Com. v. Marmillion, M.

J-A20002-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MINDYN LYNN MARMILLION :

:

Appellant : No. 99 MDA 2023

Appeal from the Judgment of Sentence Entered June 13, 2022

In the Court of Common Pleas of Bradford County

Criminal Division at No(s): CP-08-CR-0000367-2021

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.E.: FILED NOVEMBER 12, 2024

This case returns to us from the Pennsylvania Supreme Court for

reconsideration after we affirmed the Judgment of Sentence on January 18,

2024. Mindyn Lynn Marmillion appealed from the judgment of sentence

imposed by the Bradford County Court of Common Pleas after it found

Marmillion guilty of delivery of a controlled substance, possession of a

controlled substance, and recklessly endangering another person (“REAP”)

following a bench trial. The convictions stemmed from an incident at the Best

Western Hotel in Sayre, Pennsylvania on January 10, 2021, which resulted in

the death of Ashley Richardson from a drug overdose. Although Marmillion

was also charged with several offenses requiring a showing that Marmillion

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* Former Justice specially assigned to the Superior Court.

J-A20002-23

had caused Richardson’s death, including third-degree murder and drug

delivery resulting in death, the trial court dismissed those counts at the close

of the Commonwealth’s case in chief.

On appeal to this Court, Marmillion raised five issues. She claimed the

trial court improperly convicted her of delivery of a controlled substance for

several reasons, but most importantly, because the court omitted rendering

the guilty verdict for that particular offense in open court at the end of trial.

She also argued she was entitled to immunity under the Drug Overdose

Response Immunity Act, 35 P.S. § 780-113.7, and that the trial court should

have merged the possession of a controlled substance conviction with the

delivery of a controlled substance conviction for sentencing purposes.

On direct appeal, we affirmed the judgment of sentence. However, on

October 1, 2024, the Pennsylvania Supreme Court remanded the case back to

the Superior Court with the following directions:

AND NOW, this 1st day of October, 2024, the petition for

allowance of appeal is GRANTED, the order of the Superior Court

is VACATED, and the matter is REMANDED to the Superior Court

for reconsideration in light of Commonwealth v. Chambers, 310

A.3d 76 (Pa. 2024).

Order, 2024 WL 4354023, at *1 (Pa. filed Oct. 1, 2024).

A thorough recitation of the underlying facts was provided in our earlier

decision filed on December 13, 2023. See Commonwealth v. Marmillion,

306 A.3d 936, 939-41 (Pa. Super. 2023), vacated by, ___ A.3d ___, 2024 WL

4354023 (Pa. filed Oct. 1, 2024). We provide only the following pertinent facts

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necessary for our disposition. The Commonwealth rested its case at the close

of Officer Casey Shiposh1 of the Sayre Borough Police Department’s

testimony. At that point, Marmillion moved for dismissal on several of the

charges, including the third-degree murder, delivery resulting in death and

involuntary manslaughter charges, on the basis of insufficient evidence.

Marmillion argued the Commonwealth had not met its burden of proving

Marmillion caused Richardson’s death because it had not established whether

the eutylone, which Richardson took voluntarily, or the fentanyl, which had

been administered intranasally, had killed Richardson.

The trial court agreed and found the Commonwealth had established

that Marmillion administered fentanyl to Richardson intranasally, albeit in “an

ill-advised attempt to reverse the effects of the eutylone,” and that there had

been no evidence that Richardson had otherwise ingested fentanyl. Trial Court

Opinion, 1/3/2023, at 5 n.2, 8. However, the court also found the

Commonwealth had not established that the fentanyl, as opposed to the

eutylone, which Richardson ingested voluntarily, had caused Richardson’s

death.

In making this determination, the court noted it could only consider the

testimony of the two Commonwealth expert witnesses, Dr. Robert

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1 Officer Shiposh was the responding officer who observed Richardson on the

floor not breathing and recovered the drugs on Marmillion’s person and in the

hotel room. See N.T 4/21/2022, at 11-30.

