687 A.2d 1123 (Pa.Super. 1996), Commonwealth v. Highhawk

Citation:687 A.2d 1123, 455 Pa.Super. 186
Opinion Judge:The opinion of the court was delivered by: Olszewski
Party Name:COMMONWEALTH of Pennsylvania, Appellant, v. Gloria HIGHHAWK, Appellee.
Attorney:Rita D. Hathaway, Assistant District Attorney, Greensburg, for Commonwealth, appellant.
Case Date:December 16, 1996
Court:Superior Court of Pennsylvania

Page 1123

687 A.2d 1123 (Pa.Super. 1996)

455 Pa.Super. 186

COMMONWEALTH of Pennsylvania, Appellant,


Gloria HIGHHAWK, Appellee.

Superior Court of Pennsylvania.

December 16, 1996

Argued Oct. 1, 1996.

Reargument Denied Feb. 19, 1997.

Page 1124

[455 Pa.Super. 188] Rita D. Hathaway, Assistant District Attorney, Greensburg, for the Commonwealth, appellant.

John D. Ceraso, New Kensington, for appellee.



In the early morning hours of June 13, 1995, appellee Gloria Highhawk brought heroin to the residence of Steve Wilson for recreational use. She injected the drug into Wilson, a quadriplegic, at his request. Shortly thereafter, Wilson became [455 Pa.Super. 189] unresponsive and medical personnel were summoned. Wilson was taken to Citizen's General Hospital where he was later pronounced dead as a result of acute heroin toxicity. Highhawk was subsequently arrested and charged by information with drug delivery resulting in death pursuant to 18 Pa.C.S.A § 2506.

On October 23, 1995, Highhawk filed a petition seeking to quash the information. Following a hearing, the Honorable Gary P. Caruso of the Court of Common Pleas of Westmoreland County entered an order dated January 5, 1996, stating that the information would be quashed unless it was amended to substitute the existing charge with a charge of general criminal homicide, 18 Pa.C.S.A. § 2501. In support of this order, Judge Caruso found the section of the Crimes Code under which Highhawk was originally charged, 18 Pa.C.S.A § 2506, to be no more than a sentencing statute pursuant to which it was improper to charge her with a crime. The Commonwealth appeals this decision asserting that this order substantially impairs the prosecution. See Pa.R.A.P. 311(d). In advancing its claim, the Commonwealth argues that 18 Pa.C.S.A. § 2506 defines a substantive crime and that the trial court erred in holding it to be a mere sentencing provision.

The statutory provision of the Crimes Code at issue states:

§ 2506. Drug delivery resulting in death

(a) General rule.--A person commits murder of the third degree who administers, dispenses, delivers, gives, prescribes, sells or distributes any controlled substance or counterfeit controlled substance in violation of section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233, No. 64), known as The Controlled Substance, Drug, Device and Cosmetic Act,1 and another person dies as a result of using the substance.

(b) Mandatory minimum sentence.--A person convicted under subsection (a) shall be sentenced to a mandatory minimum term of imprisonment of five years and a fine of [455 Pa.Super. 190] $15,000, or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity.

(c) Proof of sentencing.--Provisions of this section shall not be an element of the crime. Notice of the applicability of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided

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after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider evidence presented at trial, shall afford the Commonwealth and the defendant an opportunity to present necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.

(d) Mandatory sentencing.--There shall be no which this section is applicable a lesser sentence than provided for herein or to place the offender on probation, parole, work release or prerelease or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than provided herein. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided herein. Disposition under section 17 or 18 of The Controlled Substance, Drug, Device and Cosmetic Act2 shall not be available to a defendant to which this section applies.

(e) Appellate review.--If a sentencing court refuses to apply this section where applicable, the Commonwealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentence and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the sentence was imposed in violation of this section.

(f) Forfeiture.--Assets against which forfeiture has been filed and is pending or against which the Commonwealth has indicated an intention to file a forfeiture petition shall not be subject to a fine. Nothing in this section shall prevent a fine from being imposed on assets which have been subject to an unsuccessful forfeiture petition.12

[455 Pa.Super. 191] 18 Pa.C.S.A. § 2506.

We are called upon to interpret, for the first time, the meaning of this statutory provision. 1 In doing so, it is necessary for us to employ the provisions of the Statutory Construction Act, 1 Pa.C.S.A. § 1901 et seq. Commonwealth v. Henderson, 444 Pa.Super. 170, 177-79, 663 A.2d 728, 732 (1995) (en banc ). "In construing a statute to determine its meaning, courts must first determine whether the issue may be resolved by reference to the express language of the statute, which is to be read according to the plain meaning of the words." Commonwealth v. Lopez, 444 Pa.Super. 206, 210, 663 A.2d 746, 748 (1995) (citing 1 Pa.C.S.A. § 1903(a)). A presumption exists that in drafting a statute, the General Assembly intended the entire statute to be effective. Id. Consequently, when interpreting one subsection of a statute, courts must read that subsection not by itself, but with reference to, and in light of, the other subsections. Id. See also Commonwealth v. Mayhue, 536 Pa. 271, 639 A.2d 421 (1994). Reading the statute at issue in the case sub judice consistent with these guidelines, it is evident that it is unclear and ambiguous.

The plain language of subsection (a) of 18 Pa.C.S.A. § 2506 appears to define the crime of third-degree murder in the context of certain violations of the Controlled Substance, Drug, Device and Cosmetic Act. This reading is corroborated by subsection (b) which refers to a "convict[ion] under subsection (a)" and thereafter imposes a mandatory minimum sentence for such. Confusion occurs, however, when attempting to reconcile subsection (c) with these earlier subsections. The initial inconsistency arises with the language contained in the first sentence of subsection (c) which states that the "[p]rovisions[455 Pa.Super. 192] of this section shall not be an element of the crime." 2 It is a fundamental notion of our law that any statute that defines a substantive crime must inform an individual as to what behavior is prohibited and, therefore, set forth the elements constituting such proscribed conduct. Commonwealth v. Westcott,

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362 Pa.Super. 176, 523 A.2d 1140 (1987), alloc. denied, 516 Pa. 640, 533 A.2d 712 (1987). Further inconsistencies are presented by the remainder of subsection (c). Specifically, subsection (c) states that "reasonable notice of the Commonwealth's intention to proceed under [section 2506] shall be provided after conviction and before sentencing" and "[t]he applicability of [section 2506] shall be determined at sentencing ... by a preponderance of the evidence." The applicability of a section under which an individual is charged with a substantive crime must be determined prior to prosecution for violation of such. Westcott, supra. If section 2506 did indeed define a new crime under which prosecution was appropriate, it would not be necessary to determine the applicability...

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