*1 subject time of the manufacture of technologically, lighter, Cricket it was n
commercially economically feasible a reason-
to manufacture and distribute lighter.”
ably designed child-resistant manufac- at 11. He stated that the
Id. and distribution a child-resistant
ture “only a nom-
lighter would have entailed
inal additional cost.” Id. Lighters, A.2d at
Phillips v. Cricket Contrary
814. to the trial court’s determi-
nation, Phillips’s evidence was sufficient jury question regarding
create a whether actions indif-
Cricket’s exhibited reckless
ference to the interests of others. On
basis, dismissal we reverse the trial court’s damages. claim for Phillips’s punitive grant Judgment reversed as to the (a) summary judgment on the issues implied of mer- warranty
breach of the (b)
chantability, punitive damages. Pennsylvania,
COMMONWEALTH
Appellee
v.
Anthony MOSS, Appellant. A. Pennsylvania,
Commonwealth
Appellee
v. Q. Austin, Appellant.
Dana Pennsylvania,
Appellee Sullivan, Appellant.
Robert
Superior Pennsylvania. Oct.
Submitted
Filed June
Substance, of a Controlled Possession Substance, and Possession of a Con- De- Substance With Intent to trolled *3 liver, all violations of the Controlled Substance, and Drug Device Cosmetic Act. stipulations
Those are follows: in- Telephone 1. were conversations Turco, Castle, A. for appel- Nick New by the tercepted and recorded authori- lants. ties.
Mary Seiverling, B. Assistant District in all speaker 2. The of these other Commonwealth, Attorney, Harrisburg, for James Johnson was sell- conversations appellee. during time ing illegal substances question. STEVENS, LALLY-GREEN, Before: of 3. of all the defen- Identification *, JJ. and MONTEMURO all record- dants’ voices and other voices LALLY-GREEN, by BY OPINION J.: ed would be established Com- testimony. monwealth’s Moss, Anthony Appellants, A. Dana expert 4. The Commonwealth’s Q. appeal Austin and Robert Sullivan from in the testify the field of narcotics would April judgment of the trial court’s stipu- in the written manner set forth part affirm in sentence. We reverse ex- testimony lated of record as entered judgment of part against sentence hibits. judgment Moss. We reverse the against Appellant of sentence Austin. We 5. submitted reported The crime lab judgment against affirm sentence have regarding Anthony Moss would Appellant Sullivan. only reports that crime lab been trial, would have been submitted
¶2 following The trial court found reports submitted police various facts: testimony would be substance captioned The above defendants each against Defendant Moss. pending motions have before Court packet submitted Constitutionality That each challenging the of the evaluated stipulated shall be they charged, under which are Statute of all other defendants. independent Fa- of a Communications Criminal Use (18 7512), cility and the suf- Pa.C.S.A. will, after exami- 7. That this Court relating ficiency the evidence to each law, issue a verdict nation of facts and agreed to charge. All defendants have of court. order hearing pending on their motions have trial, non-jury joint with a consolidated Robert Sullivan evidence, with the stipulation
held Sullivan, Defendant, the Motions enter decide Robert appropriate.1 verdicts as of Criminal Use charged with two counts Facility upon based also of a 1 The Defendant Moss is Communication conversations, charged Delivery separate with a Controlled two * assigned Superior Court. Supreme Court Justice Retired occurring
one on October clearly referring pur- to his desire to the other on October Each drugs. chase telephone conversation forms the basis further surveillance reveals that separate for each count. surveillance was after conducted I, Relative to Count on October call phone and Johnson was enter- seen telephoned Sullivan Johnson and ing period Sullivan’s home short after stated, “I you need one them when leaving call and a few within get replied, a chance” and Johnson “Al- minutes, which is consistent right, youns I’ll hit up.” stipulated It is type activity that would consistent *4 Shaffer, Agent Bouye Sergeant delivering illegal drugs. someone expert testify [sic] would and/or stipulated supports The the this conversation an inquiry consists of 12, conclusion that on October 2001 and by drugs Sullivan about purchasing from 2001, 13, on telephoned October Sullivan Johnson and a confirmation from John- or Johnson cause facilitate the at- son that he will in get contact with Sulli- tempted delivery unlawful a con- drugs van when he has available for purchase. from This trolled substance Johnson to sell inference is further but- by tressed them. telephone second conver- place sation that 13, took on October
