J-A33034-16
2017 PA Super 30
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JONATHAN MICHAEL PROCTOR, :
:
Appellant : No. 168 WDA 2016
Appeal from the Judgment of Sentence December 21, 2015,
in the Court of Common Pleas of Potter County,
Criminal Division at No(s): CP-53-CR-0000249-2014
BEFORE: LAZARUS, SOLANO, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED FEBRUARY 09, 2017
Jonathan Michael Proctor (Appellant) appeals from the judgment of
sentence imposed following his convictions for drug delivery resulting in
death; flight to avoid apprehension, trial, or punishment; manufacture,
delivery, or possession of a controlled substance with intent to manufacture
or deliver; possession of a controlled substance; criminal conspiracy; and
use or possession of drug paraphernalia. Upon review, we affirm.
On September 30, 2015, following a jury trial, Appellant was convicted
of the aforementioned crimes stemming from an incident wherein Daniel
Lowe (Lowe) died from an overdose after ingesting heroin that was provided
to him by Appellant. Appellant was sentenced on December 21, 2015, to an
aggregate term of 12 years and 10 months to 26 years and 10 months of
incarceration.
*Retired Senior Judge assigned to the Superior Court.
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Appellant filed post-sentence motions, which were denied. On January
22, 2016, Appellant filed a notice of appeal to this Court. On January 26,
2016, the trial court directed Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). After requesting
and receiving an extension of time, Appellant filed his concise statement.
The trial court issued its opinion pursuant to Pa.R.A.P. 1925(a) on April 28,
2016.
Appellant raises the following issues for our consideration:
I. Did the Commonwealth present insufficient evidence to
support [Appellant’s] conviction for drug delivery resulting in
death?
II. Was [Appellant’s] conviction for drug delivery resulting in
death against the weight of the evidence?
III. Is 18 Pa.C.S. § 2506 unconstitutionally vague and does
§ 2506 violate due process pursuant to the United States and
Pennsylvania Constitutions because the statute does not
provide sufficient notice as to what conduct it criminalizes and
the statute encourages arbitrary enforcement?
IV. Did the trial court err when the court instructed the jury the
final element of drug delivery resulting in death is “that a
person has died as a result of using the substance even if
other substances were found in his system” and that … Lowe
“died as a result of using the substance even though other
substances were found in his system[]”?
V. Did the trial court err when the court denied defense
counsel’s request for a mistrial after the Commonwealth
referred to [Appellant’s] lack of remorse during [its] closing
argument, thereby violating his right to remain silent?
VI. Did the sentencing court abuse its discretion when the court
imposed an aggravated sentence for Appellant[’s] conviction
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for drug delivery resulting in death and then imposed two
additional consecutive sentences?
VII. Does Appellant’s sentence and § 2506 itself violate the Eighth
Amendment’s restriction against cruel and unusual
punishment because Appellant was a drug addict and never
intended to cause any loss of life and the statute permits
severely disproportionate punishments of individuals
tangentially involved in a drug overdose?
Appellant’s Brief at 5 (unnecessary capitalization omitted).
We address together Appellant’s first two issues, wherein he
challenges the sufficiency and weight of the evidence to support his
conviction for the offense of drug delivery resulting in death. In support of
his sufficiency challenge, Appellant argues that the Commonwealth failed to
prove that (1) he acted with reckless disregard to the likelihood of Lowe’s
death from injecting himself with heroin, and (2) Lowe’s death was
reasonably foreseeable to Appellant and thus Appellant’s conduct was the
legal cause of his death. Appellant’s Brief at 20-32. Appellant argues that
the jury’s guilty verdict for drug delivery resulting in death is against the
weight of the evidence because (1) he lacked any culpable mens rea
concerning the likelihood of Lowe’s death and it was the “product of a legally
invalid prosecution theory” that no mens rea in that regard was required,
and (2) the “overwhelming medical evidence” suggests that Appellant did
not proximately cause Lowe’s death. Id. at 32-34.
