J-A22043-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

RYAN ALAN KEMP,

                            Appellant                  No. 195 MDA 2015


          Appeal from the Judgment of Sentence December 15, 2014
               in the Court of Common Pleas of Centre County
              Criminal Division at No.: CP-14-CR-0000547-2014


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED NOVEMBER 16, 2015

        Appellant, Ryan Alan Kemp, appeals from the judgment of sentence

entered on December 15, 2014, following his non-jury conviction of drug

delivery resulting in death, two counts of possession with intent to deliver a

controlled substance, delivery of a controlled substance, and possession of

drug paraphernalia.1         On appeal, Appellant challenges the trial court’s

interpretation of 18 Pa.C.S.A. § 2506(a), and the sufficiency of the evidence

underlying his conviction for drug delivery resulting in death.       For the

reasons discussed below, we affirm.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2506(a), 35 P.S. §§ 780-113(a)(30) and (32), respectively.
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      We take the underlying facts and procedural history in this matter

from the trial court’s April 2, 2015 opinion and our independent review of the

certified record.

            On January 24, 2014, [Appellant] obtained ten packets of
      heroin from Williamsport, Pennsylvania. That day, [Appellant]
      invited Elizabeth Smeltzer (hereinafter “Ms. Smeltzer”) to his
      residence to use the heroin. That night, Ms. Smeltzer visited
      [Appellant] at his residence, where both used the heroin
      provided by [Appellant].      Ms. Smeltzer also took Klonopin
      (Clonazepam, a class IV substance) provided by [Appellant] that
      night. In the early morning of January 25, 2015, [Appellant]
      and Ms. Smeltzer fell asleep. When [Appellant] awoke later that
      morning, Ms. Smeltzer was dead.       The cause of death was
      determined to be a drug overdose.      [Appellant] was charged
      with [the above-listed charges].

             On August 26, 2014, [Appellant] filed a Motion in Limine to
      clarify what mens rea was required for the material elements of
      Drug Delivery Resulting in Death[.] . . . On September 29, 2014,
      a hearing for the Motion in Limine was held. On October 24,
      2014, [the trial court] denied [Appellant’s] Motion in Limine. On
      October 27, 2014, a [stipulated] nonjury trial was held and on
      the same day a guilty verdict was rendered for all counts
      charged against [Appellant].

(Trial Court Opinion, 4/02/15, at 1-2) (record citations omitted).

      On   December     15,   2014,   following   receipt   of   a   presentence

investigation report (PSI), a lengthy sentencing hearing occurred. The trial

court sentenced Appellant, in the mitigated range, to a term of incarceration

of not less than four nor more than twelve years with credit for two-hundred

and seventy days’ time-served, to be followed by a consecutive one-year

term of probation. On December 17, 2014, Appellant filed a post-sentence

motion, which the trial court denied on January 22, 2015.            The instant,


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timely appeal followed.      On January 28, 2015, the trial court ordered

Appellant to file a concise statement of errors complained of on appeal. See

Pa.R.A.P. 1925(b).    Appellant complied on February 6, 2015.       On April 2,

2015, the trial court issued an opinion. See Pa.R.A.P. 1925(a).

      On appeal, Appellant raises the following questions for our review:

      I.    Did the [t]rial [c]ourt err in holding that [d]rug [d]elivery
            [r]esulting in [d]eath, 18 [Pa.C.S.A.] § 2506(a) (West),
            does not require any mens rea with respect to the death of
            another, a material element of the offense?

      II.   Did the [t]rial [c]ourt err in finding there was sufficient
            evidence to sustain a conviction for [d]rug [d]elivery
            [r]esulting in [d]eath, § 2506, specifically the causation
            required relative to the mens rea?

(Appellant’s Brief, at 7).

      In his first claim, Appellant argues that the trial court erred in finding

the mens rea intentionally applied only to the first element of Section

2506(a), asserting that the statute is inherently ambiguous. (See id. at 17-

38). We disagree.

      Initially, we note that interpreting the meaning of a statute raises a

pure question of law, therefore our standard of review is de novo and our

scope of review is plenary. See Commonwealth v. Burwell, 58 A.3d 790,

793 (Pa. Super. 2012), appeal denied, 69 A.3d 242 (Pa. 2013). Further, we

acknowledge:

            Our task is guided by the sound and settled principles set
      forth in the Statutory Construction Act, including the primary
      maxim that the object of statutory construction is to ascertain
      and effectuate legislative intent. 1 Pa.C.S.[A.] § 1921(a). In

