J. S51036/18 & J. S51037/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                        Appellant      :
                                       :
                   v.                  :         No. 3695 EDA 2016
                                       :
RASHAD FICKLING                        :


               Appeal from the Order Entered October 31, 2016,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0010327-2015




COMMONWEALTH OF PENNSYLVANIA,          :     IN THE SUPERIOR COURT OF
                                       :           PENNSYLVANIA
                        Appellant      :
                                       :
                   v.                  :         No. 3700 EDA 2016
                                       :
RYAN ELLIS                             :


               Appeal from the Order Entered October 31, 2016,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0010339-2015


BEFORE: DUBOW, J., NICHOLS, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED JANUARY 11, 2019
J. S51036/18 & J. S51037/18

        The Commonwealth appeals1 from the October 31, 2016 order granting

the      motion    in    limine     to   preclude     Commonwealth      witnesses,

Sergeant Andrew Callaghan and Officer Jason Yerges, from testifying at trial,

based upon a finding that they violated a sequestration order in a prior

proceeding.       After careful review, we reverse and remand for further

proceedings consistent with this memorandum.2

        The trial court summarized the relevant facts and procedural history of

this case as follows:

               On July 30, 2015, a preliminary hearing was held
               before     the     Honorable     Stephanie    Sawyer
               [(“Judge Sawyer”)]. On said date, Judge Sawyer
               granted mutual sequestration between the parties.
               Thereafter, two (2) law enforcement officers testified
               as to events taking place on or about May 8, 2015
               involving [] [Rochelle] Bennett, [and appellees/
               co-defendants] Ryan Ellis[] and Rashad Fickling. The
               sum     and    substance    of   [Sergeant]   Andrew
               Calla[g]han’s testimony was as follows: a surveillance
               was set up by the members of the Philadelphia Police
               Department task force at approximately 12 p.m.
               where [Sergeant] Calla[g]han came into contact with
               the confidential informant (CI). The CI was searched
               and provided pre-recorded buy money in the amount
               of twenty-dollars ($20). Thereafter, the CI met with
               co-defendant, [Rochelle] Bennett.          [Sergeant]
               Calla[g]han witnessed an alleged drug transaction

1The Commonwealth has certified, pursuant to Pa.R.A.P. 311(d), that the trial
court’s October 31, 2016 order will terminate or substantially handicap the
prosecution. Additionally, we note that the Commonwealth filed separate
appeals with respect to appellees Rashad Fickling (No. CP-51-CR-0010327-
2015) and Ryan Ellis (No. CP-51-CR-0010339-2015) (collectively,
“appellees”), but we have elected to dispose of these two appeals in a single
adjudication.

2   Appellee Ryan Ellis did not file a brief in this matter.


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J. S51036/18 & J. S51037/18


          exchange     between     the    CI   and     defendant,
          Rochelle Bennett.       The CI brought back a
          purple-tinted packet of crack cocaine. Sometime later,
          the CI was again, following the same operational
          procedures, sent to make another buy from
          co-defendant, Rochelle Bennett with pre-recorded buy
          money in the amount of twenty-dollars ($20). Again,
          the CI came back with a purple-tinted packet of crack
          cocaine. After co-defendant, Rochelle Bennett was
          arrested and handcuffed, [Sergeant] Calla[g]han
          claims to have seen a twenty-dollar ($20) bill in her
          possession but failed to collect it.         On direct
          examination of [Sergeant] Calla[g]han there was no
          mention of the second twenty-dollar ($20) bill. On
          cross[-]examination,       [Sergeant]       Calla[g]han
          admitted there was no “hard evidence” of either
          subject twenty-dollar ($20) bills ever being recovered,
          notwithstanding the fact that co-defendant, Bennett
          had been detained, and her hands were handcuffed
          behind her back; and moreover, [Sergeant]
          Calla[g]han did not see co-defendant, Bennett “pass
          it [the subject two $20] off to anyone.” As to
          co-defendants, Ryan Ellis and Rashad Fickling,
          [Sergeant] Calla[g]han testified that he observed
          co-defendant, Ellis arrive on the 600 block of Winton
          Street in a white Chevy Impala.          Co-defendant,
          Ryan Ellis exited said vehicle and walked over to and
          hug[ged] three (3) males. One (1) of the males was
          co-defendant, Rashad Fickling.         At that point
          [Sergeant] Calla[g]han saw an exchange involving
          co-defendant, Ryan Ellis receiving a full sandwich
          sized bag and then re-enter the white Chevy Impala.
          [Sergeant] Calla[g]han then radioed information to
          uniform backup and the subject vehicle was
          subsequently stopped. At some point thereafter,
          co-defendant, Ellis was brought down the street where
          [Sergeant] Calla[g]han observed what he believed to
          be the same bag and identified co-defendant,
          Ryan Ellis. [Sergeant] Calla[g]han then testified that
          he stopped three (3) males that had been standing on
          the south side of the street and identified
          co-defendant, Rash[a]d Fickling. Of noteworthiness
          was the fact that there was no mention of any
          exchange       of    U.S. currency      between     the


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J. S51036/18 & J. S51037/18


            co-defendants, Ellis and Fickling, notwithstanding the
            fact that each defendant was said to have $2,900 and
            $1,259 respectively, confiscated from them.

