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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ANGEL LUIS ALICEA III, : No. 1129 MDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, May 2, 2017,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0001279-2016
BEFORE: LAZARUS, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 07, 2018
Appellant, Angel Luis Alicea, III, appeals from the judgment of
sentence entered May 2, 2017, in the Court of Common Pleas of York County
following his conviction in a jury trial of drug delivery resulting in death and
possession with intent to deliver (“PWID”).1 The trial court sentenced
appellant to 9-20 years’ incarceration. After careful review, we affirm.
The trial court provided the following factual and procedural history:
On September 18, 2015, around 1:20 p.m., the
Northern York County Regional Police Department
responded to the residential address of 7464 Hillside
Drive, Paradise Township, York County after
receiving a call from Ms. Briana Clapsaddle that she
found her boyfriend, Randy Crone (herein “Crone”),
inside the residence, in his bedroom, deceased.
Ms. Clapsaddle had driven to Crone’s residence after
he failed to respond to multiple text messages and
1 18 Pa.C.S.A. § 2506(a) and 35 P.S. § 780-113(a)(30), respectively.
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telephone calls from the previous night,
September 17, 2015, and that morning.
Detective William Haller and Detective Sargent
Neidigh responded to the scene. While investigating
Crone’s bedroom, the detectives found three (3)
syringes, a burnt metal spoon with a small amount
of suspected heroin residue, and a small folded
one-dollar ($1.00) bill with a brown powdered
substance inside which the detectives determined to
be heroin. The one-dollar ($1.00) bill, which was
described by police to be folded tightly in the shape
of a triangle, was found inside an Alcoholics
Anonymous book located on top of Crone’s dresser.
Family members of Crone told responding officers
that Crone was a recovering heroin addict who
recently attended rehab in an effort to overcome his
addiction. Crone’s family did not know he was using
heroin on the date of his death. Crone’s sister,
Samantha Rengifo, advised investigators that Crone
visited her at her residence on the morning of
September 17, 2015, and brought her doughnuts.
Samantha stated that Crone told her that after he
left Samantha’s residence he was going to go visit
Ms. Clapsaddle. Ms. Clapsaddle confirmed that
Crone had spent the majority of the remainder of the
day with her, attending appointments and running
errands. Ms. Clapsaddle testified that they were
together from about 10:00 a.m. in the morning until
7:30 p.m. that night. Ms. Clapsaddle stated she last
heard from Crone around 9:00 p.m. or 9:30 p.m. on
the night of September 17, 2015, via text messages
after he had left her residence. Officers were able to
confirm receipts, which established that Crone had
been at Dunkin Donuts on September 17, 2015, at
6:45 a.m., Wal-Mart at 9:25 a.m., and Giant at
9:42 a.m.
By reviewing Crone’s cellphone records, investigators
determined that Crone had been in contact with his
best friend, Michael Iberl, on the night of
September 17, 2015. Mr. Iberl testified that Crone
had in fact reached out to him in regards to wanting
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heroin and they did obtain heroin just after midnight
on September 17, 2015. Mr. Iberl stated that he
reached out to a dealer known as “Bebo,” and he
and Crone drove to Bebo’s location to purchase
heroin. Mr. Iberl testified that he contributed twenty
dollars ($20.00) and Crone contributed eighty dollars
($80.00) towards the single purchase of
one-hundred dollars ($100.00) of heroin. Mr. Iberl
estimated the amount of heroin purchased to weigh
at least one (1) gram and it was packaged in a
folded dollar bill. Bebo was later identified as being
[appellant.]
Mr. Iberl stated that after obtaining the heroin, just
before 1:00 a.m., Crone dropped Mr. Iberl off at his
grandparents’ house, his residence at the time, so
Mr. Iberl would not break the curfew rules set by his
grandparents. Crone drove to Walgreens to buy
syringes and then returned to Mr. Iberl’s residence
about fifteen (15) minutes later. Once there,
Mr. Iberl testified that both he and Crone both shot
up twice (2) using the heroin they bought. Mr. Iberl
stated that he then went to sleep but he was unsure
if Crone had fallen asleep as well. Mr. Iberl stated
that Crone dropped him off at work on
September 17, 2015, around 6:00 a.m., and Crone
took the remainder of the heroin with him, still
packaged in the dollar bill.
At the time of his death, Crone was living with his
aunt and uncle. After leaving Ms. Clapsaddle’s
house, Crone returned to his residence just after
8:00 p.m. on September 17, 2015. Crone briefly
watched television with his uncle before returning to
his room, which was located in a walk-out basement.
