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HomeMy WebLinkAboutCP-21-CR-0003607-2012 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-CR-3607-2012 V. : : CHANGE: 1. DRUG DELIVERY RESULTING : IN DEATH; 2. UNLAWFUL DELIVERY, : MANUFACTURE, POSSESSION WITH : INTENT TO DELIVER A SCHEDULE I, : CONTROLLED SUBSTANCE – HEROIN SOMWANG LAOS KAKHANKHAM : OTN: T264161-2 : AFFIANT: DET. ERIC DALE IN RE: OPINION PURSUANT TO PA.R.A.P 1925 Ebert, J., August 7, 2014 – Defendant, Somwang Laos Kakhankham, appeals following a stipulated fact trial where he was found guilty of the above-captioned charges. Prior to the stipulated fact trial, Defendant filed a Petition for Writ of Habeas Corpus on August 28, 2013, where he argued that the Commonwealth did not make out a prima facie case for the charge of drug delivery resulting in death, 18 Pa.C.S.A. § 2506. Defendant also argued that the statute was unconstitutionally vague because it does not specify the mens rea required. Following a hearing, Defendant’s Petition for Writ of Habeas Corpus was denied on December 18, 2013. On appeal, Defendant complains that both his conviction and the denial of his Petition for Writ of Habeas Corpus were error. Defendant’s argument is essentially the same for both errors complained of; that 18 Pa.C.S.A. § 2506 is unconstitutionally vague and does not contain the required mens rea or requisite level of causation, and therefore, the Commonwealth presented no evidence of Defendant’s culpability 1 regarding the result-of-conduct element. This Opinion will address the errors complained of as they relate specifically to the Petition for Writ of Habeas Corpus, as this Court handled the Habeas Petition. Discussion I. Constitutionality a. Mens Rea Defendant argues that 18 Pa.C.S.A. § 2506(a), drug delivery resulting in death, is unconstitutionally vague because the statute fails to clearly indicate the requisite mens rea for conviction and fails to clearly indicate the level of causation for the result-of-conduct element. This statute is not unconstitutionally vague. When determining whether a statute is constitutional, this Court begins with the presumption that the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth. 1 Pa.C.S.A. § 1922(3); see also Commonwealth v. Chase, 960 A.2d 108, 112 (Pa. 2008). “A statute will only be found unconstitutional if it ‘clearly, palpably and plainly’ violates the Constitution.” Chase, 960 A.2d at 112 (internal citations omitted). When specifically dealing with the vagueness of a criminal statute, the “statute must define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Commonwealth v. Ludwig, 874 A.2d 623, 629 (Pa. 2005) (internal quotations and citations omitted). Courts will look to the language of the statute itself to determine vagueness. Id. In addition, Courts look to 1 See Concise Statement of Matters Complained of on Appeal, filed May 22, 2014 2 legislative history and the purpose in enacting a statute to determine constitutionality. Id. The statute at issue, drug delivery resulting in death, states: A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes a controlled substance…in violation of…The Controlled Substance, Drug, Device and Cosmetic Act, and another person dies as a result of using the substance. 18 Pa.C.S.A. § 2506(a). Upon reading the statute, it is clear that a defendant must intend to deliver the controlled substance. Defendant is correct that there is no mens rea specifically listed in the statute for the resulting death element; however, this does not mean that the statute is unconstitutionally vague. It should be noted that the General Assembly changed this statute in 2011. Prior to the present version, this crime was considered a type of murder in the third degree, requiring the mens rea of malice for both delivering the drugs and for the resulting death. See Ludwig, 874 A.2d at 630. It is clear, therefore, that when the statute was amended the legislature no longer intended for malice to be the required mens rea. The question then is whether the legislature intended for drug delivery resulting in death to be a strict liability offense or to have a mens rea with regard to the element of death. Strict liability criminal statutes are generally disfavored and are an “exception to the centuries old philosophy of criminal law that imposed criminal responsibility only for an act coupled with moral culpability.” Commonwealth v. Hurst, 889 A.2d 624, 628 (Pa. Super. 2005) (quoting Commonwealth v. Pond, 846 A.2d 699, 706 (Pa. Super. 