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Notwithstanding Appellant’s claims on appeal, our review of the record
reveals that the only issues Appellant included in his Rule 1925(b) statement
relating to sufficiency or weight of the evidence state as follows:
3. Was [Appellant’s] conviction for drug delivery resulting in
death against the weight of the evidence because the cause
of [Lowe’s] death was combined drug toxicity?
4. Did the Commonwealth present insufficient evidence to
support [Appellant’s] conviction for drug delivery resulting in
death because the cause of [Lowe’s] death was combined
drug toxicity?
Appellant’s Rule 1925(b) Statement, 4/25/2016, at 2 (unnecessary
capitalization omitted).
As written, Appellant’s issues fail to make any mention of a challenge
with respect to the mens rea required or whether Lowe’s death was
reasonably foreseeable to Appellant.1 Rather, Appellant’s issues challenge
the sufficiency and weight of the evidence only as it relates to the factual
cause of Lowe’s death (which, as alleged by Appellant, was combined drug
toxicity). Indeed, in its Rule 1925(a) opinion, the trial court addressed
Appellant’s issues as challenging whether the verdict was against the weight
of the evidence and whether the Commonwealth failed to present sufficient
1
To be clear, this Court has held that, with respect to the crime of drug
delivery resulting in death, the statute requires “but-for” causation in
addition to requiring that “the results of the defendant’s actions cannot be so
extraordinarily remote or attenuated that it would be unfair to hold the
defendant criminally responsible.” Commonwealth v. Kakhankham, 132
A.3d 986, 993 (Pa. Super. 2015) (internal quotation marks and citation
omitted). Moreover, the “results from” element of Section 2506 has a mens
rea requirement; the “death must be at least ‘reckless.’” Id. at 995.
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evidence “because [Lowe’s] death was caused by combined drug toxicity as
opposed to being caused solely by the heroine [sic] provided by
[Appellant].” Trial Court Opinion (TCO), 4/28/2016, at 1-2.
A court-ordered concise statement “shall concisely identify each ruling
or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). “The
Pennsylvania Supreme Court has explained that Rule 1925 is a crucial
component of the appellate process, which is intended to aid trial judges in
identifying and focusing upon those issues which the parties plan to raise on
appeal.” Commonwealth v. Freeman, 128 A.3d 1231, 1248 (Pa. Super.
2015) (internal quotation marks and citation omitted). Moreover, it is well-
settled that “[i]issues that are not set forth in an appellant’s statement of
matters complained of on appeal are deemed waived.” Commonwealth v.
Perez, 103 A.3d 344, 347 n.1 (Pa. Super. 2014) (citing Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”)).
Based on the foregoing, we conclude that Appellant has waived his
sufficiency and weight challenges as presented on appeal,2 as he did not
2
In his sufficiency argument on appeal, Appellant also presents a separate
claim that the trial court erred in relieving the prosecution of its burden to
prove an element of the offense with respect to the requisite mens rea,
which cannot be said to have been harmless error. Appellant’s Brief at 25-
27. Appellant likewise failed to raise any such issue in his Rule 1925(b)
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specify them in his Rule 1925(b) statement and the trial court did not
address them in its opinion. Commonwealth v. Reeves, 907 A.2d 1, 2-3
(Pa. Super. 2006) (explaining that, from a reading of Reeves’ Rule 1925(b)
statement, “the trial court reasonably thought that Reeves was only
complaining about the quantum of evidence, not the specific issue that
SEPTA is not a ‘person’ under the terms of the statute” and concluding that
“[b]ecause the specific issue as to whether SEPTA was a ‘person’ was not
presented to the trial court to give [the trial court] a chance to address it in
[its] opinion, the issue has been waived”); see also Commonwealth v.
Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013) (quoting Commonwealth v.
Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (stating “for any claim that was
required to be preserved, this Court cannot review a legal theory in support
of that claim unless that particular legal theory was presented to the trial
court”)). Thus, he is not entitled to relief on those claims.
In his third issue, Appellant argues that, if we reject his sufficiency and
weight challenges, then the drug delivery resulting in death statute is void
for vagueness. Analysis of the constitutionality of a statute is a question of
law and, thus, our standard of review is de novo. Commonwealth v.
