J-A08016-17


                                  2017 PA Super 237

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ZEPHANIAH STOREY

                            Appellant                 No. 1194 EDA 2016


           Appeal from the Judgment of Sentence December 2, 2015
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0000342-2014


BEFORE: PANELLA, J., LAZARUS, J., and STEVENS, P.J.E.*

OPINION BY LAZARUS, J.:                                 FILED JULY 20, 2017

        Zephaniah Storey appeals from his judgment of sentence, entered in

the Court of Common Pleas of Monroe County, following his conviction for

one count of drug delivery resulting in death,1 two counts of possession with

the intent to deliver,2 two counts of possession of drug paraphernalia,3 and

two counts of possession of a controlled substance.4           Upon review, we

affirm.

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 2506(a).
2
    35 P.S. § 780-113(a)(30).
3
    35 P.S. § 780-113(a)(32).
4
    35 P.S. § 780-113(a)(16).
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        Nicholas Possinger testified that Donald J. O’Reilly, a recovering heroin

addict, called him asking Possinger to obtain heroin for him.          Possinger

testified that he then telephoned Storey, his usual dealer, to secure the

heroin. Possinger and Storey made arrangements to meet at the Mount Airy

Casino parking lot on February 10, 2013, for the exchange. Possinger took

O’Reilly’s money and approached Storey’s vehicle to purchase the heroin.

Possinger was the only one who met with or saw Storey during the drug

deal.    Possinger bought ten bags of heroin, which he gave to O’Reilly.

O’Reilly gave Possinger two bags as compensation for setting up the drug

deal. O’Reilly contacted Possinger again on February 13, 2013, to have him

set up another drug deal, again offering him two bags of heroin as

compensation. This deal occurred at the intersection of Abeel Road and Fish

Hill Road. As in the previous deal, Possinger was the only person who saw

or dealt with Storey.     This time, Possinger purchased six bags of heroin,

which were stamped with the initials A.O.N.         Possinger testified that he

recognized this stamp from heroin he had used in the past, and warned

O’Reilly to be careful when taking his four bags, as this heroin was stronger

than that purchased on February 10, 2013, and O’Reilly was just starting to

use heroin again.

        On February 14, 2013, at approximately 1:45 a.m., Officer Christopher

Staples of the Pocono Township Police Department responded to a call

regarding an unresponsive male with a possible drug overdose.             Officer

Staples testified that he found O’Reilly in his bedroom in the early stages of

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rigor mortis. Officer Staples observed drug paraphernalia around O’Reilly’s

room, including a lighter, a spoon, hypodermic needles, a measuring cup,

and a belt.    Deputy Coroner Teri Rovito subsequently pronounced O’Reilly

dead.     In O’Reilly’s pockets, she discovered four empty wax paper bags

stamped with the letters A.O.N. The toxicology report indicated that there

were fatal levels of morphine in O’Reilly’s blood.

        Police obtained a search warrant for the cell phone records of Storey,

Possinger, and O’Reilly in an attempt to determine their general location

during the two drug transactions. The records indicated that Possinger’s cell

phone was utilizing towers in the general vicinity of the Mount Airy Casino on

February 10, 2013, and that Storey was within the vicinity of the second

transaction on February 13, 2013.

        A jury convicted Storey of the aforementioned charges on September

10, 2015, and on December 2, 2015, he was sentenced to an aggregate

term of not less than 108 months nor more than 276 months’ imprisonment.

Storey filed post-sentence motions on December 14, 2015, in which he

requested reconsideration of sentence, arrest of judgment and a new trial.

Post-sentence motions were denied on April 11, 2016. Storey filed a notice

of appeal on April 18, 2016, followed by a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal on June 7, 2016.           The trial

court filed its Rule 1925(a) opinion on June 16, 2016.

        Storey raises the following issues for our appeal, verbatim:




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      1. Whether the trial court erred in denying both pre- and post-
      trial motions arguing the drug delivery resulting in death statute,
      18 Pa.C.S.A. §2506, as applied, is unconstitutionally vague?

