# Commonwealth v. Ludwig

> Supreme Court of Pennsylvania · May 19, 2005 · 583 Pa. 6

URL: https://www.frixlaw.com/law-library/cases/9697611

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellant v. Gregory David LUDWIG, Appellee
- **Court:** Supreme Court of Pennsylvania
- **Decided:** May 19, 2005
- **Citations:** 583 Pa. 6; 874 A.2d 623; 2005 Pa. LEXIS 1033
- **Precedential status:** Published
- **Opinion:** Concurrence by Newman
- **Judges:** Cappy, Castille, Nigro, Newman, Saylor, Eakin, Baer
- **Cited by:** 85 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9697611

## How later opinions describe it (automated extraction)

- explaining that the statute for drug delivery resulting in death, which is defined as murder of the third degree, was not - 14 - J-S04009-24 unconstitutionally vague because it shared the well-settled mens rea for third- degree murder, being malice
- explaining that evidence that a defendant concealed a different dosage of drugs or surreptitiously increased a drug dosage may be “indicative of a wickedness, hardness of heart, cruelty and recklessness” and, as such, demonstrates malice
- recognizing that "courts have the duty to avoid constitutional difficulties, if possible, by construing statutes in a constitutional manner"
- holding that former version of Section 2506 required the Commonwealth to establish malice due to the statute's express reference to drug delivery resulting in death as murder of the third degree
- declining to assess whether a statute was unconstitutional as applied because the Commonwealth failed to establish a preliminary prima facie case under the statute

## Opinion text

Justice NEWMAN,
concurring.
I agree with the Majority that Section 2506 of the Crimes Code, 18 Pa.C.S. § 2506, is not unconstitutionally vague and *26 that the applicable mental state for conviction under the statute is malice. I further agree that the Commonwealth has failed to establish a prima facie case of malice pursuant to Section 2506. However, I write separately because I do believe that the sale of drugs is an important factor in establishing the requisite malice for a third-degree murder conviction. The Majority Opinion states:
Finally, because one sells drugs to another, rather than shares them with others free of charge, does not in and of itself establish malice. While the Commonwealth makes much of Ludwig’s profit motive, at least in these circumstances, and without something more, we cannot agree that the mere sale of drugs is evidence of the wickedness, hardness of heart, cruelty, and recklessness required for malice aforethought.
Commonwealth v. Ludwig, 583 Pa. 6, 25 , 874 A.2d 623, 634 (2005) (emphasis in original). I agree that an interest in making money by selling illegal drugs, without more, is not sufficient to establish that the seller “consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm.” Commonwealth v. Young, 494 Pa. 224 , 431 A.2d 230, 232 (1981) (defining malice). However, unlike the Majority, I believe that when determining the existence of malice, pecuniary gain is an element that merits significant weight. In the case sub judice, even when we give such weight to Ludwig’s profit motive, the Commonwealth still has not established malice, especially in light of the fact that Ludwig informed the girls that they should take only half of the Ecstasy tablet at any one time.
Except for my position regarding the sale of drugs as a factor in determining malice, I join the Majority Opinion in all other respects.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9697611. Public record. Not legal advice.