Com. v. Hartmoyer, K.

J-A19001-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KARA NICOLE HARTMOYER :
:
Appellant : No. 628 MDA 2021
Appeal from the Judgment of Sentence Entered April 21, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0000181-2018
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: NOVEMBER 29, 2022
Kara Nicole Hartmoyer appeals her April 21, 2021 judgment of sentence
of fifteen to thirty years of imprisonment, which was imposed after a jury
found her guilty of third-degree murder. We affirm.
The facts of this matter are undisputed and we glean them from the
certified record. Appellant’s conviction in this matter stems from the death of
Zachary Myers (“the victim”), which occurred in the parking lot of the Super
8 Hotel located at 4131 Executive Park Drive in Swatara Township,
Pennsylvania, sometime in the morning hours of October 1, 2017. At
approximately 8:15 a.m. that morning, emergency services were summoned
to the hotel by a 911 call placed by Appellant. Arriving officers discovered the
deceased body of the victim, laying prone in the back seat of his Jeep
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A19001-22
Cherokee. Ultimately, it was determined the victim had died due to acute
intoxication from, inter alia, fentanyl.1 See N.T. Trial, 3/9/21, at 170-71.
Appellant was friends with the victim. She and her boyfriend, Andrew
Shirk, were staying in a room at the hotel.2 Appellant claimed the victim had
arrived at the room at 10:00 p.m. on September 31, 2017, in an extremely
intoxicated state and voluntarily elected to sleep in his Jeep. She also asserted
that the victim was awake and capable of speaking at approximately 7:00
a.m. on the morning of October 1, 2017. However, the condition of the
victim’s body indicated he had been dead for several hours when Appellant
claimed to have interacted with him. See N.T. Trial, 3/8/21, at 63-64.
Upon speaking with Appellant, reviewing text messages on the victim’s
cell phone, and recovering documentation and discarded trash related to the
sale of narcotics, it quickly came to light that Appellant, Shirk, and the victim
were “experienced heroin users” who were engaged in the sale and
consumption of drugs. Trial Court Opinion, 6/30/21, at 2. Prior to the day in
question, the victim had reached out to Appellant to obtain drugs and she
set up an arrangement between the victim and Shirk. If the victim
drove Shirk and Appellant to Philadelphia, Shirk would give the
victim drugs. On the weekend of September 29, 2017, to October
1, 2017, [all three parties] made a least one trip to Philadelphia
____________________________________________
1 Fentanyl is a “synthetic opioid that is similar to morphine but is [fifty] to
[one hundred] times more potent.” Interest of A.S., 255 A.3d 1282(Pa.Super. 2021) (unpublished memorandum at 1 n.3).
2 Shirk fled the scene of the victim’s death prior to the arrival of police. He
was captured later by officers at a different location. He did not testify at
Appellant’s trial in the above-captioned case.
-2-
J-A19001-22
in order to purchase drugs. Upon returning from Philadelphia,
Appellant, Shirk, and the victim proceeded to party in the hotel
room and consumed various types of illegal narcotics.
Id. These details were corroborated in Appellant’s interrogation with police
later on October 1, 2017. See N.T. Trial, 3/8/21, at 241.
The victim seems to have spent much of Saturday, September 30, in a
state of unconsciousness brought on by overindulgence. At some point that
night, the victim’s condition worsened. Police obtained a video that Appellant
had filmed and shared over the social messaging platform Snapchat at
approximately midnight on October 1, 2017, wherein she reported the victim
was “throwing up” and “overdosing” in her hotel room. See N.T. Trial, 3/9/21,
at 133-34. At that point, the victim was unable to speak or remain awake.
See N.T. Trial, 3/10/21, at 312-14.
Police also examined security video footage maintained by the hotel,
which depicted Appellant and Shirk dragging the victim out of the hotel room
at approximately 4:00 a.m. that same evening. See N.T. Trial, 8/8/21, at 91-
95. These videos revealed the victim was still alive at that hour but was
suffering from “agonal,” or agonized, breathing associated with opioid
overdoses. Id. at 92-93. Using bed linens from the hotel room, Appellant
and Shirk dragged the victim down an exterior staircase and across the
parking lot. Id. at 94-95. Ultimately, they solicited the assistance of another
patron to lift the victim into the back seat of his vehicle. See N.T. Trial,
-3-
J-A19001-22
8/9/21, at 263. For the next ninety minutes, both the victim and Shirk are
seen on video intermittently loitering in the parking lot.
