Commonwealth v. Ludwig , 583 Pa. 6 ( 2005 )

OPINION

Chief Justice CAPPY.¹

This appeal presents a constitutional challenge to a criminal statute, 18 Pa.C.S. § 2506, “Drug delivery resulting in death,” for vagueness, because the statute fails to sufficiently set forth the mental state required for criminal liability. Additionally, we are called upon to determine whether the trial court erred in granting Appellee Gregory Ludwig’s Petition for Writ of Habeas Corpus based upon the Commonwealth’s failure to establish a prima facie case under Section 2506. For the reasons that follow, we hold that Section 2506 is not unconstitutionally vague and that the applicable mental state for a conviction under the statute is malice. We further conclude, however, that the Commonwealth has failed to establish ¿ prima facie case of malice under Section 2506. Accordingly, we affirm the order of the trial court, granting Ludwig’s Petition for Writ of Habeas Corpus with respect to the charge of Drug delivery resulting in death.

The facts underlying this appeal are not in dispute. On the evening of May 17, 2001, fifteen-year-old Brandy French (Brandy), eighteen-year-old Paula Wilson (Paula), and seventeen-year-old Michelle Maranuk (Michelle) discussed with one another their desire to consume the drug Ecstasy at an all-day concert that they would be attending the following day. After the conversation, Michelle contacted a recent acquaintance, nineteen-year-old Ludwig, and informed him that she was interested in purchasing Ecstasy for herself and two of her friends. Ludwig replied that he would be willing to sell Michelle three Ecstasy pills at a price of $20 a pill and offered to meet her at the local Dairy Queen later that evening. Michelle relayed that information to Brandy and Paula, and the girls then arranged for Paula’s boyfriend, Robert Sontag, to drive them to the Dairy Queen to meet Ludwig.

Upon arriving at the Dairy Queen, Ludwig entered the girls’ car, and the entire group took a short drive. During the drive, Michelle took $20 from Paula and Brandy and handed Ludwig $60. In return, Ludwig supplied Michelle with three tablets of white double-stacked Mitsubishi Ecstasy.² Michelle kept all of the pills until the next day.

At approximately 4:00 p.m. the following afternoon, the three girls met in the ladies’ room at the concert to take the Ecstasy. Michelle gave Paula and Brandy each a pill, but advised them to take only one-half of a pill, because it was double-dosed, and neither Paula nor Brandy had previously taken Ecstasy. The girls then ingested their pills, Michelle taking her whole pill and Paula and Brandy taking one-half of their respective pills. Paula and Brandy, however, believing that they had not experienced the full effects of the Ecstasy, returned to the ladies’ room a short while later and consumed the remaining halves of their pills.³

Soon after consuming the second half of her pill, Brandy began to vomit. She also complained of a severe headache and became sluggish. After discussing the situation with some other friends they had met at the concert, Michelle, Paula, and their friends decided that they would take Brandy to the home of Lewis Hopkins (Lewis), a friend of Michelle’s cousin, whom they had met at the concert.

Upon arriving at Lewis’ home, the group carried Brandy, who was by that time semi-conscious, into the house and put her in a bed. The group then left Brandy in the bedroom and went to another part of the house. Lewis’ mother, who was home at the time, inquired into Brandy’s condition, but was told only that Brandy had been drinking at the concert and had become ill.

At approximately 9:30 p.m., Brandy began to have difficulty breathing. Although it was suggested that someone call an ambulance, an ambulance was not called because Brandy’s breathing seemed to return to normal and Lewis’ mother objected to an ambulance coming to her home for fear that it would tarnish her reputation. More than an hour later, however, Paula noticed that Brandy again was having difficulty breathing. Realizing that Brandy needed immediate medical attention, Michelle, Paula, and Lewis decided to take Brandy to a hospital. Brandy, however, stopped breathing when the group reached Lewis’ driveway. At that point, Lewis’ mother telephoned 911. After their arrival, police and paramedics took Brandy to a hospital. Subsequently, on May 20, 2001, Brandy died; an autopsy determined that Brandy’s death was due to an overdose of Ecstasy.

