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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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

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The Commonwealth appeals1from 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

 

1 The 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.
J. S51036/18 & J. S51037/18

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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