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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.                             :
                                               :
                                               :
    NATHAN HOWARD                              :
                                               :
                       Appellant               :   No. 772 WDA 2019

         Appeal from the Judgment of Sentence Entered July 21, 2015
    In the Court of Common Pleas of Erie County Criminal Division at No(s):
                          CP-25-CR-0001876-2014


BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MURRAY, J.:                               FILED MARCH 27, 2020

        Nathan Howard (Appellant) appeals pro se from the judgment of

sentence imposed after a jury convicted him of one count each of drug delivery

resulting in death and possession of a controlled substance by an inmate, and

three counts of contraband/controlled substance to a confined person

prohibited.1 We affirm.

        The trial court summarized:

              After the execution of a search warrant on April 26, 2014,
        at the El Patio Motel, [Appellant] was arrested. He was charged
        with various drug offenses and incarcerated in the Erie County
        Prison. The decedent, Stephen Burkhart, was an inmate at the
        time on B Block where [Appellant] was assigned.

              On May 2, 2014, Burkhart collapsed and was transported to
        Hamot Hospital from the prison. On May 5, 2014, Burkhart was
        declared brain dead. The cause was determined to be drug

____________________________________________


1   18 Pa.C.S.A. §§ 2506(a), 5123(a.2) and (a).
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      toxicity. A subsequent investigation determined that [Appellant]
      had provided Burkhart, while in the prison, with the drugs which
      killed him.

            [Appellant] was charged at Count One: Drug Delivery
      Resulting in Death, a felony of the first degree; Count Two:
      Possession of a Controlled Substance/Contraband by an Inmate,
      a felony of the second degree; and at Counts Three, Four and Five,
      one charge at each count of Contraband, Controlled Substance to
      a Confined Person Prohibited, all felonies of the second degree.

             A jury trial was held from May [18-21], 2015, on the five
      allegations against [Appellant]. The jury found [Appellant] guilty
      of all charges. [Appellant] was sentenced by this [c]ourt on July
      21, 2015. The sentences of incarceration at each count, except
      Count Five which merged with Count One for sentencing purposes,
      were in the aggravated range and as follows: Count One: 126
      months to 360 months; Count Two: 36 months to 72 months
      consecutive to Count One; Count Three: 36 month to 72 months
      consecutive to Count Two; Count Four: 36 months to 72 months
      consecutive to Count Three.

Trial Court Opinion, 4/26/19, at 1-2.

      Appellant did not file a timely post-sentence motion or notice of appeal.

However, Appellant filed a timely petition pursuant to the Post-Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, and the court reinstated his

direct appeal rights nunc pro tunc. Order, 2/27/19. Appellant subsequently

expressed a desire to proceed pro se, and on August 2, 2019, this Court

remanded    the   case   to   the   trial   court   for   a   hearing   pursuant   to

Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).                    The trial court

conducted a hearing on September 9, 2019, after which it ordered that

Appellant be permitted to proceed pro se.

      Appellant presents the following three issues for our review:




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       1. WHETHER THE SUFFICIENCY OF THE EVIDENCE WAS LACKING
       AS IT PERTAINS TO THE TWO (2) PRINCIPLE ELEMENTS OF THE
       CRIMINAL STATUE 18 Pa.C.S. §2506(a) DRUG DELIVERY
       RESULTING IN DEATH, (i) [I]NTENTIONALLY ADMINISTERING,
       DISPENSES, DELIVERING, GIVES, PRESCRIBES, SELLS OR
       DISTRIBUTES ANY CONTROLLED SUBSTANCE AND (ii) DEATH
       CAUSED (RESULTING IN) THE USE OF THAT DRUG.         THE
       COMMONWEALTH FAILED [TO MEET] ITS BURDEN TO PROVE
       EACH AND EVERY ELEMENT BEYOND A REASONABLE DOUBT, BY
       THE ALLEGED ACTIONS OF [APPELLANT], VIOLATING THE DUE
       PROCESS CLAUSE OF PA CONST. ART. 1, §9, & THE 14TH
       AMENDMENT OF THE U.S. CONST.

