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Defense admits he sold fentanyl - but did he sell the fatal dose?

A 2011 law provides heavy prison sentences for those who provide dangerous drugs to users who then overdose and die. Proving the link between dealer and the deceased is the challenge facing police and prosecutors.

Medical specimen tube known as a “shark’s tooth” used by some drug dealers to package fentanyl and heroin.
Medical specimen tube known as a “shark’s tooth” used by some drug dealers to package fentanyl and heroin.Read morePhiladelphia District Attorney's Office

Six months of text messages on Meredith DiFilippo's cellphone showed that the 37-year-old Queen Village woman regularly bought drugs from Joseph Massimino Jr.

But did Massimino sell DiFilippo the fentanyl that killed her and her 33-year-old boyfriend, Richard Heller?

Proving that link between dealer and deceased is the issue facing Pennsylvania prosecutors in cases filed under the state's 2011 law that created a first-degree felony for a "drug delivery resulting in death."

Some state prosecutors have called the charge too difficult to prove, especially in cases of people who die after using combinations of illegal and prescription drugs.

The law, which carries a maximum prison term of 40 years, was created in response to dramatically increasing numbers of overdose deaths, most attributed to opioids: heroin and its pharmaceutically created cousins such as fentanyl, which is up to 50 times stronger than heroin and 50 to 100 times stronger than morphine. Fentanyl is often mixed with heroin, with deadly results.

In Philadelphia and the seven surrounding counties, officials say, more than 1,300 people died of overdoses in the first half of this year — 50 percent more than a year earlier. Despite those numbers, few people in the region have been charged with drug delivery resulting in death. In Philadelphia, Massimino — son of imprisoned mob underboss Joseph "Mousie" Massimino — is only the second person charged. The first was Edwin Correa, 36, charged in the March 29 death of Jose Santiago.

Court records show that on that date Correa was arrested on drug charges and was detained in Cell No. 7 at Police Headquarters at Seventh and Race Streets.

Correa allegedly had two packets of heroin hidden in the waistband of his pants, and police said he swallowed one packet and passed the other to Santiago, 56, who was in Cell No. 8, also detained on drug charges. About 10 a.m. turnkeys found Santiago unconscious. Emergency medical personnel tried to revive him without success. The autopsy showed that Santiago died of an overdose, and police allege that Correa watched efforts to revive him but said nothing.

On Wednesday before  Common Pleas Court Judge Kathryn Streeter Lewis, prosecution and defense lawyers debated whether there was sufficient proof that Massimino had supplied the fentanyl that killed the couple.

Assistant District Attorney Thomas Lipscomb said the circumstantial evidence was clear: DiFilippo texted Massimino on April 6 to pick up some drugs that afternoon at his house in the 700 block of Mountain Street in South Philadelphia.

Later that day, DiFilippo and Heller overdosed in her second-floor apartment in the 400 block of Bainbridge Street. Their bodies were discovered April 9, Lipscomb said, and the autopsies showed that both died of fentanyl overdoses.

The text messages on DiFilippo's phone led South Detectives to Massimino's Mountain Street house; they obtained a warrant and searched it April 17.

Inside, say court documents, police found $200,000 worth of heroin, methamphetamines, methadone, alprazolam, clonazepam, and a large quantity of uncut fentanyl; as well as $7,000 in cash, guns, and a ballistic vest.

Police also found a type of drug-packaging material colloquially known as a "shark's tooth," 1¾-inch plastic tubes shaped like the ocean predator's teeth.

Lipscomb said a shark's tooth tube was found in DiFilippo's apartment and contained cocaine and fentanyl residue.

Massimino's lawyer, Gregory J. Pagano, maintained that the proof was shaky at best. Pagano conceded that Massimino, 46, sold drugs to DiFilippo but said the drugs she referred to in her April 6 text to "Joey P." were "mud" and "blues," street slang that both sides agree is open to interpretation.

Pagano argued that no cocaine was found in Massimino's house. Pagano said there was no way to prove that Massimino sold DiFilippo fentanyl and that if he did, it was the fentanyl that killed her. Pagano noted that the medical examiner's time-of-death estimate left a 48-hour-window between April 6 and 9 when DiFilippo could have died.

"Without those text messages, there would be absolutely no link to him," Pagano told the judge.

Lewis denied Pagano's motion to quash the prosecution, ruling that the evidence was sufficient to let the case proceed. But the challenge is certain to recur when Massimino goes to trial. No date has been set.

Lipscomb argued that he is not required to present direct evidence of an exchange of fentanyl between DiFilippo and Massimino, that an unbroken chain of circumstantial evidence will do.

Lipscomb said DiFilippo and Massimino exchanged text messages, she went to his house to buy drugs, then took them home with her.

"After that, all transmissions from her cease," Lipscomb said. "And then, on April 9, two people are found dead of fentanyl poisoning."