J-A03029-15

                                  2015 PA Super 225



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

SOMWANG LAOS KAKHANKHAM

                            Appellant                   No. 712 MDA 2014


          Appeal from the Judgment of Sentence entered April 1, 2014
             In the Court of Common Pleas of Cumberland County
               Criminal Division at No: CP-21-CR-0003607-2012


BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

OPINION BY STABILE, J.:                               FILED OCTOBER 28, 2015

        Appellant, Somwang Laos Kakhankham, appeals from the judgment of

sentence entered April 1, 2014 in the Court of Common Pleas of Cumberland

County. For the reasons stated below, we affirm.

        The trial court summarized the relevant factual background as follows:

        On February 6, 2012, [victim] was found deceased in his home
        at 328 West Penn Street in the borough of Carlisle. A search of
        [victim]’s home resulted in the discovery of a syringe, two (2)
        empty bags, stamped with the name Blackout, in addition to six
        (6) bags of heroin, also stamped with the name Blackout. A
        witness[, JL,] told police officers that [Appellant] entered
        [victim]’s home at approximately 1 A.M. the day [victim] was
        found. [Appellant] told a second witness that [Appellant] had



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A03029-15


       provided the heroin to [victim].[1] This same witness, identified
       as DS, also purchased $100 worth of heroin from [Appellant,]
       which was stamped with the name Blackout. The next day, DS
       met with police officers to conduct a controlled purchase of
       heroin from [Appellant], during which DS purchased two (2)
       bags of Blackout-stamped heroin using $40 of official funds. On
       February 8, 2012, a probation check of [Appellant]’s residence
       found two (2) bags of heroin stamped with the name Blackout as
       well as $656 in cash which contained the $40 in official funds
       from the prior day’s controlled purchase. On February 16, 2012,
       a third witness told police [that he, the witness] had purchased
       heroin with the stamp Blackout from [Appellant]. [Another
       witness, witness number four,] additionally told the police that
       [Appellant] told them he provided the heroin to [victim].[2,3]
       Finally, a Cumberland County Coroner’s report dated October 4,
       2012 stated that the level of morphine in [victim]’s bloodstream
       was 295 nanograms per millimeter. Heroin metabolizes into
       morphine upon being absorbed by the body. The therapeutic
       level for morphine is ten (10) nanograms per millimeter. The
       level of metabolized heroin was the cause of [victim]’s death.

Trial Court Opinion, 8/4/14, 1-3 (citation to stipulated record omitted).

       As a result, Appellant was charged with drug delivery resulting in

death, 18 Pa.C.S.A. § 2506, and possession of a controlled substance with

intent to deliver, 35 P.S. § 780–113(a)(30).         Following a preliminary

hearing, Appellant filed a petition for writ of habeas corpus alleging that the
____________________________________________


1
  “During the purchase, [Appellant] told the witness, DS, that he had fronted
the victim heroin the day before his death.”         N.T. Stipulated Record,
1/14/14, at 6.
2
  Appellant “told this witness that [Appellant] had supplied the victim with
the heroin that resulted in victim’s death.” N.T. Stipulated Record, 1/14/14,
at 7.
3
  Another witness, witness number five, stated that Appellant stated to the
witness that “he had fronted the victim a bundle of heroin stamped
Blackout.” N.T. Stipulated Record, 1/14/14, at 8.



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Commonwealth “failed to present sufficient evidence to establish a prima

facie case of the elements of [18 Pa.C.S.A. § 2506,]” requiring dismissal of

the charges.     Petition for Writ of Habeas Corpus, 8/28/14, at 1.     After a

hearing, the court denied the petition. See Order of Court, 12/18/13.

       Following a trial,4 Appellant was found guilty of drug delivery resulting

in death. 18 Pa.C.S.A. § 2506. The trial court sentenced Appellant, inter

alia, to 78 months to 156 months’ imprisonment. This appeal followed.

