COMMONWEALTH of Pennsylvania, Appellee v. Rafie L. ALI, Appellant.
No. 1 EM 2015
Superior Court of Pennsylvania.
March 5, 2015.
Reargument Denied May 8, 2015.
112 A.3d 1210
Argued Sept. 10, 2014.
Daniel C. Bardo, Assistant District Attorney, Norristown, for Commonwealth, appellee.
BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*
OPINION BY WECHT, J.:
Rafie L. Ali appeals his November 26, 2013 judgment of sentence. We conclude that Ali is not entitled to relief on his trial-related claims. However, for the reasons set forth herein, Ali is entitled to a new sentencing proceeding. Consequently, we vacate the judgment of sentence and we remand this case for re-sentencing.
The trial court set forth the factual and procedural history of this case in its March 25, 2014
A Criminal Complaint was filed on June 30, 2012, and [Ali] was ultimately charged with two counts of Corrupt Organizations [
18 Pa.C.S. § 911 ]; numerous offenses under the Controlled Substance, Drug, Device, and Cosmetic Act [35 P.S. § 780-113, et seq. ]; and two counts of criminal conspiracy [18 Pa.C.S. § 903 ]. The events that led to these charges began on May 22, 2012, around 11:19 a.m., when police officer Michael Breslin, dressed in a t-shirt, jeans, and sneakers, went to a store at 315 East High Street in Pottstown, Montgomery County (hereinafter “Achi Store“). Officer Breslin was given twenty dollars of U.S. Currency and his purpose was to buy the drug K2 or synthetic marijuana from the Achi Store.After getting an iced tea from the cooler, Officer Breslin stood in line at the cash register and observed cigars and blunts on the wall behind the register, but did not see any K2. Also while standing in line, Officer Breslin noticed two state lottery workers installing or working on a lottery machine and [Ali] was behind the cash register. When it was his turn to pay, Officer Breslin asked [Ali] for a Purple Night Owl blunt and asked if [Ali] had any “Kush,” which Officer Breslin knew as a brand of K2. [Ali] quietly said “no I don‘t” while appearing to nervously look over at the state lottery worker. Upon asking if he had any type of K2, [Ali] again said “No, no I don‘t.” Officer Breslin purchased the iced tea and Night Owl blunt and left.
Also on May 22, 2012 around noon, Officer Peter Yambrick entered the Achi Store wearing facial hair, a t-shirt, khaki shorts and flip-flops, with the task of purchasing K2 or synthetic marijuana. Officer Yambrick retrieved a Diet Pepsi and took it to the counter where the cash register is located. [Ali] was behind the cash register and nobody else was in the store at that time. Officer Yambrick asked [Ali] for a Great Phillies blunt, which is a cigar. After [Ali] put the cigar on the counter, Officer Yam-
brick asked him if he had any K2, to which [Ali] shifted his eyes to look around the store and then responded, “Yeah. Five bucks. How many do you want?” Officer Yambrick told him two. [Ali] again looked around the store and reached underneath the display case, put two containers of K2 on the counter, and slid them toward Officer Yambrick. The officer paid for his items with the pre-recorded U.S. Currency he was given and put the K2 in his pocket. After returning to the police station, another plan was developed to send Officer Yambrick back to the Achi Store to see if there were any surveillance cameras that would show the buying and selling of K2. The officer went back to the store at 1:15 p.m., retrieved a bag of Doritos and got into the checkout line behind another individual. The person in front of Officer Yambrick asked for a cigar, and then a conversation developed between the individual and [Ali], who was behind the counter. Officer Yambrick saw [Ali] look around the store and reach under the display case to retrieve K2 for the individual in front of him. Thereafter, around 4:30 p.m. the same day, Sergeant Michael Markovich was working at the Pottstown Police Department and served a search warrant at the Achi Store as a result of his investigations. When he arrived at the store[, Ali] was not present, but his co-defendant Mohammed Himed was working. Retrieved through the search warrant were: $636 laying on top of the open cash register drawer and alongside the register; $247 in a Dutch Masters cigar box that was located underneath the counter; $540 in a Game cigar box found on a shelf underneath the counter; twelve vials of synthetic marijuana hanging right above the box of cash, eleven of which were labeled “Dead Man” and another with the label “Hawaiian Bliss“; clear sandwich bags behind the counter on a shelf; a black plastic bag containing a clear plastic bag filled with green vegetable matter; a marijuana grinder; a .40 caliber semiautomatic handgun found on a small shelf below the counter2; a white box containing [twenty-four] vials of “Hawaiian Bliss,” or Kush found inside the storage room behind the store; ten glass pipes commonly used to smoke crack cocaine, being sold as pens found in a cup; thirteen glass pipes commonly used to smoke marijuana on a display wall behind the counter; razor blades found underneath the counter; twenty more crack pipe pens found in a black plastic bag underneath the counter; a display rack behind the counter containing cigars, blunts, wraps and rolling papers; copper mesh wires in a box labeled Chore Boy copper scrubbing pads; copper wire found underneath the counter; and a Verizon bill addressed to [Ali].
