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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 31⁄2-7 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.
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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, codefendant 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-yearold 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 
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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 
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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 
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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 
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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 21⁄2-5 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. 
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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, courtordered 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 predated 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.
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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 
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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 
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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.
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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 
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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 
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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 
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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 
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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 
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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 
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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 
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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). 
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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 
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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.
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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 
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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. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/1/2019