Com. v. Fickling, R.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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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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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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
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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?
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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.
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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.
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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.
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[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
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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
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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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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/19
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