[J-66-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 84 MAP 2015
:
Appellant : Appeal from the Order of the Superior
: Court at No. 3553 EDA 2013 dated
: March 5, 2015, reconsideration denied
v. : May 8, 2015, Vacating & Remanding
: the Judgment of Sentence of the
: Montgomery County Court of Common
RAFIE L. ALI, : Pleas, Criminal Division, dated
: November 26, 2013 at Docket No. CP-
Appellee : 46-CR-0005222-2012.
:
: ARGUED: May 11, 2016
OPINION
JUSTICE DOUGHERTY DECIDED: November 22, 2016
This Court granted discretionary review to determine the propriety of the trial
court considering victim impact evidence at a sentencing proceeding where the offenses
at issue were not crimes against a person. Citing 42 Pa.C.S. §9738 (“Victim impact
statements”), the Superior Court held, as a matter of law, such evidence is irrelevant
and inadmissible at sentencing under such circumstances, the trial court therefore
abused its discretion, and resentencing was required. We respectfully disagree with
this broad holding and, in particular, the construction of Section 9738 as a provision
circumscribing evidentiary relevance at sentencing. Accordingly, we vacate the order of
the Superior Court and remand for resentencing consistent with both this opinion and
the Superior Court’s independent grounds for remand.
On May 21, 2012, Roger Malloy drove Robert Malloy, Kendall Harper and James
Crawford to the Achi Store, a convenience store in Pottstown owned and operated by
appellee and a partner, Muhammed Himed. N.T. 6/11/13 at 132-33. Harper and
Crawford entered the store and purchased K2, a synthetic marijuana, from Himed.
Roger Malloy later picked up Rachel Witt. The entire group, except for Harper, then
drank alcohol and smoked the K2 purchased at the Achi Store. Id.
Later that evening, Roger Malloy, Witt and Crawford were involved in a serious
automobile accident. As a result, Rachel Witt and James Crawford died while Malloy,
the driver, survived. Police recovered K2 from the vehicle and a laboratory test
detected the substance in Roger Malloy’s blood system; Harper told police the K2 was
purchased at the Achi Store. Id. at 131-133. As a result, Pottstown Police Officers
Breslin and Yambrick were directed to attempt an undercover purchase of K2 from the
Achi Store.
Upon entering the store, Officer Breslin asked appellee if he had “Kush,” a brand
of K2, appellee replied, “No, I don’t,” and Breslin exited. Id. at 20. Officer Yambrick
entered the store an hour later, however, and purchased two containers of K2 from
appellee. Id. at 35. Yambrick returned to the store to check for surveillance cameras
and saw appellee sell K2 to an unknown individual. Id. at 46-48. Officers then obtained
a search warrant and recovered 36 vials of K2, a .40 caliber handgun and various items
used to smoke marijuana and crack cocaine. Id. at 85-103.
Appellee and Himed were arrested and charged with, inter alia, corrupt
organizations, criminal conspiracy, delivery of paraphernalia and possession with intent
to deliver a controlled substance.1 Included in those charges was possession with
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)(30), respectively.
[J-66-2016] - 2
intent to deliver K2 arising from the sale to Harper and Crawford. The cases against
appellee and Himed were consolidated with the prosecution of Roger Malloy for
homicide by vehicle while driving under the influence. However, the trial court, per the
Honorable S. Gerald Corso, granted a defense motion to sever the cases from Malloy’s
prosecution. Himed and Malloy ultimately pleaded guilty before the Honorable Steven
T. O’Neill. Thereafter, appellee’s case proceeded to a jury trial before Judge O’Neill.
Although the Commonwealth presented evidence of the purchases of K2 by Harper and
Crawford, evidence regarding the fatal accident was not presented to the jury. The jury
found appellee guilty of corrupt organizations, criminal conspiracy, delivery of
paraphernalia and four counts of possession with intent to deliver synthetic
cannabinoids, including Himed’s sale to Harper and Crawford.
