Com. v. Abdul-Salaam, S. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SEIFULLAH ABDUL-SALAAM : No. 478 MDA 2022
Appeal from the Order Entered March 22, 2022
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0001499-1994
BEFORE: PANELLA, P.J., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED AUGUST 08, 2023
Appellant, the Commonwealth of Pennsylvania (Commonwealth),
appeals as of right under Pa.R.A.P. 311(d) from the order entered on March
22, 2022, which precluded victim impact evidence and prohibited the presence
of non-testifying, uniformed police officers in the courtroom at Seifullah
Abdul-Salaam’s (Abdul-Salaam) resentencing hearing. For the reasons that
follow, we affirm.
Our Supreme Court previously summarized this case as follows:
On March 15, 1995, a jury found [Abdul-Salaam] guilty of
first-degree murder, robbery and conspiracy in connection with
the fatal shooting of Officer Willis Cole of the New Cumberland
Police Department. Following a sentencing hearing, the jury
determined that the four aggravating circumstances it found
outweighed the one mitigating circumstance it found and
accordingly, fixed [Abdul-Salaam]’s penalty at death. On June
18, 1996, [our Supreme] Court affirmed [Abdul-Salaam]'s
judgment of sentence. Commonwealth v. Abdul-Salaam, 678
A.2d 342 (Pa. 1996).
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Commonwealth v. Abdul-Salaam, 808 A.2d 558, 559–560 (Pa. 2001).
In 2018, after the denial of multiple petitions for collateral review under
the Pennsylvania Post Conviction Relief Act1 (PCRA), the Third Circuit Court of
Appeals affirmed Abdul-Salaam’s convictions, but granted a provisional writ
of habeas corpus regarding the penalty phase, explaining:
Abdul-Salaam, after exhausting his state remedies, filed [a]
petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254,
challenging his sentence based on trial counsel's provision of
ineffective assistance of counsel by failing to investigate
adequately and to present sufficient mitigation evidence at
sentencing. The United States District Court for the Middle District
of Pennsylvania denied the petition[, however], because trial
counsel could not have had a strategic reason not to investigate
Abdul-Salaam's background school and juvenile records, to
acquire a mental health evaluation, or to interview more family
members about his childhood abuse and poverty, [the Third
Circuit declared] counsel's performance was deficient. Further,
because there [was] a reasonable probability that the
un-presented evidence would have caused at least one juror to
vote for a sentence of life imprisonment instead of the death
penalty, [the Court of Appeals] concluded that Abdul-Salaam []
met the prejudice prong of the ineffective assistance of counsel
inquiry. Accordingly, [the Court of Appeals] reverse[d] in part the
[o]rder of the District Court and remand[ed] to grant a provisional
writ of habeas corpus directed to the penalty phase.
Abdul-Salaam v. Sec'y of Pennsylvania Dep't of Corr., 895 F.3d 254, 257
(3d Cir. 2018).
On August 23, 2018, the Commonwealth petitioned the trial court for a
new sentencing hearing, again seeking the death penalty, and provided notice
of the same four, aggravating circumstances proffered originally at
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1 42 Pa.C.S.A. §§ 9541-9546.
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Abdul-Salaam’s 1995 sentencing hearing. After a series of delays, the trial
court scheduled resentencing for April 4, 2022. On February 15, 2022, the
Commonwealth submitted a list of sentencing witnesses, as well as notice of
its intention to present victim impact testimony pursuant to 42 Pa.C.S.A.
§ 9711(a)(2). 2 On February 27, 2022, relevant to the current appeal,
Abdul-Salaam filed motions in limine requesting, inter alia, that the trial court
preclude: (1) the presence of non-testifying, uniformed law enforcement
officers in the courtroom during sentencing and, (2) the Commonwealth’s
proffered victim impact testimony. On March 22, 2022, the trial court granted
Abdul-Salaam relief, prohibiting the presence of non-testifying, uniformed
police officers in the courtroom and precluding victim impact testimony during
resentencing. This timely, interlocutory appeal as of right followed.3
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2 “In the sentencing hearing, evidence concerning the victim and the impact
that the death of the victim has had on the family of the victim is admissible.”
