Com. v. Pysadee, B.

J-A26019-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

BRADY CHRISTIAN PYSADEE :

:

Appellant : No. 1351 WDA 2024

Appeal from the Judgment of Sentence Entered October 17, 2024

In the Court of Common Pleas of McKean County Criminal Division at

No(s): CP-42-CR-0000531-2022

BEFORE: OLSON, J., STABILE, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED: June 8, 2026

Appellant, Brady Christian Pysadee, appeals from the judgment of

sentence entered on October 17, 2024, following his jury trial convictions for

drug delivery resulting in death, involuntary manslaughter, recklessly

endangering another person, and three counts of possession with intent to

deliver narcotics.1 Upon careful review, we affirm.

We summarize the facts and procedural history of this case as follows.

On June 17, 2021, police found the body of Mercedes Simonds (“Victim”) in

an apartment in Bradford, Pennsylvania. Further investigation revealed that

Victim died from a fatal dose of fentanyl. As a result, the Commonwealth

charged Appellant with the aforementioned charges. Pertinent to this appeal,

Appellant and the Commonwealth filed motions in limine regarding electronic

____________________________________________

1 18 Pa.C.S.A. §§ 2506, 2504, and 2705; 35 § 780-113 §§ (a)(30)(two

counts) and (a)(16) (one count), respectively.

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and in-person hearsay statements Victim made to various witnesses prior to

her death. The trial court held a hearing on the motions on July 23, 2024.

On August 7, 2024, the trial court filed an opinion and order granting relief to

the Commonwealth.2 On August 20, 2024, a jury found Appellant guilty of

all charges. On October 17, 2024, the trial court sentenced Appellant to an

aggregate term of nine to 18 years of incarceration, followed by one year of

probation. This timely appeal resulted.3

____________________________________________

2 More specifically, and relevant to the current appeal, the August 7, 2024

order stated: “The Commonwealth’s motion in limine to present testimony at

trial of statements made by the alleged victim, Mercedes Simonds, to Patrick

O’Hara, Tiffany Teeter, Brandon McCauley, Floyd O’Hara, and Ronald Jackson

… is granted.” Trial Court Order, 8/7/2024 (superfluous capitalization

omitted). With regard to Ronald Jackson, the trial court allowed the

Commonwealth to present Jackson’s testimony that Victim stated that she

“did a line [of brown stuff] with [Appellant] in his truck” that “she didn’t feel

good” and was “not sure what it was, but [thought] it was possibly heroin

[when she thought] it was going to be cocaine, but it had a tint of brown so

she wasn’t sure.” Trial Court Opinion, 8/7/2024, at 7-8; see also Appellant’s

Brief at 4. With regard to Patrick O’Hara, the trial court permitted Patrick to

testify that Victim delivered drugs to him after meeting with Appellant, but

then told him “don’t use that. It’s the wrong stuff. I think the bags got mixed

up! Because [Appellant] had two bags. I think I did heroin.” Trial Court

Opinion, 8/7/2024, at 7; see also Appellant’s Brief at 4-5. With regard to

Floyd O’Hara, Patrick’s father, the trial court permitted Floyd to testify that

Victim said, “the bags got mixed up” and “she did not feel well” because

“whatever she did in [Appellant’s] car wasn’t coke.” Trial Court Opinion,

8/7/2024, at 7; see also Appellant’s Brief at 5.

3 Appellant filed a timely notice of appeal on October 30, 2024. On October

31, 2024, the trial court entered an order directing Appellant to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

Eventually, after this Court directed the trial court “to issue a concise

statement order that complies with Rule 1925(b)(3) and serve that order on

[c]ounsel for Appellant consistent with Pa.R.Crim.P. 114,” Appellant filed a

(Footnote Continued Next Page)

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On appeal, Appellant presents the following issue4 for our review:

1. Did the [t]rial [c]ourt err when it allowed the admission of

hearsay testimony that conveyed purported statements

____________________________________________

timely Rule 1925(b) statement on March 3, 2025. See Superior Court Per

Curiam Order, 1/31/2025. On March 6, 2025, the trial court issued an opinion

pursuant to Pa.R.A.P. 1925(a) that largely relied upon its earlier decision filed

on August 7, 2024, but further clarified and specifically addressed case law

upon which Appellant relied.

4 Initially, we will address the Commonwealth’s contention that Appellant

waived his evidentiary claims by failing to raise at or before trial any objections

to statements Victim made to Ron Jackson, Patrick O’Hara or Floyd O’Hara.

See Commonwealth’s Brief at 9. Here, upon review of the certified record,

we conclude that Appellant’s objections to the statements at issue were

argued extensively prior to trial and, thus, properly preserved for our review.

Prior to trial, Appellant filed a motion in limine and an amended motion in

limine that addressed the admissibility of Victim’s statements to Ronald

Jackson. Thereafter, the trial court convened a hearing on July 23, 2024,

wherein it directed the Commonwealth to file a brief “setting forth the specifics

and detail of the alleged statements” and “the legal basis [for] why these

statements [were] admissible.” N.T/, 7/23/2024, at 3. The trial court ordered

Appellant to file a response afterwards. Id. The Commonwealth filed a motion

in limine, two amended motions in limine, and a brief pertaining to all of the

statements at issue currently. Appellant then filed a brief in opposition to the

Commonwealth’s two amended motions in limine. In his opposition brief,

Appellant, among other things, challenged the admission of Victim’s verbal

statements to Ronald Jackson, Patrick O’Hara, and Floyd O’Hara under the

state of mind and medical treatment exceptions to the rule against hearsay.

Ultimately, on August 7, 2024, the trial court entered an order and opinion

outlining the proposed statements at issue and permitting their introduction

at trial. See Trial Court Opinion, 8/7/2024, at 7-9. “A party may claim error

in a ruling to admit … evidence only … if the ruling admits evidence [and] a

party, on the record … makes a timely objection, motion to strike, or motion

in limine, and states the specific ground, unless it was apparent from the

context.” Pa.R.E. 103(a)(1)(A)-(B). “Once the court rules definitively on the

record – either before or at trial – a party need not renew an objection or offer

of proof to preserve a claim for appeal.” Pa.R..E. 103(b). Here, although no

objections were subsequently lodged at trial, the trial court definitively ruled

on the statements at issue prior to trial, no renewed objections were required,

and, therefore, the issue was properly preserved for our review.

