J-S74029-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RICHARD HEWLETT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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.

MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 13, 2018

Richard Hewlett appeals from the judgment of sentence, entered in the 

Court of Common Pleas of Philadelphia County, following his convictions of

one count of aggravated assault1 and two counts of violating the Uniform 

Firearms act.2 After careful review, we affirm.

The Trial court summarized the facts of this case as follows:

[Hewlett] was inside the Eagle Bar, 3653 Germantown Avenue, 

Philadelphia, on December 24, 2014, at approximately 11:00 PM. 

Later, Tiffany Johnson entered the bar, and shortly thereafter, 

proceeded to the ladies’ restroom. In doing so, she walked past 

[Hewlett] who was standing near the back door, approximately 

five (5) feet away from the restroom. A conversation ensued and 

[Hewlett] threatened her and demanded money stating she would 

have to “start paying rent.” [Johnson] refused his demand and 

[Hewlett] engaged her in a further verbal dispute. Another patron 

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1 18 Pa.C.S.A. § 2702(a)(3).

2 18 Pa.C.S.A. §§ 6105, 6106.
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interrupted the exchange and [Johnson] entered the ladies’ 

restroom. [Hewlett] followed her into the restroom and struck her 

in the back of the head three (3) times. She turned to face him 

and [Hewlett] continued to strike her with a grayish black 

handgun. [Hewlett] struck her in the face and [] head with the 

gun. During the assault, which lasted two (2) to three (3) 

minutes, [Hewlett] took her wallet, identification, [a]ccess card, 

and $900.00 []. Afterward, Hewlett walked out of the restroom 

and back into the bar. [Johnson] came after him and demanded 

that he return her wallet. A further physical confrontation ensued 

and defendant struck her several times with his fists. [Johnson] 

stated that although the facility was dimly lit, she could see her 

attacker’s face. The following day, [Johnson] went to Albert 

Einstein Medical Center and was treated for a contusion on the 

right side of her forehead, a scar on her wrist, and an abrasion on 

the right side of her neck. The next day, [Johnson] gave a written 

statement to Sergeant Vincent Dayton.

On December 31, 2014, Police Officers Timothy Stephan and Keith 

White attempted to stop [Hewlett] after he disregarded a stop sign 

while operating a green 1998 Ford Explorer with a Pennsylvania 

license plate. The officers activated their lights and siren[,] but 

[Hewlett] failed to stop and instead accelerated to over fifty-five 

(55) miles per hour in a residential area. A high-speed chase 

ensued through several intersections, including the red light at Old 

York Road and Erie Avenue, and a stop sign at Percy and Butler 

Street. The vehicle struck the curb and began to roll along the 

sidewalk on the 3000 block of Delhi Street where[,] defendant 

exited and fled on foot. Officer Stephan pursued him and 

observed [Hewlett] clutching his waistband while fleeing over a 

distance of one (1) to two (2) blocks. During the foot chase, 

[Hewlett] briefly crouched between two parked vehicles in the 

3800 block of [North] 10th street. When Officer Stephan 

attempted to arrest him, defendant shoved the officer and 

continued to flee.

Officer Stephan pursued [Hewlett] into the unlocked property at 

3823 [North] 10th street. Once inside, [Hewlett] assumed a 

fighting stance and squared off with Officer Stephan. A physical 

confrontation followed with defendant throwing several punches 

and at one point lifting Officer Stephan from the ground and 

dropping him to within a foot of a nearby glass table. Officer 

Joseph Marion and his partner responded to a request for backup. 

When he saw [Johnson] throw Officer Stephan toward the table, 
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Officer Marion entered the affray and exchanged blows with 

[Hewlett]. Finally, when [Hewlett] continued to resist arrest, 

Officer Marion engaged a probe from his Taser. The first probe 

did not stop [Hewlett] so he deployed a second one, which 

stunned [Hewlett] and officers were able to hand-cuff him. After 

[Hewlett’s] arrest, Officer Stephan recovered a loaded silver and 

black .40 caliber Smith and Wesson handgun from the area where 

[Hewlett] had crouched between two parked vehicles in the 3800 

block of [North] 10th street during the foot chase.

