Com. v. Richardson, A. ( 2019 )

J-A12001-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
ABDULA J. RICHARDSON,
Appellant No. 1204 WDA 2017
Appeal from the Judgment of Sentence Entered October 8, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0005607-2014
BEFORE: BENDER, P.J.E., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 1, 2019
Appellant, Abdula J. Richardson, appeals from the aggregate judgment
of sentence of 3½-7 years’ incarceration, imposed after a jury convicted him
of four counts of conspiracy,1 two counts of false reports to law enforcement
authorities,2 and one count of retaliation against witness, victim or party
(hereinafter “Retaliation”).3 After careful review, we affirm.
The trial court summarized the facts adduced at trial as follows:
____________________________________________
1 18 Pa.C.S. § 903; the target crimes included 2709(a)(4) (harassment—
communicates to or about such other person any lewd, lascivious, threatening
or obscene words, language, drawings or caricatures), 2709(a)(5)
(harassment—communicates repeatedly in an anonymous manner), 4905
(false alarms to agencies of public safety), and 5105 (obstructing
administration of law or other governmental function).
2 18 Pa.C.S. § 4906.
3 18 Pa.C.S. § 4953.
J-A12001-19
The evidence admitted at trial established that between February
1, 2014 through April 12, 2014, 128 false 911 calls were made
from the residence located at 3056 Bergman Street in the City of
Pittsburgh. [Appellant] resided at this residence with his wife, co-
defendant Felecia Richardson, and his three younger sons. The
credible evidence established that all of the 911 calls were false
and that the calls were usually made by [Appellant]’s fifteen-year-
old son with a few of the calls made by his twelve-year-old son.
City of Pittsburgh police officers responded to all of the 911 calls
that involved actual complaints. A number of the 911 calls were
simple hang-up calls that did not resolve in a formal request for
emergency action.
A substantial number of the 911 calls were traced to landline
telephones at the 3056 Bergman [Street] address. At all times
relevant to this matter, there was no more than one landline at
the residence. Initially, the landline 911 calls were traced to
telephone number 412-771-0204. On March 13, 2014, the
landline telephone number associated with [Appellant] was
changed to 412-771-1470. On March 29, 2014, law enforcement
officers executed a search warrant at the 3056 Bergman [Street]
address and seized the landline telephone. After that date, on
March 31, 2014 through April 4, 2014, additional false 911 calls
were made by a cellular phone subscribed to by [Appellant].
Officers attempted to locate the cellular phone that made these
calls but [Appellant] and his wife initially denied the existence of
the cellular phone. The Richardsons later accused police officers
of stealing the cellular phone. When police officers responded to
the 911 calls, on every single occasion, there was no emergency
and the officers cleared the incident and left the scene.
Over the time period of the false 911 calls, many different police
officers responded to the calls. [Appellant] and his wife
steadfastly denied that the 911 calls originated from their
residence or cell phones owned by them. They claimed that
someone must have been pranking them or tapping or spoofing
their telephones. Verizon and Sprint telephone records and expert
testimony, however, contradicted these claims and proved that
the 911 calls originated from their residence and/or cell phones.
Additionally, a “chirping” sound could be heard on the 911 calls.
When officers responded to the false 911 calls at 3056 Bergman
[Street], they heard the same chirping sound being emitted from
a fire alarm inside the residence. Similarly, a barking dog could
be heard on the 911 calls. The same barking dog was present at
the residence when officers were at the residence responding to
-2-
J-A12001-19
the 911 calls. On one false 911 call made by one of [Appellant]’s
sons, an adult male was heard sneezing in the background.
Typically, officers responding to the 911 calls would be greeted by
a barking dog and the Richardsons would come out from the house
onto the porch and would take video of the police officers with
their cell phones. Sometimes only [Appellant] would come onto
the porch. Sometimes it was [Appellant]’s wife and sometimes it
was his entire family who appeared. The interactions were hostile
and aggressive. [Appellant] and his family would degrade the
officers and call them profane, vulgar and racist names. Often
times the calls would come at night and the Richardsons would
have items in their hands that couldn’t be identified. The officers
feared for their safety. [Appellant] would not permit his children
to be interviewed by law enforcement so officers could investigate
the substance of the complaints. The complaints ranged from
violent domestic assaults to injuries being sustained by the
children. Neither [Appellant] nor his wife would permit law
enforcement officers to enter the residence. Often, [Appellant]
and his family members were already on the porch of the
residence awaiting the arrival of the police officers wielding their
cellular phones and taking video of the police officers.
