J. S12041/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                     v.                    :
                                           :
ANGEL LUIS ALICEA III,                     :         No. 1129 MDA 2017
                                           :
                          Appellant        :


              Appeal from the Judgment of Sentence, May 2, 2017,
                  in the Court of Common Pleas of York County
                Criminal Division at No. CP-67-CR-0001279-2016


BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED AUGUST 07, 2018

        Appellant, Angel Luis Alicea, III, appeals from the judgment of

sentence entered May 2, 2017, in the Court of Common Pleas of York County

following his conviction in a jury trial of drug delivery resulting in death and

possession with intent to deliver (“PWID”).1         The trial court sentenced

appellant to 9-20 years’ incarceration. After careful review, we affirm.

        The trial court provided the following factual and procedural history:

              On September 18, 2015, around 1:20 p.m., the
              Northern York County Regional Police Department
              responded to the residential address of 7464 Hillside
              Drive, Paradise Township, York County after
              receiving a call from Ms. Briana Clapsaddle that she
              found her boyfriend, Randy Crone (herein “Crone”),
              inside the residence, in his bedroom, deceased.
              Ms. Clapsaddle had driven to Crone’s residence after
              he failed to respond to multiple text messages and

1   18 Pa.C.S.A. § 2506(a) and 35 P.S. § 780-113(a)(30), respectively.
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          telephone  calls   from    the   previous       night,
          September 17, 2015, and that morning.

          Detective William Haller and Detective Sargent
          Neidigh responded to the scene. While investigating
          Crone’s bedroom, the detectives found three (3)
          syringes, a burnt metal spoon with a small amount
          of suspected heroin residue, and a small folded
          one-dollar ($1.00) bill with a brown powdered
          substance inside which the detectives determined to
          be heroin. The one-dollar ($1.00) bill, which was
          described by police to be folded tightly in the shape
          of a triangle, was found inside an Alcoholics
          Anonymous book located on top of Crone’s dresser.

          Family members of Crone told responding officers
          that Crone was a recovering heroin addict who
          recently attended rehab in an effort to overcome his
          addiction. Crone’s family did not know he was using
          heroin on the date of his death. Crone’s sister,
          Samantha Rengifo, advised investigators that Crone
          visited her at her residence on the morning of
          September 17, 2015, and brought her doughnuts.
          Samantha stated that Crone told her that after he
          left Samantha’s residence he was going to go visit
          Ms. Clapsaddle.      Ms. Clapsaddle confirmed that
          Crone had spent the majority of the remainder of the
          day with her, attending appointments and running
          errands. Ms. Clapsaddle testified that they were
          together from about 10:00 a.m. in the morning until
          7:30 p.m. that night. Ms. Clapsaddle stated she last
          heard from Crone around 9:00 p.m. or 9:30 p.m. on
          the night of September 17, 2015, via text messages
          after he had left her residence. Officers were able to
          confirm receipts, which established that Crone had
          been at Dunkin Donuts on September 17, 2015, at
          6:45 a.m., Wal-Mart at 9:25 a.m., and Giant at
          9:42 a.m.

          By reviewing Crone’s cellphone records, investigators
          determined that Crone had been in contact with his
          best friend, Michael Iberl, on the night of
          September 17, 2015. Mr. Iberl testified that Crone
          had in fact reached out to him in regards to wanting


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          heroin and they did obtain heroin just after midnight
          on September 17, 2015. Mr. Iberl stated that he
          reached out to a dealer known as “Bebo,” and he
          and Crone drove to Bebo’s location to purchase
          heroin. Mr. Iberl testified that he contributed twenty
          dollars ($20.00) and Crone contributed eighty dollars
          ($80.00)     towards     the   single   purchase    of
          one-hundred dollars ($100.00) of heroin. Mr. Iberl
          estimated the amount of heroin purchased to weigh
          at least one (1) gram and it was packaged in a
          folded dollar bill. Bebo was later identified as being
          [appellant.]

          Mr. Iberl stated that after obtaining the heroin, just
          before 1:00 a.m., Crone dropped Mr. Iberl off at his
          grandparents’ house, his residence at the time, so
          Mr. Iberl would not break the curfew rules set by his
          grandparents. Crone drove to Walgreens to buy
          syringes and then returned to Mr. Iberl’s residence
          about fifteen (15) minutes later.        Once there,
          Mr. Iberl testified that both he and Crone both shot
          up twice (2) using the heroin they bought. Mr. Iberl
          stated that he then went to sleep but he was unsure
          if Crone had fallen asleep as well. Mr. Iberl stated
          that Crone dropped him off at work on
          September 17, 2015, around 6:00 a.m., and Crone
          took the remainder of the heroin with him, still
          packaged in the dollar bill.

