Com. v. Busbey, J. ( 2020 )

J-A30036-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JENNIFER BUSBEY :
:
Appellant : No. 186 MDA 2019
Appeal from the Judgment of Sentence Entered July 24, 2018
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0003011-2017
BEFORE: DUBOW, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED FEBRUARY 21, 2020
Appellant, Jennifer Busbey, appeals from the judgment of sentence
following her jury trial convictions of murder of the third degree, drug delivery
resulting in death, delivery of a controlled substance, conspiracy to commit
murder of the third degree, conspiracy to commit drug delivery resulting in
death, and conspiracy to commit delivery of a controlled substance. 1 We
affirm.
Appellant’s convictions relate to the heroin overdose death of Aaron
Lawrence (“the victim”) during the early morning hours of July 20, 2010. An
arrest warrant was issued for Appellant on April 11, 2017, and her trial took
place between May 14 and May 18, 2018.
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* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S. §§ 2502(c) and 2506(a), 35 P.S. § 780-113(a)(30), and 18
Pa.C.S. § 903(a)(1), respectively.
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Evidence presented by the Commonwealth at trial demonstrated that
Appellant, the victim, and Justin Wentz, Appellant’s boyfriend, were each
experienced heroin users. N.T., 5/15/18, at 130, 197, 358; N.T., 5/17/18, at
919, 994, 1013. The victim, however, had been released from prison
approximately ten days before his death and he had not developed a tolerance
to heroin since his release – in other words, he was “narcotics-naive.” N.T.,
5/15/18, at 130; N.T., 5/16/18, at 499-501. Appellant and Wentz were aware
that the victim had recently been released from prison and had a low
tolerance. N.T, 5/17/18, at 717, 735, 784-85, 919. On July 19, 2010,
Appellant, the victim, and Wentz collected money in order to go to Baltimore
to purchase heroin. N.T., 5/15/18, at 360-64; N.T., 5/17/18, at 770, 904,
912, 990-91. The victim remained at Wentz’s house in Hanover,
Pennsylvania, while Appellant drove Wentz to Baltimore, Maryland. N.T.,
5/17/18, at 714-15, 760, 772, 906-08, 991-92. In Baltimore, Wentz
purchased three grams of heroin, which Appellant and Wentz understood to
be of high quality. Id. at 770-72, 785, 916.
Upon returning to Wentz’s residence in Hanover in the late evening of
July 19th, Wentz divided up the heroin, and Appellant, the victim, and Wentz
each used heroin intravenously. Id. at 714-18, 777, 913, 993. According to
Commonwealth witness Kande Lambertson, Appellant told her during a 2012
conversation that the victim prepared his own dosage, and Appellant injected
him, while Wentz injected Appellant and himself. Id. at 718, 740-41.
Appellant told Lambertson that she watched as the victim “went into
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convulsions, and his lips had started turning blue.” Id. at 716. Appellant
further stated that she “wanted to distance herself from the whole issue” and
“did not want to be involved” so she left Wentz’s house late in the evening on
July 19th taking the remainder of the heroin with her. Id. According to
Wentz, after the victim began to exhibit signs of an overdose, he instructed
Appellant to leave with all of the remaining heroin they had purchased and
“get rid of it.” Id. at 919-20, 946-47. Appellant told Lambertson that she
and Wentz discussed calling 911 before she left the house but they decided
not to call. Id. at 718-19, 743.
After Appellant left Wentz’s house, she met several individuals and sold
some of the heroin and then stashed the remainder behind a shed at her
mother’s house. Id. at 716-17, 779, 781-82. During the hours of 10:53 pm
on July 19th and 4:40 am on July 20th, Appellant and Wentz called each other
more than 12 times. Id. at 812-16. After Appellant’s departure, Wentz placed
four telephone calls to the victim’s phone and texted the victim asking where
he was and whether he was in jail in an effort to “separate [him]self” from the
victim and make it appear that they were not together. Id. at 814-15, 956-
57. Wentz also spoke with another friend twice during this period and
expressed concern that the victim was non-responsive; the friend advised
Wentz to call an ambulance, but Wentz ignored this advice. N.T., 5/15/18, at
367-73. Finally, at 4:42 am on July 20th, Wentz called 911 and reported that
an individual at his house had stopped breathing. N.T., 5/15/18, at 167;
Commonwealth Ex. 13. When emergency personnel arrived, the victim was
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not breathing, had no pulse, and was cool to the touch. N.T., 5/15/18, at
173, 210. The victim was administered the opioid overdose drug Narcan, with
no effect. Id. at 220
Appellant arrived back at Wentz’s house shortly after the emergency
personnel. N.T., 5/15/18, at 182. Appellant told Lambertson that when she
returned to Wentz’s house, “[s]he acted like she had just gotten there, that
she had never been there before.” N.T., 5/17/18, at 719. According to Officer
Clint Miles of the Hanover Borough Police Department, who had responded to
the scene, Appellant acted defensively and coldly when informed that the
victim had died. N.T., 5/15/18, at 183. Appellant told officers that she had
last seen the victim at 7 pm the prior evening and stated that she was not
aware that the victim had been using drugs. Id. at 185. The only drugs or
drug paraphernalia found at Wentz’s house were heroin and cocaine residue
in baggies inside of a pink and black purse; Appellant admitted that the purse
was hers but denied knowledge of the baggies inside. Id. at 174-75, 179-80,
183, 223-24, 240.
The Commonwealth presented the testimony of three medical witnesses
at trial. Deputy Coroner Claude Stabley, an expert in determining cause and
manner of death, testified that the cause of the victim’s death was heroin
toxicity; he based his opinion on the toxicology report, lack of physical trauma
to the victim’s body, puncture marks in the victim’s right arm near his elbow,
drugs found at the scene, and the lack of evidence of any other cause. N.T.,
5/15/18, at 253, 258-70. Dr. George Behonick, an expert in forensic
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toxicology, testified that the presence of 26.4 nanograms per milliliter of
morphine in the victim’s blood and 461 nanograms per milliliter of 6-
acetylmorphine, a metabolite of heroin, in his urine indicated that the victim
had used heroin prior to his death, but he had a long period of survival
following the ingestion of the drug. N.T., 5/16/18, at 434, 447-53. Finally,
Dr. Wayne Ross, an expert in forensic pathology, testified that the cause of
the victim’s death was acute morphine toxicity with the source being the
ingestion of heroin. Id. at 495, 510-12, 518, 581. According to Dr. Ross, the
mechanism of death was respiratory depression as the victim’s brain
eventually stopped informing his lungs to blow out carbon dioxide allowing
acidity to build up in his body. Id. at 508-09, 515-17. Dr. Ross stated that
he had reviewed all of the victim’s medical records and determined no other
potential cause of death. Id. at 497-98, 502-05.
