J-S16042-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL U. PETERSON,

                            Appellant                No. 1537 WDA 2016


               Appeal from the Judgment of Sentence June 2, 2016
             in the Court of Common Pleas of Westmoreland County
               Criminal Division at Nos.: CP-65-CR-0000981-2014
                             CP-65-CR-0004070-2014


BEFORE: MOULTON, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                              FILED APRIL 05, 2017

        Appellant, Michael U. Peterson, appeals from the judgment of sentence

imposed following his jury conviction of two counts of possession of a

controlled substance, two counts of possession with intent to deliver a

controlled substance, possession of drug paraphernalia, drug delivery

resulting in death, and criminal conspiracy1 at Docket Numbers 981-2014

and 4070-2014.2 We affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 35 P.S. §§ 780-113(a)(16), (30), and (32); 18 Pa.C.S.A. §§ 2506(a) and
903, respectively.
2
 The cases were consolidated for trial. The charges arose from Appellant’s
participation in two drug transactions at different locations on February 5,
2014. (See Trial Court Opinion, 9/28/16, at 1-2; Verdict Slips, 1/15/16).
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        We take the following relevant facts and procedural history from our

independent review of the certified record.            On February 5, 2014, at

approximately 3:00 p.m., Appellant asked his friend, Garrin Ullrich-Stiffler,

to drive him, in Appellant’s van, to a Sheetz gas station.        At the Sheetz,

Appellant met his cousin, Sam Christner, and sold him five bags of heroin for

$50.00. Appellant also sold Ullrich-Stiffler three bags of heroin. Each of the

bags was branded with either “Rich Gang,” “Tuna Fish,” or “ESPN.”            (N.T.

Trial, 1/12/16, at 129).

        Appellant then asked Ullrich-Stiffler to drive to a CoGo’s gas station,

where they met Nicole Bianco, and Appellant sold her bags of drugs.

Appellant grew suspicious upon observing a police vehicle, and he directed

Ullrich-Stiffler to drive Bianco to her apartment. As their van turned down

the alley behind her apartment building, Police Officer Reginald Harbarger,

Jr., of the City of Greenburg Police Department, initiated a traffic stop.

        Officer Harbarger approached the van and the occupants complied with

his request to provide identification and registration information. As Officer

Harbarger ran this information, he observed Appellant repeatedly reaching

around his seat, which signaled to the officer that he could be reaching for a

weapon or concealing an item.            Officer Harbarger placed Appellant under

arrest, and read him Miranda3 warnings. He asked Appellant to consent to

____________________________________________


3
    Miranda v. Arizona, 384 U.S. 436 (1966).




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a search of his vehicle, and Appellant obliged.             Police recovered four

hypodermic needles, a blue string, a metal spoon, and a digital scale, from

the center console of the van. When Officer Harbarger asked Appellant who

owned the drug paraphernalia, Appellant responded: “it’s not mine but I will

take the hit.” (Id. at 207). A search of Appellant’s person revealed a plastic

bag containing cocaine, nineteen bags of heroin marked “Rich Gang,” “Tuna

Fish,” or “ESPN,” an empty bag marked “Paradise Island,” and $248.00 in

cash. (Id. at 210; see id. at 205-06, 209).

      At approximately 5:00 p.m., Sam Christner’s girlfriend, Dee Ann

Pruett, arrived at the residence she shared with him, and found him sitting

unconscious on the bathroom floor.           Christner appeared gray in color, his

eyes were closed, and a syringe was on the floor beside him. Pruett called

911, and Christner was transported to the hospital.               Efforts to revive

Christner were unsuccessful, and he was pronounced dead at 5:31 p.m.

Two bags of heroin stamped “Rich Gang” were found in his front pants

pocket. (N.T. Trial, 1/13/16, at 356). Toxicology test results later showed

heroin, morphine (a breakdown product of heroin), codeine (another

breakdown product), Benadryl, and alcohol in Christner’s system, with high

levels of heroin and morphine.

