Commonwealth v. Hickson
| Decision Date | 28 December 2022 |
| Docket Number | 2539 EDA 2021 |
| Parties | COMMONWEALTH OF PENNSYLVANIA v. PATRICK HICKSON Appellant |
| Court | Pennsylvania Superior Court |
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 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] 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.
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 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:
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 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 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 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, 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...
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