The opinion
J-S35032-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CLAYTON R. PRATT :
:
Appellant : No. 319 MDA 2024
Appeal from the Judgment of Sentence Entered September 29, 2023
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000493-2021
BEFORE: PANELLA, P.J.E., MURRAY, J., and KING, J.
MEMORANDUM BY KING, J.: FILED: JANUARY 17, 2025
Appellant, Clayton R. Pratt, appeals from the judgment of sentence
entered in the York County Court of Common Pleas, following his jury trial
convictions for delivery of a controlled substance, drug delivery resulting in
death (“DDRD”), and criminal conspiracy to commit DDRD.1 We affirm.
The relevant facts and procedural history in this case are as follows. On
April 24, 2020, Oshakee2 Zink and the victim, Meisha Baer, were hanging out
together and decided to do some cocaine. The victim reached out to her
friend, Cody Gemmill, and asked him to come over and to bring some cocaine.
(N.T. Trial, 8/7/23, at 123-24). Gemmill was living with Appellant at the time
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1 See 35 P.S. § 780-113(a)(30), 18 Pa.C.S.A. §§ 2506(a) and 903,
respectively.
2 The record also refers to Ms. Zink’s first name as “Oshaakee.”
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and the two men agreed to go buy some cocaine so that they, along with the
victim and her friend, could party and get high. Appellant provided $100.00
of his money to buy the drugs; however, Gemmill, who knew the drug dealer,
went into the address and made the purchase. (Id. at 109). The two men
then brought the drugs with them to the victim’s apartment.
Appellant, Gemmill, Zink, and the victim were all partying and drinking
together at the victim’s apartment when Appellant cut the drugs into lines for
everybody to snort. (Id. at 83, 111, 131-32). Immediately after snorting the
drugs, Zink realized that it was not cocaine and kicked Appellant and Gemmill
out of the apartment for failing to bring the correct drugs. (Id. at 112-13).
That evening Zink fell asleep on the couch and the victim passed out in the
kitchen. Zink awoke at about 3:00 a.m. the morning of April 25, 2020, and
found the victim dead on the kitchen floor. (Id. at 83). She called the police
and, upon their arrival, told police about the drugs that they had consumed,
which were brought by Appellant and Gemmill. Zink was secured at the scene
as a possible witness and later transported to police barracks where officers
interviewed her. She returned to police barracks on April 28, 2020, three days
later, for another interview and gave a second statement in response to police
questioning.
After Zink notified police about their involvement, officers tracked down
both Appellant and Gemmill. Police interviewed Appellant, who admitted that
both he and Gemmill wanted to party with the girls, and that they had
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purchased the drugs somewhere in York. Appellant stated that he had given
Gemmill $100.00 to purchase the drugs, and he remained in the car while
Gemmill went out to pick up the drugs. Thereafter, Appellant explained that
he and Gemmill went to the victim’s apartment, where he cut the drugs into
lines for everyone. (Id. at 109, 204). Police arrested Appellant and charged
him with involuntary manslaughter, delivery of a controlled substance, DDRD,
and conspiracy.
On September 26, 2022, Appellant filed a motion in limine seeking
admission of Zink’s two recorded police statements. Notably, Zink had died
of an unrelated drug overdose after the events at issue and was unavailable
to testify at trial. Appellant asserted that Zink’s statements were admissible
under Pa.R.E. 804(b)(1) because her police interrogation was the equivalent
of a deposition, or alternatively, the statements were admissible under the
excited utterance exception per Pa.R.E. 803(2).3 Appellant filed a
supplemental motion in limine on September 30, 2022, arguing that Zink’s
statements were admissible under the statement against interest exception to
the hearsay rule per Pa.R.E. 804(b)(2). Following the appointment of new
counsel, Appellant filed an additional supplemental motion in limine
incorporating the prior motions and arguing that the statements were also
admissible under the present sense impression exception per Pa.R.E. 803(1).
____________________________________________
3 Appellant also filed a motion to sever his case from co-defendant Gemmill,
in the event that the motion in limine was denied.
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The trial court conducted a hearing on the motions in limine on
November 17, 2022. The trial court denied the motions on January 12, 2023,
finding that Zink’s statements were not admissible on any of the proffered
grounds. Appellant’s jury trial commenced on August 7, 2023.4 The
Commonwealth introduced Appellant’s April 25, 2020 statement to police,
wherein Appellant admitted that he and Gemmill drove to York City to
purchase drugs, and that Appellant supplied $100.00 to purchase cocaine.
Appellant explained to the officer in that statement that after he ingested the
drug, it was obvious to Appellant that it was not cocaine and, based on his
prior drug use, he felt it was more fentanyl or heroin based. (N.T. Trial,
8/7/23, at 110).