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[V]ictim made to Ronald Jackson, Patrick O’Hara, and Floyd

O’Hara?

Appellant’s Brief at 2.

Appellant argues that the trial court erred by allowing the admission of

testimony at trial pursuant to the “medical diagnosis or treatment” exception

and/or the “then-existing mental, emotional, or physical condition” exception

to hearsay, pursuant to Pa.R.E. 803(4) and (3), respectively. See id. at 6-13.

More specifically, Appellant asserts:

None of the [] hearsay testimony should have been admissible.

As far as the medical treatment exception is concerned, nothing

in [Ronald Jackson’s testimony that Victim said she] “did a line of

brown stuff in Appellant’s truck” had anything to do with “medical

treatment or diagnosis in contemplation of treatment” because the

statement was not rendered to a medical professional for the

purpose of receiving treatment. In fact, when offered to be taken

to the hospital or have an ambulance called for her, [Victim]

refused treatment. Thus, the hearsay offered by Mr. Jackson

should not have been admitted based on this exception.

With respect to the “the existing mental, emotional, or physical

condition” [hearsay exception] being applicable to [Victim’s

statement that she] “did a line of brown stuff” relayed by Ron[ald]

Jackson; and the “switched the two bags” hearsay relayed by the

O’Hara[s], these statements were explicitly forbidden by the

language of [Pa.R.E. 803(3)] because they were in fact

“statements of memory or belief to prove the fact remembered or

believed.” Pa.R.E. 803(3).

Consequently, the lower court’s rationale for admitting all this

hearsay [evidence] was a misapplication of the law, and thus, an

abuse of discretion.

In any event, even if these hearsay statements were in some way

tied to other statements that were admissible under some

exception, all of these statements still should have been excluded.

[Appellant posits that in] Pennsylvania [] if a statement [] contains

both a state of mind component and a “fact-bound” component, it

generally is inadmissible.

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* * *

The purported statement to Ronald Jackson that [V]ictim “did a

line of brown stuff in Appellant’s truck” is nothing more than a

fact-based assertion, and it was explicitly offered to prove the

truth of the matter. Even if one could contort themselves into a

belief that someone said something that they previously did as an

expression of their “state of mind,” it cannot be disputed the

[Victim’s] statement about a line of brown stuff in Appellant’s

truck are facts that go to the heart of this case. The lower court

should have [] precluded Ronald Jackson from claiming [V]ictim

told him that she did a line of brown stuff in Appellant’s truck.

So too should the testimony from the O’Hara[s] been precluded.

Specifically, Patrick’s testimony that [V]ictim stated:

Don’t use that. It’s the wrong stuff. I think the bags got

mixed up! Because [Appellant] had two bags. I think I

did heroin.

[Said statement] should have been precluded. [V]ictim’s

expression of what she “thought” was interspersed with factual

assertions, i.e., that Appellant had “two bags” and “it’s the wrong

stuff.” This was dual-purpose hearsay, which should have been

precluded[.]

The same holds true for Floyd’s testimony that [V]ictim said, “the

bags got mixed up. Whatever she did in the car wasn’t [cocaine].”

“The bags got mixed up” is a factual assertion, which renders the

entire statement a dual-purpose statement that is forbidden[.]

Id. at 7-9 (emphasis in original; original brackets and record citations

omitted).

Appellant challenges the trial court’s application of the state of mind and

medical treatment exceptions to the rule against hearsay. Accordingly, we

shall set forth the general principles that govern our review of evidentiary

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questions and then turn to the pertinent law addressing the relevant hearsay

exceptions. Our Supreme Court has determined:

Questions concerning the admissibility of evidence are within the

sound discretion of the trial court, and [an appellate c]ourt will not

reverse the trial court's decision absent an abuse of that

discretion.

Hearsay is “a statement ... the declarant does not make while

testifying at the current trial or hearing ... [that is offered] in

evidence to prove the truth of the matter asserted.” Pa.R.E.

801(c)(1)-(2). Statements that meet this definition are not

admissible, unless the proffered statement falls within an

established hearsay exception.

* * *

Technically, [an out-of-court] statement [admitted for the truth of

the matter asserted] is hearsay. However, then-existing state of

mind statements long have been excepted from the hearsay rule

because they possess the “special assurance of reliability” due to

“their spontaneity and resulting probable sincerity. The guarantee

of reliability is assured principally by the requirement that the

statements must relate to a condition of mind or emotion existing

at the time of the statement.”

In Pennsylvania, the admissibility of then-existing state of mind

statements is governed by Rule of Evidence 803(3), which

provides as follows:

Then-Existing Mental, Emotional, or Physical

Condition. A statement of the declarant's then-existing

state of mind (such as motive, intent or plan) or emotional,

sensory, or physical condition (such as mental feeling, pain,

or bodily health), but not including a statement of memory

or belief to prove the fact remembered or believed unless it

relates to the validity or terms of the declarant's will.

Pa.R.E. 803(3). Pursuant to the state of mind hearsay exception,

where a declarant's out-of-court statements demonstrate her

state of mind, are made in a natural manner, and are material and

relevant, they are admissible pursuant to the exception.

Axiomatically, and by its unambiguous terms, the exception

renders admissible only those statements that reflect the

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“declarant's then-existing state of mind ... or condition,” Pa.R.E.

803(3), not someone else's state of mind or condition. Nothing in

the plain terms of the exception would allow, for instance, a party

to introduce an out-of-court statement of one person to prove the

intent, motive, feelings, pain, or health of another person. The

bounds of the exception are limited to the then-existing state of

mind of the declarant only.

Commonwealth v. Fitzpatrick, 255 A.3d 452, 471–472 (Pa. 2021) (case

citations, some quotations, and footnote omitted).

