Com. v. Truett, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRADLEY JAY TRUETT :
:
Appellant : No. 1190 MDA 2020
Appeal from the Judgment of Sentence Entered January 17, 2020
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0000865-2015
BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 02, 2021
Bradley Jay Truett (“Truett”) appeals from the judgment of sentence
imposed following his conviction of drug delivery resulting in death (“DDRID”),
delivery of heroin, and criminal use of a communication facility.1 We affirm.
In its Opinion and Order denying Truett’s Omnibus Pre-Trial Motion, the
suppression court set forth its Findings of Fact as follows:
On July 23, 2014, Detective Travis Carbaugh [(“Det.
Carbaugh”)] of the Waynesboro Police Department was called to
the scene of an apparent overdose death at 347 Viewpoint Way,
Borough of Waynesboro, Franklin County. The decedent was
Byron Rock [(“Rock”)].
Upon searching the residence where [Rock’s] body was
found, the police recovered a cellular telephone. The phone was
located in the bedroom with [Rock’s] body. The police seized the
phone; through subsequent investigation it was determined that
the cell phone belonged to [Rock]. Det. Carbaugh searched the
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1 18 Pa.C.S.A. §§ 2506(a), 7512(a); 35 P.S. § 780-113(a)(30).
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contents of the phone in an effort to discover any information
relating to the source of the controlled substances that apparently
caused [Rock’s] death. Det. Carbaugh did not seek the consent
of the next of kin of [Rock,] nor did he obtain a search warrant
prior to searching the phone. Information [i.e., text messages
from a phone number associated with Truett,] contained in the
phone led Det. Carbaugh to suspect [Truett] was the source of the
drugs that caused [Rock’s] death.
Through his investigation, Det. Carbaugh developed a
possible address where [Truett] was residing; the address was
147 W. North Street in the Borough of Waynesboro. Det.
Carbaugh had been attempting to locate [Truett] at this time. On
August 28, 2014, Det. Carbaugh traveled to the W. North Street
location and observed a notice posted on the door of the residence
in relation to eviction proceedings. At the time Det. Carbaugh
arrived[,] the door was closed. However, the property manager
(hereinafter “[the] landlord”) … was inside the subject residence.
Det. Carbaugh spoke with the landlord. She advised Det.
Carbaugh that [Truett’s] name was not on the lease and he did
not have permission to reside there. She further advised that she
had initiated eviction proceedings against the leaseholder, Laura
Jewel [(“Jewel”)], and that the property had been abandoned.[FN
1] This was consistent with Det. Carbaugh’s belief that [Truett]
was evading law enforcement.[FN 2] The landlord believed she had
authority over the property at the time Det. Carbaugh spoke with
her, and she granted him permission to enter and search the
residence. Det. Carbaugh entered the residence and searched it;
there was evidence in the residence that Det. Carbaugh seized
and the Commonwealth intend[ed] to use at trial.[FN 3]
[FN 1][The landlord] testified that, at some point prior, she had
received a phone call from Children and Youth Services [(“CYS”)]
asking where [] Jewel’s children were; Jewel had four children that
were permitted to reside with her on the lease. In response to
the CYS phone call, [the landlord] went to the property and
observed that “everything was gone” and “they had left.”
However, she discovered the oldest of Jewel’s children inside the
residence, and the landlord advised her that she could remain in
the residence without Jewel residing there. According to the
landlord, the child had climbed into the residence through an
unlocked upstairs window.
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[FN 2] Det. Carbaugh had “staked out” the residence in the week or
two prior to August 28, 2014, in an effort to locate [Truett]. He
watched the residence for approximately an hour[,] two or three
times over the course of a week; during his times watching the
residence, Det. Carbaugh observed no person or other activity
connected to the residence that suggested anyone was residing
there. Indeed, Det. Carbaugh did not locate the actual named
lessee at the residence.
[FN 3] In his Omnibus [Pre-Trial Motion], [Truett] d[id] not identify
what evidence was gathered by Det. Carbaugh from the residence.
In addition, neither party presented evidence at the hearing
regarding what, specifically, was found in the residence that the
Commonwealth intend[ed] to use. …
Opinion and Order, 7/13/2018, at 1-3 (footnotes in original; one footnote
omitted). Truett was ultimately located and taken into custody.
Several continuances and changes in counsel followed. On December
13, 2017, Truett, pro se, filed a Motion to Dismiss pursuant to Pa.R.Crim.P.
600. Counsel subsequently filed a Motion to Dismiss, as well as an Amended
Motion to Dismiss, pursuant to Rule 600, on Truett’s behalf. On January 2,
2018, after filing the Amended Motion to Dismiss, counsel filed a Motion to
Withdraw as counsel, citing Truett’s continued pro se filing of letters and
documents with the clerk of courts, which disclosed potential trial strategy,
witness names, and potential defense experts. By an Order entered on
February 12, 2018,2 the trial court permitted counsel to withdraw, and
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2 The Order is dated February 5, 2018.
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appointed Truett new counsel. The trial court also continued the hearing on
the Motion to Dismiss.
Following a hearing on February 22, 2018, the trial court granted
defense counsel’s oral Motion for leave to file a new Rule 600 motion. The
trial court directed Truett to file such motion by March 9, 2018, and for the
Commonwealth to file a response within the following week. Additionally, the
trial court scheduled a hearing for March 19, 2018, and “caution[ed] both
parties that we will not delay further in this matter….” Order, 2/23/18.
Truett, through counsel, filed a Motion to Dismiss pursuant to Rule 600.
The Commonwealth filed an Answer. The trial court conducted a hearing on
Truett’s Motion to Dismiss and, on March 26, 2018, entered an Opinion and
Order denying the Motion to Dismiss.
On April 20, 2018, Truett filed an Omnibus Pre-Trial Motion, including,
inter alia, a Motion to suppress evidence found at the residence located at 147
W. North Street, and a Motion to suppress evidence obtained through the
search of Rock’s cell phone. The Commonwealth filed an Answer to Truett’s
Motions to suppress. The trial court conducted a hearing, and subsequently
directed the parties to file post-hearing briefs in support of their respective
positions. Both parties complied. On July 13, 2018, the trial court issued an
Opinion and Order denying Truett’s Omnibus Pre-Trial Motion.
Additional continuances and changes in defense counsel followed. A
jury ultimately convicted Truett of the above-described offenses. The trial
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court deferred sentencing and ordered the preparation of a pre-sentence
investigation report. On January 17, 2020, the trial court sentenced Truett to
a term of 120-480 months in prison, plus a fine and restitution for DDRID.3
For the criminal use of a communication facility conviction, the trial court
imposed a consecutive term of 18-84 months in prison, plus a fine.
Truett filed a timely Post-Sentence Motion on January 27, 2020. A
hearing on the Motion was first scheduled for March 12, 2020, but then
continued until March 30, 2020. Prior to the scheduled hearing, the
Pennsylvania Supreme Court declared a statewide judicial emergency, which
generally closed courts to the public “beginning at the close of business on
March 19, 2020, and lasting through at least April 3, 2020….” In re: General
Statewide Judicial Emergency, 228 A.3d 1283 (Pa. filed March 18, 2020)
(per curiam); see also In re: General Statewide Judicial Emergency, 230
A.3d 1015 (Pa. filed April 28, 2020) (per curiam) (suspending most filing
deadlines for the period between March 19, 2020, and May 8, 2020). Truett’s
counsel was subsequently granted permission to withdraw, and the trial court
appointed new counsel. On May 11, 2020, the trial court entered an Order
scheduling a hearing on Truett’s Post-Sentence Motion for June 11, 2020. On
June 12, 2020, Truett filed a Motion to extend the deadline in which to decide
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3 The convictions of delivery of heroin and DDRID merged for sentencing
purposes.
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his Post-Sentence Motion, citing the judicial emergency and the difficulty of
scheduling video conferencing through the prison. The trial court granted the
Motion and extended the deadline by 30 days. The trial court scheduled the
hearing for July 31, 2020. The hearing was conducted as scheduled, and on
August 12, 2020,4 the trial court entered an Order denying Truett’s Post-
Sentence Motion. Truett filed a Notice of Appeal on September 9, 2020.5
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4 The trial court attributed the delay between the filing of the Post-Sentence
Motion and its ultimate ruling to the judicial emergency and “the significant
difficulty in scheduling [Truett’s] participation in the hearing via Advanced
Communication Technology.” Order, 8/12/20.
5 Regarding the timeliness of Truett’s appeal, we observe that when a
defendant files a post-sentence motion, a notice of appeal must be filed
“within 30 days of the entry of the order deciding the motion[, or] within 30
days of the entry of the order denying the motion by operation of law….”
Pa.R.Crim.P. 720(A)(2)(a)-(b); see also id. 720(B)(3)(a) (providing that if a
judge fails to decide a post-sentence motion within 120 days, it shall be
deemed denied by operation of law). The 120-day period for deciding Truett’s
Post-Sentence Motion expired on May 26, 2020. Ultimately, for the reasons
set forth above, the hearing did not occur until July 31, 2020, and the trial
court did not issue its decision until August 12, 2020. In light of the unique
circumstances surrounding the COVID-19 pandemic, and the scheduling
difficulties arising therefrom, we will consider Truett’s appeal as timely filed.
Moreover, the docket lacks any indication that the Post-Sentence Motion was
denied by operation of law at the end of the 120-day period. See Pa.R.Crim.P.
720(B)(3)(c) (providing that “[w]hen a post-sentence motion is denied by
operation of law, the clerk of courts shall forthwith enter an order on behalf
of the court”); see also Commonwealth v. Perry, 820 A.2d 734, 735 (Pa.
Super. 2003) (declining to quash the appellant’s appeal, which was filed
beyond the 120-day period in which the court must decide on a post-sentence
motion, because the failure by clerk of courts to enter an order deeming the
appellant’s post-sentence motion denied by operation of law constituted a
breakdown in the court system).
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Truett subsequently filed a court-ordered Pa.R.A.P. 1925(b) Concise
Statement of errors complained of on appeal.
Truett now raises the following issues for our review:
1. Whether the trial court erred in allowing the trial beyond the
365[-]day[ ]period prescribed by [Pa.R.Crim.P.] 600 by not
sufficiently considering [Truett’s] Rule 600 [M]otion to [D]ismiss
and not sufficiently assessing whether there is excludable time
and/or excusable delay in the 648 days [prior] to trial[?]
2. Whether the [t]rial [c]ourt erred by failing to instruct the jury
relating to the [DDRID] charge[,] as the court’s instructions did
not sufficiently advise the jury of the requirement of “but-for
causation[]”[?]
3. Whether the trial court abused its discretion in precluding
testimony regarding the criminal history of a key prosecution
witness[,] which hindered [Truett’s] ability to mount a defense to
include witness [Christopher] Hick[s’s (“Hicks”)6] background as
a drug dealer[?]
4. Whether the trial court erred in denying [Truett’s M]otion to
suppress evidence found at … 147 W. North St.[,] where property
was searched after it was simply alleged by the property owner
that [Truett] had abandoned the property[?]
5. Whether during [Truett’s] trial, the prosecutor engaged in
various forms of misconduct[,] including making a statement[,]
“The Defendant’s full-time job was peddling poison on the
streets[]”[?] At no time during the trial was the statement
supported by evidence of the record and it created prejudice.
