Commonwealth v. LudwigCommonwealth v. Ludwig
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- Before:
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Lead Opinion
This appeal presents a constitutional challenge to a criminal statute,
The facts underlying this appeal are not in dispute. On the evening of May 17, 2001, fifteen-year-old Brandy French (Brandy), eighteen-year-old Paula Wilson (Paula), and seventeen-year-old Michelle Maranuk (Michelle) discussed with one another their desire to consume the drug Ecstasy at an all-day concert that they would be attending the following day. After the conversation, Michelle contacted a recent acquaintance, nineteen-year-old Ludwig, and informed him that she was interested in purchasing Ecstasy for herself and two of her friends. Ludwig replied that he would be willing to sell Michelle three Ecstasy pills at a price of $20 a pill and offered to meet her at the local Dairy Queen later that evening. Michelle relayed that information to Brandy and Paula, and the girls then arranged for Paula’s boyfriend, Robert Sontag, to drive them to the Dairy Queen to meet Ludwig.
Upon arriving at the Dairy Queen, Ludwig entered the girls’ car, and the entire group took a short drive. During the drive, Michelle took $20 from Paula and Brandy and handed Ludwig $60. In return, Ludwig supplied Michelle with three tablets of white double-stacked Mitsubishi Ecstasy.2 Michelle kept all of the pills until the next day.
At approximately 4:00 p.m. the following afternoon, the three girls met in the ladies’ room at the concert to take the Ecstasy.
Soon after consuming the second half of her pill, Brandy began to vomit. She also complained of a severe headache and became sluggish. After discussing the situation with some other friends they had met at the concert, Michelle, Paula, and their friends decided that they would take Brandy to the home of Lewis Hopkins (Lewis), a friend of Michelle’s cousin, whom they had met at the concert.
Upon arriving at Lewis’ home, the group carried Brandy, who was by that time semi-conscious, into the house and put her in a bed. The group then left Brandy in the bedroom and went to another part of the house. Lewis’ mother, who was home at the time, inquired into Brandy’s condition, but was told only that Brandy had been drinking at the concert and had become ill.
At approximately 9:30 p.m., Brandy began to have difficulty breathing. Although it was suggested that someone call an ambulance, an ambulance was not called because Brandy’s breathing seemed to return to normal and Lewis’ mother objected to an ambulance coming to her home for fear that it would tarnish her reputation. More than an hour later, however, Paula noticed that Brandy again was having difficulty breathing. Realizing that Brandy needed immediate medical attention, Michelle, Paula, and Lewis decided to take Brandy to a hospital. Brandy, however, stopped breathing when the group reached Lewis’ driveway. At that point, Lewis’ mother telephoned 911. After their arrival, police and paramedics took Brandy to a hospital. Subsequently, on May 20, 2001, Brandy died; an autopsy determined that Brandy’s death was due to an overdose of Ecstasy.
As a result of these events, the Allegheny County Coroner’s Office held an Open Inquest into Brandy’s death. In August of 2001, the Coroner’s office ultimately recommended that the District Attorney file charges of murder against Ludwig and Michelle. Subsequently, Ludwig was charged with one count of drug delivery resulting in death pursuant to
On November 7, 2001, Ludwig filed a Petition for Writ of Habeas Corpus with the Court of Common Pleas of Allegheny County, arguing that
Specifically, in holding
The Commonwealth appealed the trial court’s decision to our Court which has jurisdiction pursuant to
As a threshold matter, a statute is presumed to be constitutional and will only be invalidated as unconstitutional if it “clearly, palpably, and plainly violates constitutional rights.” Commonwealth v. MacPherson, 561 Pa. 571, 752 A.2d 384, 388 (2000) (citation omitted). Related thereto, courts have the duty to avoid constitutional difficulties, if possible, by construing statutes in a constitutional manner. Harrington v. Dept. of Transportation, Bureau of Driver Licensing, 563 Pa. 565, 763 A.2d 386, 393 (2000); see also
Turning to the constitutional challenge raised in this appeal, as a general proposition, statutory limitations on our individual freedoms are reviewed by courts for substantive authority and content, in addition to definiteness or adequacy of expression. See, Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). A statute may be deemed to be unconstitutionally vague if it fails in its definiteness or adequacy of statutory expression. This void-for-vagueness doctrine, as it is known, implicates due process notions that a statute must provide reasonable standards by which a person may gauge his future conduct, i.e., notice and warning. Smith v. Goguen, 415 U.S. 566, 572, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974); Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244, 246 (1976).6