At appellee’s sentencing, the Commonwealth sought to introduce victim impact
evidence by incorporating the testimony of family members of Rachel Witt and James
Crawford from Malloy’s sentencing hearing. Appellee objected on relevance grounds,
arguing Malloy’s use of K2 sold by Himed could not be deemed the cause of the fatal
accident. Appellee argued Malloy had been drinking alcohol, organic marijuana was
also present in his blood system, and there was no evidence of the effects the K2 may
have had on him. Appellee did not argue a statutory bar to the evidence. N.T. 11/26/13
at 23. Judge O’Neill allowed the Commonwealth to attempt to establish a causal
relationship between the sale of the K2 to Harper and Crawford and the accident.
The Commonwealth then introduced evidence indicating the following: K2 from
the Achi Store was recovered from the vehicle after the accident; Malloy stated he
smoked K2 before the accident, which caused his heart to beat fast and his vision to
blur, leading to the accident; and K2 is known to cause heart attacks and strokes. Id. at
[J-66-2016] - 3
33-40. The trial court also allowed the Commonwealth to incorporate the victim impact
testimony from Malloy’s sentencing hearing before Judge O’Neill. Id. at 44.
Although the court acknowledged “there [was] nothing” to allow a jury to
affirmatively find appellee directly caused the deaths of Witt and Crawford, the court
determined it could not ignore the connection between the sale of the K2 and the fatal
accident. Id. at 72. The court explained this connection as follows:
[The deaths are] connected to what you do, Mr. Ali, exactly what
you do. If you peddle death and dangerous substances, you can expect
something like this to happen. This is within the purview of being a
business owner. If you take the risk, you should expect it. This is a stop
and shop. This is not a sit-down store where people come in and dine. It
is meant to buy something and go.
And when people buy something and go in the nature of
convenience stores in this society, they do so by vehicle. They drive up
and they drive away. And if you sell them something that can lead to their
death, that can lead to them being impaired, then this is a consequence
that should be readily known to you.
… I believe you simply were operating for profit, you took a risk,
and your risk ended up contributing, leading, being connected to,
whatever you want to say — the Court is not finding that you caused their
death [sic] directly, but you certainly were connected to a series of horrific
events that led to unspeakable tragedy for the families that this Court had
to listen to during the sentencing phase of [Malloy’s] case. So I cannot
turn a blind eye to it. It is simply a fact. And that was the tragic turn of
events that now leads to your conviction and your sentencing.
Id. at 72-73. The court then applied and considered school zone and youth
enhancements in calculating the sentencing guidelines, before ultimately sentencing
appellee to an aggregate term of seven to fourteen years’ imprisonment. Id. at 66-67,
79-81.
On appeal to the Superior Court, appellee raised a number of claims related to
both trial and sentencing. The trial court filed an opinion pursuant to Pa.R.A.P. 1925.
Respecting the victim impact issue, the court noted sentencing judges have discretion
[J-66-2016] - 4
to entertain testimony from a victim’s family or friends “on the relevant sentencing issue
of ‘the gravity of the offense as it relates to the impact on the life of the victim and on the
community.’” Trial Court Slip Op. at 9, quoting Commonwealth v. Penrod, 578 A.2d 486,
491-92 (Pa. Super. 1990), and citing 42 Pa.C.S. §9721 (“Sentencing generally”). The
court added that all testimony connected in some way to appellee’s case was relevant
and stated: “[T]he court only considered testimony that was relevant to the gravity of his
offenses and their relation to the impact on the lives of the victims and on the
community.” Id. at 12.