The evidence also established that [Appellant] was incarcerated
for intermittent periods while awaiting trial. The false 911 calls
stopped when [Appellant] was incarcerated. However, they
resumed when he was released from jail and returned to his
residence [at] 3056 Bergman [Street].
The evidence further established that the City of Pittsburgh
Bureau of Police expended substantial man[-]hours responding to
the false 911 calls and that the false calls resulted in a shortfall of
officers available to respond to other, serious calls. Evidence was
admitted that 259 police reporting units were required to respond
to the false 911 calls over the span of 22 days. A total of 430
hours were spent responding to the false 911 calls. The cost
associated with the false 911 calls was approximately $11,000.
Additional evidence, jail calls of [Appellant], established that his
intent was to bait the officers into doing something that would
permit him to sue the City of Pittsburgh. [Appellant] was angry
after he was arrested in September [of] 2013 and charged with
assault. He made numerous claims that he was being set up by
the police. He threatened the police officer who made the
September arrest. [Appellant] posted the video of [the] officer
-3-
J-A12001-19
responding to the false 911 calls on social media pages criticizing
the police officers. During the time period of the false 911 calls,
[Appellant] had been seeking election as the mayor of the City of
Pittsburgh and he wanted to use his exchanges with the police
officers as part of his election campaign.
The Commonwealth also presented evidence that [Appellant]
eventually moved from 3056 Bergman Street to 217 Bessemer
Street, Apartment #2[,] in the East Pittsburgh section of the City
of Pittsburgh during the pendency of the instant case. False 911
calls were made from that residence after [Appellant] moved to
that area.
While officers where at 3056 Bergman [Street] responding to a
911 call, they would sometimes contact the 911 call center and
ask for a “call back” to the number that made the 911 call. The
911 dispatcher would call the number that originated the 911 call.
Officers could hear the landline telephone inside 3056 Bergman
ring and, at least on one occasion, even answered it.
On March 29, 2014[,] officers obtained a search warrant and
seized the landline telephone from the residence. The very same
day, after the landline phone had been seized, another 911 call
was placed from 3056 Bergman [Street], this time from a cell
phone. Upon arriving at the scene, officers questioned [Appellant]
and his wife about the telephone number that made the 911 call.
[Appellant] claimed he didn’t recognize the number from which
the 911 call was made. His wife claimed that they did not have a
telephone that had a 412 area code. However, as set forth above,
subsequent investigation determined the number that made the
false 911 calls was a cell phone that was subscribed to by
[Appellant].
The Allegheny County 911 system recorded various information
when a 911 call would be made. When a 911 call was placed from
a landline, the 911 system would record the home telephone
number, the address from which the call was made and the
identity of the person to whom the telephone line [was]
registered. The information obtained from a landline-based 911
call is 99.9% accurate. If the 911 call was made from a cell phone,
the information obtained depended on the type of cell phone used
to make the 911 call. If the cell phone was a “phase one” phone,
which is an older cellular phone (typically five or more years old),
the nearest cellular tower would be disclosed. If the phone was a
“phase two” cell phone, a newer phone equipped with global
-4-
J-A12001-19
positional satellite (“GPS”) technology, the location of the call
would be disclosed within 50 meters of the actual location of the
call 66% of the time. The location of the call would be accurate
within 150 meters 95% of the time. The evidence established that
the false 911 calls were either made from landline[] telephones or
cellular phones subscribed to by [Appellant].
It was clear that [Appellant] and his family anxiously awaited the
arrival of police officers responding to the false 911 calls. The
family usually had their telephones ready for the police before the
police officers even responded to the calls. Officers who
responded to the calls were repeatedly met with offensive insults.
Officers were called “white devil” and the “N word.” They were
claimed to have “bloody fangs” and family members claimed that
they “were going to win in the end.” Officers repeatedly asked
[Appellant] and his wife to listen to the calls in an effort to resolve
the issues. Both [Appellant] and his wife refused to listen to the
calls. Officers asked them for permission to push the redial button
on the landline phone to show [Appellant] and his wife that the
911 calls emanated from their residence. [Appellant] and his wife
refused to permit officers to do it. On most occasions, [Appellant]
would not permit officers to speak to his family members about
the origins of the 911 calls. Neither [Appellant] nor his wife would
cooperate with the police officers and they repeatedly denied that
the calls were coming from their residence. Responding officers
began filming the interactions because the interactions were so
unusual.
