Judges Opinions, — December 16, 2015 9:45 — 0 Comments

Commonwealth vs. Phillip Maldonado No. CP-38-CR-0000656-2015

Criminal Action-Drug Delivery Resulting in Death-Omnibus Pretrial Motion-Motion to Dismiss-Petition for Writ of Habeas Corpus-Prima Facie Case-Substance Delivered Not Sole Cause of Death-Mixture of Substances

1. Defendant, who was charged with Drug Delivery Resulting in Death and other related offenses after a victim to whom he delivered heroin died, filed a Motion to Dismiss the charge on the basis that the victim died from mixed drug toxicity such that the ingestion of heroin was not the sole cause of the victim’s death.

2. A motion to quash an indictment or information contained in an omnibus pretrial motion is appropriate when it is alleged that the indictment or information is defective. However, the motion cannot be a means of testing the adequacy or competency of the Commonwealth’s evidence.

3. The proper means by which to test the sufficiency of the evidence prior to trial is a petition for writ of habeas corpus rather than a motion to dismiss. A petition for writ of habeas corpus is the proper vehicle for a defendant whose case has been bound over for court to attack the Commonwealth’s establishment of a prima facie case.

4. The Commonwealth must establish at least a prima facie case that a crime has been committed and that the accused is the one who committed it. In doing so, the proof need be only that if the evidence was presented at trial and accepted as true, the court would be warranted in allowing the case to go to the jury.

5. In determining whether the Commonwealth established a prima facie case, the court’s function is to take the facts proven by the Commonwealth and to determine whether the sum of those facts fits within the statutory definition of types of conduct declared by the legislature to be illegal conduct.

6. Title 18 Pa.C.S. § 2506(a) provides that the offense of Drug Delivery Resulting in Death occurs if a person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes and any controlled substance or counterfeit controlled substance in violation of the Controlled Substance, Drug, Device and Cosmetic Act and another person dies as a result of using the substance.

7. No legal authority was presented for the proposition the controlled substance delivered must have been the sole cause of a victim’s death to sustain a charge under the statute codifying Drug Delivery Resulting in Death. In light of the testimony of a toxicologist with expertise in the effects that drugs have upon the human body that the victim would not have died if heroin had not been ingested, it was of no consequence that the cause of death was attributed to a mixture of substances. Since evidence was presented, if found credible by the fact finder, that the heroin caused the victim’s death, the Commonwealth established a prima facie case that the victim died as a result of using the substance so as to sustain the charge of Drug Delivery Resulting in Death.

L.C.C.C.P. No. CP-38-CR-0000656-2015, Opinion by John C. Tylwalk, President Judge, September 15, 2015.

Nichole Eisenhart, Esquire, for the Commonwealth

Harry Fenton, Esquire, for Defendant

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CRIMINAL DIVISION NO. CP-38-CR-0656-2015

COMMONWEALTH OF PENNSYLVANIA

v.

PHILLIP MALDONADO

ORDER OF COURT

AND NOW, this 15th day of September, 2015, upon consideration of Defendant’s Pre-Trial Motion, the evidence adduced at the hearing conducted on August 12, 2015, and the Briefs submitted by the parties, it is hereby Ordered as follows:

Defendant’s Motion to Dismiss is DENIED.

Defendant’s Motion for a jury instruction on the offense of Involuntary Manslaughter, 18 Pa.C.S.A. §2504, is deferred until the trial of this matter.

Defendant is directed to appear for the Call of the List scheduled for September 22, 2015 in the assigned Courtroom.

BY THE COURT:

JOHN C. TYLWALK, P.J.

APPEARANCES:

NICHOLE EISENHART, ESQUIRE FOR THE COMMONWEALTH

ASSISTANT DISTRICT ATTORNEY

HARRY FENTON, ESQUIRE FOR PHILLIP MALDONADO

OPINION, TYLWALK, P.J., SEPTEMBER 15, 2015.

