Four years after a Sewickley girl overdosed on the drug Ecstasy, the state Supreme Court has affirmed a trial judge's ruling that the man who is charged with selling the drug cannot be tried for homicide.

The 4-3 majority opinion, written by Chief Justice Ralph J. Cappy, means that Gregory Ludwig of Beaver County will not be charged with third-degree homicide in the May 2001 death of Brandy French, 16.

Ludwig is charged with selling methylenedioxymethamphetamine, the drug commonly known as Ecstasy, to an acquaintance who, the following day, gave it to French.

Ludwig, 23, was charged with homicide on the recommendation of Allegheny County Coroner Dr. Cyril H. Wecht. Specifically, he was charged with drug delivery resulting in death.

Wecht also recommended that charges be filed against the teenage friend of French who testified previously that she bought the drug on May 16, 2001, the day before she gave it to French at a concert at the Post-Gazette Pavilion.

French was pronounced dead four years ago today.

No charges were filed against French's teenage friend or anyone else involved in the delivery of the drug or with French's death.

Allegheny County Common Pleas Judge Jeffrey A. Manning, in answer to a petition filed by Ludwig in 2001, ruled that prosecutors showed no evidence that Ludwig had malice on his mind when he sold the drug. Nor was there evidence that Ludwig expected ingestion of the drug would be fatal.

District Attorney Stephen A. Zappala Jr. ordered his staff to appeal Manning's ruling.

The Supreme Court had been split 3-3, having issued an opinion after the retirement last year of former Chief Justice Stephen A. Zappala Sr.

The case was reconsidered, without further argument, with Justice Max Baer, the newest addition to the high court, participating.

Ludwig remains charged with possession, possession with intent to deliver and delivery of the Ecstasy drug. Prosecutors said yesterday that the case will move forward.

"We have lost the opportunity to hold this guy responsible for Brandy French's death," Zappala said yesterday.

"But," he said, "it's significant in that drug dealers understand that prosecutors still can go after you for murder for delivery. [The Supreme Court ruling] refines the law, but it's going to continue to evolve."

Manning ruled that the state law supporting the charge against Ludwig is "unconstitutionally vague," a point with which the high court disagreed, even though it ultimately upheld his ruling.

That section of the state Crimes Code says that a person commits third-degree murder, punishable by a minimum of five years in prison, if another person dies from using what that dealer gave him.

For the crime to be third-degree murder, the accused person must have maliciously sold or delivered the drug with knowledge that it could or would cause death.

"Because one sells illegal drugs to another, rather than shares them with others free of charge, does not in and of itself establish malice," Cappy wrote in the majority opinion, characterizing malice as "extreme indifference to human life."

"There was no evidence that Ecstasy, as objectionable a drug as it is, is an inherently dangerous drug of such toxicity that there was a substantial and 'extremely high risk' that one who ingests Ecstasy will die," Cappy wrote.

Zappala said the ruling will have implications on cases around the state, including at least a half-dozen investigated by his detectives involving drug deliveries that resulted in deaths.

Prosecutors have delayed action on these cases here and elsewhere in the state, pending the Supreme Court ruling.

"Now," Zappala said, "we have some guidance."

In a dissenting opinion, Justice Russell M. Nigro said that he does not believe the General Assembly intended to require a suspect's state of mind to be malicious in a fatal drug delivery case.

"Ludwig was undoubtedly aware that Ecstasy is an illegal drug, unregulated by the government for any use, and that serious, sometimes fatal reactions can result from the consumption of such a drug," Nigro wrote.

Justices Thomas G. Saylor and J. Michael Eakin agreed with Nigro.

The case is important because of the potential penalties involved. If someone who sells drugs that result in death is convicted of third-degree murder, the sentence could be between five and 40 years in jail.

Ludwig's defense attorney, Patrick Thomassey, reached while on vacation in Spain, said that he is happy for his client.

"I think it was absolutely apparent from the facts that there was no malice in anything Greg Ludwig did. If he gave these drugs to somebody, it was certainly not with the intent to kill, cause serious bodily injury or with reckless disregard of the consequences," Thomassey said.

"I still think that there's a lot of problems with the statute," he added. "[Lawmakers] should redraft it."

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