Com. v. Ali, R.

J-A25028-14
2015 PA Super 45COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAFIE L. ALI
Appellant No. 3553 EDA 2013
Appeal from the Judgment of Sentence of November 26, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0005222-2012
BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.*
OPINION BY WECHT, J.: FILED MARCH 05, 2015
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 Pa.R.A.P. 1925(a) opinion as follows:
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,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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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 Yambrick
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
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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 semi-
automatic handgun found on a small shelf below the counter 2; 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].
2
Both parties stipulated that the .40 caliber Kahr Arms
ZA5383 handgun with six rounds in the magazine was
lawfully purchased from Federal Coin Exchange in
Pottstown by Rafie Ali approximately one week before the
search warrant was executed on May 22, 2012.
[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 [18 Pa.C.S. § 911(b)(3)]; Count 2;
Corrupt Organizations [18 Pa.C.S. § 911(b)(4)]; Counts 3, 4, 5,
6, and 7, Possession With Intent to Deliver Synthetic
Cannabinoids [35 P.S. § 780-113(a)(30)]; Counts 13, 14, 15,
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16, and 17, Delivery of Paraphernalia [35 P.S. § 780-
113(a)(33)]; and Counts 28 and 29, Criminal Conspiracy [18
Pa.C.S. § 903].
* * *
[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 counseled Notice of Appeal [to] our Superior
Court. [Ali] subsequently complied with [the trial] court’s
directive that he produce and serve a Concise Statement of
Matters Complained of on Appeal within [twenty-one] days and
in accordance with Pennsylvania Rule of Appellate Procedure
1925(b).
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 Pa.R.A.P. 1925(a).
Ali raises the following issues for our consideration:
1. 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?
2. 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?
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3. 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?
4. Whether the Honorable Trial Court violated [Ali’s]
constitutional rights by applying sentencing enhancements in
violation of Alleyne[1] and whether the sentence imposed
was an abuse of discretion?
5. 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?
6. 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,
____________________________________________
1
Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013).
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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, Ali
became convinced that K2 was not illegal, and that selling K2 would not be a
crime. Ali testified that he truly believed that selling K2 was not illegal and
yielded to Himed’s desire to sell the substance in the Achi Store.
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
____________________________________________
2
Khalil Jones, an employee at the Achi Store, corroborated Ali’s
testimony that Ali and Himed disagreed over whether to sell K2 in the Achi
Store.
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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
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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, 52 A.3d 1139, 1197 (Pa. 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, 87 A.3d 319 (Pa. 2013). “[I]f in reaching a conclusion the trial court
over-rides [sic] or misapplies the law, discretion is then abused and it is the
duty of the appellate court to correct the error.” Commonwealth v.
Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009) (citation omitted).
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:
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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, 836 A.2d 884, 888 (Pa. 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 contained 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
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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, 383 A.2d 155,
162 (Pa. 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
overwhelming, such that any alleged error by the trial court was harmless.
As noted earlier, Ali contends that the jury needed to observe the document
to assess Ali’s credibility with regard to his claim that he believed that selling
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K2 was not illegal. However, Ali’s own actions while working at the Achi
Store belied his defense.
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
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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
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statement offered to prove the truth of the matter asserted.
Commonwealth v. Puskar, 740 A.2d 219, 225 (Pa. 1999). As a general
rule, hearsay is inadmissible, because such evidence lacks guarantees of
trustworthiness fundamental to our jurisprudence. Commonwealth v.
Dargan, 897 A.2d 496, 500 (Pa. Super. 2006) (citations omitted). The rule
against admitting hearsay evidence stems from its presumed lack of
reliability; the declarant cannot be challenged regarding the accuracy of the
statement. See Commonwealth v. Rush, 605 A.2d 792, 795 (Pa. 1992).
Importantly, “[w]hen an extrajudicial statement is offered for a purpose
apart from proving the truth of its contents, it is not hearsay and is not
excluded under the hearsay rule.” Commonwealth v. Cassidy, 462 A.2d
270, 272 (Pa. Super. 1983) (citations omitted).