      Pruett   informed     police   that,   at   approximately   2:40   p.m.   that

afternoon, Christner borrowed $40.00 from her, and told her that he was

going to visit Appellant.    Police searched Pruett’s vehicle and the couple’s

residence, and the only evidence that they found associated with Christner’s

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death was the used syringe and the two bags of heroin recovered from his

person.

      On February 6, 2014, police questioned Ullrich-Stiffler about the

events of the previous day.       Ullrich-Stiffler initially stated that he and

Appellant went to Sheetz to find out about a construction job, and that he

was not aware of what transpired between Appellant and Christner.          After

police returned to Ullrich-Stiffler’s home with surveillance video from Sheetz,

he admitted that he was driving Appellant around to conduct drug

transactions, and that Appellant sold drugs to Christner.

      Police interviewed Appellant later that day and gave him Miranda

warnings.   Appellant admitted that the nineteen bags of heroin and the

cocaine found on his person belonged to him. Appellant indicated that the

needles, spoon, string, and bag marked “Paradise Island” belonged to

Ullrich-Stiffler, and he explained that, in exchange for heroin, Ullrich-Stiffler

sometimes drove him around to sell drugs. Appellant admitted that he sold

Christner five bags of heroin stamped “Rich Gang,” “Tuna Fish,” or “ESPN,”

the previous day for $50.00 at the Sheetz, and that Ullrich-Stiffler witnessed

the transaction. (N.T. Trial, 1/13/16, at 423; see id. at 421-23).

      Appellant proceeded to a five-day jury trial on January 11, 2016. On

January 15, 2016, the jury convicted Appellant of the above-stated offenses.

On June 2, 2016, the trial court sentenced Appellant, at both docket

numbers, to an aggregate term of not less than eight nor more than sixteen

years’ incarceration.   Appellant filed a timely post-sentence motion, which

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the trial court denied by opinion and order entered September 28, 2016,

following a hearing and briefing on the matter. This timely appeal followed. 4

       Appellant raises the following questions for our review:

          1. Whether the [trial court]           erred      in   making   certain
          evidentiary rulings at trial[?]

          2. Whether the [trial court] erred [in] denying Appellant’s
          requested jury instruction[?]

          3. Whether [] Appellant was entitled to relief for discovery
          violations by the Commonwealth[?]

          4. Whether the Commonwealth presented sufficient evidence
          to sustain a verdict of guilty[?]

(Appellant’s Brief, at 4).

       In his first issue, Appellant claims the trial court erred in making

evidentiary rulings with respect to the testimony of three witnesses, the

Commonwealth’s expert forensic pathologist, Dr. Cyril Wecht; Appellant’s

wife, Bethany Peterson; and Appellant’s expert toxicologist, Dr. Michael

Zemaitis. (See Appellant’s Brief, at 10-14). Appellant argues that the court

improperly:     limited    cross-examination     of   Dr.    Wecht,   permitted     the

Commonwealth to “badger” Mrs. Peterson, and limited the testimony of Dr.

Zemaitis. (Id. at 12; see id. at 10-14). This issue is waived.

____________________________________________


4
  The court did not order Appellant to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). On October 20, 2016, the
court entered an opinion referring this Court to its opinion and order filed
September 28, 2016, for the reasons for its decision.        See Pa.R.A.P.
1925(a).



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      This Court has emphasized that we “will not act as counsel and will not

develop arguments on behalf of an appellant.”            Commonwealth v.

Richard, 150 A.3d 504, 514 (Pa. Super. 2016) (citation omitted).

“[A]rguments which are not appropriately developed are waived. Arguments

not appropriately developed include those where the party has failed to cite

any authority in support of a contention.” Id. at 513-14 (citation omitted);

see also Pa.R.A.P. 2119(a)-(b).

      Here, Appellant’s argument in support of his multiple claims of trial

court error includes only one citation to legal authority for the boilerplate

proposition that evidence is admissible if it is relevant and not unduly

prejudicial. (See Appellant’s Brief, at 10). Appellant does not discuss the

legal standards applicable to each evidentiary ruling in light of his specific

allegations of error. (See id. at 10-14). Therefore, Appellant’s first issue is

waived. See Richard, supra at 513-14.