At trial, Nadine Koenig testified as an expert in the field of toxicology.
She explained that the victim’s blood alcohol level was at 0.11% and the victim
had 15.8 nanograms per milliliter of fentanyl in her blood. Ms. Koenig
explained that a lethal dosage of fentanyl can be as little as 3 nanograms per
milliliter. (N.T. Trial, 8/8/23, at 148-50). Ms. Koenig testified that the victim’s
blood also had 1,127 nanograms per milliliter of sertraline (a.k.a. Zoloft),
which was below the lethal dosage, but above the therapeutic range. Dr.
Edward Mazuchowski, an expert in forensic pathology, then testified that the
____________________________________________
4 Co-defendant Gemmill entered a guilty plea at the start of trial on August 7,
2023. The court thereafter entered an order on the record explaining that any
relief requested in the motion to sever was denied.
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cause of death for the victim was mixed substance toxicology, here a
combination of ethanol (alcohol), fentanyl, and sertraline. Dr. Mazuchowski
opined he has never seen someone die from the amount of sertraline that was
present in victim’s system, but he has seen deaths occur based on the amount
of fentanyl that was present in victim’s system. (Id. at 173).
At the end of trial, on August 8, 2023, the jury returned a not guilty
verdict on involuntary manslaughter, and a guilty verdict on delivery of a
controlled substance, DDRD, and criminal conspiracy. The court ordered a
presentence investigation (“PSI”) report and on September 29, 2023, after
reviewing the PSI as well as the information introduced at the sentencing
hearing, the court imposed standard range sentences for each offense. The
court imposed the sentence for DDRD and conspiracy consecutively, resulting
in an aggregate sentence of 16 to 32 years’ imprisonment.
Appellant filed a timely post-sentence motion challenging the weight and
sufficiency of the evidence, as well as the imposition of consecutive sentences.
The court denied the post-sentence motion on February 21, 2024, and this
timely appealed followed. Pursuant to the court’s order, Appellant filed his
concise statement of errors complained of on appeal on March 22, 2024.
Appellant raises the following issues on appeal:
I. Whether the [trial] court erred in denying Appellant’s
motion in limine to admit statements by Oshakee Zink as an
exception to the hearsay rule, specifically as an excited
utterance, present sense impression and/or a statement
against interest.
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II. Whether the evidence was insufficient to support the jury
verdict as to [DDRD], delivery of [a controlled substance,]
and criminal conspiracy [DDRD] in that the Commonwealth
did not prove beyond a reasonable doubt that the Appellant
made a delivery of drugs to the victim.
III. Whether the evidence was insufficient to support the
jury verdict as to [DDRD] and criminal conspiracy [DDRD]
in that the Commonwealth did not prove beyond a
reasonable doubt that fentanyl was a substantial factor in
the cause of death.
IV. Whether the verdict as to [DDRD], delivery of [a
controlled substance,] and criminal conspiracy [DDRD] was
against the greater weight of the evidence which established
Appellant did not deliver drugs to the victim.
(Appellant’s Brief at 4) (unnecessary capitalization omitted; questions re-
organized for purposes of disposition).
In his first issue, Appellant challenges the court’s evidentiary ruling on
his pretrial motions in limine to admit the two statement that Zink gave to
police. Appellant concedes that the statements were hearsay but argues that
they were still admissible under various exceptions to the rule against
hearsay. We will consider each of Appellant’s arguments in this issue
separately.
First, Appellant claims that Zink’s statement made at the police barracks
on April 25, 2020 was admissible as a present sense impression because her
statement was made near or contemporaneously to her discovery that her
friend had died. Appellant insists that although Zink made the statement
about three hours after the startling event, she was still perceiving the
unsettling event of finding her friend dead. Appellant also argues this
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statement was admissible as an excited utterance. He claims that only a small
amount of time had elapsed between when Zink found the victim dead and
the statement, and Zink was still under the stress of finding her friend at the
time she talked to the police officers. Appellant emphasizes that Zink vomited
twice during the interview. Appellant insists that because of the court’s
evidentiary error, he is entitled to a new trial. We disagree.
Our standard of review of a trial court’s admission or exclusion of
evidence is well established and very narrow:
Questions concerning the admissibility of evidence are
within the sound discretion of the trial court and we will not
reverse a trial court’s decision concerning admissibility of
evidence absent an abuse of the trial court’s discretion. An
abuse of discretion is not merely an error of judgment, but
is rather the overriding or misapplication of the law, or the
exercise of judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as shown by the
evidence of record. If in reaching a conclusion the trial court
overrides or misapplies the law, discretion is then abused
and it is the duty of the appellate court to correct the error.
Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa.Super. 2020), appeal
denied, 664 Pa. 546, 244 A.3d 1222 (2021) (quoting Commonwealth v.
