J-A30036-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JENNIFER BUSBEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 186 MDA 2019

Appeal from the Judgment of Sentence Entered July 24, 2018

In the Court of Common Pleas of York County Criminal Division at No(s): 

CP-67-CR-0003011-2017

BEFORE: DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED FEBRUARY 21, 2020

Appellant, Jennifer Busbey, appeals from the judgment of sentence 

following her jury trial convictions of murder of the third degree, drug delivery 

resulting in death, delivery of a controlled substance, conspiracy to commit 

murder of the third degree, conspiracy to commit drug delivery resulting in 

death, and conspiracy to commit delivery of a controlled substance.1 We 

affirm. 

Appellant’s convictions relate to the heroin overdose death of Aaron 

Lawrence (“the victim”) during the early morning hours of July 20, 2010. An 

arrest warrant was issued for Appellant on April 11, 2017, and her trial took 

place between May 14 and May 18, 2018. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2502(c) and 2506(a), 35 P.S. § 780-113(a)(30), and 18 

Pa.C.S. § 903(a)(1), respectively. 
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Evidence presented by the Commonwealth at trial demonstrated that 

Appellant, the victim, and Justin Wentz, Appellant’s boyfriend, were each 

experienced heroin users. N.T., 5/15/18, at 130, 197, 358; N.T., 5/17/18, at 

919, 994, 1013. The victim, however, had been released from prison

approximately ten days before his death and he had not developed a tolerance 

to heroin since his release – in other words, he was “narcotics-naive.” N.T., 

5/15/18, at 130; N.T., 5/16/18, at 499-501. Appellant and Wentz were aware 

that the victim had recently been released from prison and had a low 

tolerance. N.T, 5/17/18, at 717, 735, 784-85, 919. On July 19, 2010, 

Appellant, the victim, and Wentz collected money in order to go to Baltimore 

to purchase heroin. N.T., 5/15/18, at 360-64; N.T., 5/17/18, at 770, 904, 

912, 990-91. The victim remained at Wentz’s house in Hanover, 

Pennsylvania, while Appellant drove Wentz to Baltimore, Maryland. N.T., 

5/17/18, at 714-15, 760, 772, 906-08, 991-92. In Baltimore, Wentz 

purchased three grams of heroin, which Appellant and Wentz understood to 

be of high quality. Id. at 770-72, 785, 916. 

Upon returning to Wentz’s residence in Hanover in the late evening of 

July 19th, Wentz divided up the heroin, and Appellant, the victim, and Wentz 

each used heroin intravenously. Id. at 714-18, 777, 913, 993. According to 

Commonwealth witness Kande Lambertson, Appellant told her during a 2012 

conversation that the victim prepared his own dosage, and Appellant injected 

him, while Wentz injected Appellant and himself. Id. at 718, 740-41. 

Appellant told Lambertson that she watched as the victim “went into 
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convulsions, and his lips had started turning blue.” Id. at 716. Appellant

further stated that she “wanted to distance herself from the whole issue” and 

“did not want to be involved” so she left Wentz’s house late in the evening on 

July 19th taking the remainder of the heroin with her. Id. According to 

Wentz, after the victim began to exhibit signs of an overdose, he instructed 

Appellant to leave with all of the remaining heroin they had purchased and 

“get rid of it.” Id. at 919-20, 946-47. Appellant told Lambertson that she 

and Wentz discussed calling 911 before she left the house but they decided 

not to call. Id. at 718-19, 743.

After Appellant left Wentz’s house, she met several individuals and sold 

some of the heroin and then stashed the remainder behind a shed at her 

mother’s house. Id. at 716-17, 779, 781-82. During the hours of 10:53 pm 

on July 19th and 4:40 am on July 20th, Appellant and Wentz called each other 

more than 12 times. Id. at 812-16. After Appellant’s departure, Wentz placed 

four telephone calls to the victim’s phone and texted the victim asking where 

he was and whether he was in jail in an effort to “separate [him]self” from the 

victim and make it appear that they were not together. Id. at 814-15, 956-

57. Wentz also spoke with another friend twice during this period and 

expressed concern that the victim was non-responsive; the friend advised 

Wentz to call an ambulance, but Wentz ignored this advice. N.T., 5/15/18, at 

367-73. Finally, at 4:42 am on July 20th, Wentz called 911 and reported that 

an individual at his house had stopped breathing. N.T., 5/15/18, at 167; 

Commonwealth Ex. 13. When emergency personnel arrived, the victim was 
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not breathing, had no pulse, and was cool to the touch. N.T., 5/15/18, at 

173, 210. The victim was administered the opioid overdose drug Narcan, with 

no effect. Id. at 220

Appellant arrived back at Wentz’s house shortly after the emergency 

personnel. N.T., 5/15/18, at 182. Appellant told Lambertson that when she 

returned to Wentz’s house, “[s]he acted like she had just gotten there, that 

she had never been there before.” N.T., 5/17/18, at 719. According to Officer 

Clint Miles of the Hanover Borough Police Department, who had responded to 

the scene, Appellant acted defensively and coldly when informed that the 

victim had died. N.T., 5/15/18, at 183. Appellant told officers that she had 

last seen the victim at 7 pm the prior evening and stated that she was not 

aware that the victim had been using drugs. Id. at 185. The only drugs or 

drug paraphernalia found at Wentz’s house were heroin and cocaine residue 

in baggies inside of a pink and black purse; Appellant admitted that the purse

was hers but denied knowledge of the baggies inside. Id. at 174-75, 179-80, 

183, 223-24, 240.

The Commonwealth presented the testimony of three medical witnesses 

at trial. Deputy Coroner Claude Stabley, an expert in determining cause and 

manner of death, testified that the cause of the victim’s death was heroin 

toxicity; he based his opinion on the toxicology report, lack of physical trauma 

to the victim’s body, puncture marks in the victim’s right arm near his elbow, 

drugs found at the scene, and the lack of evidence of any other cause. N.T., 

5/15/18, at 253, 258-70. Dr. George Behonick, an expert in forensic 
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toxicology, testified that the presence of 26.4 nanograms per milliliter of

morphine in the victim’s blood and 461 nanograms per milliliter of 6-

acetylmorphine, a metabolite of heroin, in his urine indicated that the victim 

had used heroin prior to his death, but he had a long period of survival 

following the ingestion of the drug. N.T., 5/16/18, at 434, 447-53. Finally, 

Dr. Wayne Ross, an expert in forensic pathology, testified that the cause of 

the victim’s death was acute morphine toxicity with the source being the 

ingestion of heroin. Id. at 495, 510-12, 518, 581. According to Dr. Ross, the 

mechanism of death was respiratory depression as the victim’s brain 

eventually stopped informing his lungs to blow out carbon dioxide allowing 

acidity to build up in his body. Id. at 508-09, 515-17. Dr. Ross stated that 

he had reviewed all of the victim’s medical records and determined no other 

potential cause of death. Id. at 497-98, 502-05.