Appellee argued to the Superior Court that the trial court erred in considering the
victim impact testimony from Malloy’s sentencing. Citing Commonwealth v. Smithton,
631 A.2d 1053 (Pa. Super. 1993), appellee contended the discretion afforded
sentencing courts is not unfettered, but is constrained by relevancy. Appellee argued
sentencing courts have no legal authority to consider victim impact evidence where, as
here, the defendant is not convicted of a crime against a person. He asserted the
sentencing court abused its discretion by permitting the introduction of the memorialized
impact statements. Appellee further argued the trial court’s reliance on Penrod was
misplaced as Penrod pleaded guilty to a DUI charge involving an accident which directly
caused injuries to the victims, which is not the case here. Finally, appellee posed a
statutory argument he did not forward at sentencing, contending the trial court was not
permitted to consider victim impact testimony because the family members of Witt and
Crawford were not victims under the Crime Victims Act (the Act), 18 P.S. §§11.101-
11.5102. Section 11.103 of the Act defines “victim” as including: a direct victim; a
parent of a child who is a direct victim; a minor child who is a material witness to a
homicide, aggravated assault or rape against a family member; and a family member of
a homicide victim. See 18 P.S. §11.103. Because his drug-related crimes produced no
[J-66-2016] - 5
victim as that term is defined in the Act, appellee asserted the victim impact evidence
was inadmissible.
The Commonwealth responded that a sentencing court has discretion to consider
any evidence relevant to determining an appropriate sentence, the trial court found the
deaths of Witt and Crawford were reasonably linked to appellee’s criminal enterprise,
and that conclusion was supported by substantial evidence. In the Commonwealth’s
view, the victim impact testimony was relevant to determining an appropriate sentence.
The Superior Court denied relief on appellee’s trial-related claims, but vacated
the judgment of sentence and remanded for resentencing in a unanimous, published
opinion. The panel determined the trial court erred respecting the victim impact issue
and by applying the school zone and youth enhancements in fashioning appellee’s
sentence. Commonwealth v. Ali, 112 A.3d 1210 (Pa. Super. 2015). The panel’s
holding regarding the school zone and youth enhancements is not before this Court;
thus, remand for resentencing is required irrespective of our decision, though our
decision will affect the parameters of resentencing.
The panel began by identifying the standard of review for challenges to the
admission of victim impact statements as abuse of discretion. Id. at 1222, citing
Commonwealth v. Flor, 998 A.2d 606, 634 (Pa. 2010). In considering whether the trial
court abused its discretion, the panel deemed dispositive 42 Pa.C.S. §9738, a provision
not cited by the parties or argued to the trial court.
By way of background, Section 9738 appears in the Sentencing Code, 42
Pa.C.S. §§9701-9799.41, as part of Subchapter D (Informational Basis of Sentence),
and is titled “Victim impact statements.” The provision acts to limit the sequestration of
crime victims at trial, providing that victims cannot be ordered sequestered from trial
merely because they may later make victim impact statements at sentencing:
[J-66-2016] - 6
(a) General rule.—Notwithstanding any other statute, rule or
provision of law to the contrary, in 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
(2) testify as to the effect of the offense on the victim or the
family of the victim.
42 Pa.C.S. §9738(a)(1)-(2). The ensuing definitional section refers to the Act as one
way to define “victim” for purposes of Section 9738(a): “As used in this section, the term
‘victim’ shall mean a ‘victim’ as defined in” Section 11.103 of the Crime Victims Act or 18
Pa.C.S. §3001 (relating to definitions). 42 Pa.C.S. §9738(b).2 In this regard, then,
Section 9738 overlaps to an extent with appellee’s Crime Victims Act argument.
The Superior Court panel construed Section 9738 as a provision circumscribing
the admissibility of victim impact testimony at sentencing. See Ali, 112 A.3d at 1222-23
(“[A]s 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.”). The panel then considered whether the family witnesses in
this case were “victims” of appellee’s crimes under Section 9738, which in turn required
determining whether they were “victims” under Section 11.103 of the Act. In the panel’s
view, because appellee was not convicted of a crime against a person, “there is no
identifiable victim to render a victim impact statement admissible.” Id. at 1223.