Belknap, 105 A.3d 7, 9-10 (Pa.Super. 2014)). Further, our scope of review
in cases where the trial court explains the basis for its evidentiary ruling is
limited to an examination of the stated reason. Commonwealth v.
Stephens, 74 A.3d 1034, 1037 (Pa.Super. 2013). “We must also be mindful
that a discretionary ruling cannot be overturned simply because a reviewing
court disagrees with the trial court’s conclusion.” Commonwealth v.
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O’Brien, 836 A.2d 966, 968 (Pa.Super. 2003), appeal denied, 577 Pa. 695,
845 A.2d 817 (2004).
Pennsylvania Rule of Evidence 801 defines hearsay as follows:
Rule 801. Definitions That Apply to This Article
(a) Statement. “Statement” means a person’s oral
assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion.
(b) Declarant. “Declarant” means the person who
made statement.
(c) Hearsay. “Hearsay” means a statement that
(1) the declarant does not make while testifying at the
current trial or hearing; and
(2) a party offers in evidence to prove the truth of the
matter asserted in the statement.
Pa.R.E. 801.
Pennsylvania Rule of Evidence 803 sets forth exceptions to the rule
against hearsay, in pertinent part, as follows:
Rule 803. Exceptions to the Rule Against Hearsay—
Regardless of Whether the Declarant Is Available as a
Witness
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a
witness:
(1) Present Sense Impression. A statement describing
or explaining an event or condition, made while or
immediately after the declarant perceived it. When
the declarant is unidentified, the proponent shall show
by independent corroborating evidence that the
declarant actually perceived the event or condition.
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(2) Excited Utterance. A statement relating to a
startling event or condition, made while the declarant
was under the stress of excitement that it caused.
When the declarant is unidentified, the proponent
shall show by independent corroborating evidence
that the declarant actually perceived the startling
event or condition.
* * *
Pa.R.E. 803(1)-(2).
“Res gestae statements, such as excited utterances [and] present sense
impressions … are normally excepted out of the hearsay rule, because the
reliability of such statements are established by the statement being made
contemporaneous with a provoking event.” Commonwealth v. Murray, 623
Pa. 506, 539, 83 A.3d 137, 157 (2013) (citation omitted).
This Court has explained:
The present sense impression exception to the hearsay rule
permits testimony of declarations concerning conditions or
non-exciting events observed by the declarant.
Commonwealth v. Harper, [614 A.2d 1180, 1183
(Pa.Super. 1992)], appeal denied, 533 Pa. 649, 624 A.2d
109 (1993). The observation must be made at the time of
the event or so shortly thereafter that it is unlikely that the
declarant had the opportunity to form the purpose of
misstating his observation. Commonwealth v. Blackwell,
[494 A.2d 426, 431 (Pa.Super. 1985)].
Commonwealth v. Cunningham, 805 A.2d 566, 573 (Pa.Super. 2002).
Regarding the excited utterance exception, our Supreme Court has
stated:
While the excited utterance exception has been codified as
part of our rules of evidence since 1998, see Pa.R.E. 803(2),
the common law definition of an excited utterance remains
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applicable, and has been often cited by this Court:
[A] spontaneous declaration by a person whose mind
has been suddenly made subject to an overpowering
emotion caused by some unexpected and shocking
occurrence, which that person has just participated in
or closely witnessed, and made in reference to some
phase of that occurrence which [s]he perceived, and
this declaration must be made so near the occurrence
both in time and place as to exclude the likelihood of
its having emanated in whole or in part from h[er]
reflective faculties…. Thus, it must be shown first,
that [the declarant] had witnessed an event
sufficiently startling and so close in point of time as to
render her reflective thought processes inoperable
and, second, that her declarations were a
spontaneous reaction to that startling event.
The circumstances surrounding the statements may be
sufficient to establish the existence of a sufficiently startling
event.
Murray, supra at 540-41, 83 A.3d at 157-58 (internal citations omitted).
Further, Pennsylvania courts “have not established a bright line rule regarding
the amount of time that may elapse between the declarant’s experience and
her statement.” Commonwealth v. Gray, 867 A.2d 560, 570 (Pa.Super.
2005), appeal denied, 583 Pa. 694, 879 A.2d 781 (2005). “Rather, the crucial
question, regardless of time lapse, is whether, at the time the statement is
made, the nervous excitement continues to dominate while the reflective
processes remain in abeyance.” Id. at 570-71 (internal quotation marks
omitted).