At the conclusion of trial, the trial court instructed the jury that Appellant 

could be found guilty of murder in the third degree, drug delivery resulting in 

death, and delivery of a controlled substance as a principal or as an 

accomplice. N.T., 5/18/18, at 1145-47. The jury found Appellant guilty of all 

charges on May 18, 2018. On July 24, 2018, the trial court imposed an 

aggregate sentence of 10 to 20 years of incarceration. Appellant filed a timely 
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post-sentence motion, which the trial court denied in a memorandum order 

filed on December 31, 2018. Appellant then filed a timely notice of appeal.2

Appellant raises the following issues on appeal:

I. Did the Trial Court err in ruling that the evidence was sufficient 

to support the verdicts for Third Degree Murder, Drug Delivery 

Resulting in Death, PWID/Delivery, as well as Conspiracy to 

Commit Those Offenses?

II. Did the Trial Court err in ruling that the verdicts were not 

against the weight of the evidence?

III. Did the Trial Court err in permitting Deputy Coroner Stabley 

to testify regarding toxicology issues where no notice of said 

testimony was provided to defense, he was not qualified as an 

expert in toxicology, and said testimony exceeded the scope of his 

expertise?

IV. Whether the Trial Court erred in precluding defense expert 

testimony or cross-examination of Commonwealth witnesses 

regarding prior suicide attempts by the victim, which were 

documented in stipulated medical records, as evidence of his state 

of mind at the time of his overdose?

V. Whether the Trial Court erred in instructing the jury it was 

allowed to infer malice based on [Appellant’s] failure to render aid 

to the victim where no such legal duty existed?

VI. Whether the Trial Court erred in permitting the Commonwealth 

to introduce bad acts evidence where no notice was provided, no 

exception to the prohibition existed, the prejudicial value of said 

testimony far outweighed its probative value, and no limiting 

instruction was sufficient to cure such prejudice?

Appellant’s Brief at 6 (suggested answers omitted).

____________________________________________

2 Appellant filed her Pa.R.A.P. 1925(b) statement on February 20, 2019, and 

the trial court issued a Pa.R.A.P. 1925(a) statement in lieu of opinion on 

February 26, 2019 relying on its reasons stated in its memorandum order 

denying Appellant’s post-sentence motion.
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Sufficiency of the Evidence

In her first issue, Appellant argues that the Commonwealth did not 

present sufficient evidence regarding (1) the malice element of the murder of 

the third degree and drug delivery resulting in death charges; (2) that 

Appellant caused the victim’s death as required to prove that she committed 

murder of the third degree and drug delivery resulting in death; (3) the 

delivery element of the drug delivery resulting in death and delivery of a 

controlled substance charges; and (4) that she entered into an agreement 

with Wentz or the victim as required to prove that she committed the three 

conspiracy offenses.

Before reaching the merits of this issue, we must address the 

Commonwealth’s argument that Appellant’s sufficiency argument was waived 

because she did not identify the specific elements that she was challenging in 

her concise statement of errors filed pursuant to Rule of Appellate Procedure 

1925(b). This Court has repeatedly held that “[i]n order to preserve a 

challenge to the sufficiency of the evidence on appeal, an appellant’s [Rule] 

1925(b) statement must state with specificity the element or elements upon 

which the appellant alleges that the evidence was insufficient.” 

Commonwealth v. Ellison, 213 A.3d 312, 320-21 (Pa. Super. 2019)

(quoting Commonwealth v. Stiles, 143 A.3d 968, 982 (Pa. Super. 2016)); 

see also Pa.R.A.P. 1925(b)(4)(ii) (“The Statement shall concisely identify 

each error that the appellant intends to assert with sufficient detail to identify 

the issue to be raised for the judge.”). “Such specificity is of particular 
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importance in cases where, as here, [the appellant] was convicted of multiple 

crimes each of which contains numerous elements that the Commonwealth 

must prove beyond a reasonable doubt.” Ellison, 213 A.3d at 321 (citation 

omitted). Where the appellant’s Rule 1925(b) statement “does not specify 

the allegedly unproven elements[,] . . . the sufficiency issue is waived [on 

appeal].” Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015)

(quoting Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.

2008)); see also Ellison, 213 A.3d at 321.

In this matter, Appellant’s Rule 1925(b) statement included the 

following sufficiency challenge: “Did the Trial Court err in ruling that the 

evidence was sufficient to support the verdicts for Third Degree Murder, Drug 

Delivery Resulting in Death, PWID/Delivery, as well as Conspiracy to Commit 

Third Degree Murder, Drug Delivery Resulting in Death and PWID/Deliver?” 

Rule 1925(b) Statement, ¶1. Appellant did not identify any of the elements 

of the six offenses for which she was convicted that she sought to challenge 

on appeal. Appellant previously did raise the specific sufficiency arguments 

she argues in this appeal in her post-sentence motion, which the trial court 

addressed in its opinion denying this motion; however, it is “of no moment to 

our analysis” that Appellant previously addressed these issues to the trial 

court because we apply Rule 1925(b) “in a predictable, uniform fashion” and 

therefore we will find waiver where appropriate “despite the presence of a trial 

court opinion” addressing the sufficiency claims. Tyack, 128 A.3d at 261 

(citation omitted). Accordingly, because Appellant did not identify any of the 
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specific elements as to which she claims the evidence was insufficient, 

Appellant’s first appellate issue is waived. Ellison, 213 A.3d at 321; Tyack, 

128 A.3d at 260.

3

 

Even if Appellant had not waived her sufficiency of the evidence 

arguments, we would find them to be without merit.

When reviewing the sufficiency of the evidence, we must 

determine whether the evidence admitted at trial and all 

reasonable inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, were sufficient 

to prove every element of the offense beyond a reasonable doubt.

The facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence. It is within the 

province of the fact-finder to determine the weight to be accorded 

to each witness’s testimony and to believe all, part, or none of the 

evidence. The Commonwealth may sustain its burden of proving 

every element of the crime by means of wholly circumstantial 

evidence. As an appellate court, we may not re-weigh the 

evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Hill, 210 A.3d 1104, 1112 (Pa. Super. 2019) (internal 

citations, quotation marks, and brackets omitted).

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3

In Commonwealth v. Laboy, 936 A.2d 1058 (Pa. 2007) (per curiam), our 

Supreme Court held that waiver is not always required in cases where the 

appellant’s Rule 1925(b) statement does not identify the elements as to which 

the appellant contends the evidence was insufficient. Specifically, the court 

held that waiver was inappropriate because the case on appeal involved a 

“relatively straightforward drug case,” with an “evidentiary presentation 

span[ning] a mere thirty pages of transcript,” and the trial court “readily 

apprehended” the appellant’s sufficiency challenge. Id. at 1060. Here, by 

contrast, Appellant was convicted of six different offenses, the trial took place 

over five days with numerous witnesses, and the trial transcript spans more 

than 1,000 pages. Therefore, we find the application of Laboy inapt in the 

present case to excuse Appellant’s deficient Rule 1925(b) statement.
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Appellant first argues that the Commonwealth did not present sufficient 

evidence to establish the malice aforethought element of the murder of the 

third degree and drug delivery resulting in death charges. “Murder in the third 

degree is an unlawful killing with malice but without the specific intent to kill.” 