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Stoppacher, who performed the autopsy on Richardson, and Donna Papsun,

the toxicologist who had analyzed Richardson’s blood, because Dr. William

Cox, who opined that the eutylone was the primary factor in Richardson’s

death, was a defense witness and had testified out of order. When considering

the Commonwealth’s experts’ testimony, the court stated that the only thing

that was certain about the cause of Richardson’s death was that the experts

“could not say with any certainty at all that the fentanyl caused the death.

That was one thing that was very clear. I can say with no certainty at all that

the fentanyl caused the death.” N.T., 4/21/2022, at 83. It therefore dismissed

the three charges related to Marmilion’s administration of the fentanyl as the

cause of Richardson’s death: third-degree murder, drug delivery resulting in

death and involuntary manslaughter.

The defense announced that Marmillion was not going to testify, and

therefore rested its case at that point, reminding the trial court of Dr. Cox’s

earlier testimony.

The attorneys then presented their closing arguments. Id. at 89–98.

The trial court addressed the remaining charges against Marmillion and stated

on the record that it had found Marmillion guilty of REAP and possession of a

controlled substance but not guilty of the other charges:

[I] do want to indicate that the . . . Drug Overdose Response

Immunity Act I don’t think is applicable. Not because the parties

didn’t do something, but there is a good faith requirement there.

I read good faith to mean timely. The mistake all – this whole

entire group made was trying to save Ashley by themselves, and,

. . .911 should have been called, in my view, sooner.

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[I]n terms of the rest of the charges, I find the Defendant

guilty of Recklessly Endangering Another Person and Possession

of a Controlled Substance. The other charges, I find the Defendant

not guilty of. Alright? So we’ll schedule sentencing for June 13 at

1:45 p.m.

Id. at 98–99. Following a few comments by the court, the trial was adjourned

at 11:46 a.m.

Approximately two hours later, at 1:59 p.m., the trial court had an on-

the-record conversation with the prosecutor and defense counsel:

I owe you both an apology because I made what I view as a pretty

big oversight in saying the—the verdict. .. As I was dictating the

order of what transpired and I listed the three charges that I found

[Marmillion] guilty of, I had a flashback and thought, “I don’t think

I said she was guilty of delivery.” … [T]here’s no change in my

mind here. This was just an oversight. She will be found and is

guilty of the delivery, of [REAP] and of the possession… It’s kind

of essential that she be guilty of [the delivery of a controlled

substance charge] to go along with the [REAP] charge. It just

wouldn’t make any sense. .. The order that goes down will simply

say that she is guilty of [possession, REAP and delivery of a

controlled substance].

Id. at 102.

The written order and verdict filed later did, in fact, state that Marmillion

had been found guilty of delivery of a controlled substance, REAP and

possession of a controlled substance. The order made a note that the court

had inadvertently omitted the finding of guilty for the delivery charge in open

court at the end of trial but upon realizing its mistake shortly thereafter,

notified counsel of the mistake and its intent to find Marmillion guilty of the

delivery charge. The order also explained that it had partially granted

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Marmillion’s motion for dismissal as to all counts that required the

Commonwealth to prove Marmillion caused the death of Richardson, reasoning

that neither of the Commonwealth medical experts were able to testify that

the fentanyl caused Richardson’s death to the exclusion of the eutylone. See

Order and Verdict, 4/21/22, at ¶¶ 1, 2-4.

On June 13, 2022, the trial court held a sentencing hearing, after which

it sentenced Marmillion to two to eight years’ imprisonment for the delivery of

a controlled substance conviction, 11 months to two years’ incarceration for

the REAP conviction, and four months to one year for the possession

conviction. The court ordered the sentences to run consecutively, so that

Richardson’s aggregate sentence amounted to 3 years and 3 months to 11

years’ imprisonment.