      2. Whether the trial court erred in denying both pre- and post-
      trial motions arguing the drug delivery resulting in death statute,
      18 Pa.C.S.A. § 2506, as applied, unconstitutionally rendered
      [Storey] strictly liable for the death of the decedent?

      3. Whether the conviction for the drug delivery charge was
      insufficient as a matter of law?

      4. Whether the trial court erred in allowing the highly prejudicial
      bad acts testimony by Nicholas Possinger without giving any
      cautionary instruction that [Storey] had a lot of customers?

      5. Whether the trial court erred in allowing Officer Christopher
      Staples to respond to the Commonwealth’s questions about
      whether he know [Storey’s] phone number by stating “every day
      you respond to a call, it goes into the database,” a statement
      which placed [Storey’s] prior interaction with law enforcement
      before the jury?

      6. Whether the Commonwealth committed prosecutorial
      misconduct by bolstering its case before the jury within the jury?

      7. Whether the trial court erred in giving an accomplice liability
      charge to the jury that they could not understand, as clearly
      acknowledge by the attorneys and the trial judge on the record?
      This ambiguity was never cleared up with the trial judge even
      after the jury asked for clarification on the elements of the drug
      resulting in death charge and the confusing charge was left with
      them to decide whether [Storey] was guilty if either of the two
      drug delivery resulting in death charges in the alternative –
      either as a principal or as an accomplice.

      8. Whether the conviction for the drug delivery resulting in
      death was against the greater weight of the evidence?

Brief of Appellant, at 5-6.

      Storey’s   first   and   second    claims   are   that   section   2506   is

unconstitutionally void for vagueness as applied to Storey, because the

vague language of the statute made it impossible for him to know what


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conduct was illegal.       To withstand constitutional scrutiny based on a

challenge of vagueness, 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 v. Lawson, 461 U.S. 352, 358

(1983).     In addition, “vagueness challenges which do not involve First

Amendment freedoms must be examined in the light of the facts of the case

at hand.” Commonwelath v. Heindbaugh, 354 A.2d 244, 245 (Pa. 1976)

(quotation omitted).

     Section 2506 provides, 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 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).      “When the words of a statute are clear and

free from all ambiguity, the letter of the statute is not to be

disregarded under the pretext of pursuing its spirit.”       1 Pa.C.S.A. §

1921(c).

     This    Court   has    previously    rejected   a   challenge   to   the

constitutionality of section 2506 in Commonwealth v. Kakhankham,

132 A.3d 986 (Pa Super. 2015). In Kakhankham, we examined the

statute in the context of a drug dealer who sold heroin directly to the

user, who subsequently died as a result of an overdose. In that case,



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we noted that section 2506 consists of two principal elements:                   (i)

intentionally administering, delivering, giving, prescribing, selling, or

distributing    any     controlled      substance   or     counterfeit    controlled

substance, and (ii) death caused by the use of that drug. Id. at 991-

92. We also found the level of causation necessary for guilt to be a

“but-for” test. Id. at 993. Finally, we held that the mens rea for the

first element of section 2506 requires “intentional” action, while the

second element requires that death must be the result of at least

“reckless” action. Id. at 992, 95. Since the dangers of heroin are so

great and well-known, we concluded that the sale of heroin, itself, is

sufficient to satisfy the recklessness requirement when a death occurs

as a result of the sale. Id. at 995-96.

      Storey attempts to distinguish his case from Kakhankham by

referring to the fact that he was unaware of O’Reilly’s existence and

did not intend to sell drugs specifically to him.            Because Storey was

unaware that O’Reilly would ultimately consume the drugs he sold, he

could not have known that his conduct could result in liability under

the   statute   if    his   sale   of   drugs   resulted    in   O’Reilly’s   death.