At the conclusion of trial, the trial court instructed the jury that Appellant
could be found guilty of murder in the third degree, drug delivery resulting in
death, and delivery of a controlled substance as a principal or as an
accomplice. N.T., 5/18/18, at 1145-47. The jury found Appellant guilty of all
charges on May 18, 2018. On July 24, 2018, the trial court imposed an
aggregate sentence of 10 to 20 years of incarceration. Appellant filed a timely
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post-sentence motion, which the trial court denied in a memorandum order
filed on December 31, 2018. Appellant then filed a timely notice of appeal. 2
Appellant raises the following issues on appeal:
I. Did the Trial Court err in ruling that the evidence was sufficient
to support the verdicts for Third Degree Murder, Drug Delivery
Resulting in Death, PWID/Delivery, as well as Conspiracy to
Commit Those Offenses?
II. Did the Trial Court err in ruling that the verdicts were not
against the weight of the evidence?
III. Did the Trial Court err in permitting Deputy Coroner Stabley
to testify regarding toxicology issues where no notice of said
testimony was provided to defense, he was not qualified as an
expert in toxicology, and said testimony exceeded the scope of his
expertise?
IV. Whether the Trial Court erred in precluding defense expert
testimony or cross-examination of Commonwealth witnesses
regarding prior suicide attempts by the victim, which were
documented in stipulated medical records, as evidence of his state
of mind at the time of his overdose?
V. Whether the Trial Court erred in instructing the jury it was
allowed to infer malice based on [Appellant’s] failure to render aid
to the victim where no such legal duty existed?
VI. Whether the Trial Court erred in permitting the Commonwealth
to introduce bad acts evidence where no notice was provided, no
exception to the prohibition existed, the prejudicial value of said
testimony far outweighed its probative value, and no limiting
instruction was sufficient to cure such prejudice?
Appellant’s Brief at 6 (suggested answers omitted).
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2 Appellant filed her Pa.R.A.P. 1925(b) statement on February 20, 2019, and
the trial court issued a Pa.R.A.P. 1925(a) statement in lieu of opinion on
February 26, 2019 relying on its reasons stated in its memorandum order
denying Appellant’s post-sentence motion.
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Sufficiency of the Evidence
In her first issue, Appellant argues that the Commonwealth did not
present sufficient evidence regarding (1) the malice element of the murder of
the third degree and drug delivery resulting in death charges; (2) that
Appellant caused the victim’s death as required to prove that she committed
murder of the third degree and drug delivery resulting in death; (3) the
delivery element of the drug delivery resulting in death and delivery of a
controlled substance charges; and (4) that she entered into an agreement
with Wentz or the victim as required to prove that she committed the three
conspiracy offenses.
Before reaching the merits of this issue, we must address the
Commonwealth’s argument that Appellant’s sufficiency argument was waived
because she did not identify the specific elements that she was challenging in
her concise statement of errors filed pursuant to Rule of Appellate Procedure
1925(b). This Court has repeatedly held that “[i]n order to preserve a
challenge to the sufficiency of the evidence on appeal, an appellant’s [Rule]
1925(b) statement must state with specificity the element or elements upon
which the appellant alleges that the evidence was insufficient.”
Commonwealth v. Ellison, 213 A.3d 312, 320-21 (Pa. Super. 2019)
(quoting Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa. Super. 2016));
see also Pa.R.A.P. 1925(b)(4)(ii) (“The Statement shall concisely identify
each error that the appellant intends to assert with sufficient detail to identify
the issue to be raised for the judge.”). “Such specificity is of particular
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importance in cases where, as here, [the appellant] was convicted of multiple
crimes each of which contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt.” Ellison, 213 A.3d at 321 (citation
omitted). Where the appellant’s Rule 1925(b) statement “does not specify
the allegedly unproven elements[,] . . . the sufficiency issue is waived [on
appeal].” Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015)
(quoting Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.
2008)); see also Ellison, 213 A.3d at 321.
In this matter, Appellant’s Rule 1925(b) statement included the
following sufficiency challenge: “Did the Trial Court err in ruling that the
evidence was sufficient to support the verdicts for Third Degree Murder, Drug
Delivery Resulting in Death, PWID/Delivery, as well as Conspiracy to Commit
Third Degree Murder, Drug Delivery Resulting in Death and PWID/Deliver?”
Rule 1925(b) Statement, ¶1. Appellant did not identify any of the elements
of the six offenses for which she was convicted that she sought to challenge
on appeal. Appellant previously did raise the specific sufficiency arguments
she argues in this appeal in her post-sentence motion, which the trial court
addressed in its opinion denying this motion; however, it is “of no moment to
our analysis” that Appellant previously addressed these issues to the trial
court because we apply Rule 1925(b) “in a predictable, uniform fashion” and
therefore we will find waiver where appropriate “despite the presence of a trial
court opinion” addressing the sufficiency claims. Tyack, 128 A.3d at 261
(citation omitted). Accordingly, because Appellant did not identify any of the
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specific elements as to which she claims the evidence was insufficient,
Appellant’s first appellate issue is waived. Ellison, 213 A.3d at 321; Tyack,
128 A.3d at 260.3
Even if Appellant had not waived her sufficiency of the evidence
arguments, we would find them to be without merit.
When reviewing the sufficiency of the evidence, we must
determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. As an appellate court, we may not re-weigh the
evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Hill, 210 A.3d 1104, 1112 (Pa. Super. 2019) (internal
citations, quotation marks, and brackets omitted).
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3 In Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007) (per curiam), our
Supreme Court held that waiver is not always required in cases where the
appellant’s Rule 1925(b) statement does not identify the elements as to which
the appellant contends the evidence was insufficient. Specifically, the court
held that waiver was inappropriate because the case on appeal involved a
“relatively straightforward drug case,” with an “evidentiary presentation
span[ning] a mere thirty pages of transcript,” and the trial court “readily
apprehended” the appellant’s sufficiency challenge. Id. at 1060. Here, by
contrast, Appellant was convicted of six different offenses, the trial took place
over five days with numerous witnesses, and the trial transcript spans more
than 1,000 pages. Therefore, we find the application of Laboy inapt in the
present case to excuse Appellant’s deficient Rule 1925(b) statement.
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Appellant first argues that the Commonwealth did not present sufficient
evidence to establish the malice aforethought element of the murder of the
third degree and drug delivery resulting in death charges. “Murder in the third
degree is an unlawful killing with malice but without the specific intent to kill.”
Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011). At the
time of the events at issue here, drug delivery resulting in death was defined
as a type of murder of the third degree and therefore the Commonwealth was
required to prove that the defendant acted with malice in causing the victim’s
death. See 18 Pa.C.S. § 2506(a) (prior version); Commonwealth v.
Ludwig, 874 A.2d 623, 631 (Pa. 2005).4
Our Supreme Court has defined malice as follows:
Malice is a legal term, implying much more [than ill-will, a spite,
or a grudge]. It comprehends not only a particular ill-will, but
every case where there is wickedness of disposition, hardness of
heart, cruelty, recklessness of consequences, and a mind
regardless of social duty, although a particular person may not be
intended to be injured. . . .
[M]alice is present under circumstances where a defendant did not
have an intent to kill, but nevertheless displayed a conscious
disregard for an unjustified and extremely high risk that his
actions might cause death or serious bodily harm.
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4 Section 2506 of the Crimes Code, which sets forth the offense of drug
delivery resulting in death, was amended in 2011 to define the offense as a
felony of the first degree rather than as a type of murder. Commonwealth
v. Peck, 202 A.3d 739, 744 n.5 (Pa. Super. 2019). “Therefore, under the
present version of Section 2506, the Commonwealth must demonstrate that
a defendant was at least ‘reckless’ as to the death caused by the use of an
illicitly delivered drug.” Id.
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Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017) (internal citations
and quotation marks omitted). Malice can be inferred from all of the
circumstances surrounding the defendant’s conduct, which must be such that
“one could reasonably anticipate death or serious bodily injury would likely
and logically result.” Commonwealth v. Akhmedov, 216 A.3d 307, 322
(Pa. Super. 2019).
The Commonwealth presented sufficient evidence to show that
Appellant acted with malice related to the victim’s death. The evidence
showed that Appellant was aware that the victim had just been released from
prison and was narcotics-naive and that the heroin Appellant and Wentz
purchased in Baltimore was of good quality. Upon returning to Pennsylvania,
Appellant injected the victim with the heroin and watched him as he began to
exhibit signs of an overdose when he began to convulse and his lips and his
lips turned blue. Though Appellant and Wentz discussed calling for medical
assistance while Appellant was still at Wentz’s residence, Appellant left Wentz
with the victim and sold or stashed the remainder of the heroin in an effort to
distance herself from the victim. Between 10:53 pm and 4:40 am, Appellant
and Wentz exchanged more than 12 telephone calls, yet Appellant did not call
for medical assistance. During this time, the victim suffered from a slow,
hours-long overdose death that could have been halted if medical personnel
had been called and the anti-overdose drug Narcan had been administered.
N.T., 5/16/18, at 517-18. Finally, upon Appellant’s return to Wentz’s house,
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she acted as if she had not been there the night before and expressed no
remorse.
Appellant’s actions in injecting the victim with heroin, watching him
begin to overdose, and then doing nothing for the victim while concealing her
involvement in his drug use showed the hardness of heart, and disregard of
social duty characteristic of the mental state of malice. Packer, 168 A.3d at
168; cf. Commonwealth v. Windslowe, 158 A.3d 698, 710 (Pa. Super.
2017) (holding that Commonwealth proved malice element of murder in the
third degree prosecution where defendant performed cosmetic procedure on
a patient with industrial-grade silicone inappropriate for the procedure and
then failed to call for emergency care when the patient began to exhibit ill
effects from the treatment). Furthermore, it is clear that Appellant’s actions
in providing heroin to the victim and then not seeking medical care for him
created “an unjustified and extremely high risk that [her] actions might cause
death or serious bodily harm.” Packer, 168 A.3d at 168. As this Court has
explained, heroin has a “high potential for abuse,” its dangers “are legendary
and known on a widespread basis,” and each use of heroin brings “the all too
real possibility of death” through overdose. Minnesota Fire and Casualty
Co. v. Greenfield, 805 A.2d 622, 627 (Pa. Super. 2002), aff’d on other
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grounds, 855 A.2d 854 (Pa. 2004); see also Commonwealth v.
Kakhankham, 132 A.3d 986, 995-96 (Pa. Super. 2015).5
Appellant next argues that the Commonwealth failed to prove the
causation element of the murder of the third degree and drug delivery
resulting in death charges. To establish criminal causation, “the
Commonwealth must prove that the defendant’s conduct was so directly and
substantially linked to the actual result as to give rise to the imposition of
criminal liability.” Commonwealth v. Leaner, 202 A.3d 749, 768 (Pa. Super.
2019) (citation omitted). In Commonwealth v. Rementer, 598 A.2d 1300
(Pa. Super. 1991), a murder of the third degree case, this Court set forth a
two-part test for showing a causal relationship a defendant’s acts and a
victim’s death:
First, the defendant’s conduct must be an antecedent, but for
which the result in question would not have occurred. A victim’s
death cannot be entirely attributable to other factors; rather,
there must exist a causal connection between the conduct and the
result of conduct; and causal connection requires something more
than mere coincidence as to time and place. Second, the results
of the defendant’s actions cannot be so extraordinarily remote or
attenuated that it would be unfair to hold the defendant criminally
responsible.
As to the first part of the test, the defendant’s conduct need not
be the only cause of the victim’s death in order to establish a
causal connection. Criminal responsibility may be properly
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5 While Kakhankham concerns events occurring after the General Assembly
amended the drug delivery resulting in death statute to reduce the mens rea
element to a recklessness standard, 132 A.3d at 994-95, this Court’s holding
is nevertheless relevant to our consideration of the foreseeability and
causation of death resulting from heroin use.
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assessed against an individual whose conduct was a direct and
substantial factor in producing the death even though other
factors combined with that conduct to achieve the result. The
second part of the test is satisfied when the victim’s death is the
natural or foreseeable consequence of the defendant’s actions.
Where the fatal result was an unnatural or obscure consequence
of the defendant’s actions, justice would prevent us from allowing
the result to have an impact upon a finding of the defendant’s
guilt.
Leaner, 202 A.3d at 768-69 (internal citations and quotation marks omitted);
see also Kakhankham, 132 A.3d at 993 (stating that two-part causation test
set forth in Rementer is applicable in drug delivery resulting in death cases).
