relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/28/2022
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