As a result of these events, the Allegheny County Coroner’s Office held an Open Inquest into Brandy’s death. In August of 2001, the Coroner’s office ultimately recommended that the District Attorney file charges of murder against Ludwig and Michelle. Subsequently, Ludwig was charged with one count of drug delivery resulting in death pursuant to Section 2506.⁴

On November 7, 2001, Ludwig filed a Petition for Writ of Habeas Corpus with the Court of Common Pleas of Allegheny County, arguing that Section 2506 is unconstitutionally vague in that the requisite mental element is too vaguely defined, and that even if the statute is not unconstitutionally vague, the Commonwealth had failed to present sufficient evidence to establish a prima facie case of the elements of Section 2506. The trial court granted Ludwig’s petition on both grounds and dismissed the charge premised upon Section 2506. See Commonwealth v. Ludwig, 55 Pa. D. & C.4th 449 (Com.Pl. Allegheny Co.2002).

Specifically, in holding Section 2506 to be unconstitutionally vague, the trial court found that because the statute fails to sufficiently set forth the mens rea necessary for conviction, it is impossible to determine whether Section 2506 functions as a strict liability offense or a new version of third degree murder requiring a showing of malice. Id. at 459. Given this lack of clarity, the trial court determined that Section 2506 does not sufficiently define the conduct to be prohibited by the statute, and consequently, is unconstitutionally vague. Id. In the alternative, the trial court reasoned that even if Section 2506 functions as a new version of third-degree murder adequately setting forth a mens rea of malice, it would still grant Ludwig’s petition because the Commonwealth had failed to present sufficient evidence to establish a prima facie case that Ludwig acted with malice. Id. at 465-467.

The Commonwealth appealed the trial court’s decision to our Court which has jurisdiction pursuant to 42 Pa.C.S. § 722(7), which provides that we shall have exclusive jurisdiction over an order of the court of common pleas holding a statute unconstitutional. We first consider the issue of whether Section 2506 is unconstitutionally vague.⁵

As a threshold matter, a statute is presumed to be constitutional and will only be invalidated as unconstitutional if it “clearly, palpably, and plainly violates constitutional rights.” Commonwealth v. MacPherson, 561 Pa. 571, 752 A.2d 384, 388 (2000) (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 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); Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244, 246 (1976).⁶

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; Commonwealth v. Mayfield, 574 Pa. 460, 832 A.2d 418, 422 (2003); 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 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 Carders, 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.

Section 2506 defines the crime of third-degree murder in the context where death results from certain conveyances of, inter alia, controlled substances in violation of the Controlled Substance, Drug, Device and Cosmetic Act:

(a) General rule-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 § 2506(a) (footnote omitted).

While the statute proscribes that one who delivers drugs that result in death commits murder of the third degree, it contains no express element of culpability that is to be applied.

Ludwig argues that the trial court properly reasoned that the statute is unconstitutionally vague because it fails to define with requisite definiteness the mental state required for criminal liability. According to Ludwig, this lack of a clear standard leads to a risk of arbitrary governmental action. Conversely, the Commonwealth takes the position, employing a statutory construction approach, that by declaring a violation of Section 2506 to be “murder of the third degree” the Legislature intended to require a mens rea of malice. According to the Commonwealth, this is so because murder of the third degree has historically been defined by our Court to require proof of malice, citing to Commonwealth v. McGuire, 487 Pa. 208, 409 A.2d 313 (1979). Thus, the statute is not unconstitutionally vague. Like the Commonwealth, the Attorney General, who has filed a brief as amicus curiae in this appeal, also contends that Section 2506 does not fail for vagueness, but offers that 18 Pa.C.S. § 302 provides a culpability element when the General Assembly does not prescribe an applicable mens rea. Interpreting this provision, the Attorney General maintains that the required mens rea for conviction under Section 2506 is “intentional, knowing, or reckless conduct.” 18 Pa.C.S. § 302(c).

In considering the parties’ respective arguments, we must keep in mind the rules of statutory construction. Specifically, the polestar of statutory construction is the intent of the General Assembly. 1 Pa.C.S. § 1921(a). In ascertaining the intent of the Assembly, we are to look at the words used by the Legislature, as that is the best evidence of its intent. If the words 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. § 1921(b). Only when the words used by the Legislature are not explicit, do we turn to other factors to ascertain its intent. 1 Pa.C.S. § 1921(c). Finally, penal provisions must be strictly construed in favor of the defendant and against the Commonwealth. 1 Pa.C.S. § 1928(b)(1).