Marmillion filed a timely post-sentence motion on June 17, 2022. The

trial court held a hearing on the motion on August 24, 2022, and established

a briefing schedule for the parties. In relation to the argument raised by

defense counsel that the trial court had stated in open court that it had found

the defendant not guilty of the charge delivery of a controlled substance, the

trial court stated:

[I] really don’t have a whole lot more to say on this beyond what

I said when I called the parties that day. But, I would emphasize

that this was not a reconsideration situation where, upon

further reflection, I wanted to change my mind. As I explained

that day, and I’ll repeat again today, when I went back over lunch

to dictate the order and I dictated the Defendant being found

guilty of the three charges that I, in my mind, found her guilty of,

had a sort of sickening feeling that I didn’t say out-loud the

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delivery conviction. . . .[A]nd then I very quickly tried to get both

of you on the phone, it took probably half an hour to track down

Mr. Light and when we did that I then explained that I just made

a mistake.

And, to be honest, what I did was I had the information in

front of me and when I glanced at the front page of the

information, the delivery charge is at count 4 and it’s in between

all the rest of the bodily injury charges, . . . the death, the

homicide, the assault, and I just flipped over it. When I came back

into the courtroom and read the two on the second page, . . . it

was my mistake, it was a bad mistake, I feel upset that I didn’t

create a written verdict slip which would have eliminated this

mistake, because I would have filled it out correctly and then just

read from it. The problem was, when I went back after the trial

ended, the only thing I really looked at was that immunity statute,

because I knew what I was going to do with the charges if the

immunity statute didn’t apply, and then I just came back and just

didn’t do it.

[A]nd so that’s my mistake and I think in Mr. Light’s brief

he cites a case, Commonwealth v. Feranella, and that’s a

situation where, I read that case, and it’s very clearly a very

different situation. There it was a bench trial and before

sentencing the judge wrote in his opinion that based upon

“extensive” review of the notes of testimony in advance of the

sentencing hearing, he realized he got it wrong. And, that’s just

not the case here . . . .

It’s an interesting issue but it was simply a mistake on my

part. [I] don’t think we [] have anything else then. Mr. Light, do

we have anything else?

See N.T., 8/24/2022, at 15-17 (emphasis added; paragraphing provided).

The trial court ultimately denied the motion on January 3, 2023. Along with

its order, the trial court issued a thoughtful and well-reasoned opinion

explaining its reasons for denying the post-sentence motion.

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Marmillion filed a notice of appeal on January 13, 2023, and complied

with the trial court’s order directing her to file a Pa. R.A.P. 1925(b) statement

of errors complained of on appeal. Her statement read:

1. Did the Trial Court err in failing to grant her Judgment of

Acquittal on Delivery of a Controlled Substance pursuant to 35

P.S. § 780-113(A)(30)?

2. Did the Trial Court err in failing to grant [Marmillion’s] Motion

and Arrest for Judgment under the Drug Overdose Response

Immunity Act?

3. Did the Trial Court err in failing to grant the merger of

Possession of a Controlled Substance and Delivery of a

Controlled Substance?

Concise Statement of Errors Complained of on Appeal, 1/25/2023, at 1-2.

The trial court filed a statement in lieu of a Rule 1925(a) opinion,

referring this Court to its January 3, 2023, opinion as support for affirming the

judgment of sentence. As previously stated, this Court affirmed the judgment

of sentence on December 13, 2023, and, on October 1, 2024, the Pennsylvania

Supreme Court vacated our January 18, 2024 decision and remanded for

reconsideration based on Chambers.

As we did in our initial decision, we find that this appeal was filed timely.

In her first issue, Marmillion complains the trial court erred by finding

her guilty of delivery of a controlled substance in its written verdict after it

failed to make that finding when announcing its verdict in open court at the

end of trial. As stated earlier, the trial court, prior to filing the written verdict,

held an on-the-record conference with counsel during which it informed

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counsel that it had rendered an incorrect verdict on the delivery charge and

was reforming the verdict to be guilty on delivery. We affirmed. \However,

as stated above, our Supreme Court vacated our earlier decision and

remanded the case on this issue.

In Commonwealth v. Chambers, 310 A.3d 76 (Pa. 2024), the

Supreme Court of Pennsylvania stated: “The law is clear that, once a verdict

is rendered, a court’s authority to alter that verdict is severely circumscribed.”

