COMMONWEALTH vs. CHERYL L. PERRY.

COMMONWEALTH vs. CHERYL L. PERRY.

416 Mass. 1003

October 4, 1993

Elspeth B. Cypher, Assistant District Attorney, for the Commonwealth.

Kathleen V. Curley, Committee for Public Counsel Services (Colleen A. Tynan with her) for the defendant.

The Commonwealth appealed from the allowance by a judge in the Superior Court of the defendant's motion to dismiss indictments charging manslaughter and illegal possession of a hypodermic needle. The Appeals Court vacated the order, 34 Mass. App. Ct. 127 (1993), and we granted the defendant's application for further appellate review. See G. L. c. 211A,

Page 1004

Section 11 (1992 ed.). We vacate the order allowing the motion to dismiss essentially for the same reasons advanced by the Appeals Court. However, we add a note. In Commonwealth v. Catalina, 407 Mass. 779 , 790-791 (1990), on which both the Commonwealth and the defendant appear to rely, we held that the distributing of a particularly potent form of heroin to one who injected it and died as a result constituted evidence sufficient for an indictment by a grand jury of manslaughter. See Commonwealth v. Catalina, supra at 790 n.12. However, we did not limit the effect of this rule to that specific form of heroin because all heroin of unknown strength is inherently dangerous and carries a "high probability that death will occur." Id. at 791, quoting with approval People v. Cruciani, 70 Misc. 2d 528, 536 (N.Y. 1972).

The order dismissing the indictments is vacated, and the cases are to stand for trial.

So ordered.