The following paragraphs detail[] examples of some of the false
911 calls:
On March 11, 2014, officers responded to 3056 Bergman [Street]
for unknown trouble. Upon arriving at the scene, [Appellant]
advised the responding officers that there was no emergency at
his residence. He advised the officers that his telephone was
being tapped due to the fact that he was planning to run for mayor
of the City of Pittsburgh. The officers advised [Appellant] to call
the phone company to check his line.
On March 14, 2014, officers responded to 3056 Bergman [Street]
for a call from a woman claiming to being assaulted by her
husband who had a gun. When the officers arrived, two of
[Appellant]’s children were the only residents at home. Just after
the officers appeared at the residence, [Appellant] came running
down the street screaming at the officers. [Appellant] began
-5-
J-A12001-19
speaking in an aggressive tone and demanded to know why the
officers were there. Officer Luff, one of the responding officers,
was a victim o[f] the September[] 2013[] assault case that was
pending against [Appellant]. [Appellant] yelled to Officer Luff
that, “I know you are behind these bogus calls. I won’t rest till I
get you.” Officers check[ed] the residence and no females were
found in the residence. After the officers left, three additional
false 911 calls were made that day.
On March 23, 2014, officers responded to 3056 Bergman [Street]
for a hang up call. [Appellant] and his family exited the residence
videotaping the officers. [Appellant] stated that nobody in his
residence called 911 and accused the officers of harassment.
After the officers left, two more false 911 calls were made that
day.
On March 30, 2014, officers responded to 3056 Bergman [Street]
for a domestic violence call. The caller claimed to be [Appellant]’s
wife and claimed that [Appellant] was assaulting her. The caller
claimed that there was a machete in the closet. From prior calls,
officers knew that there were machetes in the residence. As they
arrived on scene, officers were being videotaped by [Appellant]
and his family. After officers left, two more 911 calls were made
alleging similar acts of domestic violence. The calls were made
from a cellular phone. [Appellant] falsely denied that he or
anyone in his family had a cellular phone.
Trial Court Opinion (“TCO”), 6/20/18, at 2-8.
Following a trial held from July 8, 2015 to July 21, 2015, a jury found
Appellant guilty of the above-stated offenses. On August 10, 2015, the trial
court sentenced Appellant to 2½-5 years’ incarceration for conspiracy— false
alarms to agencies of public safety, and to a consecutive term of 1-2 years’
incarceration for Retaliation. No further penalty was imposed at all remaining
counts.
-6-
J-A12001-19
Appellant did not immediately file a direct appeal. Instead, on June 24,
2016, he filed a timely, pro se PCRA4 petition. The trial court appointed
counsel, who then filed an amended PCRA petition on Appellant’s behalf. The
Commonwealth conceded that Appellant was entitled to the relief sought
therein and, on July 11, 2017, the PCRA court reinstated his post-sentence
and direct appeal rights. Appellant filed a post-sentence motion nunc pro tunc
on July 21, 2017, which was denied on July 24, 2017. On August 23, 2017,
Appellant filed a notice of appeal nunc pro tunc. He filed a timely, court-
ordered Pa.R.A.P. 1925(b) statement on September 13, 2017, and the trial
court issued its Rule 1925(a) opinion on June 20, 2018.
Appellant now presents the following questions for our review:
I. Section 4953 of the Crimes Code prohibits retaliation
against another for “anything lawfully done in the capacity
of witness, victim or a party in a civil matter.” Was the
evidence insufficient to convict Appellant of this offense
since there was no evidence presented regarding any
witnesses, victims, or parties “in a civil matter”?
II. The lower court permitted testimony related to a prior bad
act involving Appellant and Officer Shawn Luff, which pre-
dated Appellant’s charges. Was the admission of this
testimony improperly [admitted] based upon the lower
court’s misreading of the retaliation statute (18 Pa.C.S. §
4953), and therefore did the lower court abuse its
discretion?
III. The lower court permitted numerous uniformed police
officers to hear opening statements, and obtain a “sneak
peek” of the Commonwealth’s evidence and theory of the
case, over the defense’s sequestration request. Did the
____________________________________________
4 Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
-7-
J-A12001-19
lower court’s denial of sequestration have an unduly
prejudicial effect on Appellant’s guarantee to a fair trial?
IV. The lower court imposed upon Appellant an extra–
aggravated sentence outside of the sentencing guidelines.
Did the lower court abuse its discretion by imposing the
sentence it did?
