J-S49043-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

DEMETRIUS HOUSER

                            Appellant                  No. 208 WDA 2017


            Appeal from the Judgment of Sentence January 6, 2017
            In the Court of Common Pleas of Westmoreland County
             Criminal Division at No(s): CP-65-CR-0001621-2015

BEFORE: DUBOW, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED: November 13, 2017

        Appellant, Demetrius Houser, appeals from the judgment of sentence

entered in the Westmoreland County Court of Common Pleas following his

jury trial convictions for drug delivery resulting in death,1 intentionally

possessing a controlled substance,2 possession with intent to deliver a

controlled substance,3 delivery of a controlled substance,4 and criminal use




*   Former Justice specially assigned to the Superior Court.
1   18 Pa.C.S. § 2506(a).

2   35 P.S. § 780-113(a)(16).

3   35 P.S. § 780-113(a)(30).

4   35 P.S. § 780-113(a)(30).
J-S49043-17

of a communication facility.5 He argues that the evidence was insufficient to

support his conviction. We affirm.

        We adopt the facts and procedural history set forth by the trial court’s

opinion. See Trial Ct. Op., 3/16/17, at 1-5. Following Appellant’s conviction

of the above referenced charges, the trial court sentenced him to a term of

five to twenty years’ imprisonment based upon his conviction for drug

delivery resulting in death, with all other counts merging for sentencing

purposes. Appellant timely appealed, and both Appellant and the trial court

complied with Pa.R.A.P. 1925(b).

        Instantly, Appellant raises the following issue for review:

           I. Whether the jury’s verdict of guilty at all counts was
           rendered with sufficient evidence to sustain a conviction?

Appellant’s Brief at 5.

        When evaluating a challenge to the sufficiency of the evidence:

           [W]e view the evidence in the light most favorable to the
           Commonwealth together with all reasonable inferences
           from that evidence, and determine whether the trier of fact
           could have found that every element of the crimes charged
           was established beyond a reasonable doubt.

Commonwealth v. Walker, 836 A.2d 999, 1000 n.3 (Pa. Super. 2003)

(citations omitted).

        Appellant argues that the evidence present at trial failed to establish

that the victim died due to ingesting drugs he supplied.              To that end,

5   18 Pa.C.S. § 7512(a).




                                       -2-
J-S49043-17

Appellant avers that the Commonwealth failed to thoroughly investigate the

victim’s home and eliminate the possibility that the victim died due to drugs

he supplied. No relief is due.

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Christopher

A. Feliciani, we conclude the trial court’s opinion comprehensively discusses

and properly disposes of the issue presented.        See Trial Ct. Op. at 5-9

(finding that the evidence was sufficient to sustain Appellant’s convictions

where testimony and phone records supported the contention that Appellant

sold the drugs in question that resulted in the death of the victim).

Accordingly, we affirm on the basis of the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2017




                                      -3-
                                                                                 Circulated 10/18/2017 11:43 AM




         IN THE COURT OF COMMON PLEAS OF WESTMORELAND                              COUNTYt
                     PENNSYLVANIA - CRIMINAL DIVISION


 COMMONWEALTH OF PENNSYLVANIA                          )
                                                       )
                        vs.                            )       No. 1621 C 2015
                                                       )
            DEMETRIUS HOUSER,                          )
                           Defendant.                  )


                           OPINION AND ORDER OF COURT
                      ISSUED PURSUANT TO PA.R.A.P. RULE 1925(A)


        The defendant, Demetrius Houser, appeals from the judgment of sentence entered

 January 6, 2017, wherein he was sentenced to five (5) to twenty (20) years at the Department of

 Corrections and related terms, costs, and conditions. This Opinion is issued in compliance with

Pa.R.A.P. Rule 1925.