2004)). A factor to consider when determining whether the legislature intended for a crime to be 3 a strict liability offense is “whether the statute imposes serious penalties.” Id. The more serious the penalty, the less likely the legislature intended the statute to be strict liability. Id. Here, because the penalty for drug delivery resulting in death can be up to 40 years imprisonment, the penalty is severe. 18 Pa.C.S.A. § 2506(b). Therefore, this Court does not find that the legislature intended for the statute to be strict liability. Instead, the general requirements of culpability are applied to determine the proper mens rea. That section states: Culpability required unless otherwise provided .—When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly or recklessly with respect thereto. 18 Pa.C.S.A. § 302(c). Therefore, reckless is the threshold mens rea with regard to the death element of drug delivery resulting in death. A person must intend to deliver the 2 controlled substance and act recklessly with regard to the victim’s death. The statute at issue is not unconstitutionally vague and sufficiently defines what type of conduct is prohibited. It is not surprising that the legislature chose to change the drug delivery resulting in death statute to remove the malice requirement for the element of death. There has been a sharp increase in the number of heroin related overdoes in recent years all over Pennsylvania, including central Pennsylvania. Prior to the statute at issue being changed in 2011, drug deaths in Cumberland County were on the rise. See article by 2 The Defendant may argue that 18 Pa.C.S.A. § 302(d) should apply and Defendant not only must intend to deliver the controlled substance, but must also intend for death to result. 18 Pa.C.S.A. § 302(d) requires that when a mens rea is prescribed in a statute for one element, but not for every element, it is carried through to all the elements of the statute, “unless a contrary purpose plainly appears” (emphasis added). Here, such a contrary purpose plainly appears. When the legislature amended the drug delivery resulting in death statute, they could not have meant for a person to intend for the victim to die. To find otherwise would essentially equate this statute to murder in the first degree rendering the drug delivery resulting in death statute moot. 4 John Hilton, Coroner: Drug deaths in Cumberland County remain on the rise, The 3 Sentinel, July 31, 2007. Sadly, the number of drug deaths, especially from heroin has only increased. In a recent article Dauphin County District Attorney Edward Marsico said “Heroin is at epidemic proportions across the Commonwealth of Pennsylvania. We’re seeing increased use. It’s more pure than it was 25 years ago and it’s cheaper than it was.” See article by Jeffrey A. Johnson, Deadly heroin mixture responsible for 22 overdose deaths in Pittsburg area has not shown up around Harrisburg, officials say, 4 Penn Live, Feb. 1, 2014. The number of heroin related deaths continues to rise in Cumberland County, as well as the rest of the state. For example, mid-way through 2013, Cumberland County Coroner Charles Hall had already investigated thirteen drug-related deaths, nine of which involved heroin. See article by Tammie Gitt, Coroner: Heroin deaths on the rise 5 in Cumberland County, The Sentinel, July 4, 2013. Currently, Pennsylvania is ranked th 7 in the nation in drug-related deaths among all states. This includes an increase in fatal heroin overdoses. See Drug-related deaths in Pennsylvania increasing, The 6 Associated Press, June 20, 2014. In this day and age, in light of all the publicity, there is no one that can seriously maintain that delivering a substance as dangerous as heroin to other human beings is not reckless. 3 Article found online at http://cumberlink.com/news/coroner-drug-deaths-in-cumberland-county-remain- on-the-rise/article_79e714cd-7979-5593-b45e-65c1337e1280.html 4 Article found online at http://www.pennlive.com/midstate/index.ssf/2014/02/deadly_heroin_mixture_responsi.html. See also Joe Elias, Perry County officials see share increase in heroin use, overdoses, Penn Live, Jan. 9, 2010, http://www.pennlive.com/midstate/index.ssf/2010/01/perry_county_officials_see_sha.html 5 Article found online at http://cumberlink.com/news/local/coroner-heroi n-deaths-on-the-rise-in- cumberland-county/article_92e903ca-e438-11e2-aab9-001a4bcf887a.html 6 Article found online at http://cumberlink.com/news/state-and-regional/drug-related-deaths-in- pennsylvania-increasing/article_ea053c9a-f883-11e3-814a-0019bb2963f4.html 5 In addition to the rise in drug overdoses necessitating the need for the legislature to change this statute, it should be noted that similar situations are not uncommon and the legislature has passed comparable statutes in the past. For example, homicide by vehicle while driving under the influence, 75 Pa.C.S.A. § 3735, states that: \[a\]ny person