J-S11020-20
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`NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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`COMMONWEALTH OF PENNSYLVANIA
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`NATHAN HOWARD
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`v.
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`Appellant
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` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
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` No. 772 WDA 2019
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`Appeal from the Judgment of Sentence Entered July 21, 2015
`In the Court of Common Pleas of Erie County Criminal Division at No(s):
`CP-25-CR-0001876-2014
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`BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
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`MEMORANDUM BY MURRAY, J.:
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`FILED MARCH 27, 2020
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`
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`Nathan Howard (Appellant) appeals pro se from the judgment of
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`sentence imposed after a jury convicted him of one count each of drug delivery
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`resulting in death and possession of a controlled substance by an inmate, and
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`three counts of contraband/controlled substance to a confined person
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`prohibited.1 We affirm.
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`The trial court summarized:
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`After the execution of a search warrant on April 26, 2014,
`at the El Patio Motel, [Appellant] was arrested. He was charged
`with various drug offenses and incarcerated in the Erie County
`Prison. The decedent, Stephen Burkhart, was an inmate at the
`time on B Block where [Appellant] was assigned.
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`On May 2, 2014, Burkhart collapsed and was transported to
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`Hamot Hospital from the prison. On May 5, 2014, Burkhart was
`declared brain dead. The cause was determined to be drug
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`____________________________________________
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`1 18 Pa.C.S.A. §§ 2506(a), 5123(a.2) and (a).
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`J-S11020-20
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`toxicity. A subsequent investigation determined that [Appellant]
`had provided Burkhart, while in the prison, with the drugs which
`killed him.
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`[Appellant] was charged at Count One: Drug Delivery
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`Resulting in Death, a felony of the first degree; Count Two:
`Possession of a Controlled Substance/Contraband by an Inmate,
`a felony of the second degree; and at Counts Three, Four and Five,
`one charge at each count of Contraband, Controlled Substance to
`a Confined Person Prohibited, all felonies of the second degree.
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`A jury trial was held from May [18-21], 2015, on the five
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`allegations against [Appellant]. The jury found [Appellant] guilty
`of all charges. [Appellant] was sentenced by this [c]ourt on July
`21, 2015. The sentences of incarceration at each count, except
`Count Five which merged with Count One for sentencing purposes,
`were in the aggravated range and as follows: Count One: 126
`months to 360 months; Count Two: 36 months to 72 months
`consecutive to Count One; Count Three: 36 month to 72 months
`consecutive to Count Two; Count Four: 36 months to 72 months
`consecutive to Count Three.
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`Trial Court Opinion, 4/26/19, at 1-2.
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`
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`Appellant did not file a timely post-sentence motion or notice of appeal.
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`However, Appellant filed a timely petition pursuant to the Post-Conviction
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`Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, and the court reinstated his
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`direct appeal rights nunc pro tunc. Order, 2/27/19. Appellant subsequently
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`expressed a desire to proceed pro se, and on August 2, 2019, this Court
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`remanded the case to the trial court
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`for a hearing pursuant to
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`Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). The trial court
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`conducted a hearing on September 9, 2019, after which it ordered that
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`Appellant be permitted to proceed pro se.
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`
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`Appellant presents the following three issues for our review:
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`J-S11020-20
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`1. WHETHER THE SUFFICIENCY OF THE EVIDENCE WAS LACKING
`AS IT PERTAINS TO THE TWO (2) PRINCIPLE ELEMENTS OF THE
`CRIMINAL STATUE 18 Pa.C.S. §2506(a) DRUG DELIVERY
`RESULTING IN DEATH, (i) [I]NTENTIONALLY ADMINISTERING,
`DISPENSES, DELIVERING, GIVES, PRESCRIBES, SELLS OR
`DISTRIBUTES ANY CONTROLLED SUBSTANCE AND (ii) DEATH
`CAUSED (RESULTING IN) THE USE OF THAT DRUG. THE
`COMMONWEALTH FAILED [TO MEET] ITS BURDEN TO PROVE
`EACH AND EVERY ELEMENT BEYOND A REASONABLE DOUBT, BY
`THE ALLEGED ACTIONS OF [APPELLANT], VIOLATING THE DUE
`PROCESS CLAUSE OF PA CONST. ART. 1, §9, & THE 14TH
`AMENDMENT OF THE U.S. CONST.
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`2. WHETHER THE STATE COURT ERRED IN DISMISSING
`[APPELLANT’S] POST-SENTENCING MOTION/MOTION IN ARREST
`OF JUDGMENT/ACQUITAL AND/OR NEW TRIAL, AS IT PERTAINS
`TO DR. ERIC VEY’S LACK OF AN AUTOPSY TO PROVE THE
`ELEMENT OF CAUSATION - THE STATE COURT ABUSED ITS
`DISCRETION IN ITS MISAPPLICATION [OF] STATE CASE LAW
`[AND] DEPRIVED [APPELLANT] OF THE PROCEDURAL DUE
`PROCESS GUARANTEED BY STATE & FEDERAL LAW UNDER THE
`SUBSTANTIVE PRINCIPLES OF ART. 1, §9 OF PA CONST. & THE
`14TH AMENDMENT OF THE U.S. CONST.
