THE SUPERIOR COURT HAS RULED IN COMMONWEALTH v. KAKHANKHAM, NO. 712 MDA 2014 (OCTOBER 28, 2015), THAT THE PENNSYLVANIA STATUTE IS NOT UNCONSTITUTIONALLY VAGUE WHERE APPELLANT INTENTIONALLY PROVIDED HEROIN TO THE VICTIM WHO SUBSEQUENTLY OVERDOSED ON THAT SAME HEROIN THE FOLLOWING DAY.
During a death investigation due to a heroin overdose, it was learned that Appellant “fronted” victim a bundle of heroin the day before the victim’s death. Eight packets were found next to the victim, two used and six unused.
Appellant was charged with Drug Delivery Resulting in Death which PA law defines as follows: 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, Device and Cosmetic Act, and another person dies as a result of using the substance.
Appellant went to trial, was convicted and sentenced to 78-156 months imprisonment. He appealed from this judgment of sentence.
Appellant claimed the statute at issue is unconstitutionally vague because (1) it fails to clearly indicate the requisite mens rea (mental state) for conviction, and (2) it fails to clearly indicate the requisite level of causation for the result-of- conduct element, thereby leading to arbitrary and discriminatory enforcement of the law.
The Superior Court held that the statute is not unconstitutionally vague in that it clearly indicates the requisite mens rea for conviction and the requisite level of causation of the death of another person.
As to the requisite mental state required for a defendant to be convicted of the statute at issue, the Court concluded that the statute could not be any clearer.
The mental state required for the first element is “intentionally” doing one of the acts described therein, namely, administering, dispensing, delivering, giving, prescribing, selling or distributing any controlled substance or counterfeit controlled substances.
The Court found that the record showed that Appellant intentionally dispensed, delivered, gave or distributed heroin to victim, and that victim died as a result of the heroin. Appellant’s conduct was therefore precisely what the legislature intended to proscribe when it enacted the statute and, accordingly, it is not unconstitutionally vague.
The Appellant next argued that the statute is unconstitutional because it is vague as to the level of causation necessary for guilt.
As to the level of causation required to prove this element of the crime, the Court found that the statute is clear as to the level of causation. It requires a “but-for” test of causation. Additionally, criminal causation requires that “the results of the defendant’s actions cannot be so extraordinarily remote or attenuated that it would be unfair to hold the defendant criminally responsible.”
Lastly, the Court concluded that the mens rea requirement for the second element of Section 2506, i.e. – the death caused by the first element, must be at least “reckless.”
The crimes code states that a “person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.”
Here, it was determined that Appellant “fronted” victim a bundle of heroin. Eight packets were found next to the victim, two used and six unused. The victim died of a heroin overdose. Appellant’s conduct, therefore, satisfied both parts of the causation test. But for Appellant selling victim a bundle of heroin, the victim would not have died of a heroin overdose. And, the victim’s death was a natural or foreseeable consequence of Appellant’s conduct.
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