Then, from approximately 5:38 a.m. through 6:01 a.m., Appellant used
the victim’s car to drive herself and Shirk to a nearby Sheetz and purchase
sundries with the victim still in the back seat. Id. at 252-54. Later that
morning, Appellant and Shirk returned to the vehicle at 7:33 a.m. Id. at 254.
At that time, Appellant called her grandfather who arrived at the hotel in an
SUV several minutes later. Afterwards, Appellant and Shirk spent the next
forty-five minutes cleaning out the hotel room and transferring luggage from
the victim’s car to Appellant’s grandfather’s vehicle. Id. at 254-57. Only once
these tasks were complete did Appellant call 911 on the victim’s behalf.
Appellant was interviewed that same day by members of the Swatara
Township Police Department and confronted with security footage from the
hotel. Id. at 241-42. During this interrogation, Appellant represented, inter
alia, that she had personally overdosed on at least seven occasions.3 Id. at
246; see also N.T. Trial, 3/10/21, at 299. Appellant was charged with third-
degree murder, drug delivery resulting in death, and conspiracy to commit
drug delivery resulting in death. The counts regarding drug delivery were
eventually withdrawn. A jury trial was held from March 8 to March 10, 2021.
____________________________________________
3 During several of these incidents, Appellant’s life was saved by the use of
Narcan, which is a medication “designed to rapidly reverse opioid overdose.”
Interest of A.S., supra at 1 n.2; see also N.T. Trial, 3/9/21, at 269-70.
-4-
J-A19001-22
At the close of the Commonwealth’s evidence, Appellant requested a directed
verdict on the grounds that the Commonwealth had failed to establish the
element of causation. See N.T. Trial, 3/9/21, at 273-74. It was denied.
During Appellant’s testimony in her defense, she confirmed the factual
details set forth above. See N.T. Trial, 3/9/21, at 277-338; N.T. Trial,
3/10/21, at 339-47. However, she also claimed she was unable to remember
large swathes of time from the night and morning of the victim’s death. In
the end, the jury found Appellant guilty of third-degree murder. On April 21,
2021, the trial court sentenced her to fifteen to thirty years of imprisonment.
Appellant did not file any post-sentence motions.4 On May 19, 2021, Appellant
filed a timely notice of appeal. Both Appellant and the trial court complied
with the requirements of Pa.R.A.P. 1925.
Appellant has raised the following issues for our consideration:
1. Should the trial court have granted Appellant’s request for a
directed verdict when the Commonwealth failed to establish the
necessary elements of third[-]degree homicide and, by
extension, involuntary manslaughter?
2. Was the evidence at trial insufficient to sustain the jury verdict
of guilt for third[-]degree homicide?
3. Was the jury’s verdict so against the weight of evidence so as
to shock one’s sense of justice?
____________________________________________
4 Appellant’s counsel received an extension of time in which to file post-
sentence motions. See Order, 5/5/21 (setting a deadline of May 10, 2021).
On the day the post-sentence motions were due, Appellant’s counsel filed a
second motion requesting an extension. It was denied. Thereafter, no post-
sentence motions were filed with the trial court on Appellant’s behalf.
-5-
J-A19001-22
Appellant’s brief at 9.
Initially, we note that Appellant has framed her first two claims as
distinct questions. However, a request for a directed verdict, or a request for
judgment of acquittal, necessarily challenges the sufficiency of the
Commonwealth’s evidence. See Pa.R.Crim.P. 606(A)(1) (“A defendant may
challenge the sufficiency of the evidence to sustain a conviction of one or more
of the offenses charged in . . . a motion for judgment of acquittal at the close
of the Commonwealth’s case-in-chief[.]”); see also Commonwealth v.
Emanuel, 86 A.3d 892, 894 (Pa.Super. 2014) (“A motion for a judgment of
acquittal challenges the sufficiency of the evidence to sustain a conviction on
a particular charge, and is granted only in cases in which the Commonwealth
has failed to carry its burden regarding that charge.”). Accordingly, we
address Appellant’s first two claims collectively.