2001 and forms the basis for Count 2. Dana Austin Relative to Count during second Austin, Defendant, The Dana conversation that occurred on October charged with four counts of Criminal 13, 2001, Sullivan called Johnson and Use of a Facility. Communication he stated wants an “eight for me” and upon Count I is based a telephone con- repeated by himself stating “eight versation between Defendant Austin and replied ball”. Johnson by stating, “Ah, 11, 15:48; Johnson on at October alright. You at home?” Sullivan an- upon Count 2 is based a second tele- swered, ‘Tes”, stated, and Johnson “Al- phone occurring conversation that [sic] right. In a stipulation minute.” The on October 17:45. On Octo- provides Shaffer, facts Agent Ser- 16:07, ber 2001 at Johnson tele- geant Bouye an expert would tes- and/or phoned Austin message and left a on tify that this conversation consists of Austin’s answering machine. Count 3 asking purchase Sullivan cocaine in to a telephone relates the amount of conversation be- Johnson, ounce from 1/8 tween Defendant Austin and on informing Johnson Johnson Sullivan that he would come to his October 2001 at 17:48. 4 re- home in minute. Count telephone lates to a conversation occur- Additionally, and in support of the ring between Defendant Austin and I, inference referred to in Count Sulli- Johnson 2001 at 16:25. October inquired van also in this conversation all common thread between why where Johnson has been and he had him, telephone gotten conversations is that Defen- touch with followed by then dants Austin and discussing the conversation Johnson are where Johnson money requested supplying what Austin Johnson with so Try- Sullivan wanted. ing the purchase content of these that Johnson can make a two conversa- together, permissible drugs “Big tions from Lee” from York inference is New thereby that when Johnson states provide illegal drugs on October and to them”, 2001 that “I need one of he Defendant Austin. thereby call, en- from an alternative source phone
In first Defendant Aus- have Austin to sell those to abling tin inform him telephones Johnson to for money money had Johnson after sale that a woman stolen friend illegal from truck. that he those substances. replies his Johnson change.” “needed that Defendant Aus- all Taking contained facts tin that as soon he assures Johnson stipulation together allows infer- it money, bring can he obtain will engaging ence Johnson all of the Johnson. When one considers trafficking of controlled sub- illegal it is intercepted together, conversations Austin is stances that Defendant money clear that Johnson wants Austin’s attempts acquire facilitating the ille- purchase illegal in order to narcotics. gal by providing contraband Johnson made a call on October Johnson funds provide to do [sic] Johnson Bronx, “Big 2001 to Lee” New exchange, so. In Defendant Austin de- purchase of arrange York to for a nar- illegal obtain some of the sub- sires to “Big from Lee.” cotics Austin’s own stances from Johnson for purpose of all of these purposes. conversation oc- The second *5 conversations, are hours which the curring approximately telephone two later counts, 11, subject call of the is Austin’s follow-up by on October 2001 is various delivery attempt illegal to facilitate Johnson to confirm when Defendant by drugs to Johnson Defendant Aus- going “get straight” Austin is to mean- for money tin to Johnson that ing money providing that Austin owes to get conversation, telephone purpose. The third which The use Johnson. 28, attempt at 16:07 each instance to facilitate the occurred on October is activity drug brings acquire illegal where Johnson calls Defendant call inquiring, Defendant conduct within message Austin and leaves a Austin’s provisions of Use of Commu- you get yet?” “Did that Criminal Facility.. nications telephone In fourth conversa- [sic] tion, Defendant Austin calls Johnson Anthony Moss inquires “getting and about some now.” have, Defendant, Moss, Anthony is something “I’ll responds, Johnson ya.” separate with counts of charged for seven Fa- of a Communications Criminal Use occurring In final call on 1, 2, specifically Count Count cility, 16:25, 2001 at Johnson October Count Count Count Count ll[sic] Austin up?” states to Defendant “What’s 