            The sum and substance of [the testimony of] Police
            Officer Jason Yerges was as follows: between the
            hours of 12 p.m. and 3 p.m., Officer Yerges searched
            the []CI[] according to department policy and then
            supplied the CI with twenty-dollar ($20) pre-recorded
            buy-money. The CI was then instructed to go to the
            600 block of Winton Street and attempt to purchase
            crack cocaine. Officer Yerges then released the CI in
            the    area    of   600     Winton     Street    where
            Sergeant Callaghan took over observation of the CI.
            The Cl returned a short time later turning over one (1)
            purple-tinted packet containing crack cocaine, which
            was placed on a property receipt. Within the same
            timeframe, between 12 p.m. and 3 p.m., the CI was
            again searched and thereafter supplied with another
            pre-recorded twenty-dollar ($20) bill buy-money. The
            CI was then dispatched to the 600 block of Winton
            Street and returned a short time later with another
            purple-tinted packet containing crack cocaine. On
            cross[-]examination, Officer Yerges related that no
            pre-recorded buy-money, whatsoever, was ever
            recovered from, the target of the investigation,
            co-defendant [Rochelle] Bennett.

Trial court Rule 1925(a) opinion, 1/16/18 at 1-3 (citations to notes of

testimony omitted).

      Following the Commonwealth’s presentation of evidence and oral

argument by the parties, Judge Sawyer dismissed all the charges against

appellees Fickling and Ellis for lack of evidence.   (See notes of testimony,

7/30/15 at 38-39.)       In contrast, Judge Sawyer held the remaining

drug-related charges against co-defendant Bennett for court. (Id.) Following

her ruling, Judge Sawyer was made aware of potential contact between



                                     -4-
J. S51036/18 & J. S51037/18

Commonwealth witnesses Sergeant Callaghan and Police Officer Yerges as

they had passed each other entering the courtroom to testify, by a

disinterested witness, Torjo Ghose, and Public Defender, Kasturi Sen

(“Attorney Sen”).    The trial court summarized this matter as follows:

            After being sworn by the Court, Mr. Ghose testifie[d]
            that he overheard a conversation between the officers
            consisting primarily of “dude you’re up,” or “dude they
            need you.” Mr. Ghose then observed that the person
            speaking was [Sergeant] Calla[g]han, and that
            [Sergeant] Calla[g]han was speaking to Police Officer
            Yerges. Other than the aforementioned dialogue,
            Mr. Ghose      testified     that     he      overheard
            [Sergeant] Calla[g]han say the words “careful” and
            “question” along with other whispering. Mr. Ghose’s
            testimony      was      further    corroborated      by
            [Attorney Sen], who also heard “someone calling out,
            dude, you’re up. And the person walking up was
            Officer    Yerges,     who     was    recognized     by
            [Attorney Sen]. So the bearded man that he (Ghose)
            saw, who was being summoned, and told, dude,
            you’re up, was Officer Ye[r]ges” and that the words
            “careful” and “question” were spoken by the officer.

Trial court Rule 1925(a) opinion, 1/16/18 at 4 (citations to notes of testimony

omitted).

      Significantly, the record reflects that Ghose indicated during the

preliminary hearing that he was unable to make out the substance of the

conversation between Sergeant Callaghan and Officer Yerges:

            Q.      So you don’t know what they were talking
                    about?

            A.      I don’t.

            Q.      You didn’t hear anything more substantive other
                    than those two words?


                                      -5-
J. S51036/18 & J. S51037/18



              A.    I did not.

Notes of testimony, 7/30/15 at 43.

        Moreover, Attorney Sen confirmed that she heard someone call out

“dude, you’re up” and saw a bearded man, whom she knew to be

Officer Yerges, but did not hear any conversation.       (Id. at 42.)    Following

Ghose’s testimony, Judge Sawyer ruled that Sergeant Callaghan and

Officer Yerges had violated her sequestration order but explicitly declined to

impose sanctions, and the hearing was concluded. (Id. at 43-45.)