[Ali] was ultimately charged with numerous crimes as a result of Sergeant Markovich‘s investigation. Thereafter, a jury trial commenced on June 10, 2013 and ended on June 13, 2013. The jury found [Ali] guilty of the following charges: Count 1; Corrupt Organizations—Association [
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[At the November 26, 2013 sentencing hearing, the trial court permitted the Commonwealth to introduce victim impact testimony from the families of James Crawford and Rachel Witt, victims of a vehicle crash that allegedly was caused by the use of synthetic marijuana.] [T]he crimes [Ali] was charged and ultimately convicted of arose from an investigation that occurred as a result of a fatal accident. Detective Robert Turner III was called to the scene of this accident around 11:29 p.m. on May 21, 2012. [Fifteen]-year-old Rachel Witt and [twenty-eight]-year-old James Crawford were both killed [in] the vehicle crash. As part of a search warrant, Detective Turner located a bottle of a brownish-green leafy substance in the back of the vehicle, which was labeled “Dead Man.” This substance was confirmed by the National Medical Services lab as containing AM-2201 and JWH-018, also known as synthetic marijuana. Roger Malloy was determined to be the driver of the vehicle on the night of the accident and ultimately pled guilty to two counts of Homicide By Vehicle while Driving Under the Influence, and Accidents Involving Personal Injury or Death While Not Properly Licensed. The presence of AM-2201 and delta-9-THC was found in Mr. Malloy‘s blood from a toxicology report taken the morning after the accident.
During [Ali‘s] sentencing hearing, the Commonwealth presented testimony from Roger Malloy‘s guilty plea, where he admitted to smoking K2 before the accident and to the negative [effects that] it had on him. Additionally, during [Ali‘s] trial Dr. Edward Barbieri described the toxic impact synthetic marijuana can have on individuals, even when used in low doses. Finally, during [] trial the jury found [Ali] guilty beyond a reasonable doubt [as an accomplice] of delivering synthetic marijuana to James Crawford and Kendall Harper on May 21, 2012, both of whom were in the vehicle involved in the accident that took place the same day.
[The trial] court granted the Commonwealth‘s motion and permitted the Commonwealth to incorporate the victim impact testimony of Benjamin Witt; Lillian Mumford; and Tracy Ann Witt, which they previously gave under oath at the sentencing for Roger Malloy.
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On November 26, 2013, the court sentenced [Ali] to fifteen [to] thirty months in a State Correctional Institution on Count 1, Corrupt Organizations; another fifteen [to] thirty months ... for Count 2, Corrupt Organizations; Count 3, Possession with Intent to Deliver a Controlled Substance, with a school zone enhancement, not less than twelve nor more than [twenty-four] months; Count 4, Possession with Intent to Deliver a Controlled Substance, again with a school zone enhancement, not less than twelve nor more than [twenty-four] months; Count 5, another Possession with Intent to Deliver a Controlled Substance with a youth enhancement, not less than twelve nor more than [twenty-four] months; and for Count 6, Possession with Intent to Deliver a Controlled Substance with a youth enhancement, not less than [eighteen months] nor more than [thirty-six] months. All sentences [were ordered] to run consecutively and the remaining counts are a sentence of guilt without further penalty.
[Ali] did not file any post-sentence motions. On December 18, 2013, he filed a
Trial Court Opinion (“T.C.O.“), 3/25/2014, at 1-5, 10-11 (some footnotes and citations to the notes of testimony omitted). On March 25, 2014, the trial court issued an opinion pursuant to
Ali raises the following issues for our consideration:
- Whether the Honorable Trial Court erred by applying the school zone enhancement for sentencing purposes because the Commonwealth did not establish that the Y.W.C.A. fell within the ambit of the enhancement?
- Whether the Honorable Trial Court erred by determining that the youth enhancement applied for sentencing purposes because the Commonwealth never proved that [Ali] delivered drugs to a minor?
- Whether the Honorable Trial Court erred by granting the Commonwealth‘s motion to introduce victim impact testimony from an unrelated criminal matter when said testimony was irrelevant and prejudicial, and should not have been considered by the court for sentencing purposes?
- Whether the Honorable Trial Court violated [Ali‘s] constitutional rights by applying sentencing enhancements in violation of Alleyne1 and whether the sentence imposed was an abuse of discretion?
- Whether the Honorable Trial Court erred by preventing [Ali] from publishing exhibit D-6, the laboratory report upon which [Ali] relied for his understanding and belief the substance he sold was legal, since D-6 was admitted into evidence?
- Whether the Honorable Trial Court erred by precluding [Ali] from introducing evidence that the handgun found at the Achi store was under the control and dominion of the co-defendant?
Brief for Ali at 4.
Because we ultimately grant Ali a new sentencing hearing, we begin with his trial-related claims, upon which we conclude that Ali is not entitled to relief. We start with Ali‘s fifth stated claim: whether the trial court erred by prohibiting him from publishing a laboratory report to the jury, which Ali alleged caused him to believe that selling K2 was legal.
Ali testified in his own defense at trial. During his direct examination, Ali testified that his co-defendant and business partner, Mohammed Himed, disagreed as to whether to sell K2 in the Achi Store.2 Ali believed that the substance was illegal, while Himed maintained that K2, being a synthetic substance, was legal. To solidify his position and to convince Ali that K2 was legal to sell, Himed produced a laboratory report from Triangle Park Laboratories, Inc., which indicated on the face of the report that Triangle Park was a DEA Registered Analytical Laboratory. The report apparently indicated to Ali that K2 did not contain any substances that were categorized as controlled substances in Pennsylvania. Relying upon this report,
Neither the authenticity nor the veracity of the laboratory report was established by an expert or other qualified witness. Nonetheless, Ali‘s counsel attempted to publish the report to the jury on multiple occasions over the Commonwealth‘s objections. The trial court sustained the Commonwealth‘s objections. Ali‘s counsel admitted that the contents of the laboratory report were false, and that he could not offer the document for the truth contained therein. Nonetheless, he argued that, because the document was used to show the effect that it had on Ali, the jury was entitled to see the document itself. The trial court permitted Ali‘s counsel to argue to the jury the effect that the document had on Ali, but refused to publish the document to the jury because the court considered it to be double hearsay if offered for the truth of the contents contained within the report, and, perhaps more importantly, factually incorrect.