                                      FACTUAL HISTORY

        The charges in this case arose from the death of 31-year-old Christina Racioppo on

January 23, 2014, in Lower Burrell, Westmoreland County. The evidence presented at trial

established that on January 23, 2014, Ms. Racioppo was found deceased in the master bathroom

of her home as a result of a drug overdose. During trial, Dr. Cyril Wecht, who was admitted as

an expert in forensic pathology, testified that in his opinion, Ms. Racioppo died as a result of the

combined toxic effect of fentanyl and morphine in her system. (Trial Transcript "TT" 10/3/16-

10/7/16 at 408.)

       At trial, Detective Hugh Shearer, who was admitted as an expert in crime scene

processing, testified that on January 23, 2014, he was dispatched to Ms. Racioppo's residence in

Lower Burrell regarding a suspected overdose. Id. at 272. Upon arrival, Detective Shearer



                                                 1


                                                                                                       5D\J()
spoke with Lower Burrell Police Department Detectives Robert Galvanek and Scott Cardenas.

Id. at 276. Detective Galvanek testified that he applied for a search warrant of the decedent's

home. Id. at 597. After the search wan-ant was obtained, Detective Shearer and Detective

Cardenas testified that they began their investigation of the house. Id. at 282, 344. The

detectives testified that they located Ms. Racioppo's body in the master bedroom.    Id. at 284,

347. Through their investigation, the detectives located cloth belts in the master bathroom and

syringes, silver spoons, and an empty stamp bag marked "Theraflu" in a drawer in the master

bedroom. Id. at 304-310, 349-353. Prior to trial, the parties stipulated to the admission of the

Pennsylvania State Police Crime Lab Test results, which revealed that the stamp bag was

positive for heroin and fentanyl. See Commonwealth's Exhibit 36.

       During trial, Derek Miller testified that he was dating and living with Ms. Racioppo at the

time of her death. Id. at 175. Mr. Miller indicated that both he and Ms. Racioppo used heroin

together and their preferred method was through injection. Id. at 176-179. Mr. Miller testified

that on January 21, 2014, he contacted his friend Kristy Guzzi through text message and

requested heroin. Id. at 183-185. Mr. Miller testified that he met with Ms. Guzzi and gave her

money for the drugs. Id. at 186-188. Mr. Miller testified that after leaving and coming back,

Ms. Guzzi gave him stamp bags marked Theraflu, and he and Ms. Racioppo split up the drugs.

Id. On the next day, January 22, 2014, Mr. Miller testified that he reached out to Ms. Guzzi once

more requesting Theraflu and he and Ms. Racioppo met Ms. Guzzi, paid her money, and when

she returned, they received 9 stamp bags ofTheraflu. Id. at 196-200. Mr. Miller testified that he

and Ms. Racioppo then went back to Ms. Racioppo's home and used some of the Theraflu

throughout the evening. Id. at 202.




                                                 2
       Mr. Miller testified that he and Ms. Racioppo went to sleep at approximately 2:00-3 :00

a.m. on January 23, 2014, and he woke up at approximately 8:00 a.m. to find Ms. Racioppo

unconscious in the bathroom due to an overdose. Id. at 204-205. Mr. Miller indicted that he

called 911 thirty seconds after finding Ms. Racioppo. Id. at 208. When the police arrived, Mr.

Miller first testified that he told them Ms. Racioppo got the Theraflu from a guy named "T." Id.

at 210. Later, when confronted, Mr. Miller indicated that he got the drugs from Ms. Guzzi. Id.

at 212. Pursuant to a search warrant, Mr. Miller's phone was seized and the records were

preserved. See Commonwealth's Exhibit 2.

       At trial, Ms. Guzzi confirmed that she delivered Theraflu to Mr. Miller on January 21 and

22, 2014. Id. at 448, 471. Ms. Guzzi testified that once she received the money from Mr. Miller,

she went to New Kensington and bought the Theraflu from the defendant, Demetrius Houser,

who she knew as "Young Buck." Id. at 438-439, 464-466. Ms. Guzzi testified that she has seen

Mr. Houser numerous times and knows his face. Id. at 439-443. Ms. Guzzi testified that initially

she told the detectives that she bought the drugs from a person named 'Buku;" however, later,

after the detectives discovered she was lying, Ms. Guzzi told them that she bought the Theraflu

from Mr. Houser, despite not knowing his actual name at that time. Id at 479-484. Ms. Guzzi

provided the detectives with a phone number she used to reach Mr. Houser. Id. As a result of

Ms. Racioppo's death, both Mr. Miller and Ms. Guzzi were also charged with Drug Delivery

Resulting in Death.