6. Whether the evidence presented was insufficient to establish
that every element of [DDRID] was proven, that the delivery: (1)
was committed by the accused; and[] (2) the drug delivered
caused the victim’s death—as it fails to sufficiently indicate an
adequate level of causation for the result-of-conduct[?]
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6 Hicks is Truett’s alleged co-conspirator.
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Brief for Appellant at 9 (issues renumbered).
In his first claim, Truett contends that the trial court erred by allowing
his trial to begin beyond the 365-day period, and by failing to sufficiently
consider his Rule 600 Motion. Id. at 20. Truett points out that charges were
filed against him on two separate occasions: first, on July 25, 2014, he was
charged with delivery of heroin, conspiracy, and criminal use of a
communication facility; these charges were withdrawn, and on February 23,
2015, the charges were re-filed, as amended to include DDRID. Id. at 21-22.
Truett argues that the mechanical run date for Rule 600 purposes is July 25,
2014, when the first Criminal Complaint was filed, because the re-filed charges
were not based on new evidence. Id. at 23. Thus, Truett claims, the
Commonwealth did not exercise due diligence in bringing him to trial. Id. at
27-28.
“With regard to claims brought under Rule 600, we must determine
whether the trial court committed an abuse of discretion.” Commonwealth
v. Murray, 879 A.2d 309, 312 (Pa. Super. 2005).
The proper scope of review is limited to the evidence on the record
of the Rule 600 evidentiary hearing and the findings of the trial
court. An appellate court must view the facts in the light most
favorable to the prevailing party.
When considering the trial court’s ruling, an appellate court
may not ignore the dual purpose behind Rule 600. The Rule
serves two equally important functions: (1) the protection of the
accused’s speedy trial rights, and (2) the protection of society.
In determining whether an accused’s right to a speedy
trial has been violated, consideration must be given to
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society’s right to effective prosecution of criminal
cases, both to restrain those guilty of crime and to
deter those contemplating it. However, the
administrative mandate of Rule 600 was not designed
to insulate the criminally accused from good faith
prosecution delayed through no fault of the
Commonwealth.
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy trial
rights of an accused, Rule 600 must be construed in a manner
consistent with society’s right to punish and deter crime. In
considering these matters, courts must carefully factor into the
ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous law
enforcement as well. …
Id. at 312-13 (citations omitted).
Rule 600 provides, in pertinent part, as follows:
(A) Commencement of Trial; Time for Trial
***
(2) Trial shall commence within the following time periods.
(a) Trial in a court case in which a written complaint is filed
against the defendant shall commence within 365 days from
the date on which the complaint is filed.
***
(C) Computation of Time
(1) For purposes of paragraph (A), periods of delay at any
stage of the proceedings caused by the Commonwealth when
the Commonwealth has failed to exercise due diligence shall be
included in the computation of time within which trial must
commence. Any other periods of delay shall be excluded from
the computation.
***
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(3)(a) When a judge or issuing authority grants or denies a
continuance:
***
(ii) the judge shall record the identity of the party requesting
the continuance and the reasons for granting or denying the
continuance. The judge also shall record to which party the
period of delay caused by the continuance shall be
attributed, and whether the time will be included in or
excluded from the computation of the time within which trial
must commence in accordance with this rule.
Pa.R.Crim.P. 600; see also Commonwealth v. Barbour, 189 A.3d 944, 947
(Pa. 2018) (stating that “[b]y the terms of Rule 600, the Commonwealth must
bring a defendant to trial within 365 days from the date upon which a written
criminal complaint is filed.”).
“The first step in determining whether a technical violation of Rule 600
has occurred is to calculate the ‘mechanical run date.’” Murray, 879 at 313.
“The mechanical run date is calculated by adding 365 days to the date the
criminal complaint is filed.” Commonwealth v. Peterson, 19 A.3d 1131,
1137 n.6 (Pa. Super. 2011).
The mechanical run date can be modified or extended by adding
any periods of time in which the defendant causes delay. Once
the mechanical run date is modified accordingly, it then becomes
an “adjusted run date.”
Rule 600 takes into account both “excludable time” and
“excusable delay.” “Excludable time” is defined in Rule 600(C) as
the period of time between the filing of the written complaint and
the defendant’s arrest, provided that the defendant could not be
apprehended because his whereabouts was unknown and could
not be determined by due diligence; any period of time for which
the defendant expressly waives Rule 600; and/or such period of
delay at any stage of the proceedings as results from: (a) the
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unavailability of the defendant or the defendant’s attorney; and/or
(b) any continuance granted at the request of the defendant or
the defendant’s attorney. The “due diligence” required under Rule
600(C)(1) pertains to the Commonwealth’s efforts to apprehend
the defendant. The other aspects of Rule 600(C) defining
“excludable time” do not require a showing of due diligence by the
Commonwealth. “Excusable delay” is not expressly defined in
Rule 600, but the legal construct takes into account delays which
occur as a result of circumstances beyond the Commonwealth’s
control and despite its due diligence.
Murray, 879 at 313 (citations omitted); see also Commonwealth v. Burno,
154 A.3d 764, 793-94 (Pa. 2017) (explaining that excusable delay is not
calculated against the Commonwealth in a Rule 600 analysis, as long as the
Commonwealth acted with due diligence at all relevant times);
Commonwealth v. Morgan, 239 A.3d 1132, 1137 (Pa. Super. 2020) (stating
that, “in the most general terms, when the Commonwealth causes delay, the
Rule 600 clock continues to tick; when the defendant causes the delay, the
clock stops.” (citation omitted)). Additionally, “[t]he Commonwealth bears
the burden of proving due diligence by a preponderance of the evidence. Due
diligence is fact-specific, to be determined case-by-case; it does not require
perfect vigilance and punctilious care, but merely a showing that the
Commonwealth has put forth a reasonable effort.” Burno, 154 A.3d at 794
(citations and quotation marks omitted).
In cases where the Commonwealth files a complaint, the
complaint is withdrawn or dismissed, and the Commonwealth then
re-files the charges in a subsequent complaint, there are
additional principles to keep in mind. If, for example, the
Commonwealth withdraws the first complaint in an attempt to
avoid an imminent Rule 600 violation and then re-files the charges
in hopes of circumventing that rule, then the Rule 600 time for
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the second complaint will be calculated from the filing of the first
complaint.
However, if the Commonwealth is diligent in prosecuting a
complaint, and if the complaint is withdrawn or dismissed because
of factors beyond the Commonwealth’s control, then the
Commonwealth, upon re-filing the charges in a second complaint,
is entitled to have the time under Rule 600 run from the date of
that second filing. Accordingly, in cases of subsequent
complaints, the law requires that Rule 600 courts evaluate
whether the Commonwealth was diligent with respect to the initial
complaint.
Additionally, if the Commonwealth was diligent in
prosecuting the first complaint, the Commonwealth has no
obligation under Rule 600 to re-file the charges within any
particular time after the dismissal of the first complaint. This
principle arises from the fact that, while no complaint is pending,
the language of Rule 600 is simple inapplicable.
Commonwealth v. Claffey, 80 A.3d 780, 786-87 (Pa. Super. 2013)
(citations omitted).
Following the March 19, 2018, hearing on Truett’s Motion to Dismiss,
the trial court set forth the following findings of fact concerning the filing of
charges against Truett:
On July 25, 2014, Det. Carbaugh filed charges of delivery of a
controlled substance, criminal use of a communication facility, and
conspiracy against [Truett]. …
When he filed the charges, Det. Carbaugh obtained a
warrant for [Truett’s] arrest. Det. Carbaugh then attempted to
arrest [Truett] at [Truett’s] last known residence, but was
unsuccessful. Det. Carbaugh was then off-duty until the middle
of August. Upon returning to work, Det. Carbaugh conducted
surveillance on [Truett’s] residence in an effort to apprehend him.
Det. Carbaugh was again unsuccessful. Within a day or two of the
incident, Det. Carbaugh interviewed the alleged co-conspirator …,
[] Hicks. Hicks assisted Det. Carbaugh in trying to locate [Truett];
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they even arranged a meet-up with [Truett] as a ruse to take
[Truett] into custody. [Truett] did not show up.
In late August 2015, Det. Carbaugh received information on
a possible second address for [Truett] in Roxbury; this information
was provided from the FBI fugitive task force. Upon investigation
with the United States Postal Service, Det. Carbaugh learned that
the address in Roxbury was an old address for [Truett]. Det.
Carbaugh also obtained a possible address for [Truett] through
the county’s [CYS]; that agency had an open case involving
[Truett’s] girlfriend. Det. Carbaugh was still unable to locate
[Truett] with the CYS information. Additionally, Det. Carbaugh
was aware that [Truett] was on active supervision with the
Franklin County Adult Probation Office. Det. Carbaugh spoke with
[Truett’s] supervising officer; however, again, this did not result
in Det. Carbaugh locating [Truett] to take him into custody.
In late September or early October 2014, Det. Carbaugh
received the [C]oroner’s report from the death of [] Rock. Det.
Carbaugh spoke with Assistant District Attorney David Drumheller
from the Franklin County District Attorney’s Office [(“ADA
Drumheller”)]. Based on his review of the [C]oroner’s report, ADA
Drumheller advised Det. Carbaugh that the Commonwealth would
not be pursuing a charge of [DDRID] against [Truett].
In late January 2015, ADA Drumheller spoke again with Det.
Carbaugh. ADA Drumheller advised Det. Carbaugh that he had
spoken directly with the pathologist and reviewed the case with
the District Attorney and Coroner. Based upon these additional
discussions, the Commonwealth was now willing to proceed with
charging [Truett] with DDRID. ADA Drumheller advised Det.
Carbaugh to withdraw the charges he filed in July 2014, and refile
them with an added count of DDRID. There was no discussion
between ADA Drumheller and Det. Carbaugh regarding
Pa.R.Crim.P. 600 (speedy trial). Det. Carbaugh then did as
instructed, withdrawing and refiling the charges on February 23,
2015; the new [C]riminal [C]omplaint contained the added charge
of DDRID.
Fifteen days after re-filing the charges, Det. Carbaugh
received information on an address for [Truett] in the State of
Maryland. Det. Carbaugh referred this information to the
Pennsylvania State Police (PSP) Fugitive Task Force. PSP
communicated with law enforcement authorities in Maryland and
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learned that [Truett] was a suspect in an arson case there.
Shortly thereafter, [Truett] was taken into custody.
Trial Court Opinion (Motion to Dismiss), 3/26/18, at 1-3.
Regarding the time between the filing of the first and second Criminal
Complaints, the trial court concluded that the record “is devoid of any evidence
of intent on the part of the Commonwealth to evade or thwart [Truett’s]
speedy trial right when it withdrew the charges and refiled them in February
2015.” Id. at 12. Additionally, the trial court concluded that the
Commonwealth demonstrated due diligence in prosecuting the first Criminal
Complaint, and therefore, the mechanical run date for Rule 600 purposes is
February 23, 2015. Id. at 12-14. Specifically, the trial court noted Det.
Carbaugh’s ongoing efforts to locate Truett during the time period between
the first and second Criminal Complaints. Id. at 12-13.