Appellant’s Brief at 5.
Appellant’s first claim concerns the sufficiency of the evidence
supporting his conviction for Retaliation.
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim[,] the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted). “A person commits” the offense of Retaliation “if he harms
another by any unlawful act or engages in a course of conduct or repeatedly
commits acts which threaten another in retaliation for anything lawfully done
in the capacity of witness, victim or a party in a civil matter.” 18 Pa.C.S. §
4953(a) (emphasis added).
Instantly, Appellant argues that the phrase, ‘in a civil matter,’ in the
definition of Retaliation, acts to modify all preceding terms, such that a
conviction for Retaliation is contingent on the Commonwealth’s proving the
existence of a prior or ongoing civil matter. Appellant’s Brief at 43. Appellant
-8-
J-A12001-19
admits the ostensible presence of an alternative interpretation, whereby only
the term ‘party’ is modified by the subsequent phrase, ‘in a civil matter.’ Id.
at 45. Indeed, Appellant also concedes that several principles of statutory
construction support the latter interpretation. See id. at 47-51. Thus,
Appellant relies solely on the lenity principle to support the former
interpretation, which, certainly, is more favorable to him. Id. at 51-52. When
a criminal statute is capable of sustaining two reasonable interpretations, the
rule of lenity dictates that we must adopt the interpretation that is more
favorable to the defendant. Appellant contends, therefore, that lenity dictates
that this Court interpret the Retaliation statute such that it only applies where
a defendant threatens civil witnesses, civil victims, and/or civil parties.
However, in Commonwealth v. Nevels, 203 A.3d 229 (Pa. Super.
2019), this Court expressly rejected Appellant’s interpretation of the
Retaliation statute:
Prior to December 20, 2000, Section 4953 read: “[a] person
commits an offense if he harms another by any unlawful act in
retaliation for anything lawfully done in the capacity of witness or
victim.” 18 Pa.C.S.[] § 4953(a) (prior version). However, the
current version, which took effect on December 20, 2000, added
the phrase “or a party in a civil matter.” 18 Pa.C.S.[] § 4953(a).
Since coming into effect, the statute has been applied, by both
the Pennsylvania Supreme Court and this Court, to victims and
witnesses in criminal proceedings. See, e.g., Commonwealth v.
Ostrosky, … 909 A.2d 1224, 1232-1233 ([Pa.] 2006) (holding
that Section 4953 did not apply to victims of a criminal proceeding
only because a single threat did not result in objective harm to
victims); Commonwealth v. Brewer, 876 A.2d 1029 (Pa. Super.
2005) (affirming conviction under Section 4953 of retaliation
against witnesses in a criminal proceeding), appeal denied, … 887
A.2d 1239 ([Pa.] 2005). We therefore conclude, mindful of
-9-
J-A12001-19
relevant case law and the rules of statutory interpretation, that
retaliation against victims or witnesses in criminal proceedings
may be properly prosecuted under Section 4953.
Commonwealth v. Nevels, 203 A.3d 229, 243 (Pa. Super. 2019) (footnote
omitted). “This panel is not empowered to overrule another panel of the
Superior Court.” Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super.
2013). Accordingly, we must conclude that Appellant’s sufficiency claim lacks
merit.
In his second claim, Appellant contends that the trial court abused its
discretion when it admitted prior-bad-acts evidence concerning Appellant’s
previous interaction with Officer Shawn Luff. However, Appellant’s argument
is wholly contingent upon his interpretation of the Retaliation statute, which
we have rejected, supra.5 Accordingly, Appellant’s second claim lacks merit.
In his third claim, Appellant contends that the presence of 20-25
uniformed police officers in the courtroom during opening arguments deprived
him of a fair trial. Appellant argues that such a large number of officers
constituted a “critical mass of police presence” that created an “unacceptable
risk of the jury being pulled, either consciously or subconsciously, to the side
of law enforcement [and] the Commonwealth.” Appellant’s Brief at 62.
Appellant also asserts that he was prejudiced because those officers “unfairly
____________________________________________
5 Under Appellant’s interpretation of the Retaliation statute, his prior criminal
conduct involving Officer Luff was irrelevant to proving the elements of that
crime. However, under the interpretation of the Retaliation statute adopted
by this Court in Nevels, the same evidence was necessary to proving the
elements of retaliation.
- 10 -
J-A12001-19
received a sneak peak of the highlights of what their testimony would be.”
Id. On this basis, Appellant contends that he is entitled to a new trial.
