Commonwealth v. Ali

197 A.3d 742

COMMONWEALTH of Pennsylvania

v.Rafie L. ALI, Appellant

No. 2596 EDA 2017

Superior Court of Pennsylvania.

Argued September 26, 2018

Filed October 09, 2018

Elizabeth L. Lippy, North Wales, for appellant.

Todd N. Barnes, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., NICHOLS, J., and STEVENS^* , P.J.E.

OPINION BY STEVENS, P.J.E.:

Appellant, Rafie L. Ali ("Ali"), appeals from the February 27, 2017, judgment of sentence entered in the Court of Common Pleas of Montgomery County following our Supreme Court's remanding of the case to the trial court for a new sentencing hearing and the imposition of a new sentence. See Commonwealth v. Ali , 637 Pa. 371, 149 A.3d 29 (2016). After a careful review, we affirm.

Our Supreme Court has set forth the relevant facts and procedural history, in part, as follows:

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 [Ali] and a partner, Muhammed Himed [ ("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 131-33. 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 [Ali] if he had "Kush," a brand of K2, [Ali] 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 [Ali]. Id. at 35. Yambrick returned to the store to check for surveillance cameras and saw [Ali] 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.

[Ali] 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

______________________________

¹ 18 Pa.C.S. § 911(b)(3)-(4); 18 Pa.C.S. § 903 ; 35 P.S. § 780-113(a)(33) ; and 35 P.S. § 780-113(a)(3), respectively.

Included in those charges was possession with intent to deliver K2 arising from the sale to Harper and Crawford. The cases against [Ali] 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, [Ali'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 [Ali] 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 [Ali'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. [Ali] objected on relevance grounds, arguing Malloy's use of K2 sold by Himed could not be deemed the cause of the fatal accident. [Ali] 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. [Ali] 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 [Ali] 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 [Ali] to an aggregate term of seven to fourteen years' imprisonment.^[1]Id. at 66-67, 79-81.

Ali , 637 Pa. at 373-76, 149 A.3d at 30-31 (footnote in original) (footnote added).

Ali filed a notice of appeal to this Court, and he presented claims related to both trial and sentencing. Specifically, he averred: the trial court erred in applying the school zone enhancement for sentencing purposes; the trial court erred in applying the youth enhancement for sentencing purposes; the trial court erred by granting the Commonwealth's motion to introduce victim impact testimony from an unrelated criminal matter and considering such evidence for sentencing purposes; the trial court violated Ali's constitutional rights by applying sentencing enhancements in violation of Alleyne ;² the trial court erred by preventing Ali from publishing exhibit D-6 (a laboratory report); and the trial court erred by precluding Ali from introducing evidence that the handgun found at the Achi Store was under the control of his co-defendant, Himed.

A three-judge panel of this Court denied relief on Ali's trial-related claims, but vacated his judgment of sentence and remanded for a new sentence. Commonwealth v. Ali , 112 A.3d 1210 (Pa.Super. 2015). Specifically, the panel determined the trial court erred in permitting certain victim impact testimony at sentencing, as well as erred in applying the school zone³ and youth enhancements⁴ in fashioning Ali's sentence.

In holding the trial court erred in permitting the victim impact testimony from family members related to the deaths of Witt and Crawford, the panel, relying upon the definition of "victim" in 42 Pa.C.S.A. § 9738, concluded that, since Ali was not convicted of a crime against a person, "there is no identifiable victim to render a victim impact statement admissible." Ali , 112 A.3d at 1223. Further, the panel opined that Witt and Crawford were "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." Id. Accordingly, the panel mandated that, at resentencing, the trial court may not consider the victim impact testimony. Id. at 1224.

In holding the trial court erred in applying the school zone enhancement, the panel held the Commonwealth failed to prove the Y.W.C.A., which the trial court relied upon in applying the school zone enhancement, ⁵ constituted a "public or private elementary or secondary school" within the meaning of subsection 303.10(b)(2). Id. at 1226.

In holding the trial court erred in applying the youth enhancement, the panel noted that Ali did not actually sell K2 to Harper, who was under eighteen years old; but rather, Ali's co-defendant, Himed, delivered the K2 to Harper. Id. at 1231. The panel reasoned that, since Ali was convicted of possession with the intent to delivery/delivery of a controlled substance to Harper under an accomplice theory, and an "accomplice" is not an "offender" under subsection 303.10(b)(1), the youth enhancement was not applicable to Ali for sentencing purposes.⁶ Id.

Ali filed a petition for allowance of appeal, which the Supreme Court granted limited to the issue of whether the trial court abused its discretion in considering the victim impact evidence during sentencing.⁷ Upon review, the Supreme Court relevantly held that "[b]y its...