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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
JASON NATHAN BREDBENNER
Appellant No. 757 MDA 2017
Appeal from the Judgment of Sentence Entered March 17, 2017
In the Court of Common Pleas of Schuylkill County
Criminal Division at No.: CP-54-CR-0001302-2016
BEFORE: PANELLA, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 20, 2018
Appellant Jason Nathan Bredbenner appeals from the March 17, 2017
judgment of sentence entered in the Court of Common Pleas of Schuylkill
County (“trial court”), following his jury convictions for possession with intent
to deliver (“PWID”) a controlled substance (heroin), recklessly endangering
another person (“REAP”), and simple assault.1 Upon review, we affirm.
The facts and procedural history underlying this case are undisputed.
Briefly, officers from the Shenandoah Borough Police Department responded
to a reported overdose at Appellant’s residence. After emergency medical
technicians revived the overdosed victim, S.U., she informed the police
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* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. §§ 2705, and 2701(a)(1),
respectively.
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officers that she had purchased heroin from Appellant for $120.00 and asked
him to inject it into her. Appellant subsequently was arrested and charged
with, inter alia, the foregoing crimes.2 The case proceeded to trial. As the
trial court summarized:
At trial, the Commonwealth presented evidence that on May
18, 2016, Officer Cody Applegate of the Shenandoah Borough
Police Department was dispatched to [Appellant’s] residence at 23
South Chestnut Street in Shenandoah for a heroin overdose.
Upon arriving at the location, Applegate heard sounds emanating
from inside the residence, including what he described as a male’s
voice, running, a door open and a bag of garbage hit the ground.
After knocking several times on the front door, Applegate entered
the residence and found [S.U.] unconscious on a couch. [S.U.’s]
skin was blue, a hypodermic needle was next to her but no other
paraphernalia was visible. Applegate asked [Appellant], who was
also present, if he had moved the “bags.” [Appellant] said he had
not. Applegate asked several times if there was anything in the
house that had been moved. [Appellant] denied that any
contraband was in the house.
After emergency personnel arrived, Applegate saw that the
back door of the residence was open. He asked [Appellant] if
anyone had run out the door. [Appellant] said he had left the door
open. Applegate noticed an open garbage bag with small bags of
what he believed had contained heroin. He also found a box
engraved with the name “Eddie,” [Appellant’s] nickname. Two
needles and empty heroin bags were in the box. While EMS
personnel were working on [S.U.], Applegate found heroin bags
on the floors of upstairs rooms together with other drug
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2 By way of background, on November 28, 2016, the trial court granted
Appellant’s petition for writ of habeas corpus insofar as it dismissed the
charges of criminal attempt to commit drug delivery resulting in death (18
Pa.C.S.A. §§ 901(a) and 2506(a)) and aggravated assault (18 Pa.C.S.A.
§ 2702(a)(1)) against Appellant. Moreover, on the day of trial, in response to
Appellant’s filing of a motion in limine, the Commonwealth nolle prossed
charges of possession of a controlled substance (35 P.S. § 780-113(a)(16))
and possession of drug paraphernalia (35 P.S. § 780-113(a)(32)) against
Appellant.
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paraphernalia. Eight full bags of heroin and two empty bags with
the term “Fresh Direct” were recovered.
Shenandoah Police Officer Travis Bowman was on duty May
18, 2016, when he was dispatched to the scene. The caller said
someone was overdosing in the house. While en route, Bowman
received a second dispatch for a call that had been received from
another caller who was identified as [Appellant]. Like Applegate,
Bowman heard running in the house and the shutting of a door
after the officers had arrived but before they entered [Appellant’s]
residence.
[S.U.] testified that she had gone to [Appellant’s] home to
buy heroin from him that day. [S.U.] said she had been referred
to the house and to [Appellant] as being someone to see for
heroin. Upon arriving at the residence, [S.U.] gave [Appellant]
$120.00. [Appellant] left the home but returned with heroin.
[S.U.] asked that he inject her. [Appellant] prepared the heroin
and injected it into [S.U.’s] left arm. After a period of time, [S.U.]
asked that [Appellant] do so again and he did. [S.U.] described
how [Appellant] placed water in a cup with heroin and then drew
the substance through a cotton ball into a syringe and injected it
into her left arm.