2
There is no issue before the Court concerning the definition of victim in 18 Pa.C.S.
§3001.
[J-66-2016] - 7
The panel stated although there may have been a “connection” between the sale
of K2 and the deaths of Witt and Crawford, as the trial court had noted, “a mere link
between two distinct events is insufficient to trigger the applicability of [S]ection 9738.”
Id. The panel held “[t]he unambiguous language of the statute requires a victim to be
identified as such before his or her victim impact statement is admissible,” and the 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[.]” Id. The panel then opined that Witt
and Crawford were “not [appellee’s] victims under any reasonable reading of section
9738, particularly where all parties admit that [appellee] did not commit the specific act
that led to the fatal wreck.” Id.
The panel concluded by relying on the Smithton case cited by appellee. In
Smithton, the defendant was charged with criminal trespass, disorderly conduct and
resisting arrest, but the jury found him guilty only of the latter two charges. These
offenses occurred at a hospital after the alleged criminal trespass and at Smithton’s
arraignment, respectively. Notwithstanding the criminal trespass acquittal, the court at
sentencing allowed the criminal trespass victims to testify to the impact of the trespass
on their lives. On appeal, Smithton argued the testimony was impermissible. The
Smithton Court agreed and vacated the sentence. The panel noted the crimes of which
Smithton was convicted were contained in informations separate from the criminal
trespass and did not involve the trespass or those victims; thus, the victims’ testimony
was irrelevant. Smithton, 631 A.2d at 1057.
The panel below held Smithton supported its holding because, as in Smithton,
the victim impact testimony here was irrelevant because appellee was not charged with,
or convicted of, any offense relating to the deaths of Witt and Crawford. By way of
[J-66-2016] - 8
mandate, the panel directed that at resentencing “the trial court may not consider the
victim impact testimony.” Ali, 112 A.3d at 1224. The panel did not address the trial
court’s reliance upon the language of Section 9721(b) of the Sentencing Code requiring
sentencing courts to consider, inter alia, the “protection of the public,” and “the gravity of
the offense as it relates to the impact on the life of the victim and on the community….”3
This Court accepted review to address the following question raised by the
Commonwealth: “Does a sentencing judge have discretion to consider victim impact
evidence where the offense is not a ‘crime against a person?’” Commonwealth v. Ali,
127 A.3d 1286 (Pa. 2015) (per curiam). The question of the parameters of a sentencing
judge’s discretion, in this case implicating the proper construction of both Section
9721(b) and Section 9738 of the Sentencing Code, is one of law. Hence, our review is
plenary and non-deferential. See, e.g., Commonwealth v. Eisenberg, 98 A.3d 1268,
1279 (Pa. 2014); Commonwealth v. Garzone, 34 A.3d 67, 74 (Pa. 2012).
The Commonwealth argues the Superior Court’s holding that Section 9738
operates as an evidentiary prohibition on victim impact evidence at sentencing from
families of decedents who were not direct victims of the offenses at issue is
unsupported by the statutory text, prevailing decisional law, and 42 Pa.C.S. §9721(b),
the more directly relevant provision of the Sentencing Code. Regarding the
3
Section 9721(b) provides, in relevant part:
(b) General standards.—In selecting from the alternatives set forth
in subsection (a), the court shall follow the general principle that the
sentence imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant.
42 Pa.C.S. §9721(b).
[J-66-2016] - 9
construction of Section 9738, the Commonwealth stresses the text of the statute
prohibits a trial court from sequestering victims at trial based on the possibility they may
provide impact testimony at sentencing, and “has nothing to do with restricting the
admissibility of victim impact evidence.” Appellant’s Brief at 12. The Commonwealth
describes Section 9738 as a provision “giv[ing] a statutory right to a narrow, statutorily-
defined class of crime victims; it does not take away the sentencing judge’s discretion to
hear from other crime victims or those from the community who may have been harmed
by a defendant’s crimes.” Id.