In considering these requirements, both High Courts have looked to certain factors to discern whether a certain statute is impermissibly vague. For the most part, the Courts have looked at the statutory language itself, and have interpreted that language, to resolve the question of vagueness. See Kolender, 461 U.S. at 358, 103 S.Ct. 1855; Mayfield, 832 A.2d at 422; Commonwealth v. Cotto, 562 Pa. 32, 753 A.2d 217, 220 (2000). In doing so, however, our Court has cautioned that a statute “is not to be tested against paradigms of legislative draftsmanship,” Heinbaugh, 354 A.2d at 246, and thus, will not be declared unconstitutionally vague simply because the Legislature could have “chosen ‘clear and more precise language’ ....” Id. (citation omitted). The Courts have also looked to the legislative history and the purpose in enacting a statute in attempting to discern the constitutionality of the statute. See United States Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carders, 413 U.S. 548, 570-575, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Cotto, 753 A.2d at 221. Consistent with our prior decisions, as well as United States Supreme Court case law, we will first consider the statutory language employed by the General Assembly in determining whether
(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 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
While the statute proscribes that one who delivers drugs that result in death commits murder of the third degree, it contains no express element of culpability that is to be applied.
Ludwig argues that the trial court properly reasoned that the statute is unconstitutionally vague because it fails to define with requisite definiteness the mental state required for criminal liability. According to Ludwig, this lack of a clear standard leads to a risk of arbitrary governmental action. Conversely, the Commonwealth takes the position, employing a statutory construction approach, that by declaring a violation of
In considering the parties’ respective arguments, we must keep in mind the rules of statutory construction. Specifically, the polestar of statutory construction is the intent of the General Assembly.
Employing these principles, we agree with the Attorney General that while
The statutory default provision offers that unless prescribed by law, culpability is established if a person acts, inter alia, at least recklessly:
(c) Culpability required unless otherwise provided.-When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly or recklessly with respect thereto.
Upon review of the statute, it becomes clear that the General Assembly supplied triggering language in the Crimes Code’s default culpability provision, i.e., that the default culpability of “intentionally, knowingly or recklessly” is applicable only where culpability “is not prescribed by law.”
Specifically, delivery of a drug resulting in death is expressly defined by the Legislature as murder of the third degree. The law is clear and well-settled regarding the mens rea for third degree murder. As noted by the Commonwealth, we have consistently prescribed the culpability required for third degree murder to be malice. See, e.g., McGuire, 409 A.2d at 315-16 (holding that under the new Crimes Code, the offense of third degree murder incorporates common law malice as an element). Indeed, malice aforethought is the essential distinguishing factor between murder and manslaughter in Pennsylvania. John Burkoff, Criminal Offenses and Defenses in Pennsylvania 267(4th ed. 2001). Likewise, other language in the Crimes Code also makes evident that malice is the appropriate
Therefore, by expressly defining the crime of Drug delivery resulting in death in the clear and unambiguous words of “murder of the third degree,” coupled with our case law and statutory language designating the proper mental state for third degree murder as malice, the Legislature made it plain that malice is the requisite mens rea for a violation of
Based upon the above analysis, we conclude that
Resolution of this issue, however, does not end our inquiry. The trial court also found that even if it were to conclude that
To detain an individual who has been charged with a crime for trial on that offense, the Commonwealth must prove at a preliminary hearing a prima facie case of guilt against the accused. See
In determining whether malice has been established, our Court has utilized the traditional definition of that mental state set forth in Commonwealth v. Drum, 58 Pa. 9 (1868). That seminal definition makes clear that malice aforethought requires a unique state or frame of mind characterized by wickedness,
Malice is a legal term, implying much more [than ill-will, spite, or a grudge]. It comprehends not only a particular ill-will, but every case where there is wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty, although a particular person may not be intended to be injured. Murder, therefore, at common law embraces cases where no intent to kill existed, but where the state or frame of mind termed malice, in its legal sense, prevailed.