On redirect examination, Ali‘s counsel asked Ali additional questions regarding the laboratory report in an attempt to demonstrate that the report appeared to be authentic and reliable such that Ali‘s reliance upon it was reasonable. Following another Commonwealth objection, the trial court instructed the jury as follows:
Ladies and gentlemen of the jury, this document which is going to be offered into evidence is not being offered for the truth of the matter asserted, meaning you‘re never going to see this document, you‘re never going to be able to look at it, you‘re never going to be able to compare it because it‘s never been offered into evidence for the truth of the matter asserted. It is an exception. It is being offered simply as to whether he saw a document and the effect that it had upon him. This is important.
Notes of Testimony (“N.T.“), 6/12/2013, at 150.
Presently, Ali argues that the jury should have been able to view the document and resolve any credibility disputes, a task relegated solely to the jury. Ali further maintains that it was necessary for the jury to view the document in order to properly assess his credibility. Ali asserted that he sincerely believed that selling K2 was not illegal, which was exclusively based upon his reliance on the authenticity and reliability of the report. The only way that the jury could have determined whether Ali‘s belief was sincere was to view the document and to determine whether it appeared worthy of belief on its face. Additionally, Ali contends that the Commonwealth opened the door to publication by cross-examining Ali vigorously about his reliance upon the report. See Brief for Ali at 36.
We review all matters touching upon the admission of evidence, including the trial court‘s gatekeeping function regarding what evidence a jury gets to observe and handle during a trial, for an abuse of discretion. See Commonwealth v. Brown, 617 Pa. 107, 52 A.3d 1139, 1197 (2012) (citation omitted); Commonwealth v. Dupre, 866 A.2d 1089, 1102 (Pa.Super.2005). “An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record.” Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa.Super.2013) (citation omitted), appeal denied, 624 Pa. 688, 87 A.3d 319 (2014). “[I]f in reaching a conclusion the trial court over-
Our case law is sparse concerning the standards that we must apply to a trial court‘s decision to prohibit a defendant from displaying to the jury a particular exhibit. Nonetheless, our Supreme Court has articulated the following standard with regard to the items that a jury may take with it into the deliberation room:
The underlying reason for excluding certain items from the jury‘s deliberations is to prevent placing undue emphasis or credibility on the material, and de-emphasizing or discrediting other items not in the room with the jury. If there is a likelihood the importance of the evidence will be skewed, prejudice may be found; if not, there is no prejudice per se and the error is harmless.
Commonwealth v. Strong, 575 Pa. 433, 836 A.2d 884, 888 (2003). Although not directly applicable, we nonetheless find the standard helpful, and we discern no meaningful basis to distinguish between publication to a jury of an exhibit and providing the jury with that exhibit during deliberations. Thus, we apply this standard to Ali‘s claim.
Here, the trial court did not abuse its discretion by prohibiting Ali from publishing the controversial laboratory report to the jury. Ali testified that he relied upon the report to formulate his honest belief that selling K2 was not illegal. Ali‘s counsel averred that the document was not being offered as evidence for the truth of the matter asserted therein, but instead to demonstrate the effect that the report had on Ali. However, Ali‘s counsel acknowledged at trial that the contents of the report itself were false. N.T., 7/12/2013, at 84-90. In explaining why he could not verify the authenticity (or veracity, for that matter) of the report, counsel also revealed to the trial court that the author of the report had been indicted in New York for his role in creating the fraudulent report. Id. at 87. The danger that the jury might skew or place undue emphasis upon the contents of the report is evident. Even with a cautionary instruction, the potential for the jury to misconstrue the document, or be misled by its falsity, simply was too high, and this overcame whatever probative value may have attached to the document. Thus, the trial court did not abuse its discretion in denying counsel‘s request to publish the report to the jury.
We also note that, even if we were to conclude that the trial court‘s decision was erroneous, such an error would have been harmless. Pursuant to the harmless error doctrine, “an error may be harmless where the properly admitted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that it is clear beyond a reasonable doubt that the error could not have contributed to the verdict.” Strong, 836 A.2d at 887 (citing Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155, 162 (1978)).
First, during direct, cross, and redirect examination, Ali was questioned extensively about the report. Through this questioning, the jury was apprised of the look of the report, the various markings on the report, and the lack of authenticating indicia such as a signature by the author. Thus, the jurors were well-informed about the document, rendering the purported error in precluding them from handling or observing the report first-hand relatively inconsequential.
Second, the evidence that Ali knew that selling K2 was not legal was overwhelm-
When Officer Breslin first asked Ali for K2, there were other people in the store. Ali responded nervously, looked at the other people in the store, and told Officer Breslin that he did not have K2 for sale. Officer Breslin asked a second time, and, again, Ali responded quietly and nervously that he did not have any. However, when Officer Yambrick entered the store a short time later, no one else was inside of the store. He also asked Ali for K2. This time, Ali ‘looked around the store and, upon seeing that they were alone, asked Officer Yambrick how much K2 he wanted. Ali again looked around the store to make sure that they were alone, reached underneath the counter, and produced two containers of K2. Officer Yambrick went back to the store later that day and observed Ali selling K2 to a person in front of him in line in the same surreptitious manner as Ali had done earlier in the day.