Our standard of review on a trial court’s decision to sequester
witnesses is based on abuse of discretion. See Cooper v.
Delaware Valley Med. Ctr., … 654 A.2d 547, 553 ([Pa.] 1995).
Thus, to establish the court’s ruling as a basis for a new trial the
appellant must demonstrate that the trial court failed to apply the
law correctly or acted for reasons of bias or other factors unrelated
to the merits of the case. Our scope of review for this analysis is
plenary.
Commonwealth v. Atwell, 785 A.2d 123, 125 (Pa. Super. 2001). “An abuse
of discretion is not merely an error in judgment but requires a finding of bias,
partiality, prejudice, ill will, manifest unreasonableness, or misapplication of
law.” Commonwealth v. Lepre, 18 A.3d 1225, 1226–27 (Pa. Super. 2011).
The trial court did not address this claim in its Rule 1925(a) opinion.
However, the court provided an extensive discussion of the reason for its
decision not to sequester the officers during opening arguments in response
to the sequestration request, as follows:
Defense lawyers make that kind of motion for openings because
they don’t want the witnesses to be prompted by what you say
they are going to say. They don’t want the witness to hear the
prosecutor say Mr. Hays is going to say, X, Y, Z and then Mr. Hays
is in the room for the opening to hear that, so Mr. Hays now knows
what he is supposed to say. That’s why they don’t like witnesses
in for openings.
In certain cases I exceed [sic] to that, but I am not going to
exceed [sic] to that in this case, and I am going to tell you why.
This case has a very substantial community interest factor on both
sides of the prosecution and the defense. What I mean by that is
that this case involved allegations that the Defendants
participated in a conspiracy, numerous conspiracies, to make false
calls to the police to get the police to respond for no great reason
- 11 -
J-A12001-19
other than to harass the police as I read the materials in the file
of this case.
Whether that is true or not, the police, as part of our community,
certainly have an interest in the outcome of this case beyond
normal police interests. According to the Commonwealth’s view of
the case, they have been put to task to respond to numerous false
calls placing themselves and the public at risk by responding.
There also appears to be, based on what I see in this case, some
other aspects of the case that involve the Defendants,
[Appellant]’s view of the police and his having run for mayor and
all of those issues that came up in his last case. All of this is
related from a community interest standpoint.
I am not saying that it is necessarily related to the case, but from
a community interest standpoint it is, and I think that the police
are entitled to participate in the public trial of this case just like
anybody else would be from the standpoint that they have an
interest in the case beyond their functioning as police officers.
They have an interest as members of the community.
Just like [Appellant] and Mrs. Richardson, particularly [Appellant],
who i[n] another forum has voiced interest in the safety of the
community, the welfare of the community. He has voiced it
verbally, he has voiced it in writing to me personally. In fact, what
I received this week was from him-again, I don’t want to ask him
to verify that-but, again, there is a lot of interest, a lot of
community interest coming from all angles of this case, and I think
that it would be unfair to the police to say that because you are a
police officer that you can’t, as a member of our community,
witness the public aspects of this trial. So for that reason, [I deny]
your request for the officers to be asked to leave the room even
if they are witnesses-and I don’t know which are and which aren’t
as we speak.
N.T., 7/6/15, at 37-39. The trial court later clarified that all officers would be
permitted to remain in the courtroom for opening arguments, but that any
officers who were going to appear as witnesses would be sequestered for the
remainder of the of the trial. Id. at 40. Appellant contends that the trial
court’s reasoning did not justify denying his request for sequestration of those
- 12 -
J-A12001-19
officers during opening arguments, citing Holbrook v. Flynn, 475 U.S. 560
(1986), and Commonwealth v. Gibson, 951 A.2d 1110 (Pa. 2008).
In Holbrook, the United States Supreme Court addressed a claim that
the defendant had been denied a fair trial due to “the presence of four
uniformed state troopers, sitting in the first row of the spectators’ section” of
the courtroom for the duration of his trial. Holbrook, 475 U.S. at 562. The
Court first acknowledged that: “Central to the right to a fair trial, guaranteed
by the Sixth and Fourteenth Amendments, is the principle that one accused of
a crime is entitled to have his guilt or innocence determined solely on the basis
of the evidence introduced at trial, and not on grounds of official suspicion,
indictment, continued custody, or other circumstances not adduced as proof
at trial.” Id. at 567 (cleaned up). However, the Court also stated that:
This does not mean … that every practice tending to single out the
accused from everyone else in the courtroom must be struck
down. Recognizing that jurors are quite aware that the defendant
appearing before them did not arrive there by choice or
happenstance, we have never tried, and could never hope, to
eliminate from trial procedures every reminder that the State has
chosen to marshal its resources against a defendant to punish him
for allegedly criminal conduct. To guarantee a defendant’s due
process rights under ordinary circumstances, our legal system has
instead placed primary reliance on the adversary system and the
presumption of innocence.