In this case, the Commonwealth presented ample evidence to show that
Appellant caused the victim’s death. With respect to the first part of the
causation test, the Commonwealth showed that Appellant’s actions were an
antecedent to the victim’s death because she traveled to Baltimore to
purchase heroin with Wentz, and then, upon their return to Pennsylvania,
Appellant injected the heroin into the victim’s arm. Furthermore, the
Commonwealth’s medical expert testimony demonstrated that the victim’s
death was a result of respiratory depression that followed from his ingestion
of heroin. Appellant’s involvement in the purchase of the heroin, the delivery
of the drug to the victim, and her injection of the heroin into the victim’s arm
likewise satisfies the second part of the causation test. This Court has
explained that, in cases where the defendant provides the victim with the
heroin that was led to a fatal heroin overdose, the victim’s death is the “natural
or foreseeable consequence” of the defendant’s conduct. See Kakhankham,
132 A.3d at 995 (holding that the Commonwealth had satisfied both parts of
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the causation test in a drug delivery resulting in death prosecution where the
defendant provided heroin to the victim, the victim died of an overdose, and
used packets of the heroin supplied by the defendant were found next to the
victim’s body). In addition to her role in providing the heroin to the victim,
the victim’s death was particularly foreseeable to Appellant because she was
aware that the victim was narcotics-naive upon his release from prison, that
the heroin was high quality, and that the victim began to exhibit symptoms of
an overdose after his ingestion of the heroin.
Appellant argues that the causation element was not satisfied because
Commonwealth did not present sufficient evidence to prove that the victim did
not die of Wolff-Parkinson-White Syndrome, a heart condition the victim
suffered from, which Appellant’s medical expert, Dr. Larence Guzzardi,
testified could not be ruled out as the cause of the victim’s death. N.T.,
5/16/18, at 632-36. We note that the Commonwealth was not required to
present evidence to “preclude every possibility of [Appellant’s] innocence,”
and that the jury had the sole responsibility determine the weight and
credibility to be afforded to the evidence Appellant presented regarding this
condition. Hill, 210 A.3d at 1112 (citation omitted). Nevertheless, Dr. Ross,
the Commonwealth’s forensic pathology expert, testified that the victim had
been treated and cured of Wolff-Parkinson-White Syndrome, and any death
from this condition would have occurred through sudden cardiac arrest, rather
than the slow respiratory failure that occurred here. N.T., 5/15/18, at 503-
04, 555-56, 566-67, 578.
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Appellant next argues that the evidence was insufficient to show that
she delivered heroin to the victim as required for the drug delivery resulting
in death and delivery of a controlled substance offenses. Under the Controlled
Substance, Drug, Device and Cosmetic Act, delivery is defined as “the actual,
constructive, or attempted transfer from one person to another of a controlled
substance . . . whether or not there is an agency relationship.” 35 P.S. § 780-
102(b). “A defendant actually transfers drugs whenever he physically conveys
drugs to another person.” Ellison, 213 A.3d at 319 (quoting
Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 2004)). An exchange
of money is not required to find that a delivery of a controlled substance
occurred. Id.
At the time that the events at issue in this case occurred, drug delivery
resulting in death was defined as follows:
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 Controlled
Substance, Drug, Device and Cosmetic Act, and another person
dies as a result of using the substance.
18 Pa.C.S. § 2506(a) (prior version). Accordingly, under this statute, a
defendant can be convicted of drug delivery resulting in death if she delivered
a controlled substance as prohibited by the Controlled Substance, Drug,
Device and Cosmetic Act, and the additional element is present that another
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person died as a result of using that controlled substance.6 Id.; see also
Commonwealth v. Reese, No. 140 MDA 2019, unpublished memorandum
at 8-10 (Pa. Super. filed Nov. 27, 2019) (holding that, under the substantially
similar current version of the drug delivery resulting in death statute, delivery
of a controlled substances is a lesser included offense of drug delivery
resulting in death and therefore such convictions should merge for sentencing
purposes).7
The Commonwealth here presented sufficient evidence to show that
Appellant was an accomplice to Wentz’s delivery of heroin to the victim. An
individual may face liability as an accomplice to the commission of a criminal
offense when “with the intent of promoting or facilitating the commission of
the offense, he . . . solicits such other person to commit it; or . . . aids or
agrees or attempts to aid such other person in planning or committing it.” 18
Pa.C.S. § 306(c)(1). The Commonwealth demonstrated that, after Appellant,
Wentz, and the victim collected money to purchase drugs, Appellant then
drove Wentz to Baltimore where Wentz purchased three grams of heroin, a
controlled substance. Appellant and Wentz then drove back to Hanover where
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6Appellant’s drug delivery resulting in death conviction could not be premised
upon a violation of Section 13(a)(14) of the Controlled Substance, Drug,
Device and Cosmetic Act, 35 P.S. § 780-113(a)(14), because that provision
applies only to the “administration, dispensing, delivery, gift or prescription of
any controlled substance by any practitioner or professional assistant
under the practitioner’s direction and supervision.” Id. (emphasis added).
7Though an unreported decision, we cite to Reese for its persuasive value.
See Pa.R.A.P. 126(b) (non-precedential Superior Court decisions filed after
May 1, 2019 may be cited for their persuasive value).
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the victim was waiting, and Wentz divided the heroin and gave the victim his
share of the heroin. This evidence clearly shows that Wentz purchased heroin
in Baltimore and conveyed it to the victim, and that Appellant aided in the
delivery of the heroin by driving Wentz to Baltimore and back with the
intention of facilitating the drug purchase. It is irrelevant to our analysis that
neither Appellant nor Wentz profited from the conveyance of heroin to the
victim because the exchange of money is not a prerequisite to the delivery of
a controlled substance. Ellison, 213 A.3d at 319.8
Appellant’s final challenge to the sufficiency of the evidence relates to
her convictions for conspiracy to commit the delivery of a controlled
substance, conspiracy to commit drug delivery resulting in death, and
conspiracy to commit murder of the third degree. Appellant argues that there
was no evidence of an agreement between Appellant and Wentz to commit
any of the conspiracy offenses, but rather that the true criminal agreement
existed between Wentz and the victim, who contributed to the purchase of the
drugs and then received the drugs from Wentz and prepared his own fatal
dosage.
To sustain a conviction for criminal conspiracy, “the Commonwealth
must establish that the defendant (1) entered into an agreement to commit
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8 The Commonwealth argues that it also proved that Appellant “delivered”
heroin to the victim by injecting the heroin into his arm. As we conclude that
there was sufficient evidence to show that Appellant satisfied the delivery
element as an accomplice to Wentz, we need not reach this alternative
argument.
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or aid in an unlawful act with another person or persons, (2) with a shared
criminal intent and, (3) an overt act was done in furtherance of the
conspiracy.” Commonwealth v. Fisher, 80 A.3d 1186, 1190 (Pa. 2013)
(citation omitted).
