Intro: 0:16

The Supreme Court of Pennsylvania is the highest court in the Commonwealth and the oldest appellate court in the nation, an institution that shapes our practice our laws and our lives. This is a podcast by attorneys and for attorneys who argue before Pennsylvania's court of final appeal. Welcome to The Standard of Review by SCOPAblog.

Corrie Woods: 0:42

Hi, everyone, and welcome to The Standard of Review by SCOPAblog. I'm your host Corrie Woods, and we'll be talking today with attorney Brian McNeil of the York County Office of the Public Defender. Brian recently argued and won the case of Commonwealth vs. Peck, in which the court held that Pennsylvania's criminal statute prohibiting drug deliveries resulting in death, or DDRD, applies only to drug deliveries occurring in Pennsylvania. Brian's argument rested on the fact that the statute provides that a delivery must violate Pennsylvania's drug statutes, which it incorporates by reference. And the fact that whether or not the General Assembly knew it when they adopted the statute prohibiting DDRD, those statutes prohibit only drug activity in Pennsylvania. Brian's argument in this regard demonstrated an extremely close reading of the statute and solicitude for the rules of statutory construction, both touchstones of great criminal appellate advocacy, and saved his client from serving 20 to 40 years of his life in a State Correctional Institution. Let's listen. Our guest today is Brian McNeil, a career public defender specializing in appeals he studied at the University of Iowa College of Law and afterwards spent 11 years as an assistant appellate defender in Chicago. Brian currently serves as an attorney at the Appellate Unit of the York County Office of the public defender. Welcome, Brian, and thanks for talking with me today.

Brian McNeil: 2:02

Thanks very much. Thanks for having me today.

Corrie Woods: 2:05

So Brian, before we get into the case itself, can you just tell me a little bit about sort of why you became an attorney, and how you came to your current practice?

Brian McNeil: 2:13

This may not be terribly inspiring, but the reality is, I am not one of those people who always thought you know, since I was in diapers, I'm going to be the best lawyer of all time. In fact, I never really planned to go to law school until after graduating college and after, frankly, floundering for a little bit. And one of my buddies, however, was going to law school and basically told me, "Hey, you should go to law school too." And to be honest, I did not really have a very good answer to that. And that's in many, in many respects, why I ended up in law school was because I didn't really have another plan.

Corrie Woods: 2:52

And so how did you go from sort of law school to not the most glamorous work in the world of public defense and more specifically, appellate public defense?

Brian McNeil: 3:00

I, as you noted, I went to law school at University of Iowa. And I made my way to Chicago pretty quickly after that, largely because I had a lot more contacts and a lot more people there. And I initially got involved in commercial litigation. And I just hated it. It was clearly not for me, it was not my skill set, it was not my comfort zone. I didn't feel inspired by it. But you know, you got to pay the bills. So I stuck with it for about a year and a half. And then at some point along the way, I got handed an appeal. It was a commercial litigation appeal. But it was appeal, as opposed to what I had been doing, which is going into court and giving ludicrous justifications for failure to comply with perfectly valid discovery requests. And the appeal I really enjoyed, I felt like, this is more like kind of what I thought practicing law would be about, like, sort of, more civilized, more lofty, you know, you take the time to consider the arguments, read all these cases and everything like that. It was just I liked it a lot better. And it was just a much better fit for me. And so around that time, I applied for this position with the Office of the State Appellate Defender in Chicago. And it took forever, but I eventually did get an interview, and then thankfully, got hired there.

Corrie Woods: 4:19

And so, from Chicago to York County, how did that happen?

Brian McNeil: 4:23

Yeah, that's not a common trajectory. My wife is from here. And so we were in Chicago, when, you know, I was, I was still very happy with my career and everything like that. But we had two very small children. And long story short, raising children in Chicago is tough, especially if you don't really have any family out there, which neither of us really did. And so it kind of made a lot of sense to move here just to you know, get assistance with the kids kind of slow things down a little bit.

Corrie Woods: 4:56

So, before we talk about the case, let's talk a little bit about the Pennsylvania law. That really is at issue here. That would be the statute prohibiting drug delivery resulting in death. Can you give a little bit of background about the statute and sort of where it came from and you know what it's for?