Id.
The Supreme Court had previously recognized that certain practices
were inherently unconstitutional because they threatened the fairness of
criminal proceedings without providing any counterbalancing benefit to a
- 13 -
J-A12001-19
recognized state policy. See id. at 568. For instance, forcing a defendant to
wear prison clothes was deemed by the Court to be categorically
unconstitutional. See id. (citing Estelle v. Williams, 425 U.S. 501 (1976)).
The Court also recognized similar problems with shackles and gags. However,
the Court observed that, in extreme circumstances, such as where a defendant
is “particularly obstreperous and disruptive” during trial proceedings, shackles
and gags might be used without violating the defendant’s right to a fair trial.
Id.
Turning to address the presence of uniformed police officers in a
courtroom, the Holbrook Court held that “the conspicuous, or at least
noticeable, deployment of security personnel in a courtroom during trial” was
not “the sort of inherently prejudicial practice that, like shackling, should be
permitted only where justified by an essential state interest specific to each
trial.” Id. at 568-69. However, the Court further reasoned that:
[I]t is possible that the sight of a security force within the
courtroom might under certain conditions create the impression
in the minds of the jury that the defendant is dangerous or
untrustworthy. However, reason, principle, and common human
experience counsel against a presumption that any use of
identifiable security guards in the courtroom is inherently
prejudicial. In view of the variety of ways in which such guards
can be deployed, we believe that a case-by-case approach is more
appropriate.
Id. at 569 (cleaned up).
In Gibson, a Pennsylvania Supreme Court case applying Holbrook, the
Court considered a claim that “the presence of numerous uniformed police
officers in the courtroom and surrounding areas during the guilt and penalty
- 14 -
J-A12001-19
phases of his trial created an inherently prejudicial atmosphere thereby
depriving him of a fair trial.” Gibson, 951 A.2d at 1137. However, our
Supreme Court rejected that claim, reasoning that, “where the record does
not indicate the number of uniformed officers present or any disturbance
caused thereby, we conclude that [the a]ppellant cannot demonstrate that an
unacceptable risk of the jury considering impermissible factors was created.”
Id. at 1139.
As noted by Appellant, it is true in the case sub judice that there were
substantially more officers involved than were present in Holbrook.
Furthermore, in contrast to the circumstances at issue in Gibson, the trial
court below provided a more definitive count of officers in the courtroom (20-
25). However, unlike either Holbrook or Gibson, the presence of a large
number of uniformed officers in the instant case did not extend beyond
opening arguments. Moreover, the presence of such a large number of police
officers was rationally explained by circumstances surrounding Appellant’s
criminal charges, rather than by a motivation to intimidate or otherwise
influence the jury. This is because the Commonwealth’s evidence primarily
involved the testimony of numerous police officers as both eyewitnesses
and/or victims, a situation that also led to an understandable desire by
members of the police community to be present during the trial.
As the Holbrook Court stated, there is no presumption that the
presence of multiple uniformed police officers in a courtroom, by itself, is so
inherently prejudicial that it denies a defendant his or her constitutional right
- 15 -
J-A12001-19
to a fair trial. See Holbrook, 475 U.S. at 567. In a different context, the
unexplained presence of so many officers may have been cause for serious
concern regarding the fairness of the proceedings. However, in this case, the
number of uniformed officers present was not disproportionately large in light
the circumstances that gave rise to Appellant’s charges. Moreover, the court’s
ruling against sequestration was limited to the opening statement phase of a
two-week trial, thereby minimizing any prejudice that could have resulted.
Furthermore, Appellant has not directed this Court’s attention to any
“disturbance” caused by the officers during opening statements. Gibson, 951
A.2d at 1139. For these reasons, we ascertain no abuse of discretion in the
trial court’s refusal to sequester the uniformed officers during the opening
statements at Appellant’s trial.
