Commonwealth v. Mikitiuk

213 A.3d 290

COMMONWEALTH of Pennsylvania

v.Victor Charles MIKITIUK, Appellant

No. 2035 MDA 2018

Superior Court of Pennsylvania.

Filed June 20, 2019

Submitted June 26, 2019

Heather Eggert, Lebanon, for appellant.

Nichole L. Eisenhart, Assistant District Attorney, Lebanon, for Commonwealth, appellee.

BEFORE: LAZARUS, J., MURRAY, J., and STEVENS^* , P.J.E.

OPINION BY STEVENS, P.J.E.:

Appellant Victor Charles Mikitiuk appeals from the judgment of sentence entered in the Court of Common Pleas of Lebanon County following Appellant's conviction by a jury on one count of manufacture, delivery, or possession with the intent to manufacture or deliver a controlled substance (methamphetamine), one count of violation of the Controlled Substance, Drug, Device and Cosmetic Act (possessing phenylpropanolamine, phenyl acetone, methylamine, ammonium sulfate, ammonium nitrate, phenyl acetic acid or a precursor substance with intent to unlawfully manufacture a controlled substance), one count of risking a catastrophe, three counts of criminal conspiracy (conspiracy to possess with the intent to manufacture methamphetamine, risking a catastrophe, and violation of the Controlled Substance, Drug, Device and Cosmetic Act), and one count of possession of drug paraphernalia.¹ After a careful review, we affirm.

The relevant facts and procedural history are as follows: Following his arrest, Appellant, who was represented by counsel, proceeded to a jury trial on March 21, 2018, at which the Commonwealth presented the testimony of Sergeant Michael DiPalo and Detective Lawrence Minnick, both of whom are assigned to the Lebanon County Drug Task Force. Appellant presented no witnesses at trial.

Sergeant DiPalo testified that, on July 20, 2017, he received several phone calls from Kyle Leeper and Tony Kreider, with whom he was familiar, indicating that a domestic dispute and drug activity was occurring within a pick-up truck at the 200 block of North Railroad Street in Palmyra. N.T., 3/21/18, at 18-19, 44-45. Since Sergeant DiPalo was in Lebanon, he contacted the Palmyra Police Department and requested that officers from that department respond immediately to the scene. Id. at 19. Meanwhile, Sergeant DiPalo and Detective Minnick drove to the scene. Id.

Upon arrival, Sergeant DiPalo discovered Mr. Leeper in the driver's seat of the pick-up truck, and Crystal Anderson was seated in the passenger's seat. Id. at 20. Appellant had also been riding in the pick-up truck; however, by the time Sergeant DiPalo arrived on the scene, Appellant was standing outside of the vehicle. Id.

Sergeant DiPalo began his investigation and learned that, prior to his arrival, the Palmyra officers had seized a backpack from bushes located near the pick-up truck. Id. at 20, 48. The backpack contained iodized salt,² Liquid Fire (a liquid drain opener containing sulfuric acid and lye), household drain cleaner, lye pellets, a generator, coffee filters, and plastic baggies containing coffee filters with residue. Id. at 27. The backpack contained no evidence identifying its owner. Id. at 48. Appellant was found in possession of 7-inch diagonal cutting pliers. Id. at 37.

Sergeant DiPalo testified the backpack was later destroyed "because of the toxic nature of the chemicals [contained therein], it permeates everything it comes in contact with. Some of the chemicals would cause the metal to rust. Some of it reacts with oxygen in the air and becomes flammable." Id. at 29. The sergeant testified the above items were consistent with those seized in other cases involving the manufacturing of methamphetamine and many of the items contained in the backpack were "methamphetamine precursors." Id. at 24, 37.

In the bed of the pick-up truck, Sergeant DiPalo observed equipment, including plastic bottles with attached aquarium hoses that act as a generator to produce hydrogen gas, bottles of lye, and bottles with a crystalline residue containing an oily liquid, which based on his experience, the sergeant recognized as being used in the manufacturing of methamphetamine. Id. at 20, 25-26. Sergeant DiPalo noted a baseball cap was seized from the pick-up truck. Id. at 65.

Sergeant DiPalo testified that, "because of the hazardous materials involved and the volatility of the substances," he contacted the Pennsylvania State Police so that the Clandestine Lab Team could respond to remove the items from the pick-up truck and backpack. Id. at 22. He noted that "special licensure" is needed to dispose of such items, and the Lab Team has the necessary licensure. Id. Sergeant DiPalo further noted that he and the other officers did not possess the necessary equipment, including respirators, air monitoring equipment, fireproof suits, nitrile gloves, and other testing/packaging equipment, to dispose of the hazardous materials. Id. Pennsylvania State Troopers and members of the Clandestine Lab Team, who were outfitted with "special chemical fire-resistant suit[s], as well as heavy gloves" and respirators, arrived, and as they seized the equipment, the sergeant took photographs.³ Id. at 23, 26.

