J-S49043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
DEMETRIUS HOUSER
Appellant No. 208 WDA 2017
Appeal from the Judgment of Sentence January 6, 2017
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0001621-2015
BEFORE: DUBOW, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED: November 13, 2017
Appellant, Demetrius Houser, appeals from the judgment of sentence
entered in the Westmoreland County Court of Common Pleas following his
jury trial convictions for drug delivery resulting in death,1 intentionally
possessing a controlled substance,2 possession with intent to deliver a
controlled substance,3 delivery of a controlled substance,4 and criminal use
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 2506(a).
2 35 P.S. § 780-113(a)(16).
3 35 P.S. § 780-113(a)(30).
4 35 P.S. § 780-113(a)(30).
J-S49043-17
of a communication facility.5 He argues that the evidence was insufficient to
support his conviction. We affirm.
We adopt the facts and procedural history set forth by the trial court’s
opinion. See Trial Ct. Op., 3/16/17, at 1-5. Following Appellant’s conviction
of the above referenced charges, the trial court sentenced him to a term of
five to twenty years’ imprisonment based upon his conviction for drug
delivery resulting in death, with all other counts merging for sentencing
purposes. Appellant timely appealed, and both Appellant and the trial court
complied with Pa.R.A.P. 1925(b).
Instantly, Appellant raises the following issue for review:
I. Whether the jury’s verdict of guilty at all counts was
rendered with sufficient evidence to sustain a conviction?
Appellant’s Brief at 5.
When evaluating a challenge to the sufficiency of the evidence:
[W]e view the evidence in the light most favorable to the
Commonwealth together with all reasonable inferences
from that evidence, and determine whether the trier of fact
could have found that every element of the crimes charged
was established beyond a reasonable doubt.
Commonwealth v. Walker, 836 A.2d 999, 1000 n.3 (Pa. Super. 2003)
(citations omitted).
Appellant argues that the evidence present at trial failed to establish
that the victim died due to ingesting drugs he supplied. To that end,
5 18 Pa.C.S. § 7512(a).
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J-S49043-17
Appellant avers that the Commonwealth failed to thoroughly investigate the
victim’s home and eliminate the possibility that the victim died due to drugs
he supplied. No relief is due.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Christopher
A. Feliciani, we conclude the trial court’s opinion comprehensively discusses
and properly disposes of the issue presented. See Trial Ct. Op. at 5-9
(finding that the evidence was sufficient to sustain Appellant’s convictions
where testimony and phone records supported the contention that Appellant
sold the drugs in question that resulted in the death of the victim).
Accordingly, we affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/13/2017
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Circulated 10/18/2017 11:43 AM
IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTYt
PENNSYLVANIA - CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA )
)
vs. ) No. 1621 C 2015
)
DEMETRIUS HOUSER, )
Defendant. )
OPINION AND ORDER OF COURT
ISSUED PURSUANT TO PA.R.A.P. RULE 1925(A)
The defendant, Demetrius Houser, appeals from the judgment of sentence entered
January 6, 2017, wherein he was sentenced to five (5) to twenty (20) years at the Department of
Corrections and related terms, costs, and conditions. This Opinion is issued in compliance with
Pa.R.A.P. Rule 1925.
FACTUAL HISTORY
The charges in this case arose from the death of 31-year-old Christina Racioppo on
January 23, 2014, in Lower Burrell, Westmoreland County. The evidence presented at trial
established that on January 23, 2014, Ms. Racioppo was found deceased in the master bathroom
of her home as a result of a drug overdose. During trial, Dr. Cyril Wecht, who was admitted as
an expert in forensic pathology, testified that in his opinion, Ms. Racioppo died as a result of the
combined toxic effect of fentanyl and morphine in her system. (Trial Transcript "TT" 10/3/16-
10/7/16 at 408.)
At trial, Detective Hugh Shearer, who was admitted as an expert in crime scene
processing, testified that on January 23, 2014, he was dispatched to Ms. Racioppo's residence in
Lower Burrell regarding a suspected overdose. Id. at 272. Upon arrival, Detective Shearer
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spoke with Lower Burrell Police Department Detectives Robert Galvanek and Scott Cardenas.
Id. at 276. Detective Galvanek testified that he applied for a search warrant of the decedent's
home. Id. at 597. After the search wan-ant was obtained, Detective Shearer and Detective
Cardenas testified that they began their investigation of the house. Id. at 282, 344. The
detectives testified that they located Ms. Racioppo's body in the master bedroom. Id. at 284,
347. Through their investigation, the detectives located cloth belts in the master bathroom and
syringes, silver spoons, and an empty stamp bag marked "Theraflu" in a drawer in the master
bedroom. Id. at 304-310, 349-353. Prior to trial, the parties stipulated to the admission of the
Pennsylvania State Police Crime Lab Test results, which revealed that the stamp bag was
positive for heroin and fentanyl. See Commonwealth's Exhibit 36.