Finally, Appellant challenges the trial court’s discretion in sentencing him
outside the aggravated range of the sentencing guidelines. Appellant
contends that the trial court’s decision in that regard was patently
unreasonable.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
[the] appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. [720]; (3) whether [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
- 16 -
J-A12001-19
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal
citations omitted). Objections to the discretionary aspects of a
sentence are generally waived if they are not raised at the
sentencing hearing or in a motion to modify the sentence imposed.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003),
appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. Commonwealth v.
Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial question
exists “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Sierra, supra at 912-13.
As to what constitutes a substantial question, this Court
does not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006). An appellant must articulate the reasons the sentencing
court’s actions violated the sentencing code. Id.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Here, the Commonwealth concedes that Appellant “has complied with
the technical requirements necessary to obtain review of his sentence,”
Commonwealth’s Brief at 27, and that he presents “a substantial question for
this Court’s review[,]” id. at 28. We agree.6 Accordingly, we now turn to
address the merits of Appellant’s discretionary aspects of sentencing claim.
____________________________________________
6 Appellant filed a timely post-sentence motion raising the instant sentencing
claim, he filed a timely notice of appeal, and he provided this Court with a
Rule 2119(f) statement in his brief. Furthermore, Appellant raises a
substantial question for our review. “A claim that the court imposed an
- 17 -
J-A12001-19
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007) (citation
omitted).
Appellant argues that his
sentence is outside the sentencing guidelines and patently
unreasonable. The lower court sentenced [him] on Counts 2 and
5 where his guidelines were as follows:
Count 2: Conspiracy (False Alarm to Agency of Public Safety),
M1—RS to 6 [months’ incarceration], with a +/- factor of 3.
Count 5: Retaliation Against Witness, Victim, Party, M2—1 to 12
[months’ incarceration], with a +/- factor of 3.
[Appellant]’s guidelines were based, in part, on a calculated [Prior
Record Score] of 1. The lower court’s sentence, at least as it
pertained to Count 2, far exceeded the limits of the aggravated
range of the guidelines. The lower court imposed a two and a half
to five year[] sentence, which is a minimum sentence three times
what the aggravated guidelines called for. Aside from that being
drastic, it was a sentence based upon speculation and unfounded
presumptions.
Appellant’s Brief at 64-65.
Appellant is correct in that his sentence at count 2 is outside of the
aggravated range of the sentencing guidelines. His sentence at count 5 was
at the top limit of the standard range of the sentencing guidelines. When
____________________________________________
unreasonable sentence by sentencing outside the guidelines raises a
substantial question which is reviewable on appeal.” Commonwealth v.
Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002).
- 18 -
J-A12001-19
imposing a sentence of incarceration, a trial court “shall follow the general
principle that the sentence imposed should call for confinement that is
consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S. § 9721. When reviewing a
sentence imposed by a trial court, this Court “shall vacate” that sentence if it
is “outside the sentencing guidelines” and “unreasonable.” 42 Pa.C.S. §
9781(c)(3). When a sentence is within the guidelines, we are only compelled
to vacate when the trial court “applied the guidelines erroneously[,]” 42
Pa.C.S. § 9781(c)(1), or where “application of the guidelines would be clearly
unreasonable[,]” 42 Pa.C.S. § 9781(c)(2). “In all other cases the appellate
court shall affirm the sentence imposed by the sentencing court.” 42 Pa.C.S.
§ 9781(c). Because Appellant’s sentence at count 5 was within the guidelines,
and because he does not argue that the guidelines were erroneously applied,
or that it was clearly unreasonable to apply the guidelines with respect to that
count, we ascertain no abuse of discretion with regard to that aspect of
Appellant’s aggregate sentence.
Appellant argues that it was clearly unreasonable for the trial court to
impose the outside-the-guidelines sentence at count 2. The trial court
justified its departure from the guidelines as follows:
[Appellant]’s conduct can only be described as willful, deliberate,
repeated and designed to wreak havoc on the City of Pittsburgh
Police Bureau. [He] participated in conduct that resulted in over
100 false 911 calls being made without any legitimate purpose.
Many police officers were dispatched to the scene to respond to
- 19 -
J-A12001-19
the false 911 calls. Police officers responding to the calls were
unable to respond to legitimate 911 calls. The false calls cost the
city of Pittsburgh in excess of $11,000 to compensate the officers
and 911 technicians to process the false 911 calls. This [c]ourt
took particular note that [Appellant] did not stop his unlawful
conduct while the instant charges were pending. Incredibly, [he]
continued to participate in a conspiracy to make false 911 calls
during the pretrial course of this case. He ultimately pled guilty
to the charges of making the additional false 911 calls. In this
[c]ourt’s view, [Appellant] thumbed his nose at this [c]ourt, law
enforcement[,] and the law[,] and continued his affront after he
was placed on formal notice of criminal charges for making false
911 calls.
