As the nationwide opioid epidemic continues to grip Pennsylvania, the state Supreme Court has agreed to examine which elements are necessary to sustain a conviction for the crime of drug delivery resulting in death.

The justices granted allocatur Sept. 24 in Commonwealth v. Peck.

Defendant Mitchell Peck Jr. was convicted in the York County Court of Common Pleas of one count of drug delivery resulting in death under Section 2506 of the Pennsylvania Crimes Code, stemming from his sale of heroin to his friend Kevin Hunt that ultimately caused Hunt to overdose and die. Peck received the maximum sentence of 20 to 40 years in prison.

Peck argued on appeal that the sale could not have violated Section 2506 because it occurred in Maryland, not Pennsylvania. But while a separate count charging Peck with delivery of heroin was ultimately tossed out by the trial court for lack of jurisdiction, York County prosecutors countered on appeal that, with regard to the drug delivery resulting in death charge, the location of the sale was rendered irrelevant by the fact that Hunt's death occurred in Pennsylvania.

A unanimous three-judge Superior Court panel ruled this past January to affirm Peck's conviction and sentence.

"Instantly, appellant has not demonstrated that the elements of Section 2506 preclude a conviction for drug delivery resulting in death where the drug delivery occurred outside of Pennsylvania," Judge Carolyn Nichols wrote for the panel in a precedential Jan. 8 opinion. "Section 102 clearly establishes that acts occurring outside of Pennsylvania may be subject to criminal prosecution in Pennsylvania, particularly when a death occurs within Pennsylvania."

Nichols, joined by Judges Susan Peikes Gantman and Kate Ford Elliott, rejected Peck's argument that the state failed to prove he violated Pennsylvania's Controlled Substance, Drug, Device, and Cosmetic Act (CSDDCA), which is a necessary element of a drug delivery resulting in death charge.

The panel said the prosecution "presented evidence that (1) although the conduct, i.e., the delivery, occurred in Maryland, it was in violation of Pennsylvania's CSDDCA, (2) a death resulted from the delivery, and (3) appellant acted recklessly when causing decedent's death."

"Therefore, even if the trial court lacked jurisdiction to convict appellant of the delivery under Section 102, the commonwealth still established the sufficiency of the evidence of a drug delivery resulting in death," Nichols said.

Peck also argued that the trial court's decision to hand down the maximum sentence was improperly based on a "double counting" of sentencing factors: namely, that Peck delivered Hunt a "deadly drug" and that the delivery resulted in death. In addition, Peck contended that the trial court improperly factored in his prior drug convictions, the potency of the heroin he sold to Hunt and the fact that he was friends with Hunt.

But the Superior Court waved off all of those arguments.

"The court's explanation for its sentence included proper aggravating factors, such as the nature of the drug that appellant sold, appellant's salesmanship of the heroin he sold, and appellant's existing relationship with decedent," Nichols said. "The court's references to appellant's prior convictions for drug offenses were proper, as the specific nature of those offenses was relevant to the court's consideration of appellant's rehabilitative potential. Similarly, the court's reference to deterrence was adequately related to the protection of the public in light of appellant's poor rehabilitative potential."

In its one-page order granting allocatur, the Supreme Court agreed to consider three issues, as stated by Peck: "(1) Where the drug delivery resulting in death statute explicitly applies only to deliveries occurring 'in violation of Section 13(a)(14) or (30) of' the Controlled Substance, Drug, Device and Cosmetic Act, is violation of the act an essential element of DDRD? (2) Where a drug delivery occurs wholly in another state, can that delivery violate the act, which explicitly applies only to deliveries occurring 'within the commonwealth'? (3) If a violation of the act is an element of DDRD and an out-of-state delivery does not violate the act, did the Superior Court err in affirming [petitioner's] DDRD conviction based on a delivery occurring wholly in Maryland?"

Counsel for Peck, Brian McNeil of the York County Office of the Public Defender, could not be reached for comment.

A spokesman for the York County District Attorney's Office also could not be reached.