       2. WHETHER THE STATE COURT ERRED IN DISMISSING
       [APPELLANT’S] POST-SENTENCING MOTION/MOTION IN ARREST
       OF JUDGMENT/ACQUITAL AND/OR NEW TRIAL, AS IT PERTAINS
       TO DR. ERIC VEY’S LACK OF AN AUTOPSY TO PROVE THE
       ELEMENT OF CAUSATION - THE STATE COURT ABUSED ITS
       DISCRETION IN ITS MISAPPLICATION [OF] STATE CASE LAW
       [AND] DEPRIVED [APPELLANT] OF THE PROCEDURAL DUE
       PROCESS GUARANTEED BY STATE & FEDERAL LAW UNDER THE
       SUBSTANTIVE PRINCIPLES OF ART. 1, §9 OF PA CONST. & THE
       14TH AMENDMENT OF THE U.S. CONST.

       3. WHETHER THE STATE COURT ERRED IN DISMISSING
       [APPELLANT’S] POST-SENTENCING MOTION/MOTION IN ARREST
       OF JUDGMENT/ACQUITAL AND/OR NEW TRIAL, AS IT PERTAINS
       TO THE COURT’S ABUSE OF DISCRETION IN THE ALLOWANCE OF
       EVIDENCE AND POLICE OFFICER Lieutenant (Lt.) NOLAN’S
       TESTIMONY OF [APPELLANT’S] CONVICTION AT DOCKET NO.
       1240 OF 2014 UNDER Pa.R.E. 404(b)(2) DURING TRIAL, THAT
       WAS SO FUNDAMENTALLY UNFAIR, VIOLATING THE DUE
       PROCESS CLAUSE OF THE 14TH AMENDMENT OF THE U.S.
       CONST.

Appellant’s Brief at 4-5.2
____________________________________________


2 In his second and third issues, Appellant references the trial court’s
“dismissal of [his] post-sentencing motion/motion in arrest of
judgment/acquittal and/or new trial . . .” Our review of the record,
particularly the docket and the notes of testimony from the third and
fourth days of trial, when the parties rested and the jury reached its



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       In his first issue, Appellant challenges the sufficiency of the evidence

supporting his conviction of drug delivery resulting in death.       We recently

explained:

       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, 641 Pa. 391, 168 A.3d 161, 163 n.3
       (2017) (citation and quotation marks omitted).

       The provision criminalizing a drug delivery resulting in death is set
       forth under Chapter 25 of the Crimes Code, which relates to
       homicide. 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
____________________________________________


verdicts, reveals no oral motions, and Appellant’s counsel did not file a
post-sentence motion on Appellant’s behalf. Although the docket shows
pro se correspondence from Appellant seeking post-sentence relief,
(stamped July 24, 2015 and mailed to Appellant’s counsel on July 27,
2015 from the Deputy Clerk of Records), that filing was a legal nullity
with no effect. Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.
Super. 2007) (discussing a pro se post-sentence motion filed by a
petitioner who had counsel). When a counseled defendant files a pro se
document, it is noted on the docket and forwarded to counsel pursuant
to Pa.R.Crim.P. 576(A)(4), but no further action is to be taken.
Moreover, a pro se filing has no tolling effect. See Pa.R.Crim.P. 576
cmt. (“The requirement that the clerk time stamp and make docket
entries of the filings in these cases only serves to provide a record of
the filing, and does not trigger any deadline nor require any response.”).
Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016).



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                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.” Commonwealth v.
      Kakhankham, 132 A.3d 986, 991-92 (Pa. Super. 2015) (citation
      and footnote omitted).

Commonwealth v. Peck, 202 A.3d 739, 743–44 (Pa. Super. 2019)

(footnotes omitted), appeal granted in part, 218 A.3d 374 (Pa. 2019).

             [T]he current version of 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 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).

Id. at 744, n.5.

      Appellant makes two sufficiency arguments. First, he argues that the

evidence was insufficient to support a finding that he delivered a controlled

substance to the decedent, Stephen Burkhart.         Appellant’s Brief at 13-15.