Although the second Criminal Complaint was amended to include a
DDRID charge after the initial review by the Coroner, Det. Carbaugh testified
that he had been informed that the District Attorney’s Office had followed up
directly with the pathologist and the Coroner before deciding to include the
DDRID charge. N.T., 3/19/18, at 8, 15; Trial Court Opinion (Motion to
Dismiss), 3/26/18, at 13. We therefore agree with the trial court’s conclusion
that there is no evidence in the record to support an assertion that the
Commonwealth filed the second Criminal Complaint merely in an attempt to
circumvent Rule 600. See Claffey, supra. Further, the record confirms the
trial court’s determination that the Commonwealth exercised due diligence in
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prosecuting the first Criminal Complaint. Truett remained a fugitive and was
not located until approximately two weeks after the second Criminal Complaint
was filed. During that time, Det. Carbaugh made several attempts to locate
Truett at several addresses, surveilled Truett’s last known address, attempted
to contact Truett through Hick, contacted government agencies, and received
a possible address from the FBI. See id. at 13-14; see also id. at 13 n.31
(stating that “Det. Carbaugh did far more than sit on his hands and wait for
[Truett’s] serendipitous apprehension[.]”); Pa.R.Crim.P. 600, cmt. (providing
that “the period of time between the filing of the written complaint and the
defendant’s arrest [must be excluded from computations], provided that the
defendant could not be apprehended because his or her whereabouts were
unknown and could not be determined by due diligence[.]”). Based upon the
foregoing, we discern no abuse of the trial court’s discretion in applying a
mechanical run date of February 23, 2015, 365 days after the second Criminal
Complaint was filed.7 Accordingly, we cannot grant Truett relief on this claim.
In his second claim, Truett contends that the trial court did not
sufficiently advise the jury regarding “but-for” causation in its DDRID
instruction. Brief for Appellant at 15. Truett cites Burrage v. United States,
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7 Truett does not allege that his speedy trial rights were violated assuming a
mechanical run date of February 23, 2015, nor does he challenge the trial
court’s determinations regarding any other delays. For a full analysis of
excludable time under Rule 600, see Trial Court Opinion (Motion to Dismiss),
3/26/18, at 14-15.
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571 U.S. 204 (2014),8 and argues that a “but-for” finding to prove actual
cause. Brief for Appellant at 15.9
We review a challenge to a jury instruction for an abuse of
discretion or an error of law. We must consider the charge as a
whole, rather than isolated fragments. We examine the entire
instruction against the background of all evidence presented, to
determine whether error was committed. A jury charge is
erroneous if the charge as a whole is inadequate, unclear, or has
a tendency to mislead or confuse the jury rather than clarify a
material issue. Therefore, a charge will be found adequate unless
the issues are not made clear to the jury or the jury was palpably
misled by what the trial judge said. Furthermore, our trial courts
are invested with broad discretion in crafting jury instructions, and
such instructions will be upheld so long as they clearly and
accurately present the law to the jury for its consideration. …
Commonwealth v. Rush, 162 A.3d 530, 540 (Pa. Super. 2017) (citations,
quotation marks and brackets omitted).
Regarding DDRID, the trial court charged the jury as follows:
Count [O]ne in this case is drug delivery resulting in death.
To find the defendant guilty of this offense you must find that the
following elements have been proven beyond a reasonable doubt.
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8 In Burrage, the United States Supreme Court analyzed 21 U.S.C.A.
§ 841(b)(1)(C), a federal statute providing for an enhanced sentence when
death or serious bodily injury “results from,” inter alia, the delivery of a
schedule I or II controlled substance. The Supreme Court held that a
defendant cannot be liable under the penalty enhancement provision unless
the use of the drug distributed by the defendant is a but-for cause of the
death. Burrage, 571 U.S. at 218-19.
9 Truett’s one-page argument concerning this claim is largely undeveloped,
and significantly, does not identify the jury instruction given by the trial court.
See Pa.R.A.P. 2119(a) (providing that an appellant’s argument shall contain
“such discussion and citation of authorities as are deemed pertinent.”).
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First, that the defendant administered, dispensed,
delivered, gave, prescribed, sold or distributed a controlled
substance or a counterfeit controlled substance to a person.
Second, that the defendant did so intentionally, that is, it
was his conscious object to administer, dispense, deliver, give,
prescribe, sell or distribute a controlled substance or a counterfeit
controlled substance to a person.
Third, that the administration, dispensation, prescription,
sale or distribution was in violation of the Controlled Substance
Drug Device and Cosmetic Act.
Fourth, that the person has died as a result of using the
substance.
[Truett] has been charged with causing the death of [] Rock.
To find [Truett] guilty of [DDRID,] you must find beyond a
reasonable doubt that [Truett’s] conduct was a direct cause of his
death. In order to be a direct cause of a death[,] a person’s
conduct must be a direct and substantial factor in bringing about
the death. There can be more than one direct cause of a death.
A defendant who is a direct cause of a death may be criminally
liable even though there are other direct causes.
N.T., 12/13/19, at 71-72.10
The Crimes Code defines the offense of DDRID as follows:
§ 2506. Drug delivery resulting in death
____________________________________________
10 The trial court used the Commonwealth’s requested points for charge for
the offense of DDRID. In its Requested Points for Charge, the Commonwealth
identified the Pennsylvania Suggested Standard Jury Instruction 15.2506 –
Drug Delivery Resulting in Death, for offenses committed on or after
September 7, 2011; the language concerning direct cause was taken from
Pennsylvania Suggested Standard Jury Instruction 15.2501C – Criminal
Homicide – Causation. See Commonwealth’s Requested Points for Charge,
11/22/19, at 3-4. Truett filed an Objection concerning this language. See
Defendant’s Objection to Commonwealth’s Proposed Jury Instruction,
12/09/19, at 1 (unnumbered).
- 17 -
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(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 … The Controlled
Substance, Drug, Device and Cosmetic Act, and another person
dies as a result of using the substance.
18 Pa.C.S.A. § 2506(a). DDRID therefore “consists of two principal elements:
(i) intentionally administering, dispensing, delivery, giving, prescribing, selling
or distributing any controlled substance or counterfeit controlled substance
and (ii) death caused by (“resulting from”) the use of that drug.”
Commonwealth v. Kakhankham, 132 A.3d 986, 991-92 (Pa. Super. 2015)
(footnote omitted).
Prior to the start of trial, the trial court addressed Truett’s Objection to
the Commonwealth’s requested points for charge concerning DDRID. The trial
court noted Truett’s citation to Burrage, but concluded that it was not bound
by the Supreme Court’s decision because it was based on an interpretation of
federal statutory law. N.T., 12/10/19, at 4-5. The trial court also concluded
that the Commonwealth’s proposed jury instruction was proper under
Pennsylvania law. Id. at 6-7. Truett did not otherwise raise an objection at
the time the jury instruction was read to the jury.
Our review of the jury instruction and the relevant law defining DDRID
confirms that the instruction provided by the trial court adequately and clearly
reflected the law, and had no tendency to mislead or confuse the jury. See
Rush, supra. Because we discern no abuse of discretion or error by the trial
court, Truett is not entitled to relief on this claim.
- 18 -
J-A12042-21
In his third claim, Truett argues that the trial court abused its discretion
by precluding testimony concerning Hicks’s criminal history. Brief for
Appellant at 32. Truett claims that he should have been permitted to introduce
evidence that Hicks had a prior conviction of drug delivery, which he could
have used to impeach Hicks’s testimony. Id. at 32-33. According to Truett,
the Commonwealth failed to disclose to him Hicks’s prior involvement as a
confidential informant. Id. at 33.
Initially, we observe that Truett fails to cite to the Pennsylvania Rules of
Evidence in support of his claim. Additionally, Truett’s argument conflates the
issues of relevance and impeachment. Because Truett cites only to case law
defining the evidentiary definition of relevance, we limit our discussion to
relevance.11
The determination of the scope and limits of cross-
examination are within the discretion of the trial court, and we
cannot reverse those findings absent a clear abuse of discretion
or an error of law. An abuse of discretion is not a mere error in
judgment, but, rather, involves bias, ill will, partiality, prejudice,
manifest unreasonableness, or misapplication of law.
Furthermore, when a trial court indicates the reason for its
decision our scope of review is limited to an examination of the
stated reason.
____________________________________________
11 Truett does not argue that Hicks’s prior conviction is admissible as a crimen
falsi conviction. See Pa.R.E. 609(a) (providing that, “[f]or the purpose of
attacking the credibility of any witness, evidence that the witness has been
convicted of a crime, whether by verdict or by plea of guilty or nolo
contendere, must be admitted if it involved dishonesty or false statement.”).
- 19 -
J-A12042-21
Commonwealth v. Davis, 17 A.3d 390, 395 (Pa. Super. 2011) (citations,
quotation marks, and brackets omitted).
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa. Super. 2020) (citation
omitted); see also Pa.R.E. 402. “Evidence is relevant if … it has any tendency
to make a fact more or less probable than it would be without the evidence[,]
and the fact is of consequence in determining the action.” Pa.R.E. 401.
In its Opinion, the trial court stated that “evidence of the prior delivery
conviction is not motive of cooperating with the police in a later, unrelated,
investigation into this DDRID.” Trial Court Opinion, 10/28/20, at 7 (emphasis
in original). Additionally, during a sidebar discussion at trial, the trial court
indicated that it would not be “improper for [defense counsel] to establish the
reason [Hicks] has begun cooperating,” but that defense counsel could not
elicit testimony about the prior conviction. N.T., 12/11/19, at 60; see also
id. (stating, “We need that clarified. I don’t want the jury confusing the fact
that he cooperated because he got in trouble for [] delivering being confused
with this delivery in this case.”).
Our review confirms that the trial court permitted Truett to examine
Hicks’s criminal history, including prior involvement in drug activity, and his
relationship with law enforcement as a confidential informant. See Trial Court
Opinion, 10/28/20, at 7-9; N.T., 12/11/19, at 51-56, 58-59, 61. Accordingly,
we agree with the trial court’s determination that additional evidence of
- 20 -
J-A12042-21
Hicks’s prior conviction of delivery of a controlled substance was not relevant
to the instant matter, and we can afford Truett no relief on this claim.
In his fourth claim, Truett challenges the suppression court’s denial of
his Motion to suppress evidence found in the residence at 147 W. North
Street.12 Brief for Appellant at 35. Truett argues that, according to the lease,
the lessor of the premises was Kenneth L. Miller, rather than the landlord. Id.According to Truett, the landlord lacked authority to enter the residence or to
grant Det. Carbaugh permission to enter the residence. Id. at 37.
Additionally, Truett contends that Det. Carbaugh had no evidence that the
residence had been abandoned. Id. at 38; see also id. at 37 (acknowledging
that Judgment of possession had been entered in favor of the landlord
regarding the residence on August 28, 2014, but arguing that the landlord
was not permitted to enter the premises, or grant Det. Carbaugh to do so,
until 10 days later).