Id. at 91. The Supreme Court followed that announcement with the process

to correct an ambiguous (which doesn’t apply here) or a mistaken (which does

apply here) verdict. Upon completion of a bench trial, an error in the verdict

“typically . . . must be corrected immediately, lest the authority to fix the error

be lost forever. Thus, for example, if a trial court misspeaks, but corrects that

misstatement seconds later, the court has run afoul of no law.” Id.

The Supreme Court also recognized that an obvious and indisputable

clerical or transcription error can be corrected, but neither applies here. The

verdict here, announced in open court, was not flawed in any fashion that

would have relegated it to attack; therefore, as cited by the Supreme Court

in Chambers, the holding in Commonwealth v. Farinella, 887 A.2d 273

(Pa. Super. 2005), prohibited any alteration in the case’s verdict.2

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2 The trial court in a nonjury setting cannot change a proper verdict made in

open court that was not ambiguous even in the face of a statement by the

(Footnote Continued Next Page)

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Of course, the trial court here did not attempt to alter the verdict which

it announced in court, in the presence of the parties, solely by way of a written

verdict issued later in the day. As stated above, the trial court conscientiously

alerted counsel, and organized an on-the-record phone conference, about two

hours after the verdict had been initially rendered in open court. The steps

taken by the trial court, as well as our earlier decision, were also made prior

to the Supreme Court’s decision in Chambers. The trial court further

explained in its post-sentence decision that its comments regarding the

evidence supported the finding of guilt on the delivery charge. See, Trial Court

Opinion, 1/3/2023, at 10-11.

These detailed steps taken by the trial court were truly commendable.

Nevertheless, the trial court’s reversal of the finding of guilt for the delivery

charge did not come until later in the day. It was not an immediate correction

in open court with the parties present. It was not the result of a motion by

either party. “That the trial court may have privately intended a different

verdict, or that its findings would have supported that different verdict, are

insufficient to justify its actions.” Chambers, 310 A.3d at 92. We do not

challenge, in any way, the trial court’s strong and unequivocal statements that

it mistakenly entered the wrong verdict on the delivery charge, but “[e]ven

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trial court that “it was merely correcting an error in the pronouncement of the

verdict.” Farinella, 887 A.2d at 275-76.

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where a court’s intention to render a different verdict is unquestionable and

obvious, that intent is relevant only to correct a patently obvious clerical or

transcription error in connection with the recording of that verdict. Merely

expressing that the court meant or intended something else is insufficient to

satisfy the ‘heavy burden’ necessary to allow a verdict to be substituted.” Id.

Based on the foregoing, we are constrained to reverse the conviction for

delivery of a controlled substance and vacate the judgment of sentence on

that conviction.

In her second claim, Marmillion argues she was entitled to immunity

under the Drug Overdose Response Immunity Act (“the Act”), 35 P.S. § 780-

113.7. We decide this issue consistently with our prior decision. As we found

in our initial decision, this claim fails.

The Act provides immunity from prosecution for possessory narcotics

infractions when a person has a reasonable belief someone is experiencing a

drug overdose and contacts local authorities. See Commonwealth v. Lewis,

180 A.3d 786, 787-788 (Pa. Super. 2018). The Act provides this immunity to

both the reporter and the overdose victim, as long as the following conditions

are met:

(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.

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(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.

35 P.S. § 780-113.7.

Therefore, under the Act, when a person reports a drug overdose in

good faith, “immunity is only granted when the reporter reasonably believes

medical attention is necessary [and] … provide[s] authorities with her real

name, [stays] with the subject of her report, and [ ] cooperate[s] fully with

authorities.” Lewis, 180 A.3d at 790. It is the defendant who carries the

burden of proof to establish she is entitled to immunity under the Act. See

Commonwealth v. Lehman, 231 A.3d 877 (Pa. 2020).