Brian McNeil: 5:13

Well, it's been a while since I looked that closely at it but my understanding is it's it was passed in roughly 1987 or so in a radically different form, from where it stands now. And it was actually pretty hastily written, it appears, or at least maybe you'd say, badly written, such that it was, I believe it was struck in 1996 by the Supreme Court in the Hihawk case for being unconstitutionally vague or not putting people on notice of what it was that it was actually, you know, prohibiting it, what it was at what the actual sentence was. And so I think it's gone through several different incarnations since then can't remember the exact date of the most recent, you know, most significant amendments, but it has gone from a fairly loose and amorphous statute to a much clearer, well defined statute that obviously covers an awful lot of conduct. It's very far reaching in that it applies to any delivery that results in death.

Corrie Woods: 6:12

Yeah, and actually, it's my understanding that the statute was still sort of challenged as vague with respect to well, you know, it's one thing to say, resulting in death. But it's another thing to actually look at what kind of conduct that would encompass, because if you can trace the causal chain back far enough, ostensibly, you could you could find every every drug manufacturer in the United States to be a first degree felon.

Brian McNeil: 6:39

I think that's right. And I think that's worth stressing as far as just how far reaching at least potentially is. I think there's a case, I believe it's Story. I get them mixed up, because there's three big cases from the Superior Court and kind of the 2015 through 2017 range. There's Cochancam, Proctor and Story, I think Story is the one where it was kind of attenuated from what the defendant had actually done. I think he gave it to someone who gave it to someone else, who then took it and overdosed. And he challenged the conviction on the grounds that, "Hey, I did not directly deliver this drug." And the court actually said,"Nope, doesn't matter, the way the statute is drafted, it actually reaches your conduct." And in a bit of irony, it sort of suggested that, you know, if you get far enough down the chain, like what like what you were just talking about, like, you know, a drug manufacturer or something like that, or, you know, six, seven steps removed from the person who actually overdoses. Yeah, then maybe you got an argument, maybe you could say that that's just too far removed from your actual conduct to warrant being brought in under the statute. The reason I say that's a bit of irony is because a lot of this chatter on the statute and the people who are in favor of it have have said, this is a great way to go after drug kingpins, we're really going to get these, you know, these big wigs. And that's not how it's been used at all. And in fact, if they did try to go after real kingpins like that, I think the kingpins under that case would have a pretty good argument that, hey, you're so far removed from me down the chain, that the statute actually doesn't apply to my conduct. Maybe you can get one of my underlings. But you can't get me with this statute.

Corrie Woods: 8:20

Yeah. And actually, it's my understanding that Pennsylvania has the most, there's a lot of states that have similar statutes. But that Pennsylvania has the most prosecutions for drug delivery resulting in death in the country.

Brian McNeil: 8:33

That's what I've heard I there's a blog called The Appeal that I've read from time to time that has very useful information on this. Joshua Vaughn, I believe, is his name writes a lot of these stories, just kind of compiling useful data on this, and it does paint a picture of Pennsylvania as kind of leading the league in bringing prosecutions under this type of statute.

Corrie Woods: 8:55

So let's turn to the the case itself here. What are the essential allegations that Commonwealth made to sustain the prosecution?

Brian McNeil: 9:03

Pretty simple. That my client delivered heroin and that the decedent took the heroin and overdosed and that he died as a result of that overdose.

Corrie Woods: 9:16

And did the Commonwealth allege specifically that that delivery occurred in Pennsylvania?

Brian McNeil: 9:22

I don't think they did, because I think they were well aware at all times that it didn't. I think they sort of alighted any particular allegation with regard to where it took place.

Corrie Woods: 9:32

And so that fact sort of became the central fact for your claim, first, before the trial court and ultimately on appeal. Can you explain sort of how you came to develop that claim?

Brian McNeil: 9:43

Well, first, I should note that Joshua Neiderhiser was trial counsel in this case. He also worked with our office, he no longer does, but he was with our office at that time. And he raised an argument similar to what I made not exactly the same thing before the trial court after the conviction. And at that time, it was sort of, I'm gonna say swiftly rejected, but in reviewing the record for the appeal, once I got the case, I noted that he had made that argument and after just reviewing the text of the statute, it's pretty glaring to me that the statute requires a delivery in violation of the Controlled Substance, Drug Device and Cosmetic Act. And then if you take a look at that language, it also jumps off the page that only applies to events occurring within the Commonwealth of Pennsylvania.

