Commonwealth v. Ali

• Decision Date: 22 November 2016
• Docket Number: No. 84 MAP 2015,84 MAP 2015
• Citation: 149 A.3d 29
• Parties: Commonwealth of Pennsylvania, Appellant v. Rafie L. Ali, Appellee
• Court: Pennsylvania Supreme Court

149 A.3d 29

Commonwealth of Pennsylvania, Appellant

v.Rafie L. Ali, Appellee

No. 84 MAP 2015

Supreme Court of Pennsylvania.

ARGUED: May 11, 2016

DECIDED: November 22, 2016

Robert Martin Falin, Esq., Montgomery County Dist. Attorney's Office, Kevin R. Steele, for Commonwealth of Pennsylvania, Appellant.

Elizabeth Louise Lippy, Esq., Fairlie & Lippy, PC, for Rafie L. Ali, Appellee.

Hugh J. Burns Jr., Esq., for Pennsylvania Dist. Attorney's Ass'n, Appellant Amicus Curiae.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

OPINION

JUSTICE DOUGHERTY

This Court granted discretionary review to determine the propriety of the trial court considering victim impact evidence at a sentencing proceeding where the offenses at issue were not crimes against a person. Citing 42 Pa.C.S. § 9738 (“Victim impact statements”), the Superior Court held, as a matter of law, such evidence is irrelevant and inadmissible at sentencing under such circumstances, the trial court therefore abused its discretion, and resentencing was required. We respectfully disagree with this broad holding and, in particular, the construction of Section 9738 as a provision circumscribing evidentiary relevance at sentencing. Accordingly, we vacate the order of the Superior Court and remand for resentencing consistent with both this opinion and the Superior Court's independent grounds for remand.

On May 21, 2012, Roger Malloy drove Robert Malloy, Kendall Harper and James Crawford to the Achi Store, a convenience store in Pottstown owned and operated by appellee and a partner, Muhammed Himed. N.T. 6/11/13 at 132–33. Harper and Crawford entered the store and purchased K2, a synthetic marijuana, from Himed. Roger Malloy later picked up Rachel Witt. The entire group, except for Harper, then drank alcohol and smoked the K2 purchased at the Achi Store. Id .

Later that evening, Roger Malloy, Witt and Crawford were involved in a serious automobile accident. As a result, Rachel Witt and James Crawford died while Malloy, the driver, survived. Police recovered K2 from the vehicle and a laboratory test detected the substance in Roger Malloy's blood system; Harper told police the K2 was purchased at the Achi Store. Id . at 131–133. As a result, Pottstown Police Officers Breslin and Yambrick were directed to attempt an undercover purchase of K2 from the Achi Store.

Upon entering the store, Officer Breslin asked appellee if he had “Kush,” a brand of K2, appellee replied, “No, I don't,” and Breslin exited. Id . at 20. Officer Yambrick entered the store an hour later, however, and purchased two containers of K2 from appellee. Id . at 35. Yambrick returned to the store to check for surveillance cameras and saw appellee sell K2 to an unknown individual. Id . at 46–48. Officers then obtained a search warrant and recovered 36 vials of K2, a .40 caliber handgun and various items used to smoke marijuana and crack cocaine. Id . at 85–103.

Appellee and Himed were arrested and charged with, inter alia, corrupt organizations, criminal conspiracy, delivery of paraphernalia and possession with intent to deliver a controlled substance.¹ Included in those charges was possession with intent to deliver K2 arising from the sale to Harper and Crawford. The cases against appellee and Himed were consolidated with the prosecution of Roger Malloy for homicide by vehicle while driving under the influence. However, the trial court, per the Honorable S. Gerald Corso, granted a defense motion to sever the cases from Malloy's prosecution. Himed and Malloy ultimately pleaded guilty before the Honorable Steven T. O'Neill. Thereafter, appellee's case proceeded to a jury trial before Judge O'Neill. Although the Commonwealth presented evidence of the purchases of K2 by Harper and Crawford, evidence regarding the fatal accident was not presented to the jury. The jury found appellee guilty of corrupt organizations, criminal conspiracy, delivery of paraphernalia and four counts of possession with intent to deliver synthetic cannabinoids, including Himed's sale to Harper and Crawford.

