The opinion
J-A20002-23
2023 PA Super 267
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.*
OPINION BY PANELLA, P.J.: FILED: DECEMBER 13, 2023
Mindyn MarMillion appeals 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 had caused Richardson’s
death, including third-degree murder and drug delivery resulting in death, the
____________________________________________
* Former Justice specially assigned to the Superior Court.
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trial court dismissed those counts at the close of the Commonwealth’s case in
chief.
On appeal, Marmillion raises five issues. She claims the trial court
improperly convicted her of delivery of a controlled substance for several
reasons: because the court omitted rendering the guilty verdict for that
particular offense in open court at the end of trial; because a guilty verdict for
the delivery charge made the verdict generally inconsistent; and because the
evidence was insufficient to support the delivery conviction. She also argues
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. As we find no error
on the part of the trial court, we affirm the judgment of sentence.
Marmillion and Richard Gordon were staying in Room 224 at the Best
Western Hotel in Sayre. On January 10, 2021, the two were doing drugs in
the hotel room when Gordon contacted a drug dealer, Robert Benjamin III, in
search of the drug MDMA or “Molly.” Benjamin came to the hotel room with
two other women, Richardson and her friend, Dawn Anderson. Benjamin
brought drugs with him, which turned out to be Eutylone, a synthetic stimulant
that is a common substitute for Molly, and sold the drugs to Gordon.
The parties continued to do a variety of drugs in the hotel room. There
is no dispute that Richardson voluntarily ingested what she thought was Molly,
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actually Eutylone, in the hotel room. At some point, Richardson told Anderson
she did not feel well and wanted to take a bath. After bathing, Richardson fell
to the floor and began seizing. The trial court summarized what happened
next:
Although the sequence of events is not clear, at some point the
other people in the room, including [Marmillion] took steps to try
to help [Richardson] by performing CPR and holding her wrists
and legs to keep her from flailing around. During this time,
Marmillion temporarily placed a bandana around [Richardson’s]
head and in or across her mouth to keep her from making noise
and, presumably, to prevent her from clenching her teeth and
biting her tongue. Eventually, after the passage of perhaps [ ] 30
minutes, somebody in the room called 911.
Trial Court Opinion, 1/3/2023, at 3 (citations to notes of testimony omitted).
Officer Casey Shiposh of the Sayre Borough Police Department and
emergency medical technicians (“EMT”) arrived at the hotel room and saw a
female attempting to perform CPR on Richardson, who was not breathing and
did not have a pulse. Officer Shiposh and then the EMTs performed CPR on
Richardson. The EMTs also gave Richardson epinephrine and Narcan, but they
were unable to resuscitate her. Richardson died at the scene.
Dr. Robert Stoppacher performed the autopsy on Richardson. Blood
tests revealed that Richardson had, among other things, fentanyl, eutylone,
xylazine and methamphetamine in her system. Dr. Stoppacher attributed the
death to mixed drug toxicity from these drugs and classified her death as
accidental.
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Several months later, a cellmate of Marmillion’s at Bradley County jail
informed police that Marmillion told her Marmillion had shot fentanyl up
Richardson’s nose while she was seizing on the hotel floor. Upon investigation,
Anderson confirmed this. This new information led Dr. Stoppacher to amend
the autopsy report and classify Richardson’s death as a homicide, although
the cause of death remained the mixed drug toxicity of the drugs in
Richardson’s system.
Marmillion was charged with third-degree murder, drug delivery
resulting in death, involuntary manslaughter, aggravated assault, REAP,
delivery of a controlled substance and possession of a controlled substance.
The matter proceeded to trial, and Marmillion waived her right to a jury trial.
The Commonwealth began its case by playing a recording of the 911 call
that was made on January 10, 2021, which consisted of a female caller
imploring Richardson to wake up and telling the dispatcher that Richardson
had started seizing, was not breathing and that people in the hotel room were
attempting CPR. See N.T., 4/22/2023, at 11-26. The caller identified herself
as Anderson. See id. at 18.
Anderson also testified at trial. She stated that she and Richardson had
been “partying” for a few days prior to January 10. See id. at 50. She
confirmed she went to the Best Western hotel room on January 10 with
Richardson and Benjamin, who was also her drug dealer. She stated she and
Richardson were snorting Molly (again, later confirmed to be eutylone) that
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she had bought from Benjamin, and that Richardson was doing so entirely
voluntarily. See id. at 56-57.