Kakhankham, 132 A.3d 986, 990 (Pa. Super. 2015). “Our scope of review,
statement. Thus, any claim in this regard is waived as well. Perez, 103
A.3d at 347 n.1; Pa.R.A.P. 1925(b)(4)(vii).
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to the extent necessary to resolve the legal question[] before us, is
plenary…” Id.
The offense of drug delivery resulting in death is defined as follows.
(a) Offense defined.--A person commits a felony of the first
degree if the person intentionally administers, dispenses,
delivers, gives, prescribes, sells or distributes any controlled
substance or counterfeit controlled substance in violation of
section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233,
No. 64), known as The Controlled Substance, Drug, Device and
Cosmetic Act, and another person dies as a result of using the
substance.
18 Pa.C.S. § 2506(a) (footnote omitted).
In Kakhankham, this Court rejected a vagueness challenge to section
2506, explaining, in part, as follows:
The crime … consists of two principal elements: (i) [i]ntentionally
administering, dispensing, delivering, giving, prescribing, selling
or distributing any controlled substance or counterfeit controlled
substance and (ii) death caused by (“resulting from”) the use of
that drug. It is sufficiently definite that ordinary people can
understand what conduct is prohibited, and is not so vague that
men of common intelligence must necessarily guess at its
meaning and differ as to its application.
Kakhankham, 132 A.3d at 991-92 (footnote, citations, and some internal
quotation marks omitted). The Court continued by concluding that
Kakhankham’s conduct in providing drugs to a person who died as a result of
ingesting them was “precisely what the legislature intended to proscribe
when it enacted Section 2506. Accordingly, Section 2506 is not
unconstitutionally vague.” Id. at 992.
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In advancing his argument, Appellant contends that Lowe died not
solely because of the heroin, but as a result of having already taken other
drugs unbeknownst to Appellant. Appellant’s Brief at 36-37. Appellant
argues that, in light of these facts, the statute as applied fails to provide
adequate notice “that engaging in criminal conduct, but conduct that does
not generally cause death, can, in some rare and unlucky situations, be the
source of criminal liability for the unforeseen and unforeseeable death of a
third party.” Id. (citation, internal quotation marks, and emphasis omitted).
The Kakhankham Court observed that
[An appellant] who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as
applied to the conduct of others. A court should therefore
examine the complainant’s conduct before analyzing other
hypothetical applications of the law. In cases that do not
implicate First Amendment freedoms, facial vagueness
challenges may be rejected where an appellant’s conduct is
clearly prohibited by the statute in question.
Id. at 992 (internal quotation marks and citations omitted)).
Appellant’s argument does not entitle him to relief under the facts of
this case. Specifically, the Commonwealth offered expert testimony that,
notwithstanding the other drugs in Lowe’s system, the amount of heroin
ingested by Lowe was a lethal dose. N.T., 9/29-30/2015, at 477-89
(Michael Coyer, forensic toxicologist, discussing one study wherein it was
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found that a morphine3 level “over 100 nanograms is lethal” and another
study finding “between 41.3 and 145.7 nanograms” is a fatal range;
testifying that the level of 160 nanograms of morphine herein is a lethal
dose by itself; and opining that the “[c]ause of [Lowe’s] death is [h]eroin[]
overdose”); see also id. at 348, 350 (Kevin Dusenbury, Sr., coroner of
Potter County, explaining that “[t]he level of the [h]eroin[] metabolite was a
lethal level” and, when asked whether “[h]eroin[] in and of itself when you
inject it is not lethal, correct?,” answering, “It was in this case I believe.”).