Commonwealth v. Dunphy, 20 A.3d 1215, 1219 (Pa. Super. 2011). At the 

time of the events at issue here, drug delivery resulting in death was defined 

as a type of murder of the third degree and therefore the Commonwealth was 

required to prove that the defendant acted with malice in causing the victim’s 

death. See 18 Pa.C.S. § 2506(a) (prior version); Commonwealth v. 

Ludwig, 874 A.2d 623, 631 (Pa. 2005).4

Our Supreme Court has defined malice as follows:

Malice is a legal term, implying much more [than ill-will, a spite, 

or a grudge]. It comprehends not only a particular ill-will, but 

every case where there is wickedness of disposition, hardness of 

heart, cruelty, recklessness of consequences, and a mind 

regardless of social duty, although a particular person may not be 

intended to be injured. . . . 

[M]alice is present under circumstances where a defendant did not 

have an intent to kill, but nevertheless displayed a conscious 

disregard for an unjustified and extremely high risk that his 

actions might cause death or serious bodily harm.

____________________________________________

4 Section 2506 of the Crimes Code, which sets forth the offense of drug 

delivery resulting in death, was amended in 2011 to define the offense as a 

felony of the first degree rather than as a type of murder. Commonwealth 

v. Peck, 202 A.3d 739, 744 n.5 (Pa. Super. 2019). “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.” Id.
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Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017) (internal citations 

and quotation marks omitted). Malice can be inferred from all of the 

circumstances surrounding the defendant’s conduct, which must be such that 

“one could reasonably anticipate death or serious bodily injury would likely 

and logically result.” Commonwealth v. Akhmedov, 216 A.3d 307, 322 

(Pa. Super. 2019). 

The Commonwealth presented sufficient evidence to show that 

Appellant acted with malice related to the victim’s death. The evidence 

showed that Appellant was aware that the victim had just been released from 

prison and was narcotics-naive and that the heroin Appellant and Wentz 

purchased in Baltimore was of good quality. Upon returning to Pennsylvania, 

Appellant injected the victim with the heroin and watched him as he began to 

exhibit signs of an overdose when he began to convulse and his lips and his 

lips turned blue. Though Appellant and Wentz discussed calling for medical 

assistance while Appellant was still at Wentz’s residence, Appellant left Wentz 

with the victim and sold or stashed the remainder of the heroin in an effort to 

distance herself from the victim. Between 10:53 pm and 4:40 am, Appellant 

and Wentz exchanged more than 12 telephone calls, yet Appellant did not call 

for medical assistance. During this time, the victim suffered from a slow, 

hours-long overdose death that could have been halted if medical personnel 

had been called and the anti-overdose drug Narcan had been administered. 

N.T., 5/16/18, at 517-18. Finally, upon Appellant’s return to Wentz’s house, 
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she acted as if she had not been there the night before and expressed no 

remorse. 

Appellant’s actions in injecting the victim with heroin, watching him 

begin to overdose, and then doing nothing for the victim while concealing her 

involvement in his drug use showed the hardness of heart, and disregard of 

social duty characteristic of the mental state of malice. Packer, 168 A.3d at

168; cf. Commonwealth v. Windslowe, 158 A.3d 698, 710 (Pa. Super. 

2017) (holding that Commonwealth proved malice element of murder in the 

third degree prosecution where defendant performed cosmetic procedure on 

a patient with industrial-grade silicone inappropriate for the procedure and 

then failed to call for emergency care when the patient began to exhibit ill 

effects from the treatment). Furthermore, it is clear that Appellant’s actions 

in providing heroin to the victim and then not seeking medical care for him 

created “an unjustified and extremely high risk that [her] actions might cause 

death or serious bodily harm.” Packer, 168 A.3d at 168. As this Court has 

explained, heroin has a “high potential for abuse,” its dangers “are legendary 

and known on a widespread basis,” and each use of heroin brings “the all too 

real possibility of death” through overdose. Minnesota Fire and Casualty 

Co. v. Greenfield, 805 A.2d 622, 627 (Pa. Super. 2002), aff’d on other 
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grounds, 855 A.2d 854 (Pa. 2004); see also Commonwealth v. 

Kakhankham, 132 A.3d 986, 995-96 (Pa. Super. 2015).

5

Appellant next argues that the Commonwealth failed to prove the 

causation element of the murder of the third degree and drug delivery 

resulting in death charges. To establish criminal causation, “the 

Commonwealth must prove that the defendant’s conduct was so directly and 

substantially linked to the actual result as to give rise to the imposition of 

criminal liability.” Commonwealth v. Leaner, 202 A.3d 749, 768 (Pa. Super. 

2019) (citation omitted). In Commonwealth v. Rementer, 598 A.2d 1300 

(Pa. Super. 1991), a murder of the third degree case, this Court set forth a 

two-part test for showing a causal relationship a defendant’s acts and a 

victim’s death:

First, the defendant’s conduct must be an antecedent, but for 

which the result in question would not have occurred. A victim’s 

death cannot be entirely attributable to other factors; rather, 

there must exist a causal connection between the conduct and the 

result of conduct; and causal connection requires something more 

than mere coincidence as to time and place. Second, the results 

of the defendant’s actions cannot be so extraordinarily remote or 

attenuated that it would be unfair to hold the defendant criminally 

responsible.

As to the first part of the test, the defendant’s conduct need not 

be the only cause of the victim’s death in order to establish a 

causal connection. Criminal responsibility may be properly 

____________________________________________

5 While Kakhankham concerns events occurring after the General Assembly 

amended the drug delivery resulting in death statute to reduce the mens rea

element to a recklessness standard, 132 A.3d at 994-95, this Court’s holding 

is nevertheless relevant to our consideration of the foreseeability and 

causation of death resulting from heroin use. 
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assessed against an individual whose conduct was a direct and 

substantial factor in producing the death even though other 

factors combined with that conduct to achieve the result. The 

second part of the test is satisfied when the victim’s death is the 

natural or foreseeable consequence of the defendant’s actions. 

Where the fatal result was an unnatural or obscure consequence 

of the defendant’s actions, justice would prevent us from allowing 

the result to have an impact upon a finding of the defendant’s 

guilt.

Leaner, 202 A.3d at 768-69 (internal citations and quotation marks omitted); 

see also Kakhankham, 132 A.3d at 993 (stating that two-part causation test 

set forth in Rementer is applicable in drug delivery resulting in death cases). 