An explicit or formal agreement to commit crimes can seldom, if
ever, be proved and it need not be, for proof of a criminal
partnership is almost invariably extracted from the circumstances
that attend its activities. Thus, a conspiracy may be inferred
where it is demonstrated that the relation, conduct, or
circumstances of the parties, and the overt acts of the co-
conspirators sufficiently prove the formation of a criminal
confederation. The conduct of the parties and the circumstances
surrounding their conduct may create a web of evidence linking
the accused to the alleged conspiracy beyond a reasonable doubt.
Even if the conspirator did not act as a principal in committing the
underlying crime, he is still criminally liable for the actions of his
co-conspirators taken in furtherance of the conspiracy.
Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018) (citation
omitted).
In the instant case, the Commonwealth demonstrated that Appellant
and Wentz collected money to purchase heroin, traveled to Baltimore
together, purchased heroin, and then returned to Hanover and conveyed the
heroin to the victim for his use. After Appellant injected the victim, Appellant
and Wentz observed the victim exhibiting signs of an overdose. Appellant and
Wentz discussed calling 911 at that time but did not do so; instead, they
decided that Appellant would leave Wentz’s house with the heroin in order to
conceal their involvement with the victim’s drug use. Appellant followed
through on this plan by selling some of the heroin and hiding the remainder.
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After Appellant left, Wentz expressed his worries that the victim was
overdosing in telephone conversations with another friend and placed phone
calls and sent a text to the victim’s phone in an effort to create the appearance
that they were not in fact at the same location. In addition, between 10:53
pm and 4:40 am, Appellant and Wentz exchanged more than a dozen
telephone calls; while the contents of these conversations is not known, the
jury was entitled to infer that these discussions related to the victim’s
condition and the question of how to keep themselves distanced from the
victim’s situation. Johnson, 180 A.3d at 479. Finally, at 4:42 am Wentz
called 911 to report that the victim stopped breathing; Appellant then arrived
back at Wentz’s house shortly afterwards acting as if she had not been there
the prior evening and was unfamiliar with the victim’s condition.
Viewing the evidence admitted at trial in the light most favorable to the
Commonwealth as verdict winner, Hill, 210 A.3d at 1112, the Commonwealth
established that Appellant agreed with Wentz to deliver heroin to the victim
and then, after they were aware that Wentz was overdosing, Appellant and
Wentz decided to conceal their involvement in the victim’s drug use rather
than call for emergency aid. This evidence was more than sufficient to show
that Appellant and Wentz had entered a criminal agreement, whether explicit
or implicit, to deliver heroin to the victim and then engage in a course of
conduct that deprived the victim of urgently needed medical care to address
his heroin overdose, leading to the victim’s death. Accordingly, we find
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Appellant’s sufficiency claims with respect to the conspiracy offenses to be
without merit.
Weight of the Evidence
In her second appellate issue, Appellant argues that her convictions
were against the weight of the evidence. When considering challenges to the
weight of the evidence, our standard of review is as follows.
The weight of the evidence is exclusively for the finder of fact, who
is free to believe all, none or some of the evidence and to
determine the credibility of witnesses. Resolving contradictory
testimony and questions of credibility are matters for the
factfinder. It is well-settled that we cannot substitute our
judgment for that of the trier of fact.
Moreover, when a trial court finds that the [verdict] is not against
the weight of the evidence, we must give the gravest
consideration to the trial court’s conclusion because it is the trial
court, and not the appellate court, that had the opportunity to see
and hear the evidence presented. Furthermore, a defendant will
only prevail on a challenge to the weight of the evidence when the
evidence is so tenuous, vague and uncertain that the verdict
shocks the conscience of the court.
Commonwealth v. Cramer, 195 A.3d 594, 600-01 (Pa. Super. 2018)
(internal citations and quotation marks omitted). The trial court addressed
Appellant’s weight of the evidence argument in its memorandum order
denying her post-sentence motion, concluding that the jury’s guilty verdict on
all counts was consistent with the direct and circumstantial evidence
presented at trial and did not shock the conscience of the court. Memorandum
Order, 12/31/18, at 20.
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In this appeal, Appellant appears to challenge the weight of the evidence
regarding each of the six crimes for which she was convicted. However, the
section of Appellant’s brief devoted to this claim largely cross-references and
repeats arguments set forth separately in her brief related to the sufficiency
of the evidence, her challenge to the trial court’s jury instruction regarding
malice, and her claim that the trial court abused its discretion in not permitting
evidence regarding the victim’s prior expression of suicidal thoughts.
Appellant’s Brief at 30-31. To the extent Appellant does present an argument
regarding the weight of the evidence, it is limited to the assertion that “[t]he
evidence was undisputed that Wentz was the principal actor in the delivery of
the drugs to the victim,” the victim prepared his own dosage of heroin, and
that Appellant “was no more than present at the scene” during the victim’s
drug use and ensuing events. Id. Appellant, however, has not developed
these arguments any further nor has she cited to any portions of the record
that allegedly support her claims. Furthermore, Appellant only cites to two
Supreme Court decisions to support her argument, Ludwig and
Commonwealth v. Chambers, 188 A.3d 400 (Pa. 2018), and both of these
cases address sufficiency, not weight, of the evidence claims. In light of
Appellant’s failure to adequately develop her argument, we therefore find that
this argument is waived. See Wirth v. Commonwealth, 95 A.3d 822, 837
(Pa. 2014) (“[W]here an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the issue in any
other meaningful fashion capable of review, that claim is waived.” (citation
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omitted)); Milby v. Pote, 189 A.3d 1065, 1079 (Pa. Super. 2018) (“The
failure to develop an adequate argument in an appellate brief may [] result in
waiver of the claim under Pa.R.A.P. 2119.” (citation and internal quotation
marks omitted)).
To the extent we would address Appellant’s weight of the evidence
claim, we note that appellate review of this issue is
extremely limited and is confined to whether the trial court abused
its discretion in finding that the jury verdict did not shock one's
conscience. Thus, appellate review of a weight claim consists of
a review of the trial court’s exercise of discretion, not a review of
the underlying question of whether the verdict is against the
weight of the evidence.
Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en
banc) (citation omitted).
Upon review, we do not conclude that trial court abused its discretion in
finding that the jury’s verdict did not shock the conscience. While Appellant
argues that Wentz was the “principal actor” in the delivery of heroin to the
victim, Appellant’s Brief at 30, as discussed supra, Appellant was charged as
a principal and an accomplice with respect to the delivery of a controlled
substance and drug delivery resulting in death charges and ample evidence
was before the jury that Appellant actively aided Wentz in purchasing the
heroin and delivering it to the victim. Furthermore, Appellant’s contention
that she was “no more than present at the scene,” id. at 31, is belied by
Lambertson’s testimony that Appellant attempted to distance herself from the
events after the victim began to overdose and Wentz’s testimony that he
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asked her to get rid of the heroin after the victim began to overdose.
