from the Judgment of Sentence December 21, 2015, in the Court
of Common Pleas of Potter County, Criminal Division at No(s):
BEFORE: LAZARUS, SOLANO, and STRASSBURGER, [*] JJ.
Michael Proctor (Appellant) appeals from the judgment of
sentence imposed following his convictions for drug delivery
resulting in death; flight to avoid apprehension, trial, or
punishment; manufacture, delivery, or possession of a
controlled substance with intent to manufacture or deliver;
possession of a controlled substance; criminal conspiracy;
and use or possession of drug paraphernalia. Upon review, we
September 30, 2015, following a jury trial, Appellant was
convicted of the aforementioned crimes stemming from an
incident wherein Daniel Lowe (Lowe) died from an overdose
after ingesting heroin that was provided to him by Appellant.
Appellant was sentenced on December 21, 2015, to an aggregate
term of 12 years and 10 months to 26 years and 10 months of
Appellant filed post-sentence motions, which were denied. On
January 22, 2016, Appellant filed a notice of appeal to this
Court. On January 26, 2016, the trial court directed
Appellant to file a concise statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(b). After requesting and
receiving an extension of time, Appellant filed his concise
statement. The trial court issued its opinion pursuant to
Pa.R.A.P. 1925(a) on April 28, 2016.
raises the following issues for our consideration:
I. Did the Commonwealth present insufficient evidence to
support [Appellant's] conviction for drug delivery
resulting in death?
II. Was [Appellant's] conviction for drug delivery
resulting in death against the weight of the evidence?
III. Is 18 Pa.C.S. § 2506 unconstitutionally vague and
does § 2506 violate due process pursuant to the United
States and Pennsylvania Constitutions because the statute
does not provide sufficient notice as to what conduct it
criminalizes and the statute encourages arbitrary
IV. Did the trial court err when the court instructed the
jury the final element of drug delivery resulting in death is
"that a person has died as a result of using the
substance even if other substances were found in his
system" and that … Lowe "died as a result of
using the substance even though other substances were found
in his system"?
V. Did the trial court err when the court denied defense
counsel's request for a mistrial after the Commonwealth
referred to [Appellant's] lack of remorse during [its]
closing argument, thereby violating his right to remain
VI. Did the sentencing court abuse its discretion when the
court imposed an aggravated sentence for Appellant['s]
conviction for drug delivery resulting in death and then
imposed two additional consecutive sentences?
VII. Does Appellant's sentence and § 2506 itself
violate the Eighth Amendment's restriction against cruel
and unusual because Appellant was a drug addict and never
intended to cause any loss of life and the statute permits
severely disproportionate punishments of individuals
tangentially involved in a drug overdose?
Brief at 5 (unnecessary capitalization omitted).
address together Appellant's first two issues, wherein he
challenges the sufficiency and weight of the evidence to
support his conviction for the offense of drug delivery
resulting in death. In support of his sufficiency challenge,
Appellant argues that the Commonwealth failed to prove that
(1) he acted with reckless disregard to the likelihood of
Lowe's death from injecting himself with heroin, and (2)
Lowe's death was reasonably foreseeable to Appellant and
thus Appellant's conduct was the legal cause of his
death. Appellant's Brief at 20-32. Appellant argues that
the jury's guilty verdict for drug delivery resulting in
death is against the weight of the evidence because (1) he
lacked any culpable mens rea concerning the
likelihood of Lowe's death and it was the "product
of a legally invalid prosecution theory" that no
mens rea in that regard was required, and (2) the
"overwhelming medical evidence" suggests that
Appellant did not proximately cause Lowe's death.
Id. at 32-34.
Appellant's claims on appeal, our review of the record
reveals that the only issues Appellant included in his Rule
1925(b) statement relating to sufficiency or weight of the
evidence state as follows:
3. Was [Appellant's] conviction for drug delivery
resulting in death against the weight of the evidence because
the cause of [Lowe's] death was combined drug toxicity?
4. Did the Commonwealth present insufficient evidence to
support [Appellant's] conviction for drug delivery
resulting in death because the cause of [Lowe's] death
was combined drug toxicity?
Rule 1925(b) Statement, 4/25/2016, at 2 (unnecessary
written, Appellant's issues fail to make any mention of a
challenge with respect to the mens rea required or
whether Lowe's death was reasonably foreseeable to
Appellant. Rather, Appellant's issues challenge
the sufficiency and weight of the evidence only as it relates
to the factual cause of Lowe's death (which, as alleged
by Appellant, was combined drug toxicity). Indeed, in its
Rule 1925(a) opinion, the trial court addressed
Appellant's issues as challenging whether the verdict was
against the weight of the evidence and whether the
Commonwealth failed to present sufficient evidence
"because [Lowe's] death was caused by combined drug
toxicity as opposed to being caused solely by the heroine
[sic] provided by [Appellant]." Trial Court
Opinion (TCO), 4/28/2016, at 1-2.
court-ordered concise statement "shall concisely
identify each ruling or error that the appellant intends to
challenge with sufficient detail to identify all pertinent
issues for the judge." Pa.R.A.P. 1925(b)(4)(ii).
"The Pennsylvania Supreme Court has explained that Rule
1925 is a crucial component of the appellate process, which
is intended to aid trial judges in identifying and focusing
upon those issues which the parties plan to raise on
appeal." Commonwealth v. Freeman, 128 A.3d
1231, 1248 (Pa. Super. 2015) (internal quotation marks and
citation omitted). Moreover, it is well-settled that
"[i]issues that are not set forth in an appellant's
statement of matters complained of on appeal are deemed
waived." Commonwealth v. Perez, 103 A.3d 344,
347 n.1 (Pa. Super. 2014) (citing Pa.R.A.P. 1925(b)(4)(vii)
("Issues not included in the Statement and/or not raised
in accordance with the provisions of this paragraph (b)(4)
on the foregoing, we conclude that Appellant has waived his
sufficiency and weight challenges as presented on appeal,
he did not specify them in his Rule 1925(b) statement and the
trial court did not address them in its opinion.
Commonwealth v. Reeves, 907 A.2d 1, 2-3 (Pa. Super.
2006) (explaining that, from a reading of Reeves' Rule
1925(b) statement, "the trial court reasonably
thought that Reeves was only complaining about the
quantum of evidence, not the specific issue that SEPTA is not
a 'person' under the terms of the statute" and
concluding that "[b]ecause the specific issue as to
whether SEPTA was a 'person' was not presented to the
trial court to give [the trial court] a chance to address it
in [its] opinion, the issue has been waived"); see
also Commonwealth v. Lincoln, 72 A.3d 606, 610 (Pa.
Super. 2013) (quoting Commonwealth v. Rush, 959 A.2d
945, 949 (Pa. Super. 2008) (stating "for any claim that
was required to be preserved, this Court cannot review a
legal theory in support of that claim unless that particular
legal theory was presented to the trial court")). Thus,
he is not entitled to relief on those claims.
third issue, Appellant argues that, if we reject his
sufficiency and weight challenges, then the drug delivery
resulting in death statute is void for vagueness. Analysis of
the constitutionality of a statute is a question of law and,
thus, our standard of review is de novo.
Commonwealth v. Kakhankham, 132 A.3d 986, 990 (Pa.
Super. 2015). "Our scope of review, to the extent
necessary to resolve the legal question before us, is
offense of drug delivery resulting in death is defined as
(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, ...