This evidence demonstrated that Ali knew that selling K2 was not within the bounds of the law. Ali did not have K2 prominently displayed on the counter of the Achi Store as if it were just another product. Rather, he had it hidden underneath the counter, and had a separate container there to collect the money from those particular sales. When other people were in the store, Ali declined to sell K2. He acted suspiciously and nervously until he was alone with a customer. It was only then that he sold the K2. By themselves, these actions demonstrate that Ali knew that selling K2 was not legal. This would render any alleged error by the trial court with regard to the laboratory report harmless beyond a reasonable doubt.
Ali next contends that the trial court erred by excluding certain statements that were made by co-defendant Himed regarding the possession and control of the .40 caliber gun that was found when the police executed the search warrant on the Achi Store. Ali legally purchased the handgun approximately one week before the search warrant was executed. However, no testimony was presented at trial to establish that Ali ever was seen in actual possession of the gun. Ali attempted to demonstrate that Himed, who acted as the head of the business, had exclusive control of the weapon. To do so, Ali tried to ask Khalil Jones, an employee of the store, about a question that Jones overheard Himed asking another individual. Ali alleged at trial that Jones heard Himed asking the unknown person “can you get me bullets for the gun?” N.T., 7/12/2013, at 12.
The trial court prohibited Ali‘s counsel from asking this question upon the basis that it was inadmissible hearsay. Presently, Ali argues that the statement was not being offered for the truth of the matter asserted, but rather to show “the fact that Himed made the statement and Himed‘s state of mind regarding his ownership and control of the gun.” Brief for Ali at 38. We agree with Ali. The statement was not hearsay. However, the trial court‘s evidentiary error was harmless.
As noted earlier, we review a trial court‘s evidentiary decisions for an abuse of discretion. See Brown, supra. Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Commonwealth v. Puksar, 559 Pa. 358, 740 A.2d 219, 225 (1999). As a general rule, hearsay is inadmissible, because such evidence lacks guarantees of trustworthiness fundamental to our jurisprudence.
Here, the statement that Ali‘s counsel sought to introduce through Khalil Jones’ testimony was not hearsay, as it was not being offered for the truth of the matter asserted. Jones purportedly would have testified that he overheard Himed ask someone, “[C]an you get me bullets for the gun?” If this statement were offered for its truth, then Ali would have been seeking to prove that Himed actually wanted to know whether the listener could obtain bullets. However, whether that person could do so plainly was not what Ali sought to establish. Rather, he proffered the statement to show that Himed controlled the gun, “a purpose apart” from asserting the truth of the statement. See Cassidy, supra.
Nonetheless, beyond a reasonable doubt, the error was harmless. The evidence overwhelmingly established that, in concert with Himed, Ali sold K2 from the Achi Store. As we discussed above, Ali evidenced awareness that selling K2 was illegal. The police officers purchased the substance directly from Ali. The spoils of the search warrant revealed abundant evidence to support each of the charges of which Ali was convicted. Ali‘s introduction of this one statement would not have overcome the overwhelming evidence of guilt. Consequently, Ali is not entitled to relief on his trial claims.
We turn to Ali‘s sentencing challenges. We begin with Ali‘s third stated claim: that the trial court erred in permitting certain victim impact testimony at sentencing. Ali is entitled to relief on that claim. He must be afforded a new sentencing hearing. Having concluded as much, we must then review Ali‘s remaining claims to determine which (if any) sentencing enhancements the trial court may impose at resentencing.
At Ali‘s trial, the jury learned of the tragic deaths of Rachel Witt, age fifteen, and James Crawford, age twenty-eight. On May 21, 2012, Kendall Harper, Robert Malloy, Roger Malloy, and James Crawford stopped at the Achi Store to purchase K2 synthetic marijuana, something that Harper had done on two prior occasions. Harper and Crawford entered the store and returned to the car shortly thereafter in possession of K2. Undisputedly, it was Mohammed Himed, and not Ali, who sold K2 to Harper and Crawford on that occasion. See Brief for the Commonwealth at 6. Except for Harper, all of the individuals smoked the K2.
Later that evening, Roger Malloy was driving a vehicle with all of the above-referenced individuals as passengers, including Rachel Witt, whom they picked up after stopping at the Achi Store. Malloy wrecked the vehicle, resulting in the deaths of Witt and Crawford. Evidence of synthetic marijuana was found in Roger Malloy‘s blood.
The jury was presented with evidence of the wreck by way of the following stipulation:
[] Kendall Harper, date of birth 12-9-95, gave statements to police and if called to testify would say on the eve-
ning of May 21st, 2012, he was with Roger Malloy, Robert Malloy and James Crawford. Roger drove everyone to the Achi Store in a Lincoln Continental and Kendall and James went inside the store. When they returned to the Lincoln Continental, they drove to another location and picked up Rachel Witt. Roger then drove everybody to Bright Hope Villiage. While there, James Crawford produced K2 and everybody smoked it except Kendall. The K2 was rolled up in a Dutch to smoke it. Kendall says the color of the K2‘s label was red and yellow and it was marked as Dead Man. Kendall has purchased K2 from the Achi store on two prior occasions. Kendall described the person who sold him the K2 on these occasions as being a Muslim male with long hair. Kendall explained the manner in which he bought the K2 as he would have to wait until the store was empty. The Muslim male took the K2 from underneath the counter and it was not on display.
[] The person that sold the synthetic marijuana labeled Dead Man which was sold on the evening of May 21, 2012, from the store to James Crawford and Kendall Harper was not identified as Rafie Ali.
N.T., 6/11/2013, at 132-33.