Corrie Woods: 10:28

Right. And so just to just to tease together the claim, the issue is that if this delivery occurred outside of Pennsylvania, because the DDRD statute incorporates the Drug Act by reference, and the Drug Act itself refers to deliveries in Pennsylvania, because ostensibly, Pennsylvania can't be criminalizing drug transactions occurring outside the state.

Brian McNeil: 10:52

Would hope not

Corrie Woods: 10:53

One imagines not anyway. That somehow the statutes incorporation of that language, which includes that subset of language in Pennsylvania, goes all the way up the chain and makes the location of the delivery and elements of DDRD, right.

Brian McNeil: 11:13

Pretty much yeah, it's it's kind of a it's really a confluence of two statutes that provide the relevant framework, in my opinion, it's section 2506, or the DDRD statute requires violation of the Act. And that's pretty uncontroversial no one really ever argued otherwise. But then you have to answer the separate question of whether there's a violation of the Act. And there's sort of a preamble Section of the Act that says the following actions within the Commonwealth are hereby prohibited or something to that effect. And so it's that within the Commonwealth language, that it makes kind of a specific geographic restriction right out of the gate, as far as what is actually being prohibited under the Act. And so in light of that, in light of the fact that you have to have a violation of the Act, it just is a fairly simple syllogism that only a violation of the Act that takes place within the Commonwealth of Pennsylvania, or only a delivery that takes place within the Commonwealth of Pennsylvania, can give rise to a DDRD conviction.

Corrie Woods: 12:15

Seems I mean, it's a close reading of the statute, which has an appellate advocate, you know, you're to be commended for, but it seems pretty straightforward. Once you actually look at the text. What was the Commonwealth position? And and what were its arguments,

Brian McNeil: 12:29

The Commonwealth. The hardest part about this case, has been trying to keep it simple and trying to explain what it is that we're actually arguing, and fending off suggestions that we're arguing something else. And so the Commonwealth's position, pretty much from the the outset, once we started raising this argument was, "Hey, we have jurisdiction over this offense. So why are we even talking about this?" And so I tried to explain on numerous occasions, basically, we're not challenging jurisdiction. We embrace that there was jurisdiction in this case, because under Section 102 of the crimes code, one of the elements of the offense, the death of Mr. Hunt, did take place in Pennsylvania, and therefore there is jurisdiction. So while acknowledging that, the hard part has been kind of explaining, but what I'm really saying is it's not a jurisdictional issue. It's an issue of the statutory language, and what that language requires in terms of the elements of the offense. And so the related concepts, certainly anytime you're talking about, you know, geography, it's totally understandable that people would think you're talking about jurisdiction or would gravitate toward that sort of, you know, mindset, but basically, laboring to explain that we're not really challenging jurisdiction has been one of the biggest challenges.

Corrie Woods: 13:51

Yeah, so it's just very difficult conceptually to separate "may the General Assembly prohibit this conduct" from "well, did they?"

Brian McNeil: 13:59

That's right. And in in large part that was kind of the Commonwealth's position was "There's jurisdiction over this. And because there's jurisdiction, anything else, the statute or you know, the Drug Act says about territory or geography doesn't matter. Because there was jurisdiction, then this makes sense." And then the counter argument to that really was "Not really, because the jurisdiction means you can bring a prosecution? Yes. It does not mean that a prosecution that requires a specific location, ie inside the Commonwealth, doesn't mean you can prove all the elements of that offense."

Corrie Woods: 14:38

Right.

Brian McNeil: 14:38

And this was actually a big part of the oral argument before the Supreme Court was Justice Donahue, asked me several questions about this kind of trying to nail down the contours of that and the distinctions between that and jurisdiction.

Corrie Woods: 14:49

Right. So how was the argument received in the trial court and then at the Superior Court?