Sergeant DiPalo noted that some of the bottles in the pick-up truck had caps on them, including a plastic bottle containing crushed pseudoephedrine and a liquid. Id. at 31. He specifically explained the following:

The process [related to the bottles] is called a "one-pot" method. The manufacturing process is done in a plastic soda bottle. There are other methods that include the glass lab breakers, heat, and all of that. This is a method that allows an individual using Lithium and the other chemicals that were assembled to manufacture meth in the two-liter bottle.

As the manufacturing process continues, the bottle is vented at the top to release the gas. However, because of the volatility, the process requires several hundred pounds of pressure for the process to complete that the soda bottle can only withstand so much pressure. The venting process can risk an explosion and fire and cause burns should the timing be off and the bottle explodes.

Id. at 32. Sergeant DiPalo explained that he notified the Clandestine Lab Team to assist because of the risk of an explosion and fire. Id. He indicated the Clandestine Lab Team "deactivated" the bottles and filtered the contents at the scene so as to render the items safe. Id. at 33.

Sergeant DiPalo testified that, by interviewing Ms. Anderson, he learned of possible drug activity in connection with a cabin on Palmyra Bellgrove Road in North Londonberry Township. Id. at 51. The cabin was owned by Peter McCurdy. Id. at 52.

On July 21, 2017, the police executed a search warrant at the cabin. Id. at 34. Sergeant DiPalo was present in the cabin during the execution of the search warrant, and he took photographs. Id. at 35. He testified that, as confirmed by the photographs entered into evidence, the police seized from the cabin cold compress boxes, empty blister packs from a pseudoephedrine-containing product, white plastic hose consistent with the hose found in the bed of the pick-up truck, and a package for pliers such as those seized from Appellant. Id. at 36-37, 53. Further, the police seized an empty Lithium battery package, which was lying in the leaves directly outside the back of the cabin. Id. at 37. Sergeant DiPalo testified that Lithium provides "a catalyst" for the manufacturing of methamphetamine. Id. Sergeant DiPalo admitted that none of the items seized from the cabin were dusted for fingerprints. Id. at 49. He indicated that he traced the UPC numbers on the packages for the pseudoephedrine-containing items and discovered that the items were purchased by Ms. Anderson and Tony Kreider's father at a local Walmart. Id. at 54.

Sergeant DiPalo testified the Swatara Township Police Department later provided him with a surveillance photograph of Appellant and Ms. Anderson stealing items from a hardware store in Dauphin County. Id. at 60-61. The stolen items included Liquid Fire, a bottle of lye, and rubber gloves. Id. at 60. Appellant and Ms. Anderson committed the retail theft on July 18 or 19, 2017, and Appellant later pled guilty to the retail theft in Dauphin County. Id. at 61, 67. Moreover, Sergeant DiPalo noted that a baseball cap worn by Appellant during the retail theft matched the baseball cap seized from the bed of the pick-up truck on July 20, 2017. Id. at 65. Further, the sergeant testified that, during the investigation of the current offenses, "Appellant...admitted to purchasing precursor items to include Liquid Fire[.]" Id.

At this point in the proceedings, the parties stipulated to various evidentiary items seized from the pick-up truck, including that seized bottles contained methamphetamine, pseudoephedrine, a Birch by-product formed when pseudoephedrine is converted into methamphetamine, petroleum distillate, and a reactive metal; seized tubing contained methamphetamine residue; the "headspace of [a] vial...contained hydrochloric acid vapor;" other seized bottles contained lye, acidic liquid, salt, and sulfuric acid; seized coffee filters contained pseudoephedrine /ephedrine residue; and seized instant ice compresses contained ammonium nitrate and water. Id. at 70-71.

Additionally, the parties stipulated that if Jessica Mulhollem, who is a forensic scientist employed by the Pennsylvania State Police, was called to testify, she would indicate the following as to the items seized from the scene at North Railroad Street:

Methamphetamine can be manufactured by a method referred to as the "One Pot" method. This method is performed in a single container. Pseudoephedrine or ephedrine, a reactive metal (such as Lithium ), a solvent, and a source of ammonia gas are placed in a container. Petroleum distillate mixtures such as lighter fuel are commonly used organic solvents. Ammonia gas may be generated by combining an ammonium salt with sodium hydroxide or potassium hydroxide in the reaction container. The reaction between these materials will manufacture the pseudoephedrine or

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