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`3. WHETHER THE STATE COURT ERRED IN DISMISSING
`[APPELLANT’S] POST-SENTENCING MOTION/MOTION IN ARREST
`OF JUDGMENT/ACQUITAL AND/OR NEW TRIAL, AS IT PERTAINS
`TO THE COURT’S ABUSE OF DISCRETION IN THE ALLOWANCE OF
`EVIDENCE AND POLICE OFFICER Lieutenant (Lt.) NOLAN’S
`TESTIMONY OF [APPELLANT’S] CONVICTION AT DOCKET NO.
`1240 OF 2014 UNDER Pa.R.E. 404(b)(2) DURING TRIAL, THAT
`WAS SO FUNDAMENTALLY UNFAIR, VIOLATING THE DUE
`PROCESS CLAUSE OF THE 14TH AMENDMENT OF THE U.S.
`CONST.
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`Appellant’s Brief at 4-5.2
`____________________________________________
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`2 In his second and third issues, Appellant references the trial court’s
`“dismissal of [his] post-sentencing motion/motion in arrest of
`judgment/acquittal and/or new trial . . .” Our review of the record,
`particularly the docket and the notes of testimony from the third and
`fourth days of trial, when the parties rested and the jury reached its
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`J-S11020-20
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`In his first issue, Appellant challenges the sufficiency of the evidence
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`supporting his conviction of drug delivery resulting in death. We recently
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`explained:
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`A challenge to the sufficiency of the evidence requires this Court
`to determine “whether the evidence admitted at trial, and all the
`reasonable inferences derived therefrom viewed in favor of the
`Commonwealth as verdict winner, supports the jury’s finding of all
`the elements of the offense beyond a reasonable doubt.”
`Commonwealth v. Packer, 641 Pa. 391, 168 A.3d 161, 163 n.3
`(2017) (citation and quotation marks omitted).
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`The provision criminalizing a drug delivery resulting in death is set
`forth under Chapter 25 of the Crimes Code, which relates to
`homicide. Section 2506 states, in relevant part:
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`(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 act of
`April 14, 1972 (P.L. 233, No. 64),[ ] known as The
`____________________________________________
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`verdicts, reveals no oral motions, and Appellant’s counsel did not file a
`post-sentence motion on Appellant’s behalf. Although the docket shows
`pro se correspondence from Appellant seeking post-sentence relief,
`(stamped July 24, 2015 and mailed to Appellant’s counsel on July 27,
`2015 from the Deputy Clerk of Records), that filing was a legal nullity
`with no effect. Commonwealth v. Nischan, 928 A.2d 349, 355 (Pa.
`Super. 2007) (discussing a pro se post-sentence motion filed by a
`petitioner who had counsel). When a counseled defendant files a pro se
`document, it is noted on the docket and forwarded to counsel pursuant
`to Pa.R.Crim.P. 576(A)(4), but no further action is to be taken.
`Moreover, a pro se filing has no tolling effect. See Pa.R.Crim.P. 576
`cmt. (“The requirement that the clerk time stamp and make docket
`entries of the filings in these cases only serves to provide a record of
`the filing, and does not trigger any deadline nor require any response.”).
`Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016).
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`J-S11020-20
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`Controlled Substance, Drug, Device and Cosmetic
`Act, and another person dies as a result of using
`the substance.
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`18 Pa.C.S. § 2506. Section 2506 “consists of two principal
`elements: (i) [i]ntentionally administering, dispensing, delivering,
`giving, prescribing, selling or distributing any controlled substance
`or counterfeit controlled substance and (ii) death caused by
`(‘resulting from’) the use of that drug.” Commonwealth v.
`Kakhankham, 132 A.3d 986, 991-92 (Pa. Super. 2015) (citation
`and footnote omitted).
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`Commonwealth v. Peck, 202 A.3d 739, 743–44 (Pa. Super. 2019)
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`(footnotes omitted), appeal granted in part, 218 A.3d 374 (Pa. 2019).
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`[T]he current version of Section 2506 does not expressly
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`classify drug delivery resulting in death as a recognized category
`of homicide. See 18 Pa.C.S. § 2506(a); see also 18 Pa.C.S. §
`2501(b) (indicating that “[c]riminal homicide shall be classified as
`murder, voluntary manslaughter, or involuntary manslaughter.”).