Ann Marie Kovalewski, a Shenandoah ambulance
paramedic, testified that she responded to the scene for a report
of an overdose and a person not breathing. Three EMTs were at
the scene when she arrived. [S.U.] was cyanotic, exhibited
shallow breathing and low heart rate. Because the Narcon given
to [S.U.] nasally by the EMTs had not been effective to revive her,
Kovalewski gave [S.U.] Narcon intravenously. [S.U.] responded
and became conscious. According to Kovalewski, Narcon only
works to revive a person who is on narcotics.
A forensic scientist from Pennsylvania State Police Crime
Laboratory analyzed evidence collected by the Shenandoah police
that day and found that the bags submitted contained heroin.
Trial Court Opinion, 4/21/17, at 2-4. Following trial, the jury found Appellant
guilty of PWID, REAP and simple assault and not guilty of tampering with
physical evidence (18 Pa.C.S.A. § 4910(1)). On March 17, 2017, the trial
court sentenced Appellant to three to six years in prison for PWID, one to two
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years in prison for REAP, and two years of probation for simple assault. The
sentences were ordered to run consecutively. Thus, in the aggregate, the trial
court sentenced Appellant to serve four to eight years in prison. Appellant
timely filed a post-sentence motion, which the trial court denied on April 21,
2017. Appellant appealed to this Court. The trial court ordered Appellant to
file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal.
Appellant complied. In response, the trial court issued a Pa.R.A.P. 1925(a)
opinion.
On appeal, Appellant presents two issues for our review:
I. Should the charge of [PWID] be dismissed?
II. Did the court improperly sentence [Appellant] to a period of
incarceration beyond the aggravated range of the
sentencing guidelines and illegally sentence [Appellant] to
consecutive sentences for [REAP] and simple assault which
would merge for sentencing purposes?
Appellant’s Brief at 6.
We begin with Appellant’s first issue, in support of which he claims that
the trial court should have dismissed his PWID charge under the Drug
Overdose Response Immunity statute (the “Act”), 35 P.S. § 780-113.7,
because he called 911 to report S.U.’s overdose and remained at the scene
with her.
The instant action requires us to engage in statutory interpretation.
Pursuant to the Statutory Construction Act, “the object of all interpretation
and construction of statutes is to ascertain and effectuate the intention of the
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General Assembly.” 1 Pa.C.S. § 1921(a). It is well settled that the best
indication of the General Assembly’s intent may be found in a statute’s plain
language. See id., § 1921(b). Thus, “when the language of a statute is plain
and unambiguous and conveys a clear and definite meaning,” we must give
the statute this plain and obvious meaning. Cagey v. Commonwealth, __
A.3d __, 2018 WL 987783, at *3 (Pa. 2018) (citations omitted).
Section 780-113.7 of the Act provides in pertinent part:
(a) A person may not be charged and shall be immune from
prosecution for any offense listed in subsection (b) and for a
violation of probation or parole if the person can establish the
following:
(1) law enforcement officers only became aware of the person’s
commission of an offense listed in subsection (b) because the
person transported a person experiencing a drug overdose event
to a law enforcement agency, a campus security office or a health
care facility; or
(2) all of the following apply:
(i) the person reported, in good faith, a drug overdose event to a
law enforcement officer, the 911 system, a campus security officer
or emergency services personnel and the report was made on the
reasonable belief that another person was in need of immediate
medical attention and was necessary to prevent death or serious
bodily injury due to a drug overdose;
(ii) the person provided his own name and location and cooperated
with the law enforcement officer, 911 system, campus security
officer or emergency services personnel; and
(iii) the person remained with the person needing immediate
medical attention until a law enforcement officer, a campus
security officer or emergency services personnel arrived.
(b) The prohibition on charging or prosecuting a person as
described in subsection (a) bars charging or prosecuting a person
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for probation and parole violations and for violations of section
113(a)(5), (16), (19), (31), (32), (33) and (37).
(c) Persons experiencing drug overdose events may not be
charged and shall be immune from prosecution as provided in
subsection (b) if a person who transported or reported and
remained with them may not be charged and is entitled to
immunity under this section.
(d) The prohibition on charging or prosecuting a person as
described in this section is limited in the following respects:
(1) This section may not bar charging or prosecuting a person for
offenses enumerated in subsection (b) if a law enforcement officer
obtains information prior to or independent of the action of
seeking or obtaining emergency assistance as described in
subsection (a).
(2) This section may not interfere with or prevent the
investigation, arrest, charging or prosecution of a person
for the delivery or distribution of a controlled substance,
drug-induced homicide or any other crime not set forth in
subsection (b).