In reviewing the denial of a motion to suppress, our
responsibility is to determine whether the record supports the
suppression court’s factual findings and legitimacy of the
inferences and legal conclusions drawn from those findings. If the
suppression court held for the prosecution, we consider only the
evidence of the prosecution’s witnesses and so much of the
evidence for the defense as, fairly read in the context of the record
as a whole, remains uncontradicted. When the factual findings of
the suppression court are supported by the evidence, the
appellate court may reverse if there is an error in the legal
conclusions drawn from those factual findings.
____________________________________________
12 Truett’s argument, as in his Motion to suppress, fails to identify any
evidence recovered from the residence that the Commonwealth used against
him at trial.
- 21 -
J-A12042-21
Commonwealth v. Arnold, 932 A.2d 143, 145 (Pa. Super. 2007) (citation
omitted).
Warrantless searches and seizures are considered to be
unreasonable and therefore, prohibited, except for a few
established exceptions pursuant to both the Fourth Amendment
to the United States Constitution and Article I, Section 8 of the
Pennsylvania Constitution.
Both the federal and Pennsylvania constitutions permit third
party consent to a search. When police officers obtain the
voluntary consent of a third party who has the authority to give
consent, they are not required to obtain a search warrant based
upon probable cause. …
Commonwealth v. Hughes, 836 A.2d 893, 900 (Pa. 2003) (internal citations
and quotation marks omitted). “The third-party consent to search is an
exception to the exclusionary rule. To evaluate the voluntariness of the
consent to a warrantless search, the court must examine the totality of the
circumstances.” Commonwealth v. Reese, 31 A.3d 708, 722 (Pa. Super.
2011).
Third-party consent may be derived from common or apparent
authority. See generally Commonwealth v. Basking, 970 A.2d 1181,
1184 (Pa. Super. 2009) (describing the doctrines of common authority and
apparent authorities as “corollaries to the consent exception to the warrant
requirement[]”).
The United States Supreme Court has held that a third party
has actual authority to consent to a search if he/she “possesses
common authority over or other sufficient relationship to the
premises or effects sought to be inspected.” [United States v.]
Matlock, 415 U.S. 164[, ] 171 [(1974)]…. The Matlock Court
described “common authority” as follows:
- 22 -
J-A12042-21
Common authority is, of course, not to be
implied from the mere property interest a third party
has in the property. The authority which justifies the
third-party consent does not rest upon the law of
property, with its attendant historical and legal
refinements, but rests rather on mutual use of the
property by persons generally having joint access or
control for most purposes, so that it is reasonable to
recognize that any of the co-inhabitants has the right
to permit the inspection in his own right and that the
others have assumed the risk that one of their number
might permit the common area to be searched.
Id. at n.7 (citations omitted).
Basking, 970 A.2d at 1188.
Further, regarding third-party consent by landlords, “common authority
is not implied by a mere property interest such as that of a landlord. To that
end, a landlord or lessor cannot consent to a search of a tenant’s premises,
regardless of the lessor’s right to enter and inspect.” Commonwealth v.
Davis, 743 A.2d 946, 951 (Pa. Super. 1999) (citations and quotation marks
omitted). However, a lessee’s abandonment of a residence may alter this
analysis. See generally Commonwealth v. Dean, 940 A.2d 514, 519 n.2
(Pa. Super. 2008) (stating that “in the absence of abandonment, a
landlord’s … consent to search leased premises is not effective as against the
tenant….” (emphasis added; citation and quotation marks omitted)).
To prevail on a suppression motion, a defendant must
demonstrate a legitimate expectation of privacy in the area
searched or effects seized, and such expectation cannot be
established where a defendant has meaningfully abdicated his
control, ownership or possessory interest. Simply put, no one has
standing to complain of a search or seizure of property that he has
- 23 -
J-A12042-21
voluntarily abandoned. … [A]bandonment of a privacy interest is
primarily a question of intent and may be inferred from words
spoken, acts done, and other objective facts. All relevant
circumstances existing at the time of the alleged abandonment
should be considered. The issue is not abandonment in the strict
property-right sense, but whether the person prejudiced by the
search had voluntarily discarded, left behind, or otherwise
relinquished his interest in the property in question so that he
could not longer retain a reasonable expectation of privacy with
regard to it at the time of the search.
Commonwealth v. Kane, 210 A.3d 324, 330-31 (Pa. Super. 2019)
(citations, quotation marks, brackets and paragraph break omitted).
A third party’s apparent authority to provide consent to search may also
give rise to an exception to the exclusionary rule. See Commonwealth v.
Perel, 107 A.3d 185, 192 (Pa. Super. 2014).
Third[-]party consent is valid when police reasonably believe a
third party has authority to consent. Specifically, the apparent
authority exception turns on whether the facts available to police
at the moment would lead a person of reasonable caution to
believe the consenting third party had authority over the
premises. If the person asserting authority to consent did not
have such authority, that mistake is constitutionally excusable if
police reasonably believed the consenter had such authority and
police acted on facts leading sensibly to their conclusions of
probability.
Id. (citation omitted).
Here, the trial court concluded that the landlord had both actual and
apparent authority to provide consent to search the residence at 147 W. North
Street. See Trial Court Opinion, 10/28/20, at 6-10. Regarding actual
authority, the trial court stated that
[t]he uncontroverted testimony established that the landlord was
contacted by [CYS] because that agency did not know where the
- 24 -
J-A12042-21
children of [] Jewel (the leaseholder) were. This is consistent with
abandoning the residence. The evidence is uncontroverted that
the landlord went to the residence and observed through the
windows that “everything was gone” inside. Further, Det.
Carbaugh had been watching the property over the course of a
week or so in an effort to locate [Truett]. During his observations,
there was no activity at the residence which would indicate anyone
was living there.
Id. at 8.
Further, regarding apparent authority, the trial court again pointed to
Det. Carbaugh’s repeated attempts to locate Truett, including staking out the
residence. Id. at 9. The trial court also stated that
[w]hen Det. Carbaugh arrived at the residence, the landlord was
already inside the residence; this fact is a potent indicator to an
objective viewer that the landlord had physical possession of the
residence and could consent. The landlord advised Det. Carbaugh
that the property had been abandoned and that she had been
granted possession by the Magisterial District Judge.
Id. The trial court concluded that, based on the circumstances, Det. Carbaugh
could reasonably have concluded that the landlord had authority to provide
consent. Id.
The trial court’s factual findings are supported by the record, and its
legal conclusions are sound. See Arnold, supra. Accordingly, Truett is not
entitled to relief on this claim.
In his fifth claim, Truett argues that the prosecutor engaged in
misconduct during opening statements. Brief for Appellant at 39. Truett
specifically refers to the following portion of the prosecutor’s opening
statement:
- 25 -
J-A12042-21
This case and what we’re all here for today, this case is
about a guy who pedaled [sic] poison on to our streets here in
Franklin County. It’s about a guy whose full-time job was to deal
heroin in our community.
Ladies and gentlemen, because of his own actions[,] a man
is dead. A father lost his golfing buddy. A mother lost her son
because of his decision to pump poison into our streets.
Id. (citing N.T., 12/10/19, at 24-25). Truett claims that the statement was
unsupported by evidence and created prejudice. Id. at 40. According to
Truett, the prosecutor “injected his highly prejudicial personal opinion” of
Truett. Id.
Our review of the trial transcript confirms that Truett did not raise an
objection to the prosecutor’s opening statement. Thus, this claim is waived.
Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (stating
that “[i]n order to preserve an issue for review, a party must make a timely
and specific objection.” (citation omitted)); see also Pa.R.A.P. 302(a)
(providing that “[i]ssues not raised in the trial court are waived and cannot be
raised for the first time on appeal.”).13
In his sixth and final claim, Truett challenges the sufficiency of the
evidence supporting his conviction. Brief for Appellant at 42. Truett argues
____________________________________________
13 Moreover, as the trial court noted in its Opinion, Truett’s attorney agreed to
the characterization of heroin as poison. Trial Court Opinion, 10/28/20, at 11;
N.T., 12/10/19, at 30 (wherein, during the defense’s opening statement,
defense counsel stated, “[The prosecutor] in his opening statement said that
this case was about someone who’s dumping poison in the streets of Franklin
County. I agree with that.”).
- 26 -
J-A12042-21
that there was no direct evidence of the transaction between Truett and Rock;
there was no DNA or fingerprint evidence connecting Truett to the heroin
found in Rock’s room; and there was nothing distinguishable about the heroin
found at the scene. Id. Additionally, Truett challenges the credibility of
Hicks’s trial testimony. Id. Truett also renews his challenge to the jury
instruction regarding DDRID. Id. at 43. According to Truett, he “should be
granted a new trial, or alternatively, a modification of sentence to the lower
end of the standard range….” Id. at 45.14, 15
The standard we apply in reviewing the sufficiency of the
evidence is whether[,] viewing all the evidence admitted at trial
in the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
____________________________________________
14 Truett’s argument is largely underdeveloped, and includes citations only to
our standard of review, the Pennsylvania Suggested Standard Jury
Instruction, and Burrage, which is not binding on this Court. See Pa.R.A.P.
2119(a).
15 To the extent that Truett attempts to challenge the discretionary aspects of
his sentence, such claim is waived, as he failed to provide argument on the
issue, include a separate Rule 2119(f) statement in his brief, or raise the issue
in his Statement of Questions Involved. See Pa.R.A.P. 2119(a) (providing
that an appellant’s argument shall include “such discussion and citation of
authorities as are deemed pertinent.”), (f) (stating that “[a]n appellant who
challenges the discretionary aspects of a sentence in a criminal matter shall
set forth in a separate section of he brief a concise statement of the reasons
relied upon for allowance of appeal….”); Pa.R.A.P. 2116(a) (providing that
“[n]o question will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby.”).
- 27 -
J-A12042-21
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact, while passing upon the
credibility of witnesses and the weight of the evidence produced
is free to believe all, part or none of the evidence.
Commonwealth v. Talbert, 129 A.3d 536, 542-43 (Pa. Super. 2015)
(citation omitted). “Both direct and circumstantial evidence must be
considered equally when assessing the sufficiency of the evidence …, and the
Commonwealth may sustain its burden of proving every element of the crime
beyond a reasonable doubt by relying wholly on circumstantial evidence.”
Commonwealth v. Davalos, 779 A.2d 1190, 1193 (Pa. Super. 2001).
In its Opinion, the trial court summarized the relevant testimony, and
concluded that Truett’s claim lacks merit. See Trial Court Opinion, 10/28/20,
at 12-36. Significantly, the trial court pointed to the testimony of Detective
Jason Taylor (“Det. Taylor”), a member of the Franklin County Drug Task
Force. See id. at 19-21. Det. Taylor indicated that the heroin at the scene
of Rock’s death was found in unique packaging, which he previously had not
seen in Franklin County. See id. at 20; N.T., 12/10/19, at 168-69 (wherein
Det. Taylor explained that the heroin found at the scene was “placed in to [sic]
a straw and then the straw was closed on each end by being burned and
pressed or, you know, had some heat source and then being pressed
together….”). “Similar items were recovered from [Truett’s] apartment.” Trial
- 28 -
J-A12042-21
Court Opinion, 10/28/20, at 21; N.T., 12/10/19, at 176-77 (wherein Det.
