Commonwealth v. Kakhankham

• Decision Date: 28 October 2015
• Docket Number: No. 712 MDA 2014,712 MDA 2014
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Somwang Laos KAKHANKHAM, Appellant.
• Court: Pennsylvania Superior Court

132 A.3d 986

COMMONWEALTH of Pennsylvania, Appellee

v.Somwang Laos KAKHANKHAM, Appellant.

No. 712 MDA 2014

Superior Court of Pennsylvania.

Submitted Jan. 28, 2015.

Filed Oct. 28, 2015.

Gregory B. Abein, Carlisle, for appellant.

Matthew P. Smith, Assistant District Attorney, Carlisle, for Commonwealth, appellee.

BEFORE: MUNDY, STABILE, and FITZGERALD,^* JJ.

OPINION BY STABILE

, J.:

Appellant, Somwang Laos Kakhankham, appeals from the judgment of sentence entered April 1, 2014 in the Court of Common Pleas of Cumberland County. For the reasons stated below, we affirm.

The trial court summarized the relevant factual background as follows:

On February 6, 2012, [victim] was found deceased in his home at 328 West Penn Street in the borough of Carlisle. A search of [victim]'s home resulted in the discovery of a syringe, two (2) empty bags, stamped with the name Blackout, in addition to six (6) bags of heroin, also stamped with the name Blackout. A witness[, JL,] told police officers that [Appellant] entered [victim]'s home at approximately 1 A.M. the day [victim] was found. [Appellant] told a second witness that [Appellant] had provided the heroin to [victim].^{[1 ]} This same witness, identified as DS, also purchased $100 worth of heroin from [Appellant,] which was stamped with the name Blackout. The next day, DS met with police officers to conduct a controlled purchase of heroin from [Appellant], during which DS purchased two (2) bags of Blackout-stamped heroin using $40 of official funds. On February 8, 2012, a probation check of [Appellant]'s residence found two (2) bags of heroin stamped with the name Blackout as well as $656 in cash which contained the $40 in official funds from the prior day's controlled purchase. On February 16, 2012, a third witness told police [that he, the witness] had purchased heroin with the stamp Blackout from [Appellant]. [Another witness, witness number four,] additionally told the police that [Appellant] told them he provided the heroin to [victim].^{[2 ,3 ]} Finally, a Cumberland County Coroner's report dated October 4, 2012 stated that the level of morphine

in [victim]'s bloodstream was 295 nanograms per millimeter. Heroin metabolizes into morphine upon being absorbed by the body. The therapeutic level for morphine is ten (10) nanograms per millimeter. The level of metabolized heroin was the cause of [victim]'s death.

Trial Court Opinion, 8/4/14, 1–3 (citation to stipulated record omitted).

As a result, Appellant was charged with drug delivery resulting in death, 18 Pa.C.S.A. § 2506

, and possession of a controlled substance with intent to deliver, 35 P.S. § 780–113(a)(30). Following a preliminary hearing, Appellant filed a petition for writ of habeas corpus alleging that the Commonwealth "failed to present sufficient evidence to establish a prima facie case of the elements of [18 Pa.C.S.A. § 2506,]" requiring dismissal of the charges. Petition for Writ of Habeas Corpus, 8/28/14, at 1. After a hearing, the court denied the petition. See Order of Court, 12/18/13.

Following a trial,⁴ Appellant was found guilty of drug delivery resulting in death. 18 Pa.C.S.A. § 2506

. The trial court sentenced Appellant, inter alia, to 78 months to 156 months' imprisonment. This appeal followed.

Appellant raises the following issues for our review:

1. Did the [h]abeas and [t]rial courts err in finding Pennsylvania's [d]rug [d]elivery [r]esulting in [d]eath [s]tatute (18 Pa.C.S.A. § 2506

) not

unconstitutionally vague when (1) the statute fails to clearly indicate the requisite mens rea for conviction, and (2) the statute fails to clearly indicate the requisite level of causation for the result-of-conduct element, and the vagueness of the statute will result in arbitrary and discriminatory enforcement of the law?

2. Did the [h]abeas and [t]rial courts err in finding the Commonwealth established a prima facie case when the Commonwealth did not present any evidence related to [Appellant]'s culpability regarding the result-of-conduct element of Pennsylvania's [d]rug [d]elivery [r]esulting in [d]eath [s]tatute (18 Pa.C.S.A. § 2506

)?

Appellant's Brief at 4.

