Com. v. Peck, M., Jr.

J-A19030-18
2019 Pa. Super. 8
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MITCHELL GREGORY PECK, JR. :
:
Appellant : No. 226 MDA 2018
Appeal from the Judgment of Sentence Entered September 1, 2017
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000880-2017
BEFORE: GANTMAN, P.J., NICHOLS, J., and FORD ELLIOTT, P.J.E.
OPINION BY NICHOLS, J.: FILED JANUARY 08, 2019
Appellant Mitchell Gregory Peck, Jr. appeals from the judgment of
sentence of twenty to forty years’ imprisonment imposed after a jury found
him guilty of drug delivery resulting in death.1 Appellant contends that there
was insufficient evidence to sustain his conviction under Section 2506 because
the subject delivery occurred in Maryland. Appellant also challenges the
discretionary aspects of the sentence. We affirm.
The facts relevant to this appeal are not in dispute. Kevin Hunt
(Decedent) lived with his father, James Hunt (Mr. Hunt), in Fawn Grove, York
County. Mr. Hunt last saw Decedent alive at around 9:30 p.m. on December
9, 2014, when Mr. Hunt returned home, spoke briefly with Decedent in the
kitchen, and then went to bed.
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1 18 Pa.C.S. § 2506.
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Based on a series of text messages between Decedent and Appellant,2
it was determined that Decedent and Appellant met later that same evening,
at some time after 11:00 p.m. Appellant sent Decedent directions indicating
that Appellant and Decedent met at a High’s convenience store in Maryland,
approximately ten miles south of the Pennsylvania border. At the meeting in
Maryland, Appellant sold Decedent heroin. Following the sale, Appellant and
Decedent continued to exchange text messages. Decedent expressed concern
that the heroin looked like a “rock.” Appellant boasted that the heroin was
“off the brick, purest of pure” and told Decedent to “try it.” Further messages
between 11:36 p.m. to 11:47 p.m. indicated that Decedent tried the heroin,
complimented Appellant, and thanked Appellant for the delivery.
On the following morning, December 10, 2014, Mr. Hunt left for work at
6:45 a.m., but did not see Decedent. Mr. Hunt returned home from work on
December 10, 2014, at 6:30 p.m. Mr. Hunt checked on Decedent, but
Decedent’s bedroom was locked. Mr. Hunt unlocked the door, entered the
room, and discovered Decedent hunched over on the floor. Mr. Hunt shook
Decedent, but Decedent fell over. Decedent’s body was stiff and his face was
blue and had blood on it. Mr. Hunt called a neighbor who, in turn, called 911.
Pennsylvania State Police Trooper Thomas Grothey responded and
found a “rock” of heroin on Decedent’s nightstand and Decedent’s cell phone
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2 Appellant and Decedent had been friends since elementary school. Appellant
was twenty-two years old at the time of the offense. Decedent was twenty-
three years old at the time of his death.
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on the floor of Decedent’s bedroom. Trooper Grothey read the text messages
between Decedent and Appellant from Decedent’s phone.
A criminal complaint was filed against Appellant on September 6, 2016.
The Commonwealth filed an information charging Appellant with delivery of
heroin (Count 1) and drug delivery resulting in death (Count 2) on February
9, 2017.
On July 7, 2017, Appellant filed a motion to dismiss Count 1.
Specifically, Appellant asserted that the trial court did not have subject matter
jurisdiction over “a matter that allegedly took place” in Maryland. Mot. to
Dismiss Count 1, 7/7/17, ¶ 4. Appellant conceded that neither “[t]he location
of the alleged delivery, nor the dismissal of Count 1 of the Information will
have any effect upon Count 2 of the Information.” Id. at ¶ 6.
On July 17, 2017, the trial court entered an order dismissing Count 1
without prejudice.3 Immediately thereafter, Appellant proceeded to a jury
trial on Count 2 for drug delivery resulting in death. On July 19, 2017, the
jury found Appellant guilty.
On September 1, 2017, the trial court sentenced Appellant to a statutory
maximum sentence of twenty to forty years’ imprisonment. Appellant timely
filed post-sentence motions requesting, in relevant part, the dismissal of the
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3 The order indicated that the Commonwealth agreed that the trial court did
“not have jurisdiction over the delivery charge since that occurred in the State
of Maryland or at least is alleged to have occurred [in Maryland].” Order,
7/17/17.
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conviction or a resentencing hearing. The trial court denied Appellant’s post-
sentence motions on January 26, 2018.
Appellant timely appealed and complied with the trial court’s order to
submit a Pa.R.A.P. 1925(b) statement. This appeal followed.