Taylor reviewed Commonwealth’s Exhibit 56 (items recovered from Truett’s
apartment), and stated that there was a “clear straw. There’s some smaller
pieces cut. There’s also one package in here—let me make sure. There’s one
package in here that appears to have burnt or heated ends to it that was
similar to what we found in the room where [] Rock was found.”). Upon
review, we agree with the trial court’s determination that the evidence, viewed
in the light most favorable to the Commonwealth as the verdict winner, was
sufficient to sustain Truett’s DDRID conviction. We affirm on the basis of the
trial court’s Opinion as to this claim. See Trial Court Opinion, 10/28/20, at
12-36.16
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/2/2021
____________________________________________
16 Additionally, to the extent that Truett asks us to reassess Hicks’s credibility,
we note that such task rests solely with the fact-finder. See Talbert, supra.- 29 -
Circulated 07/21/2021 10:07 AM
-�
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL
DISTRICT OF PENNSYLVANIA-FRANKLIN COUNTY
COMMONWEALTH OF PENNSYLVANIA CRIMINAL ACTION
/
CP-28-CR-000865-2015
v.
JUDGE JEREMIAH D. ZOOK
BRADLEY JAY TRUETT,
DEFENDANT
OPINION - Pa.R.A.P. 1925(a)
I. PROCEDURAL HISTORY
On December 13, 2019, a jury convicted the Defendant of,
inter alia, Drug Delivery Resulting in Death (DDRID).1 See Verdict
Slip, December 13, 2019. The court imposed sentence on January
17, 2020. See Order of Court, January 17, 2020.
The Defendant filed a timely Post-Sentence Motion on January
27, 2020. The court directed the Commonwealth to respond and
scheduled hearing for March 12, 2020. See Order, January 28,
2020. On February 27, 2020, the Defendant requested a
continuance of the hearing. See Motion for Continuance, February
1 See 18 Pa.C.S. § 2506(a).
Filed OCT 2 8 2020F
-
Clerk
27, 2020. The court granted the continuance until March 30, 2020.
See Order of Court, February 27, 2020.
On March 18, 2020, the Supreme Court of Pennsylvania
ordered all courts generally closed and continued non-essential
proceedings pending further order of the individual President
Judges. See In re: General Statewide Judicial Emergency, Nos. 531
and 532 Judicial Administration Docket (March 18, 2020). These
restrictions remained generally in place through June 1, 2020. See
In re: General Statewide Judicial Emergency, Nos. 531 and 531
Judicial Administration Docket, Second Supplemental Order (April
1, 2020); see also In re: General Statewide Judicial Emergency, Nos.
531 and 532 Judicial Administration Docket, Emergency Order of
Statewide Judicial Administration Applicable From May 1, 2020,
through June 1, 2020 (April 28, 2020). These directives resulted in
the automatic cancelation of the March 30, 2020, hearing in this
matter.
On April 3, 2020, counsel for the Defendant sought leave to
withdraw due to new employment. See Petition to Withdraw, April
3, 2020. The court granted the request and appointed present
counsel to represent the Defendant; the court further directed that
2
hearing on the Post-Sentence Motion would be scheduled upon the
expiration of the judicial emergency then in effect. See Order of
Court, April 8, 2020.
Upon this court determining the state-wide judicial emergency
would not extend beyond June 1, 2020, and with the permission of
the President Judge of the 39th Judicial District, hearing on the
Defendant's Post-Sentence Motion was scheduled for June 11, 2020.
See Order, May 11, 2020. The Defendant was directed to appear via
advanced communication technology (ACT). Id.
Although the record is silent as what occurred on June 11,
2020, the court recalls from memory that the Defendant was unable
to appear via ACT from the state correctional institute.? The
Defendant requested the court extend the deadline for decision on
the pending Post-Sentence Motion. See Motion to Extend Deadline to
Decide Post-Sentence Motion, June 12, 2020. The court granted the
request. See Order of Court, June 12, 2020.
Hearing was ultimately scheduled for and held on July 31,
2020. See Order, June 16, 2020. This court denied the
2 We are generally aware of the great difficulty in scheduling ACT appearances from the SCI
due to the dramatic increase in ACT use resulting from the COVID-19 pandemic. If memory
serves, the SCI advised court administration that the previously scheduled hearing could no
longer be accommodated.
3
Defendant's Post-Sentence Motion on August 12, 2020. See Order,
August 12, 2020.
The Defendant filed the instant timely Notice of Appeal on
September 9, 2020. On September 10, 2020, the court directed the
Defendant to file and serve a concise statement of errors. See
Order, September 10, 2020. The Defendant timely complied on
October 1, 2020. See Concise Statement of Errors Complained of on
Appeal ( Concise Statement), October 1, 2020.
II. OPINION ON CLAIMS OF ERROR
A. The Trial Court erred by failing to instruct the jury relating
to the drug delivery resulting in death charges as the court's
instructions did not sufficiently advise the jury of the
requirement of "but-for causation. "3
We believe this claim of error relates to this court's ruling on
the Defendant's Objection to Commonwealth's Proposed Jury
Instruction (Objection), filed December 9, 2020. The Defendant's
Objection was filed in response to the Commonwealth's Requested
Points for Charge, filed November 22, 2019, at pp. 3 - 4 (relating to
DORIO). We are unaware of any other objection lodged by the
Defendant to the jury instruction for the DORIO charge.
3 Concise Statement, ,i 1.
4
On the first day of trial, and prior to the jury entering the
courtroom, this court issued an order overruling the Defendant's
Objection to the Commonwealth's proposed jury instruction. See
Order of Court, December 10, 2019. Prior to issuing the order, we
set forth on the record our conclusions of law. See Transcript of
Proceedings of Jury Trial (Tr.I), December 10, 2019, pp. 3 - 7. We
rely on our reasoning therein, and the appellate decisions noted in
support.
B. The trial court erred in allowing the trial beyond the 365
day-period prescribed by Rule 600 by not sufficiently
considering defendant's Rule 600 motion to dismiss and not
sufficiently assessing whether there is excludable time and/ or
excusable delay in the 648 days to tzlal."
As the Superior Court may likely find, the record of these
proceedings is a convoluted bag of counseled pleadings and
numerous pro se filings/ correspondence. Complicating things
further is the fact that the Defendant has been represented by
numerous attorneys over the tortured history of this case. It may
be no easy feat to identify where in the record the asserted error
lies.
4 Concise Statement, ,r 2.
5
The record reveals no less than four (4) motions5 seeking
dismissal of the charges under Pa.R.Crim.P. 600. To this court's
knowledge, the first three motions were deemed
withdrawn/ dismissed without prejudice to the filing of a new
motion to dismiss. See Order of Court, February 22, 2018, ,r 1. We
presume, therefore, the Defendant claims error related only to the
court's ruling on the March 9, 2018, Motion to Dismiss. This court
authored a comprehensive Opinion setting forth our reasons for
denying the Motion to Dismiss. See Opinion and Order, March 26,
2018. We refer the Honorable Superior Court to that Opinion as it
adequately explains our reasoning.
C. The trial court abused its discretion in precluding
testimony regarding the criminal history of a key prosecution
witness which hindered Defendant's ability to mount a defense
to include witness Hick's background as a drug dealer. 6
Although not specifically cited to in the record by the
Defendant, we believe the asserted erroneous ruling occurred on the
second day of the jury trial. See Transcript of Proceedings of Jury
5 1) Motion to Dismiss Pursuant to Pa.R.Crim.P. 600(2)(a), filed prose on December 17, 2017; 2)
Motion for Request to Dismiss Pursuant to Pa.R.Crim.P. 600(G}, filed by Attorney Weisbrod on
December 18, 2017; 3) Amended Motion to Dismiss Pursuant to Pa.R.Cim.P. 600, filed by
Attorney Weisbrod on December 22, 2017; and 4) Motion to Dismiss, filed by Attorney Kulla on
March 9, 2018.
6 Concise Statement, ,r 3.
6
Trial (Tr.2), December 11, 2019, pp. 56 - 60.7 Contrary to the
Defendant's assertion, this court permitted the Defendant to explore
with Mr. Hick's his prior involvement with the police as a
confidential informant, including the reason he cooperated with the
police before this incident, i.e., evidence of being implicated in an
unrelated drug delivery. See Tr.2, p. 60. However, the court did not
permit the Defendant to admit evidence that Mr. Hick's was
previously convicted of that drug delivery. Id. As we explained to
the attorneys at the time, evidence of the prior delivery conviction is
not motive for cooperating with the police in a later, unrelated,
investigation into this DDRID.
The Defendant sought leave of the court to ask Mr. Hicks
about his prior drug delivery conviction. See Tr.2, p. 56. The
Commonwealth objected citing the fact that Mr. Hicks testified he
cooperated with the Commonwealth in the DDRID without
expectation of consideration. Id. We noted that the Defendant had
not tied Mr. Hick's prior drug conviction with the charges against
the Defendant. Id. However, we permitted the Defendant to explore
7 The day prior, the Court heard argument from the parties on this question as well; there was
significant discussion between the Court and counsel on this issue. See Tr.1, pp. 198 - 230.
7
his relationship with law enforcement as a confidential
informant/cooperating witness. See Tr.2, p. 57.
During the Defendant's subsequent cross-examination of Mr.
Hicks, the Commonwealth lodged a second objection. See Tr.2, p.
60. At that time, the court clarified that the Defendant was entitled
to question Mr. Hicks regarding his cooperation with law
enforcement, including questioning about pnor drug activity that
initially brought him to attention of the police. Id. However, we
maintained our ruling that evidence of Mr. Hick's prior conviction
for drug delivery, unrelated to the instant case, was not admissible.
Id.
To the extent the Defendant complains that the court
prohibited him from probing Mr. Hick's "criminal history," the
record belies that assertion. As we indicated above, the Defendant
was permitted to question Mr. Hicks regarding his prior cooperation
with law enforcement, including the reason he came to the attention
of the police in the first place. What was prohibited was evidence of
the Mr. Hick's conviction for drug delivery, which there is no
dispute was unrelated to, i.e., had nothing to do with, the charges
against the Defendant. The Defendant probed Mr. Hicks for bias in
8
favor of law enforcement, including whether he had been promised
anything in exchange for his cooperation. See Tr.2, pp. 55, 58 - 61.
We fail to see how Mr. Hicks prior convictions was relevant to
motive to cooperate subsequently with law enforcement in this
matter.
D. The trial court erred in denying Defendant's motion to
suppress evidence found at the residence of 147 W. North St.
where property was searched after it was simply alleged by the
property owner that the Defendant had abandoned the
property.9
We authored findings of fact and conclusions of law in support
of our order denying the Defendant's suppression motion. See
Opinion and Order, July 13, 2018. We refer the Honorable Superior
Court to that Opinion, as it adequately explains our reasoning.
E. During Defendant's trial, the prosecutor engaged in various
forms of misconduct including making a statement "The
defendant's full-time job was peddling poison on the streets."
At no time during the trial was the statement supported by
evidence of record and it created prejudice.10
Trial in this matter occurred over the course of four days.
Although the transcripts from the trial have been in the record
since April 16, 2020, the Defendant does not bother to cite
s There is no dispute the crime of delivery of a controlled substance is not a crime of
dishonesty, which would otherwise be admissible under Pa.R.E. 404(a)(3) and 609(a).