who unintentionally causes the death of another person as the result of a violation of \[driving under the influence of alcohol or controlled substance\] and who is convicted of \[driving under the influence of alcohol or controlled substance\] is guilty of a felony of the second degree when the violation is the cause of death… For homicide by vehicle while driving under the influence, the legislature made it clear that a person does not need to intend for death to occur, as they used the word “unintentionally” in the statute. Similar to the statute at issue here, no mens rea was provided in the statute itself. The Supreme Court of Pennsylvania did not find the statute to be a strict liability offense, but found that a person must act in a criminally negligent manner in causing the death of another person. Commonwealth v. Samuels, 7 778 A.2d 638, 640 (Pa. 2001). Equally important in understanding how the legislature has constitutionally handled the mens rea requirement, a consideration of second degree murder or “felony murder” is revealing. That statute states: Murder of the second degree .—A criminal homicide constitutes murder of the second degree when it is committed while defendant was engaged as a principal or an accomplice in the perpetration of a felony. 18 Pa.C.S.A. § 2502(b). The legislature defined “perpetration of a felony” to include the felonies of robbery, rape, deviate sexual intercourse, arson, burglary or kidnapping. 18 7 The men rea for homicide by vehicle while driving under the influence was found to be criminal negligence and not recklessness based on the mens rea already established for homicide by vehicle non DUI related. 6 Pa.C.S.A. § 2502. Given the death toll being attributed to illegal heroin use, there would appear to be nothing to prevent the legislature from adding Delivery of a Schedule I Controlled Substance – Heroin, (ungraded Felony punishable by a fine of up to $250,000 and 15 years in prision) to the list. See 35 Pa.C.S.A. § 780-113. Similar to drug delivery resulting in death and homicide by vehicle while driving under the influence, there is no specific mens rea provided in the second degree murder statute for the element of causing a death. All that is required is that the defendant be a principal or accomplice in the perpetration of one of the enumerated felonies. It is clear that Section 2502(b) does not require that the death of a person be foreseeable to the actor. Knowing that the legislature has classified the crime as a murder, which at a minimum requires malice, the appellate courts of this state have interpreted this statute to simply “impute” malice from the defendant’s involvement in the predicate felony. In Commonwealth v. Lambert, 795 A.2d 1010 (Pa. Super. 2002), the Court stated the following, while citing Commonwealth v. Legg, 417 A.2d 1152 (Pa. 1980): When an actor engages in one of the statutorily enumerated felonies and a killing occurs, the law, via the felony murder rule, allows the finder of fact to infer the killing was malicious from the fact the actor was engaged in a felony of such a dangerous nature to human life because the actor, as held to the standard of a reasonable man, knew or should have known that death might result from the felony. Id. at 1023. Commonwealth v. Lambert, for the purposes of our analysis here, has the following factual scenario: \[Co-Defendant\] was a PCP drug user, who has a long history of mental health problems and drug use. This defendant, \[Appellant\], was his close friend who frequently drove him various places including to get medicine for his mental health disorders. 7 \[Co-Defendant\] had been having a long dating relationship with Khadijah Freeman. He went to her home on the evening of 1/20/97 with the intent of sleeping overnight with her. When he arrived at the house, he found her bedroom door locked and he broke the door down to enter. He found her in bed with another man named \[Shaheed\]. There was an altercation between them. The next evening, \[Co-Defendant\] returned to the house and again \[Co-Defendant\] and \[Shaheed\] got into a fight. At home that evening was Khadijah Freeman’s mother Ann Marie Thomas, as well as her two brothers. Khadijah testified that she did not give \[Co-Defendant\] any permission to enter her home on either of the two evenings. On the second episode, the deceased Ann Marie Thomas demanded that \[Co- Defendant\] pay for the broken door. She took $300.00 from his pocket. \[Co-Defendant\] then left saying that he was going to return and get \[Shaheed\]. \[Co-Defendant\] returned in 15 minutes with his friend, defendant, \[Appellant\]. He wanted to get his money back. \[Appellant\] drove the car \[ \] and waited outside the Freeman-Thomas house as \[Co-Defendant\] reentered to get his money. In the meantime, Ms. Thomas had split the money with her daughter Khadijah and it was in the bureau drawer. When \[Co-Defendant\] returned with a gun, \[Ms.