42 Pa.C.S.A. § 9711(a)(2).
3 Initially, before we consider the merits of the appeal, we must determine
whether we have jurisdiction. First, we note that our Supreme Court has
“exclusive jurisdiction of appeals from final orders of the courts of common
pleas” relating to the review of death sentences. 42 Pa.C.S.A. § 722. As
explained above, however, Abdul-Salaam obtained relief from his sentence of
death and has not been resentenced. In this appeal, we are asked to review
only the trial court’s rulings on certain pre-sentence motions, as the court has
not yet entered a final order. On March 23, 2022, the Commonwealth filed a
notice of appeal, with an accompanying affidavit and jurisdictional statement,
certifying that in accordance with Pa.R.A.P. 311(d), the trial court’s order
entered on March 22, 2022, will substantially handicap the prosecution. See
Pa.R.A.P. 311(d) (“In a criminal case, under circumstances provided by law,
the Commonwealth may take an appeal as of right from an order that does
not end the entire case where the Commonwealth certifies in the notice of
(Footnote Continued Next Page)
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On appeal, the Commonwealth raises the following issues for our
review:
I. Did the [t]rial [c]ourt err when it denied the slain officer’s
family the right to testify at the sentencing proceeding when
the change in the Rules of Criminal Procedure is not
substantive and when [victim] impact is an appropriate
factor for the jury to consider?
II. Did the [t]rial [c]ourt err when it preemptively prohibited
uniformed officers from observing trial when there is no
indication that mere presence [of] uniformed officers would
cause a disturbance or impact the ability of the jury to
remain impartial?
Commonwealth’s Brief at 7.
In its first issue presented, the Commonwealth argues that the trial
court erred by denying its motion to present impact statements from the
victim’s family at the resentencing hearing. Commonwealth’s Brief at 17-27.
More specifically, the Commonwealth asserts:
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appeal that the order will terminate or substantially handicap the
prosecution.”). “[W]hen an order terminates or has the practical effect of
terminating some or all of the Commonwealth's case, or substantially
handicaps the Commonwealth's case, and the Commonwealth has certified
the same in good faith, the Commonwealth is entitled to an interlocutory
appeal as of right under Rule 311(d).” Commonwealth v. White, 910 A.2d
648, 655 (Pa. 2006); see also Commonwealth v. Allburn, 721 A.2d 363,
365 (Pa. Super. 1998) (citations omitted) (“The Commonwealth's good faith
certification, alone, provides an absolute right to appeal; it is not required to
demonstrate the need for evidence” and “[t]he Commonwealth does not have
to prove it will be substantially handicapped; the good faith certification
suffices.”) Because the Commonwealth certified that its case will be
substantially handicapped, we accept jurisdiction over this appeal. Finally, we
note that the Commonwealth and trial court complied timely with Pennsylvania
Rule of Appellate Procedure 1925. The trial court issued an opinion pursuant
to Pa.R.A.P. 1925(a) on June 9, 2022.
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Officer Cole was murdered in broad daylight on August 19, 1994.
On that date [Abdul-Salaam] committed the murder, it is not
disputed that the law did not allow the Commonwealth to present
what is now referred to as “victim impact testimony.” In 1995,
the legislature amended the sentencing procedure for murder of
the first[-]degree to allow [the] Commonwealth to present
evidence “concerning the victim and the impact that the death of
the victim has had on the family of the victim.” 42 Pa.C.S.A.
§ 9711(a)(2). Under the current statute, the trial court is also
required to instruct the jury that they shall consider evidence of
the victim and the impact on the murder victim’s family when
weighing the aggravating circumstances against any mitigation.
42 Pa.C.S.A. § 9711(c)(2).
Id. at 18-19 (footnote and unnecessary capitalization omitted). The
Commonwealth argues that the trial court erred by relying on our Supreme
Court’s decision in Commonwealth v. Fisher, 681 A.2d 130 (Pa. 1996) to
bar victim impact evidence at resentencing. Id. at 20-21. More specifically,
the Commonwealth maintains that the trial court erred by determining that
“impact testimony is prohibited because the date of the offense controls the
procedural rules.” Id. at 20. The Commonwealth argues that although
Section 9711(a)(2) was not in effect at the time of the killing, “because this
rule was procedural in nature and does not substantially change the penalty
for [Abdul-Salaam’s] crime[s],” there was no potential violation of ex post
facto punishment for a past crime, and, therefore, the trial court erred by
precluding impact statements at resentencing. Id. at 21-22. Finally, we note
that “[t]he Commonwealth does recognize that the Pennsylvania Supreme
Court may need to explicitly overrule Fisher for the Commonwealth to obtain
its requested relief [and i]f this Honorable Court finds it cannot provide the
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Commonwealth relief, the Commonwealth intends to pursue a petition for
allowance of appeal with the Pennsylvania Supreme Court.” Id. at 21 n.7.