Even though the Act potentially provides immunity for Marmillion’s

possession of a controlled substance charge, she has failed to establish the

trial court erred by failing to grant her immunity for that offense under the

Act. The trial court found that the reporting of Richardson’s overdose had not

been made in good faith because Marmillion’s cohorts waited at least 30

minutes to call 911. Marmillion responds to that finding by stating she did not

act in bad faith because she did not provide eutylone to Richardson. See

Appellant’s Brief at 19.

While that argument is neither responsive nor persuasive, Marmillion’s

attempt to invoke immunity under the Act suffers from a more glaring issue

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in that she completely fails to meet her burden of establishing she fully

cooperated with authorities. The only support Marmillion provides for her

argument that she complied with the statutory mandate to cooperate with law

enforcement is a single conclusory assertion that she “cooperated with law

enforcement.” Id. She provides no further argument and no evidence to

substantiate that assertion. And, in fact, our review of the record indicates the

exact opposite occurred. In response to a question about whether people were

forthcoming in their initial interviews at the scene, Officer Shiposh stated:

At first, no, not at all. I mean, we – when we were on scene

basically everybody denied everything. Um, as the day

progressed, the truth – parts of the truth started to come out. Um,

at first – at first there was little to no cooperation. We slowly

gained somewhat cooperation, I guess, if you will, throughout the

day. Um, all the, uh [Marmillion] and the co-defendants were

extremely high, even hours after the fact. Um, it was really hard

to get anything out of them.

N.T., 4/21/2022, at 32.

Officer Shiposh then confirmed this lack of cooperation on cross-

examination:

Q: [They] cooperated with law enforcement?

A: No, that’s not true.

Q: They didn’t cooperate with law enforcement?

A: No.

Q: They didn’t tell you that she died of an overdose?

A: Not at first, no.

Q: Okay.

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A: It took a lot of prying to get the truth from them.

Id. at 73.

This testimony clearly undermines Marmillion’s bald assertion she

cooperated with law enforcement, and she does not point to any other place

in the record which shows she was forthright and cooperative. We further note

that Marmillion does not dispute she did not call 911 or speak to 911. Instead,

Marmillion baldly alleges she told the others to call 911, but she does not point

to any support in the record to substantiate that assertion either. Moreover,

it is undisputed that Marmillion did not reveal the full extent of her attempts

to treat Richardson to the authorities. While the Commonwealth does not

argue and there is no evidence in the record to support a finding that this

failure contributed to Richardson’s death, we note that full cooperation

includes, at the very least, communication of any other treatments

administered to the victim. In the end, Marmillion has simply failed to meet

her burden of showing she has met all of the conditions required under the

Act for granting immunity. We therefore find, albeit for different reasons, that

the trial court did not err in finding the Act was not applicable to Marmillion.

See Commonwealth v. O’Drain, 829 A.2d 316, 321 n.7 (Pa. Super. 2003)

(stating this Court may affirm the trial court’s decision on a different basis

than that relied upon by the trial court). Therefore, this claim does not merit

relief.

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Considering our reversal of her conviction of the delivery charge, there

is no need to review Marmillion’s arguments regarding the sufficiency of the

evidence of the delivery charge, or her challenge to the trial court’s decision

not to merge her possession of a controlled substance sentence with her

delivery of a controlled substance sentence.

In sum, we reverse the conviction on the delivery of a controlled

substance charge and vacate the judgment of sentence on this charge. We

affirm the judgment of sentence for possession of a controlled substance and

recklessly endangering another person (“REAP”). Because our disposition

alters and affects the trial court’s overall sentencing scheme, we vacate the

entire judgment of sentence and remand for resentencing. See

Commonwealth v. Bartrug, 732 A.2d 1287, 1289 (Pa. Super. 1999)

(holding sentencing error on one count in multi-count case normally requires

appellate court to vacate entire judgment of sentence so trial court can

restructure its sentencing plan on remand).

Judgment of sentence vacated. Case remanded to the trial court for a

new sentencing hearing consistent with this memorandum. Jurisdiction

relinquished.

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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 11/12/2024

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