1, 2, 6, 7 and all Counts and Count responds, you Austin “Check out later” between confi- relate to conversations grab and sure I’m some soft last “For dential informant and the Defendant night.” pow- for “Soft” is a street term and arrange for sale deliv- Moss cocaine. Austin further states dered ery from illegal controlled substances get that the “soft” “a he was able informant, confidential “Hard is a Moss quicker little than the hard.” only occur. The con- Defendant which did fact street term of crack cocaine. that reached from the that he clusion can be telling Austin is Johnson was telephone stipulation powdered obtain cocaine the able to it, for the arrangements make the he Austin used to night before and once sells did subsequently buys Johnson the mon- controlled provide will able informant Thus, occur between the confidential ey that he him. Defendant owes nothing There is and the Defendant. illegal drugs to obtain Austin was able ambiguous in the content of those tele- Whether 18 Pa.C.S.A. Criminal phone conversations and each conversa- of a is un- Facility Use Communication police reports tion summarized constitutional for overbreadth pertaining to the proceedings against vagueness. Defendant Moss. in- produced Was the evidence at trial respectively Counts and 13 deal on sufficient as matter of law telephone conversations that oc- offense of of a Criminal Use Communi- curred October 2001 and October Facility? cation 26, 2001. In telephone call of Octo- 13, 2001, ber Defendant called Johnson 9; Anthony Brief Moss inquired of whether or not Johnson Austin, Q. of Appellant page Brief Dana no any illegal drugs had asking, to sell original; numbers in Brief of Appellant can you “what do for me?” Johnson’s Sullivan, page origi- Robert no numbers in
reply “Tomorrow.” In the second nal. call, inquires, Moss “Ain’t legislative 4 A enactment “is nothing jumpin’?” which Johnson re- presumed to be constitutional and will plies negatively. states, Moss then boy, “Goddam watcha be declared unconstitutional unless it doin’?” to which replies “just clearly, Johnson waiting he is palpably plainly violates the Expert testimony provides around.” the Constitution.” Commonwealth v. Mockai explanation vague that the short nature tis, (2003). 575 Pa. A.2d of the conversation shows Moss party challenging constitutionality bears “a *6 Johnson deal regu- with each other on a heavy persuasion.” burden of Consti Id. purchase by lar basis in the of Moss tutionality law, a question of a statute of illegal drugs from Johnson and scope therefore of of our review this Johnson is familiar with what Moss is plenary. issue v. Delaware Theodore addition, wants and price. In in the Dist., Valley School 575 Pa. 836 A.2d conversation, expert second testimo- (2003). 76 ny opines that Defendant Moss wants to buy illegal drugs and Johnson not does ¶ 5 Appellants’ argument, first any have but waiting sell on a new unconstitutional, § 18 Pa.C.S.A. 7512 is shipment, by which is confirmed another an of presents impression. issue first Sec telephone conversation between Johnson 7512 provides tion as follows: “Big and Lee” “Big which indicates that will bringing shipment Lee” be ille- of § Criminal use communication of gal drugs to Johnson. facility conversations, In both Defendant telephoned Moss Johnson to facilitate (a) person defined.—A com- Offense attempted of illegal drugs sale from if felony degree mits a the third Johnson to Moss. The tele- use facility person uses communication phone for purpose this is within the commit, or cause facilitate the commis- prohibition of Criminal Use of a Com- attempt any or crime sion thereof Facility. munications felony which constitutes a under 2/14/03, 1-2, Trial Opinion, 12-17. April 1972 title or under the act (P.L. ¶ 64),1 known as the Con- briefs, No. Appellants separate 3 filed each Substance, Drug, of which our Device raises the same issues for trolled Every review: Act. instance where Cosmetic 380 necessarily guess meaning at its must facility is utilized consti-
communication its application.’” under this sec- Common- separate tutes a offense differ Cotto, v. 562 Pa. A.2d 753 tion. wealth (2000), v. Fabio Civil Service quoting, 220 seq. § et 1 35 780-101 P.S. Comm’n, 309, 414 Pa. A.2d (b) Penalty. person who violates —A (1980). punish- if it A overbroad statute conviction, shall, upon
this section
constitutionally protected
conduct.
es
than
a fine of not more
pay
sentenced to
Balog,
Pa.Super.
v.