In Commonwealth v. Rivera, 238 A.3d 482 (Pa.Super. 2020), appeal
denied, 666 Pa. 97, 250 A.3d 1158 (2021), this Court considered whether
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statements made by the victim’s daughter hours after a shooting, and in
response to a police interview, constituted excited utterances. This Court
explained that although the initial event was startling, the daughter’s
statements were taken hours after the event, in a different location, and were
in response to police questioning, and the daughter was incredibly composed
and responsive during the interview. As such, this Court agreed with the trial
court that the statement made during the interview did not qualify as an
excited utterance. Id. at 495.
Instantly, with respect to the present sense impression exception, the
trial court explained:
[G]iven that the first statement was given by Zink two or
more hours after the victim was discovered and was given
at the police barracks in response to specific questions by
the trooper and not contemporaneously at the scene upon
discovery of the victim’s body, this [c]ourt finds that the
statement does not meet the requirements of a present
sense impression exception to the hearsay rule.
(Trial Court Opinion, 1/12/23, at 8-9). The court also discussed the excited
utterance exception, and explained:
In the present case, defense counsel identifies the startling
event as the discovery by Zink of the victim’s dead body.
This occurred sometime near 3:20 a.m., before PSP was
dispatched to the residence. Police arrived on scene at
approximately 4:18 a.m. After securing evidence at the
scene, PSP transported Zink to the York Barracks at 6:11
a.m. and took her statement. Upon review of the first police
interview of Zink, [the trial c]ourt finds that any nervous
excitement that may have existed had dissipated. Zink’s
responses were given to direct questions asked by the
trooper and, usually, after a pause and some internal
reflection before responding. Twice during the interview,
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Zink indicated she was feeling ill presumably from the after-
effects of the drugs she ingested. Her only spontaneous
statement that related to the startling event was made at
the start of the interview when she was tearful and
exclaimed “I just don’t understand.” The remainder of the
questioning led her through a timeline of the previous
evening until she ingested drugs, passed out and did not
recall what happened thereafter.
(Trial Court Opinion, 1/12/23, at 6-7) (record citations omitted).
Upon review, we agree that Zink’s April 25, 2020 statement falls under
neither the present sense impression nor the excited utterance exception to
the hearsay rule. The record shows that although Zink made her statement
after awaking to find the victim had died, her statement was given hours after
the event and in response to questioning during a police interview. The
statement was not made at the time of the event or so shortly thereafter that
it is unlikely that the declarant had the opportunity to form the purpose of
misstating her observation. See Cunningham, supra.
Furthermore, we agree with the trial court that at the time of the April
25, 2020 statement, approximately three hours after finding the victim’s body,
any initial nervous excitement would have dissipated. Zink was at police
barracks while giving her statement and, aside from stating “I just don’t
understand,” the rest of her statement to police was made in response to
police questioning. It was not a spontaneous response to a startling event.
See Murray, supra. Indeed, Zink’s having been sick while giving the
statement was just as likely to have been the result of withdrawal from the
drugs she had consumed the day before as it was shock over seeing her
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friend’s body. As such, we conclude that the trial court did not abuse its
discretion when it found that Zink’s statements did not meet either the present
sense impression or excited utterance exceptions to the rule against hearsay.
See LeClair, supra.
Appellant also argues that Zink’s statements to police were admissible
under Pa.R.E. 804, providing exceptions to the rule against hearsay for when
the declarant is unavailable. Appellant claims that both of Zink’s statements
to police on April 25, 2020 and April 28, 2020, were admissible as statements
against interest. Appellant contends that Zink implicated herself in criminal
activity by ingesting drugs, specifically that she may have exposed herself to
charges of possessing controlled substances or DDRD. Appellant concludes
that the trial court erred in its evidentiary ruling, and he is entitled to a new
trial. We disagree.
The Rules of Evidence set forth the exceptions to the rule against
hearsay when the declarant is unavailable as follows:
Rule 804. Exceptions to the Rule Against Hearsay—
When the Declarant is Unavailable as a Witness
* * *
(b) The Exceptions. The following are not excluded by the
rule against hearsay if the declarant is unavailable as a
witness:
* * *
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position
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would have made only if the person believed it to be
true because, when made, it was so contrary to the
declarant’s proprietary or pecuniary interest or had so
great a tendency to invalidate the declarant’s claim
against someone else or to expose the declarant to
civil or criminal liability; and
(B) is supported by corroborating circumstances that
clearly indicate its trustworthiness, if it is offered in a
criminal case as one that tends to expose the
declarant to criminal liability.
Pa.R.E. 804(b)(3). Our Supreme Court has noted four criteria which must be
met under Rule 804(b)(3):
(1) the declarant made a statement; (2) the declarant was,
at the time of trial, unavailable as a witness; (3) the
statement “at the time of its making ... so far tended to
subject the declarant to ... criminal liability ... that a
reasonable person in the declarant’s position would not have
made the statement unless believing it to be true;” and, as
this is a criminal matter (4) “corroborating circumstances
clearly indicate the trustworthiness of the statement.”
