Com. v. Abend, S.

• Court: Superior Court of Pennsylvania
• Decided: June 7, 2024
• Docket: 1439 EDA 2023
• Status: Unpublished

Opinion

J-A10013-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHARI BETH ABEND : : Appellant : No. 1439 EDA 2023

Appeal from the Judgment of Sentence Entered May 3, 2023 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0003245-2022

BEFORE: PANELLA, P.J.E., BECK, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.E.: FILED JUNE 7, 2024

Shari Beth Abend appeals from her judgment of sentence for, inter alia,

drug delivery resulting in death, conspiracy, and involuntary manslaughter,

after she sold heroin and crack cocaine to Monique Murdza and Curtis Bucchi;

Bucchi eventually died from an overdose. Abend argues the Commonwealth

did not prove she caused the death of Bucchi and therefore the evidence was

not sufficient to sustain her convictions for drug delivery resulting in death,

conspiracy to commit that delivery offense and involuntary manslaughter.

Abend also asserts the trial court abused its discretion by allowing the

Commonwealth to admit a photograph of Bucchi’s deceased body. As we agree

with the trial court that these claims do not merit relief, we affirm.

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* Retired Senior Judge assigned to the Superior Court. J-A10013-24

We glean the relevant facts from the trial court’s thorough recitation of

the factual history and our own review of the record. Bucchi lived in a motel

room with Murdza. Both Murdza and Bucchi used illegal drugs, including

heroin. On February 25, 2022, Murdza purchased heroin and crack cocaine

from Abend and Darrell Coasey. Bucchi snorted both the heroin and crack

cocaine on the evening of February 25, and then snorted more heroin the

following morning. Bucchi died later that morning of an overdose.

Abend was arrested and charged with multiple offenses, including drug

delivery resulting in death, conspiracy, and involuntary manslaughter. The

matter eventually proceeded to a jury trial.

Murdza testified at the trial. Murdza acknowledged at the outset that

she had also been charged with several offenses, including drug delivery

resulting in death, for Bucchi’s death. See N.T., 12/14/2022, at 11. She

agreed she was aware she had a constitutional right not to testify but stated

she was nonetheless willing to do so. See id. at 11-12. She testified the

Commonwealth had not offered her anything in return for her cooperation.

See id. at 88-89.

Murdza told the jury she lived at the New Falls Motel in Falls Township

with Bucchi for several months leading up to February 2022. See id. at 12-

13. She stated she was addicted to heroin during that time and used heroin

“every day that [she] could.” Id. at 17. Murdza testified that Bucchi used

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illegal drugs as well and he also began to use heroin in December 2021 to

alleviate pain from a toothache. See id. at 17-18, 35.

According to Murdza, the only person she bought drugs from in February

2022 was Abend as neither she nor Bucchi had a car. See id. at 19-20, 57.

Murdza stated she and Bucchi would purchase heroin and crack cocaine from

Abend. See id. at 20. Murdza explained that she used either her phone or

Bucchi’s phone to contact Abend for drugs. See id. at 22-23. Abend would

then come to the motel in her red minivan and would always be accompanied

by Coasey, who Murdza believed was Abend’s husband. See id. at 29-30.

Murdza stated that, although Bucchi previously had bought marijuana

and crack cocaine from people other than Abend, Murdza did not have any

personal knowledge that Bucchi was getting drugs from any source other than

Abend in February 2022. See id. at 57, 59, 130. Murdza had never seen

Bucchi use heroin other than the heroin purchased by Murdza. See id. at 59,

130-131.

Murdza recounted that on February 25, 2022, she or Bucchi reached out

to Abend and ordered a bundle and a “dub.” See id. at 25, 35. She

represented that a bundle or a “bun” was ten bags of heroin and a “dub” was

$20 worth of crack cocaine. See id. at 28. After making the order with Abend

on February 25th, Murdza stated that Abend came to the motel in the same

red minivan she always drove to drop the drugs to her and was with Coasey.