Roger Malloy pleaded guilty to two counts of homicide by vehicle while driving under the influence and related crimes based upon his role in Witt‘s and Crawford‘s deaths. See T.C.O. at 10. Despite the fact that Ali did not sell the synthetic marijuana to Harper and Crawford on the night of the crash, at Ali‘s sentencing, the trial court permitted the Commonwealth to introduce evidence from Roger Malloy‘s guilty plea hearing, including Malloy‘s admission to smoking K2 before driving the vehicle and the victim impact testimony given by members of the decedents’ fami-lies at Malloy‘s guilty plea hearing. The trial court acknowledged that the jury could not have attributed the deaths to Ali, but nonetheless offered the following rationale for admitting and considering the victim impact testimony:
[D]uring the month of May, the sale to community members, the sale to undercover officers, and sadly, the sale to Mr. Crawford, Mr. Harper, that ultimately was connected to the death of Miss Witt and [Mr. Crawford].... Which directly led to his death is being considered by the Court [sic].
Now, again, I make specific findings that there is nothing that a jury—and this court had severed that case that they caused the death. And there was nothing to find that.
But the Commonwealth has presented evidence in this particular case that the substances found in Mr. Malloy‘s system and clearly the timing of exactly what happened on that tragic day, that sad and tragic day that Mr. Crawford and Miss Witt lost their lives at the hands of Mr. Malloy are connected.
And they‘re connected to what you do, Mr. Ali, exactly what you do. If you peddle death and dangerous substances, you can expect something like this to happen. This is within the purview of being a business owner. If you take the risk, you should expect it. This is a stop and shop. This is not a sit-down store where people come in and dine. It is meant to buy something and go.
And when people buy something and go in the nature of convenience stores in this society, they do so by vehicle. They drive up and they drive away. And if you sell them something that can lead to their death, that can lead to them being impaired, then this is a consequence that should be readily known to you.
The sad part of it is you didn‘t. I believe you simply were operating for profit, you took a risk, and your risk ended up contributing, leading, being connected to, whatever you want to say—the Court is not finding that you caused their death directly, but you certainly were connected to a series of horrific events that led to unspeakable tragedy for the families that this Court had to listen to during the sentencing phase of Mr. Malloy‘s case. So I cannot turn a blind eye to it. It is simply a fact. And that was the tragic turn of events that now leads to your conviction and your sentencing.
N.T., 11/26/2013, at 77-78 (emphases added). By the trial court‘s own admissions, although Ali was not directly responsible for the two deaths, the court considered the victim impact statements related to those deaths when sentencing Ali because the court believed that they were “connected.” For the reasons that follow, we conclude that considering such evidence was erroneous, and constituted an abuse of discretion.
We review challenges to the admission of victim impact statements for an abuse of discretion. Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 634 (2010). Pursuant to
[I]n the trial of a defendant accused of an offense, ... a court shall not order the exclusion of any victim of the offense from the trial on the basis that the victim may, during the sentencing phase of the proceedings:
- make a victim impact statement or present any victim impact information in relation to the sentence to be imposed on the defendant; or
- testify as to the effect of the offense on the victim or the family of the victim.
Id. (emphasis added). The statute refers to the Crime Victim‘s Act for the definition of a victim, which defines the term as any one of the following persons:
- A direct victim.
- A parent or legal guardian of a child. who is a direct victim, except when the parent or legal guardian of the child is the alleged offender.
- A minor child who is a material witness to any of the following crimes and offenses under
18 Pa.C.S. (relating to crimes and offenses) committed or attempted against a member of the child‘s family:- Chapter 25 (relating to criminal homicide)
- Section 2702 (relating to aggravated assault)
- Section 3121 (relating to rape)
- A family member of a homicide victim, including stepbrothers or stepsisters, stepchildren, stepparents or a fiancé, one of whom is to be identified to receive communication as provided for in this act, except where the family member is the alleged offender.
“The United States Supreme Court has held that the Eighth Amendment to the United States Constitution does not present a bar to the admission of victim impact evidence.” Flor, 998 A.2d at 633 (citing Payne v. Tennessee, 501 U.S. 808, 827 (1991)). Victim impact evidence is “designed to show [] each victim‘s uniqueness as a human being.” Payne, 501 U.S. at 823 (citation omitted). “Victim impact evidence is simply another form or method of informing the sentencing authority about the specific harm caused by the crime in question.” Id. at 825.
However, as section 9738 makes clear, before victim impact statements may be
Both the Commonwealth and the trial court rely upon the premise that there existed a “connection” between Ali‘s crimes and the ultimate deaths of Witt and Crawford. See Brief for the Commonwealth at 23; N.T., 11/26/2013, at 77-78. Although such a connection may in fact exist, a mere link between two distinct events is insufficient to trigger the applicability of section 9738. The unambiguous language of the statute requires a victim to be identified as such before his or her victim impact statement is admissible. Additionally, the Crime Victim‘s Act requires proof of a “direct victim” and similarly situated individuals; it does not define a “victim” based upon the Commonwealth‘s ability to string together attenuated connectors tying an individual to indirectly-related events, tragic as those events may be.
Witt and Crawford‘s deaths were tragic. However, those individuals are not Ali‘s victims under any reasonable reading of section 9738, particularly where all parties admit that Ali did not commit the specific act that led to the fatal wreck. We find no meaningful difference between this case and Smithton. In Smithton, the appellant had been charged in three separate criminal informations. In one of the cases, the appellant, who was suffering from HIV, allegedly unlawfully entered a family‘s home without their consent. Smithton, 631 A.2d at 1055. The owner of the home fought off the appellant with a shard of glass from a broken window through which the appellant entered the home. Id. at 1054. At trial, the appellant conceded entering into the home, but argued that his entry was justified because he feared for his life. One of the other sets of charges arose from the appellant‘s behavior during his arrest and at the hospital after he was transported there by the police. The final set of charges resulted from the appellant‘s behavior at his arraignment for the prior two sets of charges. Id. at 1054-55.