Relying on the Sentencing Code more generally, the Commonwealth posits that
the panel’s holding cannot be reconciled with Section 9721(b), which directs judges to
fashion a sentence consistent with, inter alia, “the gravity of the offense as it relates to
the impact on the life of the victim and on the community.” The Commonwealth notes
Section 9721(b) applies to all crimes, not just crimes against persons. It argues the
panel’s limitation of impact evidence only to those who suffered actual harm from the
crimes, or their families, renders the statute’s “impact on the community” language
meaningless. Id. at 14-15.
The Commonwealth crafts two distinct points respecting existing decisional law.
First, the Commonwealth argues the panel’s proscriptive holding is inconsistent with the
judicial recognition of the broad discretion afforded a sentencing court, which is “in the
best position to determine the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it.” Id. at 12, quoting Commonwealth
v. Ward, 568 A.2d 1242, 1243 (Pa. 1990). The Commonwealth contends the panel’s
holding limits victim impact testimony to physical and sexual crimes and prohibits a
sentencing judge from hearing relevant victim and community impact evidence in a case
such as this one. The Commonwealth maintains “such evidence may not only be
[J-66-2016] - 10
relevant, but indispensable to a full assessment of the gravity of the crime.” Id. at 13. In
support it provides the following examples: “a drug-dealer who sells drugs that lead to a
fatal crash, or a straw purchaser who gives a gun to a murderer, a burglar who destroys
a family’s sense of security, or a doctor who prescribes controlled substances for profit
and fosters addiction in his patients.” Id. at 13-14. The Commonwealth contends a
sentencing judge must have discretion to determine whether such evidence is relevant
on a case-by-case basis.
Second, the Commonwealth contends the decision below is irreconcilable with
Superior Court precedent construing Section 9721(b), citing numerous decisions where
evidence has been held admissible at sentencing to show the impact of a crime on
members of the community. Id. at 16-17, citing Commonwealth v. Curran, 932 A.2d
103, 106-07 (Pa. Super. 2007) (proper to consider two people died as indirect result of
furnishing alcohol); Commonwealth v. Griffin, 804 A.2d 1, 10-11 (Pa. Super. 2002)
(proper to consider drug crimes on low income neighborhood); Commonwealth v.
Roden, 730 A.2d 995, 998 (Pa. Super. 1999) (proper to consider that babysitter’s
murder of infant made families afraid to take children to caregivers); Commonwealth v.
Penrod, 578 A.2d at 492 (proper to consider injuries sustained by others as result of
DUI).
The Commonwealth also contends the panel’s reliance on the Smithton case
was inapt because Smithton was charged with burglary and resisting arrest but was
convicted only of resisting arrest; the victim impact testimony of the homeowners was
not related to the conviction for resisting arrest. The Commonwealth contrasts the
situation here, where family members of the victim impact witnesses perished in a
vehicle driven by the consumer of drugs sold by the enterprise of which appellee was a
part.
[J-66-2016] - 11
Finally, the Commonwealth argues the panel’s decision will have far-reaching
and dangerous policy consequences as it will apply not only to drug cases, but to
crimes such as arson, theft and robbery, all of which are listed as offenses against
property in the Crimes Code. The Commonwealth notes such property crimes have an
impact upon victims and communities just the same as crimes against persons, and
“[w]ithout hearing from those harmed by a defendant’s crimes, sentencing judges often
will not be able to assess the gravity of the offense as it relates to the life of the victim
and community, … [which] is inconsistent with law and justice.” Appellant’s Brief at 16.