Since “evidentiary sufficiency is a question of law, our standard of review
is de novo and our scope of review is plenary.” Commonwealth v. Diamond,
83 A.3d 119, 126 (Pa. 2013). In reviewing a matter implicating the sufficiency
of the evidence, we must remain mindful of the following:
[W]e evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. The facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant's innocence. Any doubt about the defendant's guilt is to
-6-
J-A19001-22
be resolved by the fact finder unless the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact can be
drawn from the combined circumstances.
Commonwealth v. Lynch, 242 A.3d 339, 352 (Pa. Super. 2020) (cleaned
up).
Appellant was convicted of third-degree murder, which occurs “when a
person commits a killing which is neither intentional nor committed during the
perpetration of a felony, but contains the requisite malice.” Commonwealth
v. Morris, 958 A.2d 569, 576 (Pa.Super. 2008); see also 18 Pa.C.S.
§ 2502(c). For these purposes, “[m]alice is not merely ill-will but, rather,
wickedness of disposition, hardness of heart, recklessness of consequences,
and a mind regardless of social duty.” Id.
With regards to sufficiency, Appellant’s primary argument is that her
conviction violates 18 Pa.C.S. § 301, which provides as follows:
§301. Requirement of voluntary act.
(a) General rule.—A person is not guilty of an offense unless his
liability is based on conduct which includes a voluntary act or the
omission to perform an act of which he is physically capable.
(b) Omission as basis of liability.—Liability for the commission
of an offense may not be based on an omission unaccompanied
by action unless:
(1) the omission is expressly made sufficient by the law
defining the offense; or
(2) a duty to perform the omitted act is otherwise imposed
by law.
-7-
J-A19001-22
18 Pa.C.S. § 301(a)-(b). In this statute, “the legislature intended to
distinguish between a legal duty to act and merely a moral duty to act.”
Commonwealth v. Pestinikas, 617 A.2d 1339, 1345 (Pa.Super. 1992) (en
banc). Thus, “[a]n omission to act can satisfy the physical aspect of criminal
conduct only if there is a duty to act imposed by law.” Id. This Court has
applied § 301 in the specific context of sufficiency. Id.
In her brief, Appellant asserts that “the Commonwealth failed to
establish that [Appellant] had a fundamental duty to save the [victim’s] life.”
Appellant’s brief at 16. However, her argument is predicated upon the
assumption that Appellant took no affirmative acts that contributed to the
victim’s death. Reviewing the evidence detailed above in the light most
favorable to the Commonwealth, we readily conclude that Appellant’s culpable
conduct included at least two “voluntary acts” that contributed to the victim’s
death. See 18 Pa.C.S. § 301(a). Specifically, she was an active participant
in: (1) helping to set-up the arrangement that led to the victim providing
transportation in exchange for narcotics; and (2) removing the victim from
the hotel room and sequestering him in the backseat of a car while he was
overdosing. Thus, Appellant’s arguments under § 301 are unavailing. See
Pestinikas, supra at 1345 (finding no violation of § 301 where the
defendant’s actions were “not limited merely to an omission to act”).
Additionally, Appellant asserts that the Commonwealth failed to
establish causation. See Appellant’s brief at 15 (“There is also the issue of
-8-
J-A19001-22
causation, in that [Appellant’s] action did not contribute to the [victim’s]
death, or, had such a low contribution that it did not outweigh the direct and
substantial act of injecting himself with heroin/fentanyl.”). We disagree.
As a general matter, “it is undisputed that causation constitutes an
essential element of the offense of murder which the Commonwealth must
prove beyond a reasonable doubt.” Commonwealth v. Rementer, 598 A.2d
1300, 1304 (Pa.Super. 1991). The Pennsylvania Rules of Criminal Procedure
have defined the requirement of causation as follows:
(a) General rule.--Conduct is the cause of a result when:
(1) it is an antecedent but for which the result in question would
not have occurred; and
(2) the relationship between the conduct and result satisfies any
additional causal requirements imposed by this title or by the law
defining the offense.