In this case, the Commonwealth presented ample evidence to show that 

Appellant caused the victim’s death. With respect to the first part of the 

causation test, the Commonwealth showed that Appellant’s actions were an 

antecedent to the victim’s death because she traveled to Baltimore to 

purchase heroin with Wentz, and then, upon their return to Pennsylvania, 

Appellant injected the heroin into the victim’s arm. Furthermore, the 

Commonwealth’s medical expert testimony demonstrated that the victim’s 

death was a result of respiratory depression that followed from his ingestion 

of heroin. Appellant’s involvement in the purchase of the heroin, the delivery 

of the drug to the victim, and her injection of the heroin into the victim’s arm 

likewise satisfies the second part of the causation test. This Court has 

explained that, in cases where the defendant provides the victim with the 

heroin that was led to a fatal heroin overdose, the victim’s death is the “natural 

or foreseeable consequence” of the defendant’s conduct. See Kakhankham, 

132 A.3d at 995 (holding that the Commonwealth had satisfied both parts of 
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the causation test in a drug delivery resulting in death prosecution where the 

defendant provided heroin to the victim, the victim died of an overdose, and 

used packets of the heroin supplied by the defendant were found next to the 

victim’s body). In addition to her role in providing the heroin to the victim, 

the victim’s death was particularly foreseeable to Appellant because she was 

aware that the victim was narcotics-naive upon his release from prison, that 

the heroin was high quality, and that the victim began to exhibit symptoms of 

an overdose after his ingestion of the heroin. 

Appellant argues that the causation element was not satisfied because

Commonwealth did not present sufficient evidence to prove that the victim did 

not die of Wolff-Parkinson-White Syndrome, a heart condition the victim 

suffered from, which Appellant’s medical expert, Dr. Larence Guzzardi,

testified could not be ruled out as the cause of the victim’s death. N.T., 

5/16/18, at 632-36. We note that the Commonwealth was not required to 

present evidence to “preclude every possibility of [Appellant’s] innocence,” 

and that the jury had the sole responsibility determine the weight and 

credibility to be afforded to the evidence Appellant presented regarding this 

condition. Hill, 210 A.3d at 1112 (citation omitted). Nevertheless, Dr. Ross, 

the Commonwealth’s forensic pathology expert, testified that the victim had 

been treated and cured of Wolff-Parkinson-White Syndrome, and any death 

from this condition would have occurred through sudden cardiac arrest, rather 

than the slow respiratory failure that occurred here. N.T., 5/15/18, at 503-

04, 555-56, 566-67, 578.
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Appellant next argues that the evidence was insufficient to show that 

she delivered heroin to the victim as required for the drug delivery resulting 

in death and delivery of a controlled substance offenses. Under the Controlled 

Substance, Drug, Device and Cosmetic Act, delivery is defined as “the actual, 

constructive, or attempted transfer from one person to another of a controlled 

substance . . . whether or not there is an agency relationship.” 35 P.S. § 780-

102(b). “A defendant actually transfers drugs whenever he physically conveys 

drugs to another person.” Ellison, 213 A.3d at 319 (quoting 

Commonwealth v. Murphy, 844 A.2d 1228, 1234 (Pa. 2004)). An exchange 

of money is not required to find that a delivery of a controlled substance 

occurred. Id.

At the time that the events at issue in this case occurred, drug delivery 

resulting in death was defined as follows:

A person commits murder of the third degree who 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 Controlled 

Substance, Drug, Device and Cosmetic Act, and another person 

dies as a result of using the substance.

18 Pa.C.S. § 2506(a) (prior version). Accordingly, under this statute, a 

defendant can be convicted of drug delivery resulting in death if she delivered

a controlled substance as prohibited by the Controlled Substance, Drug, 

Device and Cosmetic Act, and the additional element is present that another 
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person died as a result of using that controlled substance.6 Id.; see also

Commonwealth v. Reese, No. 140 MDA 2019, unpublished memorandum 

at 8-10 (Pa. Super. filed Nov. 27, 2019) (holding that, under the substantially 

similar current version of the drug delivery resulting in death statute, delivery 

of a controlled substances is a lesser included offense of drug delivery 

resulting in death and therefore such convictions should merge for sentencing 

purposes).7

The Commonwealth here presented sufficient evidence to show that 

Appellant was an accomplice to Wentz’s delivery of heroin to the victim. An 

individual may face liability as an accomplice to the commission of a criminal 

offense when “with the intent of promoting or facilitating the commission of 

the offense, he . . . solicits such other person to commit it; or . . . aids or 

agrees or attempts to aid such other person in planning or committing it.” 18 

Pa.C.S. § 306(c)(1). The Commonwealth demonstrated that, after Appellant, 

Wentz, and the victim collected money to purchase drugs, Appellant then

drove Wentz to Baltimore where Wentz purchased three grams of heroin, a 

controlled substance. Appellant and Wentz then drove back to Hanover where 

____________________________________________

6 Appellant’s drug delivery resulting in death conviction could not be premised 

upon a violation of Section 13(a)(14) of the Controlled Substance, Drug, 

Device and Cosmetic Act, 35 P.S. § 780-113(a)(14), because that provision 

applies only to the “administration, dispensing, delivery, gift or prescription of 

any controlled substance by any practitioner or professional assistant 

under the practitioner’s direction and supervision.” Id. (emphasis added).

7 Though an unreported decision, we cite to Reese for its persuasive value. 

See Pa.R.A.P. 126(b) (non-precedential Superior Court decisions filed after 

May 1, 2019 may be cited for their persuasive value).
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the victim was waiting, and Wentz divided the heroin and gave the victim his 

share of the heroin. This evidence clearly shows that Wentz purchased heroin 

in Baltimore and conveyed it to the victim, and that Appellant aided in the 

delivery of the heroin by driving Wentz to Baltimore and back with the 

intention of facilitating the drug purchase. It is irrelevant to our analysis that 

neither Appellant nor Wentz profited from the conveyance of heroin to the 

victim because the exchange of money is not a prerequisite to the delivery of 

a controlled substance. Ellison, 213 A.3d at 319.8

Appellant’s final challenge to the sufficiency of the evidence relates to 

her convictions for conspiracy to commit the delivery of a controlled 

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

conspiracy to commit murder of the third degree. Appellant argues that there 

was no evidence of an agreement between Appellant and Wentz to commit 

any of the conspiracy offenses, but rather that the true criminal agreement 

existed between Wentz and the victim, who contributed to the purchase of the 

drugs and then received the drugs from Wentz and prepared his own fatal 

dosage. 

To sustain a conviction for criminal conspiracy, “the Commonwealth 

must establish that the defendant (1) entered into an agreement to commit 

____________________________________________

8 The Commonwealth argues that it also proved that Appellant “delivered” 

heroin to the victim by injecting the heroin into his arm. As we conclude that 

there was sufficient evidence to show that Appellant satisfied the delivery 

element as an accomplice to Wentz, we need not reach this alternative 

argument.
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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.” Commonwealth v. Fisher, 80 A.3d 1186, 1190 (Pa. 2013)

(citation omitted). 