$15,000 or
for not more
imprisonment
(1996).
480,
wise the culpability sufficiency whether, of evidence viewing —When is sufficient to establish a material element all the evidence admitted trial law, of an is prescribed offense light winner, most favorable to the verdict such element is established if a person there sufficient evidence to enable intentionally, knowingly, acts or reck- fact finder every to find element of the lessly with respect thereto. beyond crime Com reasonable doubt. 302(c). monwealth v. 734 A.2d 406- Thus, § 18 Pa.C.S.A. we conclude Vetrini (Pa.Super.1999). Additionally, it is not that the trial court was in choosing correct appellate role weigh of an court to to read a mens rea requirement into evidence or to our conclude, judgment § substitute for pursuant We further that of the fact Id. express finder. When the 302(c), language of sitting court is- as the finder of it is fact requirement mens rea applies to each ma- presumed that Thus, terial inadmissible evidence element of the offense. disregarded only and that relevant and sustain conviction under 18 Pa.C.S.A. competent Com considered. the Commonwealth must prove Gonzales, monwealth v. 415 Pa.Super. intentionally, that a defendant knowingly, (1992). 609 A.2d or recklessly used communication facili- that, ty, and in so doing, the defendant ¶ Again, presented we are intentionally, knowingly, fa- recklessly or impression issue first the Common- *8 cilitated the attempted commission or com- wealth, inasmuch as no court has reviewed mission of underlying felony. § sufficiency 7512 for of convictions under
¶ 7512, 10 Section construed in of light guidance the evidence. We turn for 302(c), language § of construing is not unconstitu- law case the similar federal 843(b). statute, tionally vague Every § or overbroad. The term 21 fed- U.S.C.A. facility” subject “communication of a sufficiency is the eral court that has of addressed 7512(c). 843(b) § § detailed definition in of The list under has that the evidence held underlying felonies is explicitly proof limited a cannot conviction stand without felonies under beyond Title 18 or Controlled a the under- reasonable doubt that Substance, Drag, lying felony and Cosmetic fact occur. Device did United Iennaco, 394, Act. fail to persons We see how of common States v. 893 F.2d 396 (D.C.Cir.1990), intelligence guess citing, would be forced to at v. United States 382 (6th Cir.1989);
Dotson, 1318, evidence tains sufficient that these tele- 871 F.2d 1321 Johnstone, 539, conversations facilitated the actual United States v. 856 F.2d Mims, (3d Cir.1988); underlying felony. 543 States v. commission of United (8th 1068, Cir.1987); 812 F.2d 1077 United ¶ highly regarded commend the 15 We (11th Russo, States v. 796 F.2d 1463 job analyz- for an admirable trial court Cir.1986); Jefferson, 714 United States v. law open parsing ing questions (7th Cir.1983); F.2d 699 United States confusing agree record. through a We (5th Rey, v. 641 F.2d 224 n. Cir. the trial court Common- Webster, 1981); v. F.2d United States evidence to produced sufficient con- wealth (4th Cir.1981); United States Sullivan, but Appellants Moss and we vict (10th Watson, 594 F.2d 1342-43 Cir. insufficient to conclude that 1979); Steinberg, United States v. against Appellant sustain the conviction Cir.1975). (2d Indeed, F.2d 1126 a bed Austin. rock the American criminal principle of ¶ evidence with We first consider justice system that “the Due Process regard Appellant Robert Sullivan. against protects clause the accused convic engaged in that Sullivan trial court found upon except proof beyond tion reason conversations with several necessary every able fact to con doubt Johnson, drug known dealer. James charged.” a crime he is stitute with which that, shortly found The trial court also Johnstone, 856 F.2d conversations, Johnson after one of these ¶ matter, instant regard 13 With home and entering was seen Sullivan’s conclude, parties apparently we and the do These find- leaving minutes. after few not must dispute, that the Commonwealth transcripts find ings support fact (1) prove beyond a reasonable doubt that: intercepted telephone conversations Appellants knowingly intentionally