The Pennsylvania District Attorneys Association (PDAA) has filed an amicus
curiae brief supporting the Commonwealth. PDAA posits that, in establishing a
limitation upon evidence deemed relevant at sentencing, the Superior Court erred in
relying upon an inapplicable statute — Section 9738, which addresses sequestration,
not admissibility of evidence — while failing to apply the controlling statute — Section
9721(b), which requires the court to impose a sentence “consistent with the protection
of the public, the gravity of the offense as it relates to the impact on the life of the
victim and on the community, and the rehabilitative needs of the defendant.” PDAA
Brief at 8-9, quoting 42 Pa.C.S. §9721(b) (emphasis by PDAA). PDAA suggests, in
considering the protection of the public and assessing the impact of a crime on the
community:
[A] sentencing court is obliged to consider the consequences of an offense
for individual members of the community even if not “direct victims.”
Imposing a broader view, the General Assembly has recognized that
criminal law exists to protect not only direct victims, but also the
community that bears the indirect consequences of crime. Because “the
public” that the court is obliged to protect is made up of individual
members, the impact of the crime on particular citizens — whether or not
they fit within the narrow category of “victims” — is clearly relevant at
sentencing.
[J-66-2016] - 12
Id. at 9-10. In PDAA’s view, the panel erred in limiting impact evidence to cases where
“direct victims” and “crimes against a person” are implicated. PDAA further stresses the
decisional law recognizes evidence other than strict “victim impact” testimony may be
relevant at sentencing if it addresses the protection of the public and the impact of the
offense on the community, including persons who were not direct victims of the crime.
Id. at 10-12, citing Flor, 998 A.2d at 637 n.13 (alternative holding); Commonwealth v.
Davis, 737 A.2d 792, 799 (Pa. Super. 1999); Commonwealth v. duPont, 730 A.2d 970,
986 (Pa. Super. 1999); Penrod, 578 A.2d at 491-92.
PDAA contends the impact evidence here was relevant to the protection of the
public and the impact on the community of the crimes for which appellee stood
convicted. Although the family members were not per se or direct victims of appellee’s
criminal enterprise, PDAA notes members of the community died as an indirect
consequence of that enterprise; evidence of that impact was a pertinent sentencing
consideration, with its relative weight a matter reserved to the sentencing court, and the
trial court made clear on the record it was well aware of the nature of the connection of
the drug enterprise and sale to the eventual car accident.
In response, appellee echoes the twin points made by the panel below: the
definition of victim in Section 9738, incorporating Section 11.03 of the Crime Victims
Act, limits victim impact testimony at sentencing, and the sentencing court’s discretion is
constrained by principles of relevance, as recognized in Smithton. Appellee
acknowledges the tragedy befalling Witt and Crawford, but urges that the current
legislative scheme does not consider them victims of appellee’s crime, and thus impact
testimony from their family members is not admissible or relevant.
Appellee concedes Section 9738 pertains to sequestration, but argues the panel
properly considered the provision’s definition of victim because that term, which also
[J-66-2016] - 13
appears in Section 9721(b), is not defined elsewhere in the Sentencing Code. Appellee
then argues the panel properly deemed the Act’s definition of victim to operate as a
restraint upon the type of evidence to be proffered as victim impact evidence.
Regarding relevance, appellee maintains Witt and Crawford were the victims of Malloy’s
DUI-related crime, and were not victims of appellee’s conduct. Appellee asserts the
case for relevance-based exclusion of the impact testimony here is more compelling
than in Smithton because appellee was never charged in connection with the fatal
accident and he was not the person who sold the K2 to Crawford and Harper, which
contributed to Malloy’s later impairment.
Finally, appellee disputes the Commonwealth’s claim that the decision below will
have dire consequences generally. In his view, the panel did not establish a bright-line
rule of preclusion for cases where the crime is not against a person; rather, the panel
merely correctly applied the definition of “victim” to the facts of his case. Appellee
contends the panel below only “determined that there must first be an identifiable victim
of the crime for which the defendant was convicted prior to introducing victim impact
testimony.” Appellee’s Brief at 15, citing Ali, 112 A.3d at 1223 (emphasis omitted).