Appellant’s argument in this regard is little more than a claim that this Court
should reject the testimony of Commonwealth witnesses such as Lambertson
in favor of the testimony of defense witnesses, an argument that would require
this Court to exceed its appellate role and override the jury’s resolution of
contradictory evidence and questions of credibility. Cramer, 195 A.3d at 600.
Because Appellant has failed to establish the trial court abused its discretion
in denying her weight of the evidence claim, her second issue fails.
Trial Court Examination of Medical Expert
In her third issue, Appellant contends that the trial court improperly
asked questions of Deputy Coroner Stabley regarding the victim’s toxicology
report when Stabley had not been qualified as an expert in toxicology. During
re-cross-examination, defense counsel asked a series of questions regarding
the metabolization of heroin, the levels of opiates reported in Appellant’s
system in the toxicology report, and the therapeutic range of morphine when
medically prescribed that was stated on the toxicology report. N.T., 5/15/18,
at 302-03. The trial judge then stated that he was “confused” and asked
several more questions regarding the relevance of the therapeutic range of
morphine to the evaluation of the toxicology report and the determination of
the cause of the victim’s death. Id. at 304, 307-09. Stabley explained that
examining only the level of morphine in the blood did not provide a complete
picture of what happened, but by looking at the levels of morphine and the
heroin metabolite 6-monoacetylmorphine in the blood and urine, he was able
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to determine that the victim had ingested a large amount of heroin that was
being metabolized and excreted out of the body when he died. Id. Defense
counsel lodged an objection to the judge’s line of questioning, which the trial
court overruled, explaining that defense counsel had “opened the door”
through his previous line of questioning and that he was “truly confused” by
Stabley’s responses and “maybe some jurors . . . are also confused.” Id. at
305-07.
We review a trial court’s evidentiary rulings on an abuse of discretion
standard. Commonwealth v. Fitzpatrick, 204 A.3d 527, 531 (Pa. Super.
2019). An abuse of discretion will be found where “the law is overridden or
misapplied, or the judgment exercised is manifestly unreasonable, or the
result of partiality, prejudice, bias, or ill-will, as shown by evidence of record.”
Id. (citation omitted).
Pursuant to the Pennsylvania Rules of Evidence, the trial court may
examine a witness called by any party “[w]here the interest of justice so
requires.” Pa.R.E. 614(b). “While a trial judge should normally leave
questioning of witnesses to counsel, justice may require that a trial judge ask
questions when absurd, ambiguous, or frivolous testimony is given or
testimony is in need of further elucidation.” Commonwealth v. Carson, 913
A.2d 220, 249 (Pa. 2006). “[W]here an important fact is indefinite or a
disputed point needs to be clarified, the court may see that it is done by taking
part in the examination[.]” Commonwealth v. Roldan, 572 A.2d 1214,
1215 (Pa. 1990) (citation omitted). “[A] new trial is required . . . only when
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the trial court’s questioning is prejudicial, that is when it is of such nature or
substance or delivered in such a manner that it may reasonably be said to
have deprived the defendant of a fair and impartial trial.” Commonwealth
v. Manuel, 844 A.2d 1, 9 (Pa. Super. 2004) (citation omitted).
We discern no abuse of discretion by the trial court in the questions it
posed to Stabley. Initially, we note that Stabley was qualified as an expert in
the field of determining the cause and manner of death, N.T., 5/15/18, at
253-58, and therefore he was capable of testifying regarding the influence
that the toxicology reports, including the levels of heroin metabolites reflected
on that report, had on his determination of the cause and the manner of the
victim’s death. Stabley had previously testified that he did not issue the death
certificate with a cause of death until July 26, 2010 when he received and
reviewed the toxicology report. Id. at 298.
To the extent the trial court’s questions exceeded Stabley’s expertise,
Appellant cannot complain because her counsel’s own questions on cross-
examination and re-cross-examination “open[ed] the door” to the trial court’s
interrogation of Stabley. See Commonwealth v. Harris, 884 A.2d 920, 928
(Pa. Super. 2005) (when defendant “delves into what would be objectionable
testimony” during the examination of a witness, “then the Commonwealth can
probe further into the objectionable area” (citation omitted)).9 During cross-
____________________________________________
9 Though the reference in Harris to “opening the door” to areas of testimony
that would otherwise be forbidden by the defense relates to the prosecution’s
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examination, defense counsel asked several questions regarding the
therapeutic range for morphine and the actual levels of morphine in the
victim’s blood as reflected on the toxicology report, N.T., 5/15/18, at 288-91,
and then on re-cross-examination, defense counsel revisited these topics. Id.
at 302-03. The trial court acted well within its discretion in determining that
the questions posed to Stabley regarding the toxicology report required
clarification and interrogating the witness further with the goal of resolving
the confusion. Carson, 913 A.2d at 249; Roldan, 572 A.2d at 1215.
Admissibility of the Victim’s Prior Suicidal Thoughts
Next, Appellant challenges the trial court’s determination that she was
not permitted to cross examine Dr. Ross, the Commonwealth’s forensic
pathology expert, regarding the victim’s previous expression of suicidal
thoughts that were reflected in his medical records. During the testimony of
Dr. Ross, defense counsel sought to ask the witness questions regarding two
incidents, the first occurring in May 2001 and the second in May 2008, in which
Appellant verbally discussed or threatened to commit suicide and mental
health checks were performed. N.T., 5/16/18, at 544, 549-50. The
Commonwealth objected, and the trial court sustained the objection,
concluding that the defense could not raise the issue of suicidal thoughts or
attempts without further corroborating evidence. Id. at 544-48, 549-51. In
____________________________________________
ability to delve into the same topics, we see this doctrine as equally applicable
in the context of a trial court following up on a party’s interrogation of a
witness.
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its memorandum order denying Appellant’s post-sentence motion, the trial
court further explained that the 2001 and 2008 medical records showing the
victim’s suicidal thoughts were too remote from his death to be relevant to
the question of how he died. Memorandum Order, 12/31/18, at 33.
Appellant contends that the circumstances of the victim’s death were
consistent with suicide, as the victim was an experienced heroin user, knew
that he was narcotics-naive after his release from incarceration, knew that the
heroin Wentz had purchased was of high quality, and prepared his own
dosage. In light of the fact that the circumstances lend themselves to a finding
that the victim committed suicide by overdose, Appellant contends that the
trial court’s refusal to let Appellant inquire into the victim’s suicide threats
solely based on the remoteness in time of the threats was an abuse of
discretion.
