J-S57031-16 

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37 

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STRASSBURGER,* 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 criminal attempt homicide and 

carrying a firearm without a license. We affirm Appellant’s convictions, 

vacate the judgment of sentence, and remand with instructions. 

The charges in this matter stem from the shooting of Tertius Cooper 

on December 24, 2014. The victim positively identified Appellant as the 

shooter and, as a result, Appellant was arrested and charged with, inter alia, 

the above-mentioned offenses. On September 11, 2015, 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 14 years’ incarceration, 

followed by a ten year term of probation. No further penalty was imposed 

 

* Retired Senior Judge assigned to the Superior Court. 

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, 2015, 

in the Court of Common Pleas of Allegheny County, 

Criminal Division, at No(s): CP-02-CR-0001022-2015 
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for the firearm offense. This timely-filed appeal followed. Both Appellant 

and the trial court complied with the mandates of Pa.R.A.P. 1925. 

Appellant raises two issues for our review, which we 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 years of 

punishment illegal, as there was no specific and separate jury 

finding of serious bodily injury? 

Appellant’s Brief at 5 (unnecessary capitalization omitted). 

 In his first issue, Appellant argues that the trial court erred by allowing 

the Commonwealth to violate the sequestration order in place during trial. 

Appellant’s Brief at 20-25. Specifically, Appellant complains about the 

following exchange, which occurred during the Commonwealth’s direct 

examination of Terrah Lee, the victim’s paramour who was also an 

eyewitness to the shooting. Lee had been sequestered 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 question. 

Second of all, she couldn’t have any awareness of it. 

THE COURT: Well, it is the truth. I mean, that’s the 

theory. She can ask that, whether that’s the theory. 

Overruled. 
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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 telling 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 district 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 him 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 to breach the 

sequestration order and inform a sequestered witness of information that 

came to light during her sequestration caused [Appellant] 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-settled standard of review: 

The admissibility 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 abuse of discretion. An abuse of discretion 
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will not be found merely because an appellate court might have 

reached a different conclusion, but requires a result of manifest 

unreasonableness, or partiality, prejudice, bias, or 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 beyond a 

reasonable doubt. 

Commonwealth v. Travaglia, 28 A.3d 868, 873–74 (2011) (citation 

omitted). 

 Pennsylvania Rule of Evidence 615 provides that, with exceptions not 

relevant herein, “[a]t a party’s request the court may order witnesses 

sequestered so that they cannot learn of other witnesses’ testimony.” 

Pa.R.E. 615. “The purpose of sequestration is to prevent 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. Remedies 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, “the 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 quotation 
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marks omitted). We agree with the court’s conclusion that, “what happened 

here does not even remotely involve interaction between 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 assistant 

district attorney’s statement did not impermissibly allow Lee to mold her 

testimony to that of the witnesses who testified while she was sequestered. 

Accordingly, because the sequestration order was not compromised, the trial 

court did not err in overruling defense counsel’s objection. 

 Relying on Apprendi v. New Jersey, 530 U.S. 466 (2000), and its 

progeny, Appellant next contends, and both the Commonwealth and the trial 

court agree, that his sentence is illegal because the 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 review 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 omitted). 

 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 reasonable doubt.” Id. at 

 

1

 It is apparent from the record that the Commonwealth’s reference to 

“statements and questions” regarding Lee’s involvement 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 specifically denied Lee’s 

involvement. Id. at 146 (“Isn’t it true that [] Lee is the person that shot 

you?” “No.”). 
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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 imprisonment 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 bodily injury 

results may be sentenced to a term of imprisonment which shall 

be fixed by the court at not more than 40 years. Where serious 

bodily injury does not result, the person may be sentenced to a 

term of imprisonment which shall be fixed by the court at not 

more than 20 years. 

18 Pa.C.S § 1102(c) (emphasis added). This Court has held that, “[s]ince a 

finding of serious bodily injury increases the maximum 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 the verdict slip indicated 

that the jury was to make a separate finding with regard to serious bodily 

injury, in violation of the rule set forth in Apprendi. Accordingly, we find 

that Appellant’s sentence, which exceeds the maximum allowable penalty 

under 18 Pa.C.S § 1102(c) by four years, must be vacated and this matter 

remanded for resentencing. 

 For the foregoing reasons, we affirm Appellant’s conviction, but vacate 

his judgment of sentence and remand for resentencing consistent with 18 

Pa.C.S § 1102(c). 
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 Convictions affirmed. Judgment of sentence vacated. Case remanded 

with instructions. Jurisdiction relinquished. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/8/2016