(3) This section may not bar the admissibility of any evidence in
connection with the investigation and prosecution for any other
prosecution not barred by this section.
(4) This section may not bar the admissibility of any evidence in
connection with the investigation and prosecution of a crime with
regard to another defendant who does not independently qualify
for the prohibition on charging or prosecuting a person as provided
for by this section.
35 P.S. § 780-113.7(a)-(d) (emphasis added).
Instantly, based on our review of the Act, we conclude that the trial
court did not err in declining to dismiss the charge of PWID under the Act.
Contrary to Appellant’s assertion, the Act expressly, by its plain language,
prohibits the interfering with or preventing the investigation, arrest, charging
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or prosecution of a person for PWID. Accordingly, Appellant is not entitled to
relief.
We now address Appellant’s second issue, which subsumes two issues.
First, Appellant challenges the legality of his sentence by claiming that the
trial court failed to merge REAP and simple assault for purposes of sentencing.
Second, he challenges the discretionary aspects of his sentence. Specifically,
he claims that the trial court abused its discretion in sentencing him beyond
the aggravated range for PWID without providing adequate reasons on the
record.
Appellant’s merger issue implicates the legality of his sentence.
Commonwealth v. Rodriguez, 673 A.2d 962, 967 (Pa. Super. 1996)
(stating “questions of merger relate to the legality of sentence”), appeal
denied, 692 A.2d 565 (Pa. 1997). As such, our standard of review is de novo
and our scope of review is plenary. See Commonwealth v. Gentry, 101
A.3d 813, 817 (Pa. Super. 2014).
Appellant argues that his sentences for simple assault and REAP should
have merged because “[b]oth charges arose from a single act.” Appellant’s
Brief at 15 (internal citations omitted). We resolved this issue in
Commonwealth v. Calhoun, 52 A.3d 281, 289 (Pa. Super. 2012), appeal
denied, 67 A.3d 793 (Pa. 2013). In Calhoun, we held that both REAP and
simple assault do not merge for sentencing purposes as they contain distinct
elements. Calhoun, 52 A.3d at 289. Accordingly, Appellant’s legality of
sentence claim fails.
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We now turn to Appellant’s discretionary aspects of sentencing claim.3
It is well-settled that “[t]he right to appeal a discretionary aspect of sentence
is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa.
Super. 2011). Rather, where an appellant challenges the discretionary
aspects of a sentence, an appellant’s appeal should be considered as a petition
for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.
Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
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3 When reviewing a challenge to the trial court’s discretion, our standard of
review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless the record
discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012) (quoting
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002)),
appeal denied, 64 A.3d 630 (Pa. 2013).
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Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)). Whether a particular issue constitutes a substantial question about
the appropriateness of sentence is a question to be evaluated on a case-by-
case basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001), appeal denied, 796 A.2d 979 (Pa. 2002).
Here, Appellant has satisfied the first three requirements of the four-
part Moury test. Appellant filed a timely appeal to this Court, preserved the
issue on appeal through his post-sentence motions, and included a Pa.R.A.P.
2119(f) statement in his brief.4
We now turn to the fourth part of the Moury test, i.e., we must
determine if Appellant’s sentencing issue raises a substantial question. The
determination of what constitutes a substantial question must be evaluated
on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa.
Super. 2007). We have found that a substantial question exists “when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing Code;
or (2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Phillips, 946 A.2d 103, 112 (Pa. Super. 2008)
(citation omitted), appeal denied, 964 A.2d 895 (Pa. 2009). “[W]e cannot
look beyond the statement of questions presented and the prefatory [Rule]
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4 Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).
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2119(f) statement to determine whether a substantial question exists.”
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013), affirmed,
125 A.3d 394 (Pa. 2015).
It is settled that this Court does not accept bald assertions of sentencing
errors. See Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006). When we examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists, “[o]ur inquiry must focus on the
reasons for which the appeal is sought, in contrast to the facts underlying the
appeal, which are necessary only to decide the appeal on the merits.”
Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)
(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).
A Rule 2119(f) statement is inadequate when it “contains incantations of
statutory provisions and pronouncements of conclusions of law[.]”
Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation
omitted).
Here, Appellant asserts in his Rule 2119(f) statement that the trial court
abused its discretion in sentencing him outside the aggravate range for PWID
without providing “specific reasons for the sentence that complied with the
considerations required in 42 Pa.C.S.A. § 9721(b).” Appellant’s Brief at 9.