Appellant presents the following issues for review:
[1.] Whether the evidence was insufficient to sustain [Appellant’s]
conviction for drug delivery resulting in death where the charge
was premised on a delivery occurring in Maryland, and thus did
not satisfy the element that the delivery was in violation of
Pennsylvania’s Controlled Substance, Drug, Device, and Cosmetic
Act.
[2.] Whether the trial court erred in imposing the statutory
maximum sentence based principally on factors inherent in the
offense of drug delivery resulting in death: the sale of drugs and
the death of the victim.
Appellant’s Brief at 4.
Appellant first raises a challenge to the sufficiency of the evidence.
Appellant claims that a violation of Pennsylvania’s Controlled Substance, Drug,
Device, and Cosmetic Act (CSDDCA) is a necessary element of drug delivery
resulting in death. Id. at 14. Appellant continues that “the only delivery here,
however, occurred in Maryland” and suggests that he could not be convicted
for that delivery under Pennsylvania’s CSDDCA. Id. Appellant therefore
asserts that his conviction for drug delivery resulting in death must also fail
as a matter of law. Id.
Notably, Appellant goes to some length to distinguish his sufficiency
claim from a jurisdictional analysis under 18 Pa.C.S. § 102, which defines the
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territorial applicability of Pennsylvania’s Crimes Code. Id. at 15-16. Appellant
asserts that an analysis of Section 102 “conflate[es] jurisdiction” with his
argument based on “proof of an essential element of the offense.” Id. at 16.
The Commonwealth responds that under Section 102, the trial court
properly exercised jurisdiction based on Decedent’s death in Pennsylvania.
Commonwealth’s Brief at 21. The Commonwealth suggests that under Section
102(a)(1), the fact that Decedent died in Pennsylvania made the location of
the delivery irrelevant to Appellant’s liability under Section 2506 in
Pennsylvania. See id. The Commonwealth summarizes its position as
follows: “[Appellant] sold heroin to [Decedent] and [Decedent] died in
Pennsylvania as a result of using that heroin, Pennsylvania properly exercised
subject matter jurisdiction over [Appellant] and [Appellant] was criminally
liable for [Decedent]’s death.” Id.
A challenge to the sufficiency of the evidence requires this Court to
determine “whether the evidence admitted at trial, and all the reasonable
inferences derived therefrom viewed in favor of the Commonwealth as verdict
winner, supports the jury’s finding of all the elements of the offense beyond a
reasonable doubt.” Commonwealth v. Packer, 168 A.3d 161, 163 n.3 (Pa.
2017) (citation and quotation marks omitted).
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The provision criminalizing a drug delivery resulting in death is set forth
under Chapter 25 of the Crimes Code, which relates to homicide. 4 Section
2506 states, in relevant part:
(a) Offense defined.—A person commits a felony of the first
degree if the person intentionally administers, dispenses, delivers,
gives, prescribes, sells or distributes any controlled substance or
counterfeit controlled substance in violation of section 13(a)(14)
or (30) of the act of April 14, 1972 (P.L. 233, No. 64),[] known as
The Controlled Substance, Drug, Device and Cosmetic Act, and
another person dies as a result of using the substance.
18 Pa.C.S. § 2506. Section 2506 “consists of two principal elements: (i)
[i]ntentionally administering, dispensing, delivering, giving, prescribing,
selling or distributing any controlled substance or counterfeit controlled
substance and (ii) death caused by (‘resulting from’) the use of that drug.”5
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4Section 2501 defines “criminal homicide” as “[a] person is guilty of criminal
homicide if he intentionally, knowingly, recklessly or negligently causes the
death of another human being.” 18 Pa.C.S. § 2501(a).
5 We note that a former version of Section 2506 explicitly defined a drug
delivery resulting in death as murder of the third degree. See
Commonwealth v. Ludwig, 874 A.2d 623, 629-31 (Pa. 2005) (holding that
former version of Section 2506 required the Commonwealth to establish
malice due to the statute’s express reference to drug delivery resulting in
death as murder of the third degree). However, the current version of the
Section 2506 does not expressly classify drug delivery resulting in death as a
recognized category of homicide. See 18 Pa.C.S. § 2506(a); see also 18
Pa.C.S. § 2501(b) (indicating that “[c]riminal homicide shall be classified as
murder, voluntary manslaughter, or involuntary manslaughter.”). Therefore,
under the present version of Section 2506, the Commonwealth must
demonstrate that a defendant was at least “reckless” as to the death caused
by the use of an illicitly delivered drug. Commonwealth v. Kakhankham,
132 A.3d 986, 995 (Pa. Super. 2015). Because “the dangers of heroin are so
great and well-known,” this Court has concluded that a delivery of heroin alone
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Commonwealth v. Kakhankham, 132 A.3d 986, 991-92 (Pa. Super. 2015)
(citation and footnote omitted).