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      pursuing that end, we are mindful that “[w]hen the words of a
      statute are clear and free from all ambiguity, the letter of it is
      not to be disregarded under the pretext of pursuing its spirit.” 1
      Pa.C.S.[A]. § 1921(b). Indeed, “[a]s a general rule, the best
      indication of legislative intent is the plain language of a statute.”
      In reading the plain language, “[w]ords and phrases shall be
      construed according to rules of grammar and according to their
      common and approved usage,” while any words or phrases that
      have acquired a “peculiar and appropriate meaning” must be
      construed according to that meaning. 1 Pa.C.S.[A.§] 1903(a).
      However, when interpreting non-explicit statutory text,
      legislative intent may be gleaned from a variety of factors,
      including, inter alia: the occasion and necessity for the statute;
      the mischief to be remedied; the object to be attained; the
      consequences of a particular interpretation; and the
      contemporaneous legislative history. 1 Pa.C.S.[A.] § 1921(c).
      Moreover, while statutes generally should be construed liberally,
      penal statutes are always to be construed strictly, 1 Pa.C.S.[A] §
      1928(b)(1), and any ambiguity in a penal statute should be
      interpreted in favor of the defendant.

            Notwithstanding the primacy of the plain meaning doctrine
      as best representative of legislative intent, the rules of
      construction offer several important qualifying precepts. For
      instance, the Statutory Construction Act also states that, in
      ascertaining legislative intent, courts may apply, inter alia, the
      following presumptions: that the legislature does not intend a
      result that is absurd, impossible of execution, or unreasonable;
      and that the legislature intends the entire statute to be effective
      and certain. 1 Pa.C.S.[A.] § 1922(1),(2). Most importantly, the
      General Assembly has made clear that the rules of construction
      are not to be applied where they would result in a construction
      inconsistent with the manifest intent of the General Assembly. 1
      Pa.C.S.[A.] § 1901.

Commonwealth v. Wilson, 111 A.3d 747, 751 (Pa. Super. 2015) (case

citation omitted).




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      The trial court convicted Appellant of drug delivery resulting in death,

18 Pa.C.S.A. § 2506(a), which states:

      (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).

      Appellant argues that Section 2506(a) is inherently ambiguous

because it does not clearly set forth the mens rea for the material element

of “another . . . dies as a result.” Id. (See Appellant’s Brief, at 17-18). He

insists that “the Court is bound to follow the rules of lenity and statutory

construction and resolve the ambiguity in the light most favorable to

[Appellant]. . . . [T]he Court should . . . hold that the mens rea

‘intentionally’   must   apply   to   each   material    element       of   the   crime.”

(Appellant’s Brief, at 37). Moreover, Appellant contends that our Supreme

Court’s decision in Commonwealth v. Ludwig, 874 A.2d 623 (Pa. 2005),

compels a conclusion that the only appropriate mens rea for the second

element of the crime is intentional because Ludwig stands for the principle

that “the mens rea requirement must still attach to every material element

of the crime.” (Id. at 29; see also id. at 26-29).

      The    Commonwealth        argues    that   the   statute   is    not   inherently

ambiguous and that the adverb “intentionally,” modifies only the first

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dependent clause, “administers . . . any controlled substance. . .”

(Commonwealth’s Brief, at 8). The Commonwealth maintains that this Court

should apply the default mens rea codified at 18 Pa.C.S.A. § 302(c), and

hold that the appropriate mens rea for the second element is recklessness.

(See id. at 10-11).      We find the Commonwealth’s position compelling.

        Initially, we are not persuaded that Ludwig mandates that the mens

rea for the second element of the crime is “intentionally.” In Ludwig, our

Supreme Court addressed a challenge that an earlier version of Section 2506

was unconstitutionally vague because it did not “set forth the mental state

required for criminal liability.”        See Ludwig, supra at 626.   The now

repealed version of Section 2506 stated:

         A person commits murder of the third degree who
        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) (repealed Sept. 6, 2011) (emphasis added, footnote

omitted). The Court found that while that version of Section 2506(a) did not

contain an explicit mens rea “the General Assembly has provided a default

culpability provision in Section 302(c)2 of the Crimes Code that is to be


____________________________________________


2
    The relevant portions of Section 302 state:

(Footnote Continued Next Page)


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applied to determine the appropriate element of culpability.”        Ludwig,

supra at 630. The Court concluded that, by designating the crime as one of

murder in the third degree, culpability was otherwise provided because it

had long held that the mens rea for murder in the third degree was malice.

See id. at 630-31.

      We see nothing in Ludwig that mandates that the mens rea for the

second element of drug delivery resulting in death be intentional. Rather,

Ludwig found that the statute was not unconstitutionally vague because, in

the absence of specific mens rea, the Legislature articulates the applicable

mens rea at Section 302 of the Crimes Code. See id. It further holds that

we must look to the language of the statute to ascertain the intent of the

Legislature. See id.
                       _______________________
(Footnote Continued)

      (a) Minimum requirements of culpability.—Except as
      provided in section 305 of this title (relating to limitations on
      scope of culpability requirements), a person is not guilty of an
      offense unless he acted intentionally, knowingly, recklessly or
      negligently, as the law may require, with respect to each
      material element of the offense.

