Commonwealth v. Abend

1

COMMONWEALTH OF PENNSYLVANIA v. SHARI BETH ABEND Appellant

No. 1439 EDA 2023

No. J-A10013-24

Superior Court of Pennsylvania

June 7, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

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

Benjamin D. Kohler, Esq.

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

MEMORANDUM

PANELLA, P.J.E.

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.

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 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.

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.

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 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.

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...