Anderson testified that after Richardson starting seizing, Marmillion got
a syringe and shot a liquid up Richardson’s nose. See id. at 50. According to
Anderson, Richardson started gagging, so Marmillion took handkerchiefs and
shoved them in Richardson’s mouth and duct-taped her mouth, which she
then removed after Richardson vomited. See id. at 51.
Anderson testified Gordon called 911. See id. at 52, 58. Gordon then
handed Anderson the phone, and Anderson spoke on the phone with the 911
dispatcher. See id. at 52. Anderson testified that Marmilion did not call or talk
to the 911 dispatcher but agreed Marmillion had attempted to perform CPR on
Richardson. See id. at 58-59.
Anderson stated she did not learn that the substance Marmillion injected
into Richardson’s nose was fentanyl until months later, when she was at
Bradford County jail with Marmillion and Marmillion told other inmates she had
shot fentanyl up Richardson’s nose. See id. at 51. Anderson testified she did
not initially tell the police about Anderson plunging the syringe up Richardson’s
nose because she was “high and in shock” after her friend’s death. See id. at
67-68.
Randi Williams also testified. She explained she was Marmillion’s
cellmate at Bradford County jail. During that time, Williams maintained,
Marmillion told her about the incident with Richardson and shared she had tied
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a bandana around Richardson’s mouth to try to quiet her down and had shot
fentanyl up her nose. See id. at 82. According to Williams, Marmillion talked
about the case and the fentanyl to several inmates at the jail. See id. at 88.
Gordon also testified, stating he had called Benjamin and asked him for
Molly, which Benjamin brought to the hotel room on January 10. He
maintained Richardson was smoking Molly and K2. See id. at 104. After
Richardson starting seizing, Gordon said Benjamin injected a syringe into
Richardson’s nose. See id. at 102. He then saw Marmillion inject a syringe
into Richardson’s nose with what Richardson later believed could have been
water. See id. at 104-105, 107, 120. Gordon stated Marmillion used fentanyl
“all the time” and he assumed she was using fentanyl in the hotel room on
the night in question. See id. at 106, 110-111.
The Commonwealth presented the expert testimony of Dr. Stoppacher
and Donna Papsun, the toxicologist who had analyzed Richardson’s blood. The
defense, meanwhile, presented the expert medical testimony of Dr. William
Cox while the Commonwealth’s case-in-chief was ongoing. The trial court
summarized the expert testimony in some detail but we highlight the trial
court’s observations that Dr. Cox testified that he was of the opinion that the
eutylone was the primary factor in Richardson’s death; in contrast, Papsun
testified there were potentially lethal amounts of both eutylone and fentanyl
in Richard’s blood. See Trial Court Opinion, 1/3/2023, at 4-5. Papsun stated
she could not “pin the death on, pin the toxicology just on the eutylone, to the
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exclusion of the fentanyl,” and the levels of the drugs in Richardson’s system
were such that she believed Richardson could have died from either. See id.
at 5 (citations to notes of testimony omitted). Similarly, Dr. Stoppacher opined
that the fentanyl could not be discounted as contributing to Richardson’s death
but he could not state with scientific certainty which drug actually caused
Richardson’s death. See id. at 6-7.
Following the expert testimony, the Commonwealth presented the
testimony of Officer Shiposh. The officer testified the police found, among
other things, hypodermic needles, stamp baggies of presumed heroin or
fentanyl, containers with purported marijuana and a meth pipe in the hotel
room. See N.T 4/21/2022, at 11-28. The police also recovered drugs on
Marmillion’s person, which were tested and confirmed to be, inter alia,
eutylone, heroin and fentanyl. See id. at 29-30.
The Commonwealth rested its case at the close of the officer’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.
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The trial court agreed. The trial court 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 because Dr. Cox 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.” See 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 rested its case at that point. The trial court then 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
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not guilty of the other charges. Court was adjourned. Approximately two hours
later, 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 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 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.
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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 three and three 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. The trial court ultimately denied the motion,
but not until 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.
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?
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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.