                                        *        *   *

      (c) Culpability required unless otherwise provided.— when
      the culpability sufficient to establish a material element of an
      offense is not prescribed by law, such element is established if a
      person acts intentionally, knowingly or recklessly with respect
      thereto.

18 Pa.C.S.A. §§ 302(a) and (c).




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       By arguing that the statute is ambiguous and that the appropriate

mens rea is intentional, Appellant ignores both the plain language of the

statute and the import of the change of language from the 1998 version of

the statute discussed in Ludwig to the 2011 version3 at issue in the instant

matter. He also disregards basic principles of statutory construction.

       In 2011, the Legislature removed the phrase “[a] person commits

murder of the third degree who . . . [,]” 18 Pa.C.S.A. § 2506(a) (repealed

Sept. 6, 2011), and substituted “[a] person commits a felony of the first

degree if the person intentionally. . .” 18 Pa.C.S.A. § 2506(a) (effective

Sept. 6, 2011). A discussion of House Bill 396 (of April 27, 2011), 4 makes it

clear that the Legislature deliberately changed the wording to remove the

mens rea of malice and did so with the intention of making it easier to

convict and impose greater penalties on individuals who sold drugs when

those drugs resulted in the death of another. See H. No. 29, 195 Sess., at

757-58 (Pa. 2011).



____________________________________________


3
  18 Pa.C.S.A. § 2506 was amended in 2014; however, that version did not
take effect until after Appellant’s conviction. Further, the amendment is of
no import for our review because the definition of drug delivery resulting in
death remains the same. See 18 Pa.C.S.A. § 2506(a) (effective August 18,
2014).
4
  The language of section 2506(a) in HB 396, is identical to that contained in
the 2011 version of 18 Pa.C.S.A. § 2506(a). See H.B. 396 2011, §1; 18
Pa.C.S.A. § 2506(a) (effective April 27, 2011).



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       Moreover, in a recent binding opinion, a panel of this Court5 addressed

the question of whether 18 Pa.C.S.A. § 2506 was unconstitutionally vague

because it did not clearly indicate the requisite mens rea for conviction. See

Commonwealth v. Kakhankham, -- A.3d --, 2015 WL 6508110, at ** 4-6

(Pa. Super., filed October 28, 2015). In concluding that the statute was not

unconstitutionally vague, we specifically held that the mens rea for the first

section is clearly defined, stating, “[t]he first element of the crime is met if

one ‘intentionally’ administers, dispenses, delivers, gives, prescribes, sells or

distributes any controlled substance or counterfeit controlled substance.”

Id. at *4.

       Further, we addressed the identical claim raised herein, that Section

2506 can be read as requiring that the second (“results from”) element also

be “intentionally.” See id. at *5; (see also Appellant’s Brief, at 17-38). We

disagreed, finding that the correct mens rea for the second element is the

default culpability provision found at 18 Pa.C.S.A. § 302(c).               See

Kakhankham, supra at *6. Thus, we held, “. . . Section 302(c) provides

the mens rea requirement for the second element of Section 2506, i.e.,



____________________________________________


5
  See Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (“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.”),
appeal denied, 946 A.2d 686 (Pa. 2008).



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death must be at least ‘reckless.’”    Id.    Therefore, Appellant’s first claim

lacks merit.

      In his second issue, Appellant challenges the sufficiency of the

evidence underlying his conviction for drug delivery resulting in death. (See

Appellant’s Brief, at 38-44).   Our standard of review for sufficiency of the

evidence claims is well settled:

            We must determine whether the evidence admitted at trial,
      and all reasonable inferences drawn therefrom, when viewed
      in a light most favorable to the Commonwealth as verdict
      winner, support the conviction beyond a reasonable doubt.
      Where there is sufficient evidence to enable the trier of fact to
      find every element of the crime has been established beyond a
      reasonable doubt, the sufficiency of the evidence claim must fail.

            The evidence established at trial need not preclude every
      possibility of innocence and the fact-finder is free to believe all,
      part, or none of the evidence presented. It is not within the
      province of this Court to re-weigh the evidence and substitute
      our judgment for that of the fact-finder. The Commonwealth’s
      burden may be met by wholly circumstantial evidence and any
      doubt about the defendant’s guilt is to be resolved by the fact
      finder unless the evidence is so weak and inconclusive that, as a
      matter of law, no probability of fact can be drawn from the
      combined circumstances.

Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citation

omitted) (emphasis added).

      Here, Appellant does not dispute that he supplied the drugs to the

victim or that her death resulted from an overdose.           (See N.T. Trial,

10/27/14, at 8-9).    Instead, he claims that the Commonwealth failed to

prove that he caused the victim’s death because it was not foreseeable that




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the use of heroin in combination with Klonopin would result in death. (See

Appellant’s Brief, at 38-44). We disagree.