`Therefore, under the present version of Section 2506, the
`Commonwealth must demonstrate that a defendant was at least
`“reckless” as to the death caused by the use of an illicitly delivered
`drug. Commonwealth v. Kakhankham, 132 A.3d 986, 995 (Pa.
`Super. 2015). Because “the dangers of heroin are so great and
`well-known,” this Court has concluded that a delivery of heroin
`alone satisfies the recklessness requirement when a death occurs
`as a result of the sale.” Commonwealth v. Storey, 167 A.3d
`750, 757 (Pa. Super. 2017) (citation omitted).
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`Id. at 744, n.5.
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`Appellant makes two sufficiency arguments. First, he argues that the
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`evidence was insufficient to support a finding that he delivered a controlled
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`substance to the decedent, Stephen Burkhart. Appellant’s Brief at 13-15.
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`Second, he argues that the evidence was insufficient to prove that Mr.
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`Burkhart’s death was the result of a drug overdose. Id. at 16-23. Both claims
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`are meritless. Appellant disregards the well-settled precept that the jury, as
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`J-S11020-20
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`the factfinder, is free to believe all, part or none of the evidence, and we, as
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`an appellate court, review the evidence in the light most favorable to the
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`verdict winner; we may not substitute our judgment for the jury, and the facts
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`and circumstances established by the Commonwealth need not preclude every
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`possibility of innocence. Commonwealth v. Storey, 167 A.3d 750, 757 (Pa.
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`Super. 2017) (citations omitted). Further, the Commonwealth may sustain
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`its burden of proving every element of the crime beyond a reasonable doubt
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`by circumstantial evidence. Id.
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`Here, the trial court detailed the abundance of evidence to support the
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`jury’s determination that Appellant was guilty of fentanyl delivery resulting in
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`Mr. Burkhart’s death. See Trial Court Opinion, 11/26/19, at 4-15. In sum,
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`Appellant was booked into the Erie County Prison after police searched his
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`hotel room and recovered heroin and fentanyl. N.T., 5/20/15, at 39-41.
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`Although Appellant was strip-searched, the deputy warden testified that the
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`search is not always “100% effective,” and in this case, a cavity search was
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`not performed on Appellant. N.T., 5/19/15, at 151-52. Another inmate,
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`Michael Dominick, testified to receiving heroin from Appellant while
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`incarcerated; after Mr. Dominick ingested the heroin, he woke up in the
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`hospital. Jonathan Amon, also an inmate, testified to seeing the decedent,
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`Mr. Burkhart, with heroin in his cell on May 1, 2014. The next day, he
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`witnessed Appellant shake hands with Mr. Burkhart, after which he saw a
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`white piece of paper in Mr. Burkhart’s hand, which had been empty before the
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`J-S11020-20
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`handshake. Mr. Amon and Mr. Burkhart subsequently snorted the heroin. Mr.
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`Amon blacked out and was hospitalized. “Later on May 2, 2014, Stephen
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`Burkhart was brought to medical as he was suspected of being under the
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`influence of something.” Trial Court Opinion, 11/26/19, at 10. Mr. Burkhart
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`eventually agreed to be catheterized and tested positive for opiates, and a lab
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`report from a candy wrapper found with Mr. Burkhart tested positive for
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`fentanyl. Id. After Mr. Burkhart became increasingly ill and died, Mr.
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`Dominick told the deputy warden that he got his drugs from Appellant. Id. at
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`11. Dr. Eric Vey, the Erie County Forensic Pathologist, reviewed Mr. Burkhart’s
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`multiple hospital toxicology reports and concluded within a reasonable degree
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`of medical certainty that Appellant died “as a consequence of drug toxicity.”
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`Id. at 12. Dr. Vey specified that Mr. Burkhart’s “21” fentanyl level “was almost
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`three times the average lethal level [of 8.3].” Id.; see also N.T., 5/20/15,
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`at 16.
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`The above testimony is a mere summary of the evidence presented over
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`the three-plus days of trial; however, it clearly rebuts Appellant’s contention
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`that the Commonwealth presented insufficient evidence to support the jury’s
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`finding that he delivered a controlled substance to Mr. Burkhart, who died as
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`a result.
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`In his second issue, Appellant assails the expert testimony of Dr. Vey
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`because Dr. Vey concluded that Mr. Burkhart died of fentanyl toxicity without
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`the benefit of an autopsy. Appellant’s Brief at 24-31. Averring that
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`J-S11020-20
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`“toxicology testing is insufficient to prove the element of death,” Appellant
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`argues that the trial court erred in permitting Dr. Vey’s testimony. This issue
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`is waived.
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`We have explained:
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`In order to preserve an evidentiary objection for purposes of
`appellate review, a party must interpose a timely and specific
`objection in the trial court. “The rule is well settled that a party
`complaining, on appeal, of the admission of evidence in the [c]ourt
`below will be confined to the specific objection there made.”
