MURDER CHARGE REJECTED; DRUG LAW RULED UNCONSTITUTIONAL

Third-degree murder charges were dismissed yesterday against a Beaver
County man who still faces trial on charges that he delivered the drug
Ecstasy that led to the death last May of a Sewickley teen.

In an opinion issued yesterday, Common Pleas Judge Jeffrey A. Manning ruled
unconstitutional the state law that was used as the basis for filing the
charge against the defendant, Gregory D. Ludwig, 20, of Rochester.

Ludwig still is charged with possession, possession with intent to deliver
and delivery of the drug methylenedioxymethamphetamine. It commonly is
known as Ecstasy, a hallucinogen that caused 16-year-old Brandy French to
vomit, lapse into a coma and die.

Manning's ruling called into question a 1972 statute passed by the
Legislature that says that a person who delivers a drug that causes the
death of the recipient is guilty of third-degree murder.

However, that language does not spell out a key element -- malice, which is
required in a third-degree murder case.

With regard to Ludwig, Manning ruled that the defendant had no malice and
prosecutors made no attempt to prove such a state of mind.

Brandy and some friends bought the drug May 19 from Ludwig and they each
ingested one of the pills at the X-fest rock concert that night at the
Post-Gazette Pavilion in Burgettstown.

Brandy became ill and confused and was later taken to a friend's home in
Bell Acres, where she continued to vomit and pass in and out of consciousness.

The complaint alleges that Ludwig committed murder in the third degree when
he delivered, sold and distributed the Ecstasy in violation of the
Controlled Substance, Drug, Device and Cosmetic Act, leading to Brandy's death.

At a preliminary hearing in December, Paula Wilson testified that she
arranged the sale with Ludwig.

Brandy died on May 20 in Allegheny General Hospital.

Manning wrote that the 1972 statute is vague in that it does not
distinguish between two historically recognized classes of crimes: Those
that are wrong in themselves, such as murder, and those considered wrong
because society wants their commission proscribed, such as drug trafficking.

What the Legislature accomplished was to take the socially wrong crime and
declare that it is third-degree murder. The problem is that the act of
delivering the drug does not include the element of malice required to be
guilty of third-degree murder.

Manning ruled that prosecutors presented insufficient evidence, because the
case does not address the defendant's state of mind. It did not address the
question of whether Ludwig delivered the drug with the knowledge that it
would or could kill Brandy.

Did Ludwig act with malice?

Thomassey argues that he did not.

"This kid did not commit murder," Thomassey said outside the courtroom.
"You just can't redefine third-degree murder that way.

"Unfortunately, these kids want these drugs. And if there's no malice,
there's no third-degree murder," Thomassey added.

Manning ruled that pretrial arguments presented by Assistant District
Attorney Stephie Kapourales showed "there is simply no malice whatsoever"
on Ludwig's part.

Besides, he added, prosecutors did not present any evidence concerning the
dangers of Ecstasy.

"If arbitrary and discriminatory enforcement is to be prevented, laws must
provide explicit standards for those who apply them," Manning wrote.

Manning said the court still did not condone drug dealing.

"It is abhorrent -- abhorrent to the judiciary, to the community and to any
and all reasonable citizens of this commonwealth."

District Attorney Stephen A. Zappala Jr. said his office would "thoroughly
review the decision" before deciding whether to appeal to a higher court or
the state Legislature.

"Notwithstanding the well written opinion of the court, I believe that the
Legislature intended to make it absolutely clear that if you sell drugs and
someone dies as a result, you have committed a murder. There is nothing
vague about that intention," Zappala said in a written statement issued
after the judge's ruling.

"I have a settled and undeterred purpose of stopping these murders,"
Zappala wrote.

That resolve is welcomed by Brandy's family, which has filed a civil suit
against those who did not seek timely medical help for her.

"We have mixed feelings about the decision. Obviously, we are disappointed
that the judge dismissed the criminal charges, but we understand his
reasons for so doing.

"On the other hand, we are gratified that the judge supported the family's
contention that medical help obviously should have been summoned much
sooner for Brandy."

Attorney John P. Gismondi, who represents Brandy's family, said that the
dismissal of the criminal homicide charge has no direct impact on a civil
suit filed against Brandy's friends and their parents who failed to seek
timely medical attention for her.