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.
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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 Muhammed 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.
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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 evening 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.
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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’ families 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.
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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, 998 A.2d 606, 634 (Pa.
2010). Pursuant to 42 Pa.C.S. § 9738:
[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:
(1) make a victim impact statement or present any victim
impact information in relation to the sentence to be
imposed on the defendant; or
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(2) 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:
(1) A direct victim.
(2) 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.
(3) 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)
(4) 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.
18 P.S. § 11.103.
“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
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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 admitted at a sentencing hearing, there first must be an
identifiable victim of the crime for which the defendant was convicted. See
42 Pa.C.S. § 9738 (“[A] court shall not order the exclusion of any victim of
the offense. . . .”). Indeed, “[w]here a defendant is convicted of a crime
against a person, that person is considered by the law to have been a victim
of the defendant’s crimes.” Commonwealth v. Smithton, 631 A.2d 1053,
1057 (Pa. Super. 1993). Instantly, Ali was not convicted of a crime against
a person. Moreover, for the crimes of which Ali was convicted, there is no
identifiable victim to render a victim impact statement admissible. The
parties and the trial court have conceded that Ali did not sell K2 to any of
the parties involved in the wreck that resulted in the two deaths. As the
Commonwealth acknowledged, Himed, not Ali, sold the K2 to Harper and
Crawford, K2 which Roger Malloy ingested before wrecking the car. See
Brief for the Commonwealth at 6.
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
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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.
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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
irrelevant. Id. at 1057. Essentially, we held that, due to the acquittals, the
homeowners were not victims of the alleged crime. We explained that
“there is, strictly speaking, no legal authority for considering the
[homeowners] ‘victims’ or for considering the impact of appellant’s conduct
on their lives.” Id. at 1058. Critically, we rejected the notion that any
connection justified the admission of the victim impact testimony: “The
charges of which appellant was found guilty, though indirectly related by the
loosely formed concatenation of events [that] transpired on the evening of
appellant’s arrests, were contained in separate Criminal Informations and did
not involve the [homeowners.]” Id. We held that to admit the testimony
“would give precious little meaning to the acquittal.” Id.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
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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, 578 A.2d 486, 491 (Pa. Super.
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, 379 A.2d 102, 106
(Pa. 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, . . . [i]t 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
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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 204 Pa. Code § 303.10(b)(2), the school
zone enhancement compels a trial court to consider heightened guideline
ranges when “the court determines that the offender manufactured,
delivered or possessed with intent to deliver a controlled substance within
250 feet of the real property on which is located a public or private
elementary or secondary school.” Id. Similarly, the youth enhancement
requires the trial court to consider elevated guideline ranges in sentencing
an individual when “the court determines that the offender distributed a
controlled substance to a person or persons under the age of 18.” Id. at §
303.10(b)(1).
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, 133 S.Ct. 2151 (U.S.
2013). Alleyne challenges implicate the legality of a sentence.
Commonwealth v. Lawrence, 99 A.3d 116, 123 (Pa. Super. 2014). “A
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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.
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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).
Alleyne has no application to the sentencing enhancements at issue in
this case. The parameters of Alleyne are limited to the imposition of
mandatory minimum sentences, i.e., where a legislature has prescribed a
mandatory baseline sentence that a trial court must apply if certain
conditions are met. The sentencing enhancements at issue impose no such
floor. Rather, the enhancements only direct a sentencing court to consider a
different range of potential minimum sentences, while preserving a trial
court’s discretion to fashion an individual sentence. By their very character,
sentencing enhancements do not share the attributes of a mandatory
minimum sentence that the Supreme Court held to be elements of the
offense that must be submitted to a jury. The enhancements do not bind a
trial court to any particular sentencing floor, nor do they compel a trial court
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in any given case to impose a sentence higher than the court believes is
warranted. They require only that a court consider a higher range of
possible minimum sentences. Even then, the trial court need not sentence
within that range; the court only must consider it. Thus, even though the
triggering facts must be found by the judge and not the jury—which is one
of the elements of an Apprendi or Alleyne analysis—the enhancements
that the trial court applied in this case are not unconstitutional under
Alleyne.
