Commonwealth v. Arrington

247 A.3d 456

COMMONWEALTH of Pennsylvania

v.Dameon ARRINGTON, Appellant

No. 579 WDA 2020

Superior Court of Pennsylvania.

Submitted November 2, 2020

Filed March 8, 2021

Jacob Christopher Roberts, Clarion, for appellant.

Drew Joseph Welsh, District Attorney, Clarion, for Commonwealth, appellee.

BEFORE: OLSON, J., DUBOW, J., and STEVENS, P.J.E.^*

OPINION BY DUBOW, J.:

Appellant, Dameon Arrington, appeals from the November 20, 2019 Judgment of Sentence entered in the Court of Common Pleas of Clarion County after a jury convicted him of various offenses including Involuntary Manslaughter, Conspiracy to Commit Involuntary Manslaughter, and Drug Delivery Resulting in Death ("DDRD").¹ Appellant argues that Conspiracy to Commit Involuntary Manslaughter is not a cognizable offense in Pennsylvania and further alleges that the trial court erred by denying his motions to transfer venue and remove a juror. After careful review, we affirm.

We derive the following factual and procedural history from the trial court Opinion and certified record. On August 13, 2018, Appellant contacted Matthew McDermid to offer to sell him heroin. Appellant was located in Pittsburgh, Allegheny County, and McDermid lived in Clarion County. McDermid did not have money to buy the drugs, so he contacted Tanner Eisenman ("Decedent"). Decedent was also a Clarion County resident. McDermid and Decedent had a preexisting relationship where McDermid would drive the pair to Pittsburgh, and Decedent would purchase heroin for them.

McDermid and Decedent drove to Pittsburgh on August 14, 2018. They purchased 30 bags of heroin laced with fentanyl from Appellant. Decedent gave McDermid five bags and kept 25 for himself. McDermid then dropped Decedent off at home.

Decedent shared a home with his girlfriend, Amber Snyder. On August 15, 2018, when Snyder returned home from work at approximately 8:00 PM, she found Decedent dead, lying face down on their living room floor. Investigators found 21 stamp bags of heroin in Decedent's pants pockets and determined that he died due to fentanyl overdose.

After Decedent's death, McDermid agreed to serve as a confidential police informant ("CI") for Clarion County Chief Detective William Peck. On August 17, 2018, at Detective Peck's instruction, McDermid purchased heroin laced with fentanyl from Appellant in Pittsburgh. On August 22, 2018, McDermid performed another controlled heroin buy from Appellant in Pittsburgh.

Clarion County police arrested Appellant and charged him with the above crimes.² On March 22, 2019, Appellant filed a Pretrial Motion seeking to change venue from Clarion County to Allegheny County. He argued that venue was proper in Allegheny County because that is where the drug sale occurred.

The court held a hearing on Appellant's Motion on April 22, 2019. The Commonwealth argued that venue was proper in Clarion County because Decedent died there. Neither party presented evidence.

On May 2, 2019, the court denied Appellant's Motion. It reasoned that venue was proper in Clarion County because (1) Decedent died in Clarion County, and death is an element of DDRD, discussed infra , and (2) it was the site of the majority of the evidence and witnesses in the case.

Appellant's trial started on October 21, 2019. During a recess on the first day of trial, Appellant's counsel reported to the court that he observed a Commonwealth witness, police Officer Neil Kemmer, having a conversation with Juror No. 4. Appellant moved to have Juror No. 4 removed from the jury.

The court held a hearing on Appellant's Motion. It questioned Juror No. 4 about the substance of the conversation. The juror said that he talked to Officer Kemmer for approximately three to four minutes about hunting. He and Officer Kemmer grew up together but had no association for more than a decade. He assured the court that neither his conversation nor acquaintance with Officer Kemmer would prevent him from being a fair juror.

The court denied Appellant's Motion to dismiss Juror No. 4. It reasoned that Juror No. 4 could be fair and impartial, Officer Kemmer had limited involvement in the investigation, and Appellant did not contest Officer Kemmer's testimony or credibility.

At the conclusion of trial, the jury convicted Appellant of the above crimes. The court sentenced Appellant to an aggregate term of 11½ to 23 years’ incarceration.

Appellant timely filed a Post-Sentence Motion seeking a new trial for, inter alia , the court's refusal to dismiss Juror No. 4. On April 17, 2020, the court denied Appellant's Motion.

Appellant timely filed a Notice of Appeal.³ Both he and the Commonwealth complied with Pa.R.A.P. 1925. Appellant presents the following issues for our review:

1. Whether Conspiracy to Commit Involuntary Manslaughter is a cognizable offense in Pennsylvania.

2. Whether the lower court erred by denying Appellant's Pretrial Motion to transfer venue from Clarion County to Allegheny County.