Pa.R.E. 804(b)(3).
Commonwealth v. Brown, 617 Pa. 107, 168, 52 A.3d 1139, 1176 (2012).
Notably, only the portion of the statement which is against the declarant’s
interest is admissible, portions that do not implicate the declarant are
inadmissible even if they form part of the narrative. Id. at 175-76, 52 A.3d
at 1181.
Instantly, the trial court explained its conclusion that neither the April
25, 2020 nor the April 28, 2020 statements met the requirements for
statements against interest, as follows:
The defense motion asserts that the statement against
interest surrounds Zink’s admission that she ingested drugs
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and thus committed the crime of possession of a controlled
substance. There has been no evidence of corroborating
circumstances offered … however to support the
trustworthiness of the statement. Nor would the admission
by Zink to the crime of possession of a controlled substance
alone, provide any relevant evidence to the trier of fact,
other than drugs were present on the scene the night the
victim died.
Moreover, the admission of ingestion of drugs cannot be
expanded as defense counsel suggests into releasing the
entirety of Zink’s statement into evidence. To do such would
violate the confrontation clause of the sixth amendment of
the Constitution. As set forth above, neither [Appellant] nor
[Gemmill] have had the opportunity to cross-examine Zink.
…
[The trial c]ourt finds that the indicia of reliability cannot be
found in Zink’s statement given her untimely death and
unavailability and the lack of opportunity for cross-
examination.
(Trial Court Opinion, 1/12/23, at 9-11).
We agree with the trial court’s evidentiary ruling. Notably, even if the
statements concerning Zink’s ingestion of drugs were corroborated, only the
portions of those statements which would incriminate Zink would have been
admissible, not the statements in their entirety. Appellant has not
acknowledged this requirement in his brief. Appellant chose not to parse out
the statements into specific portions that he argues would have been
admissible as statements against Zink’s interest. Hence, even if some
individual statements within were corroborated and against Zink’s penal
interest, Appellant sought only to admit the entirety of the statement. See
Brown, supra. On this record, we cannot say that the trial court abused its
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discretion in denying Appellant’s motion in limine on this ground. See
LeClair, supra. Therefore, Appellant’s first issue on appeal is meritless.
In his second issue, Appellant argues that the evidence was insufficient
to support the jury’s verdict of DDRD, delivery of a controlled substance, and
criminal conspiracy. Specifically, Appellant asserts that the Commonwealth
did not prove beyond a reasonable doubt that he delivered drugs to the victim.
Appellant claims that the evidence at trial established that he had not
communicated with the victim at all regarding the purchase of drugs. Rather,
he insists that Gemmill was involved in arranging the purchase and Gemmill
physically delivered the drugs by placing them on the counter in the victim’s
apartment. Appellant contends that his cutting up lines for all persons to use
does not make him a principal or accomplice to having actually delivered the
drugs. Relying on Commonwealth v. C. Brown, 297 A.3d 755 (Pa.Super.
2023) (unpublished memorandum),5 Appellant argues that rather than having
delivered the drugs, he should instead be seen as a joint purchaser who
intended to share the drugs, and therefore could only possibly have been
convicted of simple possession. (See Appellant’s Brief at 15-16). Appellant
insists that the victim initiated the purchase of the drugs via Gemmill, and at
this point, all four individuals became joint purchasers of the drugs for
personal use and therefore could not deliver the drugs among themselves.
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5 See Pa.R.A.P. 126(b) (stating that unpublished decisions of this Court filed
after May 1, 2019 may be cited for their persuasive value).
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Appellant concludes the evidence was insufficient to sustain his convictions on
these grounds, and this Court must grant relief. We disagree.
When examining a challenge to the sufficiency of evidence, our standard
of review is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In addition,
we note that the facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may
be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means
of wholly circumstantial evidence. Moreover, in applying the
above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the
[trier] of fact while passing upon the credibility of witnesses
and the weight of the evidence produced, is free to believe
all, part or none of the evidence.
Commonwealth v. Jackson, 215 A.3d 972, 980 (Pa.Super. 2019) (quoting
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011)).