During trial, Derek Miller testified that he was dating and living with Ms. Racioppo at the
time of her death. Id. at 175. Mr. Miller indicated that both he and Ms. Racioppo used heroin
together and their preferred method was through injection. Id. at 176-179. Mr. Miller testified
that on January 21, 2014, he contacted his friend Kristy Guzzi through text message and
requested heroin. Id. at 183-185. Mr. Miller testified that he met with Ms. Guzzi and gave her
money for the drugs. Id. at 186-188. Mr. Miller testified that after leaving and coming back,
Ms. Guzzi gave him stamp bags marked Theraflu, and he and Ms. Racioppo split up the drugs.
Id. On the next day, January 22, 2014, Mr. Miller testified that he reached out to Ms. Guzzi once
more requesting Theraflu and he and Ms. Racioppo met Ms. Guzzi, paid her money, and when
she returned, they received 9 stamp bags ofTheraflu. Id. at 196-200. Mr. Miller testified that he
and Ms. Racioppo then went back to Ms. Racioppo's home and used some of the Theraflu
throughout the evening. Id. at 202.
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Mr. Miller testified that he and Ms. Racioppo went to sleep at approximately 2:00-3 :00
a.m. on January 23, 2014, and he woke up at approximately 8:00 a.m. to find Ms. Racioppo
unconscious in the bathroom due to an overdose. Id. at 204-205. Mr. Miller indicted that he
called 911 thirty seconds after finding Ms. Racioppo. Id. at 208. When the police arrived, Mr.
Miller first testified that he told them Ms. Racioppo got the Theraflu from a guy named "T." Id.
at 210. Later, when confronted, Mr. Miller indicated that he got the drugs from Ms. Guzzi. Id.
at 212. Pursuant to a search warrant, Mr. Miller's phone was seized and the records were
preserved. See Commonwealth's Exhibit 2.
At trial, Ms. Guzzi confirmed that she delivered Theraflu to Mr. Miller on January 21 and
22, 2014. Id. at 448, 471. Ms. Guzzi testified that once she received the money from Mr. Miller,
she went to New Kensington and bought the Theraflu from the defendant, Demetrius Houser,
who she knew as "Young Buck." Id. at 438-439, 464-466. Ms. Guzzi testified that she has seen
Mr. Houser numerous times and knows his face. Id. at 439-443. Ms. Guzzi testified that initially
she told the detectives that she bought the drugs from a person named 'Buku;" however, later,
after the detectives discovered she was lying, Ms. Guzzi told them that she bought the Theraflu
from Mr. Houser, despite not knowing his actual name at that time. Id at 479-484. Ms. Guzzi
provided the detectives with a phone number she used to reach Mr. Houser. Id. As a result of
Ms. Racioppo's death, both Mr. Miller and Ms. Guzzi were also charged with Drug Delivery
Resulting in Death.
Harrison Township Police Department Sergeant Brian Turack testified that he came in
contact with Mr. Houser on April 17, 2014 and found him to be in possession of four cell
phones. Id. at 526-527. Sergeant Turack located one cell phone in Mr. Ho user's right front jean
pocket. Id. at 528. The official number associated with that cell phone matched the number Ms.
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Guzzi provided to the detectives. Id. Detective Galvanek testified that, he spoke with Mr.
Houser on February 26, 2015. Id. at 654. Through his investigation, Detective Galvanek
testified that Mr. Houser indicated that he received a text message on his phone from Michael
Guzzi and Mr. Houser confirmed his phone number, which was identical to the number provided
by Ms. Guzzi and Sergeant Turack. Id. at 656- 7.
After an on the record colloquy, Mr. Houser elected not to testify at trial. Id. at 781-785.
PROCEDURAL HISTORY
On or about April 7, 2015, Mr. Houser was charged with the following offenses:
1. Count One: Drug Delivery Resulting in Death, in violation of 18 Pa.C.S.A. §
2506(a).
2. Count Two: Intentionally Possessing a Controlled Substance by Person Not
Registered, in violation of 35 P.S. 780-113 § (a)(l 6).
3. Count Three: Possession With Intent to Deliver a Controlled Substance, in violation
of 35 P.S. 780-113 (a)(30).
4. Count Four: Delivery of a Controlled Substance, in violation of 35 P .S. 780-113
(a)(30).
5. Count Five: Criminal Use of a Communication Facility, in violation of 18 Pa.C.S.A.
§ 7512(a).