See id. at 36. Murdza used Bucchi’s money to buy the drugs. See id.

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Murdza testified the drugs she bought on the night of February 25th

were in “clear-ish” baggies stamped with “COVID-19.” See id. at 38. Murdza

brought the drugs into the motel room and immediately snorted one of the

bags of heroin, as did Bucchi. See id. at 37. Bucchi also used the crack

cocaine. See id. at 38.

Murdza testified that, after she had snorted another one of the bags of

heroin she had bought from Abend, she and Bucchi went to sleep. See id. at

40-41. She got up early on the morning of February 26 and snorted another

bag of the heroin. See id. at 40 -41. Murdza went down the street to the store

and when she came back, at around 6:30 in the morning, Bucchi was still in

bed but awake and speaking on the phone. See id. at 44.

After Bucchi hung up, he asked Murdza for another bag of heroin. See

id. at 45-46. Murdza gave him the heroin, and Bucchi snorted that bag. See

id. at 46. Murdza clarified that the bag she handed Bucchi was one of the

COVID-19 bags they had bought the night before from Abend. See id. at 41,

47, 87-88, 120, 142.

Bucchi went back to sleep but was “breathing weird.” Id. at 47. Murdza

snorted another bag of heroin and nodded off. See id. at 47-48. When she

woke, Bucchi was “very blue” and was not breathing. See id. at 50. Murdza

called 911. See id. She testified that she put the used and unused COVID-19

stamped baggies, the ones she had bought from Abend the night before, inside

a clear plastic bag and put that in her shoe. See id. at 51-52.

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Police responded to the motel room. Murdza recounted that she went

down to the police station and allowed the police to look at her phone, which

had text messages with Abend about purchasing drugs. See id. at 55-56.

Murdza agreed to do a controlled buy with Abend. See id. at 55, 57.

Prior to the search the police planned to conduct on Murdza in

anticipation of the controlled buy, Murdza disclosed to the searching officer

that she had drugs in her shoe. See id. at 61. She handed the clear plastic

bag with the COVID-19 stamped baggies inside to the searching officer. See

id. at 112, 114, 116. Those baggies were later confirmed to contain, among

other substances, 4-ANPP, fentanyl and xylazine. See id. at 202-206.1

In executing the controlled buy for the police on February 26, Murdza

explained that she contacted Abend to buy heroin. When she met with Abend,

Murdza confirmed with Abend that she was buying the same baggies as the

COVID-19 stamped baggies from the night before. See id. at 60-61. The

controlled-buy baggies were also stamped with COVID-19. The contents from

the three baggies that were tested from that buy were positive for 4-ANPP,

fentanyl and xylazine. See id. at 207-209.

Falls Township Police Officer Daniel Matkowski, who was the first officer

to respond to Murdza’s 911 call, also testified. He reported he arrived at the

1 As the trial court explained, 4-ANPP is a chemical byproduct of fentanyl and

xylazine is an “intramuscular tranquilizer for animals.” See Trial Court Opinion, 10/4/2023, at 4 n.1, n.2 (citations to notes of testimony omitted).

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motel around 10:19 in the morning on February 26, 2022. See N.T.,

12/12/2022 (afternoon), at 55. He entered Bucchi and Murdza’s motel room

and found Bucchi laying on the bed, with dried vomit near his head. See id.

at 66, 73. Officer Matkowski testified Bucchi was obviously dead. See id.

The Commonwealth showed a picture of Bucchi laying on the motel bed

to the officer. Officer Bucchi identified the person in the photograph as the

deceased person he found in the motel room and stated that, other than the

white stickers placed on Bucchi’s body by paramedics, the photograph

represented the state in which he discovered Bucchi. See id. at 67, 72-73.

Over objection, the Commonwealth admitted the photograph into evidence

and published the photograph to the jury. See id. at 72-73.