The jury credited the appellant‘s defense that he was justified in entering the home, and acquitted him of all charges relating to that incident. The jury convicted him of all of the other charges. Nonetheless, at sentencing, the trial court permitted the family residing in the home to testify at length about how the appellant‘s entry into the home affected them and their lives, including their fears that they may have contracted HIV from the appellant. Id. at 1055-56.
On appeal, this Court reversed the judgment of sentence and remanded for a new sentencing hearing to be held without the victim impact testimony. We first noted that, because the appellant was acquitted of the charges relating to the entry into the home, the victim impact testimony was
In describing the need to vacate the sentence, we noted that “[i]t is an abuse of discretion, as a denial of due process, for the sentencing court to consider irrelevant factors during sentencing.” Id. at 1056. We acknowledged that “[i]t is not enough that a trial court simply entertained impermissible evidence in its deliberations.” Id. (emphasis in original). Although a court “is ordinarily presumed to be capable of identifying and properly disregarding all but the most prejudicial and inflammatory evidence,” Commonwealth v. Penrod, 396 Pa.Super. 221, 578 A.2d 486, 491 (1990), a sentence must be vacated when “it reasonably appears from the record that the trial court relied in whole or in part upon such [an impermissible] factor.” Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102, 106 (1977) (emphasis in original). Citing Bethea, we concluded in Smithton that, although “[i]t is true that the trial court relied upon factors other than the [homeowners‘] testimony in imposing sentence, ... [it] is also irrelevant for our purposes. Where, as here, a trial court relies upon an impermissible factor, in whole or in part, new sentencing must be afforded.” Smithton, 631 A.2d at 1058 (citing Bethea, supra; emphasis in original).
As in Smithton, there is no basis upon which we may conclude that Witt and Crawford were victims of the crimes of which Ali was convicted. The charges against Ali did not implicate the fatal car accident. We reject the trial court‘s attempt to connect the relevant events in order to justify admitting the victim impact testimony, just as we did in Smithton. The trial court‘s own words demonstrate that the court relied to some extent upon the victim impact testimony just as the trial court did in Smithton. That testimony was irrelevant, and reliance upon that evidence violated due process. See Smithton, 631 A.2d at 1056. Consequently, the trial court abused its discretion, and we must vacate the judgment of sentence and remand for a new sentencing hearing at which the trial court may not consider the victim impact testimony. See Bethea, supra.
The remainder of Ali‘s issues that we will review pertain to the trial court‘s consideration of the school zone sentencing enhancement and the enhancement for delivery of a controlled substance to a youth (“youth enhancement“) when calculating where Ali‘s offense fell within the sentencing guidelines. Pursuant to
We begin with Ali‘s contention that the application of these enhancements was unconstitutional in light of the United States Supreme Court‘s recent decision in Alleyne v. United States, — U.S. —, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Alleyne challenges implicate the legality of a sentence. Commonwealth v. Lawrence, 99 A.3d 116, 123 (Pa.Super.2014). “A challenge to the legality of a sentence ... may be entertained as long as the reviewing court has jurisdiction.” Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n. 8 (Pa.Super.2011) (citation omitted). “An illegal sentence must be vacated.” Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa.Super.2014) (citation omitted). “Issues relating to the legality of a sentence are questions of law.... Our 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 Commonwealth v. Miller, 102 A.3d 988 (Pa.Super.2014), we presented the relevant portion of the Alleyne Court‘s rationale as follows:
In Alleyne, the Supreme Court held that “facts that increase mandatory minimum sentences must be submitted to the jury” and must be found beyond a reasonable doubt. Alleyne, supra at 2163. Alleyne is an extension of the Supreme Court‘s line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000). In Alleyne, the Court overruled Harris v. United States, 536 U.S. 545 (2002), in which the Court had reached the opposite conclusion, explaining that there is no constitutional distinction between judicial fact-finding which raises the minimum sentence and that which raises the maximum sentence.
It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. Indeed, criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both define the legally prescribed penalty. This historical practice allowed those who violated the law to know, ex ante, the contours of the penalty that the legislature affixed to the crime—and comports with the obvious truth that the floor of a mandatory range is as relevant to wrongdoers as the ceiling. A fact that increases a sentencing floor, thus, forms an essential ingredient of the offense.
Moreover, it is impossible to dispute that facts increasing the legally prescribed floor aggravate the punishment. Elevating the low-end of a sentencing range heightens the loss of liberty associated with the crime: the defendant‘s expected punishment has increased as a result of the narrowed range and the prosecution is empowered, by invoking the mandatory minimum, to require the judge to impose a higher punishment than he might wish. Why else would Congress link an increased mandatory minimum to a particular aggravating fact other than to heighten the consequences for that behavior? This reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.
Alleyne, 133 S.Ct. at 2160-61 (internal quotation marks and citations omitted). Miller, 102 A.3d at 994-95 (citations modified).
Ali maintains that, because both of the enhancements contain the word “shall,” the enhancements are mandatory in nature, and must fall within Alleyne‘s holding. However, the enhancements only require the trial court to consider a certain range of sentences. The enhancements do not bind the trial court to impose any particular sentence, nor do they compel the court to sentence within the specified range. Indeed, it is well-settled that the sentencing guidelines ultimately are only advisory. Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super.2002). Thus, Alleyne has no application to the enhancements.
