Liability for drug delivery resulting in death where delivery of drugs occurred out of state but death occurred in Pennsylvania

Commonwealth v. Peck, 202 A.3d 739 (Pa. Super. 2019), allocatur granted Sept. 24, 2019, appeal docket 75 MAP 2019

The Pennsylvania Supreme Court granted allocatur to consider questions relating to whether a drug delivery that occurred out of state resulting in a death in Pennsylvania may be a basis for a drug delivery resulting in death (DDRD) conviction.

Decedent Kevin Hunt lived with his father in York, Pennsylvania.  His long-time friend, Mitchell Gregory Peck, Jr. made plans via text message to meet Hunt in Maryland at a convenience store near the Pennsylvania border. While in Maryland, Peck sold Hunt heroin and continued to converse via text messages after the sale. After Hunt expressed concern about the quality of the drug, the Appellant informed Hunt that the quality was “off the brick, purest of pure” and that he should “try it.” Slip Op. at 2. Hunt subsequently tried the heroin and messaged the Appellant to compliment and thank Appellant for the delivery. The next evening on his return from work Hunt’s father found Hunt deceased in his bedroom and the police found heroin and the phone with the text messages between Hunt and Peck.

Peck was charged with delivery of heroin and DDRD. The trial court dropped the delivery of heroin charge based on a lack of subject matter jurisdiction over the alleged crime that took place in Maryland. A jury found Peck guilty of the DDRD charge. The trial court denied Peck’s post-sentence motions and Peck appealed to Superior Court.

The Superior Court affirmed the trial court, finding that the evidence was sufficient to find Peck guilty of DDRD even though the delivery occurred in Maryland, reasoning that:

Instantly, Appellant has not demonstrated that the elements of Section 2506 [of the Pennsylvania Crimes Code, which relates to homicide,] preclude a conviction for drug delivery resulting in death where the drug delivery occurred outside of Pennsylvania. Section 102 [of the Pennsylvania Crimes Code, which relates to territorial applicability,] clearly establishes that acts occurring outside of Pennsylvania may be subject to criminal prosecution in Pennsylvania, particularly when a death occurs within Pennsylvania. See 18 Pa.C.S. § 102(c). Contrary to Appellant’s assertion, an analysis of Section 102 is critical to determine whether (1) the trial court properly exercised subject matter jurisdiction to convict him of an offense under section 2506, [citation omitted] and (2) the evidence presented was sufficient to sustain the conviction based on Decedent’s death in Pennsylvania.

Here, the Commonwealth presented evidence that (1) although the conduct, i.e., the delivery, occurred in Maryland, it was a violation of Pennsylvania’s CSDDCA, (2) a death resulted from the delivery, and (3) Appellant acted recklessly when causing Hunt’s death. [Citation omitted]. Therefore, even if the trial court lacked jurisdiction to convict Appellant of the delivery under Section 102, the Commonwealth still established the sufficiency of the evidence of a drug delivery resulting in death. [Citation omitted]. Accordingly, we find no merit to Appellant’s sufficiency of the evidence challenge based solely on the fact that the predicate drug delivery occurred outside Pennsylvania.

Slip Op. at 7-8.

The Supreme Court granted allocatur to review the following:

(1) Where the drug delivery resulting in death (“DDRD”) statute explicitly applies only to deliveries occurring “in violation of section 13(a)(14) or (30) of” the Controlled Substance, Drug, Device and Cosmetic Act (“The Act”), is violation of the Act an essential element of DDRD?

(2) Where a drug delivery occurs wholly in another state, can that delivery violate the Act, which explicitly applies only to deliveries occurring “within the Commonwealth?”

(3) If a violation of the Act is an element of DDRD and an out-of-state delivery does not violate the Act, did the Superior Court err in affirming [Petitioner’s] DDRD conviction based on a delivery occurring wholly in Maryland?

Allocatur grants present an excellent opportunity for your group or association to advance your legal and policy goals by filing an amicus brief. Participating as an amicus has proven to be an effective method of advising and influencing courts and often can involve far fewer resources than traditional lobbying.

If you are interested or would like more information, contact Kevin McKeon or Dennis Whitaker.