3. Whether the lower court erred by denying Appellant's request to have Juror No. 4 removed from the jury.

Appellant's Br. at 5 (rephrased for clarity and reordered for ease of analysis).

In his first issue, Appellant argues that Conspiracy to Commit Involuntary Manslaughter is not a cognizable offense under Pennsylvania law because conspiracy requires the specific intent to promote or facilitate the commission of a crime, but a person cannot intend to commit an unintentional killing.⁴ Appellant's Br. at 16-17.

This is a purely legal question over which our scope of review is plenary and standard of review is de novo . Commonwealth v. Fisher , 622 Pa. 366, 80 A.3d 1186, 1189 (2013). Further, this question poses an issue of first impression in this Commonwealth. After careful review, we conclude that Conspiracy to Commit Involuntary Manslaughter is a cognizable offense in Pennsylvania.

In deciding whether Conspiracy to Commit Involuntary Manslaughter is a cognizable offense, we look first to the pertinent sections of the Crimes Code. Involuntary Manslaughter is defined as (1) an act, (2) done with a reckless state of mind, that (3) causes the victim's death. 18 Pa.C.S. § 2504(a) ; Commonwealth v. Huggins , 575 Pa. 395, 836 A.2d 862, 865-68 (2003).

Recklessness is the conscious disregard of a substantial and unjustifiable risk. 18 Pa.C.S. § 302(b)(3). "Conscious disregard of a risk, in turn, involves first becoming aware of the risk and then choosing to proceed in spite of the risk." Commonwealth v. Bostian , 232 A.3d 898, 909 (Pa. Super. 2020) (citation and quotation marks omitted). See also Commonwealth v. Vogelsong , 90 A.3d 717, 719 (Pa. Super. 2014) (recklessness requires conscious action or inaction that creates substantial risk of harm to others, whereas negligence suggests unconscious inadvertence); Commonwealth v. Gilliland , 281 Pa.Super. 354, 422 A.2d 206, 207 (1980) (requiring a "conscious realization of a substantial risk which was subsequently disregarded").

The victim's death must be a direct and natural consequence of the defendant's reckless action. Commonwealth v. Fabian , 60 A.3d 146, 152 (Pa. Super. 2013) ; Commonwealth v. Long , 425 Pa.Super. 170, 624 A.2d 200, 204 (1993).

To sustain a conviction for Conspiracy, the Commonwealth must establish 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." Fisher , 80 A.3d at 1190 (citation omitted); 18 Pa.C.S. § 903(a). "Conspirators need not contemplate the ultimate crime in order to be charged and convicted of conspiracy to commit that crime." Commonwealth v. Carr , 227 A.3d 11, 17 (Pa. Super. 2020).

In addition to the pertinent sections of the Crimes Code, we look to relevant case law. Particularly instructive is our Supreme Court's decision in Fisher , supra , and this Court's decision in Carr , supra . In short, these cases instruct that a defendant may conspire to commit a crime that includes an unintentional death as an element of the offense, so long as the defendant acted with another to intentionally perform the act that resulted in the death.

In Fisher , supra at 1187, the appellant and several friends agreed to "jump" a man in downtown Philadelphia. During the beating, the man suffered a fatal asthma attack. Id. The trial court convicted the appellant of, among other things, Conspiracy to Commit Third-Degree Murder. Id. Third-Degree Murder involves (1) an intentional act, (2) done with malice, that (3) results in an unintentional killing. Id. at 1191.

On appeal, the appellant argued that because Conspiracy is a specific intent crime, and Third-Degree Murder involves an unintentional death, then a person cannot conspire to commit Third-Degree Murder because one cannot intend to commit an unintentional act. Id. at 1190. This is the same syllogistic argument made by Appellant in the present case.

Our Supreme Court rejected the appellant's argument. It observed that "one does not conspire to commit a denominated offense, one conspires to engage in certain conduct." Id. at 1195. Thus, "[w]here, as here, the defendant intends the underlying act (the beating) which results in death, the evidence supports the charge of conspiracy to commit third degree murder." Id. In other words, it is sufficient if the defendant "committed an intentional act, characterized by malice, that results in death, intended or not." Id. at 1191. Even though the killing was "not specifically contemplated by the parties ... responsibility attaches ... to a homicide which is a contingency of the natural and probable execution of the conspiracy[.]" Id. at 1192 (emphasis and citation omitted).

In Carr , supra , this Court concluded that Conspiracy to Commit DDRD is a cognizable offense under Pennsylvania law. DDRD consists of (1) the intentional delivery, distribution, or sale of contraband, (2) done with a reckless disregard of death, that (3) results in a death from the use of that...