J-S57031-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBUR GER,* JJ. MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 08, 2016 Semaj Howard (Appellant) appeals from the judgment of sentence imposed following his conviction by a jury of crimi nal attempt homicide and carrying a firearm without a license. We affirm Ap pellant’s convictions, vacate the judgment of sentence, and remand with in structions. The charges in this matter stem from the shooting o f Tertius Cooper on December 24, 2014. The victim positively identi fied Appellant as the shooter and, as a result, Appellant was arrested an d charged with, inter alia , the above-mentioned offenses. On September 11, 201 5, a jury convicted Appellant and, on December 3, 2015, the trial court sentenced Appellant at the criminal attempt charge to a term of seven to 1 4 years’ incarceration, followed by a ten year term of probation. No furth er penalty was imposed * Retired Senior Judge assigned to the Superior Cou rt. COMMONWEALTH OF PENNSYLVANIA, Appellee

v. : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

SEMAJ HOWARD, : : Appellant : No. 16 WDA 2016

Appeal from the Judgment of Sentence December 3, 20 15, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0001022-2015J-S57031-16

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for the firearm offense. This timely-filed appeal followed. Both Appellant and the trial court complied with the mandates of P a.R.A.P. 1925. Appellant raises two issues for our review, which w e have renumbered for ease of disposition.

I. Did the trial court abuse its discretion when it allowed the Commonwealth to violate the sequestration order? II. Is [Appellant’s] sentence totaling over 20 year s of punishment illegal, as there was no specific and se parate jury finding of serious bodily injury? Appellant’s Brief at 5 (unnecessary capitalization omitted). In his first issue, Appellant argues that the tria l court erred by allowing the Commonwealth to violate the sequestration order in place during trial. Appellant’s Brief at 20-25. Specifically, Appellan t complains about the following exchange, which occurred during the Commo nwealth’s direct examination of Terrah Lee, the victim’s paramour wh o was also an eyewitness to the shooting. Lee had been sequester ed in the hallway prior to testifying. [ASSISTANT DISTRICT ATTORNEY (ADA)]: Are you aware the defense is alleging that you shot Mr. Cooper? [DEFENSE COUNSEL]: Objection. THE COURT: What’s the objection? [DEFENSE COUNSEL]: First of all, it is a leading qu estion. Second of all, she couldn’t have any awareness of i t. THE COURT: Well, it is the truth. I mean, that’s t he theory. She can ask that, whether that’s the theor y. Overruled.J-S57031-16

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[LEE]: So you are saying he said I shot him? [ADA]: Well, I am asking you, do you know that the defense is -- [LEE]: Who is defense? Him? [ADA]: The defense attorney? [LEE]: Okay. [ADA]: And [Appellant] are the defense. [LEE]: Okay, I’m sorry. I am confused. [ADA]: Are you aware that there have been questions and statements regarding calling you the shooter? [LEE]: No, I wasn’t aware of that. Thanks for tell ing me, because I wasn’t aware of that. That’s all new to me. N.T., 9/9-11/2015, at 196-97. The assistant distri ct attorney then asked Lee if she shot Cooper. Id. Lee responded that she had not, but that “if [she] would have shot him, [she] would have shot hi m when he had a [protection from abuse order] on [her] in 2014.” Id. at 197. Lee again identified Appellant as the man who shot the victim

. Id. at 198. Appellant argues that “allowing the Commonwealth t o breach the sequestration order and inform a sequestered witnes s of information that came to light during her sequestration caused [Appe llant] to suffer actual harm.” Appellant’s Brief at 24. This issue relates to the admission of evidence at trial and is governed by our well-settl ed standard of review: The admissibility of evidence is solely within the discretion of the trial court, and a trial court’s evidentiary ruling s will be reversed on appeal only upon abuse of discretion. An abuse o f discretionJ-S57031-16

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will not be found merely because an appellate court might have reached a different conclusion, but requires a resu lt of manifest unreasonableness, or partiality, prejudice, bias, o r ill-will, or such lack of support so as to be clearly erroneous. Moreover, an erroneous ruling by a trial court on an evidentiary issue does not necessitate relief where the error was harmless bey ond a reasonable doubt. Commonwealth v. Travaglia , 28 A.3d 868, 873–74 (2011) (citation omitted). Pennsylvania Rule of Evidence 615 provides that, w ith exceptions not relevant herein, “[a]t a party’s request the court may order witnesses sequestered so that they cannot learn of other witn esses’ testimony.” Pa.R.E. 615. “The purpose of sequestration is to p revent a witness from molding his testimony with that presented by other witnesses.”