       Harrison Township Police Department Sergeant Brian Turack testified that he came in

contact with Mr. Houser on April 17, 2014 and found him to be in possession of four cell

phones. Id. at 526-527. Sergeant Turack located one cell phone in Mr. Ho user's right front jean

pocket. Id. at 528. The official number associated with that cell phone matched the number Ms.



                                                3
Guzzi provided to the detectives. Id. Detective Galvanek testified that, he spoke with Mr.

Houser on February 26, 2015. Id. at 654. Through his investigation, Detective Galvanek

testified that Mr. Houser indicated that he received a text message on his phone from Michael

Guzzi and Mr. Houser confirmed his phone number, which was identical to the number provided

by Ms. Guzzi and Sergeant Turack. Id. at 656- 7.

        After an on the record colloquy, Mr. Houser elected not to testify at trial. Id. at 781-785.

                                   PROCEDURAL HISTORY


   On or about April 7, 2015, Mr. Houser was charged with the following offenses:

        1. Count One: Drug Delivery Resulting in Death, in violation of 18 Pa.C.S.A. §
           2506(a).
       2. Count Two: Intentionally Possessing a Controlled Substance by Person Not
           Registered, in violation of 35 P.S. 780-113 § (a)(l 6).
       3. Count Three: Possession With Intent to Deliver a Controlled Substance, in violation
           of 35 P.S. 780-113 (a)(30).
       4. Count Four: Delivery of a Controlled Substance, in violation of 35 P .S. 780-113
           (a)(30).
       5. Count Five: Criminal Use of a Communication Facility, in violation of 18 Pa.C.S.A.
           § 7512(a).
       After the preliminary hearing, all above counts were held for court. On October 3- 7,

2016, Mr. Houser proceeded to a jury trial before this Court. During trial, Mr. Houser was

represented by Attorney Brian Aston. On October 7, 2016, the jury returned a verdict of guilty

of all criminal offenses, and sentencing was deferred pending a Pre-Sentence Investigation.     On

January 3, 2017, Mr. Houser filed a Motion for Judgment of Acquittal. On January 6, 2017, Mr.

Houser was sentenced at Count One to five (5) to twenty (20) years incarceration at the

Department of Corrections. Counts Two, Three, and Four merged with Count One for purposes

of sentencing. At Count Five, there was no further sentence. Mr. Houser was also given credit

                                                 4
for time served, and restitution was documented. The Motion for Judgment of Acquittal was

denied on the same day.

        On January 30, 2017, Mr. Houser filed a timely Notice of Appeal to the Pennsylvania

Superior Court. On February 15, 2017, this Court ordered Mr. Houser to file a Concise

Statement of Errors Complained of on Appeal. On or about February 24, 2017, Mr. Houser filed

said statement and raised the following issue: (1) Whether the jury's verdict of guilty at all

counts was 'rendered with sufficient evidence to sustain a conviction. This appeal is before the

Pennsylvania Superior Court at 208 WDA 2017.


                              ISSUES PRESENTED ON APPEAL


   I. WHETHER THE JURY'S VERDICT OF GUILTY AT ALL COUNTS WAS
      RENDERED WITH SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.

       Mr. Rouser's sole allegation of error asserts that the jury's verdict of guilty at all counts

in the above-referenced case was rendered without sufficient evidence to sustain a conviction.