Employing these principles, we agree with the Attorney General that while Section 2506 does not explicitly provide for an applicable mens rea, the General Assembly has provided a default culpability provision in Section 302(c) of the Crimes Code that is to be applied to determine the appropriate element of culpability. Therefore, it is through this provision that we must consider the proper culpability element for Section 2506. 18 Pa.C.S. § 302(c).

The statutory default provision offers that unless prescribed by law, culpability is established if a person acts, inter alia, at least recklessly:

(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. § 302(c).

Upon review of the statute, it becomes clear that the General Assembly supplied triggering language in the Crimes Code’s default culpability provision, i.e., that the default culpability of “intentionally, knowingly or recklessly” is applicable only where culpability “is not prescribed by law.” 18 Pa.C.S. § 302(c). In this ease, we believe that culpability is prescribed by law.

Specifically, delivery of a drug resulting in death is expressly defined by the Legislature as murder of the third degree. The law is clear and well-settled regarding the mens rea for third degree murder. As noted by the Commonwealth, we have consistently prescribed the culpability required for third degree murder to be malice. See, e.g., McGuire, 409 A.2d at 315-16 (holding that under the new Crimes Code, the offense of third degree murder incorporates common law malice as an element). Indeed, malice aforethought is the essential distinguishing factor between murder and manslaughter in Pennsylvania. John Burkoff, Criminal Offenses and Defenses in Pennsylvania 267(4th ed. 2001). Likewise, other language in the Crimes Code also makes evident that malice is the appropriate mental state required to prove murder of the third degree. Specifically, in Chapter 26 of the Crimes Code, the General Assembly clarifies that a degree of “Murder,” whether under Chapter 26 or Chapter 25, includes malice. See 18 Pa.C.S. § 2602 Definitions (“‘Murder.’ As used in this chapter, the term includes the same element of malice which is required to prove murder under Chapter 25 (relating to criminal homicide)”). Chapter 25, of course, includes Section 2506, “Drug delivery resulting in death.”

Therefore, by expressly defining the crime of Drug delivery resulting in death in the clear and unambiguous words of “murder of the third degree,” coupled with our case law and statutory language designating the proper mental state for third degree murder as malice, the Legislature made it plain that malice is the requisite mens rea for a violation of Section 2506.⁷ As the mens rea for this crime is “prescribed by law,” the lesser standard set forth in the default culpability provision of intentionally, knowingly, or recklessly, advocated by the Attorney General, is not implicated.

Based upon the above analysis, we conclude that Section 2506 is not unconstitutionally vague. First, considering the statutory language employed by the General Assembly, both in Section 2506 and the default culpability provision found at Section 302(c) of the Crimes Code, we determine that the statute provides a culpability element-malice. Moreover, we find that the Legislature, through these provisions has articulated the applicable mens rea with sufficient definiteness. Kolender, 461 U.S. at 357, 103 S.Ct. 1855. Furthermore, by providing a mens rea of malice, the Legislature has supplied minimal guidelines regarding the elements necessary for a conviction pursuant to Section 2506 that are sufficiently definite. Thus, we also reason that the statute does not in any way encourage arbitrary and discriminatory enforcement. Koleder, 461 U.S. at 357, 103 S.Ct. 1855. Accordingly, we hold that Section 2506 is not unconstitutionally vague and that the applicable mental state for a conviction under the statute is malice.

Resolution of this issue, however, does not end our inquiry. The trial court also found that even if it were to conclude that Section 2506 is not unconstitutionally vague and, in fact, calls for a finding of malice, Ludwig remained entitled to relief because the Commonwealth failed to present sufficient evidence of malice aforethought to establish a prima facie case against him.

To detain an individual who has been charged with a crime for trial on that offense, the Commonwealth must prove at a preliminary hearing a prima facie case of guilt against the accused. See Pa.R.Crim.P. 542(D), 543(A). To meet this burden, “the Commonwealth is required to present evidence, with regard to each of the material elements of the crime,” to establish that the crime has been committed. Commonwealth v. McBride, 528 Pa. 153, 595 A.2d 589, 591 (1991). As determined above, malice aforethought is one such element necessary for a conviction under Section 2506.

