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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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
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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.
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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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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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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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