Defendant is charged with the offense of Drug Deliver Resulting in Death, 18 Pa.C.S.A. §2506(a) and other related offenses. The Information alleges he delivered heroin to Julio Rivera and that Rivera’s ingestion of the heroin resulted in his death. Defendant waived his Preliminary Hearing and the matter has been bound over for Court. Defendant has filed a Pre-Trial Motion in the Nature of a Motion to Dismiss seeking dismissal of this charge, contending that he cannot be guilty for this offense as Rivera was determined to have died from mixed drug toxicity and that his ingestion of heroin was therefore not the sole cause of his death. In addition, Defendant requests a jury instruction on Involuntary Manslaughter, 18 Pa.c.S.A. §2504, at his jury trial.

After a hearing was conducted on August 12, 2015, we took the matter under advisement. A transcript of the hearing has been prepared, both parties have filed Briefs in support of their respective positions, and the matter is now before us for resolution.

A motion to dismiss, pursuant to Pa.R.Crim.P. 587 is limited to averring that an information has not been filed within a reasonable time or that the action is barred on the grounds of double jeopardy. An omnibus pretrial motion may contain a motion to quash an indictment or information when it is alleged that the indictment or information is defective, but it cannot be a means of testing the adequacy or competency of the Commonwealth’s evidence. Commonwealth v. Nicodemus, 636 A.2D 1118 (Pa. Super. 1994). The proper means by which to test the sufficiency of the Commonwealth’s evidence prior to trial is a petition for a writ of habeas corpus, rather than a motion to dismiss. Commonwealth v. Marti, 779 A.2d 1177 (Pa.Super. 2001).

In his Pretrial Motion, Defendant contends that the Commonwealth has insufficient evidence of Drug Delivery Resulting in Death and cannot establish a prima facie case as to that charge. A petition for Writ of Habeas Corpus is the proper vehicle for a defendant who has been bound over for court to attack the Commonwealth’s establishment of a prima facie case. Commonwealth v. Morman, 541 A.2d 356 (Pa. Super. 1988). The Pennsylvania Superior Court has discussed the concept of a “prima facie case”:

… the prosecution must establish at least a prima facie case that a crime has been committed and that the accused is the one who committed it. The Commonwealth’s burden at this stage falls short of proof beyond a reasonable doubt. The proof need only be such that, if the evidence were presented at trial and accepted as true, the trial judge would be warranted in allowing the case to go to the jury.

Case law provides a mechanical standard of review:

Our function is to take the facts proven by the Commonwealth … and to determine whether the sum of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania legislature in the Crimes Code to be illegal conduct. If the proven facts fit the definition of the offenses with which the [defendant is] charged, then a prima facie case was made out as to such … offenses. If the facts do not fit the statutory definitions of the offenses charged against [the defendant] the [the defendant] is entitled to be discharged.

Commonwealth ex rel. Lagana v. Commonwealth Office of Attorney General, 662 A.2d 1127, 1129 (Pa. Super. 1995), citing Commonwealth v. Lacey, 496 A.2d 1256 (Pa. Super. 1985). With this standard in mind, we must examine the definition of the crime of Drug Delivery Resulting in Death and the facts presented by the Commonwealth.

The offense of Drug Delivery Resulting in Death is defined, in part, as follows:

A person commits a felony of the first degree if the person intentionally administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64), known as 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). Defendant asserts that the Commonwealth has insufficient proof that Rivera died “as a result of using the substance” because it cannot prove that Rivera’s death was caused by the heroin he had ingested and/or that the heroin was not the sole cause of his death.

At the hearing, the Commonwealth presented the expert testimony of Joann Sell, the former manager and certifying scientist for Health Network Laboratories, where Rivera’s blood samples were sent for analysis. Sell’s expertise lies in the area of toxicology dealing with the effects that drugs have upon the human body. Sell testified that the toxicology results for Rivera’s blood revealed the presence of several substances in his blood at the time of his death:

ethanol alcohol, morphine, cocaine, cocaethylene, benzoylecgonine, and

6-monoacetylmorphine.