Before proceeding to the issues Marmillion raises on appeal, we must
determine whether the procedural posture of the case divests this Court of
jurisdiction because of an untimely-filed notice of appeal. See
Commonwealth v. Burks, 102 A.3d 497, 500 (Pa. Super. 2014) (stating this
Court lacks jurisdiction over untimely appeals and we may raise such
jurisdictional issues sua sponte). Marmillion filed her post-sentence motion on
June 17, 2022, and the trial court had 120 days, or until October 17, 2022, to
decide the motion, or else the motion would be deemed denied by operation
of law. See Pa.R.Crim.P. 720 (B)(3)(a).
However, the trial court did not rule on Marmillion’s motion until January
3, 2023, which was clearly outside the 120-day window. Under our rules of
criminal procedure, the post-sentence motion should have been deemed
denied by operation of law at the expiration of the 120-day period, October
17, 2022, and the clerk of courts should have entered an order denying the
motion at that time and served that order on the parties. See Pa.R.Crim.P.
720(B)(3)(c). Marmillion would then have had 30 days from the entry of that
order denying the post-sentence motion in which to timely file her notice of
appeal. See Pa.R.Crim.P. 720 (A)(2)(b).
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The clerk of courts, however, did not enter an order deeming the post-
sentence motion denied by operation of law on October 17, 2022. Instead, the
trial court ruled on the post-sentence motion on January 3, 2023, and
Marmillion appealed from that order on January 13, 2023. Although these
circumstances implicate the timeliness of Marmillion’s appeal, we have
declined to quash an appeal for untimeliness in similar circumstances. In
Commonwealth v. Perry, we noted this Court has held that “where the clerk
of courts does not enter an order indicating that the post-sentence motion is
denied by operation of law and notify the defendant of same, a breakdown in
the court system has occurred and we will not find an appeal untimely under
these circumstances.” 820 A.2d 734, 735 (Pa. Super. 2003) (citations
omitted). We therefore decline to quash Marmillion’s appeal and proceed to
the substantive issues raised by Marmillion in this appeal:
1. Did the trial court err in changing its verdict from not guilty to
guilty after open court concluded on the Delivery charge?
2. Did the trial court err in convicting [Marmillion] of a delivery
charge?
3. Did the trial court err when it failed to acknowledge
[Marmillion] was entitled to relief under the Drug Overdose
Response [Immunity] Act?
4. Did the trial court err in denying [Marmillion’s] Post-Sentence
Motion?
5. Did the trial court fail to merge Possession of a Controlled
Substance with Delivery of a Controlled Substance?
Appellant’s Brief at 2-3 (suggested answers omitted).
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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 announce a guilty verdict for that offense when announcing its verdict
in open court at the end of trial. She maintains this amounted to the trial court
improperly reconsidering the verdict, and improperly changing its mind about
the verdict as a result of that reconsideration. This claim warrants no relief.
In the first instance, we question whether Marmillion sufficiently raised
this issue in her Rule 1925(b) statement. There, as noted above, Marmillion
only raised a general claim that the trial court improperly failed to grant her
judgment of acquittal on the delivery of a controlled substance charge. She
did not allude in any way to any change in the verdict as being the basis for
this claim. It is arguably waived for this reason. See Pa. R.A.P. 1925(b)(4)(ii),
(vii).
Even if not waived, the claim fails on the merits. In support of her
argument, Marmillion relies on Commonwealth v. Parker, 451 A.2d 767 (Pa.
Super. 1982) and Commonwealth v. Farinella, 887 A.2d 273 (Pa. Super.
2005). However, these cases are easily distinguishable.
In Parker, the trial court, at the close of what had been a bench trial,
found Parker guilty of robbery and possession of an instrument of crime and
entered an order so stating. Parker did not file any post-verdict motions.
However, 14 days after the verdict had been entered, the court issued an
order stating that, upon reconsideration of the facts presented at trial, the
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court was changing the verdict for both offenses to not guilty. See Parker,
451 A.2d at 520. The Commonwealth appealed, and this Court found the
court’s attempt to change an already docketed verdict after a sua sponte
reconsideration of the facts produced at trial exceeded the trial court’s post-
verdict authority. See id. at 524.