An explicit or formal agreement to commit crimes can seldom, if 

ever, be proved and it need not be, for proof of a criminal 

partnership is almost invariably extracted from the circumstances 

that attend its activities. Thus, a conspiracy may be inferred 

where it is demonstrated that the relation, conduct, or 

circumstances of the parties, and the overt acts of the coconspirators sufficiently prove the formation of a criminal 

confederation. The conduct of the parties and the circumstances 

surrounding their conduct may create a web of evidence linking 

the accused to the alleged conspiracy beyond a reasonable doubt. 

Even if the conspirator did not act as a principal in committing the 

underlying crime, he is still criminally liable for the actions of his 

co-conspirators taken in furtherance of the conspiracy.

Commonwealth v. Johnson, 180 A.3d 474, 479 (Pa. Super. 2018) (citation 

omitted).

In the instant case, the Commonwealth demonstrated that Appellant 

and Wentz collected money to purchase heroin, traveled to Baltimore 

together, purchased heroin, and then returned to Hanover and conveyed the 

heroin to the victim for his use. After Appellant injected the victim, Appellant 

and Wentz observed the victim exhibiting signs of an overdose. Appellant and 

Wentz discussed calling 911 at that time but did not do so; instead, they 

decided that Appellant would leave Wentz’s house with the heroin in order to 

conceal their involvement with the victim’s drug use. Appellant followed 

through on this plan by selling some of the heroin and hiding the remainder. 
J-A30036-19

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After Appellant left, Wentz expressed his worries that the victim was 

overdosing in telephone conversations with another friend and placed phone 

calls and sent a text to the victim’s phone in an effort to create the appearance 

that they were not in fact at the same location. In addition, between 10:53 

pm and 4:40 am, Appellant and Wentz exchanged more than a dozen 

telephone calls; while the contents of these conversations is not known, the 

jury was entitled to infer that these discussions related to the victim’s 

condition and the question of how to keep themselves distanced from the 

victim’s situation. Johnson, 180 A.3d at 479. Finally, at 4:42 am Wentz 

called 911 to report that the victim stopped breathing; Appellant then arrived 

back at Wentz’s house shortly afterwards acting as if she had not been there 

the prior evening and was unfamiliar with the victim’s condition.

Viewing the evidence admitted at trial in the light most favorable to the 

Commonwealth as verdict winner, Hill, 210 A.3d at 1112, the Commonwealth 

established that Appellant agreed with Wentz to deliver heroin to the victim

and then, after they were aware that Wentz was overdosing, Appellant and 

Wentz decided to conceal their involvement in the victim’s drug use rather 

than call for emergency aid. This evidence was more than sufficient to show 

that Appellant and Wentz had entered a criminal agreement, whether explicit 

or implicit, to deliver heroin to the victim and then engage in a course of 

conduct that deprived the victim of urgently needed medical care to address 

his heroin overdose, leading to the victim’s death. Accordingly, we find 
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Appellant’s sufficiency claims with respect to the conspiracy offenses to be 

without merit. 

Weight of the Evidence

In her second appellate issue, Appellant argues that her convictions 

were against the weight of the evidence. When considering challenges to the 

weight of the evidence, our standard of review is as follows.

The weight of the evidence is exclusively for the finder of fact, who 

is free to believe all, none or some of the evidence and to 

determine the credibility of witnesses. Resolving contradictory 

testimony and questions of credibility are matters for the 

factfinder. It is well-settled that we cannot substitute our 

judgment for that of the trier of fact.

Moreover, when a trial court finds that the [verdict] is not against 

the weight of the evidence, we must give the gravest 

consideration to the trial court’s conclusion because it is the trial 

court, and not the appellate court, that had the opportunity to see 

and hear the evidence presented. Furthermore, a defendant will 

only prevail on a challenge to the weight of the evidence when the 

evidence is so tenuous, vague and uncertain that the verdict 

shocks the conscience of the court.

Commonwealth v. Cramer, 195 A.3d 594, 600-01 (Pa. Super. 2018) 

(internal citations and quotation marks omitted). The trial court addressed 

Appellant’s weight of the evidence argument in its memorandum order 

denying her post-sentence motion, concluding that the jury’s guilty verdict on 

all counts was consistent with the direct and circumstantial evidence 

presented at trial and did not shock the conscience of the court. Memorandum 

Order, 12/31/18, at 20.
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In this appeal, Appellant appears to challenge the weight of the evidence 

regarding each of the six crimes for which she was convicted. However, the 

section of Appellant’s brief devoted to this claim largely cross-references and 

repeats arguments set forth separately in her brief related to the sufficiency 

of the evidence, her challenge to the trial court’s jury instruction regarding 

malice, and her claim that the trial court abused its discretion in not permitting 

evidence regarding the victim’s prior expression of suicidal thoughts. 

Appellant’s Brief at 30-31. To the extent Appellant does present an argument 

regarding the weight of the evidence, it is limited to the assertion that “[t]he 

evidence was undisputed that Wentz was the principal actor in the delivery of 

the drugs to the victim,” the victim prepared his own dosage of heroin, and 

that Appellant “was no more than present at the scene” during the victim’s 

drug use and ensuing events. Id. Appellant, however, has not developed 

these arguments any further nor has she cited to any portions of the record 

that allegedly support her claims. Furthermore, Appellant only cites to two 

Supreme Court decisions to support her argument, Ludwig and 

Commonwealth v. Chambers, 188 A.3d 400 (Pa. 2018), and both of these 

cases address sufficiency, not weight, of the evidence claims. In light of 

Appellant’s failure to adequately develop her argument, we therefore find that 

this argument is waived. See Wirth v. Commonwealth, 95 A.3d 822, 837 

(Pa. 2014) (“[W]here an appellate brief fails to provide any discussion of a 

claim with citation to relevant authority or fails to develop the issue in any 

other meaningful fashion capable of review, that claim is waived.” (citation 
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omitted)); Milby v. Pote, 189 A.3d 1065, 1079 (Pa. Super. 2018) (“The 

failure to develop an adequate argument in an appellate brief may [] result in 

waiver of the claim under Pa.R.A.P. 2119.” (citation and internal quotation 

marks omitted)).

To the extent we would address Appellant’s weight of the evidence 

claim, we note that appellate review of this issue is

extremely limited and is confined to whether the trial court abused 

its discretion in finding that the jury verdict did not shock one's 

conscience. Thus, appellate review of a weight claim consists of 

a review of the trial court’s exercise of discretion, not a review of 

the underlying question of whether the verdict is against the 

weight of the evidence.

Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en 

banc) (citation omitted). 

Upon review, we do not conclude that trial court abused its discretion in 

finding that the jury’s verdict did not shock the conscience. While Appellant 

argues that Wentz was the “principal actor” in the delivery of heroin to the 

victim, Appellant’s Brief at 30, as discussed supra, Appellant was charged as 

a principal and an accomplice with respect to the delivery of a controlled 

substance and drug delivery resulting in death charges and ample evidence 

was before the jury that Appellant actively aided Wentz in purchasing the 

heroin and delivering it to the victim. Furthermore, Appellant’s contention 

that she was “no more than present at the scene,” id. at 31, is belied by 

Lambertson’s testimony that Appellant attempted to distance herself from the 

events after the victim began to overdose and Wentz’s testimony that he 
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asked her to get rid of the heroin after the victim began to overdose. 