Indeed, even Appellant’s expert testified that the dose of heroin herein was
“potentially fatal.” Id. at 419, 428-49, 435, 437, 439-40 (Dr. Bill Manion
explaining that the level of morphine in this case “could cause, can cause
death” and “is potentially fatal”); see also id. at 452, 460 (Commonwealth
witness Dr. Eric Vey, forensic pathologist, testifying that the level of
morphine in this case is “a potentially lethal level”). Clearly, it is foreseeable
that, if you give a person a lethal dose—or even a potentially lethal dose—of
heroin, that person could die. Thus, as applied to Appellant, section 2506 is
not vague.4
3
“Heroin[] technically is called diacetyl morphine.” N.T., 9/29-30/2015, at
470; see also id. at 423 (explaining that morphine is the active ingredient
in heroin).
4
Appellant also contends that the statute encourages arbitrary enforcement
as exemplified by this case, as the person who sold the heroin to Appellant
was not prosecuted with causing Lowe’s death. Appellant’s Brief at 37. We
are unpersuaded that Appellant has met his “heavy burden” to show that the
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In his fourth issue, Appellant challenges a portion of the jury
instructions provided by the trial court.
[W]hen evaluating the propriety of jury instructions, this Court
will look to the instructions as a whole, and not simply isolated
portions, to determine if the instructions were improper. We
further note that, it is an unquestionable maxim of law in this
Commonwealth that a trial court has broad discretion in phrasing
its instructions, and may choose its own wording so long as the
law is clearly, adequately, and accurately presented to the jury
for its consideration. Only where there is an abuse of discretion
or an inaccurate statement of the law is there reversible error.
Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)
(quoting Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa. Super.
2007)).
Moreover, “it is not improper for an instructing court to refer to the
facts and/or the evidence of the case when giving a charge.”
Commonwealth v. Meadows, 787 A.2d 312, 318 (Pa. 2001).
On one hand, the trial court must frame the legal issues for the
jury and instruct the jury on the applicable law, while on the
other hand, it must not usurp the power of the jury to be sole
judge of the evidence. Plainly, these principles may conflict with
each other, for in order to instruct the jury on the law the court
may have to refer to the evidence. The proper balance to be
struck will depend heavily on the facts and circumstances of
each case. However, some general guidelines have been
formulated. Thus the court may not comment on, or give its
opinion of, the guilt or innocence of the accused. Nor may it
state an opinion as to the credibility of witnesses, nor remove
statute encourages arbitrary enforcement simply based on Appellant’s
representation that the person who supplied the heroin to Appellant was not
charged in this case. See Kakhankham, 132 A.3d at 991 (“[T]he party
challenging a statute’s constitutionality bears a heavy burden of persuasion.”
(citation omitted)).
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from the jury its responsibility to decide the degree of
culpability. However, the court may summarize the evidence and
note possible inferences to be drawn from it. In doing so, the
court may “....express [its] own opinion on the evidence,
including the weight and effect to be accorded it and its points of
strength and weakness, providing that the statements have a
reasonable basis and it is clearly left to the jury to decide the
facts, regardless of any opinion expressed by the judge.”
Id. (citations omitted) (quoting Commonwealth v. Leonhard, 485 A.2d
444, 444 (Pa. Super. 1984)).
Appellant takes issue with the following specific instruction relating to
the causation element of the crime of drug delivery resulting in death:
And fourthly, that a person has died as a result of using the
substance even if other substances were found in his system. I
will say that again because that seemed to be [a] point of
contention. He died as a result of using the substance even
though other substances were found in his system.
N.T., 9/29-30/2015, at 641. Appellant argues that the above instruction
improperly suggested that the jury should reach the conclusion that, despite
Appellant’s defense that the cause of death was combined drug toxicity and
not just Lowe’s act of injecting himself with heroin, Lowe died as a result of
using the heroin even though other substances were found in his system.
Appellant’s Brief at 39. Appellant contends that this usurped the role of the
jury and improperly expressed an opinion as to the existence of facts to
support an element of the offense, warranting a new trial. Id. at 39.
Appellant further contends that the instruction “completely ignore[d] the
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proximate causation requirement imposed by the law, and [wa]s a direct
command to the jury to reject [Appellant’s] defense.” Id. at 39-40.
Preliminarily, we observe that counsel did not lodge a
contemporaneous objection to the trial court’s instruction. N.T., 9/29-
30/2015, at 641. Moreover, the trial court asked counsel if there were “any
questions regarding the charges” after instructing the jury on them, and
later asked if counsel had “anything further before release [sic] the jury.”