In determining whether malice has been established, our Court has utilized the traditional definition of that mental state set forth in Commonwealth v. Drum, 58 Pa. 9 (1868). That seminal definition makes clear that malice aforethought requires a unique state or frame of mind characterized by wickedness, hardness, cruelty, recklessness, and disregard of social duty:

Malice is a legal term, implying much more [than ill-will, spite, or a grudge]. It comprehends not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed malice, in its legal sense, prevailed.

Id. at 15.

Malice has been characterized as exhibiting an “extreme indifference to human life,” Commonwealth v. Gardner, 490 Pa. 421, 416 A.2d 1007, 1008 (1980) (emphasis supplied), and “may be found to exist not only in an intentional killing, but also in an unintentional homicide where the perpetrator ‘consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm.’ ” Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230, 232 (1981) (quoting Commonwealth v. Hare, 486 Pa. 123, 404 A.2d 388, 391 (1979)) (emphasis supplied).

Indeed, our Court has stated that an inference of malice is not supported even by evidence which demonstrates that a defendant acted out of anger and rage; in such a case, voluntary manslaughter, not murder, is established. McGuire, 409 A.2d at 317. Thus, the mental state of malice aforethought is significantly more than mere carelessness or neglect, or the disregard of a chance or possibility of death, and it is this special frame of mind that is required to obtain a conviction under Section 2506.

Turning to whether the Commonwealth met its prima facie case of malice in light of the above-stated definition and the facts before us, we emphasize that to satisfy the burden of setting forth a prima facie case, the Commonwealth is not required to prove its case beyond a reasonable doubt; it must, however, set forth evidence of the existence of each element of the crime. The absence of evidence as to the existence of a material element, however, is fatal. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991, 996-97 (1983).

Although not set forth separately, in sum, the Commonwealth relies on five factors that it considers to be relevant regarding the malice inquiry, and that it believes leads to the conclusion that it established a prima facie case of malice: (1) supplying another with an illegal and dangerous substance of unknown quality; (2) lack of knowledge of the recipient’s reaction or tolerance to the drug; (3) the age of the recipients; (4) providing a drug in an amount twice its “normal” dosage; and (5) motivation by profit. We will address each of these contentions seriatim.

First, we find that supplying an illegal and potentially dangerous substance of unknown quality to another does not in and of itself support a finding of malice. Most drugs, even prescription drugs that are used illegally, may potentially harm. Thus, as an indication of wickedness, ill-will, cruelty, and extreme indifference to human life, the legality and mere potential dangerousness of a drug, without more, falls short. More importantly, this factor is objectionable in this context for another reason-while considered as a factor to determine malice, the Commonwealth uses one of the other statutory elements (delivery of an illegal drug) to establish malice. Using an existing element of the crime to demonstrate a separate element, malice, vitiates malice as an independent element to be proven and renders Section 2506 a strict liability crime.

Finally, even if this factor is relevant with respect to malice, it fails under the facts of this case. There was no evidence that Ecstasy, as objectionable a drug as it is, is an inherently dangerous drug of such toxicity that there was a substantial and “extremely high risk” that one who ingests Ecstasy will die. Young, 431 A.2d at 232.⁸ While the Commonwealth points to evidence of the possible dangers of consuming Ecstasy, and the lack of standards in manufacturing the drug, the trial court specifically noted that the record was “devoid of evidence” that there was a high probability of death that would result from the ingestion of Ecstasy. Likewise, there was no evidence that in this case the quality of the Ecstasy in question was exceptional. Thus, we find that simply because Ludwig delivered an illegal drug that was potentially harmful to another did not rise to the level of malice.

The Commonwealth’s second factor, regarding the lack of knowledge of a drug recipient’s medical history and tolerance for a drug, fails to support a finding of malice as we believe, at least in the circumstances before us, it is unreasonable to conclude that not knowing a recipient’s tolerance or possible reaction to a drug establishes the requisite wickedness, cruelty, recklessness, and disregard of social duty required for malice. Perhaps more importantly, this factor improperly turns the malice inquiry away from its traditional focus on the state of mind of the defendant based on the facts known to him, and instead alters the inquiry to center on the unknown status of the victim.