At appellee's sentencing, the Commonwealth sought to introduce victim impact evidence by incorporating the testimony of family members of Rachel Witt and James Crawford from Malloy's sentencing hearing. Appellee objected on relevance grounds, arguing Malloy's use of K2 sold by Himed could not be deemed the cause of the fatal accident. Appellee argued Malloy had been drinking alcohol, organic marijuana was also present in his blood system, and there was no evidence of the effects the K2 may have had on him. Appellee did not argue a statutory bar to the evidence. N.T. 11/26/13 at 23. Judge O'Neill allowed the Commonwealth to attempt to establish a causal relationship between the sale of the K2 to Harper and Crawford and the accident.

The Commonwealth then introduced evidence indicating the following: K2 from the Achi Store was recovered from the vehicle after the accident; Malloy stated he smoked K2 before the accident, which caused his heart to beat fast and his vision to blur, leading to the accident; and K2 is known to cause heart attacks and strokes. Id . at 33–40. The trial court also allowed the Commonwealth to incorporate the victim impact testimony from Malloy's sentencing hearing before Judge O'Neill. Id . at 44.

Although the court acknowledged “there [was] nothing” to allow a jury to affirmatively find appellee directly caused the deaths of Witt and Crawford, the court determined it could not ignore the connection between the sale of the K2 and the fatal accident. Id. at 72. The court explained this connection as follows:

[The deaths are] 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.

... 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 [sic] 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 [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.

Id . at 72–73. The court then applied and considered school zone and youth enhancements in calculating the sentencing guidelines, before ultimately sentencing appellee to an aggregate term of seven to fourteen years' imprisonment. Id. at 66–67, 79–81.

On appeal to the Superior Court, appellee raised a number of claims related to both trial and sentencing. The trial court filed an opinion pursuant to Pa.R.A.P. 1925. Respecting the victim impact issue, the court noted sentencing judges have discretion to entertain testimony from a victim's family or friends “on the relevant sentencing issue of ‘the gravity of the offense as it relates to the impact on the life of the victim and on the community.’ ” Trial Court Slip Op. at 9, quoting Commonwealth v. Penrod , 396 Pa.Super. 221, 578 A.2d 486, 491–92 (1990), and citing 42 Pa.C.S. § 9721 (“Sentencing generally”). The court added that all testimony connected in some way to appellee's case was relevant and stated: “[T]he court only considered testimony that was relevant to the gravity of his offenses and their relation to the impact on the lives of the victims and on the community.” Id. at 12.

Appellee argued to the Superior Court that the trial court erred in considering the victim impact testimony from Malloy's sentencing. Citing Commonwealth v. Smithton , 429 Pa.Super. 55, 631 A.2d 1053 (1993), appellee contended the discretion afforded sentencing courts is not unfettered, but is constrained by relevancy. Appellee argued sentencing courts have no legal authority to consider victim impact evidence where, as here, the defendant is not convicted of a crime against a person. He asserted the sentencing court abused its discretion by permitting the introduction of the memorialized impact statements. Appellee further argued the trial court's reliance on Penrod was misplaced as Penrod pleaded guilty to a DUI charge involving an accident which directly caused injuries to the victims, which is not the case here. Finally, appellee posed a statutory argument he did not forward at sentencing, contending the trial court was not permitted to consider victim impact testimony because the family members of Witt and Crawford were not victims under the Crime Victims Act (the Act), 18 P.S. §§ 11.101 –11.5102. Section 11.103 of the Act defines “victim” as including: a direct victim; a parent of a child who is a direct victim; a minor child who is a material witness to a homicide, aggravated assault or rape against a family member; and a family member of a homicide victim. See 18 P.S. § 11.103. Because his drug-related crimes produced no victim as that term is defined in the Act, appellee asserted the victim impact evidence was inadmissible.

The Commonwealth responded that a sentencing court has discretion to consider any evidence relevant to determining an appropriate sentence, the trial court found the deaths of Witt and Crawford were reasonably linked to appellee's criminal enterprise, and that conclusion was supported by substantial evidence. In the Commonwealth's view, the victim impact testimony was relevant to determining an appropriate...