Id. at 650, 656. Appellant’s trial counsel did not respond in either instance.
This Court has held that “[a] specific and timely objection must be made to
preserve a challenge to a particular jury instruction. Failure to do so results
in waiver.” Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super.
2010) (internal citations omitted) (“Generally, a defendant waives
subsequent challenges to the propriety of the jury charge on appeal if he
responds in the negative when the court asks whether additions or
corrections to a jury charge are necessary”); Commonwealth v.
McCloskey, 835 A.2d 801, 812 (Pa. Super. 2003) (finding claims concerning
jury instructions waived because McCloskey “did not object to the
instructions at the time they were made and, further, did not mention the
alleged errors at the close of the jury charge when the court specifically
asked both parties if they were satisfied”). Thus, Appellant’s claim is
waived.
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Assuming arguendo that Appellant had not waived his claim, we would
reject it on the merits. The trial court explained that the instruction
was necessary to avoid jury confusion in this case as the defense
had routinely drawn attention to the fact that other drugs were
present in [Lowe’s] body when he died and that the cause of
death was combined drug toxicity. The … instruction given at
trial clarified that despite any defense assertions otherwise, the
test for the final element of the offense is one of “but-for”
causation.
TCO, 4/28/2016, at 3.
As explained by the trial court, the Kakhankham Court held that the
statute “requires a ‘but-for’ test of causation.” Kakhankham, 132 A.3d at
993. In so doing, it noted that a defendant’s “conduct need not be the only
cause of the victim’s death in order to establish a causal connection” and
that “[c]riminal responsibility may be properly assessed against an individual
whose conduct was a direct and substantial factor in producing the death
even though other factors combined with that conduct to achieve the
result.”5 Id. at 993 n.8 (quoting Commonwealth v. Nunn, 947 A.2d 756,
760 (Pa. Super. 2008)). In light of the foregoing, we discern no error in the
portion of the jury instruction challenged above. See Meadows, 787 A.2d
at 318-19 (concluding that “the trial court’s instruction properly informed the
5
To the extent Appellant argues that the instruction ignored the proximate
cause requirement of causation, we note that Appellant did not include a
challenge to the instructions with respect to proximate causation in his Rule
1925(b) statement. Thus, this claim is waived on this basis as well. Perez,
103 A.3d at 347 n.1; Pa.R.A.P. 1925(b)(4)(vii); Lincoln, 72 A.3d at 610.
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jury of the law and, while noting certain facts of record, left the ultimate
determination of the facts to the jury”).
Appellant next argues that “the [t]rial [c]ourt erred when it refused to
grant a mistrial after the [Commonwealth] argued that the jury should
consider the fact that [Appellant] expressed no remorse during the trial as
evidence of his guilt.” Appellant’s Brief at 41. Appellant contends that the
“prosecutor improperly suggested that the jury should use [Appellant’s]
decision [not to] testify as substantive evidence of guilt by imploring them,
in his final substantive comment in closing argument, to consider whether
they had ‘seen one ounce of remorse’ from [Appellant] through the trial.”
Id. at 41-42; see N.T., 9/29-30/2015, at 624 (“Have any of you during the
facts of this case or observing [Appellant] these last 3 days have any of you
seen one ounce of remorse? Have any of you seen one ounce of remorse?”).
Appellant contends that the comment could only be relevant for the
improper purpose of implying that Appellant lacked remorse because he had
not testified in his own defense, and the trial court’s handling of the
comment by failing to give an immediate limiting instruction and instead
simply giving general instructions regarding Appellant’s right to remain silent
did not remedy the harm that was caused. Id. at 42-43.
Our standard of review for a claim of prosecutorial misconduct is
limited to whether the trial court abused its discretion. In
considering this claim, our attention is focused on whether the
defendant was deprived of a fair trial, not a perfect one.