Id. at 15.
Malice has been characterized as exhibiting an “extreme indifference to human life,” Commonwealth v. Gardner, 490 Pa. 421, 416 A.2d 1007, 1008 (1980) (emphasis supplied), and “may be found to exist not only in an intentional killing, but also in an unintentional homicide where the perpetrator ‘consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm.’ ” Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230, 232 (1981) (quoting Commonwealth v. Hare, 486 Pa. 123, 404 A.2d 388, 391 (1979)) (emphasis supplied).
Indeed, our Court has stated that an inference of malice is not supported even by evidence which demonstrates that a defendant acted out of anger and rage; in such a case, voluntary manslaughter, not murder, is established. McGuire, 409 A.2d at 317. Thus, the mental state of malice aforethought is significantly more than mere carelessness or neglect, or the disregard of a chance or possibility of death, and it is this special frame of mind that is required to obtain a conviction under
Turning to whether the Commonwealth met its prima facie case of malice in light of the above-stated definition and the facts before us, we emphasize that to satisfy the burden of setting forth a prima facie case, the Commonwealth is not required to prove its case beyond a reasonable doubt; it must, however, set forth evidence of the existence of each element of the crime. The absence of evidence as to the existence of a material element, however, is fatal. Commonwealth v. Wojdak, 502 Pa. 359, 466 A.2d 991, 996-97 (1983).
Although not set forth separately, in sum, the Commonwealth relies on five factors that it considers to be relevant regarding the malice inquiry, and that it believes leads to the conclusion that it established a prima facie case of malice: (1) supplying another with an illegal and dangerous substance of unknown quality; (2) lack of knowledge of the recipient’s reaction or tolerance to the drug; (3) the age of the recipients; (4) providing a drug in an amount twice its “normal” dosage; and (5) motivation by profit. We will address each of these contentions seriatim.
First, we find that supplying an illegal and potentially dangerous substance of unknown quality to another does not in and of itself support a finding of malice. Most drugs, even prescription drugs that are used illegally, may potentially harm. Thus, as an indication of wickedness, ill-will, cruelty, and extreme indifference to human life, the legality and mere potential dangerousness of a drug, without more, falls short. More importantly, this factor is objectionable in this context for another reason-while considered as a factor to determine malice, the Commonwealth uses one of the other statutory elements (delivery of an illegal drug) to establish malice. Using an existing element of the crime to demonstrate a separate element, malice, vitiates malice as an
Finally, even if this factor is relevant with respect to malice, it fails under the facts of this case. There was no evidence that Ecstasy, as objectionable a drug as it is, is an inherently dangerous drug of such toxicity that there was a substantial and “extremely high risk” that one who ingests Ecstasy will die. Young, 431 A.2d at 232.8 While the Commonwealth points to evidence of the possible dangers of consuming Ecstasy, and the lack of standards in manufacturing the drug, the trial court specifically noted that the record was “devoid of evidence” that there was a high probability of death that would result from the ingestion of Ecstasy. Likewise, there was no evidence that in this case the quality of the Ecstasy in question was exceptional. Thus, we find that simply because Ludwig delivered an illegal drug that was potentially harmful to another did not rise to the level of malice.
The Commonwealth’s second factor, regarding the lack of knowledge of a drug recipient’s medical history and tolerance for a drug, fails to support a finding of malice as we believe, at least in the circumstances before us, it is unreasonable to conclude that not knowing a recipient’s tolerance or possible reaction to a drug establishes the requisite wickedness, cruelty, recklessness, and disregard of social duty required for malice. Perhaps more importantly, this factor improperly turns the malice inquiry away from its traditional focus on the state of mind of the defendant based on the facts known to him, and instead alters the inquiry to center on the unknown status of the victim.