Appellant’s argument in this regard is little more than a claim that this Court 

should reject the testimony of Commonwealth witnesses such as Lambertson 

in favor of the testimony of defense witnesses, an argument that would require 

this Court to exceed its appellate role and override the jury’s resolution of 

contradictory evidence and questions of credibility. Cramer, 195 A.3d at 600. 

Because Appellant has failed to establish the trial court abused its discretion 

in denying her weight of the evidence claim, her second issue fails.

Trial Court Examination of Medical Expert

In her third issue, Appellant contends that the trial court improperly 

asked questions of Deputy Coroner Stabley regarding the victim’s toxicology 

report when Stabley had not been qualified as an expert in toxicology. During 

re-cross-examination, defense counsel asked a series of questions regarding 

the metabolization of heroin, the levels of opiates reported in Appellant’s 

system in the toxicology report, and the therapeutic range of morphine when 

medically prescribed that was stated on the toxicology report. N.T., 5/15/18, 

at 302-03. The trial judge then stated that he was “confused” and asked 

several more questions regarding the relevance of the therapeutic range of 

morphine to the evaluation of the toxicology report and the determination of 

the cause of the victim’s death. Id. at 304, 307-09. Stabley explained that 

examining only the level of morphine in the blood did not provide a complete 

picture of what happened, but by looking at the levels of morphine and the 

heroin metabolite 6-monoacetylmorphine in the blood and urine, he was able 
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to determine that the victim had ingested a large amount of heroin that was 

being metabolized and excreted out of the body when he died. Id. Defense

counsel lodged an objection to the judge’s line of questioning, which the trial 

court overruled, explaining that defense counsel had “opened the door” 

through his previous line of questioning and that he was “truly confused” by 

Stabley’s responses and “maybe some jurors . . . are also confused.” Id. at 

305-07.

We review a trial court’s evidentiary rulings on an abuse of discretion 

standard. Commonwealth v. Fitzpatrick, 204 A.3d 527, 531 (Pa. Super. 

2019). An abuse of discretion will be found where “the law is overridden or 

misapplied, or the judgment exercised is manifestly unreasonable, or the 

result of partiality, prejudice, bias, or ill-will, as shown by evidence of record.” 

Id. (citation omitted).

Pursuant to the Pennsylvania Rules of Evidence, the trial court may 

examine a witness called by any party “[w]here the interest of justice so 

requires.” Pa.R.E. 614(b). “While a trial judge should normally leave 

questioning of witnesses to counsel, justice may require that a trial judge ask 

questions when absurd, ambiguous, or frivolous testimony is given or 

testimony is in need of further elucidation.” Commonwealth v. Carson, 913 

A.2d 220, 249 (Pa. 2006). “[W]here an important fact is indefinite or a 

disputed point needs to be clarified, the court may see that it is done by taking 

part in the examination[.]” Commonwealth v. Roldan, 572 A.2d 1214, 

1215 (Pa. 1990) (citation omitted). “[A] new trial is required . . . only when 
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the trial court’s questioning is prejudicial, that is when it is of such nature or

substance or delivered in such a manner that it may reasonably be said to 

have deprived the defendant of a fair and impartial trial.” Commonwealth 

v. Manuel, 844 A.2d 1, 9 (Pa. Super. 2004) (citation omitted).

We discern no abuse of discretion by the trial court in the questions it 

posed to Stabley. Initially, we note that Stabley was qualified as an expert in 

the field of determining the cause and manner of death, N.T., 5/15/18, at 

253-58, and therefore he was capable of testifying regarding the influence 

that the toxicology reports, including the levels of heroin metabolites reflected 

on that report, had on his determination of the cause and the manner of the 

victim’s death. Stabley had previously testified that he did not issue the death 

certificate with a cause of death until July 26, 2010 when he received and 

reviewed the toxicology report. Id. at 298. 

To the extent the trial court’s questions exceeded Stabley’s expertise, 

Appellant cannot complain because her counsel’s own questions on crossexamination and re-cross-examination “open[ed] the door” to the trial court’s 

interrogation of Stabley. See Commonwealth v. Harris, 884 A.2d 920, 928 

(Pa. Super. 2005) (when defendant “delves into what would be objectionable 

testimony” during the examination of a witness, “then the Commonwealth can 

probe further into the objectionable area” (citation omitted)).

9

 During cross-

____________________________________________

9 Though the reference in Harris to “opening the door” to areas of testimony 

that would otherwise be forbidden by the defense relates to the prosecution’s 
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examination, defense counsel asked several questions regarding the 

therapeutic range for morphine and the actual levels of morphine in the 

victim’s blood as reflected on the toxicology report, N.T., 5/15/18, at 288-91, 

and then on re-cross-examination, defense counsel revisited these topics. Id.

at 302-03. The trial court acted well within its discretion in determining that 

the questions posed to Stabley regarding the toxicology report required 

clarification and interrogating the witness further with the goal of resolving 

the confusion. Carson, 913 A.2d at 249; Roldan, 572 A.2d at 1215.

Admissibility of the Victim’s Prior Suicidal Thoughts

Next, Appellant challenges the trial court’s determination that she was 

not permitted to cross examine Dr. Ross, the Commonwealth’s forensic 

pathology expert, regarding the victim’s previous expression of suicidal 

thoughts that were reflected in his medical records. During the testimony of 

Dr. Ross, defense counsel sought to ask the witness questions regarding two 

incidents, the first occurring in May 2001 and the second in May 2008, in which 

Appellant verbally discussed or threatened to commit suicide and mental 

health checks were performed. N.T., 5/16/18, at 544, 549-50. The

Commonwealth objected, and the trial court sustained the objection, 

concluding that the defense could not raise the issue of suicidal thoughts or 

attempts without further corroborating evidence. Id. at 544-48, 549-51. In 

____________________________________________

ability to delve into the same topics, we see this doctrine as equally applicable 

in the context of a trial court following up on a party’s interrogation of a 

witness. 
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its memorandum order denying Appellant’s post-sentence motion, the trial 

court further explained that the 2001 and 2008 medical records showing the 

victim’s suicidal thoughts were too remote from his death to be relevant to 

the question of how he died. Memorandum Order, 12/31/18, at 33.

Appellant contends that the circumstances of the victim’s death were

consistent with suicide, as the victim was an experienced heroin user, knew 

that he was narcotics-naive after his release from incarceration, knew that the 

heroin Wentz had purchased was of high quality, and prepared his own 

dosage. In light of the fact that the circumstances lend themselves to a finding 

that the victim committed suicide by overdose, Appellant contends that the 

trial court’s refusal to let Appellant inquire into the victim’s suicide threats 

solely based on the remoteness in time of the threats was an abuse of 

discretion.