During her testimony at trial, [Johnson] observed that a spectator, 

Maurice McCall, was using his cellphone in the courtroom. The 

use of any electronic device in the courtroom is prohibited and 

signs are posted to that effect on the courtroom doors. After the 

jurors were escorted out of the courtroom, the prosecutor stated: 

“people don’t want to give their names . . . it is because of 

behavior like this that people don’t want to come to court and 

testify.” Upon examination of the phone’s content, it was 

discovered that [McCall] was sending messages directly related to 

[Johnson’s] testimony. [McCall] wrote, “This bitch just got on the 

stand on rich grove (phonetic).” This court admitted that evidence 

but did so with a curative instruction to the jury as to how they 

were to consider it. Additionally, [Johnson] testified that she 

received calls from [Hewlett] prior to her testimony at trial. 

During one of those calls, [Hewlett] identified himself as “Rick” 

and requested that [Johnson] not come to court and he told her 

that he would pay her. The jury also heard prison recordings of 

[Hewlett’s] telephone conversations. A stipulation as to the 

authenticity of the recordings was presented to the jury. One of 

the calls included a conversation wherein [Hewlett] stated, “They 

found a gun with no clip. The clip [is] on 10th street some fucking 

where. You know what I’m saying.” [Hewlett] also stated that he 

“was fighting the cops. I knocked like two, three cops up.”

Trial Court Opinion, 3/1/17, at 2-4 (citations to record omitted).

On September 1, 2016, following a jury trial, the jury convicted Hewlett 

of aggravated assault of a police officer and carrying a firearm without a 

license. On the same date, pursuant to a stipulated waiver trial at which the 

parties stipulated to Hewlett’s prior conviction of robbery and consequent 
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ineligibility to possess a firearm, the trial court convicted him of possession of 

a firearm by a prohibited person. On November 6, 2015, the trial court 

imposed consecutive terms of imprisonment of five to ten years for aggravated 

assault, five to ten years for possession of a firearm by a prohibited person, 

and three and one-half to seven years for carrying a firearm without a license,

for an aggregate term of 131⁄2 to 27 years’ imprisonment. On November 13, 

2016, Hewlett filed a post-sentence motion, which the court denied by 

operation of law on March 15, 2016. On March 16, 2016, Hewlett timely 

appealed. Both Hewlett and the trial court have complied with Pa.R.A.P. 1925. 

On appeal, Hewlett raises the following issues:

1. Did the Commonwealth present sufficient evidence to find 

[Hewlett] guilty beyond a reasonable doubt?

2. Did the trial court abuse [its] discretion when it allowed the 

Commonwealth to present evidence from a spectator’s cell phone 

that wasn’t relevant to [Hewlett] [sic] and [thus,] the prejudicial 

effect of the evidence outweighed the probative value? 

Brief of Appellant, at 3.

Hewlett first raises a sufficiency of the evidence claim. Our standard for 

reviewing challenges to the sufficiency of the evidence is well-settled. 

The standard we apply in reviewing the sufficiency of the evidence 

is whether viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence 

to enable the fact-finder to find every element of the crime beyond 

a reasonable doubt. In applying the above test, we may not weigh 

the evidence and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances established by 

the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant’s guilt may be 

resolved by the fact-finder unless the evidence is so weak and 
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inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. Finally, the trier of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced, 

is free to believe all, part or none of the evidence.

Commonwealth v. Caban, 60 A.3d 120, 132-33 (Pa. Super. 2012), quoting 

Commonwealth v. Quel, 27 A.3d 1033, 1037-38 (Pa. Super. 2011).

First, Hewlett avers that the evidence was insufficient to support a 

conviction for aggravated assault against a police officer because his “actions

rise no higher than resisting arrest . . . as the evidence does not support that 

the appellant ‘attempted to cause or intentionally or knowingly caused bodily 

injury to any of the officers’ involved in this case.” Brief of Appellant, at 14. 

In Pennsylvania, an individual is guilty of aggravated assault against a 

police officer if he “attempts to cause or intentionally or knowingly cause a 

bodily injury to a police officer . . . in the performance of duty[.]” 18 Pa.C.S.A. 

§ 2702(a)(3). To prove aggravated assault against a police officer “[t]he 

Commonwealth need not establish that the [officer] actually suffered bodily 

injury; rather, it is sufficient to support a conviction if the 

Commonwealth established an attempt to inflict bodily injury.” 

Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa. Super. 1994)

(emphasis added). The term “officer” is defined as “the officers, agents, 

employees and other persons referred to in subsection as follows: (1) Police 

Officer[.]” 18 Pa.C.S.A. § 2702(c)(1). 
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The Crimes Code defines the mens rea of “intent” as follows:

A person acts intentionally with respect to a material 

element of an offense when:

(i) if the element involves the nature of his conduct or a 

result thereof, it is his conscious object to engage in conduct 

of that nature or to cause such a result; and

(ii) if the element involves the attendant circumstance, he 

is aware of the existence of such circumstances or he believes or 

hopes that they exist.

18 Pa.C.S.A. § 302(b)(1) (emphasis added).

When Officer Stephan confronted Hewlett in the property located at 

3823 North 10th Street, Hewlett raised his hands, clenched them into fists, 

and assumed a fighting stance. Hewlett threw a punch at Officer Stephan and 

threw the officer’s body towards a glass table, which he narrowly avoided. 

Immediately afterward, Officers Marion and Ortiz entered the property. 

Hewlett punched Officer Marion in the face, in the “area in between the nose 

and the upper lip.” N.T. Jury Trial, 9/2/15, at 43. After Hewlett struck Officer 

Marion’s face, Officer Ortiz tackled Hewlett to the ground. Although no further 

“significant strikes” contacted any of the officers, Hewlett continued to kick, 

elbow and punch the three officers. Id. at 21. In light of the foregoing, the 

evidence presented by the Commonwealth was clearly sufficient to sustain a 

conviction of aggravated assault against a police officer. Caban, supra. 

Next, Hewlett avers that the evidence is insufficient to sustain a 

conviction for carrying a firearm without a license and possession of a firearm 

by a prohibited person.
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The Uniform Firearms Act provides, in relevant part, as follows:

§ 6105. Persons not to possess, use, manufacture, control, sell 

or transfer firearms

(a) Offense Defined.--

(1) A person who has been convicted of an offense 

enumerated in subsection (b), within or without this 

Commonwealth, regardless of the length of sentence or 

whose conduct meets the criteria in subsection (c) shall not 

possess, use, control, sell, transfer or manufacture or obtain 

a license to possess, use, control, sell, transfer or 

manufacture a firearm in this Commonwealth.

(b) Enumerated offenses.—The following offense shall 

apply to subsection (a):

* * *

Section 3701 (relating to robbery)[.]

* * *

§ 6106. Firearms not to be carried without a license.

(a) Offense defined.—

(1) Except as provided in paragraph (2), any person who 

carries a firearm in any vehicle or any person who carries a 

firearm concealed on or about his person, except in his place 

of abode or fixed place of business, without a valid and 

lawfully issued license under this chapter commits a felony 

of the third degree.

18 Pa.C.S.A. §§ 6105(a) and (b), 6106(a). 

In order to convict a defendant for possession of a firearm by a 

prohibited person, the Commonwealth must prove the defendant was 

previously convicted of a specific offense enumerated in section 6105. 
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Commonwealth v. Jemison, 98 A.3d 1254, 1261 (Pa. 2014). In order to 

convict a defendant for carrying a firearm without a license, the 

Commonwealth must prove: that the weapon was a firearm; that the firearm 

was unlicensed; and that where the firearm was concealed on or about the 

person, it was outside his home or place of business. Commonwealth v. 

Parker, 847 A.2d 745, 750 (Pa. Super. 2004). The Commonwealth may 

sustain its burden of proving every element of a crime beyond a reasonable 

doubt by means of wholly circumstantial evidence. Commonwealth v. Wise, 

171 A.3d 784, 790 (Pa. Super. 2017).

Here, Hewlett exited a vehicle, following a high-speed chase, and fled 

from police while clutching his waistband. Police, during their pursuit, 

observed Hewlett crouching between two vehicles and viewed him place an 

item between the two parked cars. Later, police recovered a .40 caliber Smith 

and Wesson handgun from the area where Hewlett had been crouching. 

Additionally, Hewlett admitted to carrying a firearm in recorded prison 

telephone conversation with his girlfriend. In light of Hewlett’s admission and 

the police officers’ observations, a fact-finder could reasonably conclude that 

Hewlett had been in possession of the handgun. See Commonwealth v. 

Schley, 136 A.3d 511, 519 (Pa. Super. 2016), quoting Commonwealth v. 

