Commonwealth v. Peck

• Decision Date: 08 January 2019
• Docket Number: No. 226 MDA 2018,226 MDA 2018
• Citation: 202 A.3d 739
• Parties: COMMONWEALTH of Pennsylvania v. Mitchell Gregory PECK, Jr., Appellant
• Court: Pennsylvania Superior Court

202 A.3d 739

COMMONWEALTH of Pennsylvania

v.Mitchell Gregory PECK, Jr., Appellant

No. 226 MDA 2018

Superior Court of Pennsylvania.

Argued August 15, 2018

Filed January 08, 2019

Reargument Denied March 13, 2019

Brian McNeil, Public Defender, York, for appellant.

James E. Zamkotowicz, Assistant District Attorney, York, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

OPINION BY NICHOLS, J.:

Appellant Mitchell Gregory Peck, Jr. appeals from the judgment of sentence of twenty to forty years' imprisonment imposed after a jury found him guilty of drug delivery resulting in death.¹ Appellant contends that there was insufficient evidence to sustain his conviction under Section 2506 because the subject delivery occurred in Maryland. Appellant also challenges the discretionary aspects of the sentence. We affirm.

The facts relevant to this appeal are not in dispute. Kevin Hunt (Decedent) lived with his father, James Hunt (Mr. Hunt), in Fawn Grove, York County. Mr. Hunt last saw Decedent alive at around 9:30 p.m. on December 9, 2014, when Mr. Hunt returned home, spoke briefly with Decedent in the kitchen, and then went to bed.

Based on a series of text messages between Decedent and Appellant,² it was determined that Decedent and Appellant met later that same evening, at some time after 11:00 p.m. Appellant sent Decedent directions indicating that Appellant and Decedent met at a High's convenience store in Maryland, approximately ten miles south of the Pennsylvania border. At the meeting in Maryland, Appellant sold Decedent heroin. Following the sale, Appellant and Decedent continued to exchange text messages. Decedent expressed concern that the heroin looked like a "rock." Appellant boasted that the heroin was "off the brick, purest of pure" and told Decedent to "try it." Further messages between 11:36 p.m. to 11:47 p.m. indicated that Decedent tried the heroin, complimented Appellant, and thanked Appellant for the delivery.

On the following morning, December 10, 2014, Mr. Hunt left for work at 6:45 a.m., but did not see Decedent. Mr. Hunt returned home from work on December 10, 2014, at 6:30 p.m. Mr. Hunt checked on Decedent, but Decedent's bedroom was locked. Mr. Hunt unlocked the door, entered the room, and discovered Decedent hunched over on the floor. Mr. Hunt shook Decedent, but Decedent fell over. Decedent's body was stiff and his face was blue and had blood on it. Mr. Hunt called a neighbor who, in turn, called 911.

Pennsylvania State Police Trooper Thomas Grothey responded and found a "rock" of heroin on Decedent's nightstand and Decedent's cell phone on the floor of Decedent's bedroom. Trooper Grothey read the text messages between Decedent and Appellant from Decedent's phone.

A criminal complaint was filed against Appellant on September 6, 2016. The Commonwealth filed an information charging Appellant with delivery of heroin (Count 1) and drug delivery resulting in death (Count 2) on February 9, 2017.

On July 7, 2017, Appellant filed a motion to dismiss Count 1. Specifically, Appellant asserted that the trial court did not have subject matter jurisdiction over "a matter that allegedly took place" in Maryland. Mot. to Dismiss Count 1, 7/7/17, ¶ 4. Appellant conceded that neither "[t]he location of the alleged delivery, nor the dismissal of Count 1 of the Information will have any effect upon Count 2 of the Information." Id. at ¶ 6.

On July 17, 2017, the trial court entered an order dismissing Count 1 without prejudice.³ Immediately thereafter, Appellant proceeded to a jury trial on Count 2 for drug delivery resulting in death. On July 19, 2017, the jury found Appellant guilty.

On September 1, 2017, the trial court sentenced Appellant to a statutory maximum sentence of twenty to forty years' imprisonment. Appellant timely filed post-sentence motions requesting, in relevant part, the dismissal of the conviction or a resentencing hearing. The trial court denied Appellant's post-sentence motions on January 26, 2018.

Appellant timely appealed and complied with the trial court's order to submit a Pa.R.A.P. 1925(b) statement. This appeal followed.

Appellant presents the following issues for review:

[1.] Whether the evidence was insufficient to sustain [Appellant's] conviction for drug delivery resulting in death where the charge was premised on a delivery occurring in Maryland, and thus did not satisfy the element that the delivery was in violation of Pennsylvania's Controlled Substance, Drug, Device, and Cosmetic Act.