       Appellant raises the following issues for our review:

       1. Did the [h]abeas and [t]rial courts err in finding
          Pennsylvania’s [d]rug [d]elivery [r]esulting in [d]eath
          [s]tatute (18 Pa.C.S.A. § 2506) not unconstitutionally vague
          when (1) the statute fails to clearly indicate the requisite
          mens rea for conviction, and (2) the statute fails to clearly
          indicate the requisite level of causation for the result-of-
          conduct element, and the vagueness of the statute will result
          in arbitrary and discriminatory enforcement of the law?

       2. Did the [h]abeas and [t]rial courts err in finding the
          Commonwealth established a prima facie case when the
          Commonwealth did not present any evidence related to
          [Appellant]’s culpability regarding the result-of-conduct
          element of Pennsylvania’s [d]rug [d]elivery [r]esulting in
          [d]eath [s]tatute (18 Pa.C.S.A. § 2506)?

Appellant’s Brief at 4.

       In his brief, Appellant essentially asks us to “measure the challenged

statutory proscription, not against the specific conduct involved in this case,
____________________________________________


4
  Appellant’s trial consisted of a stipulated record whereby the district
attorney read into the record the facts of the case. See Trial Court Opinion,
8/4/14, at 1.



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J-A03029-15


but against hypothetical conduct that the statutory language could arguably

embrace.” Commonwealth v. Heinbaugh, 354 A.2d 244, 245 (Pa. 1976).

However, “[i]t is well established that vagueness challenges to statutes

which do not involve First Amendment freedoms must be examined in the

light of the facts of the case at hand.” Id. (quotation omitted). “Therefore,

we will address the alleged vagueness of § [2506] as it applies to this case.”

Commonwealth v. Mayfield, 832 A.2d 418, 422 (Pa. 2003).

      We review Appellant’s claims under the following standard:

      Analysis of the constitutionality of a statute, and whether the
      Commonwealth met its prima facie case under Section 2506, are
      both questions of law, therefore, our standard of review is de
      novo. Commonwealth v. MacPherson, 561 Pa. 571, 752 A.2d
      384, 388 (2000); Pa.R.A.P. 2111(a)(2). Our scope of review, to
      the extent necessary to resolve the legal questions before us, is
      plenary, i.e., we may consider the entire record before us.
      Buffalo Township v. Jones, 571 Pa. 637, 813 A.2d 659, 664
      n.4 (2002); Pa.R.A.P. 2111(a)(2).

Commonwealth v. Ludwig, 874 A.2d 623, 628 n.5 (Pa. 2005).

      In reviewing challenges to the constitutionality of a statute, and in

particular whether a statute is unconstitutionally vague,

      [we presume the statute] to be constitutional and will only be
      invalidated as unconstitutional if it “clearly, palpably, and plainly
      violates constitutional rights.” [MacPherson, 752 A.2d at 388]
      (citation omitted). Related thereto, courts have the duty to
      avoid constitutional difficulties, if possible, by construing statutes
      in a constitutional manner.             Harrington v. Dept. of
      Transportation, Bureau of Driver Licensing, 563 Pa. 565,
      763 A.2d 386, 393 (2000); see also 1 Pa.C.S. § 1922(3) (setting
      forth the presumption that the General Assembly does not intend
      to violate the Constitution of the United States or of this
      Commonwealth).        Consequently, the party challenging a


                                      -4-
J-A03029-15


     statute’s constitutionality bears a heavy burden of persuasion.
     MacPherson, 752 A.2d at 388.

     Turning to the constitutional challenge raised in this appeal, as a
     general proposition, statutory limitations on our individual
     freedoms are reviewed by courts for substantive authority and
     content, in addition to definiteness or adequacy of expression.
     See, Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855,
     75 L.Ed.2d 903 (1983). A statute may be deemed to be
     unconstitutionally vague if it fails in its definiteness or adequacy
     of statutory expression. This void-for-vagueness doctrine, as it
     is known, implicates due process notions that a statute must
     provide reasonable standards by which a person may gauge his
     future conduct, i.e., notice and warning. Smith v. Goguen, 415
     U.S. 566, 572, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974);
     [Heinbaugh, 354 A.2d at 246].