`Commonwealth v. Cousar, 593 Pa. 204, 928 A.2d 1025, 1041
`(2007), quoting Commonwealth v. Boden, 399 Pa. 298, 159
`A.2d 894, 900 (1960).
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`Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa. Super. 2018).
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`Appellant — who was represented by counsel at trial — did not “lodge a
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`timely and specific objection” to Dr. Vey’s testimony. In fact, counsel
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`addressed Dr. Vey’s testimony and the absence of an autopsy in his opening
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`remarks to the jury, stating:
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`You will hear from Dr. Vey. He’s the forensic pathologist in Erie
`County. And for some unexplainable reason Dr. Vey never
`performed an autopsy on Mr. Burkhart.
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`N.T., 5/19/15, at 40. Also, when the Commonwealth called Dr. Vey to testify,
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`Appellant’s counsel stated that he had “no objection” to Dr. Vey’s expert
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`qualifications. N.T., 5/20/15, at 4.
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`Waiver notwithstanding, we note:
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`Expert testimony is generally admissible in any case, where such
`testimony goes to a subject requiring special knowledge, skill or
`intelligence beyond that possessed by the ordinary juror. A
`determination of whether or not a witness is telling the truth is a
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`J-S11020-20
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`subject well within the ordinary knowledge and experience of the
`average juror.
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`Commonwealth v. Balodis, 747 A.2d 341, 345 (Pa. 2000) (citation
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`omitted).
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`Further, in rejecting the merits of this issue, the trial court correctly
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`stated, “there is no requirement of an autopsy to prove cause of death
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`recognized under Pennsylvania law.” Trial Court Opinion, 11/16/19, at 19,
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`citing Commonwealth v. Ali, 10 A.3d 282, 306 (Pa. 2010) (a medical expert
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`who did not perform the autopsy may testify as to cause of death as long as
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`the testifying expert is qualified and sufficiently informed).
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`In his third and final issue, Appellant challenges the admission of prior
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`bad acts evidence under Pa.R.E. 404(b). The Commonwealth, in advance of
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`trial, filed a motion to introduce evidence of Appellant’s crimes, wrongs and
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`other acts pursuant to Pa.R.E. 404(b). The trial court heard argument on the
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`Commonwealth’s motion on the first day of trial and decided the motion in the
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`Commonwealth’s favor. N.T., 5/18/15, at 16 (“we’ll allow it in”). Appellant
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`claims he was prejudiced by the court’s admission of testimony from Erie
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`Police Lieutenant Michael Nolan about Appellant’s arrest at the El Patio Hotel;
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`Appellant also claims Lieutenant Nolan’s testimony was irrelevant. Appellant’s
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`Brief at 32. Appellant cites “the false testimony of Lt. Nolan, as demonstrated
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`by a complete review of the record,” and states, “[t]he prejudice is apparent.”
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`Id. at 38. We disagree.
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`The Pennsylvania Supreme Court has explained:
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`J-S11020-20
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`Generally, evidence of prior bad acts or unrelated criminal activity
`is inadmissible to show that a defendant acted in conformity with
`those past acts or to show criminal propensity. Pa.R.E. 404(b)(1).
`However, evidence of prior bad acts may be admissible when
`offered to prove some other relevant fact, such as motive,
`opportunity, intent, preparation, plan, knowledge, identity, and
`absence of mistake or accident. Pa.R.E. 404(b)(2). In determining
`whether evidence of other prior bad acts is admissible, the trial
`court is obliged to balance the probative value of such evidence
`against its prejudicial impact.
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`Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009) (citations
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`omitted).
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`In disposing of this claim, the trial court stated:
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`The charges for which [Appellant] was tried involved drugs
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`possessed by an inmate; so his incarceration was no secret. The
`opportunity for an incarcerated person to have drugs in a prison
`would certainly be a factor critical for the Commonwealth to
`explain to a jury and meet its burden of proof. Any possible
`prejudice to [Appellant] is clearly outweighed by the probative
`value of the evidence of his arrest. There was no prejudice
`showing the facts of his arrest as the crimes charged presupposed
`his incarceration. The probative value of the evidence relating
`how [Appellant] came to be incarcerated, and had the opportunity
`to have the drug which caused the death of Stephen Burkhart,
`was an essential part of the prosecution, and clearly outweighed
`any prejudicial effect it may have had on the jury.
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`Trial Court Opinion, 11/26/19, at 17.
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`We agree with the trial court’s astute reasoning. For the reasons
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`discussed above, we affirm the trial court.
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`Judgment of sentence affirmed.
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`J-S11020-20
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`Judgment Entered.
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`Joseph D. Seletyn, Esq.
`Prothonotary
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`Date: 3/27/2020
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