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[A] prosecutor’s arguments to the jury are
[generally] not a basis for the granting of a new trial
unless the unavoidable effect of such comments
would be to prejudice the jury, forming in their
minds fixed bias and hostility towards the accused
which would prevent them from properly weighing
the evidence and rendering a true verdict.
A prosecutor must have reasonable latitude in fairly
presenting a case to the jury and must be free to
present [his] arguments with logical force and vigor.
The prosecutor is also permitted to respond to
defense arguments. Finally, in order to evaluate
whether the comments were improper, we do not
look at the comments in a vacuum; rather we must
look at them in the context in which they were
made.
Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa. Super. 2011) (internal
quotation marks and citations omitted).
Appellant’s claim does not entitle him to relief. First, we disagree that
the Commonwealth’s brief comments in this regard implied that Appellant
lacked remorse because he had not testified in his own defense.
Commonwealth v. Fletcher, 861 A.2d 898, 918 (Pa. 2004) (concluding
that the prosecutor did not improperly comment on Fletcher’s lack of
remorse, explaining that the comments “did not inappropriately implicate
[Fletcher’s] constitutional right to remain silent,” as “the prosecutor in no
way inferred or implied that [Fletcher] had a duty to testify. Instead, the
prosecutor explicitly limited his remorse comments to [Fletcher’s] non-verbal
demeanor and behavior during trial and on the morning of the murders”);
Commonwealth v. Robinson, 864 A.2d 460, 519 (Pa. 2004) (explaining
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that the prosecutor’s “brief statement … did not contain a direct reference to
the fact that [Robinson] did not testify during the trial”). Second, this Court
has held that references to a defendant’s lack of remorse is not improper.
Commonwealth v. Tillia, 518 A.2d 1246, 1254 (Pa. Super. 1986)
(rejecting Tillia’s contention that the trial court permitted the prosecutor to
make improper comments during closing argument regarding Tillia’s lack of
remorse, explaining that “[w]hether or not [Tillia] expressed remorse is
irrelevant to the determination of guilt”).
Finally, prior to closing statements, the trial court instructed the jury
that Appellant “did not have to call any witnesses either through his own
testimony or other witnesses and that is his constitutional right. You should
make no inference whatsoever concerning that decision.” N.T., 9/29-
30/2015, at 585; see also id. at 494 (“Again, [Appellant] does not have to
offer any evidence whatsoever. If they decide to offer nothing that’s
appropriate, you cannot use against them that fact. So we’ll see when [the]
appropriate time comes whether or not they want to present any evidence.
Of course [Appellant] does not have to testify, that’s his constitutional right
and again you should not make any inference if he decides not to testify.”).
Following closing arguments, the trial court instructed the jury that
[a] person accused of a crime is not required to present any
evidence or to prove anything in his own defense. He doesn’t
have to call any witnesses. Any reference that he didn’t call a
witness is immaterial to your consideration. You are not to give
any thought as to or any inference as to whether he didn’t call
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any witnesses, that is [not] his responsibility. His responsibility
is to not present anything in his own defense if he so wishes.
Id. at 633. The trial court also instructed that closing statements are not
evidence, id. at 585, and that the jurors “should not base [their] decision on
which attorney made the better speech or which attorney [they] like better
that should not play any part in [their] decision.” Id. at 632. As “[j]uries
are presumed to follow a court’s instructions,” Commonwealth v. Mollett,
5 A.3d 291, 313 (Pa. Super. 2010), Appellant’s claim fails. See also
Robinson, 864 A.2d at 519-20 (explaining that the trial court’s specific
instruction that “[i]t is entirely up to the defendant whether to testify and
you must not draw any adverse inference from his silence … more than
adequately cured any ill effect of this fleeting comment that … did not even
contain a direct reference to [Robinson’s] exercise of his Fifth Amendment
right”).
In his sixth claim of error, Appellant contends that the sentencing
court abused its discretion by imposing an aggravated sentence for his
conviction for drug delivery resulting in death in addition to consecutive
sentences for other convictions.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We 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
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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.[ ] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted) (quoting Commonwealth v. Evans, 901 A.2d 528, 533
(Pa. Super. 2006)).