Sell testified that the levels of alcohol and cocaine which were present in Rivera’s blood would not have caused a fatality. She explained that 6-monoacetylmorphine is a metabolite of heroin and that its presence indicated that the morphine in Rivera’s blood was the result of heroin use within several hours prior to his death. She further explained that heroin and alcohol are both central nervous depressants, and that the combination of these two substances was the cause of Rivera’s death: “… the combination of the two definitely caused in my opinion is what caused the death,” “[i]f he did not use the heroin, my opinion would be he would not be dead. He would not die from a .10 ethanol and that small amount of cocaine.” (N.T. at 29-30) When asked whether “the heroin is what pushed things over the top,” Sell replied that “[t]he heroin was the most toxic thing in his body.” (N.T. at 29-30)

Sell admitted that heroin was not the sole cause of Rivera’s death: “[h]e died from the mixed drug toxicity. He died combination (sic) of heroin and alcohol. I can’t say that he died from heroin alone. It was a contributing, major contributing factor.” (N.T. at 37) Defendant contends that this testimony precludes the Commonwealth from establishing the elements of this offense.

As the Commonwealth points out, there is little caselaw on this particular issue with regard to this statute. However, a similar situation was present in Commonwealth v. Nahavandian, 849 A.2d 1221 (Pa. Super. 2004), vacated on other grounds 888 A.2d 815 (Pa. 2006). In that case, the defendant claimed that the jury’s verdict of guilt on this charge was against the weight of the evidence because the pathologist did not conclusively indicate that the decedent died from heroin.

Michael Moyer’s cause of death was described as “acute mixed drug intoxication” by the pathologist. The pathologist testified that morphine, marijuana, and alcohol, but not heroin, were found in Michael Moyer’s system. The pathologist further testified that the levels of marijuana and alcohol present in Moyer’s body were not lethal levels. Also, morphine is typically found when death is caused by heroin overdose because heroin is a derivative of morphine and heroin breaks down into morphine once it enters the body.

Nahavandian, 849 A.2d at 1231. The pathologist had testified that “it is very rare to find heroin in anyone who has died as the result of a heroin overdose, because it is broken down so quickly in the body. But the morphine has what we call a much longer half life in the system. And in testing the morphine levels, which is what is usually detected in cases of heroin overdose.” Id. The court concluded that

[t]he fact that morphine is typically found in cases of a heroin overdose, combined with the fact that Dunkleberger purchased heroin from appellant for Moyer and the fact that Daniel Merrill testified that he injected Moyer with the heroin, could lead a reasonable fact finder to conclude that Moyer died as the result of a heroin overdose. We therefore believe that appellant’s conviction was not against the weight of the evidence.

Id.

We disagree with Defendant’s interpretation of the statute defining this offense. Defendant provides no legal authority for his proposition that heroin must have been the sole cause of Rivera’s death and we find the statutory language to be clear and unambiguous. The statute contains no requirement that the controlled substance provided by a defendant be the sole factor in causing the recipient’s death in order for the provider of the controlled substance to be found guilty of Death by Drug Delivery.

Here, Sell testified that Rivera would not have died due to the alcohol and/or cocaine in his body, and that heroin was what put him over the edge. She opined that the heroin was the most lethal substance in Rivera’s system and that if it had not been for the heroin, Rivera would not have died. We believe the Commonwealth established a prima facie case that Rivera died “as a result” of his ingestion of the heroin with this testimony. As was the case in Nahavandian, it does not matter that Rivera’s cause of death is attributed to a mixture of substances. It was the heroin that caused Rivera’s death and that is all that is required by the statutory definition. This testimony, if found credible by the finder of fact, was sufficient to establish a prima facie case.

We will defer decision on Defendant’s request for a jury instruction on the crime of Involuntary Manslaughter, 18 Pa.C.S.A. §2504, pending consideration of the testimony adduced at the trial of this matter.

We will enter an Order denying Defendant’s Pre-Trial Motion and direct him to appear for the next Call of the List.

1) At the hearing, defense counsel indicated that Defendant is not challenging the fact that Rivera ingested heroin prior to his death and that the heroin came from Defendant for purposes of this Motion only.

 

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