However, as Appellant recognizes in her brief, our Supreme Court has 

stated that previous threats or attempts of suicide may be relevant to show 

that a decedent’s death was at his own hands, when two requirements are 

satisfied: first, the circumstances of death were as consistent with suicide as 

with homicide, and, second, the suicide threats or attempts were made within 

a reasonable time before death. See Commonwealth v. Donough, 103 

A.2d 694, 699 (Pa. 1954); Commonwealth v. Santos, 119 A. 596, 598-99 

(Pa. 1923); see also Commonwealth v. Hess, 548 A.2d 582, 585 (Pa. 

Super. 1988) (statements relevant to a declarant’s state of mind “may be 
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inadmissible if they were made at a time so remote from the incident to which 

they purportedly pertain that their probative value is de minimus”).

As set forth above, one of the incidents of a suicide threat occurred more 

than two years prior to the victim’s death, while the other incident occurred 

more than nine years prior to his death. We cannot say that the trial court’s 

determination that these incidents were “too remote in time” to be relevant 

to the issue of whether Appellant committed suicide was an abuse of 

discretion. Donough, 103 A.2d at 699; cf. id. at 699-700 (threat of suicide 

by the deceased in the minutes prior to a death may be relevant if reasonably 

connected to the circumstances of the death); Santos, 119 A. at 598-99 

(threat of suicide within three weeks of the victim’s death was not too remote 

in time to warrant exclusion from the evidence).

Malice Jury Instruction

In her fifth issue, Appellant challenges the trial court’s instruction to the 

jury with respect to the murder of the third degree and drug delivery resulting 

in death charges that “[m]alice can be inferred from the failure of the 

Defendant to seek medical care for the victim.” N.T., 5/18/18, at 1136-37. 

Appellant contends that this instruction erroneously stated the law because it 

imposed a non-existent duty of care on her in a case where the victim willingly 

ingested the heroin that lead to his death. Appellant distinguishes the present 

matter from cases in which courts have found that malice could be inferred 

from the failure to provide medical care, noting that in those cases the 

defendants had used a deadly weapon on a vital part of the victim’s body and 
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then abandoned the victim without attempting to obtain medical care. See

Commonwealth v. Boyd, 334 A.2d 610, 613-14 (Pa. 1975); 

Commonwealth v. Lee, 626 A.2d 1238, 1239, 1242 & n.4 (Pa. Super. 1993).

We review jury instructions to determine whether the trial court 

committed an abuse of discretion or an error of law. Commonwealth v. 

Soto, 202 A.3d 80, 98 (Pa. Super. 2018). We must “look to the instructions 

as a whole, and not simply isolated portions, to determine if the instructions 

were improper.” Commonwealth v. Sandusky, 203 A.3d 1033, 1098 (Pa. 

Super. 2019) (citation omitted). The trial court has broad discretion and may 

choose its own words in fashioning jury instructions. Soto, 202 A.3d at 98. 

“Our key inquiry is whether the instruction on a particular issue adequately, 

accurately and clearly presents the law to the jury, and is sufficient to guide 

the jury in its deliberations.” Id. (citation omitted). 

Here, the trial court instructed the jury regarding the malice element of 

the drug delivery resulting in death charge as follows:

Here is what malice means in this context. A Defendant’s actions 

are made with malice if they show his or her wanton and willful 

disregard of an unjustified and extremely high risk that his or her 

conduct would result in death or serious bodily injury to another.

The Commonwealth need not prove that the Defendant specifically 

intended to kill another. But it must prove beyond a reasonable 

doubt that the Defendant took action while conscientiously; that 

is, knowingly disregarding the most serious risk that he or she was 

creating. And that by his or her disregard of that risk, he or she 

demonstrated an extreme indifference to the value of human life. 

Malice can be inferred from the failure of the Defendant to 

seek medical care for the victim.
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N.T., 5/18/18, at 1135-36 (emphasis added). The trial court then gave the 

following instruction on malice as part of the murder of the third degree 

charge:

The word malice as I’m using it has a special legal meaning. It 

does not mean simply hatred, spite, or ill will. Malice is a 

shorthand way of referring to a particular mental state that the 

law regards as being bad enough to make a killing murder.

For murder of the third degree, a killing is with malice if the 

perpetrator’s actions show his or her wanton and willful disregard 

of an unjustified and extremely high risk that his or her conduct 

would result in death or serious bodily injury to another. In this 

form of malice, the Commonwealth need not prove that the 

perpetrator specifically intended to kill another person. The 

Commonwealth must prove, however, that the perpetrator took 

action while conscientiously; that is, knowingly disregarding the 

most serious risk that he or she was creating. And that by his or 

her disregard of that risk, the perpetrator demonstrates his or her 

extreme indifference to the value of human life. 

When deciding whether the Defendant acted with malice, you 

should consider all of the evidence regarding her words, conduct, 

and the attending circumstances that may show her state of mind. 

Malice can be inferred from the failure of the Defendant to 

seek medical care for the victim. 

Id. at 1136-37 (emphasis added). Appellant lodged an objection to the 

instruction that malice can be inferred from the failure to seek medical care, 

which the trial court overruled. Id. at 1158-59.

Viewing the instructions as a whole, we conclude that the trial court 

accurately and clearly described to the jury the law regarding malice. 

Sandusky, 203 A.3d 1033, 1098; Soto, 202 A.3d at 98. The trial court’s 

statement that malice can be inferred from the failure to provide medical care 

is well-established in our case law. In Boyd, our Supreme Court held that, 
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where the defendant shot the victim unintentionally during a fight at a 

gambling house and then moved the bleeding victim to his car and left him 

there, “the court could infer malice from [the defendant’s] failure to attempt 

to obtain aid for the wounded man.” 334 A.2d at 614. In Lee, the defendant 

shot the victim in the face from close range and did not attempt to obtain 

immediate medical attention for the victim; citing Boyd, this Court stated that 

“[m]alice can be inferred in a homicide prosecution from the failure of the 

defendant to seek medical care for the victim.” Lee, 626 A.2d at 1242 n.4. 

The trial court repeated this statement of the law nearly verbatim in its 

instruction. Finally, we observe that the trial court’s instruction regarding the 

inference of malice from the failure to provide medical care did not appear in 

isolation, but rather this instruction followed an accurate recitation of the 

malice standard as set forth in our case law. See, e.g., Packer, 168 A.3d at

168. Accordingly, Appellant’s fifth appellate issue warrants no relief. 

Bad Act Evidence

Finally, Appellant argues that the trial court abused its discretion by 

allowing the Commonwealth to admit other bad acts evidence related to 

Appellant making two sales of heroin after she left Wentz’s residence on the 

night of July 19, 2010. Appellant contends that the Commonwealth’s proffered 

use for this evidence to show Appellant’s state of mind is not set forth in the 

list of authorized uses for other bad act evidence under Pennsylvania Rule of 

Evidence 404(b)(2) and in fact this evidence was used to show Appellant’s 

propensity to commit crime, which is forbidden under Rule 404(b)(1). 
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Appellant argues that the other bad act evidence was highly prejudicial 

because it showed that she was selling drugs while the victim was dying of an 

overdose and such prejudice outweighed any limited probative value that it 

had. Appellant further claims that she was not provided with reasonable 

notice of the fact that this information would be admitted in advance of trial 

as required by Rule 404(b)(3). 

