Commonwealth v. Ali

J-A25028-14

2015 PA Super 45

COMMONWEALTH 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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