Commonwealth v. Ali

112 A.3d 1210

2015 PA Super 45

COMMONWEALTH of Pennsylvania, Appellee

v.Rafie L. ALI, Appellant.

No. 3553 EDA 2013

Superior Court of Pennsylvania.

Argued Sept. 10, 2014.

Filed March 5, 2015.

Reargument Denied May 8, 2015.

John W. Aitchison, Norristown, for appellant.

Daniel C. Bardo, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: DONOHUE, J., WECHT, J., and PLATT, J.^*

Opinion

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 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, 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 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 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].

FN² 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, 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.

* * *

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

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