      In his second issue, Appellant argues the trial court erred in denying

his proposed jury instructions relating to the drug delivery resulting in death

charge.   (See Appellant’s Brief, at 14-16).     Appellant contends that the

court’s instructions did not sufficiently advise the jury of the requirement of

“but-for causation,” or the appropriate mens rea for the offense.      (Id. at

16). This issue is waived.

      It is well-settled that “[a] specific and timely objection must be made

to preserve a challenge to a particular jury instruction.    Failure to do so




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results in waiver.”   Commonwealth v. Moury, 992 A.2d 162, 178 (Pa.

Super. 2010) (citations omitted). Our Supreme Court

            has held, in the criminal trial context, the mere submission
      and subsequent denial of proposed points for charge that are
      inconsistent with or omitted from the instructions actually given
      will not suffice to preserve an issue, absent a specific objection
      or exception to the charge or the trial court’s ruling respecting
      the points.

Commonwealth v. Hitcho, 123 A.3d 731, 756 (Pa. 2015) (citation and

internal quotation marks omitted).

      Here, the trial court and the Commonwealth maintain that Appellant

waived his jury instruction issue on appeal for his failure to object.     (See

Trial Ct. Op., at 17; Commonwealth’s Brief, at 15-16).     Our review of the

record confirms that, prior to the parties’ closing arguments, the trial court

conducted an on-the-record charging conference in chambers, at which it

denied Appellant’s proposed points for charge at issue, and defense counsel

did not object. (See N.T. Trial, 1/15/16, at 672-80). After the court gave

the instructions to the jury, Appellant did not lodge any objection. (See id.

at 779-80).   In fact, when the court questioned the parties as to whether

there were any instructions it neglected to give, defense counsel responded

“No, Your Honor.” (Id. at 779). Therefore, Appellant waived his challenge

to the trial court’s instructions.   See Hitcho, supra at 756 (declining to

review appellant’s challenge to jury instruction where he failed to object to

charge).




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        In his third issue, Appellant alleges discovery violations by the

Commonwealth, relating to a second syringe and an aluminum foil pipe

found by Dee Ann Pruitt in her home after Christner’s death.               (See

Appellant’s Brief, at 17-18). Appellant claims that these items should have

been tested for substances, to help explain what Christner had ingested.

(See id. at 17).      Appellant further contends that this is “a classic case of

spoliation of evidence.” (Id.). This issue also is waived.

        While we recognize that Appellant may be attempting to make an

unconventional Brady5 claim by arguing spoliation of evidence, we reiterate,

“[t]his Court will not act as counsel and will not develop arguments on behalf

of an appellant[,]” and an appellant must properly develop arguments with

citation to pertinent legal authority.           Richard, supra at 514 (citation

omitted); Pa.R.A.P. 2119(a)-(b).

        Here, in his cursory argument spanning slightly more than one page,

Appellant fails to cite Brady or any other relevant legal authority to support

his claim.     Instead, he relies only on a civil products liability case

involving the defective design of a motor vehicle. (See Appellant’s Brief, at

18 (citing Parr v. Ford Motor Co., 109 A.3d 682 (Pa. Super. 2014) (en

banc), appeal denied, 123 A.3d 331 (Pa. 2015), cert. denied, 136 S.Ct. 557

(2015))). Additionally, although Appellant appears to base his argument on

____________________________________________


5
    Brady v. Maryland, 373 U.S. 83 (1963).




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Dee Ann Pruitt’s testimony, he neglects to direct this Court to the pertinent

portions of the certified record, in violation of Pa.R.A.P. 2119(c). Therefore,

Appellant’s undeveloped third issue is waived. See Richard, supra at 513-

14.

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

supporting his drug delivery resulting in death conviction. (See Appellant’s

Brief, at 18).6 Specifically, he disputes the elements of intent and causation.