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 303.10(b)(2). We agree with Ali.
The utilization of a sentencing enhancement concerns the trial court’s
application of the sentencing guidelines, and, therefore, implicates the
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discretionary aspects of Ali’s sentence. Commonwealth v. Bowen, 612
A.2d 512, 514 n.3 (Pa. Super. 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 reasons 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 Pa.R.A.P. 2119(f) by including a
concise statement in his brief. See Brief for Ali at 17. In his Rule 2119(f)
statement, Ali maintains that the trial court’s consideration of the sentencing
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enhancements in this case presents a substantial question. We agree. We
have held consistently that challenges to the sentencing enhancements in
the sentencing guidelines present substantial questions justifying our review
of an appellant’s discretionary aspects of a sentencing claim. See
Commonwealth v. Rhoades, 8 A.3d 912, 916 (Pa. Super. 2010);
Commonwealth v. Kneller, 999 A.2d 608, 614 (Pa. Super. 2010);
Commonwealth v. Hatcher, 746 A.2d 1142, 1144 (Pa. Super. 2000);
Greene, 702 A.2d at 551; Bowen, 612 A.2d at 514. Thus, we grant Ali’s
petition for allowance of appeal, and we will review his challenges to the
application of both the school zone and the youth sentencing enhancements.
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
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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 18 Pa.C.S.
§ 3617.3 Section 3617 purports to impose a mandatory minimum sentence
on individuals over the age of eighteen who deliver, or possess with intent to
deliver, a controlled substance “within 1,000 feet of the real property on
which is located a public, private or parochial school or a college or
university or within 250 feet of the real property on which is located a
recreation center or playground or on a school bus.” 18 Pa.C.S. § 3617.
However, even though both the mandatory minimum provision and the
sentencing enhancement seek to increase penalties for drug trafficking near
school zones, the operative language in the two sections differs in such a
way that the two cases interpreting the provisions do not apply to the
sentencing enhancements at issue herein.
____________________________________________
3
Section 3617 was held unconstitutional by this Court in
Commonwealth v. Watley, 81 A.3d 108 (Pa. Super. 2013). Nonetheless,
the unconstitutionality of this mandatory minimum sentence has no bearing
upon our analysis.
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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 pre-school
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 pre-
schools within the contours of section 6317. Id. at 57-58. Additionally, we
explained that “pre-school” 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
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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 pre-
schools, 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
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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 include daycare or childcare facilities within the
enumerated entities.” Id. (citing Key Sav. & Loan Ass’n v. Louis John
Inc., 549 A.2d 988, 991 (Pa. Super. 1988) (“This Court is without authority
to insert a word into a statutory provision where the legislature has failed to
supply it.”)).
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 pre-
school. 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
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pre-school 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, 91 A.3d 44, 46 (Pa. Super. 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.” 1 Pa.C.S. § 1921(a).
“Every statute shall be construed, if possible, to give effect to all
its provisions.” Id. However, “[w]hen the words of a statute
are clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.” Id.
§ 1921(b). “Words and phrases shall be construed according to
the rules of grammar and according to their common and
approved usage.” Id. § 1903(a). In other words, if a term is
clear and unambiguous, we are prohibited from assigning a
meaning to that term that differs from its common everyday
usage for the purpose of effectuating the legislature’s intent.
Additionally, we must remain mindful that the “General
Assembly does not intend a result that is absurd, impossible of
execution or unreasonable.” Id. § 1922(1).
Commonwealth v. Cahill, 95 A.3d 298, 301 (Pa. Super. 2014). It is
axiomatic that the plain language of a statute is the best indication of the
legislative intent that gave rise to the statute.
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
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this part, shall be construed according to such peculiar and
appropriate meaning or definition.
