Com. v. Costa

• Decision Date: 01 November 2004
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Anthony COSTA, Appellant.
• Court: Pennsylvania Superior Court

861 A.2d 358

COMMONWEALTH of Pennsylvania, Appellee v. Anthony COSTA, Appellant.

Superior Court of Pennsylvania.

Submitted February 2, 2004.

Filed November 1, 2004.

Michael P. Clarke, Trivosi, for appellant.

Diane E. Gibbons and Jennifer A. Buck, Asst. Dist. Attys., Doylestown, for Com., appellee.

Before: TODD, GANTMAN and TAMILIA, JJ.

GANTMAN, J.:

¶ 1 Appellant, Anthony Costa, appeals from the judgment of sentence imposed by the Bucks County Court of Common Pleas, following his bench convictions for drug delivery resulting in death (third-degree murder),¹ corruption of minors,² abuse of corpse,³ criminal conspiracy,⁴ and other related offenses. Specifically, Appellant asks us to determine whether the statute defining the crime of drug delivery resulting in death as third-degree murder is unconstitutionally vague as written because it does not specify a precise mens rea required for culpability. We hold Appellant's facial challenge to Section 2506 must fail because the statute provides a mens rea with sufficient certainty. Accordingly, we affirm the judgment of sentence.

¶ 2 The relevant facts and procedural history of this appeal are as follows:

On December 30, 2001 at approximately 2:43 p.m., Philadelphia police officers responded to a radio call at North Orkney Street in their jurisdiction. Upon arrival, the officers discovered the fully clothed body of a white female minor in the back seat of a blue 1990 Mercury Sable. The female, [sixteen-year-old] K.B., was pronounced dead by a paramedic. A white powder substance was found around K.B.'s nose, on her neck and on her sweater collar.

An autopsy was performed the following day that determined that the cause of death was "adverse effects of drugs." The parties stipulated to the following facts. On December 28, [2001], K.B.'s cousin contacted [Appellant] and informed him that she knew someone who would trade sex for drugs. As a result, [Appellant] met K.B. at a motel in Bensalem Township, Bucks County. After [Appellant] handed K.B. ten bags of heroin, she went into the bathroom. She emerged from the bathroom naked and joined [Appellant] on the bed where he initiated sexual contact with her. Shortly thereafter, [Appellant] realized that K.B. was unresponsive and not breathing. He attempted to revive her by administering C.P.R., but failed in his efforts. [Appellant] then telephoned K.B.'s cousin and explained what had occurred. K.B.'s cousin assisted him in clothing the deceased and cleaning the room. K.B.'s cousin placed some heroin on K.B.'s nose. Both [Appellant] and K.B.'s cousin then placed the body in the back seat of K.B.'s car and drove to Philadelphia. Upon arrival, [Appellant] dropped K.B.'s cousin off near her home, parked the car in the Kensington section of Philadelphia, and left.

(Trial Court Opinion, dated September 16, 2003, at 2). Following a bench trial on July 7, 2003, Appellant was convicted of drug delivery resulting in death, and other related offenses. The court sentenced Appellant to seven to fourteen years' imprisonment. This timely appeal followed.

¶ 3 Appellant raises the following issues for our review:

WHETHER 18 PA.C.S.A. § 2506 IS UNCONSTITUTIONALLY VAGUE AND THEREFORE VIOLATES THE

DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 9, OF THE PENNSYLVANIA CONSTITUTION.

WHETHER 18 PA.C.S.A. § 2506 VIOLATES THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 9, OF THE PENNSYLVANIA CONSTITUTION AS IT IS VOID FOR VAGUENESS DUE TO THE FACT THAT IT FAILS TO GIVE A PERSON OF ORDINARY INTELLIGENCE FAIR NOTICE THAT HIS CONTEMPLATED CONDUCT IS FORBIDDEN BY STATUTE OR THAT [IT] IS SO INDEFINITE THAT IT ENCOURAGES ARBITRARY AND ERRATIC ARRESTS.