Based on Appellant’s 2119(f) statement, we conclude that he has raised a
substantial question. It is settled law that claims that the sentencing court
imposed a sentence outside the standard guidelines without providing
adequate reasons on the record presents a substantial question.
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Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014); see Commonwealth v. Macias, 968 A.2d
773, 776 (Pa. Super. 2009) (“The failure to set forth adequate reasons for the
sentence imposed has been held to raise a substantial question.”) (citation
omitted). Accordingly, we grant Appellant’s petition for allowance of appeal.
The Sentencing Code provides that the sentencing court “shall follow the
general principle that the sentence imposed should call for confinement that
is consistent with the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). Additionally,
in every case where a sentencing court imposes a sentence outside of the
sentencing guidelines, the court must provide, in open court, a
contemporaneous statement of reasons in support of its sentence. Id. When
doing so,
a [sentencing] judge . . . [must] demonstrate on the record, as a
proper starting point, its awareness of the sentencing guidelines.
Having done so, the sentencing court may deviate from the
guidelines, if necessary, to fashion a sentence which takes into
account the protection of the public, the rehabilitative needs of
the defendant, and the gravity of the particular offense as it
relates to the impact on the life of the victim and the community,
so long as it also states of record the factual basis and specific
reasons which compelled it to deviate from the guideline range.
Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation
and brackets omitted), appeal denied, 64 A.3d 630 (Pa. 2013); see also
Commonwealth v. Dutter, 617 A.2d 330, 333 (Pa. Super. 1992) (stating
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that “[i]f the court finds it appropriate to sentence outside the guidelines, of
course it may do so as long as it places its reasons for the deviation on the
record.”). Finally, when evaluating a challenge to the discretionary aspects of
sentence, it is important to remember that the sentencing guidelines are
purely advisory in nature. Commonwealth v. Yuhasz, 923 A.2d 1111, 1118
(Pa. 2007); see also Commonwealth v. Walls, 926 A.2d 957, 963 (Pa.
2007) (stating that “rather than cabin the exercise of a sentencing court’s
discretion, the [sentencing] guidelines merely inform the sentencing
decision.”).
Here, based on our review of the record, we conclude that the trial court
did not abuse its sentencing discretion and provided adequate reasons, on the
record, for the sentence imposed. As the trial court aptly explained:
During sentencing, the court informed [Appellant] in open court
on the record that the sentence was imposed after consideration
of all the evidence presented at trial, the information in the pre-
sentence investigation report including the sentencing guidelines,
and the sentencing hearing. The court also advised [Appellant] –
who showed no remorse for his action, but, rather spoke defiantly
relative to his responsibility for delivering and injecting [S.U.] with
heroin – that because of the seriousness of the underlying facts of
the crime which involved not just a simple drug delivery but the
purchase for, delivery to and injection of [S.U.], [Appellant’s] own
drug history involving bath salts and heroin, together with
possible mental health issues that needed to be addressed, the
sentence was imposed. [The trial court] believed the sentence
was proportional to all of the pertinent circumstances including
those of the offense, the protection of society, [Appellant’s] need
for rehabilitation and time to address his own drug issues and
acceptance of responsibility for the criminal activity which resulted
in [S.U.’s] near death.
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Trial Court Opinion, 4/21/17, at 7-8. Accordingly, we conclude that the trial
court provided adequate reasons for its deviation from the guidelines in
sentencing Appellant to three to six years’ imprisonment for PWID. See
Commonwealth v. Sheller, 961 A.2d 187, 191–92 (Pa. Super. 2008)
(stating that the trial court did not abuse its discretion in imposing a sentence
beyond the aggravated range where the court considered the pre-sentence
investigation report, sentencing guidelines, protection of public, and
appellant’s rehabilitative needs), appeal denied, 980 A.2d 607 (Pa. 2009);
see also Commonwealth v. Fowler, 893 A.2d 758, 766 (Pa. Super. 2006)
(rejecting the appellant’s claim that the sentencing court had abused its
discretion by imposing sentence without stating adequate reasons on the
record, and holding that “[s]ince the sentencing court had and considered a
[PSI], this fact alone was adequate to support the sentence[.]”).
Judgment of sentence affirmed.
Judge Platt joins this memorandum.
Judge Panella concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/20/2018
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