Our Supreme Court

distinguish[ed] between the two ways in which a declarant's state

of mind can be invoked as a basis for admitting a declarant's

out-of-court statement in a legal proceeding. The two often are

conflated by courts and practitioners alike. The critical feature that

differentiates the two evidentiary proffers is the purpose for which

the statement is being offered. If the statement is not being

offered for its truth, but instead to show the mental state of the

person making it, the statement is admissible only for that limited

purpose, and should be accompanied with an accurate limiting

instruction to the jury. Such a statement is not admissible as

substantive evidence, and cannot be admitted for the truth of the

matter asserted.

Indeed, when not offered as substantive proof, the truth of the

statement is wholly immaterial. The statement could be

something outrageous or impossible—such as “I can fly to the

moon.” That would not be hearsay at all, as it is meant only to

demonstrate to the judge or jury the character of the speaker's

mindset at the time of its utterance. See 2 McCormick on Evidence

§ 274 (8th ed.) (explaining that state of mind statements that are

not hearsay are not dependent upon the manner in which the

statement is uttered or the truth or practicability of the

statement). In this example, the statement would be offered to

show that the speaker may have been mentally impaired or

delusional at the time. It would not be introduced to prove that he

(or she) actually can fly to the moon. This [constitutes] non-truth

purpose [] state of mind evidence[.]

Id.

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Moreover,

[a] statement proffered under the state of mind hearsay exception

is not per se admissible merely because it is an expression of the

speaker's then-existing mindset, with nothing more. The

statement must also go to a “factor in issue”—i.e., it must be

relevant to some contested aspect of the case. “The victim's

emotional state must relate to some legitimate issue in the case.”

2 McCormick on Evidence § 276 (8th ed.). Finding relevance in a

victim's mindset in a criminal case is fairly uncommon. Indeed, a

crime victim's state of mind typically is irrelevant and, thus,

inadmissible. In murder cases in particular, it is the defendant's

state of mind, not that of the victim, which is material to establish

the degree of guilt, if any, on the charge of criminal homicide.

Nonetheless, in criminal cases:

the courts have developed three rather well-defined

categories in which the need for such statements overcomes

almost any possible prejudice. The most common of these

involves defendant's claim of self-defense as justification for

the killing. When such a defense is asserted, a defendant's

assertion that the deceased first attacked him may be

rebutted by the extrajudicial declarations of the victim that

he feared the defendant, thus rendering it unlikely that the

deceased was in fact the ag[g]ressor in the first instance.

Second, where defendant seeks to defend on the ground

that the deceased committed suicide, evidence that the

victim had made statements inconsistent with a suicidal

bent are highly relevant. A third situation involves a claim

of accidental death, where, for example, defendant's version

of the facts is that the victim picked up defendant's gun and

was accidentally killed while toying with it. In such cases the

deceased's statements of fear as to guns or of defendant

himself (showing he would never go near defendant under

any circumstances) are relevant in that they tend to rebut

this defense. Of course, even in these cases, where the

evidence is of a highly prejudicial nature, it has been held

that it must be excluded in spite of a significant degree of

relevance.

United States v. Brown, 490 F.2d 758, 767 (D.C. Cir. 1973).

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Fitzpatrick, 255 A.3d at 474–475 (most citations and original brackets

omitted).

Furthermore,

While such statements are admittedly of some value in presenting

to the jury a complete picture of all the facts and circumstances

surrounding [a] homicide, ... such statements are fraught with

inherent dangers and require the imposition of rigid limitations.

The principal danger is that the jury will consider the victim's

statement of fear as somehow reflecting on defendant's state of

mind rather than the victim's—i.e., as a true indication of

defendant's intentions, actions, or culpability. Such inferences are

highly improper and where there is a strong likelihood that they

will be drawn by the jury the danger of injurious prejudice is

particularly evident.

* * *

The quantum of prejudice ... is highest when the circumstantial

facts in the statement are intimately related to the issue to be

proved. In the context of homicide cases ..., it is clear that where

the improper purpose for which the jury might consider the

evidence bears closely on the central question of the defendant's

guilt or innocence there is less likelihood that the jury will confine

the statement to its proper realm.

* * *

The more narration of past acts or conduct of the defendant

contained in the statement, the greater the danger of jury misuse.

Id. at 481, citing Brown, supra.

As such, the Fitzpatrick Court “set forth the general inquiry courts must

undertake when contemplating the admissibility of out-of-court statements

proffered to the court for admission as state of mind evidence.” Id. at 479.

Our Supreme Court further elaborated:

If the statement is offered as substantive evidence for the truth

of the matter asserted, the court must examine the statement

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more closely and make a number of preliminary rulings. First, like

all evidence, the statement must be relevant. In the context of

state of mind evidence, the speaker's mindset must be pertinent

to some contested issue in the legal proceeding. In criminal cases,

the prosecution must prove the defendant's mens rea beyond a

reasonable doubt. Thus, in the typical prosecution, a victim's state

of mind simply is not relevant. There are exceptions to this

general rule, including cases where the defendant has alleged

self-defense, or where the defendant has challenged the manner

of death[.] Prototypically, the latter exception occurs when the

defendant argues that the victim died by accident or by suicide.

* * *

[…I]f the statement is not a singular purpose statement, but

instead contains both a state of mind component and a

“fact-bound” component, it generally is inadmissible. The reasons

rendering such statements inadmissible are patent, and

compelling.

[…S]uch two-part statements are only relevant if they are taken

for their truth. The problem is that there are two parts to these

statements, only one of which facially is admissible: the state of

mind component. The factual component is not. That part, which

is uttered out-of-court and also offered for the truth of the matter

asserted, does not satisfy this exception to the hearsay rule, nor

does it possess the same hallmarks of reliability imputed to state

of mind evidence. That one aspect of a statement is admissible

does not render all of a multi-part statement admissible. Quite to

the contrary, both components must independently be admissible.

Each aspect of the statement must satisfy a hearsay exception.