The territorial applicability of Pennsylvania Crimes Code is defined in
Section 102, which states, in relevant part:
(a) General rule.—Except as otherwise provided in this section,
a person may be convicted under the law of this Commonwealth
of an offense committed by his own conduct or the conduct of
another for which he is legally accountable if either:
(1) the conduct which is an element of the offense or the result
which is such an element occurs within this Commonwealth[.]
***
(c) Homicide.—When the offense is homicide or homicide of an
unborn child, either the death of the victim, including an unborn
child, or the bodily impact causing death constitutes a “result”
within the meaning of paragraph (a)(1) of this section, and if the
body of a homicide victim, including an unborn child, is found
within this Commonwealth, it is presumed that such result
occurred within this Commonwealth.
18 Pa.C.S. § 102(a)(1), (c).
Instantly, Appellant has not demonstrated that the elements of Section
2506 preclude a conviction for drug delivery resulting in death where the drug
delivery occurred outside of Pennsylvania. Section 102 clearly establishes that
acts occurring outside of Pennsylvania may be subject to criminal prosecution
in Pennsylvania, particularly when a death occurs within Pennsylvania. See
18 Pa.C.S. § 102(c). Contrary to Appellant’s assertion, an analysis of Section
____________________________________________
satisfies the recklessness requirement when a death occurs as a result of the
sale.” Commonwealth v. Storey, 167 A.3d 750, 757 (Pa. Super. 2017)
(citation omitted).
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102 is critical to determine whether (1) the trial court properly exercised
subject matter jurisdiction to convict him of an offense under Section 2506,
see Commonwealth v. Seiders, 11 A.3d 495, 496-97 (Pa. Super. 2010),
and (2) the evidence presented was sufficient to sustain the conviction based
on Decedent’s death in Pennsylvania.
Here, the Commonwealth presented evidence that (1) although the
conduct, i.e., the delivery, occurred in Maryland, it was in violation of
Pennsylvania’s CSDDCA, (2) a death resulted from the delivery, and (3)
Appellant acted recklessly when causing Decedent’s death. See Storey, 167
A.3d at 757. Therefore, even if the trial court lacked jurisdiction to convict
Appellant of the delivery under Section 102, the Commonwealth still
established the sufficiency of the evidence of a drug delivery resulting in
death. See Packer, 168 A.3d at 161 n.3. Accordingly, we find no merit to
Appellant’s sufficiency of the evidence challenge based solely on the fact that
the predicate drug delivery occurred outside Pennsylvania.
Appellant next challenges the discretionary aspects of the sentence.
Appellant argues that the trial court improperly relied on the facts that
Appellant sold Decedent a “deadly drug” and that the delivery resulted in
death when imposing a statutory maximum sentence of twenty to forty years’
imprisonment.6 Appellant’s Brief at 21. According to Appellant, this resulted
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6The offense gravity score of drug delivery resulting in death was 13 and
Appellant’s prior record score was 5. The sentencing guidelines suggested a
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in a “double counting” of sentencing factors. Id. at 21-23 (citing
Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000) (en
banc), and Commonwealth v. Johnson, 758 A.2d 1214, 1219 (Pa. Super.
2000)). Specifically, Appellant asserts that there was “little about” the present
offense “that was worse than any other” drug delivery resulting in death. Id.
Appellant notes that the trial court’s references to the need to protect society
and deterring the conduct of others were accounted for in the offense and
failed to establish a proper basis to aggravate the sentence based on the
circumstances of the present offense. Id. at 23.
Additionally, Appellant contends that the trial court impermissibly relied
on his prior drug convictions. Id. at 22-23. Lastly, Appellant contends that
the trial court’s consideration of the potency of the heroin and the fact that
Appellant and Decedent were friends did not warrant an extreme departure
from the sentencing guidelines. Id. at 23-24.
It is well settled that
[c]hallenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s
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standard range minimum sentence of 8 to 9½ years, plus or minus 1 year for
aggravating or mitigating factors. Therefore, the trial court’s sentence was
outside the sentencing guidelines.
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brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.[ ] § 9781(b).
Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. ) (some citations
omitted), appeal denied, 172 A.3d 592 (Pa. 2017). “A substantial question
exists only when the appellant advances a colorable argument that the
sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Id. (citation omitted).