[2.] Whether the trial court erred in imposing the statutory maximum sentence based principally on factors inherent in the offense of drug delivery resulting in death: the sale of drugs and the death of the victim.

Appellant's Brief at 4.

Appellant first raises a challenge to the sufficiency of the evidence. Appellant claims that a violation of Pennsylvania's Controlled Substance, Drug, Device, and Cosmetic Act (CSDDCA) is a necessary element of drug delivery resulting in death. Id. at 14. Appellant continues that "the only delivery here, however, occurred in Maryland" and suggests that he could not be convicted for that delivery under Pennsylvania's CSDDCA. Id. Appellant therefore asserts that his conviction for drug delivery resulting in death must also fail as a matter of law. Id.

Notably, Appellant goes to some length to distinguish his sufficiency claim from a jurisdictional analysis under 18 Pa.C.S. § 102, which defines the territorial applicability of Pennsylvania's Crimes Code. Id. at 15-16. Appellant asserts that an analysis of Section 102"conflate[es] jurisdiction" with his argument based on "proof of an essential element of the offense." Id. at 16.

The Commonwealth responds that under Section 102, the trial court properly exercised jurisdiction based on Decedent's death in Pennsylvania. Commonwealth's Brief at 21. The Commonwealth suggests that under Section 102(a)(1), the fact that Decedent died in Pennsylvania made the location of the delivery irrelevant to Appellant's liability under Section 2506 in Pennsylvania. See id. The Commonwealth summarizes its position as follows: "[Appellant] sold heroin to [Decedent] and [Decedent] died in Pennsylvania as a result of using that heroin, Pennsylvania properly exercised subject matter jurisdiction over [Appellant] and [Appellant] was criminally liable for [Decedent]'s death." Id.

A challenge to the sufficiency of the evidence requires this Court to determine "whether the evidence admitted at trial, and all the reasonable inferences derived therefrom viewed in favor of the Commonwealth as verdict winner, supports the jury's finding of all the elements of the offense beyond a reasonable doubt." Commonwealth v. Packer , 641 Pa. 391, 168 A.3d 161, 163 n.3 (2017) (citation and quotation marks omitted).

The provision criminalizing a drug delivery resulting in death is set forth under Chapter 25 of the Crimes Code, which relates to homicide.⁴ Section 2506 states, in relevant part:

(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.

18 Pa.C.S. § 2506. Section 2506"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."⁵ Commonwealth v. Kakhankham , 132 A.3d 986, 991-92 (Pa. Super. 2015) (citation and footnote omitted).

The territorial applicability of Pennsylvania Crimes Code is defined in Section 102, which states, in relevant part:

(a) General rule.— Except as otherwise provided in this section, a person may be convicted under the law of this Commonwealth of an offense committed by his own conduct or the conduct of another for which he is legally accountable if either:

(1) the conduct which is an element of the offense or the result which is such an element occurs within this Commonwealth[.]

* * *

(c) Homicide.— When the offense is homicide or homicide of an unborn child, either the death of the victim, including an unborn child, or the bodily impact causing death constitutes a "result" within the meaning of paragraph (a)(1) of this section, and if the body of a homicide victim, including an unborn child, is found within this Commonwealth, it is presumed that such result occurred within this Commonwealth.

18 Pa.C.S. § 102(a)(1), (c).

Instantly, Appellant has not demonstrated that the elements of Section 2506 preclude a conviction for drug delivery resulting in death where the drug delivery occurred outside of Pennsylvania. Section 102 clearly establishes that acts occurring outside of Pennsylvania may be subject to criminal prosecution in Pennsylvania, particularly when a death occurs within Pennsylvania. See 18 Pa.C.S. § 102(c). Contrary to Appellant's assertion, an analysis of Section 102 is critical to determine whether (1) the trial court properly exercised subject matter jurisdiction to convict him of an offense under Section 2506, see Commonwealth v. Seiders , 11 A.3d 495, 496-97 (Pa. Super. 2010), and (2) the evidence presented was sufficient to sustain the conviction based on Decedent's death in Pennsylvania.

Here, the Commonwealth presented evidence that (1) although the conduct, i.e. , the delivery, occurred in Maryland, it was in violation of Pennsylvania's CSDDCA, (2) a death resulted from the delivery, and (3) Appellant acted recklessly when causing Decedent's death. See Storey , 167 A.3d at 757. Therefore, even if the trial court lacked jurisdiction to convict Appellant of the delivery under Section 102, the Commonwealth still...