The third and fourth factors pointed to by the Commonwealth as establishing malice, providing a substance to another who is under the age of eighteen years of age and providing a double dosage of the drug, also does not establish the hardness of heart or even recklessness required for malice. First, it is important to note that Ludwig was a teenager, as were all of the other girls who ingested the drug. Moreover, the parties’ actions demonstrate that all involved had a common understanding of the nature of the transaction and that the girls in fact sought out the transaction. Furthermore, in its discussion of these factors, and in particular, the furnishing of a double dose of the drug, the Commonwealth ignores that all parties involved were aware that the amount given to the victim was double the “normal” dosage. The uncontradicted evidence establishes that the recipients were cautioned by their friend to take only one half of a pill. In fact, the pills initially were split in half. Yet with knowledge of the dosage and initially taking a half pill, the girls eventually took the whole double dose. We conclude that simply because the girls chose to take a double dose of Ecstasy, a dosage against which they were expressly warned, malice was not established as to Ludwig. If there was any evidence that Ludwig had concealed the fact that it was a double dose, or evidence that Ludwig surreptitiously increased the double dose to a triple dose while offering it to the girls in the packaging of a double dose, it at least might be arguable that it is indicative of a wickedness, hardness of heart, cruelty, and recklessness; however, these are not the facts of the case.

Finally, because one sells illegal drugs to another, rather than shares them with others free of charge, does not in and of itself establish malice. While the Commonwealth makes much of Ludwig’s profit motive, at least in these circumstances, and without something more, we cannot agree that the mere sale of drugs is evidence of the wickedness, hardness of heart, cruelty, and recklessness required for malice aforethought.

Based upon the above analysis, we hold that the Commonwealth did not satisfy its burden of setting forth a prima facie case of malice under Section 2506. This Court recognizes the dangers inherent in the commerce of illegal substances as aptly illustrated by the sad facts of this matter, however, the day-to-day distribution of illegal drugs, as occurred here, without something more, does not constitute a wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty such as to demonstrate an extreme indifference to human life, and thus, does not rise to the unique mental state of malice aforethought required by the General Assembly for a conviction pursuant to Section 2506. Therefore, we affirm the order of the trial court, granting Ludwig’s Petition for Writ of Habeas Corpus with respect to the charge of drug delivery resulting in death.⁹

Justice NEWMAN files a concurring opinion. Justice NIGRO files a dissenting opinion in which Justices SAYLOR and EAKIN join.

1 . This appeal was reassigned to this author.

2 . "White double stacked Mitsubishi” refers to the fact that the pills were white in color, contained a double dose of Ecstasy, and were "stamped" with the Mitsubishi automobile emblem.

3 . There is conflicting testimony regarding who possessed the two halves of the pills after Michelle originally provided the pills to the girls. Michelle testified that Paula held on to the remaining halves, and Paula testified that Brandy held on to her half.

4 . Ludwig was also charged with one count of delivery of a controlled substance, possession with intent to deliver, and possession. Michelle, however, was not charged with any criminal offense.

5 . 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).

6 . Ludwig claims that Section 2506 is violative of both the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. He does not, however, suggest that a different analysis under our Constitution is applicable, and thus, we will analyze his vagueness challenge pursuant to the United States Constitution.

7 . Indeed, the Superior Court has recently come to the same conclusion. Commonwealth v. Nahavandian, 849 A.2d 1221 (Pa.Super.Ct.2004).

8 . In Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973), we determined that the Commonwealth had failed to establish malice where the drag at issue was heroin. "Initially, 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.” Bowden, 309 A.2d at 718 (emphasis supplied); see also Commonwealth v. Parker, 458 Pa. 381, 327 A.2d 128, 130 (1974).

9 . The trial court also found that the application of Section 2506 to the facts of the case violates Due Process in an attempt to hold Ludwig liable for the death of a person other than the person to whom the controlled substance was delivered. As we have decided that the Commonwealth failed to establish a prima facie case of malice, we need not reach this constitutional issue. Shuman v. Bernie's Drug Concessions, 409 Pa. 539, 187 A.2d 660, 664 (1963)(constitutional question should not be passed upon unless absolutely necessary to resolve the controversy).