[J-66-2016]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.

COMMONWEALTH OF PENNSYLVANIA,

Appellant

v.

RAFIE L. ALI,

Appellee

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No. 84 MAP 2015

Appeal from the Order of the Superior 

Court at No. 3553 EDA 2013 dated 

March 5, 2015, reconsideration denied 

May 8, 2015, Vacating & Remanding 

the Judgment of Sentence of the 

Montgomery County Court of Common 

Pleas, Criminal Division, dated 

November 26, 2013 at Docket No. CP46-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.
[J-66-2016] - 2

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] - 3

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] - 4

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] - 5

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] - 6

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] - 7

(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] - 8

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] - 9

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] - 10

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, statutorilydefined 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] - 11

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] - 12

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] - 13

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] - 14

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] - 15

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] - 16

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] - 17

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] - 18

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.