      As discussed above, with respect to the second element, “another

person dies as a result of using the substance[,]” 18 Pa.C.S.A. § 2506(a),

under Section 302(c) the Commonwealth need only prove that Appellant

acted recklessly. The law defines “recklessly” as a state of mind:

      . . . [where the actor] consciously 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).     In other words, recklessness does not require

that the actor knows that his actions will kill the victim but rather that he

acts in the face of known danger with the risk of certain results. Further,

the law states that conduct is the cause of a result when:            “it is an

antecedent but for which the result in question would not have occurred[.]”

18 Pa.C.S.A. § 303(a)(1). Moreover, section 303 goes on to state:

      (c) Divergence between probable and actual result.—
      When recklessly or negligently 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


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J-A22043-15


            (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).

      Here, the record reflects that Appellant told police that he was going to

jail because the drugs that he supplied killed the victim.    (See N.T. Trial,

10/27/14, at 6-7, Commonwealth Exhibit A, at 5). Appellant had a lengthy

history of drug use and failed rehabilitation and had relapsed several times

during the year. (See id. at Commonwealth Exhibit C, Narrative of Corporal

Timothy Stringer, at 8; Supplement of March 19, 2014, at 5).                He

acknowledged to police that prior to falling asleep the victim became

incoherent and “he had to bring her back out of it.” (Id. at Commonwealth

Exhibit C, Narrative of Officer Andrew Ettaro, at 2). Appellant admitted that

he buys and sells heroin illegally but said that he sells drugs “for fun.” (Id.

at Commonwealth Exhibit C, Narrative of Officer Jonathan Mayer, at 5). In

text messages sent after the victim’s death Appellant stated that it was his

fault that the victim did “dope.”    (Id. at Commonwealth Exhibit H, Text

Message, at unnumbered p. 3).         Appellant was aware of the danger

associated with the use of heroin because he was in and out of rehabilitation

and stated that his giving the victim the drugs made him responsible for her




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death.6 (See id. at Commonwealth Exhibit C, Narrative of Corporal Timothy

Stringer, at 8; Narrative of Officer Jonathan Mayer, at 5).       Appellant’s own

exhibits at trial highlight the dangerousness of heroin use and that between

2009-14, it caused the death of almost 3,000 Pennsylvanians. (See id. at

Commonwealth Exhibit C, Supplement of January 28, 2014, at 5; Defense

Exhibit 4, Heroin Report of September 2014, at p. 1). Further, as this Court

has stated:

             [I]t is certain that frequently harm will occur to the buyer
       if one sells heroin. Not only is it criminalized because of the
       great risk of harm, but in this day and age, everyone realizes the
       dangers of heroin use. It cannot be said that [unauthorized
       heroin provider] should have been surprised when [victim]
       suffered an overdose and died. While not every sale of heroin
       results in an overdose and death, many do.

Kakhankham, supra at *7 (citation omitted).

       Thus, in sum, the evidence showed that Appellant intentionally

supplied the victim with heroin. He was a known user of heroin and aware

of the risks, including possible death from an overdose.          On the night in

question, Appellant observed the victim having an adverse reaction to the

drug. He admitted that it was his fault that the victim used heroin and that

the heroin he gave her caused her death.           This evidence was sufficient to

____________________________________________


6
  In its brief, the Commonwealth notes that the evidence at trial showed that
Appellant nearly died from a heroin overdose. (See the Commonwealth’s
Brief, at 12-13). However, we cannot find this information at the location
cited by the Commonwealth, and can only find reference to it at sentencing.
(See N.T. Sentencing, 12/15/14, at 19).



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show that he knew the risks of heroin use, including death, but recklessly

disregarded them when he intentionally supplied the victim with heroin,

which killed her. That is all that is required to sustain a conviction for drug

delivery resulting in death. See 18 Pa.C.S.A. § 2506(a); see also

Kakhankham, supra at *7; Commonwealth v. Bradley, 69 A.3d 253,

257   (Pa.   Super.   2013),   appeal     denied,   79   A.3d   1095   (Pa.   2013)

(Commonwealth met its burden of proving mens rea of recklessness where

evidence showed defendant ignored high risk of injury from twisting arm

behind victim’s back, resulting in broken bone); Commonwealth v.

Fabian, 60 A.3d 146, 155-56 (Pa. Super. 2013), appeal denied, 69 A.3d

600 (Pa. 2013) (Commonwealth met its burden of proving mens rea of

recklessness    where     after   complaints        of   problems      with    van,

defendant/mechanic failed to make interior check of van’s brake system,

resulting in accident that put occupants at risk of death or serious injury).

Appellant’s second claim lacks merit.




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     Accordingly, for the reasons discussed above, we affirm the judgment

of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2015




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