     Specifically with respect to a penal statute, our Court and the
     United States Supreme Court have found that to withstand
     constitutional scrutiny based upon a challenge of vagueness a
     statute must satisfy two requirements. A criminal statute must
     “define the criminal offense with sufficient definiteness that
     ordinary people can understand what conduct is prohibited and
     in a manner that does not encourage arbitrary and
     discriminatory enforcement.” Kolender, 461 U.S. at 358, 103
     S.Ct. 1855; [Mayfield, 832 A.2d at 422]; Commonwealth v.
     Mikulan, 504 Pa. 244, 470 A.2d 1339, 1342 (1983); see also
     Heinbaugh, 354 A.2d at 246; see generally Goldsmith, THE
     VOID–FOR–VAGUENESS DOCTRINE IN THE SUPREME COURT,
     REVISITED, 30 Am. J. Crim. L. 279 (2003).

     In considering these requirements, both High Courts have looked
     to certain factors to discern whether a certain statute is
     impermissibly vague. For the most part, the Courts have looked
     at the statutory language itself, and have interpreted that
     language, to resolve the question of vagueness. See Kolender,
     461 U.S. at 358, 103 S.Ct. 1855; Mayfield, 832 A.2d at 422;
     Commonwealth v. Cotto, 562 Pa. 32, 753 A.2d 217, 220
     (2000). In doing so, however, our Court has cautioned that a
     statute “is not to be tested against paradigms of legislative
     draftsmanship,” Heinbaugh, 354 A.2d at 246, and thus, will not
     be declared unconstitutionally vague simply because the
     Legislature could have “chosen ‘clear and more precise language’
     ....” Id. (citation omitted). The Courts have also looked to the

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J-A03029-15


        legislative history and the purpose in enacting a statute in
        attempting to discern the constitutionality of the statute. See
        United States Civil Serv. Comm’n v. Nat’l Ass’n of Letter
        Carriers, 413 U.S. 548, 570–575, 93 S.Ct. 2880, 37 L.Ed.2d
        796 (1973); Cotto, 753 A.2d at 221. Consistent with our prior
        decisions, as well as United States Supreme Court case law, we
        will first consider the statutory language employed by the
        General Assembly in determining whether Section 2506 is
        unconstitutionally vague.

Ludwig, 874 A.2d at 628-29 (footnote omitted).

        The statute challenged here, Section 2506, reads 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.

        (b) Penalty.-- A person convicted under subsection (a) shall be
        sentenced to a term of imprisonment which shall be fixed by the
        court at not more than 40 years.

18 Pa.C.S.A. § 2506 (2011).

        The crime described above consists of two principal elements: 5 (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.

“It is sufficiently definite that ordinary people can understand what conduct

is prohibited, and is not so vague that men of common intelligence must
____________________________________________


5
    See also the Pennsylvania Suggested Jury Criminal Instructions 15.2506.



                                           -6-
J-A03029-15


necessarily guess at its meaning and differ as to its application.” Mayfield,

832 A.2d at 423 (internal quotation marks and citations omitted).               As

applied to Appellant, Section 2506 could not be any clearer.          The record

shows that Appellant intentionally dispensed, delivered, gave or distributed

heroin to victim, and that victim died as a result of the heroin.      See N.T.

Stipulated Record, 1/14/14, at 6-7; see also Trial Court Opinion, 8/4/14, at

4. Appellant’s conduct is precisely what the legislature intended to proscribe

when    it   enacted   Section   2506.     Accordingly,   Section   2506   is   not

unconstitutionally vague.