(Appellant's Brief at 7).⁵

¶ 4 The constitutionality of a statute is a question of law; therefore, the scope of appellate review is plenary. Commonwealth v. Moss, 852 A.2d 374 (Pa.Super.2004). "The constitutional validity of duly enacted legislation is presumed. The party seeking to overcome the presumption of validity must meet a formidable burden." Commonwealth v. Haughwout, 837 A.2d 480, 487 (Pa.Super.2003) (citing Commonwealth v. Means, 565 Pa. 309, 773 A.2d 143 (2001)). "A statute will not be declared unconstitutional unless it clearly, palpably, and plainly violates the Constitution; all doubts are to be resolved in favor of a finding of constitutionality." Commonwealth v. Mayfield, 574 Pa. 460, 466, 832 A.2d 418, 421 (2003) (internal citations and quotation marks omitted).

¶ 5 We address Appellant's two issues together for purposes of disposition. Appellant contends police officers, prosecutors, judges, and juries could interpret Section 2506 as a strict liability offense or as a crime requiring proof of a mens rea, specifically malice. Appellant asserts Section 2506 is defective because it does not specify a precise mens rea required for culpability. Appellant also submits the statute, "as written," invites the Commonwealth to arbitrarily enforce Section 2506 "on an ad hoc and subjective basis." (Appellant's Brief at 12) (emphasis added). Appellant concludes Section 2506 is unconstitutionally vague on its face and asks this Court to overturn his conviction. We cannot agree.

¶ 6 "The void for vagueness doctrine, as extensively developed by the United States Supreme Court, is a due process doctrine incorporating notions of fair notice and warning." Commonwealth v. Potts, 314 Pa.Super. 256, 460 A.2d 1127, 1133 (1983). When an appellant raises a void for vagueness challenge to a statute:

The terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties.... A statute which either forbids or requires the doing of an act in terms so vague that [people] of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. The void for vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Due process is satisfied if the statute provides reasonable standards by which a person may gauge his future conduct.

Mayfield, supra at 467, 832 A.2d at 422 (internal citations and quotation marks omitted).⁶

¶ 7 An appellant may claim a statute is vague on its face and/or vague in its application to the facts of a particular case. See generally Commonwealth v. Bershad, 693 A.2d 1303 (Pa.Super.1997). A statute is unconstitutionally vague on its face if it fails to describe the proscribed conduct with sufficient certainty. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362, 369 (1982) (footnote omitted).

In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications. [An Appellant] who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A court should therefore examine the complainant's conduct before analyzing other hypothetical applications of the law

Id. (footnotes omitted) (emphasis added). "A `facial' challenge, in this context, means a claim that the law is `invalid in toto — and therefore incapable of any valid application.'" Id. n. 5.

¶ 8 In cases that do not implicate First Amendment freedoms, facial vagueness challenges may be rejected where an appellant's conduct is clearly prohibited by the statute in question. See Mayfield, supra at 467-68, 832 A.2d at 422; Commonwealth v. Cook, 468 Pa. 249, 253, 361 A.2d 274, 276-77 (1976); Commonwealth v. Hughes, 468 Pa. 502, 508, 364 A.2d 306, 309 (1976). Additionally, a vagueness challenge fails if a statute has a specific intent requirement, because an appellant cannot complain he did not understand the crime where he has been found to have had the specific intent of doing what is prohibited. Commonwealth v. Hendrickson, 555 Pa. 277, 284, 724 A.2d 315, 319 (1999).

¶ 9 Section 2506 states in pertinent part:

§ 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, 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 minimum sentence of at least five years of total confinement and a fine of $15,000, or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity, notwithstanding any other provision of this title or other statute to the contrary.

(c) Deleted.

18 Pa.C.S.A. § 2506 (footnote omitted) (emphasis added). Subsection (a) references the crime of third degree murder, which is defined under Pennsylvania's Criminal Code as any killing with malice that is not first or second degree murder. Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa.Super.2001), appeal denied, 569 Pa. 716, 806 A.2d 858 (2002). Further, malice consists of:

[A] wickedness of disposition, hardness of heart, cruelty,

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