However, as Appellant recognizes in her brief, our Supreme Court has
stated that previous threats or attempts of suicide may be relevant to show
that a decedent’s death was at his own hands, when two requirements are
satisfied: first, the circumstances of death were as consistent with suicide as
with homicide, and, second, the suicide threats or attempts were made within
a reasonable time before death. See Commonwealth v. Donough, 103
A.2d 694, 699 (Pa. 1954); Commonwealth v. Santos, 119 A. 596, 598-99
(Pa. 1923); see also Commonwealth v. Hess, 548 A.2d 582, 585 (Pa.
Super. 1988) (statements relevant to a declarant’s state of mind “may be
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inadmissible if they were made at a time so remote from the incident to which
they purportedly pertain that their probative value is de minimus”).
As set forth above, one of the incidents of a suicide threat occurred more
than two years prior to the victim’s death, while the other incident occurred
more than nine years prior to his death. We cannot say that the trial court’s
determination that these incidents were “too remote in time” to be relevant
to the issue of whether Appellant committed suicide was an abuse of
discretion. Donough, 103 A.2d at 699; cf. id. at 699-700 (threat of suicide
by the deceased in the minutes prior to a death may be relevant if reasonably
connected to the circumstances of the death); Santos, 119 A. at 598-99
(threat of suicide within three weeks of the victim’s death was not too remote
in time to warrant exclusion from the evidence).
Malice Jury Instruction
In her fifth issue, Appellant challenges the trial court’s instruction to the
jury with respect to the murder of the third degree and drug delivery resulting
in death charges that “[m]alice can be inferred from the failure of the
Defendant to seek medical care for the victim.” N.T., 5/18/18, at 1136-37.
Appellant contends that this instruction erroneously stated the law because it
imposed a non-existent duty of care on her in a case where the victim willingly
ingested the heroin that lead to his death. Appellant distinguishes the present
matter from cases in which courts have found that malice could be inferred
from the failure to provide medical care, noting that in those cases the
defendants had used a deadly weapon on a vital part of the victim’s body and
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then abandoned the victim without attempting to obtain medical care. See
Commonwealth v. Boyd, 334 A.2d 610, 613-14 (Pa. 1975);
Commonwealth v. Lee, 626 A.2d 1238, 1239, 1242 & n.4 (Pa. Super. 1993).
We review jury instructions to determine whether the trial court
committed an abuse of discretion or an error of law. Commonwealth v.
Soto, 202 A.3d 80, 98 (Pa. Super. 2018). We must “look to the instructions
as a whole, and not simply isolated portions, to determine if the instructions
were improper.” Commonwealth v. Sandusky, 203 A.3d 1033, 1098 (Pa.
Super. 2019) (citation omitted). The trial court has broad discretion and may
choose its own words in fashioning jury instructions. Soto, 202 A.3d at 98.
“Our key inquiry is whether the instruction on a particular issue adequately,
accurately and clearly presents the law to the jury, and is sufficient to guide
the jury in its deliberations.” Id. (citation omitted).
Here, the trial court instructed the jury regarding the malice element of
the drug delivery resulting in death charge as follows:
Here is what malice means in this context. A Defendant’s actions
are made with malice if they show his or her wanton and willful
disregard of an unjustified and extremely high risk that his or her
conduct would result in death or serious bodily injury to another.
The Commonwealth need not prove that the Defendant specifically
intended to kill another. But it must prove beyond a reasonable
doubt that the Defendant took action while conscientiously; that
is, knowingly disregarding the most serious risk that he or she was
creating. And that by his or her disregard of that risk, he or she
demonstrated an extreme indifference to the value of human life.
Malice can be inferred from the failure of the Defendant to
seek medical care for the victim.
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N.T., 5/18/18, at 1135-36 (emphasis added). The trial court then gave the
following instruction on malice as part of the murder of the third degree
charge:
The word malice as I’m using it has a special legal meaning. It
does not mean simply hatred, spite, or ill will. Malice is a
shorthand way of referring to a particular mental state that the
law regards as being bad enough to make a killing murder.
For murder of the third degree, a killing is with malice if the
perpetrator’s actions show his or her wanton and willful disregard
of an unjustified and extremely high risk that his or her conduct
would result in death or serious bodily injury to another. In this
form of malice, the Commonwealth need not prove that the
perpetrator specifically intended to kill another person. The
Commonwealth must prove, however, that the perpetrator took
action while conscientiously; that is, knowingly disregarding the
most serious risk that he or she was creating. And that by his or
her disregard of that risk, the perpetrator demonstrates his or her
extreme indifference to the value of human life.
When deciding whether the Defendant acted with malice, you
should consider all of the evidence regarding her words, conduct,
and the attending circumstances that may show her state of mind.
Malice can be inferred from the failure of the Defendant to
seek medical care for the victim.
Id. at 1136-37 (emphasis added). Appellant lodged an objection to the
instruction that malice can be inferred from the failure to seek medical care,
which the trial court overruled. Id. at 1158-59.
Viewing the instructions as a whole, we conclude that the trial court
accurately and clearly described to the jury the law regarding malice.
Sandusky, 203 A.3d 1033, 1098; Soto, 202 A.3d at 98. The trial court’s
statement that malice can be inferred from the failure to provide medical care
is well-established in our case law. In Boyd, our Supreme Court held that,
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where the defendant shot the victim unintentionally during a fight at a
gambling house and then moved the bleeding victim to his car and left him
there, “the court could infer malice from [the defendant’s] failure to attempt
to obtain aid for the wounded man.” 334 A.2d at 614. In Lee, the defendant
shot the victim in the face from close range and did not attempt to obtain
immediate medical attention for the victim; citing Boyd, this Court stated that
“[m]alice can be inferred in a homicide prosecution from the failure of the
defendant to seek medical care for the victim.” Lee, 626 A.2d at 1242 n.4.
The trial court repeated this statement of the law nearly verbatim in its
instruction. Finally, we observe that the trial court’s instruction regarding the
inference of malice from the failure to provide medical care did not appear in
isolation, but rather this instruction followed an accurate recitation of the
malice standard as set forth in our case law. See, e.g., Packer, 168 A.3d at
168. Accordingly, Appellant’s fifth appellate issue warrants no relief.
Bad Act Evidence
Finally, Appellant argues that the trial court abused its discretion by
allowing the Commonwealth to admit other bad acts evidence related to
Appellant making two sales of heroin after she left Wentz’s residence on the
night of July 19, 2010. Appellant contends that the Commonwealth’s proffered
use for this evidence to show Appellant’s state of mind is not set forth in the
list of authorized uses for other bad act evidence under Pennsylvania Rule of
Evidence 404(b)(2) and in fact this evidence was used to show Appellant’s
propensity to commit crime, which is forbidden under Rule 404(b)(1).
