Jury has partial verdict in fatal drug delivery trial
NORRISTOWN >> While a Montgomery County jury determined a Hatboro woman delivered fentanyl to a Willow Grove man, they could not agree on whether she was responsible for the man’s overdose death.
With a partial verdict, a jury of 10 men and two women late Tuesday convicted Gwendolyn Prebish of two felony counts of possession with intent to deliver fentanyl but could not reach a unanimous decision on a more serious charge of drug delivery resulting in death. Prebish was charged in connection with November 2016 events surrounding the overdose death of Michael Pastorino, 32, of the Willow Grove section of Upper Moreland.
The jury deliberated more than nine hours after listening to four days of testimony. At one point during deliberations, jurors informed the judge they reached a verdict on two charges but were “split fiftyfifty” on the third charge.
Judge Steven T. O’Neill declared a mistrial on the single charge of drug delivery resulting in death, which leaves the door open for prosecutors to retry Prebish on that charge. O’Neill instructed Assistant District Attorney Kathleen McLaughlin to make that decision “expeditiously.”
Prebish, 30, of the unit block of Rorer Avenue, showed no emotion as the jury announced the partial verdict. She was supported in court by her parents.
O’Neill said Prebish will remain in the county jail while she awaits sentencing on the drug trafficking charges and pending a potential retrial on the drug delivery resulting in death charge.
Prebish could face up to several years in prison on the drug trafficking charges of which she was convicted.
A conviction of drug delivery resulting in death is punishable of up to 40 years in prison, a penalty that is similar to thirddegree murder.
During the trial, McLaughlin argued Pastorino died after injecting the fentanyl that he purchased from Prebish.
“He took the fentanyl and died and that fentanyl was delivered by this defendant,” McLaughlin, pointing at Prebish in the courtroom, argued to jurors during her closing statement on Tuesday. “Michael injected the fentanyl and didn’t wake up from it.”
But defense lawyer Jonathan J. Sobel argued Prebish was a drug addict who sold drugs to support her own addiction and was not a common street corner dealer. Sobel argued Prebish believed she was delivering heroin to Pastorino and did not know it was fentanyl.
An autopsy determined Pastorino also had heroin in his system.
“There’s no way to know what Michael took first. There’s no way to know what killed him,” Sobel argued to the jury during his closing statement, suggesting there was insufficient evidence to prove that it was the fentanyl that killed Pastorino. “There’s simply too much reasonable doubt in this case. This case is all about reasonable doubt.”
Testimony revealed Pastorino had been socializing with friends earlier in the evening and was believed to be involved in drug activity at that time, hours before he met with Prebish.
McLaughlin didn’t refute that Pastorino also had heroin in his system but pointed out tests determined the heroin was at low levels, whereas there was a high level of fentanyl in Pastorino’s system.
“When he had the heroin in his system he was alive, he was walking around, making decisions. When he took the fentanyl, he died,” McLaughlin argued, stressing it was the introduction of the fentanyl into Pastorino’s body that ultimately led to his death.
An investigation began about 6:45 p.m. Nov. 6, 2016, when Upper Moreland police responded to the 600 block of Fitzwatertown Road for a report of a drug overdose.
Officers found Pastorino dead, seated in a chair at his desk and clutching a syringe in his hand, Upper Moreland Detective Francis Joseph Gallagher Jr. testified during the trial.
At the scene, investigators recovered two syringes, blue wax bags stamped “Ferrari,” which was consistent with heroin packaging, and Pastorino’s cellphone, according to court documents and testimony.
An autopsy conducted by the Montgomery County Coroner’s Office determined the cause of Pastorino’s death was not heroin but was the even deadlier drug fentanyl, a synthetic opioid that is 40 to 50 times more deadly than street-level heroin, prosecutors alleged. The coroner ruled the death accidental as a result of drug intoxication.
Detectives found text messages on Pastorino’s cellphone indicating he contacted Prebish, his alleged drug dealer, at 11:32 p.m. Nov. 5, requesting four bags of heroin, according to court papers. At 1:13 a.m. Nov. 6, Prebish texted Pastorino asking if he had $40, detectives alleged.
When Pastorino indicated he had the money, Prebish texted him that she would be at his residence about 2 a.m. At 2:18 a.m. Nov. 6, Prebish arrived with the drugs and Pastorino was waiting for her outside, according to the complaint.
When detectives developed Prebish as a suspect in the death case, they arranged a controlled drug buy and on Nov. 7, Prebish was arrested by Upper Moreland police after she sold suspected heroin in blue wax bags stamped “Ferrari” to a confidential informant.
“These were the same markings found on the bags of suspected heroin possessed by Pastorino at the time of his death,” detectives alleged in the arrest affidavit.
At the time of her arrest, Prebish also possessed several prescription pills, detectives alleged.
In an interview following her arrest, Prebish told detectives she met Pastorino in the driveway of his home on Nov. 6 and delivered $40 worth of heroin to him, “the same as she possessed on Nov. 7,” according to the criminal complaint.
When authorities tested the suspected “Ferrari” heroin seized from Prebish on Nov. 7 they determined the substance actually was fentanyl, according to the arrest affidavit.