Brian McNeil: 14:55

I can't speak to what happened in the trial court because frankly, I wasn't there. That is something Mr. Neiderheiser handled. And I don't recall it being a big centerpiece argument at the trial court level because it like I said, I don't think that the argument was actually advanced until after the conviction. So I believe it was in motion for a new trial, or the post sentence motion but I don't think there was a whole lot of discussion about it at that time. So the first time it really got much focus, I think was probably in the trial court's rule 1925 A opinion responding to my raising in the in the 1925 b statement. And I think that's where you see the first instance of the trial court saying that's absurd, the legislature could not possibly have intended that result. And that was, I think, the principal reason for the 1925 A opinion. And then you get to the Superior Court. And

Corrie Woods: 15:40

Yeah again, like I said, I viewed one of my main challenges in this case, is just trying to trying to make clear what I was arguing and what I wasn't arguing. And this was sort of interesting and sort of frustrating, I happen to argue the case on the same day as the Jerry Sandusky PCRA case was being orally argued. And so as you might expect, I think that took up an awful lot of the judge's attention. It was one of those arguments that I don't know if you've had these, where I did not really get a lot of hard questions, or at least I didn't think I did. But I felt at the end of it. Like, I'm not sure they're really hearing me where I'm trying to go with this. Sometimes no questions are far worse than all the questions.

Brian McNeil: 16:20

Exactly. Like cause it betrays either just sort of, I'm not gonna I'm not gonna say they didn't understand it. I mean, like, they're obviously very intelligent judges, they know what's going on. But I think that they may not have been focusing on the right things, at least from my perspective. And so yeah, so I didn't get a whole lot of questions that I thought betrayed, like a real engagement with the issue to the extent that I would have liked.

Corrie Woods: 16:42

And so what was the rationale? I believe they affirmed, what was their rationale for affirming the conviction?

Brian McNeil: 16:48

They. It's been a while since I read the Superior Court opinion. But my recollection is they kind of bought into the jurisdictional thing that, you know, they I don't think they went so far as to say like, well, there was jurisdiction, and therefore, you know, what are you talking about? There's no issue. But I think they did kind of blur what I was arguing with some jurisdictional principles and say, basically, because other Superior Court decisions have cited the two principal elements of the offense as delivery and a death, we've got a delivery, we've got a death, we've got jurisdiction. What's the problem?

Corrie Woods: 17:24

Okay, so after the affirmance, presumably, you file a petition for allowance of appeal, and that is granted. Just out of curiosity, did you raise that issue alone? Or did you raise other issues?

Brian McNeil: 17:33

I actually raised the sentencing issue as well.

Corrie Woods: 17:34

Okay. Did they grant both, or just one?

Brian McNeil: 17:37

Just the main issue, which, you know, obviously, I'm turned out in a way that I'm happy with. But the sentencing issue i thought was interesting, too, in that my client got the maximum sentence for what, in my opinion, were a litany of factors that were inherent in the offense of DDRD, as far as you know, the death of Mr. Hunt, the fact that dangerous drugs were sold, things like that. And so I was sort of hoping the Supreme Court would be interested in that. But I recognize that sentencing issues are completely barred from review in some circumstances.

Corrie Woods: 18:10

So what happens at the Supreme Court?

Brian McNeil: 18:12

Fairly standard stuff, except for COVID probably. You know, filed a brief, Commonwealth filed its brief making, you know, basically what I expected in light of the round of briefing we'd had in the Superior Court. And I think, I think the day before I filed my reply brief, or no I'm sorry, the day that I did file my reply brief was the day before everything started really going crazy with COVID, at least where I was at. So I think I filed that like the day the day that all happened, and then there's a little bit of a break in oral argument, just because I don't I think they were just kind of setting up how they were going to proceed under COVID. But ultimately, I argued it from my basement via, you know, the web technology. And so I don't know, I I felt that like the argument went very well. As I noted earlier, I had that exchange with Justice Donahue where it's not that it was wasn't an unpleasant exchange or anything but it you know, she asked me some tough questions as far as well, is there a conflict between the jurisdictional provision of the crimes code and what this statute says? But mostly, I felt it went well, I felt they understood what I was, was arguing and Justice Wecht was borderline mean to the prosecutor on the case, which I almost felt bad for him. But he certainly didn't have any tough questions for me or anything. In fact, I don't think he had any questions for me at all.

Corrie Woods: 19:34

So the that was argued, I believe in May, that must have been one of the first sort of COVID oral arguments.

Brian McNeil: 19:40

I think it was in that first like, it was the first stretch of them. It might have been It was one of the last arguments in that session, I think, but it was I think that was the first session that was done remotely.