Officer Matkowski also reported he conducted a search of the motel

room. During that search, the officer recovered four unstamped white wax

paper baggies from a trashcan inside the motel room See id. at 88. The

residue from those baggies later tested positive for 4-ANPP, fentanyl and

xylazine. See N.T., 12/14/2022, at 200.

Dr. Ian Hood, the medical examiner who performed the autopsy on

Bucchi, confirmed that Bucchi’s cause of death was “fentanyl and xylazine

toxicity.” See N.T., 12/13/2022, at 37. He explained that ingesting too much

fentanyl affects respiration and the user’s “breathing will get more and more

shallow until finally it stops.” Id. at 41.

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The jury found Abend guilty of, among other offenses, drug delivery

resulting in death, conspiracy, and involuntary manslaughter. The trial court

originally sentenced Abend to six to 12 years’ imprisonment for her drug

delivery resulting in death conviction, with no further penalty on the remaining

convictions. Abend filed post-sentence motions, which the trial court granted

in part and resentenced Abend to four to eight years’ imprisonment for her

drug delivery resulting in death conviction.

Abend filed a timely notice of appeal and both Abend and the trial court

complied with Pa.R.A.P. 1925. She now raises these two issues for our review:

A. Was the evidence with respect to the element of causation insufficient to support the verdicts of guilty for the offense of Drug Delivery Resulting in Death, Criminal Conspiracy to Commit Drug Delivery Resulting in Death, and Involuntary Manslaughter?

B. Did the trial court err in admitting and publishing a photograph of the deceased’s body, as the photograph was highly inflammatory and needlessly cumulative, was of no probative value, and any probative value was clearly outweighed by a danger of unfair prejudice?

Appellant’s Brief at 9 (lower court’s answers omitted).

Abend’s first issue challenges the sufficiency of the evidence as it relates

to her drug delivery resulting in death, conspiracy to commit drug delivery

resulting in death, and involuntary manslaughter convictions. She claims the

Commonwealth failed to establish the drugs she sold to Murdza and Bucchi

were the drugs that caused Bucchi’s death. This claim does not warrant any

relief.

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When reviewing challenges to the sufficiency of the evidence, we must

determine whether, when viewed in the light most favorable to the

Commonwealth as the verdict winner, the evidence presented at trial and all

reasonable inferences derived from the evidence was sufficient to establish all

the elements of the challenged offenses beyond a reasonable doubt. See

Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011). The

Commonwealth may sustain its burden entirely by circumstantial evidence.

See id. Moreover, the factfinder “passes upon the weight and credibility of

each witness’s testimony, [and] is free to believe all, part or none of the

evidence.” Id. (citation omitted).

Here, Abend challenges her convictions for drug delivery resulting in

death, conspiracy to commit drug delivery resulting in death, and involuntary

manslaughter on the basis that the Commonwealth failed to prove causation

for each of these offenses.

Before outlining the individual elements for each of the specific offenses

Abend challenges, we address the common element of all three of the crimes

Abend contends the Commonwealth did not prove, i.e. causation. For our

purposes here, the Crimes Code provides that “[c]onduct is the cause of a

result when: (1) it is an antecedent but for which the result in question would

not have occurred[.]” 18 Pa. C.S.A. § 303(a)(1). As such, the statute “requires

a ‘but-for’ test of causation … [with the caveat that] the results of the

defendant’s actions cannot be so extraordinarily remote or attenuated that it

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would be unfair to hold the defendant criminally responsible.”

Commonwealth v. Kakhankham, 132 A.3d 986, 993 (Pa. Super. 2015)

(citations and some internal quotation marks omitted).

To sustain a conviction for drug delivery resulting in death, the

Commonwealth must show that: (1) the defendant intentionally delivered a

controlled substance, (2) with a reckless disregard of death and (3) another

person died as a result of using that controlled substance. See 18 Pa.C.S.A.