\] Thomas denied having the money and \[Co-Defendant\] placed the gun to her head and pulled the trigger. She was killed instantly. He then grabbed Khadijah and held her as he walked out to the porch. He then shot her as he climbed into the car driven by \[Appellant\]. They left the scene whereupon \[Co-Defendant\] proceeded to buy more narcotics and got high. Ms. Freeman’s injuries were to the abdomen and loss of small intestines which resulted in over 25 operations to stop leakage. Id. at 1013-14 (footnotes omitted). Lambert was convicted of second degree murder and sentenced to mandatory life imprisonment. A full and fair reading of the Lambert case clearly establishes two important factors. First, there was no evidence presented that Lambert ever intended for Ann Marie Thompson to be killed. Secondly, Lambert did not supply the instrumentality which led to Ann Marie Thompson’s death. Id. According to the latest Pennsylvania Annual Uniform Crime Report, there were 57,017 burglaries in Pennsylvania in 2012. In the Crime Report, burglary is actually listed as a “property” crime and not a “violent” crime. Again in 2012 the Crime Report lists 706 homicides in Pennsylvania. While the Crime Report does not reference the 8 number of second degree murders related to burglary, a simple analysis of the above listed statistics suggests there must be very few burglaries that form the basis for a second degree murder conviction. On the contrary, given the sharp increase in Pennsylvania of deaths from overdoses of heroin, it would appear logical that the legislature would want to address this critically lethal problem in a balanced and constitutional manner. Obviously, the penalty for drug delivery resulting in death is less than the mandatory life sentence required for second degree murder. One cannot forget that the Defendant in the case at bar delivers heroin for a profit. This is a felony and in this case it clearly led to the death of the victim, Lee Westmoreland. Although not exactly the same degree of mens rea both of the above examples (homicide by vehicle while driving under the influence and murder in the second degree) are similar to drug delivery resulting in death in establishing criminal penalties for a defendant’s behavior in causing death, even though he/she did not actually intend for someone to die. It is clear that all of these offenses have not been found to be unconstitutional simply because they failed to include a mens rea in the statute itself for one element of the offense. Based on the above, the statute, Drug Delivery Resulting In Death, is not unconstitutionally vague because the mens rea of recklessness can be imputed to Defendant through his actions in intentionally delivering heroin to another. The statute is sufficiently clear to inform an ordinary person what conduct is considered criminal. 9 b. Degree of Causation Defendant also argues that the statute for drug delivery resulting in death is unconstitutional because it fails to clearly indicate the requisite degree of causation. Defendant argues the element that a person must die “as a result of using the substance” is ambiguous and will be difficult for courts to apply. For example, Defendant argues that it is unclear whether the statute intends to punish those persons who sell drugs to another who then uses those drugs and decides to walk in front of 8 traffic and dies, but not as a result of an overdose. As a general rule, conduct is the cause of a result when (1) it is an antecedent but for which the result in question would not have occurred; and (2) the relationship between the conduct and result satisfies any additional causal requirements imposed by this title or by the law defining the offense. 18 Pa.C.S.A. § 303(a)(1)-(2); see also Commonwealth v. Nunn, 947 A.2d 756, 760 (Pa. Super. 