Commonwealth v. Stevenson , 894 A.2d 759, 767 (Pa. Super. 2006). As

the Comment

to Rule 615 notes, “The trial court has discretion in choosing a remedy for violation of a sequestration order. Reme dies include ordering a mistrial, forbidding the testimony of the offending witness, or an instruction to the jury.” Comment Pa.R.E. 615 (citations omitted). Appellant argues that Lee benefitted and was able to change her testimony upon learning that the defense theory of the case was that she shot the victim. As the trial court points out, “t he reason for the sequestration order is to deter suggestibility and to prevent one witness from tailoring his or her testimony to conform to, or avoid conflict with, that of another.” Trial Court Opinion, 3/23/2016, at 4 ( citation and quotationJ-S57031-16

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marks omitted). We agree with the court’s conclusi on that, “what happened here does not even remotely involve interaction bet ween witnesses and the sanctity of their testimony.” Id. The question posed by the assistant district attorney divulged the defense’s theory of the case, not the testimony of

other witnesses. 1 Thus, contrary to Appellant’s argument, the assis tant district attorney’s statement did not impermissibly allow Lee to mold her testimony to that of the witnesses who testified wh ile she was sequestered. Accordingly, because the sequestration order was no t compromised, the trial court did not err in overruling defense counsel’s o bjection. Relying on Apprendi v. New Jersey , 530 U.S. 466 (2000), and its progeny, Appellant next contends, and both the Comm onwealth and the trial court agree, that his sentence is illegal because t he jury did not determine that he caused the victim serious bodily injury. Id . at 18-20. We review Appellant’s claim mindful that “[o]ur standard of r eview over such questions

is de novo and our scope of review is plenary.” Commonwealth v. Akbar , 91 A.3d 227, 238 (Pa. Super. 2014) (citations omitt ed).

In Apprendi , the United States Supreme Court determined that “ any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a rea sonable doubt.” Id. at

1 It is apparent from the record that the Commonweal th’s reference to “statements and questions” regarding Lee’s involvem ent in the shooting was limited to the opening of defense counsel, N.T., 9/ 9-11/2015, at 30-33, and the cross-examination of the victim, who specifical ly denied Lee’s involvement. Id. at 146 (“Isn’t it true that [] Lee is the person t hat shot you?” “No.”).J-S57031-16

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490. With respect to the crime of criminal attempt homicide the Crime Code provides as follows.

* * * (c) Attempt, solicitation and conspiracy.-- Notwithstanding section 1103(1) (relating to sentence of imprisonme nt for felony), a person who has been convicted of attempt , solicitation or conspiracy to commit murder, murder of an unborn child or murder of a law enforcement officer where serious b odily injury results may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years. Wh ere serious bodily injury does not result, the person may be sentenced to a term of imprisonment which shall be fixed by the co urt at not more than 20 years. 18 Pa.C.S § 1102(c) (emphasis added). This Court h as held that, “[s]ince a finding of serious bodily injury increases the maxi mum sentence, it is an element of the offense and must be proved beyond a reasonable doubt,” pursuant to Apprendi

. Commonwealth v. Taylor , 65 A.3d 462, 465 (Pa. Super. 2013). Here, neither the trial court’s instructions nor t he verdict slip indicated that the jury was to make a separate finding with r egard to serious bodily injury, in violation of the rule set forth in Apprendi . Accordingly, we find that Appellant’s sentence, which exceeds the maximu m allowable penalty under 18 Pa.C.S § 1102(c) by four years, must be va cated and this matter remanded for resentencing. For the foregoing reasons, we affirm Appellant’s c onviction, but vacate his judgment of sentence and remand for resentencin g consistent with 18 Pa.C.S § 1102(c).J-S57031-16

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Convictions affirmed. Judgment of sentence vacate d. Case remanded with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 9/8/2016