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Appellant argues that the other bad act evidence was highly prejudicial
because it showed that she was selling drugs while the victim was dying of an
overdose and such prejudice outweighed any limited probative value that it
had. Appellant further claims that she was not provided with reasonable
notice of the fact that this information would be admitted in advance of trial
as required by Rule 404(b)(3).
Rule 404(b) provides as follows:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.
In a criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.
(3) Notice in a Criminal Case. In a criminal case the prosecutor
must provide reasonable notice in advance of trial, or during trial
if the court excuses pretrial notice on good cause shown, of the
general nature of any such evidence the prosecutor intends to
introduce at trial.
Pa.R.E. 404(b).
This Court has explained that:
In accordance with Rule 404(b)(1), evidence of prior bad acts or
criminal activity unrelated to the crimes at issue is generally
inadmissible to show that a defendant acted in conformity with
those past acts or to show criminal propensity. However, it is well
settled that evidence of prior bad acts may be admissible when
offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. In determining whether evidence
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of other prior bad acts is admissible, the trial court is obliged to
balance the probative value of such evidence against its prejudicial
impact.
Commonwealth v. Conte, 198 A.3d 1169, 1180 (Pa. Super. 2018) (internal
citations and quotation marks omitted). With respect to the notice
requirement of Rule 404(b)(3),
[t]he purpose of this rule is to prevent unfair surprise, and to give
the defendant reasonable time to prepare an objection to, or ready
a rebuttal for, such evidence. However, there is no requirement
that the notice must be formally given or be in writing in order for
the evidence to be admissible.
Commonwealth v. Lynch, 57 A.3d 120, 125-26 (Pa. Super. 2012) (internal
citations and quotation marks omitted).
In its memorandum order denying Appellant’s post-sentence motion,
the trial court concluded that Appellant was provided notice of the bad acts
evidence as demonstrated by the fact that she made an oral motion in limine
at the outset of trial seeking to exclude any reference to her drug deals after
she left Wentz’s house, which the trial court denied. Memorandum Order,
12/31/18, at 39; N.T., 5/14/18, at 11-20. The court concluded that the bad
acts evidence was admissible under Rule 404(b) because it showed Appellant
had the “wickedness of disposition” or “hardness of heart” necessary to find
that she possessed malice aforethought when she left the victim overdosing
at Wentz’s house and disposed of the heroin instead of calling 911 or otherwise
seeking aid for the victim. Memorandum Order, 12/31/18, at 39. The court
explained that the evidence of Appellant’s drug sales had little prejudicial
effect on Appellant because there was substantial other evidence at trial that
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Appellant, Wentz, and the victim were regular users of heroin and involved in
transactions for the drug, including the July 19, 2010 purchase in Baltimore.
Id. at 39-40. Finally, the trial court noted that it provided a limiting instruction
to reduce any prejudicial value that the other bad act evidence might have on
Appellant. Id. at 40.10
We agree with the trial court. First, Appellant was clearly on notice
regarding the bad acts evidence because the source of the Commonwealth’s
evidence was Appellant’s own statement to police, which the Commonwealth
provided Appellant in discovery and the use of which Appellant challenged
prior to the commencement of trial. N.T., 5/14/18, at 16-17. Appellant has
not demonstrated any unfair surprise or prejudice from the notice provided.
See Lynch, 57 A.3d at 125-26. Furthermore, Appellant’s heroin sales during
____________________________________________
10 The trial court instructed the jury as follows:
In this case, you have heard evidence tending to prove that the
[Appellant] was guilty of improper conduct for which she is not on trial.
I am speaking of the testimony to the effect that the [Appellant] used
and delivered drugs on other occasions and was subjected to an
unrelated arrest.
This evidence was introduced for a limited purpose. That is for the
purpose of tending to explain the natural chain and sequence of
events[,] tending to show or rebut the [Appellant’s] state of mind
concerning the crimes charged or tending to show or rebut the
voluntariness of the [Appellant’s] statements to the police.
This evidence must not be considered by you in any way other than for
the purpose I just stated. You must not regard this evidence as showing
that the [Appellant] is a person of bad character or criminal tendencies
from which you must be inclined to infer her guilt regarding the charges
lodged against her in this case.
N.T., 5/18/18, at 1131-32.
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the period when the victim was overdosing from heroin at Wentz’s house were
clearly relevant to show Appellant’s extreme indifference to human life and
recklessness of consequences characteristic of the state of mind of malice
necessary for Appellant’s conviction of murder of the third degree and drug
delivery resulting in death. Packer, 168 A.3d at 168. In addition, Appellant’s
heroin sales were relevant as res gestae evidence to “tell the complete story”
of her criminal acts to show what occurred between the time she left Wentz’s
house on the evening of July 19, 2010 while the victim was overdosing and
when Wentz finally called 911 at 4:42 am on July 20th. See Commonwealth
v. Hairston, 84 A.3d 657, 666 (Pa. 2014) (other bad act evidence “relevant
for res gestae purposes to explain the history and course of events on” the
day of the crime); Commonwealth v. Brown, 52 A.3d 320, 332 (Pa. Super.
2012) (“[T]he history of the res gestae exception demonstrates that it is
properly invoked when the bad acts are part of the same transaction involving
the charged crime.”). Though not explicitly identified in Rule 404(b)(2), both
the issue of the defendant’s state of mind demonstrating malice and res gestae
evidence have been recognized as legitimate purposes for the admission of
other bad act evidence. See Hairston, 84 A.3d at 666 (res gestae);
Akhmedov, 216 A.3d at 317-19 (malice).
Furthermore, as the trial court explained, Appellant was not unfairly
prejudiced by the admission of evidence that she sold heroin to other parties
after leaving Wentz’s house on July 19, 2010 in light of the substantial
evidence before the jury regarding her use of heroin and participation in
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transactions involving the drug. “The trial court is not required to sanitize the
trial to eliminate all unpleasant facts from the jury’s consideration where those
facts are relevant to the issues at hand and form part of the history and natural
development of the events and offenses for which the defendant is charged.”
Hairston, 84 A.3d at 666 (citation and quotation marks omitted). To the
extent this evidence could be prejudicial to Appellant, the trial court
appropriately instructed the jury regarding the proper considerations of the
bad act evidence therefore minimizing any concern that the evidence would
inflame the jury or cause it to convict Appellant on an improper basis. See
id.
Accordingly, Appellant is not entitled to relief on any of the issues raised
in this appeal.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/21/2020
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