This [c]ourt considered the fact that [Appellant is] a very
intelligent man. He used his children to participate in the criminal
conduct. [Appellant] encouraged his wife and children to further
his personal animus toward the City of Pittsburgh Police
Department. He facilitated a complete lack of respect and
authority for the police officers who responded to the false 911
calls. He even made false accusations that police officers stole his
cell phone. [Appellant] orchestrated and encouraged a deluge of
vulgar, hostile and racial slurs toward the officers. The criminal
conduct was a persistent pattern of conduct that lasted over time
and continued despite the best efforts of the police officers to
convince [Appellant] and his wife to stop their unlawful behavior.
The evidence was clear that [Appellant]’s conduct was fueled by a
desire for retaliation for his arrest on September 3, 2013.
This [c]ourt could also not ignore the fact that every time a false
911 call was made, officers rushed to 3056 Bergman [Street].
During each call, officers travelled at high speeds risking their own
safety as well as the safety of the local community and motorists.
Police officers were dispatched to 3056 Bergman [Street] rather
than being available for legitimate 911 calls. Based on the totality
of the circumstances, this [c]ourt believed [Appellant] was a
danger to the community and his removal from the community for
a substantial period of time was necessary. This [c]ourt
considered [Appellant]’s rehabilitative needs, protection of the
public, deterring [Appellant] from engaging in future similar
conduct, deterring the public from committing such crimes,
retribution and the impact on the victim. The sentence imposed
in this case was not unduly harsh and properly reflected
[Appellant]’s culpability in this case.
- 20 -
J-A12001-19
TCO at 18-20.
Appellant believes the trial court drastically overstated his
dangerousness to the community. He essentially asserts that because the
trial court could not quantify certain aspects of the public harm caused by
Appellant’s course of conduct, his purported dangerousness was purely
speculative.
We disagree with the notion that the trial court had to identify specific
examples of harm to justify characterizing Appellant as dangerous to the
community. The risks created by Appellant’s conduct were not insignificant
merely because they did not come to fruition. As identified by the trial court,
there was a substantial danger to the community created by responding police
officers, who risked some level of harm to the community by quickly
responding to the 911 calls. Normally, that risk is justified by the immediate
need giving rise to a 911 call in the first place, a justification that hinges
almost entirely on the sincerity of the plea for assistance. Here, that risk was
never justified in response to the numerous 911 calls that resulted from
Appellant’s conspiratorial actions, and responsibility for those unjustified risks
falls squarely at Appellant’s feet. Additionally, by diverting resources from
legitimate calls, Appellant risked harm to the community on numerous
occasions by limiting the potential response capabilities of law enforcement.
The fact that no specific harm resulted from those repeated diversions is a
fortuitous result, not a result that speaks strongly to the non-dangerousness
of Appellant’s conduct. That law enforcement ostensibly did not require those
- 21 -
J-A12001-19
additional resources at the specific times when they received Appellant’s false
911 calls is again merely a fortuitous result, whereas the risk of harm was still
great. Therefore, we simply are not convinced by Appellant’s argument that
the trial court overstated his dangerousness in justifying its departure from
the sentencing guidelines.
Moreover, it is clear that Appellant’s dangerousness, or his
dangerousness with regard to the risks created by the false 911 calls
discussed above, was but one of many factors cited by the trial court. As is
obvious from the court’s reasoning above, it was particularly concerned with
the frequency of Appellant’s illegal conduct in furtherance of the conspiracy,
as well as his defiance of the authority of the court by continuing that behavior
even after he had been initially arrested. The court was also troubled that
Appellant had enlisted both his wife and minor children in this criminal
enterprise. These factors all speak to a great need to protect the public from
Appellant not present in a typical case involving false 911 calls, despite
Appellant’s relatively unsubstantial prior criminal record. They also speak to
a greater need for rehabilitation than may be present in the typical case.
As such, we conclude that the trial court acted reasonably when it
sentenced Appellant outside the guidelines at count 2, even if, acting in the
first instance, this Court may not have come to the same result. Accordingly,
we ascertain no abuse of discretion and, therefore, Appellant’s final claim lacks
merit.
Judgment of sentence affirmed.
- 22 -
J-A12001-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/1/2019
- 23 -