"To evaluate [a] sufficiency of evidence [ claim J, [ a Court] must view the evidence in the light

most favorable to the Commonwealth as verdict winner, accept as true all the evidence and

reasonable inferences upon which, if believed, the jury could properly have based its verdict, and

determine whether such evidence and inferences are sufficient in law to prove guilt beyond a

reasonable doubt." Commonwealth v. Bundridge, 449 A.2d 681 (Pa. Super. 1982.) "[W]here

there is an insufficiency of evidence determination, the only remedy is the discharge of the

defendant for the crime or crimes charged." Commonwealth v. Vogel, 461 A.2d 604 (Pa. 1983.)

       In the present case, Mr. Houser was charged at Count One with Drug Delivery Resulting

in Death, in violation of 18 Pa.C.S.A. § 2506(a). At trial, the Commonwealth alleged that Mr.

Houser delivered drugs to Kristy Guzzi that resulted in the death of Christina Racioppo.


                                                  5
     Title 18, Section 2506(a) states:

           (a) Offense definecl.--A person commits [drug delivery resulting in death,] 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)(l 4) 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).

           At Count Two, Mr. Houser was charged with Intentionally Possessing a

Controlled Substance by Person Not Registered, in violation of 35 P.S. 780-113 §

(a)(l6).      At trial, the Commonwealth         alleged that Mr. Houser possessed         a

combination of heroin and fentanyl.

    Title 35, Section 780-113(a)(l 6) states:

           (a) The following acts and the causing thereof within the Commonwealth are
               hereby prohibited: (16) Knowingly or intentionally possessing a controlled
               or counterfeit substance by a person not registered under this act, or a
               practitioner not registered or licensed by the appropriate State board,
               unless the substance was obtained directly from, or pursuant to, a valid
               prescription order or order of a practitioner, or except as otherwise
               authorized by this act.

    35 P.S. 780-113 § (a)(l6).

           At Count Three Mr. Houser was charged with Possession with Intent to Deliver a

Controlled Substance. Here, the Commonwealth alleged that Mr. Houser possessed a

combination of heroin and fentanyl with the specific intent or goal of delivering the item to

another. At Count Four, Mr. Houser was charged with Delivery of a Controlled Substance.

Here, the Commonwealth alleged that Mr. Houser delivered a combination of heroin and

fentanyl, a controlled substance, to Kristy Guzzi by means of delivery.

   Title 35, Section 780-l 13(a)(30) states:



                                                    6
       (a) The following acts and the causing thereof within the Commonwealth are
           hereby prohibited: (30) Except as authorized by this act, the manufacture,
           delivery, or possession with intent to manufacture or deliver, a controlled
           substance by a person not registered under this act, or a practitioner not
           registered or licensed by the appropriate State board, or knowingly
           creating, delivering or possessing with intent to deliver, a counterfeit
           controlled substance.

35 P.S. 780-113 § (a)(30).

       Lastly, at Count Five, Mr. Houser was charged with Criminal Use of a Communication

Facility, in violation of 18 Pa.C.S.A. § 7512(a). Here, the Commonwealth alleged that Mr.

Houser used a communication facility, namely a cellular telephone to facilitate, the commission

of the crime of Delivery of a Controlled Substance, which did in fact occur.

   Title 18, Section 7512 states:

       (a) Offense defined>- A person commits [Criminal use of communication
           facility,] a felony of the third degree if that person uses a communication
           facility to commit, cause or facilitate the commission or the attempt
           thereof of any crime which constitutes a felony under this title or under the
           act of April 14, 1972 (P.L.233, No.64), known as The Controlled
           Substance, Drug, Device and Cosmetic Act. Every instance where the
           communication facility is utilized constitutes a separate offense under this
           section.

       (b) Penalty.--A person who violates this section shall, upon conviction, be
           sentenced to pay a fine of not more than $15,000 or to imprisonment for
           not more than seven years, or both.

       (c) Definition.--As used in this section, the term "communication facility"
           means a public or private instrumentality used or useful in the
           transmission of signs, signals, writing, images, sounds, data or intelligence
           of any nature transmitted in whole or in part, including, but not limited to,
           telephone, wire, radio, electromagnetic, photoelectronic or photo-optical
           systems or the mail.