Instantly, Appellant has preserved his sentencing issues in a post-
sentence motion, a timely appeal, and a Rule 2119(f) statement in his brief.
See id. Furthermore, Appellant’s assertions that the trial court relied on
improper sentencing factors raise substantial questions for our review. See
Goggins, 748 A.2d at 732.
Our review is governed by the following principles:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this
context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored
or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
When imposing a sentence, the sentencing court is required to
consider the sentence ranges set forth in the Sentencing
Guidelines, but i[s] not bound by the Sentencing Guidelines. . . .
A court may depart from the guidelines “if necessary, to fashion a
sentence which takes into account the protection of the public, the
rehabilitative needs of the defendant, and the gravity of the
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particular offense as it relates to the impact on the life of the
victim and the community.” When a court chooses to depart from
the guidelines however, it must “demonstrate on the record, as a
proper starting point, his awareness of the sentencing guidelines.”
Further, the court must “provide a contemporaneous written
statement of the reason or reasons for the deviation from the
guidelines.”
When reviewing a sentence outside of the guideline range, the
essential question is whether the sentence imposed was
reasonable. An appellate court must vacate and remand a case
where it finds that “the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.” 42
Pa.C.S.[] § 9781(c)(3).
Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (some
citations omitted). The inquiry into the reasonableness of a sentence is
difficult to define. Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).
When reviewing the record, 42 Pa.C.S. § 9781 requires that we
consider:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
“[A] sentence may be found to be unreasonable after review of Section
9781(d)’s four statutory factors.” Walls, 926 A.2d at 964. Additionally, a
sentence may also be unreasonable if it was imposed “without express or
implicit consideration” of the protection of the public, the rehabilitative needs
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of the defendant, and the gravity of the particular offense as it relates to the
impact on the life of the victim and the community as required by 42 Pa.C.S.
§ 9721(b).7 Id.
This Court has held that
[w]here the trial court deviates substantially from the sentencing
guideline range “it is especially important that the court consider
all factors relevant to the determination of a proper sentence.”
Such factors justifying an upward departure, however, may not
include those already taken into account in the guidelines[’]
calculations.
Commonwealth v. Messmer, 863 A.2d 567, 573 (Pa. Super. 2004)
(citations omitted). However, this Court should not reweigh the proper
sentencing factors considered by the trial court and impose our own judgment
in the place of the trial court. Commonwealth v. Macias, 968 A.2d 773,
778 (Pa. Super. 2009).
Here, the trial court provided the following statement before imposing
sentence:
Well, we’ve listened carefully to everything said this morning in
this courtroom regarding this sentencing hearing or regarding the
sentencing of [Appellant], and, again, we’ve read and reviewed
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7 The Walls Court cautioned:
Even though the unreasonableness inquiry lacks precise
boundaries, we are confident that rejection of a sentencing court’s
imposition of sentence on unreasonableness grounds would occur
infrequently, whether the sentence is above or below the guideline
ranges, especially when the unreasonableness inquiry is
conducted using the proper standard of review.
Walls, 926 A.2d at 964.
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the pre-sentence investigation report as well as [the]
Commonwealth’s [sentencing] memorandum.
In sentencing anyone who’s committed a crime, this [c]ourt takes
into consideration the nature of the crime, the probability or
possibility of rehabilitating the criminal, and the need to protect
society. The crime charged for which [Appellant] has been
convicted is a very serious crime. It’s a first-degree felony, as, for
example, is third-degree murder. Both those crimes carry the
same statutory maximum of 20 to 40 years[’] incarceration.
[Appellant] in this case caused the death of an old friend by selling
him heroin. [Appellant]’s prior record score indicates that he has
in the past been involved in trafficking of drugs and, in fact, has
been convicted on several occasions for those kinds of offenses.
We recognize that [Appellant] here today, after spending several
years in incarceration, indicates that he regrets committing this
crime and is remorseful, but there’s nothing in the record of the
trial or in the pre-sentence investigation report that would indicate
that prior to today he’s expressed any remorse, and we well
understand that drug addiction may be an explanation for why a
crime was committed but is no excuse for the commission of the
crime.
We would posit that there are many drug addicts who, in fact, do
not engage in the trafficking of drugs or the business of drug
selling, and while the [Appellant] today has indicated that he on
several occasions asked the authorities for help to deal with his
drug addiction and claims he was turned down, there’s nothing to
indicate that during the time that he was addicted and not
incarcerated, he, himself, took any initiative to try to deal with his
drug addiction.
We do not consider [Appellant] a good prospect for rehabilitation
since the history of [Appellant] and his addiction indicates that
apparently since his addiction came to fruition, the only time he’s
been clean is when he’s been incarcerated.