Ali next argues that the trial court should not have applied the school zone enhancement, because the Commonwealth failed to prove that the Y.W.C.A. constituted a “public or private elementary or secondary school,” within the meaning of subsection
The utilization of a sentencing enhancement concerns the trial court‘s application of the sentencing guidelines, and, therefore, implicates the discretionary aspects of Ali‘s sentence. Commonwealth v. Bowen, 417 Pa.Super. 340, 612 A.2d 512, 514 n. 3 (1992). In Commonwealth v. Greene, 702 A.2d 547 (Pa.Super.1997), we explained an appellant‘s burden when raising such a challenge, as follows:
Unlike a challenge to the legality of a sentence, there is no absolute right to direct appellate review of a discretionary sentencing claim. Rather, a party who desires to raise such matters must petition this court for permission to appeal and demonstrate that there is a substantial question that the sentence is inappropriate.
In fulfilling this requirement, the party seeking to appeal must include in his or her brief a concise statement of the reasons relied upon in support of the petition for allowance of appeal [pursuant to
Pa.R.A.P. 2119(f) ]. In that statement, the appellant must demonstrate that there exists a substantial question that the sentence is inappropriate under the Sentencing Code.]
*
*
*
The determination of whether a substantial question exists must be made on a case-by-case basis. It is only where an aggrieved party can articulate clear rea-
sons why the sentence issued by the trial court compromises the sentencing scheme as a whole that we will find a substantial question and review the decision of the trial court. This [C]ourt has been inclined to find that a substantial question exists where 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 underlying the sentencing process.
Id. at 551 (citations omitted).
Ali has complied technically with
The trial court held two sentencing proceedings in this case, staying the first proceeding to permit the parties to consider and address the impact of Alleyne, which was newly-decided at the time, upon Ali‘s sentence. At the first sentencing hearing on October 8, 2013, Ali stipulated to a Commonwealth report that contained a summary of information, to which a police officer would have testified had he been called, pertaining to the Y.W.C.A. at issue for the school zone sentencing enhancement. The report indicated that the Y.W.C.A. was located within 250 feet of the Achi Store, that the Y.W.C.A. operated a state-licensed early learning center with a full daycare program that is entitled “Ready, Set, Grow,” and that the Y.W.C.A. was in operation at the time of Ali‘s crimes. Ali also stipulated to the admissibility and the authenticity of a photograph of the Y.W.C.A., which indicated on the door of the facility that the Y.W.C.A. considered itself a pre-school. N.T., 10/8/2013, at 9-11; N.T., 11/26/2013, at 11.
There is very little case law addressing the school zone enhancement, and none interprets the terms “public or private elementary or secondary school.” Consequently, we first consider two cases that have addressed whether a daycare or a pre-school falls within the ambit of the drug-free school zone mandatory minimum sentence that is codified at
Because no case law yet has addressed whether the sentencing enhancement applies to drug offenses near daycares or pre-schools, the parties predictably have relied upon the two cases addressing the drug-free school zone mandatory minimum sentence. The Commonwealth argues that the Y.W.C.A. operated a pre-school, and that Commonwealth v. Lewis, 885 A.2d 51 (Pa.Super.2005), should control. In Lewis, we interpreted the above-quoted language from section 6317, and held that a preschool fell squarely within that language. Id. at 58. Quoting Commonwealth v. Drummond, 775 A.2d 849, 856-57 (Pa.Super.2001) (en banc), we noted that, by enacting section 6317, our legislature:
not only intended to protect our children from the evils of illegal drug dealing on school grounds and on school buses, but additionally intended to protect our children from those same evils on or near the playgrounds and recreation centers, whether associated with municipal facilities, school property, or ... semiprivate apartment complexes.
Lewis, 885 A.2d at 57. Thus, we held that, by incorporating such an expansive definition, the General Assembly clearly intended to include preschools within the contours of section 6317. Id. at 57-58. Additionally, we explained that “preschool” fell within the general definition of the word “school,” which the American Heritage Dictionary defines as “[a]n institution for the instruction of children or people under college age.” Id. at 58 (quoting American Heritage Dictionary (4th ed.2000)).
Conversely, Ali contends that the Y.W.C.A. operated a daycare, which we held in Commonwealth v. Dixon, 53 A.3d 839 (Pa.Super.2012), not to be the type of facility covered by section 6317. In Dixon, we noted, as we did in Lewis, that the “legislature clearly intended to segregate children from drugs where they learn and play, and to promote that policy, it created drug-free zones within a radius of schools, playgrounds, and recreational facilities.” Dixon, 53 A.3d at 844. However, we quickly pointed out that daycare centers are not equated to schools of any type, including preschools, in any other statutory scheme in Pennsylvania. Id. We also noted that, when the General Assembly amended section 6317 in 1997, it expanded the provision to include different types of schools that were entitled to protection, but did not include daycare or childcare facilities in the expansion. Id. at 845. Moreover, we noted that, when the General Assembly enacted a provision subjecting methamphetamine laboratory operators to stricter penalties when those laboratories were near schools and recreational facilities, it chose to include nursery schools and daycare facilities within that provision. Id. We concluded that “the fact that the legislature specifically denoted daycare centers in addition to schools undermines the ... argument ... that daycare facilities are schools per se for the purpose of the drug-free school zone statute.” Id.