       We do not need to address Appellant’s argument advocating possible

interpretations of Section 2506.         “[An appellant] who engages in some

conduct that is clearly proscribed cannot complain of the vagueness of the

law as applied to the conduct of others. A court should therefore examine

the complainant’s conduct before analyzing other hypothetical applications of

the law.” Commonwealth v. Costa, 861 A.2d 358, 362 (Pa. Super. 2004)

(quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,

455 U.S. 489, 495 (1982)).           “In cases that do not implicate First

Amendment freedoms, facial vagueness challenges may be rejected where

an appellant’s conduct is clearly prohibited by the statute in question.” Id.

(citing Mayfield, 832 A.2d at 467-68). Because Appellant failed to present

any argument or analysis on how the statute was vague as applied to him,

he is not entitled to relief. See Costa, 861 A.2d at 365.


                                         -7-
J-A03029-15


      To the extent we can construe Appellant’s argument as an as-applied

challenge, we would nonetheless find the statute is not unconstitutionally

vague.

      Appellant argues the statute is vague as to the mens rea for the

offense. We disagree. The 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.

The first challenge is, therefore, meritless because the statute clearly defines

the required mens rea for establishing guilt under Section 2506.

      Appellant next argues the statute is unconstitutional because it is

vague as to the level of causation necessary for guilt.     We disagree.    The

                                     -8-
J-A03029-15


statute uses the phrases “results from,” a concept which is defined also in

the Crimes Code.6         Section 303 of the Crimes Code, in relevant part,

provides:

       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).7        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.”             Commonwealth v. Nunn, 947 A.2d

756, 760 (Pa. Super. 2008) (citing Commonwealth v. Rementer, 598

A.2d 1300, 1305 (Pa. Super. 1991), appeal denied, 617 A.2d 1273 (Pa.

____________________________________________


6
  “Where there is no textual or contextual indication to the contrary, courts
regularly read phrases like ‘results from’ to require but-for causality.”
Burrage v. United States, 134 S. Ct. 881, 888 (2014). 18 Pa.C.S.A.
§ 303(a)(1) “establishes the ‘but-for’ test of causation. Under existing law
causation is established if the actor commits an act or sets off a chain of
events from which in the common experience of mankind the result is
natural or reasonably foreseeable.” 18 Pa.C.S.A. § 303, Comment.
7
  Subsection 303(a)(2) is not applicable here because there is no additional
causal requirement imposed by Title 18 or Section 2506.



                                           -9-
J-A03029-15


1992)); see also 18 Pa.C.S.A. § 303(b)-(c); Commonwealth v. Devine,

26     A.3d   1139    (Pa.    Super.    2011).     Thus,   Section   2506   is   not

unconstitutionally vague as to the causal relationship under Section 2506

necessary to impose criminal liability.8

        Appellant also argues that Section 2506 could be read to subject the

second element of the crime (“results from”) to the same mens rea required

for the first element (conduct), i.e., “intentionally.”9 As noted by the learned

____________________________________________


8
  In this context, Appellant argues that the “Commonwealth failed to present
any evidence that heroin was the sole or even the primary cause of
[victim’s] death.” Appellant’s Brief at 13. Appellant fails to recognize that
he stipulated that heroin caused the victim’s death. See Stipulated Record,
1/14/14, at 8. We also note that:

        Defendant’s conduct need not be the only cause of the victim’s
        death in order to establish a causal connection.      Criminal
        responsibility may be properly assessed against an individual
        whose conduct was a direct and substantial factor in producing
        the death even though other factors combined with that conduct
        to achieve the result.

Nunn, 947 A.2d 760 (citations and quotations marks omitted). Here, as
noted, Appellant stipulated that he “fronted” a bundle of heroin and that the
victim died of a heroin overdose. Appellant’s criminal liability for the victim’s
death cannot be any clearer.
9
    See Section 302(d):

        Prescribed culpability requirement applies to all material
        elements.--When the law defining an offense prescribes the
        kind of culpability that is sufficient for the commission of an
        offense, without distinguishing among the material elements
        thereof, such provision shall apply to all the material elements of
        the offense, unless a contrary purpose plainly appears.