Additionally, since he was not aware of O’Reilly’s existence, he could

not have had the reckless state of mind that O’Reilly might die as a

result of Storey’s drug sales. Under the holding of Kakhankham and

the statute’s own words, this difference is immaterial.                  The statute

requires that “another person dies as a result of using the substance

[sold].” 18 Pa.C.S.A. §2506(a) (emphasis added). It does not require



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the death of the person to whom the defendant originally sold the

illegal substance.   See Orlosky v. Haskell, 155 A. 112 (Pa. 1931)

(holding that legislature must be intended to mean what it plainly

expresses.)    Therefore, section 2506 clearly applies to Storey’s

conduct; but for Storey’s illegal sale of drugs, O’Reilly would not have

died. Kakhankham, 132 A.3d, at 993. Additionally, Kakhankham

held that section 2506 does not impose strict liability, so Storey’s

second claim must fail. Id. at 995. For the foregoing reasons, section

2506 is not unconstitutionally vague as applied to Storey.

      Storey next claims that the there was insufficient evidence to support

his section 2506 conviction. Our standard of review upon a challenge to the

sufficiency of the evidence is well settled:

      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
      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
      trier 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.



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Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001),

quoting Commonwealth v. Hennigan, 753 A.2d 245, 253 (Pa. Super

2000) (citations and quotation marks omitted).

      Storey again claims that, because he was unaware of O’Reilly’s

existence, he could not have been found to have intentionally sold heroin to

him. As we have noted above, this is not what the jury had to find in order

to find him guilty of the section 2506 charge. Instead, the jury must have

found beyond a reasonable doubt that Storey:           (i) intentionally sold a

controlled substance, and (ii) the death of another person resulted from this

sale. 18 Pa.C.S. § 2506(a).

      Upon review of the record and viewing all evidence in a light most

favorable to the Commonwealth, DiStefano, supra, we find that there was

sufficient evidence to support a finding beyond a reasonable doubt that

Storey intentionally sold heroin to Possinger, and that the heroin Storey sold

to Possinger caused the death of O’Reilly. Possinger’s testimony identified

Storey as the dealer from whom he had purchased the drugs.            The cell

phone data corroborated Possinger’s testimony.      Officer Staples observed

drug paraphilia around O’Reilly’s room, and the coroner discovered four

empty wax pages stamped with the same initials as the drugs Possinger had

purchased earlier in O’Reilly’s pockets.      Finally, the toxicology report

concluded that O’Reilly died from a heroin overdose.

      Storey is correct in noting that no “recklessness” instructions were

given to the jury as to the second element of the charge. However since we

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have previously held that the sale of heroin satisfies the reckless element as

to the possibility of death by the buyer, this argument garners Storey no

relief.    Kakhankham, 132 A.3d at 995-96.            Therefore, we find there was

sufficient evidence to allow a jury to conclude beyond a reasonable doubt

that Storey intentionally sold heroin to Possinger, and this sale was

responsible for O’Reilly’s death.

          Storey next claims that the trial court erred in allowing bad acts

testimony by Nicholas Possinger without giving a cautionary instruction.

Specifically, Possinger testified that Storey had “a lot of customers.”           N.T.

Trial, 9/9/15, at 15. While Storey objected to this at trial, he did not request

a cautionary instruction after the judge sustained the objection. “Failure to

request      a   cautionary   instruction    upon   the   introduction   of   evidence

constitutes a waiver of a claim of trial court error in failing to issue a

cautionary instruction.”       Commonwealth v. Bryant, 855 A.2d 739 (Pa.

2004). Therefore, we find this claim waived.

          Storey next claims that the trial court erred in allowing certain

testimony of Officer Staples, and that the cautionary instruction regarding

his testimony was insufficient. Our standard for examining if evidence was

properly admitted is whether the trial court abused its discretion:

          The admission of evidence is a matter vested within the sound
          discretion of the trial court, and such a decision shall be reversed
          only upon a showing that the trial court abused its discretion. In
          determining whether evidence should be admitted, the trial court
          must weigh the relevant and probative value of the evidence
          against the prejudicial impact of that evidence. Evidence is


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      relevant if it logically tends to establish a material fact in the
      case or tends to support a reasonable inference regarding a
      material fact.    Although a court may find that evidence is
      relevant, the court may nevertheless conclude that such
      evidence is inadmissible on account of its prejudicial impact.

Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002) (citations omitted).

If the trial judge gives curative instructions, it is “presume[d] that the jury

will follow the instructions of the court.” Commonwealth v. Brown, 786

A.2d 961, 971 (Pa. 2001).

      At trial, Officer Staples testified that Possinger’s phone called a certain

number multiple times on the days when the drug deals occurred.                    The

Commonwealth attempted to prove that the number Possinger called was

Storey’s by showing that the number Possinger called also had frequent

outgoing and incoming calls with the number assigned to Storey’s parents’

residence. Storey asserts that this testimony could have led the jury to infer

that the police were aware of Storey’s parents’ number because of previous

bad acts Storey may have committed when he resided with his parents.

This claim is without merit.

      We   begin   by      noting   that    the     information   Storey   now   deems

objectionable was originally elicited as the result of an objection interposed

by the defense regarding the foundational basis for Officer Staples’

knowledge of Staples’ parents’ phone number. Thus, it was the defense that

“opened the door” to Officer Staples’ testimony. Notwithstanding that fact,

at the request of defense counsel, the court issued the following cautionary

instruction to the jury:


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      THE COURT: So members of the jury, there was just testimony
      of this witness that he knows Mr. and Mrs. Storey, the
      defendant’s parents’ phone number or contact information, all
      right. That’s the evidence in this case. You’re not to speculate,
      in any manner whatsoever, as to how or why that information is
      available to this particular witness.

N.T. Trial, 9/9/15, at 133.

      In sum, because the evidence was relevant to prove that Storey was

the dealer Possinger met with on February 10 and 13, 2013, and because

the trial court provided a sufficient limiting instruction, we can discern no

abuse of discretion by the trial court in allowing the testimony.

      Storey next claims that the Commonwealth committed prosecutorial

misconduct when it bolstered Possinger’s credibility by stating in its closing

arguments that “I wouldn’t have called him if I didn’t believe him.”       N.T.

Trial, 9/10/15, at 137.   This claim is meritless.

      Generally, comments by a prosecutor do not constitute reversible error

unless the unavoidable effect of such comments would be to prejudice the

jury, forming in their minds fixed bias and hostility toward the defendant so

that they could not weigh the evidence objectively and render a true verdict.

Commonwealth v. Hawkins, 701 A.2d 492, 503 (Pa. 1997).                    When

reviewing allegedly improper comments, we must do so within the context of

defense counsel’s conduct. Id.

      Here, the defense, in its closing arguments, asserted that the

Commonwealth did not trust Possinger.         N.T. Trial, 9/10/15, at 117 (“But

why did the Commonwealth go to that length? It’s because they don’t trust

Mr. Possinger either.     They need something else.       They don’t trust Mr.

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Possinger, they don’t believe him either.”). Having “opened the door” to this

subject, Storey cannot now complain because the Commonwealth chose to

further comment on what was behind that door.         Hawkins, 701 A.2d at

503. Accordingly, Storey is entitled to no relief.

      Next, Storey claims that the trial court erred in its instructions as to

accomplice liability. Our standard of review for evaluating jury instructions

is as follows:

      When evaluating jury instructions, the charge must be read as a
      whole to determine whether it was fair or prejudicial. The trial
      court has broad discretion in phrasing its instructions, and may
      choose its own wording so long as the law is clearly, adequately,
      and accurately presented to the jury for its consideration.

Commonwealth v. Prosdocimo, 578 A.2d 1273, 1274 (Pa. 1990).

      Storey points to one line of the accomplice liability instruction that he

believes polluted the verdict because the jurors were confused due to

seemingly contradictory statements contained within.       Specifically, Storey

cites the following passage:    “In reviewing the evidence and testimony of

Nick Possinger’s criminal involvement, you must regard him as an

accomplice in the crime charged and apply the special rules to his testimony.

