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Commonwealth v. Ali

Superior Court of Pennsylvania

March 5, 2015

RAFIE L. ALI, Appellant

 Argued,  September 10, 2014

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[Copyrighted Material Omitted]

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Appeal from the Judgment of Sentence of the Court of Common Pleas, Montgomery County, Criminal Division, No.: CP-46-CR-0005222-2012. Before O'NEILL, J.

John W. Aitchison, Norristown, for appellant.

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



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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

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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 semi-automatic handgun found on a small shelf below the counter2; 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].
2Both 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

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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

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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?
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, 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,

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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 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 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, 617 Pa. 107, 52 A.3d 1139, 1197 (Pa. 2012) (citation omitted); Commonwealth v. Dupre, 2005 PA Super 12, 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, 2013 PA ...

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