Upon review, we are substantially aligned with the position of the Commonwealth
and PDAA respecting the proper interpretation of Section 9738, the operation of the
Sentencing Code in general, and the operation of Section 9721(b), which the trial court
invoked, in particular. By its plain terms, Section 9738 does not purport to address the
admissibility of victim impact evidence, but merely operates to protect certain crime
victims from being sequestered at trial based on the possibility they may later offer
victim impact evidence. While appellee may be correct that no other provision of the
Sentencing Code defines the term victim, it is notable that, in incorporating the Act’s
restrictive definition, Section 9738(b) does not suggest an intention to address the
[J-66-2016] - 14
Sentencing Code as a whole. To the contrary, the General Assembly specifically limited
the incorporated definition to Section 9738, stating “[a]s used in this section,” the term
victim has the meaning ascribed to it in the Act (or in 18 Pa.C.S. §3001). Section
9738(b) contains no reference, for example, to the meaning of the term “victim” for
purposes of Section 9721(b).
Furthermore, Section 9721(b), which the panel failed to discuss, has a broader
focus than the panel derived from Section 9738. Without belaboring the point, when it
comes to impacts and effects of crimes, the provision explicitly directs courts to fashion
sentences that are consistent with the protection of the public and the impact on both
the life of the victim and on the community. Notably, appellee addresses Section
9721(b) in his brief, but he focuses only on its “impact on the life of the victim” language,
retaining his Crime Victims Act argument (an argument he did not present to the trial
court). Appellee does not address the broader focus of the provision making relevant
the impact on the community and the protection of the public. We believe there is merit
in PDAA’s construction of Section 9721(b) as an indication the General Assembly “has
recognized that criminal law exists to protect not only direct victims, but also the
community that bears the indirect consequences of crime,” and this, in turn, affords
some flexibility in the trial court considering the practical and tangential effects of a
crime in fashioning a sentence.4 PDAA Brief at 10.
4
The dissent insists Section 9721(b) does not authorize the admission of evidence, but
rather merely sets forth general principles for sentencing courts to consider at
sentencing. Respectfully, this unduly narrow interpretation of statutory language that
clearly and expressly directs the court to impose a sentence “consistent with” the gravity
of the offense as it relates to the impact “on the community” yields the untenable
consequence of requiring the court to consider the impact of the offense on the
community, while at the same time prohibiting the court from exercising its discretion to
hear evidence about that impact. We read the statute in accordance with its plain and
unambiguous language to avoid such an absurd result. See, e.g., 1 Pa.C.S. §1922(1)
(continued…)
[J-66-2016] - 15
Perhaps a complicating factor here is the evidence deemed relevant by the trial
court was posed as victim impact rather than “community impact” evidence. But,
considerations of public protection and community impact presumably may be
addressed in myriad ways.5 The general community effects of illegal drug distribution
are well-known, including effects (sometimes fatal) upon abusers, attendant property
crimes by certain of those suffering from addiction, and violence associated with certain
drugs or manners of distribution. The tragic fortuity here — the death of two at the
hands of a driver impaired, to some extent, by an illegal narcotic — obviously is not
present in all, or even in many, cases involving distribution of the involved drug.
However, the risk or danger of such consequent fortuities is present and where,
as here, the crime in fact is logically connected to a community impact suffered by
specific individuals, Section 9721(b) makes that impact or effect a relevant
consideration at sentencing — whether the evidence is called “victim impact” or not, and
regardless of whether the affected individuals would be deemed “victims” under the
Crime Victims Act. Notably, such a reading of Section 9721(b) is consistent with the
Superior Court decisions cited by the Commonwealth, such as Curran, 932 A.2d 103,
Griffin, 804 A.2d 1, Roden, 730 A.2d 995, and Penrod, 578 A.2d 486.6
(…continued)
(in interpreting statutory language court may presume General Assembly did not intend
absurd result).