The third and fourth factors pointed to by the Commonwealth as establishing malice, providing a substance to another who is under the age of eighteen years of age and providing a double dosage of the drug, also does not establish the hardness of heart or even recklessness required for malice. First, it is important to note that Ludwig was a teenager, as were all of the other girls who ingested the drug. Moreover, the parties’ actions demonstrate that all involved had a common understanding of the nature of the transaction and that the girls in fact sought out the transaction. Furthermore, in its discussion of these factors, and in particular, the furnishing of a double dose of the drug, the Commonwealth ignores that all parties involved were aware that the amount given to the victim was double the “normal” dosage. The uncontradicted evidence establishes that the recipients were cautioned by their friend to take only one half of a pill. In fact, the pills initially were split in half. Yet with knowledge of the dosage and initially taking a half pill, the girls eventually took the whole double dose. We conclude that simply because the girls chose to take a double dose of Ecstasy, a dosage against which they were expressly warned, malice was not established as to Ludwig. If there was any evidence that Ludwig had concealed the fact that it was a double dose, or evidence that Ludwig surreptitiously increased the double dose to a triple dose while offering it to the girls in the packaging of a double dose, it at least might be arguable that it is indicative of a wickedness, hardness of
Finally, because one sells illegal drugs to another, rather than shares them with others free of charge, does not in and of itself establish malice. While the Commonwealth makes much of Ludwig’s profit motive, at least in these circumstances, and without something more, we cannot agree that the mere sale of drugs is evidence of the wickedness, hardness of heart, cruelty, and recklessness required for malice aforethought.
Based upon the above analysis, we hold that the Commonwealth did not satisfy its burden of setting forth a prima facie case of malice under
Notes
. This appeal was reassigned to this author.
. “White double stacked Mitsubishi” refers to the fact that the pills were white in color, contained a double dose of Ecstasy, and were “stamped” with the Mitsubishi automobile emblem.
. There is conflicting testimony regarding who possessed the two halves of the pills after Michelle originally provided the pills to the girls. Michelle testified that Paula held on to the remaining halves, and Paula testified that Brandy held on to her half.
. Ludwig was also charged with one count of delivery of a controlled substance, possession with intent to deliver, and possession. Michelle, however, was not charged with any criminal offense.
. Analysis of the constitutionality of a statute, and whether the Commonwealth met its prima facie case under
. Ludwig claims that
. Indeed, the Superior Court has recently come to the same conclusion. Commonwealth v. Nahavandian, 849 A.2d 1221 (Pa.Super.Ct.2004).
. In Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973), we determined that the Commonwealth had failed to establish malice where the drag at issue was heroin. “Initially, although we recognize heroin is truly a dangerous drug, we also recognize that the injection of heroin into the body does not generally cause death.” Bowden, 309 A.2d at 718 (emphasis supplied); see also Commonwealth v. Parker, 458 Pa. 381, 327 A.2d 128, 130 (1974).
. The trial court also found that the application of
Concurrence Opinion
concurring.
I agree with the Majority that
Finally, because one sells drugs to another, rather than shares them with others free of charge, does not in and of itself establish malice. While the Commonwealth makes much of Ludwig’s profit motive, at least in these circumstances, and without something more, we cannot agree that the mere sale of drugs is evidence of the wickedness, hardness of heart, cruelty, and recklessness required for malice aforethought.
Commonwealth v. Ludwig, 583 Pa. 6, 25, 874 A.2d 623, 634 (2005) (emphasis in original). I agree that an interest in making money by selling illegal drugs, without more, is not sufficient to establish that the seller “consciously disregarded an unjustified and extremely high risk that his actions might cause death or serious bodily harm.” Commonwealth v. Young, 494 Pa. 224, 431 A.2d 230, 232 (1981) (defining malice). However, unlike the Majority, I
Except for my position regarding the sale of drugs as a factor in determining malice, I join the Majority Opinion in all other respects.
Dissenting Opinion
dissenting.
I agree with the majority that
As the majority concedes,
(c) Culpability required unless otherwise provided.— When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts intentionally, knowingly or recklessly with respect thereto.
While the majority rejects the application of the default culpability provision and instead concludes that
According to the Crimes Code, “[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.”