18 Pa.C.S.A. § 7512.

       This Court, having reviewed the entire record in this case and viewing the evidence in the

light most favorable to the Commonwealth as the verdict winner, finds that the Commonwealth



                                                7
has presented sufficient evidence to permit the jury, as trier of the facts, to find Mr. Houser guilty

of all of the above-referenced charges. Despite defense counsel's contention that the

Commonwealth's     case is based upon speculation or conjecture, the Court finds that the

Commonwealth has presented sufficient evidence to establish each element of each offense

charged. At trial, the Commonwealth presented evidence establishing that Ms. Racioppo died

and the cause of her death, as testified to by Dr. Wecht, was the result of the combined toxic

effect of fentanyl and morphine in her system. Detectives Shearer and Cardenas testified that

through their investigation, they located an empty Theraflu stamp bag in a drawer in the master

bedroom just feet away from Ms. Racioppo's body. Prior to trial, the parties stipulated to the

admission of the Pennsylvania State Police Crime Lab Test results, which revealed that the

stamp bag was positive for heroin and fentanyl.

       Mr. Miller testified at trial that the two days prior to Ms. Racioppo's death, he contacted

Ms. Guzzi each day by cell phone and requested heroin. Mr. Miller testified, and Ms. Guzzi

confirmed, that Mr. Miller paid Ms. Guzzi for the drugs and Ms. Guzzi left and came back with

heroin stamp bags, identified as Theraflu. On January 22, 2014, one day prior to Ms. Racioppo's

death, Mr. Miller testified that after he received the Theraflu from Ms. Guzzi, he and Ms.

Racioppo split up the drugs and used throughout the evening. Mr. Miller testified that when he

woke up in morning at approximately 8:00 a.m., he found Ms. Racioppo unconscious in the

bathroom from an overdose. Phone records confirmed the conversations between Mr. Miller and

Ms. Guzzi.

       Despite initially lying to the detectives, Ms. Guzzi eventually informed the detectives that

she received the Theraflu from Mr. Houser. Although she did not know his name at that time,

Ms. Guzzi provided the detectives with a phone number for Mr. Houser. Sergeant Turack



                                                  8
testified that he came in contact with Mr. Houser and after obtaining a search warrant, he located

the phone associated with the number in Mr. Rouser's front jean pocket. Detective Galvanek

testified that Mr. Houser confirmed that that was his phone number. Based on all of the evidence

presented, the Court finds that the Commonwealth has presented sufficient evidence for the jury

to find Mr. Houser guilty of Drug Delivery Resulting in Death, Intentionally Possessing a

Controlled Substance by Person Not Registered, Possession With Intent to Deliver a Controlled

Substance, Delivery of a Controlled Substance, and Criminal Use of a Communication Facility.


       As such, the Court finds that this claim is without merit.


       For the foregoing reasons, the issue raised on appeal is meritless, and the Court enters the

following Order:




                                                9
            IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,

                            PENNSYLVANIA - CRIMINAL DIVISION


 COMMONWEALTH OF PENNSYLVANIA                               )
                                                            )
                         vs.                                )    No. 1621 C 2015
                                                            )
            DEMETRIUS HOUSER,                               )
                          Defendant.                        )

                                           ORDER OF COURT

       AND NOW, to wit, this 15th day of March, 2017, it is hereby ORDERED, ADJUDGED,

and DECREED that the foregoing Opinion shall constitute the Court's brief statement ofreasons

for the January 6, 2017 judgment of sentence pursuant to Pa. R.A.P. 1925.




ATTEST:



Clerk of Courts


c.c.   File
       Peter Caravello, Esq., Assistant District Attorney
       Brian Aston, Esq., Counsel for the Defendant
       Pamela Neiderheiser, Esq., Court Administrator's Office
       Law Clerk




                                                      10