5
The dissent suggests our holding might be read to require admission of random victim
impact statements from generic “other trials,” Dissenting Slip Op. at 3, while ignoring the
direct connection between appellee’s crimes and the community impact evidence
presented at his sentencing hearing. The sentencing court maintains discretion to
determine admissibility, and we simply hold there was no abuse of that discretion here.
6
The Superior Court’s decision in Smithton, cited by appellee, is inapposite. Smithton
was acquitted of the criminal trespass and Smithton’s subsequent actions giving rise to
his disorderly conduct and resisting arrest convictions had no logical impact upon the
victims of the alleged criminal trespass; and Smithton having been acquitted of the
(continued…)
[J-66-2016] - 16
Furthermore, as PDAA notes, in Commonwealth v. Devers, 546 A.2d 12 (Pa.
1988), this Court stressed the duty to fashion an appropriate, individualized sentence
requires the trial court to balance considerations including the nature and circumstances
of the crime, the effect on the community, and the defendant’s circumstances and
needs:
Courts are not permitted to mete out punishment based on the mere fact
of the crime. On the contrary, sentencing must result both from a
consideration of the nature and circumstances of the crime as well as the
character of the defendant. The sentencer has broad discretion to choose
a penalty from sentencing alternatives and the range of permissible
confinements, provided the choices are consistent with the protection of
the public, the gravity of the offense, and the rehabilitative needs of the
defendant. Discretionary sentencing, in sum, means that a defendant
cannot be punished on the basis of the crime alone.
Id. at 13. See also Commonwealth v. Begley, 780 A.2d 605, 643 (Pa. 2001) (“The trial
court is vested with broad discretion in determining the defendant's sentence since the
court is in the best position to view the defendant's character, displays of remorse,
defiance or indifference, and the overall effect and nature of the crime.”), citing
Commonwealth v. Ward, 568 A.2d 1242, 1243 (Pa. 1990).
Of course, the sentencing court must take a measured approach to community
and indirect victim effects depending upon the level of attenuation between the crime
and the proffered impact. Here, the court’s comments at sentencing indicated its
sensitivity to that attenuation. See N.T. 11/26/13 at 73 (“[T]he Court is not finding that
you caused their death [sic] directly, but you certainly were connected to a series of
(…continued)
trespass, their testimony respecting the impact of that event upon their lives was not
relevant. Here, appellee was convicted for his role in an enterprise that sold K2 to
Harper and Crawford, who then smoked the K2 with Malloy, whose intoxication was a
cause of the fatal crash. Although appellee was never charged with any crime arising
from those deaths, the families of Witt and Crawford obviously were affected by the
conduct, of which he was a part, contributing to Malloy’s intoxication.
[J-66-2016] - 17
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.”). We hold the trial court had discretion to consider the proffered
evidence, and we see no abuse of discretion in its consideration under these
circumstances. 7
Accordingly, we vacate the order of the Superior Court and remand for
resentencing consistent with this opinion and the Superior Court’s independent grounds
for remand implicating the school zone and youth enhancements under the Sentencing
Guidelines.
Chief Justice Saylor and Justice Todd join the opinion.
Justice Baer files a dissenting opinion.
Justices Donohue and Wecht did not participate in the consideration or decision
of this case.
7
The dissent does not “believe that anything in the law” directs our holding, Dissenting
Slip Op. at 7-8, but that is surely not an extraordinary circumstance when this Court
grants review in a matter of first impression. In any event, we do not agree that our
decision lacks support in existing statutory or common law; as we have seen, Section
9721(b) explicitly states a sentencing court may consider the impact of the crime on the
community when rendering a sentence. Furthermore, there is significant Superior Court
case law affirming the admission of community impact evidence, as we have discussed
supra. See, e.g., Curran, Griffin, Roden and Penrod. Finally, as we have stated, this
Court has consistently held sentencing courts have broad discretion to consider the
gravity of the offense and the overall effect and nature of the crime in fashioning an
appropriate sentence. See, e.g., Begley and Devers.
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