Our standard of review is well-established:
In evaluating the denial or grant of a motion in limine, our
standard of review is the same as that utilized to analyze an
evidentiary challenge. It is well settled that the admission of
evidence is solely within the discretion of the trial court, and a trial
court's evidentiary rulings will be reversed on appeal only upon an
abuse of that discretion. An abuse of discretion will not be found
based on a mere error of judgment, but rather occurs where the
court has reached a conclusion that overrides or misapplies the
law, or where the judgment exercised is manifestly unreasonable,
or the result of partiality, prejudice, bias or ill-will.
Commonwealth v. Hicks, 151 A.3d 216, 224 (Pa. Super. 2016) (internal
citations and quotations omitted). Moreover, when the issue presented is a
pure question of law, our standard of review is de novo and our scope is
plenary. Commonwealth v. Jemison, 98 A.3d 1254, 1257 (Pa. 2014)
(citation omitted).
Here, the trial court determined:
[The trial court] precluded the Commonwealth from presenting
victim impact evidence because [Pennsylvania law provides] no
other alternative in light of our Supreme Court’s holdings in
Commonwealth v. Fisher, 681 A.2d 130 (Pa. 1996);
Commonwealth v. McNeil, 748 A.2d 166 (Pa. 1996); and
Commonwealth v. Young, 748 A.2d 166 (Pa. 1999). Those
cases specifically held that legislation allowing victim impact
evidence only applies to offenses occurring on or after its effective
date. See Fisher, 681 A.2d at 145 n.7; McNeil, 748 A.2d at
1259-1260; and Young, 748 A.2d at 185. It is not a matter of
when the sentencing hearing takes place, but rather, when the
offense took place. Here, the offense occurred in 1994, well
before the effective date of the 1995 sentencing amendment.
Therefore, having no authority to ignore the Supreme Court
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precedent directly on-point, [the court is] compelled to prohibit
the presentation of victim impact evidence.
Trial Court Opinion, 6/9/2022, at 2-3.
We agree with the trial court’s assessment. As our Supreme Court
explained in Fisher:
On October 11, 1995, the death penalty statute was amended so
as to permit evidence concerning the victim and the impact that
the victim's death had on the family of the victim to be admitted
in the sentencing hearing. The amendment, which was to take
effect 60 days thereafter, applies only to sentences imposed for
offenses which took place on or after its effective date. Thus, the
amendment does not apply to the offense committed by [Fisher,
whose offense occurred on July 10, 1980]. References in this
opinion to our capital sentencing scheme are limited to the scheme
in effect prior to the 1995 amendment.
Fisher, 681 A.2d at 145 n.7. Since Fisher, our Supreme Court has
consistently held that the 1995 Amendment to § 9711(a)(2)—allowing
admission of victim impact evidence—applies only to offenses that occurred
on or after its effective date, December 11, 1995. Commonwealth v. Laird,
119 A.3d 972, 1007 (Pa. 2015); Commonwealth v. Duffey, 889 A.2d 56(Pa. 2005) (“the 1995 amendment to the death penalty statute permitting
victim impact evidence applies only to sentences imposed for offenses which
took place on or after the effective date of the amendment...”); see also
Commonwealth v. Tedford, 960 A.2d 1, 40 n.28 (Pa. 2008)
(“Pennsylvania's death penalty statute was amended on October 11, 1995 so
as to allow victim-impact evidence; the amendment, however, only applies to
sentences imposed for offenses committed on or after its effective date.”).
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Victim impact evidence was not permitted for offenses which took place before
the 1995 amendment to Section 9711(a)(2). In this case, there is no dispute
that the offenses at issue were committed on August 19, 1994. See
Commonwealth v. Abdul-Salaam, 678 A.2d 342, 345 (Pa. 1996). As such,
bound by Fisher and progeny, the Commonwealth was not permitted to
present victim impact testimony at sentencing and the trial court properly
denied relief. Accordingly, the Commonwealth’s first issue lacks merit.