1 Pa.C.S. § 1903(a).
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 provision to include those areas or
locations that are not fairly encompassed by those terms. The enhancement
applies only when the offense occurs within 250 feet of a “public or private
elementary or secondary school.” 204 Pa. Code. § 303.10(b)(2). No
reasonable argument can be made that a pre-school or daycare facility is a
secondary school, so we focus our discussion upon whether either of these
two entities fall within the common definition of an elementary school.
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.
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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 pre-schools based upon the relevant time
period in a child’s life. In other words, an elementary school does not
include a pre-school, 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 1 Pa.C.S. § 1928(b)(1), and
by the maxim expressio unius est exclusio alterius, as referenced above.
Dixon, 53 A.3d at 846. Moreover, if we included these facilities within the
narrow term used in subsection 303.10(b)(2), we would inflict the harm that
we cautioned against, and resoundingly rejected, in Dixon, that “every place
where children routinely learn and play, virtually every home, yard,
neighborhood, street and woods would constitute a drug-free school zone
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and any drug offense [would implicate the sentencing enhancement.]”
Dixon, 53 A.3d at 846. As we explained in Dixon, if the General Assembly
wanted to include such facilities within the parameters of the enhancement,
it was capable of doing so. It chose not to, and we lack the authority “to
insert a word into a statutory provision where the legislature has failed to
supply it.” Louis John, 549 A.2d at 991.
We hold that the term “elementary school” encompasses neither a pre-
school 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.
As noted earlier, the youth enhancement requires a trial court to
consider elevated sentencing guideline ranges when “the court determines
that the offender distributed a controlled substance to a person or persons
under the age of 18.” 204 Pa. Code § 303.10(b)(1). Among the crimes for
which Ali was convicted were two counts of possession with intent to
deliver/delivery of a controlled substance to Harper, who was under eighteen
on the relevant date. It bears repeating that all parties agree that Ali did
not actually sell K2 to either of these individuals on May 21, 2012, the date
of the fatal accident. It also is undisputed that Ali was convicted of these
charges based upon a theory of accomplice liability. Thus, the question
becomes whether an accomplice is an “offender” for purposes of the youth
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enhancement. We hold that an accomplice is not an offender in this limited
circumstance.
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; 1 Pa.C.S. § 1903(a).
Moreover, we must construe the manifestly penal provision in accordance
with the rule of lenity. See 1 Pa.C.S. § 1928(b)(1). We also must bear in
mind that the legislature has the ability to define and include terms
according to its will, and the absence of a term or definition creates the
presumption that the term intentionally was omitted. Dixon, 53 A.3d at
846.
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.” 18 Pa.C.S.
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§ 306(c)(1)(i-ii). Hence, under the common understanding of the relevant
terms and provisions, an offender and an accomplice are distinct actors. We
find no basis upon which to conclude that the usage of one term necessarily
subsumes the other. To the contrary, the rule of lenity requires us to
construe these terms narrowly; that is, we must conclude that the use of the
word “offender” does not incorporate the concept of accomplice liability. We
find no indicia within the normal, everyday understanding of the terms or in
the body or context of the sentencing enhancement provisions that would
enable us to conclude that “offender” includes a primary actor’s accomplices,
as the Commonwealth urges us to do.
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 § 303.10(b) of Sentencing
Guidelines Implementation Manual, 6/13/1997, 5th Ed. at 201) (recognizing
that the youth and school zone enhancements do not apply to inchoate
crimes). Although the inchoate crimes and accomplice liability differ in some
ways, we nonetheless find no logical basis upon which to distinguish the two
in this context. If a conspirator is not subject to enhanced sentencing
guidelines for the foreseeable acts of his co-conspirator, the same must be
true for an accomplice relative to the principal offender. Had the General
Assembly wished to include accomplices either within the term “offender” or
within the reach of the youth enhancement, it had the authority and ability
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to do so. Because it chose not to do so, we must interpret the provision to
exclude accomplices.
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.
____________________________________________
4
We also note that Ali also has raised a general challenge to the
discretionary aspects of his sentence, in which he argues that his overall
sentence was unreasonable and unduly excessive. See Brief for Ali at 33-
34. Because we order a new sentence, this issue is now moot.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/5/2015
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