Instantly, Appellant timely filed a notice of appeal, challenged the
discretionary aspects of his sentence in his post-sentence motion, and
included a statement pursuant to Rule 2119(f) in his brief. Thus, we now
consider whether he has raised a substantial question worthy of appellate
review.
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). “A substantial question exists only 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.” Griffin, 65 A.3d at 935 (citation and internal quotation
marks omitted).
In his Rule 2119(f) statement, Appellant contends that he raises a
substantial question in that “[t]he sentencing court did not place any valid
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reasons on the record pursuant to 42 [Pa.C.S.] § 9721(b) to justify the
imposition of an aggravated sentence.” Appellant’s Brief at 19. “The failure
to set forth adequate reasons for the sentence imposed has been held to
raise a substantial question.” Commonwealth v. Macias, 968 A.2d 773,
776 (Pa. Super. 2009). Thus, we proceed to the merits.
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. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)
(citation omitted).
Appellant contends that the trial court did not give adequate reasons
for its sentence. Specifically, the “trial court’s sentence was unreasonable …
because it failed to account for any of the mitigating factors and imposed the
same sentence it would have had none been present.” Appellant’s Brief at
45. Appellant specifically references his genuine remorse, his severe
addiction to heroin and inability to attend a rehabilitation program despite
numerous attempts, and Appellant’s mother’s testimony at the sentencing
hearing that she had tried to help Appellant receive treatment but had not
been able to because they lacked money and insurance coverage. Id.
Appellant argues that, instead of accounting for these factors, the court
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“simply determined that … Lowe’s resulting death, even if accidental and
unforeseen by [Appellant], warranted the maximum sentence,” which
represents a misunderstanding concerning the elements of the offense of
drug delivery resulting in death and presents a profound unfairness. Id.
Appellant further argues that “[e]ven if the court were correct concerning
the legal requirements for liability, certainly the fact that … Lowe’s death
was an unforeseeable accident bears some mitigation.” Id.
With respect to the mitigating factors Appellant sets forth above, the
court heard testimony at the sentencing hearing from both Appellant and
Appellant’s mother, as well as argument from Appellant’s counsel, regarding
Appellant’s severe addiction to heroin, his attempts at getting treatment, his
remorse, and his lack of intent. N.T., 12/21/2015, at 9-25. Finally, the trial
court had the benefit of a presentence investigation report (PSI). See
Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (“Our
Supreme Court has determined that where the trial court is informed by a
[PSI], it is presumed that the court is aware of all appropriate sentencing
factors and considerations, and that where the court has been so informed,
its discretion should not be disturbed.”). In sentencing Appellant, the trial
court explained that it considered, inter alia, “the [PSI] and evidence that’s
been presented” at the hearing.6 Id. at 69. Based on the foregoing,
6
Although the trial court offered reasons for its sentence in generic terms,
we note that the evidence included, inter alia, testimony regarding
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Appellant’s arguments do not persuade us that the trial court abused its
discretion in imposing sentence. The court did consider the above mitigating
factors, and simply did not accord them the weight Appellant wished it did.
See Commonwealth v. Raven, 97 A.3d 1244, 1255 (Pa. Super. 2014) (in
rejecting Raven’s discretionary aspects of sentencing claim, explaining that
“[t]he gist of Raven’s argument is not that the court failed to consider the
pertinent sentencing factors, but rather that the court weighed those factors
in a manner inconsistent with his wishes” and that “the court carefully
considered all of the evidence presented at the sentencing hearing”). No
relief is due.