up stipulated that make police reports (2) facility; Appel- used a communication upon in judge relied evidence that the trial recklessly knowingly, intentionally lants or rendering his verdict. (3) underlying felony; facilitated an ¶ Next, we must determine whether underlying felony law occurred. The to sustain the these were sufficient facts compels of our result. facili- trial court’s conclusion Sullivan Vetrini. Facilitation been defined as has unlawful deliv- attempted tated Johnson’s “any facility communication use begin of a’ We ery controlled substance. makes easier the of the under- commission applies § 7512 it with construction Davis, lying felony.” States v. United express language inchoate offenses. Cir.1991). (10th If un- F.2d 7512(a) of communica- use prohibits occurs, felony derlying Appel- never then attempted facility to facilitate the tions nothing lants have facilitated and cannot felony. underlying of an commission be convicted under require Moreover, § 7512 doés us is than 14 The record before more the one to commit the the defendant be that Appellants sufficient establish *9 felony. underlying a knowingly intentionally used commu- ¶ is attempt tele- The law of well facility nications this case a 18 —in transactions, attempt drug person illicit “A commits an discuss settled. —to when, specific a satisfying thus of the with intent to commit prong inquiry. one crime, any he which constitutes inquiry The focus of our as to each of the act does step the con- commission Appellants will be whether record substantial toward
383 901(a). where evidence crime.” 18 Pa.C.S.A. “The sub- sexual intercourse the step scope showed that the defendant had rented stantial test broadens the room, condoms, liability concentrating purchased motel wine and attempt the bag and traveled to a packed overnight acts defendant has done and does not girl that he knew to meeting point with a longer any remaining focus on the acts to years Zingarelli, be 15 old. 839 A.2d at be before actual done commission Zingarelli, the crime.” Commonwealth v. (Pa.Super.2003), quot- A.2d ¶ evidence, We conclude Gilliam,
ing, Commonwealth 273 Pa.Su- in light when most favorable to viewed (1980). per. A.2d “The winner, as the Commonwealth verdict in actually pro- defendant need not be against to sufficient sustain the conviction cess of the crime order when arrested to Sullivan. The record reflects that Sullivan guilty of attempt.” criminal Id. Deliv- placed telephone conversation to Johnson ery prohibited of a controlled substance is inquiring purchasing drugs, about and that parties under 35 P.S. 780-113. The do agreed A Johnson to make the sale. sur- dispute that the controlled substance report shortly veillance indicates that after at issue instant cocaine. matter intercepted telephone the second conversa- tion, briefly entering was Johnson seen Mills, 19 In Commonwealth v. Thus, home. the case Sullivan’s was (1984), Pa.Super. A.2d the de- Zingarelli, Appellant necessary made the fendant was charged attempt with to de- preparations arranged meeting point liver a controlled substance. The basis for at he complete which and Johnson would charge was that the defendant accom- thereafter, Shortly the illicit transaction. panied an agent undercover and several Appellant’s Johnson home and arrived people other home of a dealer who Appellant allowed him This evi- inside. purportedly methamphetamine would sell dence, in a light viewed most favorable agent. to the The dealer was not at Commonwealth, sufficient estab- home. The defendant indicated that he step lish that took a substantial knew another individual who could deliver toward completing drug transaction. methamphetamine, agent if the could judgment We will affirm the of sentence evening. wait until the Id. at 32. This against Sullivan. Court judgment vacated the of sentence grounds on the the Commonwealth ¶22 We next consider the evi ' produce did not sufficient evidence an dence As with against Appellant Austin. attempted delivery. Id. at Com- Sullivan, the trial court that the concluded produced monwealth no evidence that the record that Austin facilitated established respon- defendant knew dealer or was deliver