        Thereafter, on October 15, 2015, the Commonwealth elected to

recharge appellees with possession of a controlled substance, possession with

intent to deliver a controlled substance, and criminal conspiracy;3 and a jury

trial   was   ultimately   scheduled   before   the   Honorable   Earl   W.   Trent

(“Judge Trent”) for October 31, 2016. That same day, Judge Trent entered

an order granting an oral motion in limine to preclude Sergeant Callaghan

and Officer Yerges from testifying at trial based on a finding by Judge Sawyer

that they had violated her sequestration order at the prior July 30, 2015

preliminary hearing. (See notes of testimony, 10/31/16 at 6, 9.) Specifically,

Judge Trent’s order stated as follows:

              AND NOW, this 31st day of October, 2016, the
              testimony of Sgt[.] Callaghan and Officer Yerges is
              precluded from being introduced at trial following the
              finding by Judge Sawyer that sequestration was
              violated by them in this matter at a prior proceeding.

3   35 P.S. §§ 780-113(a)(16), (30), and 18 Pa.C.S.A. § 903, respectively.


                                       -6-
J. S51036/18 & J. S51037/18



Trial court order, 10/31/16.

          On November 29, 2016, the Commonwealth filed a timely notice of

appeal, certifying that Judge Trent’s October 31, 2016 order will terminate or

substantially handicap its prosecution.4 Although not ordered to do so, the

Commonwealth filed its concise statement of errors complained of on appeal,

in accordance with Pa.R.A.P. 1925(b), that same day. The trial court filed its

Rule 1925(a) opinion on January 16, 2018.

          The Commonwealth raises the following issue for our review: “Did the

[trial]     court   err   by   barring    the   Commonwealth’s     witnesses[,

Sergeant Callaghan and Officer Yerges,] from testifying against [appellees] at

trial based on an alleged sequestration violation at a preliminary hearing?”

(Commonwealth’s brief at 3.)

          Pursuant to Pennsylvania Rule of Evidence 615, a trial court has

discretion to “order witnesses sequestered so that they cannot learn of other

witnesses’ testimony.” Pa.R.E. 615. It is well settled that “[i]t is within the

suppression court’s discretion to select the appropriate remedy for the

violation of its sequestration order.”    Commonwealth v. Kane, 940 A.2d

483, 490 n.4 (Pa.Super. 2007) (citation omitted), appeal denied, 951 A.2d

1161 (Pa. 2008). Once a sequestration order is in effect, possible remedies

for a violation “include ordering a mistrial, forbidding the testimony of the


4 The Commonwealth also filed an appeal with respect to co-defendant
Rochelle Bennett’s case, but that appeal has been discontinued.


                                         -7-
J. S51036/18 & J. S51037/18

offending witness, or an instruction to the jury.”         Pa.R.E. 615 Comment

(citation omitted).

              Where violation of a sequestration order occurs, the
              remedy selected

                    is within the sound discretion of the trial
                    court. In exercising its discretion, the trial
                    court should consider the seriousness of
                    the violation, its impact on the testimony
                    of the witness, and its probable impact on
                    the outcome of the trial. We will disturb
                    the trial court’s exercise of its discretion
                    only if there is no reasonable ground for
                    the action taken.

Commonwealth v. Rose, 172 A.3d 1121, 1127 (Pa.Super. 2017) (citation

omitted), appeal denied, 186 A.3d 369 (Pa. 2018).

        Instantly, the record reflects that Judge Sawyer concluded that

Sergeant Callaghan and Officer Yerges violated her sequestration order5 at the

July 30, 2015 preliminary hearing but declined to impose sanctions upon

them. Specifically, Judge Sawyer stated, in relevant part, as follows:

              THE COURT: I have -- for the record, I have found
              that he has violated that sequestration order, period.

5   Judge Sawyer’s sequestration order stated as follows:

              Mutual sequestration is granted. So for those in the
              audience who are not clear on what sequestration
              means, you may not be in the courtroom if you might
              potentially be testifying at trial. So you can’t sit and
              listen to the testimony at the preliminary hearing if
              you might testify later. So I’m granting mutual
              sequestration to make sure everyone who is going to
              testify is outside the courtroom.

Notes of testimony, 7/30/15 at 4-5.


                                        -8-
J. S51036/18 & J. S51037/18



           [Counsel for Co-Defendant Rochelle Bennett]:
           Meaning Sergeant Callaghan and Officer Yerges?

           THE COURT: Both of them actually, yes. Because
           they -- because as soon as the sergeant said careful,
           the officer should have said, don’t say anything to me.
           I haven’t testified yet. Be quiet. Both of them had an
           affirmative obligation to not have a conversation
           about this testimony. . . .