The Crimes Code defines the offense of DDRD as follows:
§ 2506. Drug Delivery Resulting in Death
(a) Offense defined.—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
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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). Thus, to prove DDRD, the Commonwealth must
establish: 1) the defendant administered, dispensed, delivered, gave,
prescribed, sold, or distributed a controlled substance or a counterfeit
controlled substance to a person; 2) the defendant did so intentionally; 3) the
administration, dispense, delivery, prescription, sale, or distribution was in
violation of the Controlled Substance, Drug, Device and Cosmetic Act; and 4)
a person died as a result of using the substance. Commonwealth v. Peck,
663 Pa. 484, 495, 242 A.3d 1274, 1280 (2020).
The offense of delivery of a controlled substance is provided
for in section 780-113(a)(30) of The Controlled Substance,
Drug, Device and Cosmetic Act…. According to that section,
the offense occurs in the following circumstances:
Except as authorized by this act, the manufacture,
delivery, or possession with intent to manufacture or
deliver, a controlled substance by a person not
registered under this act, or a practitioner not
registered or licensed by the appropriate State board,
or knowingly creating, delivering or possessing with
intent to deliver, a counterfeit controlled substance.
35 P.S. § 780–113(a)(30).
Commonwealth v. Murphy, 577 Pa. 275, 284-85, 844 A.2d 1228, 1233
(2004) (footnote omitted).
Significantly, the Drug Act defines “deliver” and “delivery”
as “the actual, constructive, or attempted transfer from one
person to another of a controlled substance, other drug,
device or cosmetic whether or not there is an agency
relationship.” 35 P.S. § 780-102. Based upon the common
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meaning of the term “transfer,” our Supreme Court has held
that a person “actually transfers drugs whenever he
physically conveys drugs to another person.” [Murphy,
supra at 285, 844 A.2d at 1233-34]; see also 1 Pa.C.S. §
1903(b) (requiring courts, in general, to construe statutory
words and phrases according to their common and approved
usage). An exchange of money or something of value is not
required; “all that is necessary is that the transfer be
between two people.” Commonwealth v. Metzger, [372
A.2d 20, 22 (Pa.Super. 1977)].
Commonwealth v. Scott, 325 A.3d 844, 851–52 (Pa.Super. 2024) (footnote
omitted).
With respect to conspiracy to commit DDRD, this Court has explained
that “when conspiring to engage in certain conduct, conspirators need not
contemplate the ultimate crime in order to be charged and convicted of
conspiracy to commit that crime.” Commonwealth v. Carr, 227 A.3d 11, 17
(Pa.Super. 2020).
[W]ith regard to conspiracy to commit drug delivery
resulting in death, a drug user’s death need not be the
objective of the conspirators because the consequence of an
overdose is a foreseeable result of the delivery, distribution,
or sale of drugs to the victim. In short, the conspiracy to
commit an overt act binds the conspirators to the
foreseeable consequences of the conduct. Here, the
conspiring parties need not specifically anticipate the death
of the user of the drug. A conspiracy to commit the overt
act of an intentional drug delivery links the conspirators to
the foreseeable consequence that the drug user may die.
Id. at 17–18.
In Scott, supra, the evidence established that, in exchange for the
victim’s money, Scott obtained drugs from his dealer and then delivered the
drugs to the victim’s friend, who testified that he and the victim planned to
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get together and use drugs. The evidence did not suggest that the victim
specifically intended to do drugs with Scott, but that the victim and her friend
intended to do drugs, and Scott, who purchased the drugs for them, ended up
using drugs with the friend.
On appeal, Scott argued that the Commonwealth failed to prove that he
delivered drugs to the victim because the individuals involved mutually
planned to acquire drugs from Scott’s contacts and use them together. This
Court noted that while Scott’s argument “may have some commonsense
appeal, neither the facts of this case nor the current state of Pennsylvania law
permit reversal on this basis.” Id. at 852. This Court rejected Scott’s
suggestion to follow the rational of C. Brown, supra and cases arising from
other federal and state courts that based on the mutual plan to acquire and
use drugs together, Scott did not deliver the drugs within the meaning of the
Drug Act. Id. at 850-51. This Court noted that the delivery was
established with the physical conveyance between Scott and the friend as
the victim’s agent, regardless of the fact that Scott used the drugs as well.
Moreover, this Court noted that even if a mutual plan could overcome the
physical conveyance, no such plan existed between Scott and the victim. Id.
at 852.
Instantly, in its order denying Appellant’s post-sentence motion, the trial
court explained:
In the instant case, during [Appellant’s] first interview with
police, he indicated that … Gemmill had the powder (drugs)
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in his possession after the purchase and also on the ride to
the victim’s apartment. However, [Appellant] also said that
after they arrived at the victim’s apartment, … Gemmill gave
[Appellant] the whole thing because [Appellant] ended up
paying for it. The fact that [Appellant] paid for all of the
drugs purchased is confirmed by his second interview where
he indicated that he gave … Gemmill $100.00 to buy the
drugs, and that that’s all the drugs they bought ($100.00
worth). Moreover, while [Appellant] indicated in that first
interview that … Gemmill cut the powder into lines, in his
second interview, [Appellant] stated that he ([Appellant])
made the lines to snort, “no question.” Since the jury is free
to believe all, some, or none of the evidence, it was
reasonable for the jury to conclude that: [Appellant] was the
one who paid for all of the drugs purchased; [b]ecause
[Appellant] paid for the drugs, … Gemmill gave the drugs to
[Appellant] at the victim’s apartment; and [Appellant] was
the one who cut the drugs into lines so that the victim (and
everyone else) could ingest the drugs.