§ 2506(a); Commonwealth v. Arrington, 247 A.3d 456, 462 (Pa. Super.

2021). “[T]he sale of heroin satisfies the reckless element as to the possibility

of death by the buyer[.]” Commonwealth v. Storey, 167 A.3d 750, 758 (Pa.

Super. 2017) (citation omitted).

To sustain a conviction for conspiracy to commit drug delivery resulting

in death, meanwhile, the Commonwealth must prove that the “defendant (1)

entered into an agreement to commit or aid in an unlawful act with another

person or persons, (2) with a shared criminal intent and (3) an overt act was

done in furtherance of the conspiracy.” Arrington, 247 A.3d at 461 (citations

omitted); see also 18 Pa.C.S.A. § 903(a). “A conspiracy to commit the overt

act of an intentional drug delivery links the conspirators to the foreseeable

consequence that the drug user may die.” Commonwealth v. Carr, 227 A.3d

11, 18 (Pa. Super. 2020) (emphasis in original).

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Lastly, a defendant is guilty of involuntary manslaughter when she: (1)

commits an act, (2) with a reckless state of mind and (3) the act causes the

victim’s death. See 18 Pa.C.S.A. § 2504(a); Arrington, 247 A.3d at 461.

After reviewing the record, we agree with the Commonwealth that the

trial court did not err by finding the evidence was sufficient to support all three

of the offenses challenged by Abend and specifically, that the drugs Abend

delivered caused Bucchi’s death. As cogently explained and summarized by

the Commonwealth:

The evidence admitted at trial, viewed in the light most favorable to the Commonwealth, established that [Abend] conspired with Murdza and [Coasey] to deliver heroin that killed [Bucchi] in baggies stamped “COVID-19.” Forensic evidence determined that [Bucchi] died of toxicity from fentanyl and xylazine – the same substances found in the stamped heroin baggies purchased by Murdza and [Bucchi].

Murdza’s testimony – which the jury was free to believe – conclusively established that [Abend] was their sole dealer of heroin around the time of [Bucchi’s] overdose, and that [Bucchi] specifically ingested the “COVID-19” stamped heroin baggies supplied by [Abend] immediately prior to his death. Her testimony also established that [Bucchi] began to “breathe weird” after ingesting his final bag of “COVID-19” stamped heroin, which Dr. Hood confirmed to be symptomatic of an impending opioid overdose death.

Commonwealth’s Brief at 10-11 (single paragraph divided into two

paragraphs).

Abend argues, however, the Commonwealth failed to prove that the

COVID-19 stamped baggies of drugs delivered by Abend were the ones that

killed Bucchi because the police found unstamped baggies in the motel room’s

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trashcan that also tested positive for fentanyl and xylazine. As such, Abend

maintains, the Commonwealth failed to establish Abend’s conduct caused

Bucchi’s death because Bucchi could have ingested drugs from another source

that caused his overdose. This argument does not merit any relief.

As noted above, Murdza testified that she only bought heroin from

Abend at the time of Bucchi’s death and she had no knowledge of Bucchi

purchasing heroin from other sources. Importantly, Murdza also testified that

she handed Bucchi one of the baggies of heroin stamped with COVID-19

purchased from Abend, which Bucchi proceeded to snort, before his breathing

became labored and he died from drug toxicity. Again, as noted above, the

jury was free to believe Murdza’s testimony and the jury could have

reasonably concluded from that testimony that it was the drugs delivered by

Abend that caused Bucchi to overdose and die.

When considering all of the evidence, we agree with the trial court that

the evidence was sufficient for the jury to find Abend conspired to sell, and

then intentionally sold, heroin and crack cocaine to Murdza and Bucchi, with

a reckless disregard that those drugs could cause death, and that the drugs

sold by Abend did, in fact, cause Bucchi’s overdose and his death. As such,

Abend’s sufficiency claims fail, and no relief is due.