[…T]he problem with admitting a statement into evidence where

only a part of it is admissible [] allows the proponent of the

evidence to bootstrap inadmissible hearsay into competent

evidence. This permits a party to use the state of mind exception

as a mechanism to circumvent the rules of evidence, repurposing

state of mind evidence into a “conduit” to obtain admission of

otherwise inadmissible facts.

Id. at 479–481 (citations omitted).

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Additionally, with respect to Pa.R.E. 803(4),5 the medical treatment

exception to the rule against hearsay, our Supreme Court has

set forth the prevailing view that the identity of the assailant or

perpetrator who may have caused the injury for which medical

treatment is being sought, is not within the medical treatment

exception because the identity of the abuser is not pertinent to

medical treatment. While disclosing the events surrounding an

injury may be important for medical treatment or diagnosis,

identifying the person responsible for the injury is not medically

necessary.

Commonwealth v. Vining, 744 A.2d 310, 319 (Pa. Super. 1999) (“In

Commonwealth v. Smith, 681 A.2d 1288 (Pa. 1996) our Supreme Court

refused to expand the scope of the medical treatment exception beyond its

relatively limited nature to include the identity of a perpetrator.”); see also

E.W. v. E.N., 327 A.3d 679, 692 (Pa. Super. 2024) (“It is well-established

that a statement identifying the individual who causes the injury that leads

the declarant to seek medical treatment may not be admitted under the Rule

803(4) exception.”).

Based upon the foregoing law and our review of the certified record, we

conclude that the trial court erred in permitting all three of the statements at

issue to be presented at trial. First, there is no dispute that Victim did not

seek medical treatment or diagnosis in contemplation of treatment pursuant

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5 A statement made for medical diagnosis or treatment is “[a] statement that

[] is made for – and is reasonably pertinent to – medical treatment or

diagnosis in contemplation of treatment [and] describes medical history, past

or present symptoms, pain, or sensations, or the inception or general

character of the cause or external source thereof, insofar as reasonably

pertinent to treatment, or diagnosis of treatment.” Pa.R.E. 803(4).

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Pa.R.E. 803(4). As such, for this reason alone, the medical treatment and

diagnosis exception to hearsay is inapplicable instantly. Moreover, Victim

told Ronald Jackson that she did not feel well but also testified that Victim “did

a line of brown stuff in Appellant’s truck” which identified Appellant as the

person responsible for the injury. This latter statement was not medically

necessary, and, therefore, Rule 803(4) is inapplicable for this additional

reason.

Next, with regard to the then-existing state of mind exception to

hearsay under Rule 803(3), each of Victim’s statements at issue

contemporaneously described her then-existing state of mind, more

specifically, her physical condition relating to pain or her bodily health. By

themselves, Victim’s freestanding declarations to others that she did not feel

well were entirely permissible. However, the challenged statements included

“fact-bound” components, which were not independently admissible. It was

error to permit Ronald Jackson to testify that Victim “did a line [of brown stuff]

with [Appellant] in his truck” and Victim was “not sure what it was, but

[thought] it was possibly heroin [when she thought] it was going to be

cocaine, but it had a tint of brown so she wasn’t sure.” Trial Court Opinion,

8/7/2024, at 7-8. With regard to Patrick O’Hara, the trial court erred by

permitting Patrick to testify that Victim said “don’t use that. It’s the wrong

stuff. I think the bags got mixed up! Because [Appellant] had two bags. I

think I did heroin.” Trial Court Opinion, 8/7/2024, at 7; see also Appellant’s

Brief at 4-5. With regard to Floyd O’Hara, Patrick’s father, the trial court

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erroneously permitted Floyd to testify that Victim said, “the bags got mixed

up” because “whatever she did in [Appellant’s] car wasn’t coke.” Trial Court

Opinion, 8/7/2024, at 7; see also Appellant’s Brief at 5. In short, it was error

for the trial court to allow the jury to consider, under the state of mind

exception, Victim’s factual recollections and statements of fear or confusion

as to what substance she ingested. The Commonwealth should not have been

permitted to bootstrap this inadmissible hearsay into competent evidence.6

See Fitzpatrick, supra.

Our analysis, however, does not end there. After finding testimony

inadmissible, our Supreme Court has stated that an appellate court must

proceed to determine whether [the trial court’s] erroneous

admission nonetheless was harmless. See Commonwealth v.

Chmiel, 889 A.2d 501, 521 (Pa. 2005) (“[A]n erroneous ruling by

a trial court on an evidentiary issue does not require us to grant

relief where the error was harmless.”) (citation omitted). Our

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6 The trial court distinguished Fitzpatrick when it concluded that the

challenged statements were admissible, noting that the hearsay declarations

in Fitzpatrick related to future events while the statements here related to

facts that had already occurred. See Trial Court Opinion, 3/6/25, at 4. This

rationale is unavailing, as it finds no support in the text of Pa.R.E. 803(3), the

attached comment, or the interpretive case law. A declarant’s out-of-court

statements reflecting his state of mind are admitted since they bear indicia of

reliability at the time they are made. Here, however, Victim’s uncertain

recollections of the events surrounding her encounter with Appellant did not

reflect her state of mind and do not fit within the paradigm of Rule 803(3). In

addition, while the trial court and the parties appear to agree that Victim was

a frequent cocaine user, nothing in the record supports the idea that she could

accurately identify contraband simply by ingesting it. In fact, the record

undermines this notion since it demonstrates that Victim twice ingested a

controlled substance that she did not intend to use or acquire. In short, it was

error for the trial court to overlook Fitzpatrick in assessing the admissibility

of the challenged statements.

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legal standards governing harmless error are well-settled. An

error warrants relief “only if the appellate court is convinced

beyond a reasonable doubt that the error is harmless.”

Commonwealth v. Story, 383 A.2d 155, 162 (Pa. 1978). “[A]n

error cannot be held harmless unless the appellate court

determines that the error could not have contributed to the

verdict. Whenever there is a reasonable possibility that an error

might have contributed to the conviction, the error is not

harmless.” Id. at 164 (citation and internal quotation marks

omitted). The Commonwealth bears the burden of proving that

the error was harmless beyond a reasonable doubt. Id. at 162

n.11.

