Com. v. Hickson, P.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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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