Rule 404(b) provides as follows:

(b) Crimes, Wrongs or Other Acts. 

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is 

not admissible to prove a person’s character in order to show that 

on a particular occasion the person acted in accordance with the 

character.

(2) Permitted Uses. This evidence may be admissible for another 

purpose, such as proving motive, opportunity, intent, preparation, 

plan, knowledge, identity, absence of mistake, or lack of accident.

In a criminal case this evidence is admissible only if the probative 

value of the evidence outweighs its potential for unfair prejudice.

(3) Notice in a Criminal Case. In a criminal case the prosecutor 

must provide reasonable notice in advance of trial, or during trial 

if the court excuses pretrial notice on good cause shown, of the 

general nature of any such evidence the prosecutor intends to 

introduce at trial.

Pa.R.E. 404(b).

This Court has explained that:

In accordance with Rule 404(b)(1), evidence of prior bad acts or 

criminal activity unrelated to the crimes at issue is generally 

inadmissible to show that a defendant acted in conformity with 

those past acts or to show criminal propensity. However, it is well 

settled that 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. In determining whether evidence 
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of other prior bad acts is admissible, the trial court is obliged to 

balance the probative value of such evidence against its prejudicial 

impact. 

Commonwealth v. Conte, 198 A.3d 1169, 1180 (Pa. Super. 2018) (internal 

citations and quotation marks omitted). With respect to the notice 

requirement of Rule 404(b)(3),

[t]he purpose of this rule is to prevent unfair surprise, and to give 

the defendant reasonable time to prepare an objection to, or ready 

a rebuttal for, such evidence. However, there is no requirement 

that the notice must be formally given or be in writing in order for 

the evidence to be admissible. 

Commonwealth v. Lynch, 57 A.3d 120, 125-26 (Pa. Super. 2012) (internal 

citations and quotation marks omitted).

In its memorandum order denying Appellant’s post-sentence motion, 

the trial court concluded that Appellant was provided notice of the bad acts 

evidence as demonstrated by the fact that she made an oral motion in limine

at the outset of trial seeking to exclude any reference to her drug deals after 

she left Wentz’s house, which the trial court denied. Memorandum Order, 

12/31/18, at 39; N.T., 5/14/18, at 11-20. The court concluded that the bad 

acts evidence was admissible under Rule 404(b) because it showed Appellant 

had the “wickedness of disposition” or “hardness of heart” necessary to find 

that she possessed malice aforethought when she left the victim overdosing 

at Wentz’s house and disposed of the heroin instead of calling 911 or otherwise 

seeking aid for the victim. Memorandum Order, 12/31/18, at 39. The court 

explained that the evidence of Appellant’s drug sales had little prejudicial 

effect on Appellant because there was substantial other evidence at trial that 
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Appellant, Wentz, and the victim were regular users of heroin and involved in 

transactions for the drug, including the July 19, 2010 purchase in Baltimore. 

Id. at 39-40. Finally, the trial court noted that it provided a limiting instruction 

to reduce any prejudicial value that the other bad act evidence might have on 

Appellant. Id. at 40.10

We agree with the trial court. First, Appellant was clearly on notice 

regarding the bad acts evidence because the source of the Commonwealth’s 

evidence was Appellant’s own statement to police, which the Commonwealth 

provided Appellant in discovery and the use of which Appellant challenged 

prior to the commencement of trial. N.T., 5/14/18, at 16-17. Appellant has 

not demonstrated any unfair surprise or prejudice from the notice provided. 

See Lynch, 57 A.3d at 125-26. Furthermore, Appellant’s heroin sales during 

____________________________________________

10 The trial court instructed the jury as follows:

In this case, you have heard evidence tending to prove that the 

[Appellant] was guilty of improper conduct for which she is not on trial. 

I am speaking of the testimony to the effect that the [Appellant] used 

and delivered drugs on other occasions and was subjected to an 

unrelated arrest.

This evidence was introduced for a limited purpose. That is for the 

purpose of tending to explain the natural chain and sequence of 

events[,] tending to show or rebut the [Appellant’s] state of mind 

concerning the crimes charged or tending to show or rebut the 

voluntariness of the [Appellant’s] statements to the police.

This evidence must not be considered by you in any way other than for 

the purpose I just stated. You must not regard this evidence as showing 

that the [Appellant] is a person of bad character or criminal tendencies 

from which you must be inclined to infer her guilt regarding the charges 

lodged against her in this case.

N.T., 5/18/18, at 1131-32.
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the period when the victim was overdosing from heroin at Wentz’s house were 

clearly relevant to show Appellant’s extreme indifference to human life and 

recklessness of consequences characteristic of the state of mind of malice 

necessary for Appellant’s conviction of murder of the third degree and drug 

delivery resulting in death. Packer, 168 A.3d at 168. In addition, Appellant’s 

heroin sales were relevant as res gestae evidence to “tell the complete story” 

of her criminal acts to show what occurred between the time she left Wentz’s 

house on the evening of July 19, 2010 while the victim was overdosing and 

when Wentz finally called 911 at 4:42 am on July 20th. See Commonwealth 

v. Hairston, 84 A.3d 657, 666 (Pa. 2014) (other bad act evidence “relevant 

for res gestae purposes to explain the history and course of events on” the 

day of the crime); Commonwealth v. Brown, 52 A.3d 320, 332 (Pa. Super. 

2012) (“[T]he history of the res gestae exception demonstrates that it is 

properly invoked when the bad acts are part of the same transaction involving 

the charged crime.”). Though not explicitly identified in Rule 404(b)(2), both 

the issue of the defendant’s state of mind demonstrating malice and res gestae

evidence have been recognized as legitimate purposes for the admission of 

other bad act evidence. See Hairston, 84 A.3d at 666 (res gestae);

Akhmedov, 216 A.3d at 317-19 (malice).

Furthermore, as the trial court explained, Appellant was not unfairly 

prejudiced by the admission of evidence that she sold heroin to other parties 

after leaving Wentz’s house on July 19, 2010 in light of the substantial 

evidence before the jury regarding her use of heroin and participation in 
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transactions involving the drug. “The trial court is not required to sanitize the 

trial to eliminate all unpleasant facts from the jury’s consideration where those 

facts are relevant to the issues at hand and form part of the history and natural 

development of the events and offenses for which the defendant is charged.” 

Hairston, 84 A.3d at 666 (citation and quotation marks omitted). To the 

extent this evidence could be prejudicial to Appellant, the trial court 

appropriately instructed the jury regarding the proper considerations of the 

bad act evidence therefore minimizing any concern that the evidence would 

inflame the jury or cause it to convict Appellant on an improper basis. See 

id.

Accordingly, Appellant is not entitled to relief on any of the issues raised 

in this appeal. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/21/2020