In his final issue, Appellant argues that his sentence and section 2506
violate the Eighth Amendment’s restriction against cruel and unusual
punishment. Appellant argues that his aggregate sentence is
disproportionate to his culpability, as he had no idea that giving Lowe heroin
would result in Lowe’s death and his conduct does not reflect any particular
depravity or callousness. Appellant’s Brief at 47. Appellant argues that this
was a tragic accident resulting from his drug addiction, which shows that he
Appellant’s delivery of heroin to another individual at the scene of the death
during the period of time in which Lowe was unresponsive. N.T.,
12/21/2015, at 52. See also N.T., 9/29-30/2015, at 243-46 (testimony of
Jacob Blass explaining that he had given Appellant money to buy heroin
earlier in the day of Lowe’s death and that, later that night, he contacted
Appellant to make sure Appellant had obtained the heroin, at which point
Appellant said Lowe was unresponsive; Blass went to the scene and, while
Lowe was unresponsive, Appellant delivered two bags of heroin to Blass).
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is “less culpable because his conduct was the product of impaired judgment
and the simple failure to appreciate risks,” and demonstrates his capacity to
be rehabilitated. Id.
We address Appellant’s claim mindful of the following.
All properly enacted statutes enjoy a strong presumption of
constitutionality.
Accordingly, a statute will not be declared unconstitutional
unless it clearly, palpably, and plainly violates the
Constitution. All doubts are to be resolved in favor of
finding that the legislative enactment passes constitutional
muster. Thus, there is a very heavy burden of persuasion
upon one who challenges the constitutionality of a statute.
Appellate review of constitutional challenges to statutes,
disputes over the legality of a sentence, a court’s application of a
statute, and general questions of law involve a plenary scope of
review. As with all questions of law, the appellate standard of
review is de novo. ...
***
The Eighth Amendment does not require strict
proportionality between crime and sentence. Rather, it
forbids only extreme sentences which are grossly
disproportionate to the crime. In Commonwealth v.
Spells, [] 612 A.2d 458, 462 ([Pa. Super.] 1992) (en
banc), the Superior Court applied the three-prong test for
Eighth Amendment proportionality review set forth by the
United States Supreme Court in Solem v. Helm, 463 U.S.
277, 292[] (1983), and determined that a five-year
mandatory minimum sentence for offenses committed with
a firearm does not offend the Pennsylvania constitutional
prohibition against cruel punishments. The Spells court
observed that the three-prong Solem proportionality test
examines: “(i) the gravity of the offense and the harshness
of the penalty; (ii) the sentences imposed on other
criminals in the same jurisdiction; and (iii) the sentences
imposed for commission of the same crime in other
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jurisdictions.” The Spells court correctly observed that a
reviewing court is not obligated to reach the second and
third prongs of the test unless “a threshold comparison of
the crime committed and the sentence imposed leads to an
inference of gross disproportionality.”4
4
Justice Kennedy’s understanding of the first prong
of the Solem test as a threshold hurdle in
establishing an Eighth Amendment violation has
been recently cited with approval by the High Court
as well. “A court must begin by comparing the
gravity of the offense and the severity of the
sentence.” In the “rare case” in which this threshold
comparison leads to an inference of gross
disproportionality, the reviewing court “should then
compare the defendant’s sentence with the
sentences received by other offenders in the same
jurisdiction and with the sentences imposed for the
same crime in other jurisdictions.” “If this
comparative analysis ‘validate[s] an initial judgment
that [the] sentence is grossly disproportionate,’ the
sentence is cruel and unusual.”
Commonwealth v. Colon-Plaza, 136 A.3d 521, 530-31 (Pa. Super. 2016)
(some citations and internal quotation marks omitted).
Herein, Appellant was convicted of several crimes stemming from his
providing Lowe with a dose of heroin that resulted in Lowe’s death.
Appellant was sentenced to a term of incarceration of 10 years to 20 years,
10 months for his drug-delivery-resulting-in-death conviction, and an
aggregate sentence of 12 years and 10 months to 26 years and 10 months
of incarceration. In light of the gravity of the offense(s) at issue, most
importantly the death of a young man, and the severity of the sentences
imposed, we conclude that this is not a “rare case” in which this threshold
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comparison leads to an inference of gross disproportionality. Thus,
Appellant’s claim is without merit.
Based on the foregoing, Appellant has failed to establish that he is
entitled to relief. Accordingly, we affirm his judgment of sentence.
Judgment of sentence affirmed.
Judge Lazarus joins.
Judge Solano concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2017
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