Appellant argues, “the intent state of mind [must] be applied to all material

elements, such that it must be proven that it was the actor’s intention that

the victim of a drug delivery [resulting] in death actually die.” (Id. at 15;

see id. at 14, 18). Appellant also maintains that “but-for” causation was not

established, because the potency of the heroin and the exact substances

Christner ingested is unknown, and other substances that were not tested

for could have contributed to his death. (See id. at 18). This issue does not

merit relief.

              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
____________________________________________


6
  In the sufficiency of the evidence section, Appellant also raises a challenge
to his possession of drug paraphernalia conviction. (See Appellant’s Brief, at
18-19). However, Appellant does not attempt to develop a sufficiency
argument regarding this conviction, and instead raises, in a one-paragraph
argument devoid of citation to any legal authority, a due process claim
relating to the criminal information filed against him. (See id. at 19). This
undeveloped argument is waived. See Pa.R.A.P. 2119(a)-(c).



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      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 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. Giordano, 121 A.3d 998, 1002-03 (Pa. Super. 2015),

appeal denied, 131 A.3d 490 (Pa. 2016) (citations omitted).

      The drug delivery resulting in death statute provides in pertinent part

as follows:

      (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.A. § 2506(a) (footnote omitted).

      “The crime described above 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.”




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Commonwealth v. Kakhankham, 132 A.3d 986, 991–92 (Pa. Super.

2015), appeal denied sub nom. Commonwealth v. Somwang Laos

Kakhankham, 138 A.3d 4 (Pa. 2016) (footnote omitted).

      With respect to the mens rea for the first element of the offense,

      [t]he statute is as clear and direct as a statute can be. The
      mental state required is “intentionally” doing one of the acts
      described therein, namely, administering, dispensing, delivering,
      giving, prescribing, selling or distributing any controlled
      substance or counterfeit controlled substances. Additionally, the
      Crimes Code defines “intentionally” as follows:

              (1) A person acts intentionally with respect to a
              material element of an offense when:

              (i) if the element involves the nature of his conduct
              or a result thereof, it is his conscious object to
              engage in conduct of that nature or to cause such a
              result; and

              (ii) if the element involves the attendant
              circumstances, he is aware of the existence of such
              circumstances or he believes or hopes that they
              exist.

      18 Pa.C.S.A. § 302(b)(1).

            Thus, under the statute, the first element of the crime is
      met if one “intentionally” administers, dispenses, delivers, gives,
      prescribes, sells or distributes any controlled substance or
      counterfeit controlled substances. . . .

Id. at 992.

      Regarding the level of causation necessary for guilt,

      The statute uses the phrase[] “results from,” a concept which is
      defined also in the Crimes Code. Section 303 of the Crimes
      Code, in relevant part, provides:



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     Causal relationship between conduct and result

            (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.

     18 Pa.C.S.A. § 303(a). The statute, therefore, is clear as to the
     level of causation. It requires a “but-for” test of causation.
     Additionally, criminal causation requires 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.

Id. at 992–93 (footnotes, case citations and some quotation marks

omitted).

     With regard to the mens rea requirement for the second element of

section 2506, the Kakhankham Court rejected an argument, identical to

Appellant’s, that the defendant must intend to cause the death of another,

stating “such a reading would make Section 2506 superfluous, for

intentionally causing the death of another person is already criminalized

(i.e., first degree murder).” Id. at 993 (record citation omitted). Instead,

the Court concluded that:

     Section 302(c) provides the mens rea requirement for the
     second element of Section 2506, i.e., death must be at least
     “reckless.” 18 Pa.C.S.A. § 302(c).

            The Crimes Code defines “recklessly” as follows:

                 A person acts recklessly with respect to a
            material element of an offense when he consciously

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              disregards a substantial and unjustifiable risk that
              the material element exists or will result from his
              conduct. The risk must be of such a nature and
              degree that, considering the nature and intent of the
              actor’s conduct and the circumstances known to him,
              its disregard involves a gross deviation from the
              standard of conduct that a reasonable person would
              observe in the actor’s situation.