In her second claim, Abend argues the trial court abused its discretion

by admitting a photograph of Bucchi, deceased, lying on the bed in the motel

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room, because the prejudicial effect of the photograph outweighed its

probative value. This claim also fails.

The admission of evidence is within the sound discretion of the trial

court, and we will not disturb the trial court’s evidentiary rulings on appeal

unless there has been an abuse of that discretion. See Commonwealth v.

Reid, 99 A.3d 470, 493 (Pa. 2014). When the evidence at issue is a

photograph of a homicide victim, the trial court must conduct the following

two-part analysis to determine if the photograph is admissible:

The trial judge must initially decide whether the photographs possess inflammatory characteristics. If they do not, the photographs are admissible as are any evidentiary items, subject to the qualification of relevance. If the photographs are deemed inflammatory, then the trial judge must decide whether the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of their inflaming the passions of the jurors.

Commonwealth v. Hudson, 414 A.2d 1381, 1386 (Pa. 1980) (citations

omitted). Our courts have consistently held that a photograph depicting a

deceased person is not inflammatory per se. See Commonwealth v.

Petrakovich, 329 A.2d 844, 849 (Pa. 1974). Rather, “it is generally the

manner in which a corpse is displayed that causes photographs to be

emotionally charged.” Id. (footnote omitted).

Here, defense counsel objected when the Commonwealth sought to

introduce the photograph of Bucchi as he was found when the police arrived,

arguing that it “depicted blood dripping down, you know, the bed. He looks,

you know, pale. He looks to be deceased.” N.T., 12/12/2022 (afternoon), at

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71. In overruling the objection, the trial court stated the photograph was

relevant to “establish[ing that] when [the police] came into the [motel] room

[Bucchi] was found dead.” Id. The trial court also found the photograph was

not inflammatory, stating that it did not “appear particularly gruesome to me

in any way.” Id.

Here, we see no error in the court’s conclusion that the photograph was

relevant and not inflammatory and was therefore admissible. The photograph,

which we have reviewed, shows Bucchi deceased and lying on the bed, fully

clothed, and without any visible injuries. See Ex. C-6. The photograph does

show a brown substance by Bucchi’s head, which defense counsel indicated

was blood, but Officer Matkowski testified was actually dried vomit. See N.T.,

12/12/2022 (afternoon), at 73; Ex. C-6. Either way, we fail to see how the

court abused its discretion by determining the photograph was not

inflammatory. See Hudson, 414 A.2d at 1387 (stating that the mere fact that

blood is visible in a photograph does not make it inflammatory); Petrakovich,

329 A.2d at 849.

As the Commonwealth notes, although Abend asserts in her statement

of the questions involved that the photograph was “highly inflammatory,” she

does not expand on that assertion in her argument section or directly

challenge, in any meaningful way, the court’s finding that the photograph was

not inflammatory. Instead, she skips to the second part of the analysis for a

homicide photograph’s admissibility, the balancing test, which only becomes

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necessary if the trial court determines a photograph is inflammatory.

However, the court here determined that the photograph was not

inflammatory but was relevant and therefore admissible.

We recognize that within Abend’s argument that the prejudicial effect of

the photograph outweighed its probative value, Abend does assert the

photograph was “irrelevant” because Bucchi’s identity or manner of death was

not in dispute. Appellant’s Brief at 21. However, the trial court determined

that the photograph was relevant to assist the jury in understanding the

circumstances of the discovery of Bucchi’s body by police and the

circumstances of his death. Again, we see no abuse of discretion in that

determination. See Pa.R.E. 401 (providing that evidence is relevant if it has

any tendency to make a fact more or less probable or is of consequence in

determining the action).

As we do not discern any abuse of discretion in the court’s

determinations that the single photograph of Bucchi’s deceased body was

relevant and not inflammatory and therefore admissible, Abend’s second

claim, like her first, does not afford her any basis for relief.

Judgment of sentence affirmed.

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Date: 6/7/2024

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