(Footnote Continued Next Page)


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J-A03029-15


trial court, such a reading would make Section 2506 superfluous, for

intentionally causing the death of another person is already criminalized

(i.e., first degree murder). See Trial Court Opinion, 8/7/14, at 4 n.2.

        Appellant finally argues Section 2506 can also be read not to require

any mens rea as to the second element of the crime.                 It would be, in

essence, a case of absolute liability.           The trial court disagreed with this

potential reading of the provision, noting that strict liability criminal statutes

are generally disfavored.10 The trial court found that the mere absence of an

explicit mens rea requirement should not be read as an indication that the

legislature intended to create a strict liability statute. According to the trial

court, Section 302(c) provides the culpability requirement for the second

element of the crime, i.e., death must be intentional, knowing, or reckless.


                       _______________________
(Footnote Continued)

18 Pa.C.S.A. 302(d).
10
     See Costa, supra:

        Absolute criminal liability statutes are an exception to the
        centuries old philosophy of criminal law that imposed criminal
        responsibility only for an act coupled with moral culpability. A
        criminal statute that imposes absolute liability typically involves
        regulation of traffic or liquor laws. Such so-called statutory
        crimes are in reality an attempt to utilize the machinery of
        criminal administration as an enforcing arm for social regulation
        of a purely civil nature, with the punishment totally unrelated to
        questions of moral wrongdoing or guilt.

Costa, 861 A.2d at 363-64 (citation omitted).




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J-A03029-15


18 Pa.C.S.A. § 302(c).11 In support, the trial court notes two statutes, as

currently interpreted, provide support for its conclusion, namely 75

Pa.C.S.A. § 3735 (relating to homicide by vehicle while driving under the

influence) and 18 Pa.C.S.A. § 2502(b) (relating to murder of the second

degree).     These statutes, according to the trial court, while they do not

require any specific mens rea as to the result, are not interpreted as

imposing absolute criminal liability.

        While Section 302 of the Crimes Code provides default culpability

standards to be applied where such standards are not provided, this

provision is not applicable to summary offenses and offenses wherein the

legislature’s intent to impose absolute liability “plainly appears.”          18

Pa.C.S.A. § 305(a)(2).12         The issue here is whether it plainly appears the


____________________________________________


11
   Section 302(c) reads as follows: “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(c).
12
     Section 305(a) reads as follows:

        (a) When culpability requirements are inapplicable to
        summary offenses and to offenses defined by other
        statutes.--The requirements of culpability prescribed by section
        301 of this title (relating to requirement of voluntary act) and
        section 302 of this title (relating to general requirements of
        culpability) do not apply to:

           (1) summary offenses, unless the requirement involved is
           included in the definition of the offense or the court
(Footnote Continued Next Page)


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J-A03029-15


legislature intended not to subject the second element of Section 2506

(“results from”) to any mens rea.

      No intent to impose absolute liability plainly appears in Section 2506.

“The omission of an explicit mens rea element in a criminal statute is not

alone sufficient evidence of the legislature’s plain intent to dispense with a

traditional mens rea requirement and impose absolute criminal liability.”

Commonwealth v. Parmar, 710 A.2d 1083, 1089 (Pa. 1998) (OISA)

(citation omitted); see also Commonwealth v. Gallagher, 924 A.2d 636,

638-39 (Pa. 2007).         In the absence of plain legislative intent, “we must

consider the purpose for the . . . statute[], the severity of punishment and

its effect on the defendant’s reputation and, finally, the common law origin

of the crimes to determine whether the legislature intended to impose

absolute criminal liability.” Parmar, 710 A.2d at 1089.13



                       _______________________
(Footnote Continued)

          determines that its application is consistent with effective
          enforcement of the law defining the offense; or

          (2) offenses defined by statutes other than this title, in so far
          as a legislative purpose to impose absolute liability for such
          offenses or with respect to any material element thereof
          plainly appears.

