J-A09023-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

SEIFULLAH ABDUL-SALAAM

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 

____________________________________________

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