This was the last account of anybody seeing Crone
alive. Ms. Clapsaddle discovered Crone deceased in
the afternoon of September 18, 2015. Upon
examination, it was ruled that Crone’s death was
accidental and caused by heroin toxicity. On
January 25, 2016, Detective William D. Haller from
the Northern York County Regional Police
Department filed the charges listed supra.
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On March 16, 2017, at the conclusion of the trial, a
jury unanimously convicted [appellant] of Drug
Delivery Resulting in Death and [PWID].
On May 2, 2017, [appellant] was sentenced to a
term of nine (9) to twenty (20) years’ incarceration
in [s]tate [p]rison for the charge of Drug Delivery
Resulting in Death and no separate sentence for the
[PWID] charge since said charge merged with the
first charge. On May 8, 2017, [appellant], by and
through his attorney, Ronald J. Gross, Esquire, filed
a Post-Sentence Motion requesting that [appellant’s]
sentence be vacated based on a sufficiency of the
evidence and weight of evidence claim, as well as a
claim that the statute [appellant] was convicted
under, 18 Pa.C.S.A. § 2506(a) was unconstitutionally
vague and overbroad. On June 6, 2017, [the trial
c]ourt denied [appellant’s] Post Sentence Motion.
On July 18, 2017, [appellant] filed a Petition to
Accept Late Direct Filing of Appeal/Appeal Nunc Pro
Tunc due to a filing error on the part of [appellant’s]
attorney. On July 25, 2017, [the trial c]ourt granted
[appellant’s] Petition to Appeal Nunc Pro Tunc and
ordered [appellant] to file a 1925(b) Statement of
Errors Complained of on Appeal. Both orders were
filed on July 26, 2017.
Trial court opinion, 10/17/17 at 2-7 (citations omitted).
Appellant filed his concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) on August 22, 2017. The trial court then filed
an opinion pursuant to Pa.R.A.P. 1925(a) on October 17, 2017.
Appellant raises the following issues on appeal:
I. Whether the [t]rial [c]ourt erred by finding
that sufficient evidence existed to support the
conclusion by the jury that [a]ppellant sold
hereon [sic] to Mr. Crone when in fact
Michael Iberl provided the heroin to the
decedent[?]
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II. Whether the Trial Court erred by not granting a
new trial as there existed insufficient evidence
that the heroin, even if presumed provided by
[appellant], would have caused the death of
Mr. Crone as after he admittedly used all the
heroin, as per the report of Mr. Iberl at trial,
he (Mr. Crone) was still alive[?]
III. Whether the Drug Delivery Resulting in Death
statute as codified in 18 Pa.C.S.A. § 2506(A) is
unconstitutionally vague, facially and as
applied, because it creates a strict liability for
actions negating mens re [sic] therefore
violating the due process clause of the
[F]ourteenth [A]mendment to the
U.S. Constitution ARTICLE 1, SECTION 9, of
the Pennsylvania Constitution[?]
Appellant’s brief at 5.
Appellant’s first two issues address the sufficiency of the evidence
presented by the Commonwealth. We shall review both of these issues
together. In his first issue, appellant avers that the Commonwealth failed to
establish that appellant sold heroin to Crone when it was Iberl who provided
Crone with the heroin. (Appellant’s brief at 10.)
In reviewing the sufficiency of the evidence, we view
all evidence admitted at trial in the light most
favorable to the Commonwealth, as verdict winner,
to see whether there is sufficient evidence to enable
[the fact-finder] to find every element of the crime
beyond a reasonable doubt. This standard is equally
applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to a
crime beyond a reasonable doubt. Although a
conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.”
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Moreover, when reviewing the sufficiency of the
evidence, the Court may not substitute its judgment
for the fact finder; if the record contains support for
the convictions, they may not be disturbed.
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013), appeal
denied, 89 A.3d 661 (Pa. 2014) (citations omitted).
Moreover, when applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the finder of
fact, while passing upon the credibility of the
witnesses and the weight of the evidence produced,
is free to believe all, part, or none of the evidence.
Commonwealth v. Estepp, 17 A.3d 939, 943-944 (Pa.Super. 2011)
(citations omitted), appeal dismissed, 54 A.3d 22 (Pa. 2012).