Widmer, 744 A.2d 745, 751 (Pa. 2000) (Commonwealth is entitled at trial to 

all reasonable inferences arising from the evidence). Furthermore, both 

parties stipulated to Hewlett’s prior conviction of robbery and consequent 

ineligibility to possess a firearm. 18 Pa.C.S.A. § 6106. 
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Hewlett’s only cogent challenge to the sufficiency of the evidence is that 

“a discrepancy [existed] as to the location of the recovered firearm” where 

police “testified . . . that [it] was recovered on the 3800 block of 10th [S]treet 

however, police paperwork stated that [it] was recovered from the 3800 block 

of Delhi Street.” Brief of Appellant, at 16. This argument is without avail. 

Mere conflict in the evidence does not render it insufficient; any discrepancies 

are for the fact finder to resolve. Commonwealth v. Hargrave, 745 A.2d 

20, 22 (Pa. Super. 2000).

Hewlett’s final claim on appeal is that the trial court abused its discretion 

when it allowed the Commonwealth to present evidence from a spectator’s 

cell phone that was irrelevant and prejudiced his defense. Hewlett has waived 

this claim on appeal.

At his jury trial, Hewlett objected to the Commonwealth’s request to 

present evidence of a spectator’s cell phone; however, upon the court’s 

request, counsel for Hewlett agreed to and drafted a curative instruction. 

Specifically, Hewlett’s draft curative instruction, which was adopted by the 

trial court, stated that any testimony regarding a spectator’s attempt to 

photograph Johnson be considered only for the “effect, if any, it had” on the 

witness’s testimony and that “there is no evidence that [Hewlett] . . . solicited 

this behavior.” N.T. Jury Trial, 9/2/15, at 181. Hewlett acquiesced to the trial 

court’s ruling and complied with its instruction to furnish it with a curative 

instruction. Therefore, he has waived any challenge to the court’s ruling. 

Commonwealth v. Einhorn, 911 A.2d 960, 976 (Pa. Super. 2006), citing
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Commonwealth v. Hill, 388 A2d 689, 692 (Pa. 1978) (defendant who 

requests and receives relief for alleged error may not seek additional relief at 

later time). See also Commonwealth v. Hallowell, 439 A.2d 1140, 1141 

(Pa. 1981) (litigant who seeks and receives specific relief for a given error 

cannot seek additional relief at a later time), citing Commonwealth v. 

Hoskins, 403 A.2d 521, 526 n. 12 (Pa. 1978) (“since [appellant] failed to do 

anything more than object and request to the striking of testimony in some 

instances, he received all the relief requested and cannot now seek further 

relief.”).3

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3 Even if Hewlett had not waived this claim, it is meritless. At trial, Johnson 

noticed a man in the courtroom texting and attempting to photograph her on 

his cell phone. The trial court stopped the proceedings, excused the jury, 

examined the man’s cell phone and found a recent text message in which he 

told an unknown party that “[Johnson] just got on the stand on rich grove 

(phonetic).” Consequently, the trial court confiscated the phone and allowed 

the Commonwealth to elicit evidence of the spectator’s use of the phone in 

the courtroom on the condition that Hewlett draft a curative instruction for the 

jury. The text message was not submitted to the jury, but the Commonwealth 

was ultimately permitted to offer Johnson’s testimony that she saw a man in 

the courtroom using his phone during her testimony and then attempt to 

photograph her.

It was well within the sound discretion of the trial court to allow evidence that 

bore on Johnson’s credibility and the effect that the spectator’s actions had on 

her testimony. Pa.R.E. 607; Commonwealth v. Golphin, 161 A.3d 1009, 

1026 (Pa. Super. 2017) (evidence that bears on the credibility of witness is 

relevant and admissible). Her immediate report of the incident to the deputy 

sheriff demonstrates that she was disturbed and/or afraid of the spectator’s 

attempt to record her while providing testimony. The jury presumably 

followed the curative instruction Hewlett drafted, and thus, it eliminated any 

potential prejudice. Commonwealth v. Poplawski, 130 A.3d 697, 717 (Pa.

2015), citing Commonwealth v. Carter, 643 A.2d 61, 77 (1994) (trial court’s 

instruction to jury not to consider statements as evidence cured any potential 

prejudice).
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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/13/18