Pa.R.Crim.P. 303(a). Our Court has interpreted this statute as establishing a
two-part test with respect to causation, as follows:
First, the defendant’s conduct must be an antecedent, but for
which the result in question would not have occurred. A victim’s
death cannot be entirely attributable to other factors; rather,
there must exist a causal connection between the conduct and the
result of conduct; and causal connection requires something more
than mere coincidence as to time and place. Second, the results
of the defendant’s actions cannot be so extraordinarily remote or
attenuated that it would be unfair to hold the defendant criminally
responsible.
Commonwealth v. Spotti, 94 A.3d 367, 375 (Pa.Super. 2014) (cleaned up).
With particular reference to the case at bar, we note that “[t]he second part
-9-
J-A19001-22
of the test is satisfied when the victim’s death is the natural or foreseeable
consequence of the defendant’s actions.” Id. at 375-76.
Here, the evidence of record establishes that the victim reached out to
Appellant to obtain narcotics from Shirk. She facilitated the resulting
arrangement, whereby the victim provided transportation to and from
Philadelphia in exchange for heroin from Shirk. After this task was completed,
all three parties consumed drugs in Appellant’s hotel room over the course of
approximately 48 hours. Based on the foregoing, we readily conclude that
Appellant’s actions were an antecedent to the victim’s death under
§ 303(a)(1). But for Appellant’s facilitation of the agreement between the
victim and Shirk, the victim would never have overdosed in Appellant’s hotel
room. She helped provide both the means and the forum for these tragic
events.
During this time, the victim’s physical condition began to rapidly
deteriorate from acute opioid intoxication. Indeed, despite her faltering
memory, Appellant was able to offer vivid descriptions of the victim’s state in
the hotel room. See N.T. Trial, 3/9/21, at 287 (“[The victim] was just all over
the place. I was trying to get him up. He wouldn’t get up. He was just
mumbling. . . . He was just mumbling and rolling around. He actually stood
up at one point and then fell over. He was puking.”). On this point, it is
important to bear in mind that Appellant was, herself, an experienced heroin
user who had overdosed at least seven times before. Consequently, she was
- 10 -
J-A19001-22
well aware of both the dangers posed by opioid use and the physical signs
that someone was in trouble.
Rather than summoning emergency aid by dialing 911, or utilizing the
victim’s vehicle to take him to an emergency medical provider, Appellant took
instead to social media to document the victim’s suffering in a Snapchat video.
Several hours later, the victim had not improved but was experiencing agonal
breathing, i.e., literally gasping for air. Appellant responded by helping drag
the victim from the hotel room and stuffing him into the back of his car. Then,
Appellant effectively abandoned the victim to his fate. Thus, while not the
sole basis for her conviction, Appellant’s omissions are significant. She failed
to take any action when confronted with indicia that the victim’s life was in
danger from acute opioid intoxication. In fact, Appellant actively helped
sequester the dying victim in his car, thereby ensuring that he was unable to
seek or receive help from any other person. In the absence of Appellant’s
actions and disregard for the victim’s life, he would not have perished on the
morning of October 1, 2017. These consequences were fully foreseeable. See
Commonwealth v. Kakhankham, 132 A.3d 986, 996 (Pa.Super. 2015)
(“The intravenous self-administration of illegally-purchased heroin . . . is a
modern form of Russian roulette.” (cleaned up)).
Based on the foregoing, we conclude that the Commonwealth adduced
sufficient evidence to satisfy the requisite element of causation. No relief is
due with respect to Appellant’s second sufficiency argument.
- 11 -
J-A19001-22
In addition to her sufficiency arguments, Appellant has also challenged
the weight of the Commonwealth’s evidence. See Appellant’s brief at 17-19.
However, a challenge to the weight of the evidence must be preserved in
either a post-sentence motion, or in an oral or written motion before
sentencing. See Pa.R.Crim.P. 607(a)(1)-(3). Instantly, Appellant failed to
preserve this argument in any relevant filing or averment in the trial court.
Thus, this claim is waived. See Commonwealth v. Cox, 231 A.3d 1011,
1018 (Pa.Super. 2020) (“An appellant’s failure to avail himself of any of the
prescribed methods for presenting a weight of the evidence issue to the trial
court constitutes waiver of that claim.”).
For the reasons set forth above, Appellant has presented no basis for us
to disturb her judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/29/2022
- 12 -