In Farinella, meanwhile, the trial court announced a verdict of guilty of
aggravated assault at the conclusion of a bench trial. At sentencing, however,
the court changed the verdict to not guilty of aggravated assault. The court
stated that prior to sentencing, it had reviewed the notes of testimony from
trial and that this review had led it to conclude it had erroneously found
Farinella guilty of aggravated assault. Farinella, 887 A.2d at 275. This Court
found the trial court had no basis for changing the verdict, and in so finding,
noted that passages in the trial court’s opinion supported “the proposition that
the court was not merely correcting an erroneous announcement of a verdict
but rather, [improperly] rethought its verdict while preparing for sentencing
and substituted a new verdict.” Id. at 275 n3.
The trial court’s written verdict and opinion, as well as the record, reflect
the exact opposite here. The court specifically stated it was not reconsidering
the verdict but rather, was correcting an erroneous announcement of its
verdict at the end of trial. In both Parker and Farinella, the trial court clearly
rendered the verdict it intended, reconsidered that verdict days later and
changed the verdict based on that reconsideration. That is not what happened
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here. The trial court made clear it had simply made a mistake in announcing
the verdict in court by failing to state it had also found Marmillion guilty of the
delivery charge. As this Court has stated:
A court has no authority to change a previously recorded guilty
verdict if the change is based on a post-verdict factual
redetermination. It is well-settled, however, that a court
possesses the inherent power to correct clerical errors appearing
either in the record or in its orders. Moreover, the power to correct
errors extends to improperly recorded verdicts; thus, a court may
correct a recorded verdict if the verdict does not reflect the
obvious intention of the trier of fact.
Commonwealth v. Williams, 519 A.2d 971, 973 (Pa. Super. 1986) (citations
omitted).
The trial court here explicitly stated that the verdict it read in open court
did not represent its intention to find Marmillion guilty of delivery of a
controlled substance. Upon realizing that, the trial court quickly notified
counsel and corrected its mistake in the written verdict to reflect its original
intention to find Marmillion guilty of the delivery charge, and that written
verdict was the verdict that was docketed the following day. As the trial court
stated in its opinion, the court’s intentions to find Marmillion guilty of the
delivery charge was also reflected in the record:
Besides [the court’s] own statement of [its] intentions, perhaps
the best indication of [the court’s] intention to find [Marmillion]
guilty of delivery may be found during a discussion near the end
of trial between counsel and [the court] regarding the
Commonwealth’s request to call a witness. [See N.T., 4/20/2022,
at 96-99]. The court stated [at that time] that, based on what [the
court had] heard so far, the Commonwealth’s case [was] pretty
much [complete, and] [t]here [didn’t] seem to be much in dispute
about the administration of something intranasally by
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[Marmillion]. … [A]t that point [in the trial, the court thought] that
all the witnesses ha[d] established that [Marmillion did what [the
Commonwealth] said she did [and the] question [remaining was
whether the intranasal injection of the fentanyl] kill[ed]
[Richardson?] [See id. at 96, 99].
Trial Court Opinion, 1/3/2023, at 10-11.
Given this record, the trial court’s opinion and the circumstances of this
case, we simply do not agree with Marmillion that the court’s correction of its
mistake so that the written verdict reflected its intended verdict was improper.
See Williams, 519 A.2d at 973; 42 Pa. C.S.A. § 5505 (stating that except
where otherwise provided or prescribed by law, a court may modify or rescind
an order within 30 days of its entry if no appeal has been taken). No relief is
due.
Next, Marmillion complains the trial court erred by convicting her of the
delivery of a controlled substance charge essentially because this verdict was
inconsistent with the court’s determination that Marmillion’s actions had not
caused Richardson’s death. This claim fails.
Again, as an initial matter, it is arguable this claim is also waived for not
being properly raised in Marmillion’s Rule 1925 statement. As noted above,
Marmillion’s statement only generally challenged the propriety of the delivery
conviction. It did not mention anything about inconsistent verdicts. See
Pa.R.A.P. 1925(b)(4)(ii), (vii).
Even if the claim were properly before this Court, we would find there is
no merit to Marmillion’s claim that the trial court erred by convicting her of
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the delivery charge after finding the evidence was insufficient to find she had
not caused Richardson’s death. Of course, as Marmillion acknowledges,
inconsistent verdicts are allowed in this Commonwealth. See
Commonwealth v. Jordan, 256 A.3d 1094, 1107 (Pa. 2021). In any case,
the trial court was clear it found the Commonwealth had established that
Marmillion injected fentanyl up Richardson’s nose but that the Commonwealth
had not established the fentanyl had been what caused Richardson’s death.