          At the time of his death, Crone was living with his
          aunt and uncle.     After leaving Ms. Clapsaddle’s
          house, Crone returned to his residence just after
          8:00 p.m. on September 17, 2015. Crone briefly
          watched television with his uncle before returning to
          his room, which was located in a walk-out basement.
          This was the last account of anybody seeing Crone
          alive. Ms. Clapsaddle discovered Crone deceased in
          the afternoon of September 18, 2015.            Upon
          examination, it was ruled that Crone’s death was
          accidental and caused by heroin toxicity.         On
          January 25, 2016, Detective William D. Haller from
          the    Northern   York   County     Regional   Police
          Department filed the charges listed supra.



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            On March 16, 2017, at the conclusion of the trial, a
            jury unanimously convicted [appellant] of Drug
            Delivery Resulting in Death and [PWID].

            On May 2, 2017, [appellant] was sentenced to a
            term of nine (9) to twenty (20) years’ incarceration
            in [s]tate [p]rison for the charge of Drug Delivery
            Resulting in Death and no separate sentence for the
            [PWID] charge since said charge merged with the
            first charge. On May 8, 2017, [appellant], by and
            through his attorney, Ronald J. Gross, Esquire, filed
            a Post-Sentence Motion requesting that [appellant’s]
            sentence be vacated based on a sufficiency of the
            evidence and weight of evidence claim, as well as a
            claim that the statute [appellant] was convicted
            under, 18 Pa.C.S.A. § 2506(a) was unconstitutionally
            vague and overbroad. On June 6, 2017, [the trial
            c]ourt denied [appellant’s] Post Sentence Motion.

            On July 18, 2017, [appellant] filed a Petition to
            Accept Late Direct Filing of Appeal/Appeal Nunc Pro
            Tunc due to a filing error on the part of [appellant’s]
            attorney. On July 25, 2017, [the trial c]ourt granted
            [appellant’s] Petition to Appeal Nunc Pro Tunc and
            ordered [appellant] to file a 1925(b) Statement of
            Errors Complained of on Appeal. Both orders were
            filed on July 26, 2017.

Trial court opinion, 10/17/17 at 2-7 (citations omitted).

      Appellant filed his concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b) on August 22, 2017. The trial court then filed

an opinion pursuant to Pa.R.A.P. 1925(a) on October 17, 2017.

      Appellant raises the following issues on appeal:

            I.    Whether the [t]rial [c]ourt erred by finding
                  that sufficient evidence existed to support the
                  conclusion by the jury that [a]ppellant sold
                  hereon [sic] to Mr. Crone when in fact
                  Michael Iberl provided the heroin to the
                  decedent[?]


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            II.    Whether the Trial Court erred by not granting a
                   new trial as there existed insufficient evidence
                   that the heroin, even if presumed provided by
                   [appellant], would have caused the death of
                   Mr. Crone as after he admittedly used all the
                   heroin, as per the report of Mr. Iberl at trial,
                   he (Mr. Crone) was still alive[?]

            III.   Whether the Drug Delivery Resulting in Death
                   statute as codified in 18 Pa.C.S.A. § 2506(A) is
                   unconstitutionally vague, facially and as
                   applied, because it creates a strict liability for
                   actions negating mens re [sic] therefore
                   violating the due process clause of the
                   [F]ourteenth       [A]mendment        to       the
                   U.S. Constitution ARTICLE 1, SECTION 9, of
                   the Pennsylvania Constitution[?]

Appellant’s brief at 5.

      Appellant’s first two issues address the sufficiency of the evidence

presented by the Commonwealth.          We shall review both of these issues

together. In his first issue, appellant avers that the Commonwealth failed to

establish that appellant sold heroin to Crone when it was Iberl who provided

Crone with the heroin. (Appellant’s brief at 10.)

            In reviewing the sufficiency of the evidence, we view
            all evidence admitted at trial in the light most
            favorable to the Commonwealth, as verdict winner,
            to see whether there is sufficient evidence to enable
            [the fact-finder] to find every element of the crime
            beyond a reasonable doubt. This standard is equally
            applicable to cases where the evidence is
            circumstantial rather than direct so long as the
            combination of the evidence links the accused to a
            crime beyond a reasonable doubt.           Although a
            conviction must be based on “more than mere
            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.”


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           Moreover, when reviewing the sufficiency of the
           evidence, the Court may not substitute its judgment
           for the fact finder; if the record contains support for
           the convictions, they may not be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013), appeal

denied, 89 A.3d 661 (Pa. 2014) (citations omitted).

           Moreover, when 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 the
           witnesses and the weight of the evidence produced,
           is free to believe all, part, or none of the evidence.

Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)

(citations omitted), appeal dismissed, 54 A.3d 22 (Pa. 2012).

     We first review appellant’s contention that the Commonwealth failed to

prove that he sold heroin directly to Crone.      Section 2506 of the Crimes

Code provides, in relevant part:

           A person commits a felony of the first degree if the
           person intentionally . . . delivers, . . . sells or
           distributes any 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).

     Appellant’s entire argument is as follows:

           The evidence at trial, taken as true in the light most
           favorable to the verdict winner, shows that Mr. Iberl
           arranged a drug deal, procured money before
           meeting [a]ppellant, handed the money to
           [a]ppellant and [a]ppellant gave the heroin to him.
           At no time was Mr. Crone involved in the discussion,


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             arrangement or transaction regarding drugs.
             Mr. Iberl did not die after having said drug dispensed
             to him. Therefore, the evidence is not sufficient to
             support a conviction.

Appellant’s brief at 11.

      This case is analogous to Commonwealth v. Storey, 167 A.3d 750

(Pa.Super. 2017). In Storey, the defendant intentionally sold heroin to an

individual, who subsequently gave the heroin to the decedent. Id. at 758.

The court found that the evidence established that the heroin that the

defendant sold ultimately caused the death of the decedent. Id. The court

held that the Commonwealth need only prove beyond a reasonable doubt

that the defendant “(i) intentionally sold a controlled substance, and (ii) the

death of another person resulted from this sale.”       Id. citing 18 Pa.C.S.A.

§ 2506(a).      The statute does not mandate that the Commonwealth prove

that the defendant sold a controlled substance to the person whose death

results from the sale. Storey, 167 A.3d at 757-758.

      Turning to appellant’s second sufficiency issue, appellant argues that

the Commonwealth failed to establish that the heroin appellant sold to Iberl

caused Crone’s death.      Specifically, appellant relies on the fact that Crone

was alive after “ingesting the remaining heroin that allegedly came from

[a]ppellant.”    (Appellant’s brief at 12-13.)   Put another way, appellant is

relying on the fact that Iberl’s testimony reveals that Crone’s heroin usage

did not instantly result in his death.




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         In his brief, appellant explicitly admits intentionally selling heroin to

Iberl.    (See appellant’s brief at 11, supra.)     As stated above, it is of no

relevance that appellant did not sell the heroin directly to Crone. The record

also reflects that Crone died of heroin toxicity.           The Commonwealth

presented evidence from Dr. Rameen Starling-Roney, a forensic pathologist,

who opined that Crone’s cause of death was heroin toxicity.             (Notes of

testimony, 3/15/17 at 194.) Dr. Starling-Roney also testified that a heroin

overdose may not immediately cause death—rather, an individual could die

from an overdose within “minutes to hours.” (Id. at 201.)

         We therefore find, after viewing the evidence in the light most

favorable to the Commonwealth, that the Commonwealth sufficiently

established beyond a reasonable doubt that appellant ultimately provided

the heroin that caused Crone’s death.          Accordingly, appellant’s first two

issues are without merit.

         In his third and final issue, appellant avers that Section 2506 is

unconstitutionally vague “because it creates a strict liability for actions

negating mens re [sic],” and in so doing, violates the Fourteenth

Amendment of the United States Constitution and Article I, Section 9 of the

Pennsylvania Constitution. (Appellant’s brief at 14.)

         Here, appellant makes an incoherent argument stating that the

“reasoning, dicta and holding in [this court’s decision in Commonwealth v.]

Kakhankham[, 132 A.3d 986 (Pa.Super. 2015), appeal denied, 138 A.3d



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4 (Pa. 2016),] is the precise reasoning necessary for [this panel] to rule that

there is vagueness and violation of due process in the statute as written.”

(Appellant’s brief at 18.)        Appellant fails to distinguish this case from

Kakhankham,          which   rejected    the    precise   constitutional   arguments

presented herein, nor does he cite to any authority from either the Supreme

Court of Pennsylvania or the Supreme Court of the United States reversing

our holding in Kakhankham.              Instead, appellant forwards an irrelevant

argument about a defendant’s mens rea and liability within the context of

simple assault. (See appellant’s brief at 18-19.)

      “It is beyond the power of a Superior Court panel to overrule a prior

decision of the Superior Court, except in circumstances where intervening

authority by our Supreme Court calls into question a previous decision of

this Court.”   Commonwealth v. Hilliard, 172 A.3d 5, 10 n.8 (Pa.Super.

2017), quoting Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa.Super.

2006)    (internal    citations   omitted).      Accordingly,    our   precedent   in

Kakhankham is binding on this court, and appellant’s third issue is without

merit.




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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/7/2018




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