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Commonwealth v. Proctor

Superior Court of Pennsylvania

February 9, 2017

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JONATHAN MICHAEL PROCTOR, Appellant

         Appeal from the Judgment of Sentence December 21, 2015, in the Court of Common Pleas of Potter County, Criminal Division at No(s): CP-53-CR-0000249-2014

          BEFORE: LAZARUS, SOLANO, and STRASSBURGER, [*] JJ.

          OPINION

          STRASSBURGER, J.

         Jonathan 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 affirm.

         On 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 incarceration.

          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.

         Appellant 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 enforcement?
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 silent?
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?

         Appellant's Brief at 5 (unnecessary capitalization omitted).

         We 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.

         Notwithstanding 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?

         Appellant's Rule 1925(b) Statement, 4/25/2016, at 2 (unnecessary capitalization omitted).

         As 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.[1] 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.

         A 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) are waived.")).

         Based on the foregoing, we conclude that Appellant has waived his sufficiency and weight challenges as presented on appeal, [2] as 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.

         In his 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 plenary…" Id.

         The offense of drug delivery resulting in death is defined 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, ...

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