9 Concise Statement, '1] 4.
10 Concise Statement, ,r 5.
9
specifically where/when these statements were alleged to have been
made. However, with the assistance of computer technology.t! this
court identified two places in the trial transcripts where peddling
"poison" was put to the jury.
At the beginning of Commonwealth's opening statement to the
jury, the prosecutor stated:
This case and what we're all here for today,
this case is about a guy who pedaled poison on
to our streets here in Franklin County. It's
about a guy whose full-time job was to deal
heroin in our community.
Ladies and gentlemen, because of his own
actions a man is dead. A father lost his golfing
buddy. A mother lost her son because of his
decision to pump poison into our streets.
Tr.1, pp. 24 - 25. The Defendant did not lodge an objection at the
time the Commonwealth made these statements; the Defendant did
not lodge an objection to these statements at the end of the
Commonwealth's opening statement. See Tr.1, p. 29.
11 In addition to the original transcripts in the record, this court has the benefit of electronic
versions in .pdf format. These electronic versions allow a search of the documents for specific
words or phrases. We utilized this function for purposes of this opinion; we certainly did not
read the entire transcript in a search for these words. We believe it is incumbent on the
Defendant to appropriately identify the portion of the record where the asserted error lies. Had
the Defendant done so, both this court and the Honorable Superior Court would know
precisely the claim at hand; rather, we are left to speculate based on our own search.
10
In fact, the Defendant agreed that heroin is poison and
someone was pumping into the streets of Franklin County. During
his opening statement to the jury, counsel for the Defendant stated:
Attorney Faust in his opening statement said
that this case was about someone who's
dumping poison in to the streets of Franklin
County. I agree with that. I totally 100
percent agree, but that person was not [the
Defendant]. That person was who the
Commonwealth is asking you to believe in this
case. That person was Christopher Hicks.
Tr. l, p. 30. In light of the Defendant's failure to object to the
Commonwealth's statement to the jury and his own agreement with
the same (other than who was responsible), the issue he now seeks
reviewed is waived. As our Supreme Court has noted:
Issue preservation is foundational to proper
appellate review. Our rules of appellate
procedure mandate that 'issues not raised in
the lower court are waived and cannot be
raised for the first time on appeal.' Pa.R.A.P.
302(a). By requiring an issue be considered
waived if raised for the first time on appeal,
our courts ensure that the trial court that
initially hears a dispute has had an
opportunity to consider the issue. This
jurisprudential mandate is also grounded
upon the principle that a trial court, like an
administrative agency, must be given the
opportunity to correct its errors as early as
possible. Related thereto, we have explained
m detail the importance of this preservation
11
requirement as it advances the orderly and
efficient use of our judicial resources. Finally,
concepts of fairness and expense to the parties
are implicated as well.
In re F.C. III, 2 A.3d 1201, 1211 - 12 (Pa. 2010) (internal citations
omitted).
F. The evidence presented was insufficient to establish that
every element of the Drug Delivery Resulting in Death charge
was proven, that the delivery: ( 1) was committed by the
accused; and, (2) the drug delivered caused the victim's death -
as it fails to sufficiently indicate an adequate level of causation
for the result-of-conduct.I?
A challenge to the sufficiency of the evidence presented to
sustain a conviction is subject to well-settled principles:
In reviewing a sufficiency of evidence claim, we
must determine whether the evidence admitted
at trial, as well as all reasonable inferences
drawn therefrom, when viewed in the light
most favorable to the verdict winner, are
sufficient to support all elements of the
offense. Additionally, we may not reweigh the
evidence and substitute our own judgment for
that of the fact finder. The evidence may be
entirely circumstantial as long as it links the
accused to the crime beyond a reasonable
doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa.Super. 2011)
(internal citations omitted). The following evidence was presented
at trial:
12 Concise Statement, 'I] 6.
12
Testimony of Scott Rock
In July 2014, Mr. Rock was living in an apartment in the
Borough of Waynesboro, Franklin County, with his wife, two sons,
and his grandson. Tr. I, pp. 34 - 36. The victim, Bryon Rock.l ' was
one of Mr. Rock's sons residing with him. Mr. Rock testified that
the victim suffered an injury to his finger in the past; the victim
subsequently became addicted "pills" as a result. Tr.I, p. 39.
In July 2014, the victim admitted to Mr. Rock that he had
begun using heroin. Tr.I, p. 39. On the evening of July 21, 2014,
the victim told his father he was tired and was heading to bed; he
asked his father to wake him up in the morning because he had to
be at work early. Tr.I, p. 39.
The fallowing morning, Mr. Rock knocked on the victim's room
for approximately 10 minutes; he received no respond. Tr. l, p. 40.
Mr. Rock gave up trying to roust his son and found a screwdriver to
jimmy the lock. Id. Upon entering the room, he found his son
dead. Tr. l, p. 41. After suffering the shock of finding his son
deceased, Mr. Rock informed his wife and called 911. Tr. I, p. 41.
13 Quite inexplicably, the Commonwealth never asked Mr. Rock what his relationship was with
the victim; however, this fact is not in dispute.
13
Testimony of Jeffrey R. Conner
Mr. Conner is the Franklin County Coroner. Tr. I, p. 48. He
responded to the scene of the victim's death. Id. Upon entering the
room, he observed "drug paraphernalia" hear the body. He and the
police department initiated an investigation into the cause of death.
Tr. I, p. 49 - 50. Coroner officials photographed the scene. Tr. I,
pp. 50 - 51. A number of photographs were admitted into evidence.
Tr. I, pp. 51, et seq; see also Commonwealth's Exhibits 6 - 36.
Based upon the Coroner's investigation of the scene, it appeared the
victim died in the same position he was found. Tr. I, pp. 55 - 57.
The investigation of the room also revealed an area where it
appeared controlled substances were prepared for injection. Tr. I, p.
55; 58. Mr. Conner explained the drug paraphernalia to the jury in
the context of a suspected heroin overdose. Tr. I, pp. 58 - 60.
The Coroner arranged for the removal of the body from the
scene. Tr. I, p. 60. He arranged for a forensic autopsy, which
would include a complete examination of the victim's body. Tr.I,
pp. 59 - 60. The Coroner relies heavily on the results of the
forensic autopsy to issue his ruling on the cause and manner of
death. Tr.I, p. 61. After reviewing the evidence and the autopsy
14
results, the Coroner ruled the cause of death was mixed-substance
toxicity and the manner of death was accidental overdose. Tr. I, pp.
62 - 63; see also Commonwealth's Exhibit 37.
Testimony of Nadine Koenig
Ms. Koenig is employed by Health Network Laboratories as a
technical specialist. Tr. I, p. 76. She has been employed at Health
Network Laboratories for thirty (30) years in various capacities
including technologist, certifying scientist, lead tech, and manager.
Id. She holds a bachelor of science in biology from Shippensburg
University, a bachelor of science in medical technology from
Shippensburg University, is a certified toxicological chemist by the
National Registry of Certified Chemists, and a member of the
Society of Forensic Toxicologists. Tr. I, pp. 76, 79. She has
experience in analyzing bodily fluids since the beginning of her
thirty (30) year career, and has conducted thousands of individual
fluid analyses. Tr.l, p. 77. This court held her to be an expert in
the field of forensic toxicology. Tr. I, p. 79.
The victim's blood was examined by Joann Sell at Health
Network Laboratories; Ms. Sell had since retired. Tr.1, p. 80 - 81;
see also Commonwealth's Exhibit 39. The parties stipulated to the
15
admission of Ms. Sell's report without the need for her to testify.l+
Tr.1, p. 81. The victim's blood contained Codeine, morphine,
Clonazepam, 7-Aminoclonazepam, Marijuana (THC), 11-Hydroxy
Delta-9 THC, and Carboxy-Delta 9 THC. Tr.1, pp. 83 - 84. 6-
Monoacetylmorphine was in the victim's unne. Tr. I, p. 84. 6-
Monoacetylmorphine rs a specific metabolite of heroin.15 Tr. I, p.
84. Because of the presence of 6-Monoacetylmorphine in the
victim's urine, the victim had consumed heroin. Tr.I, pp. 86 - 87.
There was one-thousand-three-hundred- ten (1,310)
nanograms per milliliter of morphine in the victim's blood; there
was one-thousand-sixty (1,060) nanograms per milliliter of 6-
Monoacetylmorphine in the victim's urine. Tr.1, p. 83. Heroin
metabolizes into 6-Monoacetylmorphine within one (1) to six (6)
minutes. Tr.1, p. 85. 6-Monoacetylmorphine metabolizes into
morphine in about twenty (20) minutes. Tr. I, p. 85. Due to these
high metabolism rates, it is not uncommon to find morphine in the
blood but not 6-Monoacetylmorphine. Tr.1, p. 86.
14At the time Ms. Sell conducted the testing and generated her report, Ms. Koenig was training
to replace Ms. Sell. Tr. L, p. 83. Ms. Koenig took over Ms. Sell's position in 2015. Id.15 Heroin's scientific name is Diacetylmorphine. Tr. l, p. 84. In the human body,
Diacetylmorphine metabolizes into 6-Monoacetylmorphine, which in turn metabolizes into
morphine. Tr. I, pp. 84 - 85.
16
There is no therapeutic level in the literature for morphine.
Tr.1, p. 89. It is the individual's tolerance for the substance and
medical purpose for its administration (pain relief) that govern its
use. Id. However, there are toxic and fatal levels of morphine in
the literature, and they overlap. Id. The literature establishes
fatalities from morphine anywhere from two-hundred (200)
nanograms per milliliter to two-thousand-three-hundred
nanograms per milliliter. Id. However, there are some reported
cases of fatalities with as little as thirty (30) nanograms per milliliter
to as high as five-thousand (5,000) nanograms per milliliter of
morphine in the victim's blood. Tr.1, p. 90.
Testimony of Dr. Michael Johnson
Dr. Johnson is employed by Health Network Laboratories and
Forensic Pathology Associates. Tr. l, p. 120. He is a medical
forensic pathologist and neuropathologist. Id. He holds both a
medical degree and a Ph.D. in neuroscience. Tr.1, pp. 120 - 21. At
the time of his testimony, he had perfarmed between two and three
thousand autopsies. Tr.l, p. 121. This court found him to be an
expert in the field of forensic pathology. Tr.1, p. 122. Dr. Johnson
17
performed the autopsy on the victim and generated a report with
his findings. Tr.1, p. 123; Commonwealth's Exhibit 43.
Dr. Johnson educated the jury on the process of conducting
an autopsy to determine a cause of death. Tr. l, pp. 124 - 26. After
conducting the autopsy on the victim in this case, Dr. Johnson
formed the opinion that the cause of death was mixed substance
toxicity. Tr.1, p. 127. His opinion was to a reasonable degree of
medical certainty. Tr.1, p. 127.
As Dr. Johnson explained to the jury the meaning of mixed
substance toxicity. Tr.1, pp. 127 - 28. Based upon Dr. Johnson's
evaluation of the toxicological testing results, he concluded that the
victim abused heroin. Tr.1, pp. 130 - 31. In terms of causing the
victim's death, Dr. Johnson found the opiates in the victim's
system, of all the substances present, to be "most concerning."
