Pennsylvania`s Drug Delivery Results in Death

Report
Kevin McCarthy
Assistant District Attorney
Allegheny County
Drug Delivery Resulting in Death
Former and Current Law
18 Pa.C.S.A. § 2506
Old Statute
(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 Controlled
Substance, Drug, Device and Cosmetic Act, and
another person dies as a result of using the
substance.
Old Statute

(b) Mandatory minimum sentence.-A person
convicted under subsection (a) shall be
sentenced to a mandatory minimum term of
imprisonment of five years and a fine of
$15,000, or such larger amount as is sufficient
to exhaust the assets utilized in and the
proceeds from the illegal activity.
Old Statute

(c) Proof of sentencing.-Provisions of this section shall not be an
element of the crime … but reasonable notice of the
Commonwealth's intention to proceed under this section shall be
provided after conviction and before sentencing.

The applicability of this section shall be determined at sentencing.
Commonwealth v. Highhawk
455 Pa.Super 186, 687 A.2d 1123 (1996)





Facts:
Defendant brought heroin to the victim’s residence for
recreational use.
Defendant injected heroin into the victim, a quadriplegic, at
his request.
Shortly thereafter, victim became unresponsive and
medical personnel were summoned.
Victim later died at the hospital due to acute heroin toxicity
Defendant was subsequently arrested and charged with
drug delivery resulting in death.
Commonwealth v. Highhawk
455 Pa.Super. 186, 687 A.2d 1123 (1996)
Held:
 18 Pa.C.S.A. § 2506 defines a substantive crime
and sets forth the penalties for a violation of
the prohibited conduct.
Commonwealth v. Highhawk



Also Held:
In attempting to define third-degree murder to include that
conduct which is prohibited by subsection 2506(a), the
legislature set forth the elements of the offense therein.
The plain language of subsection (c) prevents these
provisions from becoming elements of the crime and
renders section 2506 relevant only upon conviction.
As a result of this patent contradiction in section 2506, the
statute in question fails to provide fair notice of the
prohibited conduct and is, therefore, unable to withstand
constitutional scrutiny.
Commonwealth v. Ludwig
874 A.2d 623 (2005)




Defendant sold victim and her two friends
three pills, each containing a double dose of
Ecstasy.
Victim consumed half her pill along with
alcohol, but then consumed the remainder.
She then became ill, complaining of a severe
headache, was sluggish and began to vomit.
Victim was taken home and put to bed.
Commonwealth v. Ludwig
874 A.2d 623 (2005) continued



After victim stopped breathing an hour later,
an ambulance was called.
The victim died as a result of the overdose of
Ecstasy.
Defendant was charged with one count of
drug delivery resulting in death.
Commonwealth v. Ludwig
874 A.2d 623 (2005) continued


The trial court found the revised statute
unconstitutional on grounds that the mental
element was too vaguely defined.
In addition, it further held that the
Commonwealth had failed to establish a
prima facie case.
Commonwealth v. Ludwig
874 A.2d 623 (2005) continued


Pa. Supreme Court reversed, finding that
because the Legislature had defined drug
delivery resulting in death as murder in the
third degree, the mens rea necessary to
prove culpability was malice.
Further, the Court held that the
Commonwealth failed to establish a prima
facie case, to wit, no evidence of malice.
Current Statute
(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 Controlled
Substance, Drug, Device and Cosmetic Act, and
– another person dies as a result of using the substance.
Current Statute
–
–
–
(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.
(c), (e), (d) Deleted.
(f) Forfeiture.--Assets against which a forfeiture petition
has been filed and is pending or against which the
Commonwealth has indicated an intention to file a
forfeiture petition shall not be subject to a fine. Nothing
in this section shall prevent a fine from being imposed on
assets which have been subject to an unsuccessful
forfeiture petition.
Underage Drinking
18 Pa.C.S.A. § 6308
(a) Offense defined.--A person commits a
summary offense if he, being less than 21 years
of age, attempts to purchase, purchases,
consumes, possesses or knowingly and
intentionally transports any liquor or malt or
brewed beverages, as defined in section 6310.6.
Underage Drinking
18 Pa.C.S.A. § 6308
The statute provides an exception for persons
who seek medical attention for others
(f) Exception for person seeking medical
attention for another.--A person shall be
immune from prosecution for consumption or
possession under subsection (a) if he can
establish the following:
Underage Drinking
18 Pa.C.S.A. § 6308
(1)
The only way law enforcement officers became
aware of the person's violation of subsection (a)
is because the person placed a 911 call, or a call
to campus safety, police or emergency services,
in good faith, based on a reasonable belief and
reported that another person was in need of
immediate medical attention to prevent death or
serious injury.
Underage Drinking
18 Pa.C.S.A. § 6308 (continued)
(2) The person reasonably believed he was the
first person to make a 911 call or a call to
campus safety, police or emergency services,
and report that a person needed immediate
medical attention to prevent death or serious
injury.
Underage Drinking
Exceptions (continued)
(3) The person provided his own name to the 911
operator or equivalent campus safety, police or
emergency officer.
(4) The person remained with the person needing
medical assistance until emergency health care
providers arrived and the need for his presence
had ended.

similar documents