Corrie Woods: 19:50

So they hold on to the case from May til December. And essentially they agree with you, right?

Brian McNeil: 19:56

Yeah. You know, it was it was sort of funny, because it was something that happened at the beginning of the oral argument was I that was when they were first doing that format, where instead of just you know, a normal oral argument where you just kind of make your argument they interrupt you whenever they feel like it, they had it sort of more stratified where you got a certain number of minutes to make, like kind of an opening statement. And then they would sort of open the floor to questions. And I said something in that opening part about it being a simple case. And then before they started asking questions Justice Saylor, Chief Justice Saylor said something about, you know, sort of joked, "Thanks for thanks for giving us a simple case, we get so many hard ones." And then it turned out from, you know, from reading their opinion that I think that that's that's how they saw it, which which, you know, obviously doesn't surprise me because I felt like it was a clear case of, you know, the statutory language. But it seemed that it was a very straightforward. Well, this is what the statute says. And there you go.

Corrie Woods: 20:53

Yeah. And one, one point that I always try to bring up in situations like this is this sort of very plain meaning approach is traditionally viewed as a conservative judicial methodology. But that doesn't always lead to what we would view as politically conservative results. I mean, here we have very conservative judicial methodology. That just goes to what I think it would think is that extremely liberal outcome.

Brian McNeil: 21:17

I think that's exactly right. And, you know, I, as much as people who are liberal, and I, you know, I consider myself very liberal too, criticize Justice Scalia and Justice Thomas for, you know, textualism. And, you know, being rigidly you know, wedded to the text. I do think they, in many cases, were pretty consistent and would sometimes deliver results like this. Even if you would think that, hey, he's an extremely conservative guy. And yet here he is throwing this guy's conviction out.

Corrie Woods: 21:48

Yeah.

Brian McNeil: 21:48

And so I do find myself in cases like this sometimes quoting Justice Scalia, because he has fantastic opinions on the subject. He asked, I even quote some things from his oral argument sometimes. There's one in I think it was King v. Burwell or something where he asks, or he just it's more like an aside at some point that he said something, "Well, hey, it may not be the statute intended, they intended. The question is whether it's the statute they wrote," and I kind of love that in cases like this, obviously, because if I'm saying the text is the text is the text, and nothing else really matters. He provides all kinds of, you know, beautiful authority for that proposition.

Corrie Woods: 22:28

Yeah. But which is a great point, right? Because if if our goal is to determine legislative intent, that is the institutional intent of the General Assembly, as opposed to legislators' intent, I think that the courts kind of stand there for the proposition of, hey, if you want to make a rule, you have to have to just use your words, you know, it's not-

Brian McNeil: 22:48

Yeah

Corrie Woods: 22:48

It's not sufficient to, you know, just throw some legislative reports in, in the record and ask us to do your dirty work for you. Yeah, I think the reference to Scalia and Garner is particularly interesting here. And I wonder if you could talk a little bit about how Justice Wecht in his concurring opinion really takes the Commonwealth to task to some degree on its use of the absurdity canon.

Brian McNeil: 23:09

I really liked that, you know, well, obviously, I'm a little biased in light of the result. But I really like to just from the standpoint that I this is one of the things I love about the Pennsylvania Supreme Court, and it's one of the reasons I love Justice Wecht, in particular, in some of his opinions on these things is he makes these hard opinions. He's He's not afraid. I mean, Justice Donahue, wrote the majority, of course, but this is consistent with a lot of things that Justice Wecht has done too, I think he is willing to apply the law. And you know that that concurrence is an excellent explication of what a judge's job is, and that, yes, if you're going to go the consequentialist route, which I think he refers to at one point in his concurrence, then sure, if you look at this, the result here, if you would ask the the General Assembly, should this guy's conviction be thrown out? On this particular reason? They probably would have said, No, they probably would have said, No, of course, this, of course, we want the statute to apply to him. However, as Justice Wecht noted very ably that's not the way we do it. We have to look at what the law actually says there are certain canons in place that help us, you know, glean the intent. And if the law says something, the certain statutory language is used, that language is supposed to be applied as it's written, regardless of the result.