Tr.1, p. 132. On this concern, the Commonwealth posed the
following question:
COMMONWEALTH: So then let me just give a
hypothetical, Doctor. If
there was evidence
tending to prove that [the
victim] met with someone
pnor to their death,
obtained heroin from
18
them, brought it home,
used it and you've done
the autopsy, you've seen
the toxicology, would you
confirm to me that the
heroin is a direct and
substantial factor in
bringing about that
person's death?
DR. JOHNSON: Yes.
Tr.I, p. 133 (emphasis added).
Testimony of Detective Jason Taylor
Detective Taylor is employed by the District Attorney as a
member of the Franklin County Drug Task Force. Tr. I, p. 151.
Det. Taylor holds associate and bachelor's degrees in criminal
justice. Tr.l, p. 152. He has been a police officer since 1997, and
primarily assigned to narcotics investigations for twenty-two years.
Tr.1, pp. 151 - 52. Det. Taylor received training from the United
States Coast Guard, the Drug Enforcement Administration, the
Federal Bureau of Investigation, and the Pennsylvania Office of the
Attorney General. Tr.1, p. 152. He personally investigated
approximately one-thousand ( 1,000) drug cases; he has been
involved in approximately two-thousand (2,000) drug investigations.
Tr.I, p. 153. At the request of the Commonwealth and without
19
objection from the Defendant, this court found Det. Taylor to be an
expert in the area of drug investigations and trafficking of controlled
substances in Franklin County. Tr.1, p. 156.
Det. Taylor assisted the Waynesboro Police Department in the
investigation of the victim's death. Tr.1, p. 157. Det. Taylor
explained, based upon his observations and in light of his
education, training, and experience, the various pieces of evidence
found at the scene of the victim's death. Tr. I, pp. 157 - 64. Det.
Taylor confirmed the cellular telephone found at the scene belonged
to the victim. Tr.l, p. 164.
The Commonwealth presented a compact disc containing a
download of the contents of the victim's phone. Tr. I, p. 165; see
also Commonwealth's Exhibit 51. The download contained logs of
calls and text messages. Tr.1, pp. 164 - 65; see also
Commonwealth's Exhibits 52 & 53.
Det. Taylor noted the heroin packaging at the scene of the
victim's death involved the use of a straw to hold the heroin, then
melting the ends shut to form a package. Tr. l, p. 168. This was a
unique method of packaging previously unseen by Det. Taylor in
Franklin County. Tr.I, pp. 168 - 69. He reviewed the forty-nine
20
(49) previous heroin investigations that year; none of them involved
packaging similar to that found in this case. Tr. I, p. 169. Similar
items were recovered from the Defendant's apartment. Tr. l, p. 176-
77; see also Commonwealth's Exhibit 56. In Det. Taylor's expert
opinion, the straws/materials recovered from the Defendant's
apartment matched those items recovered from the scene of the
victim's death. Tr.1, p. 1 77. Det. Taylor opined that heroin, unlike
most other illicit substances, is in a sense a branded product; users
want to make sure what they are purchasing is of the same potency
they experienced before. Tr.1, p. 180.
Det. Taylor participated in a consensual interception of a
telephone call between the Defendant and Christopher Hicks at the
outset of the investigation. Tr. I, pp. 169 - 70; see also
Commonwealth's Exhibit 55. The recording was played for the jury.
The police also utilized Mr. Hicks to arrange a meeting with the
Defendant at a park in Waynesboro. Tr.l, p. 177. The Defendant
never appeared for the meeting. Tr.I, p. 178.
Testimony of Christopher Hicks
Mr. Hicks met the victim through a group of friends; they used
heroin to get high together. Transcript of Proceedings of Jury Trial,
21
December 11, 2019 (Tr.2), p. 6. The Defendant was part of this
group of friends. Id. Hicks purchased heroin from the Defendant.
Id. In fact, Hicks would travel with the Defendant to Baltimore
where the Defendant purchased heroin in bulk. Tr.2, pp. 7 - 8.
The Defendant then sold the heroin to "buyers" upon returning to
Franklin County. Tr.2, p. 8. The Defendant gave heroin to Hicks in
exchange for taking him to Baltimore and also for arranging drug
deals. Tr.2, p. 8.
Hicks introduced the victim to the Defendant. Tr.2, p. 10. The
victim was looking to trade his Subutex pills for heroin. Id. Hicks
was aware the Defendant was looking to purchase Subutex pills
and had heroin to sell. Id. Hicks communicated with the
Defendant by phone; the phone belonged to the Defendant's
girlfriend, Laura Jewel. Tr.2, p. 11. Hicks also communicated with
the victim via phone. Tr. 2, p. 11.
On July 21, 2014, Hicks arranged a meeting between the
Defendant and the victim. Tr.2, pp. 12 - 13. Hicks spoke with the
victim by phone and they discussed the victim's desire to trade
Subutex for heroin. Tr.2, p. 14. The victim and Hicks met with the
Defendant and the victim exchanged heroin for Subutex and cash;
22
this was detailed in a number of text messages between the victim
and Hicks. Tr.2, pp. 15 - 18; see also Commonwealth's Exhibits 52
&53.
The following day, July 22, 2014, the victim asked Hicks to get
him some heroin. Tr.2, pp. 18 - 19. Hicks advised the victim to go
directly to the Defendant since they had met the day before. Id.Later on, Hicks was at the Defendant's home; he was often there.t>
Tr.2, pp. 23 - 24. Hicks texted the victim and advised him he was
not going to be the middleman for the heroin deal; Hicks advised
the Defendant of the same thing. Tr.2, p. 24. Hicks did not want to
be involved since he was not receiving any heroin in return. Tr.2, p.
24 - 25. He told the victim to contact the Defendant directly. Tr.2,
pp. 26 - 27.
Immediately after this, the Defendant had communication with
the victim. Tr.2, pp. 29 - 30. The Defendant advised Hicks that he
was going to meet the victim. Tr.2, p. 30. The Defendant left and
Hicks remained at the Defendant's residence. Tr.2, p. 30 - 31.
When the Defendant returned, Hicks left and returned home. Tr.2,
16 Hicks later testified that he, the Defendant, and the Defendant's girlfriend were getting high
at this time. Tr.2, p. 29.
23
p. 31. Before Hicks left, the Defendant commented that the victim
looked "messed up." Tr.2, p. 37.
Hicks was familiar with how the Defendant packaged heroin.
Tr.2, p. 31. The Defendant used aluminum foil or straws. Id.Hicks received heroin in such packaging from the Defendant in the
past. Id. Although Hicks did not see the Defendant package the
heroin he delivered to the victim that night, Laura Jewell told Hicks
the Defendant was using straws. Tr.2, p. 35.
The following day, police detectives arrived at Hicks' residence.
Tr.2, p. 37. Hicks agreed to go to the police station for an interview.
Tr.2, pp. 37 - 38. He provided a written statement to the police
regarding his knowledge of the victim's dealings with the Defendant
the evening before. Tr.2, pp. 39 - 40; see also Commonwealth's
Exhibit 57.
Hicks agreed to conduct the consensual electronic intercept of
a phone call with the Defendant. Tr.2, pp. 41 - 42. Hicks
confirmed that it was the Defendant on the recorded phone call.
Tr.2, p. 43; see also Commonwealth's Exhibit 53. Hicks also tried
to get Laura Jewell to meet him at a park. Tr.2, p. 44. Jewell did
not appear. Tr.2, pp. 44 - 45. Hicks denied selling the heroin to
24
the victim and denied giving anything to the victim on the night he
died. Tr.2, p. 45.
Testimony of Albert Lattanzi
Mr. Lattanzi is employed by the Pennsyvlania State Police as a
forensic science supervisor. Tr.2, p. 81. Without objection, Mr.
Lattanzi was found to be an expert in the area of drug identification.
Tr.2, p. 83.
Mr. Lattanzi analyzed evidence gathered from the scene of the
victim's death for the presence of controlled substances; he
thereafter generated a written report detailing his findings. Tr.2, p.
85; see also Commonwealth's Exhibit 62. Several plastic packets
were analyzed and found to contain heroin. Tr.2, pp. 86 - 87. No
other controlled substances were found in those plastic packets.
Tr.2, p. 94.
Testimony of Gail Miller
In 2014, Ms. Miller was the manager of several properties in
Waynesboro. Tr.2, p. 95. One of those properties was the residence
located at 14 7 West North Street. Id. Laura Jewell was the lessee
of that residence in July 2014. Tr.2, p. 98. The Defendant was not
a lessee and was not an approved resident on the lease. Tr.2, p. 98.
25
In late August 2014, Ms. Miller received a call from the
Children and Youth Service; they asked whether she knew where
Jewell's children were. Tr.2, p. 99. Ms. Miller went to the residence
and looked in the window. Id. It appeared "everything was gone."
Id. She then initiated eviction proceedings; eventually she obtained
an order of possession. Tr.2, pp. 100 - 01.
At some point thereafter, Detective Travis Carbaugh made
contact with Ms. Miller. Tr.2, p. 101. He requested permission to
search the residence. Id. Ms. Miller granted permission to search.
Tr.2, pp. 101 - 02; see also Commonwealth's Exhibit 60.
Testimony of Laura Jewell
Laura Jewell was the former girlfriend, and current friend, of
the Defendant. Tr.2, p. 106. She remained closed to the Defendant
at the time of trial. Tr.2, pp. 106 - 07. At the time of this incident,
Jewell and the Defendant were romantically involved and living
together at the 147 North West Street residence. Tr.2, p. 108. In
addition to Jewell and the Defendant, five (5} minor children resided
in the household.
At the time, neither she nor the Defendant was employed.
Tr.2, p. 108. Jewell received $1,200.00 per month in child support.
26
Tr.2, pp. 108 - 09. None of the five (5) children were employed.
Tr.2, pp. 108 - 09. Their monthly rent was $600.00. Tr.2, p. 110.
Jewell received "help" with paying her electric and grocery bills.
Jewell was the only source of income for the household. Tr.2, p.
111.
Jewell denied the Defendant was a heroin dealer; she also
denied that he would leave the house with her cell phone. Tr.2, pp.
111 - 12. She confirmed Hicks was "dealing" heroin, but more as a
"middleman." Tr.2, p. 112. Hicks would receive some heroin in
exchange for setting up drug deals. Tr.2, p. 112.
On July 22, 2014, Jewell was suffering from heroin
withdrawal. Tr.2, p. 114. As a result, her memory of that evening's
events was "hazy." Tr.2, p. 113. She recalled wanting to not go
back to using heroin, that she wanted Subutex instead, that Hicks
and the Defendant left the residence that evening, and that they
were gone for less than an hour. Tr.2, p. 115. The following day,
the Defendant told Jewell that he had met with the victim the night
before. Tr.2, p. 116.
After Hicks called the Defendant the following day, the
Defendant was concerned about the victim's death impacting
27
"problems [the Defendant had] in York County." Tr.2, p. 117. The
Defendant and Jewell decided to flee the area. Tr.2, p. 118. They
essentially left without packing anything of significance, fleeing to
the State of Maryland. Tr.2, pp. 117 - 18. The Defendant was
arrested in Maryland approximately a year later; at the time of his
arrest, both Jewell and her aunti? lied to the police about the
Defendant's whereabouts. Tr.2, pp. 120 - 23.