a attempt Johnson’s controlled directing agent sible for to the dealer’s The trial court concluded that substance. house, and there no evidence as to intercepted telephone each of the several any whether the play sig- defendant would conversations Austin Johnson between Thus, nificant role in Id. the-transaction. plan supplying related to Austin’s John the defendant did not take a substantial money son that Johnson would step delivery of a toward controlled sub- illegal turn use obtain' narcotics stance. record is supply them Austin. The ¶20 however, Zingarelli, any In contem devoid of plated sustained conviction for statu- transaction Austin and attempted between tory involuntary actually sexual assault and deviate Johnson occurred or that either *10 384 solely under 7512 based step viction evi-
Austin or Johnson took substantial drug- in they Appellant engaged completion toward transaction dence light telephone in the most favor- conversations with discussed. Viewed related Commonwealth, drug to the evidence trafficker. The Common- able known merely engaged prove beyond in establishes that Austin wealth must reasonable telephone with fa- drug-related telephone conversations doubt that conversations proof specific drug a known Absent the commission of un- trafficker. cilitated Vetrini; beyond doubt that Austin’s Johnstone. derlying felony. a reasonable specific Thus, the trial court’s underly- judg- conversations facilitated will reverse we out, regard to ing felony that in fact carried with Counts 12 ment of sentence Vetrini; conviction cannot stand. John- and 13. reasons, foregoing stone. For the we will ¶ summarize, we have concluded 25 To judgment against of sentence reverse § 7512 is not unconstitu- that 18 Pa.C.S.A.
Appellant Austin. fur- tionally vague or We have overbroad. ther concluded that record contains ¶ Finally we consider evi support to sufficient evidence convic- Appellant against dence Moss. record Appellant tion Moss on all but Counts that, to against Moss establishes as Counts record contains sufficient 1, 2, engaged telephone 7 and Moss Ap- the conviction of support evidence to conversations with a confidential informant does not con- The record pellant Sullivan. fa and that these conversations support to the con- tain sufficient buy cilitated controlled transactions be Austin. Appellant viction of Accord tween Moss the informant. ¶ against Ap- Judgment of sentence ingly, light the record viewed most Judg- pellant affirmed. Robert Sullivan favorable to the suffi Antho- against Appellant as to ment of sentence cient to sustain the convictions part and reversed 1, 2, 6, ny A. Moss affirmed Counts and 8. part. Judgment against of sentence ¶ against Ap 12 and 13 Counts Ap- Q. Austin reversed. Appellant Dana are on conversations pellant Moss based discharged. is ordered pellant Austin Moss Johnson. The trial between proceedings for further Case remanded these conversations court concluded opinion.3 Jurisdiction consistent with this and Johnson were fa establish Moss relinquished. goal miliar each other and that with to facilitate John the conversations was ¶27 STEVENS, Concurring & J.: files illegal attempt son’s deliver narcotics Dissenting Opinion. sup record Moss. conclude We STEVENS, J., Concurring and findings trial of fact. ports the court’s Dissenting: Nonetheless, the convictions on Counts majority’s I As concur with the and 13 cannot stand. While Austin, any that 18 Pa.C.S.A. consti- holding is devoid of evi the record tutional, from its actually attempted respectfully I dissent dence that Johnson sufficiency to the delivery regard with Moss. conclusion with make the he discussed support against convictions may not a eon- the evidence The Commonwealth obtain concurrently with sentences for proceedings 3. We that the further will run believe minimal, 1, 2, 6, 7, since the sentences handed down Counts Appellant Moss Counts 12 and 13 were for *11 Appellant I Moss Austin. affirm the judgments
would sentence of Appellants, compre-
all three on the based opinion of
hensive the Honorable Dominick
Motto. Regis
In re ESTATE OF BURGER,
F. M.D.
Appeal Leckey. of Janice B.
Superior Pennsylvania. Court of
Argued March
Filed June