Harmless error exists where: (1) the error did not prejudice

the defendant or the prejudice was de minimis; (2) the

erroneously admitted evidence was merely cumulative of

other untainted evidence which was substantially similar to

the erroneously admitted evidence; or (3) the properly

admitted and uncontradicted evidence of guilt was so

overwhelming and the prejudicial effect of the error was so

insignificant by comparison that the error could not have

contributed to the verdict.

Chmiel, 889 A.2d at 521 (quoting Commonwealth v. Robinson,

721 A.2d 344, 350 (Pa. 1998)).

Fitzpatrick, 255 A.3d at 483.

In this case, Appellant maintains that the errors in admitting the hearsay

at issue were not harmless:

Here, the prejudice to Appellant was not de minimis. There was

no direct evidence that Appellant ever had any access to fentanyl

laced substances, let alone that he delivered same to [V]ictim.

The Commonwealth’s case was based on weak circumstantial

evidence, most of which was the hearsay that is challenged

herein. When the jury heard that Appellant “mixed up the bags”

and [V]ictim “did a line of something brown in [Appellant’s] truck,”

Appellant’s fate was sealed. They jury had nothing to base its

verdict on other than circumstantial hearsay statements from

which they were asked to infer that Appellant had anything to do

with fentanyl.

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Next, the erroneously admitted hearsay was not cumulative of

other admissible evidence. There is no admissible evidence that

Appellant “switched the bags” or that [V]ictim did [a] line of

something brown with him in his truck.

Finally, the evidence was not overwhelming in this case. The

lower court focused its analysis on this point by citing to the

overwhelming evidence that Appellant delivered drugs to [V]ictim.

But that point was not in dispute [as Victim sought to purchase

cocaine from Appellant]. What was in dispute is whether Appellant

ever actually possessed fentanyl and delivered it to [V]ictim. The

only evidence that a jury could infer these facts from was the

hearsay that the lower court improperly allowed the

Commonwealth to elicit. Thus, the lower court’s assertion that

this case can be disposed of on harmless error grounds should be

rejected.

Appellant’s Brief at 12-13.7

The offense of drug delivery resulting in death is defined as follows:

(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 in violation of [S]ection 13(a)(14)

or (30) of the [A]ct of April 14, 1972 (P.L. 233, No. 64),1 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) (footnote omitted).

____________________________________________

7 Initially, we note that, in his harmless error analysis, Appellant does not

challenge his conviction for recklessly endangering another person and he

concedes that he delivered drugs to Victim, which supports his three

convictions for possession with intent to deliver narcotics. Therefore, we

confine our analysis regarding Appellant’s harmless error claim to only his

convictions for drug delivery resulting in death and involuntary manslaughter.

See Appellant’s Brief at 4 (“The issue at trial was not whether Appellant and

[Victim] had exchanged drugs. Rather, it appeared that [Victim] was a

frequent drug user and seller, the issue to be resolved by the jury [was]

whether the Commonwealth could prove beyond a reasonable doubt that

Appellant is the person who delivered the fatal substance to [Victim].”).

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“The crime ... consists of two principal elements: (i) [i]ntentionally

administering, dispensing, delivering, giving, prescribing, selling or

distributing any controlled substance or counterfeit controlled substance and

(ii) death caused by (‘resulting from’) the use of that drug.” Commonwealth

v. Proctor, 156 A.3d 261, 268 (Pa. Super. 2017) (footnote omitted), citing

Commonwealth v. Kakhankham, 132 A.3d 986, 991-992 (Pa. Super.

2015).

To establish drug delivery resulting in death,

the Commonwealth need not prove that the defendant intended

to cause the death of another. See Commonwealth v.

Kakhankham, 132 A.3d 986, 993 (Pa. Super. 2015). Instead,

the Commonwealth must establish that the defendant's act of

administering, dispensing, delivering, giving, prescribing, selling,

or distributing the substance was intentional and that the

defendant had a “reckless disregard of death from the use of the

contraband.” Commonwealth v. Carr, 227 A.3d 11, 17 (Pa.

Super. 2020). A defendant acts recklessly 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.

18 Pa.C.S.A. § 302(b)(3). 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. See Commonwealth v. Storey,

167 A.3d 750, 758 (Pa. Super. 2017) (holding that the intentional

sale of heroin to a person, the use of which caused the death of a

third person unknown to the defendant, constitutes recklessness

for the purpose of DDRD). The statute requires “but-for”

causation such that the defendant's action with the drugs was a

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“direct and substantial factor in producing the death even though

other factors combined with that conduct to achieve the result,”

so long as the defendant's actions were not “so extraordinarily

remote or attenuated that it would be unfair to hold the defendant

criminally responsible.” Commonwealth v. Proctor, 156 A.3d

261, 271 (Pa. Super. 2017); see also 18 Pa.C.S.A. § 303(a).

Commonwealth v. Scott, 325 A.3d 844, 850 (Pa. Super. 2024).

The Commonwealth may offer expert testimony “that notwithstanding

other drugs in [a victim’s] system,” the amount of the lethal narcotic ingested

by the victim was, in fact, the cause of death. See Proctor, 156 A.3d at 268,

citing N.T., 9/29-30/2015, at 348-350 (Kevin Dusenbury, Sr., coroner of

Potter County, explaining that “[t]he level of the [h]eroin[ ] metabolite was a

lethal level” and, when asked whether “[h]eroin[ ] in and of itself when you

inject it is not lethal, correct?,” answering, “It was in this case I believe.”).

“A person is guilty of involuntary manslaughter when[,] as a direct result

of the doing of an unlawful act in a reckless or grossly negligent manner, or

the doing of a lawful act in a reckless or grossly negligent manner, he causes

the death of another person.” 18 Pa.C.S.A. § 2504(a).