After the preliminary hearing, all above counts were held for court. On October 3- 7,
2016, Mr. Houser proceeded to a jury trial before this Court. During trial, Mr. Houser was
represented by Attorney Brian Aston. On October 7, 2016, the jury returned a verdict of guilty
of all criminal offenses, and sentencing was deferred pending a Pre-Sentence Investigation. On
January 3, 2017, Mr. Houser filed a Motion for Judgment of Acquittal. On January 6, 2017, Mr.
Houser was sentenced at Count One to five (5) to twenty (20) years incarceration at the
Department of Corrections. Counts Two, Three, and Four merged with Count One for purposes
of sentencing. At Count Five, there was no further sentence. Mr. Houser was also given credit
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for time served, and restitution was documented. The Motion for Judgment of Acquittal was
denied on the same day.
On January 30, 2017, Mr. Houser filed a timely Notice of Appeal to the Pennsylvania
Superior Court. On February 15, 2017, this Court ordered Mr. Houser to file a Concise
Statement of Errors Complained of on Appeal. On or about February 24, 2017, Mr. Houser filed
said statement and raised the following issue: (1) Whether the jury's verdict of guilty at all
counts was 'rendered with sufficient evidence to sustain a conviction. This appeal is before the
Pennsylvania Superior Court at 208 WDA 2017.
ISSUES PRESENTED ON APPEAL
I. WHETHER THE JURY'S VERDICT OF GUILTY AT ALL COUNTS WAS
RENDERED WITH SUFFICIENT EVIDENCE TO SUSTAIN A CONVICTION.
Mr. Rouser's sole allegation of error asserts that the jury's verdict of guilty at all counts
in the above-referenced case was rendered without sufficient evidence to sustain a conviction.
"To evaluate [a] sufficiency of evidence [ claim J, [ a Court] must view the evidence in the light
most favorable to the Commonwealth as verdict winner, accept as true all the evidence and
reasonable inferences upon which, if believed, the jury could properly have based its verdict, and
determine whether such evidence and inferences are sufficient in law to prove guilt beyond a
reasonable doubt." Commonwealth v. Bundridge, 449 A.2d 681 (Pa. Super. 1982.) "[W]here
there is an insufficiency of evidence determination, the only remedy is the discharge of the
defendant for the crime or crimes charged." Commonwealth v. Vogel, 461 A.2d 604 (Pa. 1983.)
In the present case, Mr. Houser was charged at Count One with Drug Delivery Resulting
in Death, in violation of 18 Pa.C.S.A. § 2506(a). At trial, the Commonwealth alleged that Mr.
Houser delivered drugs to Kristy Guzzi that resulted in the death of Christina Racioppo.
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Title 18, Section 2506(a) states:
(a) Offense definecl.--A person commits [drug delivery resulting in death,] 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)(l 4) 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.
18 Pa.C.S.A. § 2506(a).
At Count Two, Mr. Houser was charged with Intentionally Possessing a
Controlled Substance by Person Not Registered, in violation of 35 P.S. 780-113 §
(a)(l6). At trial, the Commonwealth alleged that Mr. Houser possessed a
combination of heroin and fentanyl.
Title 35, Section 780-113(a)(l 6) states:
(a) The following acts and the causing thereof within the Commonwealth are
hereby prohibited: (16) Knowingly or intentionally possessing a controlled
or counterfeit substance by a person not registered under this act, or a
practitioner not registered or licensed by the appropriate State board,
unless the substance was obtained directly from, or pursuant to, a valid
prescription order or order of a practitioner, or except as otherwise
authorized by this act.
35 P.S. 780-113 § (a)(l6).
At Count Three Mr. Houser was charged with Possession with Intent to Deliver a
Controlled Substance. Here, the Commonwealth alleged that Mr. Houser possessed a
combination of heroin and fentanyl with the specific intent or goal of delivering the item to
another. At Count Four, Mr. Houser was charged with Delivery of a Controlled Substance.
Here, the Commonwealth alleged that Mr. Houser delivered a combination of heroin and
fentanyl, a controlled substance, to Kristy Guzzi by means of delivery.
Title 35, Section 780-l 13(a)(30) states:
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(a) The following acts and the causing thereof within the Commonwealth are
hereby prohibited: (30) Except as authorized by this act, the manufacture,
delivery, or possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, or a practitioner not
registered or licensed by the appropriate State board, or knowingly
creating, delivering or possessing with intent to deliver, a counterfeit
controlled substance.
35 P.S. 780-113 § (a)(30).
Lastly, at Count Five, Mr. Houser was charged with Criminal Use of a Communication
Facility, in violation of 18 Pa.C.S.A. § 7512(a). Here, the Commonwealth alleged that Mr.