Testimony of Detective Travis Carbaugh
Det. Carbaugh was employed at the Waynesboro Police
Department and responded to the scene of the victim's death. Tr.2,
pp. 151 - 53. Waynesboro Police officers, the Franklin County
Coroner's Office, and the victim's family were on scene when Det.
Carbaugh arrived. Tr.2, p. 153.
Part of Det. Carbaugh's investigation involved analyzing the
contents of the victim's phone. Tr.2, p. 153. Det. Carbaugh
determined that the victim had contacted both Hicks and the
Defendant prior to his death. Tr.2, p. 153 - 55. Det. Carbaugh
reviewed a number of text messages and incoming/ outgoing phone
17 The Defendant and Jewell were residing with Jewell's aunt at the time. Tr.2, p. 122.
28
calls between Hicks, the Defendant, is and the victim for the jury.
Tr.2, p. 155 - 66. These texts/ calls established the victim
communicated with the Defendant to arrange a trade of
Subutex/ Suboxone and cash in exchange for heroin. Tr.2, p. 155 -
66.
Det. Carbaugh also searched the Defendant's residence at 147
West North Street, after receiving permission from Ms. Miller. Tr.2,
p. 167. It appeared that whoever was living there "had just up and
left." Id. During his search, Det. Carbaugh located "several pieces
of plastic straw that were similar to the ones that [ they] found in
[the victim's] bedroom that contained heroin, the residue." Tr.2, p.
169. Some of the straw pieces had burnt ends, and several larger
pieces appeared to have their ends cut off. Tr.2, p. 170. Det.
Carbaugh also recovered a piece of mail addressed to the Defendant
at the 14 7 West North Street address. Tr.2, p. 173.
Testimony of Cameron Truett
Cameron Truett is the Defendant's son. Transcript of
Proceedings of Jury Trial (Tr.3), December 12, 2019, p. 6. He lived
with the Defendant in 2014. Id. Cameron identified several items
12 The phone number in question belonged to Jewell; per Hicks, the Defendant utilized Jewell's
phone to conduct drug transactions. Tr.2, p. 11.
29
that were found in his room by the police. Tr.3, p. 10 - 11. He
acknowledged that he was a heroin addict at the time. Tr.3, p. 11.
He obtained heroin from Hicks, and it was packaged in bags
"sometimes" but "mostly'' it was in straw containers. Tr.3, p. 12.
He denied ever using heroin with the Defendant or Jewell. Tr.3, p.
13.
Testimony of Keanna Truett
Keanna Truett is the Defendant's daughter. Tr.3, p, 25. She
lived with the Defendant at the time in question. Tr.3, p. 26. She
identified Cameron's room as the room where the police found the
heroin paraphernalia. Tr.3, pp. 29 - 30.
Keanna was present on the night in question. Tr.3, p. 30 - 31.
She saw Hicks arrive at the residence; Hicks asked where the
Defendant was. Tr.3, p. 31. Keanna told him the Defendant was
upstairs. Tr.3, p. 31. Hicks went upstairs. Tr.3, p. 31. Keanna
then saw the Defendant and Hicks leave together; they were not
gone very long and both returned to the house. Tr.3, p. 31. Hicks
then left the residence. Tr.3, p. 31.
30
Testimony of the Defendant
The Defendant and Jewell began a romantic relationship in
early 2014. Tr.3, p. 48. They moved in together in late February
2014. Tr.3, p. 49. At some point thereafter, the Defendant was
incarcerated. Tr.3, p. 49. Upon his release, he and Jewell moved to
the 147 West North Street address in Waynesboro. Tr.3, p. 49.
During this time, the Defendant was addicted to opiates;
specifically, the Defendant had progressed to consuming heroin.
Tr.3, p. 52. He met Hicks around late June 2014; Hicks was a
friend of Jewell's. Tr.3, pp. 53 - 55. The Defendant bought heroin
from Hicks. Tr.3, p. 54. The Defendant did occasional work for "a
friend who was in the paving business" but was otherwise
unemployed at the time in question. Tr.3, p. 59.
The Defendant acknowledged traveling to Baltimore with Hicks
"one time" to purchase heroin; the Defendant and Hicks used
Jewell's vehicle. Tr.3, pp. 60 - 61. The purpose was for Hicks to
purchase the heroin; the Defendant denied he went to obtain
heroin. Tr.3, p. 61. The Defendant also had a probation violation
hearing in the middle of July 2014 in York County. Tr.3, pp. 61 -
62. The Defendant did not follow up with his probation officer and
31
the court in York County; he was concerned that this failure would
lead to a warrant for his arrest. Tr.3, p. 63.
On July 21, 2014, the Defendant was looking to buy Subutex
and possibly heroin. Tr. 3, p. 65. The Defendant communicated
with Hicks about purchasing these substances; Hicks advised him
that he knew someone willing to sell Subutex. Id. Hicks took the
Defendant to meet the victim in a Kmart parking lot. Id.Hicks conducted the deal with the victim and then introduced
the victim to the Defendant. Tr.3, p. 66. The Defendant bought
four Subutex pills from the victim through Hicks that day. Id. The
victim offered to "front" the Defendant more pills; the Defendant
declined. Id. The Defendant overheard the victim and Hicks
discussing a heroin deal, but he did not see Hicks give any heroin
to the victim that day. Id. The victim offered to give the Defendant
his phone number, but the Defendant said he could get it from
Hicks if he needed it.I? Tr.3, pp. 67 - 68.
The following day, the Defendant and Jewell were struggling
with wanting to use heroin. Tr.3, p. 69. Even though they had the
Subutex from the day before, the Defendant suggested purchasing
19 The Defendant got the victim's phone number from Hick's upon returning to his residence
that evening. Tr.3, p. 71.
32
"a couple bags" of heroin. Id. Jewell argued with the Defendant, as
she did not want to give in to using heroin. Id.Later that same day, the Defendant messaged the victim about
purchasing Subutex. Tr.3, p. 71. The victim responded proposing
a trade of Subutex for heroin. Id. The Defendant did not know how
to respond; he did not have any heroin, and if he did, he and Jewell
would have used it. Tr.3, pp. 71 - 72.
A bit later, Hicks arrived at the house and the Defendant
spoke with him about the victim's offer to trade Subutex for heroin.
Tr.3, p. 72. At that point Hicks "basically took over from there.'' Id.Hicks used Jewell's phone to communicate with the victim and
arrange for the Defendant to purchase the Subutex with cash,
which cash the victim would use to purchase heroin from Hicks.
Tr.3, p. 72.
Hicks and the Defendant left the residence and walked to a
carwash nearby. Tr.3, pp. 74 - 75. The victim was already present
when they arrived. Tr.3, p. 75. The Defendant gave a "nod" to the
victim and Hicks walked up to the victim's car. Tr.3, p. 75. Prior to
arriving at this location, the Defendant had given Hicks money.
33
..
Tr.3, p. 76. He did not give Hicks heroin. Tr.3, p. 76. He believed
Hicks had heroin on his person. Tr.3, p. 76.
The Defendant did not engage the victim m discussion, but
overheard the victim talking to Hicks. Tr.3, pp. 76 - 77. He
overheard the victim tell Hicks that he had already sold the
Subutex. Tr.3, p. 77. After he heard this, the Defendant began to
"drift" away from the car; he did not hear any more of the
conversation. Tr.3, p. 77.
After five or ten minutes, Hicks and the Defendant returned to
the Defendant's residence. Tr.3, p. 78. The Defendant bought two
bags of heroin from Hicks at this time. Id. Hicks "hung out for a
little bit" and then left the Defendant's residence. Tr.3, p. 78.
The Defendant received the phone call from Hicks the
following morning informing him of the victim's death; prior to
getting the call, the Defendant injected heroin and was "dazed."
Tr.3, pp. 88 - 89. He denied that, during that recorded phone call,
he ever agreed that he was involved or responsible for the victim's
death. Tr.3, p. 92. He denied ever selling heroin to the victim.
Tr.3, p. 92.
34
I•
The Defendant discussed the phone call with Jewell. Tr.3, p.
93. The Defendant was concerned about a warrant being issued in
York County for his probation issues. Id. They decided to move to
Maryland to live with Jewell's aunt. Id. The move was not because
of the victim's death. Tr.3, pp. 94 - 95. The Defendant
acknowledged his numerous prior convictions for crimes of
dishonesty. Tr.3, p. 99 - 100.
All this evidence, viewed m the light most favorable to the
Commonwealth, leads us to conclude the Commonwealth presented
sufficient evidence as to causation. Dr. Johnson's uncontroverted
expert opinion was the victim died from mixed substance toxicity,
the heroin in his system was the "most concerning" finding, and
that it played a direct and substantial cause in bringing about
death.
As to the underlying delivery of heroin, again in the light most
favorable to the Commonwealth, the evidence is clearly sufficient.
The jury was free to believe Hicks' testimony or reject it, just as they
were free to accept the Defendant's testimony or reject it. Further,
the voluminous text messages admitted into evidence corroborated
Hicks' testimony and discredited the Defendant's assertions that it
35
..
was Hicks actually utilizing Jewel's telephone to send/receive the
damning text messages to/ from the victim, and not himself. The
Commonwealth's cross-examination of the Defendant on this
precise point is illuminating. See Tr.3, pp. 113 - 23; 127 - 37. It is
this court's considered opinion that there was sufficient evidence
presented to support the verdict of guilt as to Drug Delivery
Resulting in Death.
36
'.
IN THE COURT OF COMMON PLEAS OF THE 39Ttt JUDICIAL
DISTRICT OF PENNSYLVANIA - FRANKLIN COUNTY
COMMONWEALTH OF PENNSYLVANIA CRIMINAL ACTION
CP-28-CR-000865-2015
v.
JUDGE JEREMIAH D. ZOOK
BRADLEY JAY TRUETT,
DEFENDANT
ORDER
NOW, this 27th day of October, 2020, upon the forgoing Opinion, IT IS
HEREBY ORDERED that the Franklin County Clerk of Courts is directed to
transmit the forgoing Opinion sur Pa.R.A.P. 1925(a) and the record of these
proceedings to the Prothonotary of the Superior Court of Pennsylvania
pursuant to Pa.R.A.P. 1931(c).
Notice of this judgment shall be given pursuant to Pa.R.Crim.P. 114.
The Clerk shall give notice to:
District Attorney's Office (J. Faust, Esq.) - Counsel for the Commonwealth
Public Defender's Office (M. Palermo, Esq.} - Counsel for the Defendant
• 4 I :,#
BRADLEY JAY TRUETT Case No. 865-2015
On October 28, 2020, I Barbara E. Black served a copy of the Order signed on October 27, 2020
by the Honorable Jeremiah D. Zook and filed on October 28, 2020, on the following persons by
the following method:
Interoffice:
Franklin County
District Attorney's Office
U.S. Mail:
Michael 0. Palermo, Jr., Esquire
PALERMO LAW OFFICES
3300 Trindle Road, Suite 2
Camp Hill, PA 17011-4432
Deputy Clerk of Courts