We first review appellant’s contention that the Commonwealth failed to
prove that he sold heroin directly to Crone. Section 2506 of the Crimes
Code provides, in relevant part:
A person commits a felony of the first degree if the
person intentionally . . . delivers, . . . sells or
distributes any controlled substance . . . in violation
of . . . The Controlled Substance, Drug, Device and
Cosmetic Act, and another person dies as a result of
using the substance.
18 Pa.C.S.A. § 2506(a).
Appellant’s entire argument is as follows:
The evidence at trial, taken as true in the light most
favorable to the verdict winner, shows that Mr. Iberl
arranged a drug deal, procured money before
meeting [a]ppellant, handed the money to
[a]ppellant and [a]ppellant gave the heroin to him.
At no time was Mr. Crone involved in the discussion,
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arrangement or transaction regarding drugs.
Mr. Iberl did not die after having said drug dispensed
to him. Therefore, the evidence is not sufficient to
support a conviction.
Appellant’s brief at 11.
This case is analogous to Commonwealth v. Storey, 167 A.3d 750
(Pa.Super. 2017). In Storey, the defendant intentionally sold heroin to an
individual, who subsequently gave the heroin to the decedent. Id. at 758.
The court found that the evidence established that the heroin that the
defendant sold ultimately caused the death of the decedent. Id. The court
held that the Commonwealth need only prove beyond a reasonable doubt
that the defendant “(i) intentionally sold a controlled substance, and (ii) the
death of another person resulted from this sale.” Id. citing 18 Pa.C.S.A.
§ 2506(a). The statute does not mandate that the Commonwealth prove
that the defendant sold a controlled substance to the person whose death
results from the sale. Storey, 167 A.3d at 757-758.
Turning to appellant’s second sufficiency issue, appellant argues that
the Commonwealth failed to establish that the heroin appellant sold to Iberl
caused Crone’s death. Specifically, appellant relies on the fact that Crone
was alive after “ingesting the remaining heroin that allegedly came from
[a]ppellant.” (Appellant’s brief at 12-13.) Put another way, appellant is
relying on the fact that Iberl’s testimony reveals that Crone’s heroin usage
did not instantly result in his death.
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In his brief, appellant explicitly admits intentionally selling heroin to
Iberl. (See appellant’s brief at 11, supra.) As stated above, it is of no
relevance that appellant did not sell the heroin directly to Crone. The record
also reflects that Crone died of heroin toxicity. The Commonwealth
presented evidence from Dr. Rameen Starling-Roney, a forensic pathologist,
who opined that Crone’s cause of death was heroin toxicity. (Notes of
testimony, 3/15/17 at 194.) Dr. Starling-Roney also testified that a heroin
overdose may not immediately cause death—rather, an individual could die
from an overdose within “minutes to hours.” (Id. at 201.)
We therefore find, after viewing the evidence in the light most
favorable to the Commonwealth, that the Commonwealth sufficiently
established beyond a reasonable doubt that appellant ultimately provided
the heroin that caused Crone’s death. Accordingly, appellant’s first two
issues are without merit.
In his third and final issue, appellant avers that Section 2506 is
unconstitutionally vague “because it creates a strict liability for actions
negating mens re [sic],” and in so doing, violates the Fourteenth
Amendment of the United States Constitution and Article I, Section 9 of the
Pennsylvania Constitution. (Appellant’s brief at 14.)
Here, appellant makes an incoherent argument stating that the
“reasoning, dicta and holding in [this court’s decision in Commonwealth v.]
Kakhankham[, 132 A.3d 986 (Pa.Super. 2015), appeal denied, 138 A.3d
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4 (Pa. 2016),] is the precise reasoning necessary for [this panel] to rule that
there is vagueness and violation of due process in the statute as written.”
(Appellant’s brief at 18.) Appellant fails to distinguish this case from
Kakhankham, which rejected the precise constitutional arguments
presented herein, nor does he cite to any authority from either the Supreme
Court of Pennsylvania or the Supreme Court of the United States reversing
our holding in Kakhankham. Instead, appellant forwards an irrelevant
argument about a defendant’s mens rea and liability within the context of
simple assault. (See appellant’s brief at 18-19.)
“It is beyond the power of a Superior Court panel to overrule a prior
decision of the Superior Court, except in circumstances where intervening
authority by our Supreme Court calls into question a previous decision of
this Court.” Commonwealth v. Hilliard, 172 A.3d 5, 10 n.8 (Pa.Super.
2017), quoting Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa.Super.
2006) (internal citations omitted). Accordingly, our precedent in
Kakhankham is binding on this court, and appellant’s third issue is without
merit.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2018
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