Second, he argues that the evidence was insufficient to prove that Mr.

Burkhart’s death was the result of a drug overdose. Id. at 16-23. Both claims

are meritless. Appellant disregards the well-settled precept that the jury, as

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the factfinder, is free to believe all, part or none of the evidence, and we, as

an appellate court, review the evidence in the light most favorable to the

verdict winner; we may not substitute our judgment for the jury, and the facts

and circumstances established by the Commonwealth need not preclude every

possibility of innocence. Commonwealth v. Storey, 167 A.3d 750, 757 (Pa.

Super. 2017) (citations omitted). Further, the Commonwealth may sustain

its burden of proving every element of the crime beyond a reasonable doubt

by circumstantial evidence. Id.

      Here, the trial court detailed the abundance of evidence to support the

jury’s determination that Appellant was guilty of fentanyl delivery resulting in

Mr. Burkhart’s death. See Trial Court Opinion, 11/26/19, at 4-15. In sum,

Appellant was booked into the Erie County Prison after police searched his

hotel room and recovered heroin and fentanyl.        N.T., 5/20/15, at 39-41.

Although Appellant was strip-searched, the deputy warden testified that the

search is not always “100% effective,” and in this case, a cavity search was

not performed on Appellant.     N.T., 5/19/15, at 151-52.     Another inmate,

Michael Dominick, testified to receiving heroin from Appellant while

incarcerated; after Mr. Dominick ingested the heroin, he woke up in the

hospital. Jonathan Amon, also an inmate, testified to seeing the decedent,

Mr. Burkhart, with heroin in his cell on May 1, 2014.        The next day, he

witnessed Appellant shake hands with Mr. Burkhart, after which he saw a

white piece of paper in Mr. Burkhart’s hand, which had been empty before the


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handshake. Mr. Amon and Mr. Burkhart subsequently snorted the heroin. Mr.

Amon blacked out and was hospitalized.        “Later on May 2, 2014, Stephen

Burkhart was brought to medical as he was suspected of being under the

influence of something.” Trial Court Opinion, 11/26/19, at 10. Mr. Burkhart

eventually agreed to be catheterized and tested positive for opiates, and a lab

report from a candy wrapper found with Mr. Burkhart tested positive for

fentanyl.     Id.   After Mr. Burkhart became increasingly ill and died, Mr.

Dominick told the deputy warden that he got his drugs from Appellant. Id. at

11. Dr. Eric Vey, the Erie County Forensic Pathologist, reviewed Mr. Burkhart’s

multiple hospital toxicology reports and concluded within a reasonable degree

of medical certainty that Appellant died “as a consequence of drug toxicity.”

Id. at 12. Dr. Vey specified that Mr. Burkhart’s “21” fentanyl level “was almost

three times the average lethal level [of 8.3].” Id.; see also N.T., 5/20/15,

at 16.

         The above testimony is a mere summary of the evidence presented over

the three-plus days of trial; however, it clearly rebuts Appellant’s contention

that the Commonwealth presented insufficient evidence to support the jury’s

finding that he delivered a controlled substance to Mr. Burkhart, who died as

a result.

         In his second issue, Appellant assails the expert testimony of Dr. Vey

because Dr. Vey concluded that Mr. Burkhart died of fentanyl toxicity without

the benefit of an autopsy.        Appellant’s Brief at 24-31.    Averring that


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“toxicology testing is insufficient to prove the element of death,” Appellant

argues that the trial court erred in permitting Dr. Vey’s testimony. This issue

is waived.

      We have explained:

      In order to preserve an evidentiary objection for purposes of
      appellate review, a party must interpose a timely and specific
      objection in the trial court. “The rule is well settled that a party
      complaining, on appeal, of the admission of evidence in the [c]ourt
      below will be confined to the specific objection there made.”
      Commonwealth v. Cousar, 593 Pa. 204, 928 A.2d 1025, 1041
      (2007), quoting Commonwealth v. Boden, 399 Pa. 298, 159
      A.2d 894, 900 (1960).

Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa. Super. 2018).