Crimes arising from a single criminal act merge where all of the statutory

elements of one offense are included in the statutory elements of the other

offense. See 42 Pa.C.S.A. § 9765. Here, drug delivery resulting in death is

an intentional act and requires a violation of the Controlled Substances Act;

whereas, involuntary manslaughter only requires reckless conduct and does

not require a violation of the Controlled Substances Act. As such, it is possible

to commit involuntary manslaughter without committing drug delivery

resulting in death. However, in this case, because Appellant is challenging the

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causation of Victim’s death in the context of harmless error, our resolution of

the harmless error issue will address both convictions.

Here, the trial court determined that any error in admitting the three

statements at issue was harmless:

In the current case an extensive Snapchat text exchange between

[Appellant] and [V]ictim was introduced at trial[, the Snapchat

texts were admitted without objection, and their admission is not

questioned on appeal]. These texts demonstrate that [Appellant]

contacted [V]ictim shortly before her death and encouraged her

to “find someone to buy 3 G’s.” Further, he texts [V]ictim, who

he knows is a drug user: “I’ll give you two grams free and clear.

I just need to make $300[.00] more before I can get more. And

I can let you … I can let whoever take a sample to try a bump

before they buy.” [Appellant] described the drugs he was asking

[V]ictim to purchase as “quality and not some horse shit.”

Further, Snapchat messages [we]re also admitted between

[V]ictim and an individual she intend[ed] to [sell] the drugs to,

Patrick O’Hara. [Patrick] asks about the quality of the drugs to be

provided as it [was] “way cheap;” and, [V]ictim responds[,] “let

me know if you want to try it with me.” There are also text

messages between [Appellant] and [V]ictim setting up a place and

time for them to meet. Included in this exchange [was] a text

from [Appellant] to [V]ictim: “I’m almost done, but I’ll drop by so

you can try it, alright?” [V]ictim responded: “sounds good.” After

[Appellant] texted [V]ictim “here,” [Victim] texted [Appellant:]

“Yo that shit is good for real, try saving” and she texted “fire

emojis” to [Patrick]. [Appellant] also texted [V]ictim, “And, I’m

sorry I couldn’t give you more to try. It’s not a huge

amount that’s going to get you super zooted.” The

Commonwealth also admitted and played video surveillance

footage of [Appellant] and [V]ictim in his vehicle. [Appellant]

called the Bradford Police the day that [V]ictim’s body was

discovered and admitted that he had met her the day before in

his vehicle.

[…T]he video footage that shows [V]ictim getting in [Appellant’s]

vehicle [] coincides with the text messages [coupled with

Appellant’s] admission that he met with [V]ictim in his vehicle,

strongly support[s] a finding that [Appellant] was selling drugs,

encouraged [V]ictim to try them, which she did, and the use of

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the drugs that [Appellant] provided and described as “quality and

not some horse shit,” which would “get [her] super zooted,” killed

her.

Trial Court Opinion, 3/6/2025, at 6-8 (footnote incorporated; emphasis in

original; record citations omitted).8

We agree with the trial court’s assessment. Here, the properly admitted

and uncontradicted evidence of guilt was so overwhelming and the prejudicial

effect of the error was so insignificant by comparison that the error could not

have contributed to the verdict. First, there is no dispute that, on the night

in question, Appellant and Victim met twice in order for Victim to sample and

procure narcotics from Appellant. Video surveillance, text and Snapchat

messages, and trial testimony established that Victim got into Appellant’s

vehicle each time. Important to the current appeal, the Commonwealth

entered all of the digital communications between Appellant and Victim, on

the evening in question, into evidence at trial. Appellant offered to give Victim

a sample of the drugs in his possession, so that she could sell those narcotics

to others. See N.T., 8/20/2024, at 92 (“If you can find someone to buy 3 G’s,

I’ll give you 2 grams free and clear. I just need to make $300[.00] before I

can get more. And I can let you – I can let whoever – take a sample to try a

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8 The trial court made a similar pre-trial ruling. See also Trial Court Opinion,

8/7/2024, at 9 (“Further, any prejudice to [Appellant] from the admission of

these statements would be minimal. As outlined above, the Snapchat

communications between [Victim] and [Appellant], and communications

between Patrick O’Hara and [Victim were] already held admissible. They

outline in detail the plan for the drug exchange and [Victim’s] use of some of

them. Further, [Appellant] stated to [police] that he had arranged to provide

drugs to [Victim]. Therefore, there is already evidence, separate from

[Victim’s statements], that she obtained drugs from [Appellant].”).

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bump and try before they buy. So that [] way they will know they’re getting

quality and not some horse shit.”); id. at 93 (“So, if you scratch my back, I’ll

scratch yours. It’s definitely good work, for real. I wouldn’t try to sell

garbage, that’s for damn sure.”). After meeting Victim for the first time, and

allowing her to sample his narcotics, Appellant touted the potent strength of

the narcotics he had just delivered to Victim. See id. at 99 (“And I’m sorry

that I couldn’t give you more to try. It’s not a huge amount that’s going to

get you super zooted. But trust me, the people I’ve been doing it with since

I got to town [] all had good reviews about it.”). When Victim text messaged

Appellant 40 minutes later, she declared, “holy shit I’m sweating.” Id. at 100.

Appellant replied, “haha, yeah, last night I almost got sick after a few decent

bumps. Wait till you bust a real line. It’s going to be way tastier and you’ll

just get actually zooted.” Id.; see also id. at 105 (Victim to Appellant:

“[W]ith how good it is, it’s not like you need a shit ton.” Appellant to Victim:

“[Y]eah, that’s what [I was] talking about last night. Like, it’s good enough

to do a little bit and not have a terrible comedown. Like, it’s just so satisfying,

I don’t know. Like, you want more, but it’s not such a shitty comedown when

it’s good, the high feels cleaner when it’s not cut with a bunch of horse shit.”).

The Commonwealth also presented the testimony of Dr. Stephanie

Marco, a forensic toxicologist, to testify about the narcotics found in Victim’s

bloodstream post-mortem. Id. at 26-47. Tests confirmed the presence of

“Benzoylecgonine, … the metabolite of Cocaine. Cocaine was also present.