           ....

           . . . . And I’m not -- I’m finding they’re in violation.
           I’m not finding them -- I’m not giving them a
           penalty.      I’m not giving them a penalty in
           contempt, but I am finding that they violated the
           sequestration order.

Notes of testimony, 7/30/15 at 45 (emphasis added).

     Thereafter, in response to an oral defense motion, Judge Trent

precluded Commonwealth witnesses Sergeant Callaghan and Officer Yerges

from testifying against appellees at the trial scheduled for October 31, 2016,

based upon the prior determination by Judge Sawyer that her sequestration

order was violated. (Notes of testimony, 10/31/16 at 5-6.) In support of this

decision, Judge Trent reasoned as follows:

           What was of most concern to this Trial Court was the
           nature of the violation, keeping in mind that both the
           Commonwealth        and    the    Philadelphia   Police
           Department have sworn duties to uphold. The fact
           that there are an overabundance of criminal cases
           that are heard daily does not lessen the standards that
           are necessary to uphold the integrity of the criminal
           system. In this particular case two (2) things are
           apparent and were thus considered by this Court:
           [] the preliminary hearing testimony by the
           Commonwealth witnesses was not wholly transparent


                                    -9-
J. S51036/18 & J. S51037/18


             according to the preliminary hearing notes of
             testimony. Specifically, the Commonwealth witness’s
             preliminary hearing testimony was unable to explain
             why the pre-recorded buy-money was unaccounted at
             the conclusion of the investigation and may
             conceivably     be    an   area     of   understandable
             discernment for the subject police officers testifying
             as witnesses.       Clearly, the officers’ testimony
             contained no hard evidence of the pre-recorded
             “buy money,” which was an integral part of the
             subject narcotics investigation conducted by the
             Officers and an integral part of the Commonwealth
             case. The testimony of a disinterested party, who
             happened to overhear what was said by
             [Sergeant] Calla[g]han to Officer Yerges, and the
             independent testimony of a Public Defender/Officer of
             the Court, corroborating part of the testimony of the
             independent witness, raises adequate suspicion for
             this Court to grant a motion in limine in favor of
             [appellees].     According to the testimony of the
             disinterested witness, the specific words used by
             [Sergeant] Calla[g]han were particularly troubling
             because they are words that many times are
             associated within the context of one’s testimony. With
             the nature of this type of incident involving tainted
             Commonwealth witness testimony, it serves to
             undermine the integrity of the criminal justice system
             if not taken seriously. In short, this Court has and will
             always take a hard look at potentially feigned
             testimony no matter who the witness may be.

Trial court Rule 1925(a) opinion, 1/16/18 at 6-7.

       Upon review, we find that Judge’s Trent’s decision to preclude

Sergeant Callaghan and Officer Yerges from testifying, based upon their

purported violation of Judge Sawyer’s prior June 30, 2015 sequestration order,

was an improper exercise of the trial court’s discretion.         Here, the record

reflects that the initial charges against appellees had already been dismissed

for   lack   of   evidence   at   the   time     Judge   Sawyer   determined   that


                                        - 10 -
J. S51036/18 & J. S51037/18

Sergeant Callaghan and Officer Yerges had violated her sequestration order,

and she exercised her discretion to not sanction the officers. (See notes of

testimony, 7/30/15 at 45.) Thus, it logically follows that the imposition of a

sanction for purported violation of another judge’s sequestration order,

thereby precluding witnesses from testifying in a subsequent jury trial when

the prior order did not impose such a sanction, constitutes an abuse of

discretion.   Moreover, it appears that Judge Trent’s concerns are with the

credibility of the officers’ testimony, and this issue should be left to the jury

at trial.

       In reaching this decision, we further emphasize that there was

“no reasonable    ground”    for   Judge      Trent’s   outright   preclusion   of

Sergeant Callaghan’s and Officer Yerges’ testimony from the October 31, 2016

trial. See Rose, 172 A.3d at 1127. This is especially true in light of the fact

that Judge Trent inexplicably denied the Commonwealth’s request to call

Sergeant Callaghan and Officer Yerges as witnesses at the October 31, 2016

hearing in order to elicit evidence to clarify the extent of the momentary

exchange at the June 30, 2015 preliminary hearing. (See notes of testimony,

10/31/16 at 8-9.)

       Accordingly, we reverse the trial court’s October 31, 2016 order and

remand for further proceedings consistent with this memorandum.

       Order reversed. Case remanded for further proceedings consistent with

this memorandum. Jurisdiction relinquished.



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J. S51036/18 & J. S51037/18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 1/11/19




                              - 12 -
