Com. v. Kakhankham, S. , 132 A.3d 986 ( 2015 )

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
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*
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
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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,
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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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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
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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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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
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5
See also the Pennsylvania Suggested Jury Criminal Instructions 15.2506.
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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.
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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
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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.
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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.
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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
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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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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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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
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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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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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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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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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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,
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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.”)
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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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