You must decide whether Nick Possinger was an accomplice in the crimes

charged.”   N.T. Trial, 9/10/15, at 174-75.      We agree that, taken out of

context, these two sentences may seem to contradict each other. However,

taken as a whole, the trial court’s instruction makes it clear to the jury that

it was tasked with deciding if Possinger was, indeed, an accomplice, and



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instructed the jury on the elements necessary to find that Storey was an

accomplice. The relevant portion of the instruction reads in full as follows:

      Now I’m going to talk a little bit about the testimony in this case
      of the alleged accomplice which was Nick Possinger. Before I
      begin these instructions, let me define to you the term
      “accomplice.”

      A person is an accomplice of another person in the commission
      of a crime if he or she has the intent of promoting or facilitating
      the commission of that crime and solicits the other person to
      commit it or aids or agrees or attempts to aid such other person
      in planning or committing a crime. Put simply, an accomplice is
      a person who knowingly and voluntarily cooperates with or aids
      another person is committing an offense.

      When a Commonwealth witness is an accomplice, his or her
      testimony must be judged by special precautionary rules.
      Experience shows that an accomplice, when caught, may often
      try to place the blame falsely on someone else. He or she may
      testify falsely in the hope of obtaining favorable treatment or for
      some corrupt or wicked motive.           On the other hand, an
      accomplice may be a perfectly truthful witness. The special rules
      that I give you are meant to help you distinguish between
      truthful and false accomplice testimony.

      In reviewing the evidence and the testimony of Nick Possinger’s
      criminal involvement, you must regard him as an accomplice in
      the crime charged and apply the special rules to his testimony.
      You must decide whether Nick Possinger was an accomplice in
      the crime charged. If after considering all the evidence you find
      that he was an accomplice, then you must apply the special rules
      to his testimony, otherwise ignore those rules. Use this test to
      determine whether Nick Possinger was an accomplice. Again, an
      accomplice is a person who knowingly and voluntarily cooperates
      with or aids another person in the commission of a crime.

See id. at 173-75 (emphasis added). Because the instruction governing the

jury’s determination of Possinger’s accomplice liability, taken as a whole,




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clearly, adequately, and accurately states the law, Storey’s claim is without

merit.5

       Storey last claims that the verdict was against the weight of the

evidence.

       An allegation that the verdict is against the weight of the
       evidence is addressed to the discretion of the trial court. A new
       trial should not be granted because of a mere conflict in the
       testimony or because the judge on the same facts would have
       arrived at a different conclusion. A trial judge must do more
       than reassess the credibility of the witnesses and allege that he
       would not have assented to the verdict if he were a juror. Trial
       judges, in reviewing a claim that the verdict is against the
       weight of the evidence[,] do not sit as the thirteenth juror.
       Rather, the role of the trial judge is to determine that
       notwithstanding all the facts, certain facts are so clearly of
       greater weight that to ignore them or to give them equal weight
       with all the facts is to deny justice.

Commonwealth v. Stokes, 78 A.3d 644, 650 (Pa. 2013), quoting

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations,

quotation marks, and footnote omitted). In other words, a court may grant

a new trial because the verdict is against the weight of the evidence only

when the verdict rendered is so contrary to the evidence as to shock one’s

sense of justice. Id. at 651. The determination of whether to grant a new


____________________________________________


5
   Storey also argues that the jury’s request for clarification on the drug
delivery charge indicated that the jury was confused about the accomplice
liability charge. However, since the jury never requested clarification on
accomplice liability charge, this claim is nothing more than speculative and,
as such, is without merit.




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trial rests within the discretion of the trial court, and we will not disturb this

determination absent an abuse of discretion. Id.

        Here, Storey again relies upon the fact that he had no connection to

O’Reilly and neither intended to nor actually did distribute anything to

O’Reilly.   However, as we have noted in our earlier discussion, Storey’s

knowledge of the end-user – O’Reilly – is irrelevant to his guilt under section

2506.    Upon review of the record as a whole, the jury’s verdict is not so

against the weight of the evidence as to shock one’s sense of justice. See

id. As such, the trial court did not abuse its discretion in denying Storey’s

motion for a new trial.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/20/2017




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