Ludwig was undoubtedly aware that Ecstasy is an illegal drug, unregulated by the government for any use, and that serious, sometimes fatal, reactions can result from the consumption of such a drug.4 Nevertheless, despite the illegal and dangerous nature of the drug, Ludwig supplied Brandy, a minor, with an Ecstasy pill containing twice the normal dosage. In addition, Ludwig gave Brandy the pill without knowing the purity or adulterated nature of the drug, how Brandy would react to the drug, or Brandy’s tolerance to the drug.5 In my view, this evidence, particularly when considered in a light most favorable to the Commonwealth, is more than sufficient to show that Ludwig disregarded a substantial and unjustifiable risk that the direct result of his behavior would be that Brandy could die from an adverse reaction to the Ecstasy pill.6 See Commonwealth v. Huggins, 575 Pa. 395, 836 A.2d 862, 869-71 (2003) (Commonwealth sufficiently proved a prima facie case of involuntary manslaughter against appellee where evidence showed that appellee acted recklessly by allowing himself to fall asleep when he was driving a van filled over-capacity with children unsecured by seat belts); Commonwealth v. Comer, 552 Pa. 527, 716 A.2d 593, 597 (1998) (evidence showed that appellee acted with degree of recklessness contemplated by involuntary manslaughter statute when he drank four or five beers, took muscle relaxer pills, and then drove at an excessive rate of speed). Thus, as I would find that
. “Absolute criminal liability statutes are an exception to the centuries old philosophy of criminal law that imposed criminal responsibility only for an ‘act coupled with moral culpability.’ ” Commonwealth v. Parmar, 551 Pa. 318, 710 A.2d 1083, 1089 (1998) (citations omitted). Thus, the General Assembly enacts strict liability offenses only in limited circumstances, such as for public welfare offenses, which “do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals.” Morissette v. U.S., 342 U.S. 246, 255, 72 S.Ct. 240, 96 L.Ed. 288 (1952); see also Appeal of DaPra, 425 Pa. 94, 227 A.2d 491, 494 (1967). “[TJhese offenses are not in the nature of positive aggressions or invasions, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty.” Morissette, 342 U.S. at 255, 72 S.Ct. 240. Furthermore, “violations of such [offenses] result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize.” Id. at 255-56, 72 S.Ct. 240. Another characteristic of these offenses is that they tend to impose relatively small penalties and conviction “does not grave[ly] damage . . . an offender’s reputation.” Id.) see also
. Notably, the trial court also found that
. Indeed, I note that if the elements of the offense of third-degree murder were automatically bootstrapped into any separate offense classified as a type of third-degree murder, there would be no need to separately create such an offense because the conduct qualifying as third-degree murder under the separate offense would also constitute third-degree murder under the general offense of third-degree murder. Thus, the separate third-degree murder offense would simply be superfluous.
. Dr. Frederick W. Fochtman, the director and chief toxicologist in the Forensic Laboratory Division of the Allegheny County Coroner’s Office, explained during the Open Inquest that Ecstasy pills are illicitly manufactured, meaning “that they are not being manufactured under any standards of good laboratory practice or good manufacturing practice.” R.R. at 72a; see also id. at 292a (testimony from Andrew Petyak, special agent of Drug Enforcement Administration, that Ecstasy is produced under very unsanitized conditions). Dr. Fochtman further testified that because these drugs are produced in such a manner, some pills might contain double or triple the quantity of Ecstasy that another pill might contain and some pills may also include other drugs besides Ecstasy. See id. at 72a, 80a. In explaining the effects of Ecstasy, Dr. Fochtman stated that “when the drug increases in concentration, then it will produce anxiety, agitation, it could provide-it could produce convulsions or seizures, it can cause a dystonia, where the person’s muscles become very firm and very rigid, and it also could cause a CNS depressant effect, which would depress the respirations, and in addition to that, it can have an arrhythmic effect, or cause the heart to beat irregularly.” Id. at 81a. According to Dr. Fochtman, there are multiple ways that death can result from these effects of the drug. See id. at 82a.
. Any assertion by Ludwig that he was unaware that someone other than Michelle would ultimately consume the drug loses any potential viability when viewed in light of the Commonwealth’s evidence that Michelle informed Ludwig that she was purchasing two pills for her friends, and that those friends were present when Ludwig sold the pills to Michelle.
. Clearly, this risk was one that a reasonable person would have avoided if placed in Ludwig‘s situation.