Finally, a young man is dead because of [Appellant]’s actions.
[Appellant] sold the victim in this case a deadly drug. He was, in
fact, a peddler of death.
Finally, we believe the protection of society from this individual is
of paramount concern in this particular case given the
circumstances. [Appellant] has had several chances to mend his
ways to stop dealing in drugs, but apparently to no avail. I’m
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firmly convinced that society is safer with [Appellant] incarcerated
rather than not. And while I’m certainly sympathetic to the other
people still living that [Appellant] has hurt through his criminal
actions, I cannot give more consideration to those hurts than I
can give to the danger he poses to the public.
And I would point out that clearly his actions were predatory in
nature. They were preying upon a very vulnerable group of
people, those who are addicted to drugs. [Appellant] didn’t have
to sell that purest of the pure heroin to his old friend that night,
but he did it. He bragged about it. He touted the quality of the
merchandise he was selling as much as a car salesman would tout
the quality of the car he’s seeking to sell to a customer.
Society should not have to take another chance that this
[Appellant], when left to his own devices, will not simply return to
his drug dealing ways. Therefore, we impose the following
sentence, and we hope that the sentence we are about to impose
will, in fact, deter those who seek to make an easy buck selling
deadly poison to drug addicts or even those who seek an easy way
to support their own drug habits by selling those deadly drugs. As
[defense counsel] aptly pointed out, there are many addicts who
do not turn to crime, but [Appellant] in this case certainly has,
and it’s not the first time.
. . . [Appellant]’s prior record score is 5 but, as [the
Commonwealth] pointed out, does not take into consideration the
number of prior drug trafficking and drug-involved crimes that
make up that prior record score. . . .
We are satisfied given the considerations just mentioned by this
Court that the [Appellant]’s conduct, not only regarding this
crime, but prior crimes for which he has committed, as well as
what would appear to be his poor prospects for rehabilitation when
not incarcerated, and the need for the protection of society from
him, as well as the deterrent effect of the sentence about to be
imposed will have, we sentence the [Appellant] to the maximum
20 to 40 years[’] incarceration in a state correctional institution. .
..
N.T., 9/1/17, at 19-23.
Following our review of the factors set forth in Section 9781(d), we
conclude that the trial court properly considered the nature and circumstances
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of the offense and the history and characteristics of Appellant, as well as the
sentencing guidelines. See 42 Pa.C.S. § 9781(1). Moreover, the court had
ample opportunity to observe Appellant at trial and sentencing, and it had the
benefit of a pre-sentence investigation report. See id. The court’s reasons
for its sentence expressed an appropriate consideration of the protection of
the public, the gravity of the offense as it related to the impact on the life of
Decedent and on the community, and the rehabilitative needs of Appellant.
See 42 Pa.C.S. § 9721(b).
Contrary to Appellant’s arguments, we do not find the trial court’s
reasons to be improper or unreasonable. The court’s explanation for its
sentence included proper aggravating factors, such as the nature of the drug
that Appellant sold, Appellant’s salesmanship of the heroin he sold, and
Appellant’s existing relationship with Decedent. The court’s references to
Appellant’s prior convictions for drug offenses were proper, as the specific
nature of those offenses was relevant to the court’s consideration of
Appellant’s rehabilitative potential.8 See Messmer, 863 A.2d at 573 (noting
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8 Appellant relies on Goggins to support his claim that the trial court
improperly double counted his prior drug convictions. We note that Goggins
held that the trial court’s references to the defendant’s prior convictions in
that case were improper where those factors were accounted for in a
mandatory minimum sentence based, in part, on the defendant’s prior
convictions. See Goggins, 748 A.2d at 732. In Johnson, this Court held
that the defendant’s prior rape conviction was a pre-condition of his conviction
for failing to register. Johnson, 758 A.2d at 1218. Therefore, Johnson
concluded that there was no double counting in that case. Id. Thus, although
Goggins and Johnson state the general principles against double counting
sentencing factors, they are not controlling in this case.
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that although the prior record score accounted for the defendant’s prior
driving-under-the-influence convictions, the score did not reflect the
defendant “complete absence of regard for the law” and the need to protect
the public). Similarly, the court’s reference to deterrence was adequately
related to the protection of the public in light of Appellant’s poor rehabilitative
potential. Accordingly, we see no merit to Appellant’s claim that the trial court
double counted factors already included in the sentencing guidelines. See id.
Therefore, following a review of the record, and mindful of our standard
of review, we see no reason to disturb the trial court’s decision to impose a
maximum sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/8/2019
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