2008). Therefore, “to establish criminal causation, the Commonwealth must prove that the defendant’s conduct was so directly and substantially linked to the actual result as to give rise to the imposition of criminal liability.” Nunn, 947 A.2d at 760 (internal citations omitted). Given the above criteria, the fact-finder will be tasked with determining whether a defendant’s actions in delivering drugs to another sufficiently caused that person’s death. The drug delivery resulting in death statue is not unconstitutionally vague based on the degree of causation required. II. Prima Facie Defendant also argues that the Commonwealth did not establish a prima facie case at the preliminary hearing. The Commonwealth bears the burden of establishing 8 See Concise Statement of Matters Complained of on Appeal, p. 6 10 at least a prima facie case at the preliminary hearing that a crime has been committed and the defendant is probably the one who committed that crime. Commonwealth v. McBride, 595 A.2d 589, 591 (Pa. 1991). “In order to meet its burden at the preliminary hearing, the Commonwealth is required to present evidence with regard to each of the material elements of the charge and to establish sufficient probable cause to warrant belief that the accused committed the offense.” Id. However, “it is not necessary for the Commonwealth to establish at this stage the accused’s guilt beyond a reasonable doubt.” Id. Defendant argues that at the preliminary hearing, the Commonwealth did not provide any evidence of Defendant’s culpability in relation to the result-of-conduct element (i.e. the Commonwealth did not present evidence that Defendant intentionally, knowingly, or recklessly caused the victim’s death). Drug delivery resulting in death states that “\[a\] person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes a controlled substance…in violation of…The Controlled Substances Drug, Device and Cosmetic Act, and another person dies as a result of using the substance.” 18 Pa.C.S.A. § 2506(a). The Pennsylvania Bar Institute in Pennsylvania Suggested Standard Criminal Jury Instruction 15.2506 has listed the following four elements for offenses committed on or after September 7, 2011: First, that the defendant administered, dispensed, delivered, gave, prescribed, sold, or distributed a controlled substance or a counterfeit controlled substance to a person. Second, that the defendant did so intentionally, that is, that it was his conscious object to administer, dispense, deliver, give, prescribe, sell, or distribute a controlled 11 substance or a counterfeit controlled substance to a person. Third, that the administration, dispense, delivery, prescription, sale, or distribution was in violation of the Controlled Substance, Drug, Device and Cosmetic Act. Fourth, that a person has died as a result of using the substance. Pa.SSJI (Crim) 15.2506. As this Court has determined the proper mens rea for the element of death is recklessness, the Commonwealth must also present some evidence that Defendant acted recklessly with respect to that element to establish their prima facie case. 18 Pa.C.S.A. § 302(b)(3) states that: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. Selling heroin, a highly dangerous and addictive drug, is certainly reckless behavior. See Ludwig, 874 A.2d at 636-37 (Nigro, J., dissenting). Defendant certainly knew that heroin was an illegal drug and that it was regulated by the government. Defendant must also have been aware that serious and fatal reactions can occur while someone is using heroin. Id. During the preliminary hearing and at the hearing on the Petition for Writ of Habeas Corpus it was established that Defendant intentionally sold the victim the heroin 12 9 that killed him. There was also evidence presented that established the heroin was stamped with the words “black out”, which was consistent with the heroin found in 10 Defendant’s house and the heroin purchased from Defendant during a controlled buy. There is absolutely no question that the selling of heroin to the victim was a violation of the Controlled Substance Drug Device and Cosmetic Act. There was also evidence that the cause of death was a drug overdose of a mixed toxicity. There was 295 nanograms per milliliter of morphine, a component of heroin, in the victim’s blood. The therapeutic 11 range for morphine is 10 to 80 nanograms per milliliter. This evidence was consistent 12 with the cause of death being a heroin overdose. The Commonwealth presented more than enough evidence to establish a prima facie case. By the Court, ______________________ M. L. Ebert, Jr., J. District Attorney’s Office Greg B. Abeln, Esquire Counsel for Defendant 9 Notes of Testimony, In Re: Habeas Corpus Motion, 3, Dec. 17, 2013 (hereinafter N.T. at ___); Ex. 1 Preliminary Hearing Transcript, 7,8, Nov. 29, 2012 (hereinafter P.H.T. at __) 10 N.T. at 3; P.H.T. at 4-5. 11 N.T. at 3; P.H.T. at 13. 12 At the preliminary hearing, the cause of death was only stated to be a drug overdose with a mixed drug toxicity of which heroin was the largest component. At the stipulated fact trial, it was stipulated that the victim’s death was caused by heroin. This fact does not change the prima facie analysis. Since morphine, a component of heroin, was such a large component of the mixed drug toxicity, the Commonwealth presented enough evidence at the preliminary hearing stage that the heroin was the cause of death. 13