Amphetamine, Methamphetamine, Fentanyl, and Norfentanyl, which is

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Fentanyl’s metabolite.” Id. at 34. Victim had 11 nanograms per milliliter of

Fentanyl in her system. Id. at 34, 36, and 43. Dr. Marco stated that she

had “seen fatalities as low as three nanograms per milliliter from Fentanyl.”

Id. at 36. Victim had more than three times that amount in her bloodstream.

Dr. Marco further opined that cocaine did not kill Victim and confirmed that

fentanyl was the cause of death. Id. at 46-47. In conjunction, the

Commonwealth also presented the testimony of Dr. Eric Vey, the forensic

pathologist who performed the Victim’s autopsy. He opined that “[c]ombined

toxicity predominantly involving Fentanyl” was Victim’s cause of death. Id.

at 63-64. Dr. Vey confirmed Dr. Marco’s findings that cocaine and/or

methamphetamine did not kill Victim. Id. at 63. Instead, Dr. Vey also opined

that the fentanyl found in Victim’s bloodstream “was at 11 nanograms per

ml[,] the lower lethal threshold from autopsy samples in Fentanyl deaths

starts at 3 [nanograms … while t]he average lethal level found in autopsy

specimens is 8.” Id. As such, Dr. Vey pointed out that Victim’s blood

contained “three and a half times” more fentanyl than the lower-level fatal

threshold and it was “unlikely that death would have occurred from the

Cocaine or Amphetamine at all.” Id. at 63-64.

Finally, we note that the Commonwealth presented the testimony of

multiple witnesses who saw Victim, before and after meeting with Appellant

on two separate occasions on the same day, and noted and described her

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state of intoxication9 and the drastic change in her demeanor both times.

Moreover, as previously discussed above, the Commonwealth also permissibly

____________________________________________

9 We have previously determined:

Intoxication is a matter of common knowledge, and opinions

given by lay people are permissible on the issue.

Commonwealth v. Reynolds, 389 A.2d 1113 (Pa. Super.

1978). However, the lay witness must have sufficient facts

on which to base his opinion before he can express an

opinion on another's intoxication. Commonwealth v.

Hughes, 389 A.2d 1081 (Pa. 1978). See also

Commonwealth v. Summers, 410 A.2d 336 (Pa. Super.

1979) (court concludes witness’ observations of the way the

person looked and the way he was walking provided

sufficient factual basis for witness to conclude a person was

intoxicated). The court also looks to the witness’ personal

knowledge and observation. Commonwealth v.

Davenport, 386 A.2d 543 (Pa. Super. 1978).

Commonwealth v. Womack, 453 A.2d 642, 648 (Pa. Super.

1982). In addition, we note that lay opinion testimony embracing

an ultimate issue in a case is admissible as long as the witness

perceived the events upon which his opinion is based.

Commonwealth v. Bowser, 624 A.2d 125, 133 (Pa. Super.

1993); see also Commonwealth v. Horn, 150 A.2d 872, 875

(Pa. 1959) (citation omitted) (“Intoxication is a matter of common

observation and knowledge, and because of observation,

knowledge or experience, the opinions of laymen are admissible

and medical opinion, while of course admissible, is not required.”);

see also Commonwealth v. McLaughlin, 198 A.2d 419, 421

(Pa. Super. 1964) (citations omitted) (“Intoxication is a matter of

common observation on which the opinions of non-experts are

generally admissible [but t]he testimony of a physician is not

required.”). More specifically, we previously determined that “the

intoxicating effects of cocaine and opiates, like the intoxicating

effects of alcohol, are more widely and commonly understood than

the effects of prescription medication.” Commonwealth v.

DiPanfilo, 993 A.2d 1262, 1267 (Pa. Super. 2010). Furthermore,

this Court has found “no basis upon which to distinguish opinion

(Footnote Continued Next Page)

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entered evidence into the trial record regarding Victim’s statements to others

that she felt ill. For example, Patrick O’Hara testified that before he met with

Appellant, Victim was “her normal self, upbeat, happy. Glad to see [Patrick]

and just seemed like herself and she looked good at that point.” N.T.,

8/19/2024, at 201. When Victim returned, Patrick saw “a clump of white stuff

in her nostril.” Id. at 203. Victim handed Patrick a bag of narcotics. Id. at

202. Patrick testified that Victim’s demeanor had changed, “she wasn’t very

talkative and she had become very … hot and sweaty” and “there was

something off at that point.” Id. When Patrick went into his house to get

money, Victim “came into the house and she told [Patrick] -- in front of [his]

dad …. that she didn’t want [Patrick] to [use the narcotics] in the bag because

she had just [done] a line of something that never made her feel that way and

she [knew] it wasn’t cocaine.” Id. at 203; see also id. at 204 (“She said, I

don’t feel right and I’ve never done a line of cocaine that made me feel this

way.”); see also id. at 217 (“But when she first came in, there was nothing

calm about it, no. There was something wrong.”). Despite the warning,

Patrick used the narcotics Appellant gave Victim and he became “clammy and

hot,” vomited, and “start[ed] to nod out as [he] sat there” which he had not

____________________________________________

testimony of drug-induced intoxication from opinion testimony of

alcohol-induced intoxication where the witness is personally

familiar with the effects of narcotics.” Commonwealth v.

Yedinak, 676 A.2d 1217, 1221 (Pa. Super. 1996) (citations

omitted).

Commonwealth v. Kearns, 332 A.3d 1267 (Pa. Super. 2024)

(non-precedential decision).

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experienced before as a regular cocaine user who believed he was ingesting

cocaine. Id. at 206. Thereafter, Patrick discarded the narcotics. Later,

Patrick text messaged Victim “to make sure she was okay” because of “the

way [he] felt” and because he was concerned he “disrespected her [when he]

didn’t listen to her when she said not to [use the narcotics] but [Patrick] did

it” anyway. Id. at 207. Victim never responded. Id.