      Appellant — who was represented by counsel at trial — did not “lodge a

timely and specific objection” to Dr. Vey’s testimony.        In fact, counsel

addressed Dr. Vey’s testimony and the absence of an autopsy in his opening

remarks to the jury, stating:

      You will hear from Dr. Vey. He’s the forensic pathologist in Erie
      County. And for some unexplainable reason Dr. Vey never
      performed an autopsy on Mr. Burkhart.

N.T., 5/19/15, at 40. Also, when the Commonwealth called Dr. Vey to testify,

Appellant’s counsel stated that he had “no objection” to Dr. Vey’s expert

qualifications. N.T., 5/20/15, at 4.

      Waiver notwithstanding, we note:

      Expert testimony is generally admissible in any case, where such
      testimony goes to a subject requiring special knowledge, skill or
      intelligence beyond that possessed by the ordinary juror. A
      determination of whether or not a witness is telling the truth is a


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      subject well within the ordinary knowledge and experience of the
      average juror.

Commonwealth v. Balodis, 747 A.2d 341, 345 (Pa. 2000) (citation

omitted).

      Further, in rejecting the merits of this issue, the trial court correctly

stated, “there is no requirement of an autopsy to prove cause of death

recognized under Pennsylvania law.” Trial Court Opinion, 11/16/19, at 19,

citing Commonwealth v. Ali, 10 A.3d 282, 306 (Pa. 2010) (a medical expert

who did not perform the autopsy may testify as to cause of death as long as

the testifying expert is qualified and sufficiently informed).

      In his third and final issue, Appellant challenges the admission of prior

bad acts evidence under Pa.R.E. 404(b). The Commonwealth, in advance of

trial, filed a motion to introduce evidence of Appellant’s crimes, wrongs and

other acts pursuant to Pa.R.E. 404(b). The trial court heard argument on the

Commonwealth’s motion on the first day of trial and decided the motion in the

Commonwealth’s favor. N.T., 5/18/15, at 16 (“we’ll allow it in”). Appellant

claims he was prejudiced by the court’s admission of testimony from Erie

Police Lieutenant Michael Nolan about Appellant’s arrest at the El Patio Hotel;

Appellant also claims Lieutenant Nolan’s testimony was irrelevant. Appellant’s

Brief at 32. Appellant cites “the false testimony of Lt. Nolan, as demonstrated

by a complete review of the record,” and states, “[t]he prejudice is apparent.”

Id. at 38. We disagree.

      The Pennsylvania Supreme Court has explained:

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      Generally, evidence of prior bad acts or unrelated criminal activity
      is inadmissible to show that a defendant acted in conformity with
      those past acts or to show criminal propensity. Pa.R.E. 404(b)(1).
      However, evidence of prior bad acts may be admissible when
      offered to prove some other relevant fact, such as motive,
      opportunity, intent, preparation, plan, knowledge, identity, and
      absence of mistake or accident. Pa.R.E. 404(b)(2). In determining
      whether evidence of other prior bad acts is admissible, the trial
      court is obliged to balance the probative value of such evidence
      against its prejudicial impact.

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) (citations

omitted).

      In disposing of this claim, the trial court stated:

            The charges for which [Appellant] was tried involved drugs
      possessed by an inmate; so his incarceration was no secret. The
      opportunity for an incarcerated person to have drugs in a prison
      would certainly be a factor critical for the Commonwealth to
      explain to a jury and meet its burden of proof. Any possible
      prejudice to [Appellant] is clearly outweighed by the probative
      value of the evidence of his arrest. There was no prejudice
      showing the facts of his arrest as the crimes charged presupposed
      his incarceration. The probative value of the evidence relating
      how [Appellant] came to be incarcerated, and had the opportunity
      to have the drug which caused the death of Stephen Burkhart,
      was an essential part of the prosecution, and clearly outweighed
      any prejudicial effect it may have had on the jury.

Trial Court Opinion, 11/26/19, at 17.

      We agree with the trial court’s astute reasoning.       For the reasons

discussed above, we affirm the trial court.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2020




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