Furthermore, we applied the rule of lenity, as we must in criminal cases, and invoked the venerable maxim expressio unius est exclusio alterius, which establishes the principle that, “where certain things are designated in a statute, all omissions should be understood as exclusions.” Id. at 846 (citations and internal quotation marks omitted). In doing so, we reinforced our holding that a daycare center is not a school for purposes of section 6317, opining that “[t]he General Assembly was more than capable of drafting § 6317 to
Finally, we cautioned that, “[i]f the statute was interpreted as reaching every place where children routinely learn and play, virtually every home, yard, neighborhood, street and woods would constitute a drug-free school zone and any drug offense would fall within the ambit of § 6317.” Id. We squarely rejected such an “overly-expansive” rationale. Id.
Despite the parties’ arguments, we need not determine definitively whether the facility operated at the Y.W.C.A. was a daycare center or a preschool. It is clear that neither case is controlling, and that it is irrelevant whether the facility is properly viewed as a daycare center or a pre-school. The statutory language utilized in the sentencing enhancement, “public or private elementary or secondary school,” is much more narrow than the expansive language used in section 6317. Nonetheless, our discussion of these two cases, particularly Dixon, is relevant here, because we rely upon many of the same principles and limitations that we discussed in Dixon. Upon completing that analysis, we hold that neither a daycare facility nor a preschool falls within the clear language contained in the school zone sentencing enhancement.
In cases involving statutory interpretation, which is a matter of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Wilson, 101 A.3d 1151, 1153 (Pa.Super.2014) (citing Commonwealth v. Spence, — Pa. —, 91 A.3d 44, 46 (2014)). We apply the following principles that govern our interpretation of a statutory provision:
When construing [provisions] utilized by the General Assembly in a statute, our primary goal is “to ascertain and effectuate the intention of the General Assembly.”
Words and phrases shall be construed according to the rules of grammar and according to their common and approved usage; but technical words and phrases and such others as have acquired a peculiar and appropriate meaning or are defined in this part, shall be construed according to such peculiar and appropriate meaning or definition.
As with section 6317, the school zone enhancement plainly seeks to protect our children from the evils of illegal drug dealing on school grounds. However, we may not ignore the unambiguous terms used in the enhancement so as to expand the pro-
The American Heritage College Dictionary defines “elementary school” as “[a] school for the first four to eight years of a child‘s formal education, often including kindergarten.” American Heritage College Dictionary 452 (4th ed.2002). It can also be defined more simply as “[t]he first four to eight years of formal education.” Id. We are aware of no authoritative definition that is any broader. We cannot assign to the term “elementary school” a more expansive definition when that unambiguous term‘s meaning is so clear. To do so would be to disregard the statute‘s language in pursuit of its spirit.
A fair reading of the definition and common understanding of “elementary school” alone precludes a pre-school or a daycare. It becomes even more true when we consider the definition of “pre-school,” a term which the American Heritage Dictionary defines as “[o]f, for, relating to, or being the early years of childhood before elementary school.” Id. at 1101 (emphasis added). The term also refers to “a school for preschoolers; a nursery school.” Id. The dictionary definitions, which provide us with the best evidence of the common understanding attributed to certain words, separate elementary schools and preschools based upon the relevant time period in a child‘s life. In other words, an elementary school does not include a preschool, and vice-versa, because pre-school necessarily precedes elementary school. A fortiori, if a pre-school is not included within the term “elementary school,” neither is a daycare facility. Consequently, it does not matter whether the Y.W.C.A. operated a pre-school or a daycare; neither supports the application of the sentencing enhancement.
As in Dixon, we are bound both by the rule of lenity, which requires us to construe penal provisions narrowly, see
We hold that the term “elementary school” encompasses neither a preschool nor a daycare. Therefore, the trial court erred in considering the inapplicable school zone enhancement in sentencing Ali.
Finally, we address Ali‘s claim that the trial court erred in considering the youth enhancement when fashioning Ali‘s sentence. We agree with Ali that the trial court should not have considered that enhancement.
Many of the same principles that we applied in our school zone enhancement analysis apply with equal force in this discussion. We must abide by our rules of statutory construction, interpreting the unambiguous term “offender” as used in this provision according to its common understanding, and without ignoring that meaning in order to effectuate the intent of the provision. See Cahill, 95 A.3d at 301;
We have found no case law defining the term “offender” as used in the youth enhancement. Black‘s Law Dictionary defines an “offender” as “a person who has committed a crime.” Black‘s Law Dictionary 1110 (8th ed.2004). Notably, the definition refers only to the primary actor in a crime, and not to an accomplice or a conspirator. In Pennsylvania, “[a] person is an accomplice of another person in the commission of an offense if ... with the intent of promoting or facilitating the commission of the offense, he ... solicits such other person to commit it ... or aids or agrees or attempts to aid such other person in planning or committing it.”
This conclusion is consistent with the established principle that sentencing enhancements apply only to principal crimes and not to inchoate crimes. Commonwealth v. Adams, 760 A.2d 33, 39 (Pa.Super.2000) (citing Description following Guideline Text
Instantly, Ali was not the actual offender for purposes of the youth enhancement. The record is abundantly clear that Himed, not Ali, delivered the K2 to Harper and/or Crawford on May 21, 2012. Consequently, the trial court erred and abused its discretion in considering the youth enhancement when fashioning Ali‘s sentence.
In sum, we reject Ali‘s trial-related claims. We also reject Ali‘s claim that application of the youth and school zone enhancements are unconstitutional pursuant to Alleyne. However, we hold that the trial court erred by permitting the Commonwealth to introduce irrelevant victim impact testimony and by considering the two sentencing enhancements in fashioning Ali‘s sentence. Accordingly, we vacate the judgment of sentence and remand for a new sentencing proceeding in accordance with this opinion.4
Judgment of sentence vacated. Case remanded for new sentence. Jurisdiction relinquished.