In its second issue presented, the Commonwealth argues that the trial
court erred when it precluded the presence of non-testifying, uniformed police
officers inside the courtroom during re-sentencing. Commonwealth’s Brief at
28-34. The Commonwealth argues that courts must be open to the public,
but “the [t]rial [c]ourt appears to have assumed a disturbance will take place
despite receiving no indication that there would be a large number of
uniformed officers in attendance nor that any of the officers were planning to
do anything other than quietly and respectfully observe the proceeding.” Id.
at 31. Additionally, the Commonwealth asserts that “[t]he trial court also
failed to consider that [Abdul-Salaam] has already been found guilty of his
crimes beyond a reasonable doubt and exhausted all his appeal rights [while
a] sentencing proceeding inherently poses a lower risk of prejudice.” Id.
Finally, the Commonwealth argues that the trial court’s “ruling is inconsistent
with its own previous rulings in cases involving violence towards police
officers.” Id. at 32.
We adhere to the following standards:
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A trial court's decision regarding access to judicial ... proceedings
is within the sound discretion of the trial court, and we will reverse
only if the trial court abuses its discretion. Discretion is abused
when the course pursued represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill will.
Commonwealth v. Phillips, 2008 PA Super 30, ¶ 11, 946 A.2d 103, 108-109
(2008) (internal citations and quotations omitted).
Moreover, our Supreme Court previously determined:
The right to a public trial, as guaranteed in our state and federal
constitutions, serves two purposes. An accused cannot be subject
to a star chamber proceeding and the public is assured that
standards of fairness are being observed. Confidence in our
system of jurisprudence is enhanced by such openness.
It has been established already that the First Amendment to the
Federal Constitution is broad enough to encompass the right of
access to criminal trials to the public and media[.]
The value of openness lies in the fact that people not actually
attending trials can have confidence that standards of fairness are
being observed; the sure knowledge that anyone is free to attend
gives assurance that established procedures are being followed
and that deviations will become known.
A trial judge may impose restrictions to maintain the integrity of
the proceedings in the courtroom. The United States Supreme
Court [has] held that a trial judge may in the interest of the fair
administration of justice, impose reasonable limitations on access
to a trial.
The Supreme Court went on to state the standard for such
limitation of access:
The question in a particular case is whether that control is
exerted so as not to deny or unwarrantedly abridge ... the
opportunities for the communication of thought and the
discussion of public questions immemorially associated with
resort to public places.
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Commonwealth v. Berrigan, 501 A.2d 226, 232 (Pa. 1985) (internal
citations and footnotes omitted); see also Commonwealth v. Philistin, 53
A.3d 1, 32 (Pa. 2012), citing Holbrook v. Flynn, 475 U.S. 560, 570–571
(1986) (“We do not minimize the threat that a roomful of uniformed and
armed policemen might pose to a defendant's chances of receiving a fair trial”
and “[w]henever a courtroom arrangement is challenged as inherently
prejudicial ... the question must be not whether jurors actually articulated a
consciousness of some prejudicial effect, but rather whether ‘an unacceptable
risk is presented of impermissible factors coming into play.’”); see also
Commonwealth v. Gibson, 951 A.2d 1110, 1139 (Pa. 2008) (“[W]e
acknowledge that police officers' attendance at trial may cause concern with
regard to jurors' perceptions and courtroom atmosphere.”).
Upon review of the record and applicable law, we discern no abuse of
discretion or error in the restrictions adopted to by the trial court to maintain
the integrity of the proceedings in the courtroom. First, we note that the trial
court did not prohibit or otherwise restrict public access to the sentencing
hearing. The trial court merely ordered that non-testifying police officers were
not permitted to wear their uniforms in the courtroom and in the presence of
the jury. By its terms, the court’s order preserved the twin aims of holding
trial open to the public: the avoidance of secretive proceedings and the
enhanced confidence that open trials promote. The trial court also offered
another viewing alternative if police officers wished to wear their uniforms
while watching the live proceeding. See Trial Court Opinion, 6/9/2022, at 1
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n.1 (“Those off-duty uniformed officers would have been otherwise allowed to
watch the trial as it was to be simultaneously streamed to another courtroom
in an effort to expand public viewing capacity.”). Here, the trial court’s
restrictions did not deny or unwarrantedly abridge the public function of
sentencing. Instead, in the interest of the fair administration of justice, the
trial court imposed reasonable limitations on the access to the courtroom.
Because the trial court’s decision properly applied the law and the record
shows the decision was not the result of partiality, prejudice, bias or ill-will,
we discern no abuse of discretion. Accordingly, the Commonwealth is not
entitled to relief on its second appellate claim.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/08/2023
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