Houser used a communication facility, namely a cellular telephone to facilitate, the commission
of the crime of Delivery of a Controlled Substance, which did in fact occur.
Title 18, Section 7512 states:
(a) Offense defined>- A person commits [Criminal use of communication
facility,] a felony of the third degree if that person uses a communication
facility to commit, cause or facilitate the commission or the attempt
thereof of any crime which constitutes a felony under this title or under the
act of April 14, 1972 (P.L.233, No.64), known as The Controlled
Substance, Drug, Device and Cosmetic Act. Every instance where the
communication facility is utilized constitutes a separate offense under this
section.
(b) Penalty.--A person who violates this section shall, upon conviction, be
sentenced to pay a fine of not more than $15,000 or to imprisonment for
not more than seven years, or both.
(c) Definition.--As used in this section, the term "communication facility"
means a public or private instrumentality used or useful in the
transmission of signs, signals, writing, images, sounds, data or intelligence
of any nature transmitted in whole or in part, including, but not limited to,
telephone, wire, radio, electromagnetic, photoelectronic or photo-optical
systems or the mail.
18 Pa.C.S.A. § 7512.
This Court, having reviewed the entire record in this case and viewing the evidence in the
light most favorable to the Commonwealth as the verdict winner, finds that the Commonwealth
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has presented sufficient evidence to permit the jury, as trier of the facts, to find Mr. Houser guilty
of all of the above-referenced charges. Despite defense counsel's contention that the
Commonwealth's case is based upon speculation or conjecture, the Court finds that the
Commonwealth has presented sufficient evidence to establish each element of each offense
charged. At trial, the Commonwealth presented evidence establishing that Ms. Racioppo died
and the cause of her death, as testified to by Dr. Wecht, was the result of the combined toxic
effect of fentanyl and morphine in her system. Detectives Shearer and Cardenas testified that
through their investigation, they located an empty Theraflu stamp bag in a drawer in the master
bedroom just feet away from Ms. Racioppo's body. Prior to trial, the parties stipulated to the
admission of the Pennsylvania State Police Crime Lab Test results, which revealed that the
stamp bag was positive for heroin and fentanyl.
Mr. Miller testified at trial that the two days prior to Ms. Racioppo's death, he contacted
Ms. Guzzi each day by cell phone and requested heroin. Mr. Miller testified, and Ms. Guzzi
confirmed, that Mr. Miller paid Ms. Guzzi for the drugs and Ms. Guzzi left and came back with
heroin stamp bags, identified as Theraflu. On January 22, 2014, one day prior to Ms. Racioppo's
death, Mr. Miller testified that after he received the Theraflu from Ms. Guzzi, he and Ms.
Racioppo split up the drugs and used throughout the evening. Mr. Miller testified that when he
woke up in morning at approximately 8:00 a.m., he found Ms. Racioppo unconscious in the
bathroom from an overdose. Phone records confirmed the conversations between Mr. Miller and
Ms. Guzzi.
Despite initially lying to the detectives, Ms. Guzzi eventually informed the detectives that
she received the Theraflu from Mr. Houser. Although she did not know his name at that time,
Ms. Guzzi provided the detectives with a phone number for Mr. Houser. Sergeant Turack
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testified that he came in contact with Mr. Houser and after obtaining a search warrant, he located
the phone associated with the number in Mr. Rouser's front jean pocket. Detective Galvanek
testified that Mr. Houser confirmed that that was his phone number. Based on all of the evidence
presented, the Court finds that the Commonwealth has presented sufficient evidence for the jury
to find Mr. Houser guilty of Drug Delivery Resulting in Death, Intentionally Possessing a
Controlled Substance by Person Not Registered, Possession With Intent to Deliver a Controlled
Substance, Delivery of a Controlled Substance, and Criminal Use of a Communication Facility.
As such, the Court finds that this claim is without merit.
For the foregoing reasons, the issue raised on appeal is meritless, and the Court enters the
following Order:
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IN THE COURT OF COMMON PLEAS OF WESTMORELAND COUNTY,
PENNSYLVANIA - CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA )
)
vs. ) No. 1621 C 2015
)
DEMETRIUS HOUSER, )
Defendant. )
ORDER OF COURT
AND NOW, to wit, this 15th day of March, 2017, it is hereby ORDERED, ADJUDGED,
and DECREED that the foregoing Opinion shall constitute the Court's brief statement ofreasons
for the January 6, 2017 judgment of sentence pursuant to Pa. R.A.P. 1925.
ATTEST:
Clerk of Courts
c.c. File
Peter Caravello, Esq., Assistant District Attorney
Brian Aston, Esq., Counsel for the Defendant
Pamela Neiderheiser, Esq., Court Administrator's Office
Law Clerk
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