In his brief, Appellant essentially asks us to "measure the challenged statutory proscription, not against the specific conduct involved in this case, but against hypothetical conduct that the statutory language could arguably embrace." Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244, 245 (1976)

. However, "[i]t is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." Id. (quotation omitted). "Therefore, we will address the alleged vagueness of § [2506] as it applies to this case." Commonwealth v. Mayfield, 574 Pa. 460, 832 A.2d 418, 422 (2003).

We review Appellant's claims under the following standard:

Analysis of the constitutionality of a statute, and whether the Commonwealth met its prima facie case under Section 2506

, are both questions of law, therefore, our standard of review is de novo. Commonwealth v. MacPherson, 561 Pa. 571, 752 A.2d 384, 388 (2000) ; Pa.R.A.P. 2111(a)(2). Our scope of review, to the extent necessary to resolve the legal questions before us, is plenary, i.e., we may consider the entire record before us. Buffalo Township v. Jones, 571 Pa. 637, 813 A.2d 659, 664 n. 4 (2002) ; Pa.R.A.P. 2111(a)(2).

Commonwealth v. Ludwig, 583 Pa. 6, 874 A.2d 623, 628 n. 5 (2005)

.

In reviewing challenges to the constitutionality of a statute, and in particular whether a statute is unconstitutionally vague,

[we presume the statute] to be constitutional and will only be invalidated as unconstitutional if it "clearly, palpably, and plainly violates constitutional rights." [MacPherson, 752 A.2d at 388

] (citation omitted). Related thereto, courts have the duty to avoid constitutional difficulties, if possible, by construing statutes in a constitutional manner. Harrington v. Dept. of Transportation, Bureau of Driver Licensing, 563 Pa. 565, 763 A.2d 386, 393 (2000) ; see also 1 Pa.C.S. § 1922(3) (setting forth the presumption that the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth). Consequently, the party challenging a statute's constitutionality bears a heavy burden of persuasion. MacPherson, 752 A.2d at 388.

Turning to the constitutional challenge raised in this appeal, as a general proposition, statutory limitations on our individual freedoms are reviewed by courts for substantive authority and content, in addition to definiteness or adequacy of expression. See, Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). A statute may be deemed to be unconstitutionally vague if it fails in its definiteness or adequacy of

statutory expression. This void-for-vagueness doctrine, as it is known, implicates due process notions that a statute must provide reasonable standards by which a person may gauge his future conduct, i.e., notice and warning. Smith v. Goguen, 415 U.S. 566, 572, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974)

; [Heinbaugh, 354 A.2d at 246 ].

Specifically with respect to a penal statute, our Court and the United States Supreme Court have found that to withstand constitutional scrutiny based upon a challenge of vagueness a statute must satisfy two requirements. A criminal statute must "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." Kolender, 461 U.S. at 358, 103 S.Ct. 1855 ; [Mayfield, 832 A.2d at 422 ]; Commonwealth v. Mikulan, 504 Pa. 244, 470 A.2d 1339, 1342 (1983) ; see also Heinbaugh, 354 A.2d at 246 ; see generally Goldsmith, THE VOID–FOR–VAGUENESS DOCTRINE IN THE SUPREME COURT, REVISITED, 30 Am. J.Crim. L. 279 (2003).

In considering these requirements, both High Courts have looked to certain factors to discern whether a certain statute is impermissibly vague. For the most part, the Courts have looked at the statutory language itself, and have interpreted that language, to resolve the question of vagueness. See Kolender, 461 U.S. at 358, 103 S.Ct. 1855 ; Mayfield, 832 A.2d at 422 ; Commonwealth v. Cotto, 562 Pa. 32, 753 A.2d 217, 220 (2000). In doing so, however, our Court has cautioned that a statute "is not to be tested against paradigms of legislative draftsmanship," Heinbaugh, 354 A.2d at 246, and thus, will not be declared unconstitutionally vague simply because the Legislature could have "chosen ‘clear and more precise language’...." Id. (citation omitted). The Courts have also looked to the legislative history and the purpose in enacting a statute in attempting to discern the constitutionality of the statute. See United States Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 570–575, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973) ; Cotto, 753 A.2d at 221. Consistent with our prior decisions, as well as United States Supreme Court case law, we will first consider the statutory language employed by the General Assembly in determining whether Section 2506 is unconstitutionally vague.

Ludwig, 874 A.2d at 628–29

(footnote omitted).

The statute challenged here, Section 2506

, reads 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 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) Penalty. —A person convicted under subsection (a) shall be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years.

18 Pa.C.S.A. § 2506

(2011).

The crime described above consists of two principal elements:⁵ (i) [i]ntentionally administering, dispensing,...