The trial court therefore found Marmillion guilty of the delivery charge, but not
guilty of the death-related charges. Marmillion does not explain, and we fail
to see, how these verdicts are even inconsistent.
In her third claim, Marmillion argues she was entitled to immunity under
the Drug Overdose Response Immunity Act (“the Act”), 35 P.S. § 780-113.7.
This claim also 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
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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.
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).
As an initial matter, we note the Act does not provide immunity to
Marmillion for her delivery of a controlled substance charge or her REAP
charge. This is because the Act provides immunity for only certain,
specifically-enumerated offenses as well as probation and parole violations,
and those offenses do not include delivery of a controlled substance or REAP.
See 35 P.S. § 780-113.7 (d)(2) (stating “[t]his section may not interfere with
or prevent the investigation, arrest, charging or prosecution of a person for
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the delivery or distribution of a controlled substance … or any crime not listed
in subsection (b)”); 35 P.S. § 780-113.7(b) (listing offenses).
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
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
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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.
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
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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).
In her fourth claim, Marmillion asserts the “trial court erred in denying
[her] post-sentence motions.” Appellant’s Brief at 3, 20. This claim is waived.
Inside this claim in her argument section, Marmillion asserts she is
challenging the sufficiency of the evidence of the delivery charge. Again,
Marmillion did not properly raise this issue in her Rule 1925(b) statement and
it is waived for that reason. While generally challenging the delivery conviction
and the denial of her post-sentence motion in her statement, Marmillion did
not mention the sufficiency of the evidence of the delivery conviction as a
basis for those challenges, much less identify which elements of the offense
she was asserting the Commonwealth did not prove. See Pa. R.A.P.
1925(b)(4)(ii), (vii); Commonwealth v. Williams, 959 A.2d 1252, 1257-
1258 (Pa. Super. 2008) (stating that a sufficiency claim is waived if the Rule
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1925 statement fails to articulate the specific elements of the crime which the
appellant is challenging as having been insufficiently proven, and regardless
of whether the trial court addressed the issue).
Marmillion’s final claim is a 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. This last claim also does not offer Marmillion
any basis for relief.
In arguing this claim, Marmillion cites to law regarding merger and
acknowledges that crimes will only merge for sentencing purposes when the
crimes arise from a single criminal act and all the statutory elements of one
offense are included in the statutory elements of the other offense. See
Appellant’s Brief at 23 (citing [42] Pa. C.S.A. § 9765; Commonwealth v.
Jenkins, 96 A.3d 1055, 1056 (Pa. Super. 2014)). She cites case law standing
for the proposition that delivery of a controlled substance includes possession
of that controlled substance and then states:
Here, [Marmillion] must have possessed the illegal drug/controlled
substance [i.e., fentanyl] in order to deliver it. Possession of a
drug/controlled substance [i.e., fentanyl] is, in fact, a necessary
prerequisite to Delivery of a Controlled Substance.
Appellant’s Brief at 23-24.
This sparse argument does nothing to address the trial court’s
conclusion that the two offenses did not merge in this particular case because
they did not arise from a single criminal act. To that end, the trial court
explained:
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[E]ven if the elements of possession are found within the elements
of delivery, two convictions only merge for purposes of sentencing
if they arise from a single criminal act. In this case, there was
sufficient evidence to support the conclusion that [Marmillion] was
guilty of delivery of fentanyl when she injected that drug up Ms.
Richardson’s nose, and guilty of possession of different amounts
of fentanyl and other drugs based on the numerous drugs that
were contained within the hotel room, at least some of which she
was directly possessing and using or which were constructively
possessed.
Trial Court Opinion, 1/3/2023, at 15 (citations omitted).
We add that Officer Shiposh testified police recovered multiple drugs on
Marmillion’s person, and that the information charged Marmillion with delivery
of fentanyl but possession of other controlled substances in addition to the
fentanyl. We find no error in the court’s conclusion, and Marmillion makes no
attempt to argue otherwise. No relief is due.
Finally, we must address Marmillion’s request for this Court to publish
this decision. We see no reason not to grant that request.
Judgment of sentence affirmed. Request for Publication granted.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/13/2023
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