The act of cutting the drugs into lines and leaving it on the
counter for the victim to ingest constitutes conveyance of
the controlled substance from [Appellant] to the victim.
Hence, the evidence was sufficient to prove that [Appellant]
delivered the drugs to the victim.
(Trial Court Opinion, filed 2/21/24, at 3-4). The trial court explained that this
was not a case wherein a mutual plan would negate delivery because the
victim in this case did not pay for the drugs, did not go to or from the location
for the drug purchase, and did not make the drug purchase. (Id. at 5-6).
Upon review, we agree with the trial court that, viewing the evidence
admitted at trial in the light most favorable to the Commonwealth as verdict
winner, the evidence was sufficient to sustain Appellant’s convictions. See
Jackson, supra. The evidence demonstrated that Appellant accompanied
Gemmill to purchase the drugs and solely provided funding for the drugs.
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Thereafter, Gemmill gave the drugs to Appellant and Appellant admitted to
dividing the drugs for each person and cutting up lines for each person to
ingest. On this record, the evidence was sufficient to establish that Appellant
transferred the drugs to each individual present, and in doing so, he delivered
the drugs.6 See Scott, supra. Thus, the evidence was sufficient to establish
the “delivery” element for the offenses of DDRD, delivery of a controlled
substance, and conspiracy to commit DDRD. Appellant’s claim that the
evidence was insufficient to prove that he delivered the drugs is meritless.
In his third issue, Appellant argues that the evidence was insufficient to
support his convictions of DDRD and conspiracy to commit DDRD because the
Commonwealth did not prove that the fentanyl he supplied was a substantial
factor in the victim’s cause of death. Appellant claims that the victim also had
alcohol above the legal limit and sertraline above the therapeutic range in her
blood; therefore, the fentanyl was a contributing factor, but not a direct and
substantial primary factor in the victim’s cause of death. Appellant insists the
evidence was insufficient to support his convictions on this ground, and this
Court must grant relief. We disagree.
To establish that an individual is guilty of DDRD, the Commonwealth is
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6 Furthermore, we note that this Court’s holding in Scott rejected the
suggestion in C. Brown that the element of delivery is not established where
addicts mutually plan to acquire and use drugs together. As Scott is a
published opinion it is binding on this Court, whereas the unpublished decision
in C. Brown is not. See Pa.R.A.P. 126(b).
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required to prove that the victim died as a result of using the delivered
substance. Peck, supra at 495, 242 A.3d at 1280. To establish that a person
died as a result of using the substance, “[t]he statute requires ‘but-for’
causation such that the defendant’s action with the drugs was a direct and
substantial factor in producing the death[.]” Scott, supra at 850 (some
internal quotation marks omitted). “[T]he results of the defendant’s actions
cannot be so extraordinarily remote or attenuated that it would be unfair to
hold the defendant criminally responsible.” Commonwealth. v.
Kakhankham, 132 A.3d 986, 993 (Pa.Super. 2015), appeal denied, 635 Pa.
773, 138 A.3d 4 (2016). Nevertheless,
a defendant’s conduct need not be the only cause of the
victim’s death in order to establish a causal connection[.
C]riminal responsibility may be properly assessed against
an individual whose conduct was a direct and substantial
factor in producing the death even though other factors
combined with that conduct to achieve the result.
Commonwealth v. Proctor, 156 A.3d 261, 271 (Pa.Super. 2017) (internal
citation and quotation marks omitted) (holding evidence was sufficient to
sustain appellant’s DDRD conviction where victim’s cause of death was
combined drug toxicity as opposed to being caused solely by drug provided by
appellant).
Additionally:
To establish DDRD, the Commonwealth need not prove that
the defendant intended to cause the death of another. See
[Kakhankham, supra at 993]. Instead, the
Commonwealth must establish that the defendant’s act of
administering, dispensing, delivering, giving, prescribing,
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selling, or distributing the substance was intentional and
that the defendant had a “reckless disregard of death from
the use of the contraband.” [Carr, supra at 17]….
… Given the inherent dangerousness of consuming fentanyl
in an unknown strength and the high possibility that death
could occur, the Commonwealth “satisfies the reckless
element as to the possibility of death” when the substance
involved is fentanyl.
Scott, supra at 850. Furthermore, “conspiracy to commit the overt act of an
intentional drug delivery links the conspirators to the foreseeable consequence
that the drug user may die.” Carr, supra at 17–18.