      18 Pa.C.S.A. § 302(b)(3).

            Additionally, when recklessly causing a particular result is
      an element of an offense,

              the element is not established if the actual result is
              not within the risk of which the actor is aware or, in
              the case of negligence, of which he should be aware
              unless:

              (1) the actual result differs from the probable result
              only in the respect that a different person or
              different property is injured or affected or that the
              probable injury or harm would have been more
              serious or more extensive than that caused; or

              (2) the actual result involves the same kind of injury
              or harm as the probable result and is not too remote
              or accidental in its occurrence to have a bearing on
              the liability of the actor or on the gravity of his
              offense.

      18 Pa.C.S.A. § 303(c).

Id. at 995.

      Here, Ullrich-Stiffler testified that on February 5, 2014, he drove

Appellant to a Sheetz gas station and observed Appellant sell Christner five

bags of heroin for $50.00.      (See N.T. Trial, 1/12/16, at 120, 124, 127).

Appellant also sold Ullrich-Stiffler three bags of heroin, and each of the bags

was branded with either “Rich Gang,” “Tuna Fish,” or “ESPN.” (Id. at 129;


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see id. at 128). Police review of Appellant’s text messages from that day

reflect that Christner “want[ed] five if [Appellant had] it,” and Sheetz

videotape surveillance footage showed Appellant’s van at the scene during

the relevant time period. (N.T. Trial, 1/14/16, at 445; see also N.T. Trial,

1/12/16, at 150-51; N.T. Trial, 1/13/16, at 412-13).

     Less than two hours after Appellant sold Christner the heroin, Dee Ann

Pruett found Christner unconscious on the bathroom floor, appearing gray in

color, with a used syringe next to his body.    (See N.T. Trial, 1/12/16, at

129; N.T. Trial, 1/13/16, at 294-97, 351, 364). Two bags of heroin marked

“Rich Gang” were in Christner’s pants pocket. (N.T. Trial, 1/13/16, at 356).

     Police recovered nineteen packets of heroin, marked with either “Rich

Gang,” “Tuna Fish,” or “ESPN,” from Appellant’s person.          (N.T. Trial,

1/12/16, at 210; see id. at 209).      During a police interview, Appellant

admitted that these heroin packets belonged to him, that he sold Christner

five bags of heroin marked either “Rich Gang,” “Tuna Fish,” or “ESPN” at the

Scheetz, and that Ullrich-Stiffler witnessed the transaction.    (N.T. Trial,

1/13/16, at 423; see id. at 421-23).

     Dr. Wecht, the forensic pathologist who performed Christner’s autopsy,

testified that toxicology reports showed high levels of heroin and morphine

in his system. (See N.T. Trial, 1/13/16, at 234, 248). Dr. Wecht testified

that the cause of death was acute combined drug toxicity, with the principal

factor a very large amount of heroin breaking down into morphine. (See id.

at 249).   He stated that the level of alcohol and Benadryl in Christner’s

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system was insignificant, and did not contribute to his death. (See id. at

249-50, 263). Dr. Wecht opined that “[b]ut for the presence of the heroin in

his system,” Christner would not have died.       (Id. at 249; see id. at 250,

262).     He further opined that if any other substances were present in

Christner’s system in quantities sufficient to contribute to his death, the

toxicology screen would have identified them. (See id. at 250-51).

        After review of the record, viewing the evidence in the light most

favorable to the Commonwealth as verdict winner, see Giordano, supra at

1002, we conclude that the evidence clearly shows Appellant intentionally

sold the heroin to Christner, that but for this sale, Christner would not have

died, and that Appellant acted recklessly with regard to Christner’s death.

See Kakhankham, supra at 992-93, 995.             As the Kakhankham Court

noted, “[i]t is certain that frequently harm will occur to the buyer if one sells

heroin. . . . While not every sale of heroin results in an overdose and death,

many do.”     Id. at 995-96 (citation omitted).     Therefore, Appellant’s final

issue does not merit relief.       Accordingly, we affirm the judgment of

sentence.

        Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/5/2017




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