Corrie Woods: 24:31

Yeah, and he has a really good passage, in the opinion, I try to avoid quoting too much on the podcast here, but he really sort of tears into the idea that everything that that seems to lead to relief for a criminal defendant is absurd or is contrary to the only possible legislative intent. And the line is where the criminal laws are concerned, courts should disabuse themselves of the notion that a consequence is unintended, and thus absurd, merely because it is not maximally punitive. I thought that was a really great way to put that. And I think it's particularly interesting because in my experience, I think a lot of times, and this is civil and criminal practitioners alike, when they want to interpret a statute, and they don't want to go through the entirety of Well, is this is this ambiguous? Or is this plain? And if it's ambiguous now I have to do, you know, research at the law library instead of sitting on Westlaw. I'm just gonna say it's absurd and file the thing. And I think I think he does a really good job of saying, no, if you want to say that something is absurd, that can't be just shorthand for Oh, come on the legislature wouldn't want to do this.

Brian McNeil: 25:37

No, I that's, I think that's absolutely right. And I think that it's that's an important thing that I think is sometimes lost, that the absurd results doctrine is not just a way to get out of doing the doing the hard work of applying the law, as it's written, you can't just you can't just make your own subjective assessment, like, like you said, you know, come on, and, you know, throw out, throw everything else out the window. Yes, there are certain limited circumstances under which the absurd results doctrine can come into play. And he explained, you know, very clearly what those are, but it's not just a snap your fingers, we can throw this argument away, because I mean, come on. It's ridiculous, right?

Corrie Woods: 26:15

Yeah. So I guess well, first of all, what are the results of this decision in terms of your client had the maximum sentence of I believe 20 to 40 years imprisonment? What what are the results for him?

Brian McNeil: 26:26

The results are his conviction and sentence were thrown out, and he was released from prison.

Corrie Woods: 26:32

So certainly a big deal for him. And where do you think this holding goes? In terms of future cases? Do you think that suddenly, every cop, every district attorney in Pennsylvania, is now forced to present evidence of the locus of a drug delivery, and every single DDRD case, or, frankly, possession with intent to deliver case at that.

Brian McNeil: 26:52

Um, you know, I think you could, you could certainly make an argument to that effect. I think that argument would be a lot more effective in situations where you know, where it's somehow in doubt, if it's, you know, if you're in dead center, Pennsylvania, and it's, uh, you know, hand to hand delivery at a convenience store, I'm not sure how much you're really going to get need to get into official proof that this was in the confines of Pennsylvania. But if you have cases like in York County, for example, where you know, a lot of there's a lot of sort of cross border activity taking place, or you know, any other place along the border, I do think that, at least in some cases, you're definitely gonna have to look into making sure that you prove that.

Corrie Woods: 27:32

And, you know, I think a lot of a lot of cases in the sort of DDRD sphere, the delivery is not, because as you said, a lot of times, it's not the sort of big drug kingpins that are prosecuted, it's, oh, this this sort of small time dealer or even a friend or cohort of some kind, give someone some drugs, a lot of times they're proven by circumstantial evidence, right? So there'll be text messages from before and after the transaction that suggests, hey, this must have happened at this point. But a lot of times, it's just sort of pieced together after the fact, where you don't have, you know, as you say, like a hand to hand delivery in view of a police officer. And I think the import of this case is, it does seem to suggest that, boy, the DA has got a heck of a lot harder time proving his case in those scenarios, because you really have no idea what happened.

Brian McNeil: 28:24

I mean, that's a very good point. I mean, you know, certainly text messages are absolute killers for the clients on these and are frequently, you know, with the possible exception of the toxicology report, the most damning evidence that that is presented and really, you know, sinks the client, but yeah, that's a very good point that you have message coming from phone X to phone Y, and unless you're gonna bring, you know, cell tower evidence or something like that into the equation, a lot of the time that you might really have no idea where either person was when, when this sort of thing took place.

Corrie Woods: 29:01

Brian, it's been a pleasure speaking with you, and thank you again for joining me today.

Brian McNeil: 29:05

It's been my pleasure. Thanks very much.

Outro: 29:08

Thanks for listening to The Standard of Review by SCOPAblog. This episode has been brought to you by Woods Law Offices, Raising the Bar for Pennsylvania Appeals. Check them out at www.WoodsLawOffices.com.