Instantly, Ms. Koenig testified as an expert in toxicology that the
following substances were found in the victim’s blood: ethanol at 0.11 percent,
fentanyl at 15.8 nanograms/ml, sertraline at 1,127 nanograms/ml; and
naproxen (identified but not quantified). (See N.T. Trial, 8/8/23, at 142-153).
Ms. Koenig explained that fentanyl can be lethal in as little as 3 nanograms/ml.
(Id. at 149). Ms. Koenig explained that although the amount of sertraline in
the victim’s blood was above the therapeutic range, the amount of sertraline
in the victim’s blood was under the lethal amount. (Id. at 148, 155). In
addition, Dr. Mazuchowski, an expert in forensic pathology, determined that
the victim’s cause of death was due to the toxic effects of ethanol, fentanyl,
and sertraline. He explained that the ethanol, fentanyl, and sertraline were
all contributing factors in the victim’s death. (Id. at 170-172). Dr.
Mazuchowski testified that he has seen individuals with the same level of
fentanyl as the victim (15.8 nanograms/ml) die with just the fentanyl in their
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blood. (Id. at 173).
In its opinion denying Appellant’s post-sentence motion, the trial court
explained:
[G]iven that the levels of sertraline and ethanol in the
victim’s blood were under the lethal limit, and the level of
fentanyl in the victim’s blood was over 5 times the lethal
limit, it was reasonable for the jury to conclude that the
fentanyl was a direct and substantial factor in producing the
victim’s death, even though the sertraline and ethanol
combined with the fentanyl to achieve the result. Hence,
“but for” [Appellant] delivering the drugs to the victim, and
the victim using those drugs, she would not have died.
(Trial Court Opinion, 2/21/24, at 10-11) (unnecessary capitalization omitted).
Upon review, we conclude that the evidence at trial viewed in the light
most favorable to the Commonwealth as verdict winner, established that
Appellant delivered drugs to the victim’s apartment and the victim died as a
result of ingesting those drugs. As Dr. Mazuchowski explained, the victim’s
cause of death was mixed substance toxicology—a combination of ethanol,
fentanyl, and sertraline, and he had seen people die from the amount of
fentanyl that was present in the victim’s blood. On this record, the evidence
was sufficient to prove that the fentanyl Appellant delivered to the victim was
a direct and substantial factor in producing the victim’s death even though
other factors combined to achieve the result. See Proctor, supra;
Kakhankham, supra.
In Appellant’s final issue, he argues that the verdict was contrary to the
weight of the evidence. Specifically, he insists that the evidence established
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that the victim, Zink, Gemmill and Appellant were co-purchasers of the drugs
for personal use and, as co-purchasers, they could not make a delivery or
transfer among themselves. Again, Appellant argues that he simply could not
have delivered the drugs where they were jointly possessed among the
parties, and therefore the verdict on all counts was contrary to the weight of
the evidence.7 We disagree.
Our standard of review regarding challenges to the weight of the
evidence is as follows:
The weight of the evidence is exclusively for the finder
of fact who is free to believe all, part, or none of the
evidence and to determine the credibility of the
witnesses. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the … verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
666, 672-73 (1999). Moreover, where the trial court has
ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the
verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
(most internal citations omitted).
Here, the trial court addressed Appellant’s issue in its Rule 1925(a)
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7 Appellant preserved his challenge to the weight of the evidence in his timely-
filed post-sentence motion. See Pa.R.Crim.P. 607(A)(3).
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opinion as follows:
In the instant case, [Appellant’s] contentions in regard to
the weight of the evidence are the same as his contentions
in regard to the sufficiency of the evidence. For the reasons
set forth above in regard to the sufficiency of the evidence,
these contentions are without merit. The jury’s verdicts of
guilty were based on direct and circumstantial evidence,
which was sufficient to find [Appellant] guilty of all those
offenses beyond a reasonable doubt. Because the jury’s
verdicts are not contrary to the evidence and do not shock
the conscience of the Court, a new trial is not warranted.
(Trial Court Opinion, 2/21/24, at 13).
The jury as factfinder was free to believe all, part, or none of the
evidence presented. See Champney, supra. Here, the jury found that
Appellant supplying $100.00 for the purchase of drugs and then cutting the
drugs into lines for everyone to ingest constituted delivery of the drugs. The
trial court denied Appellant’s post-sentence motion for a new trial, explaining
that the jury’s verdict was not so contrary to the evidence as to shock the
conscience. See id. On this record, we cannot say that the trial court abused
its discretion in denying Appellant’s weight claim. Appellant’s final issue is
meritless. Accordingly, we affirm.
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Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 1/17/2025
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