Patrick’s father, Floyd O’Hara, testified that Victim came into his house

and told his son not to use narcotics she had just given him because she “got

sick in the car and [did not] feel well.” Id. at 220. Floyd asked Victim “a

couple of times” if “she wanted to go to the hospital” “[b]ecause she got sick

in the driveway and she said she never got sick before doing [cocaine. …] The

girl knew something was up.” Id. at 220-221. Victim calmed down but needed

physical assistance going down the stairs when leaving. Id. at 221.

A short time later, Victim met Ronald Jackson at the Keystone Bar. Id.

at 242. Victim ordered a drink but left shortly thereafter telling the bartender,

Tiffany Teeter, that she “had to go somewhere” and would be right back. Id.

at 243. Video surveillance and text messages showed that Victim met

Appellant in his truck for the second time that day. When Victim returned to

the bar, she went straight to the women’s bathroom, where Teeter later found

her sitting on the floor. Id. at 243; see also id. at 249 (“She was sitting on

the floor with her back up against the wall. … She was sick. You could tell

that she had already vomited. And she did state[,] I’m just not feeling

good.”).

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When Victim returned to the bar area, Teeter testified to the following

interactions:

[Teeter] took [Victim’s] drink away[,] got a couple of bottles of

water[, and] talked to her. [Teeter] asked her, … are you okay?

[Victim] said, I don’t know, I don’t think so. [Teeter] said, do I

need… to call 911? [Victim] said, you can’t do that. [Teeter]

asked her what she did, because … you could tell. She had no

pupils [and] she was sweating profusely. [Victim said she thought

she ingested “H” which Teeter understood to mean heroin.]

* * *

[Teeter] then said, “listen, we need to call 911. You need medical

treatment.” [Victim] panicked, she said no, she would leave. And

then she told Ronnie that she needed to go to sleep. Ronnie said,

nope, I don’t think that’s a good idea. We pondered on what to

do. And, I said, listen, Ronnie, she needs to go. She needs to go

to the hospital. She needs 911.

N.T., 8/19/2024, at 243-244; see also id. at 247 (“[Victim] just started

stuttering, talking real fast, saying she was just going to leave, she was just

going to go home, she was just going to leave. And we tried not to let her

just go anywhere, didn’t want her to just leave. [Teeter, a trained nurse,]

knew [Victim] needed medical attention, but … also [knew Victim] ha[d] the

right to refuse medical treatment.”).

Ronald Jackson testified similarly. See N.T., 8/20/2024, at 11-12 (“She

was sweating quite bad … and went into the bathroom and she was in there

quite a while. She was getting sick. When she [came] out … I sat her down,

went and got her a glass of water, and that’s when Tiffany came over and we

were asking her what was wrong[.]”); id. at 13 (“She’s just real sweaty and

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nodding and said she was just tired and didn’t feel good. …. When I asked her

if she wanted me to call her mom or an ambulance, she said no.”).

Finally, we note that Dr. Marco testified that “sometimes there is a delay

in death. So, depending on when someone used a substance, it takes a certain

period of time to cause its effects on the body. …[It] really does depend on

the individual, their tolerance, as well as what other drugs may be present”

for determining metabolization. N.T., 8/20/2024, at 44. Postulating that if

Victim “had taken the drug [at] 11:30 p.m. and the EMS was called after

noticeable gurgling around 6:00 a.m.[,]” Dr. Vey testified that the timing of

events

[were] entirely in keeping [with and] totally consistent with a drug

overdose death. [] Fentanyl is a synthetic opioid. It’s about 10

times more powerful than Morphine. It causes respiratory

depression, lethargy, somnolence, and you slip into a coma. And

typically, as these individuals succumb from respiratory

insufficiency due to central nervous depression from the drug

affecting the brain stem, they will typically get into pulmonary

edema and start having gurgling respirations during their phase

of demise.

Id. at 65. As such, the Commonwealth produced evidence that drug overdose

deaths may be delayed in order to explain why Victim did not succumb

immediately after imbibing narcotics with Appellant.

Here, based upon all of the foregoing, we agree with the trial court that

it was reasonable for the jury to infer that the fentanyl that was found in

Victim’s system was from the narcotics delivered by Appellant, and that Victim

died from ingesting them. Taken all together, the text messages and video

surveillance, witness testimony pertaining to Victim’s intoxication and physical

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demeanor, Victim’s statements that she felt ill after ingesting the narcotics

delivered by Appellant, Patrick O’Hara’s confirmation that the drugs made him

ill as well, and the toxicology reports and expert testimony confirming the fatal

level of fentanyl in Victim’s blood all support Appellant’s convictions for

involuntary manslaughter and drug delivery resulting in death. The

Commonwealth did not need to prove that Appellant intended to cause

Victim’s death. Instead, the Commonwealth was required to establish that

Appellant’s act of delivering the drugs was intentional. See Scott, supra. In

this case, there is no dispute that Appellant intentionally delivered narcotics

to Victim. Thereafter, the Commonwealth needed only to show that Appellant

had a reckless disregard of death from Victim’s use of the contraband. Id.

Upon review, the Commonwealth met its burden. Appellant recklessly

disregarded death as a result of Victim’s use of this specific narcotic, known

and touted by Appellant as extremely potent and powerful with the ability to

get one “super zooted.” Moreover, Appellant, himself, admitted that the

narcotic was so strong it made him ill after he ingested it. Toxicology

confirmed Victim ingested more than three times the lethal amount of

fentanyl. Multiple eyewitnesses testified that Victim was so intoxicated that

they believed she required hospitalization. Accordingly, while the trial court

erred as a matter of law by admitting the three hearsay statements at issue,

the errors were harmless in light of the additional, overwhelming admissible

evidence presented by the Commonwealth as set forth in detail above. That

evidence allowed the jury to infer, beyond a reasonable doubt, that Appellant

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delivered to Victim a controlled substance which caused or contributed to her

death. Accordingly, Appellant’s sole appellate issue does not merit relief.

Judgment of sentence affirmed.

DATE: 06/08/2026

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