18 Pa.C.S.A. § 305(a).
13
  See also Commonwealth v. Gallagher, 874 A.2d 49, 52 n.3 (Pa. Super.
2005), aff’d, 924 A.2d 636 (Pa. 2007); Costa, 861 A.2d at 363-64 (Pa.
Super. 2004).



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J-A03029-15


      Section 2506 does not regulate conduct “that is the subject of the

typical public welfare offense for which the legislature imposes absolute

criminal liability” (i.e., traffic and liquor laws).   Id.   The purpose of the

statute is to criminalize conduct not otherwise covered by the Crimes Code,

i.e., death resulting from using illegally transferred drugs. See Legislative

Journal—House (2011) pages 757-58. The penalty imposed for its violation,

i.e., a sentence of imprisonment of up to 40 years, is clearly serious.

Finally, the common law origin of the crime involved (homicide), traditionally

has a mens rea requirement. These considerations strongly indicate that the

legislature did not intend to impose absolute liability as to the second

element of Section 2506. Accordingly, we conclude 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 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,




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J-A03029-15


      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).

      Here, Appellant “fronted” victim a bundle of heroin.      Eight packets

were found next to the victim, two used and six unused. Victim died of a

heroin overdose. Appellant’s conduct, therefore, satisfied both parts of the

causation test. See Pa.C.S.A. § 303; Devine, supra; Nunn, supra. But

for Appellant selling victim a bundle of heroin, victim would not have died of

a heroin overdose. Victim’s death was a natural or foreseeable consequence

of Appellant’s conduct.

      [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.

Minn. Fire and Cas. Co. v. Greenfield, 805 A.2d 622, 624 (Pa. Super.

2002), aff’d, 855 A.2d 854 (Pa. 2004).

      On appeal, then-Justice Castille noted:



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J-A03029-15


       Although the overwhelming majority of heroin users do not die
       from a single injection of the narcotic, it nevertheless is an
       inherently dangerous drug and the risk of such a lethal result
       certainly is foreseeable. See Commonwealth v. Bowden, 456
       Pa. 278, 309 A.2d 714, 718 (1973) (plurality opinion) (“although
       we recognize heroin is truly a dangerous drug, we also recognize
       that the injection of heroin into the body does not generally
       cause death”). The intravenous self-administration of illegally-
       purchased heroin . . . is a modern form of Russian roulette.
       Indeed, that is one of the reasons the drug is outlawed and why
       its use, no less than its distribution, is so heavily punished. [FN]

       _______________
       [FN]. The General Assembly has classified heroin as a Schedule I
       controlled substance, which is the most serious of designations,
       and carries the heaviest of punishments. See 35 P.S. § 780–
       104(1)(ii)(10). A drug falls within this schedule because of its
       “high potential for abuse, no currently accepted medical use in
       the United States, and a lack of accepted safety for use under
       medical supervision.” Id. § 780–104(1).

Minn. Fire and Cas. Co. v. Greenfield, 855 A.2d 854, 870-71 (Pa. 2004)

(Castille, J., concurring).14 Accordingly, we conclude that reckless conduct,

such as that in this case, may result in criminal liability under Section 2506.

       Finally, Appellant argues that the Commonwealth did not establish a

prima facie case at the preliminary hearing, and that the trial court erred in

finding otherwise. The claim fails. It is well-known that any defect in the

preliminary hearing is cured by subsequent trial.       “Once a defendant has

gone to trial and has been found guilty of the crime or crimes charged,

____________________________________________


14
    See also Commonwealth v. Catalina, 556 N.E.2d 973, 980 (Mass.
1990) (“[O]ne can reasonably conclude that the consumption of heroin in
unknown strength is dangerous to human life, and the administering of such
a drug is inherently dangerous and does carry a high possibility that death
will occur.”)



                                          - 16 -
J-A03029-15



however, any defect in the preliminary hearing is rendered immaterial.”

Commonwealth v. Melvin, 103 A.3d 1, 35 (Pa. Super. 2014) (citation

omitted).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/2015




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