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Kevin McCarthy

Kevin McCarthy. Assistant District Attorney Allegheny County. Drug Delivery Resulting in Death. Former and Current Law 18 Pa.C.S.A. § 2506. Old Statute. (a) General rule-A person commits murder of the third degree who:

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Kevin McCarthy

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  1. Kevin McCarthy Assistant District Attorney Allegheny County

  2. Drug Delivery Resulting in Death Former and Current Law 18 Pa.C.S.A. § 2506

  3. Old Statute (a) General rule-A person commits murder of the third degree who: • 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 Controlled Substance, Drug, Device and Cosmetic Act, and • another person dies as a result of using the substance.

  4. Old Statute • (b) Mandatory minimum sentence.-A person convicted under subsection (a) shall be sentenced to a mandatory minimum term of imprisonment of five years and a fine of $15,000, or such larger amount as is sufficient to exhaust the assets utilized in and the proceeds from the illegal activity.

  5. Old Statute • (c) Proof of sentencing.-Provisions of this section shall not be an element of the crime … but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. • The applicability of this section shall be determined at sentencing.

  6. Commonwealth v. Highhawk455 Pa.Super 186, 687 A.2d 1123 (1996) Facts: • Defendant brought heroin to the victim’s residence for recreational use. • Defendant injected heroin into the victim, a quadriplegic, at his request. • Shortly thereafter, victim became unresponsive and medical personnel were summoned. • Victim later died at the hospital due to acute heroin toxicity. • Defendant was subsequently arrested and charged with drug delivery resulting in death.

  7. Commonwealth v. Highhawk455 Pa.Super. 186, 687 A.2d 1123 (1996) Held: • 18 Pa.C.S.A. § 2506 defines a substantive crime and sets forth the penalties for a violation of the prohibited conduct.

  8. Commonwealth v. Highhawk Also Held: • In attempting to define third-degree murder to include that conduct which is prohibited by subsection 2506(a), the legislature set forth the elements of the offense therein. • The plain language of subsection (c) prevents these provisions from becoming elements of the crime and renders section 2506 relevant only upon conviction. • As a result of this patent contradiction in section 2506, the statute in question fails to provide fair notice of the prohibited conduct and is, therefore, unable to withstand constitutional scrutiny.

  9. Commonwealth v. Ludwig874 A.2d 623 (2005) • Defendant sold victim and her two friends three pills, each containing a double dose of Ecstasy. • Victim consumed half her pill along with alcohol, but then consumed the remainder. • She then became ill, complaining of a severe headache, was sluggish and began to vomit. • Victim was taken home and put to bed.

  10. Commonwealth v. Ludwig874 A.2d 623 (2005) continued • After victim stopped breathing an hour later, an ambulance was called. • The victim died as a result of the overdose of Ecstasy. • Defendant was charged with one count of drug delivery resulting in death.

  11. Commonwealth v. Ludwig874 A.2d 623 (2005) continued • The trial court found the revised statute unconstitutional on grounds that the mental element was too vaguely defined. • In addition, it further held that the Commonwealth had failed to establish a prima facie case.

  12. Commonwealth v. Ludwig874 A.2d 623 (2005) continued • Pa. Supreme Court reversed, finding that because the Legislature had defined drug delivery resulting in death as murder in the third degree, the mens rea necessary to prove culpability was malice. • Further, the Court held that the Commonwealth failed to establish a prima facie case, to wit, no evidence of malice.

  13. Current Statute (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 Controlled Substance, Drug, Device and Cosmetic Act, and • another person dies as a result of using the substance.

  14. Current Statute • (b) Penalty.--A person convicted under subsection (a) shall be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years. • (c), (e), (d) Deleted. • (f) Forfeiture.--Assets against which a forfeiture petition has been filed and is pending or against which the Commonwealth has indicated an intention to file a forfeiture petition shall not be subject to a fine. Nothing in this section shall prevent a fine from being imposed on assets which have been subject to an unsuccessful forfeiture petition.

  15. Underage Drinking18 Pa.C.S.A. § 6308 (a) Offense defined.--A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages, as defined in section 6310.6.

  16. Underage Drinking 18 Pa.C.S.A. § 6308 The statute provides an exception for persons who seek medical attention for others (f) Exception for person seeking medical attention for another.--A person shall be immune from prosecution for consumption or possession under subsection (a) if he can establish the following:

  17. Underage Drinking18 Pa.C.S.A. § 6308 • The only way law enforcement officers became aware of the person's violation of subsection (a) is because the person placed a 911 call, or a call to campus safety, police or emergency services, in good faith, based on a reasonable belief and reported that another person was in need of immediate medical attention to prevent death or serious injury.

  18. Underage Drinking18 Pa.C.S.A. § 6308(continued) (2) The person reasonably believed he was the first person to make a 911 call or a call to campus safety, police or emergency services, and report that a person needed immediate medical attention to prevent death or serious injury.

  19. Underage Drinking Exceptions (continued) (3) The person provided his own name to the 911 operator or equivalent campus safety, police or emergency officer. (4) The person remained with the person needing medical assistance until emergency health care providers arrived and the need for his presence had ended.

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