Com. v. Bredbenner, J.

J-S81029-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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