J-S69022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    COREY D. PALSON                            :
                                               :
                        Appellant              :   No. 75 MDA 2018

           Appeal from the Judgment of Sentence December 20, 2016
    In the Court of Common Pleas of Cumberland County Criminal Division at
                        No(s): CP-21-CR-0003256-2015


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY LAZARUS, J.:                          FILED NOVEMBER 30, 2018

        Corey D. Palson appeals from his judgment of sentence, entered in the

Court of Common Pleas of Cumberland County, following his conviction of

three counts of drug delivery resulting in death;1 three counts of possession

with intent to deliver heroin;2 and one count of conspiracy to possess heroin

with intent to deliver.3      After review, we affirm Palson’s conviction, but we

vacate his judgment of sentence and remand for resentencing.

        Palson was charged in connection with three separate deaths. Lorraine

Avery died from a drug overdose that was reported to the Middlesex Township

Police on May 2, 2015. Michael Sullivan died from a drug overdose that was

____________________________________________


1   18 Pa.C.S. § 2506.

2   35 P.S. § 780-113(a)(30).

3   18 Pa.C.S. § 903.
J-S69022-18



reported to the Hampden Township Police on May 14, 2015. At the scene of

both incidents, police found empty glassine bags stamped “M*O*B.” At trial,

Avery’s sister testified that the evening before Avery was found dead, “Avery

had obtained a ride from a friend . . . whom she asked to drive her to meet a

person who was going to lend her money, and that first they would be

dropping this person off somewhere along the way as part of the shared ride.”

Trial Court Opinion, 4/17/18, at 5.   The person Avery met with was Jesse

Blais, Palson’s codefendant charged with the deaths of Avery and Sullivan. At

trial, Blais testified that he bought the “M*O*B product” from Palson and that

Palson was his only source of the “M*O*B product.” On June 6, 2016, Nicholas

Tubbs died in a car crash in Silver Spring Township.     At the scene of the

accident, the police found a pedicure kit in the vehicle. Inside the pedicure

kit was a blue glassine bag and a “bundle” of what the officer believed to be

heroin, stamped “M*O*B.”

      Following trial, a jury convicted Palson of the abovementioned offenses.

The court sentenced him to an aggregate term of 378 to 756 months’

imprisonment. Both Palson and the trial court have complied with Pa.R.A.P.

1925. Palson raises two issues on appeal: (1) whether 18 Pa.C.S.A. § 2506

is unconstitutionally vague as applied to Palson; and (2) whether the trial

court abused its discretion by imposing an aggravated sentence for each of

the three convictions for drug delivery resulting in death and then an

additional consecutive aggravated sentence for criminal conspiracy.




                                      -2-
J-S69022-18



      Palson first claims that the drug delivery resulting in death statute, 18

Pa.C.S.A. § 2506, is unconstitutionally vague as applied to him. We disagree.

      Section 2506 provides, in pertinent part:

      (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.A. § 2506(a).

      To withstand constitutional scrutiny based on a challenge of vagueness,

a criminal statute must “define the criminal offense with sufficient definiteness

that ordinary people can understand what conduct is prohibited and in a

manner that does not encourage arbitrary and discriminatory enforcement.”

Kolender v. Lawson, 461 U.S. 352 (1983).               In addition, “vagueness

challenges which do not involve First Amendment freedoms must be examined

in the light of the facts of the case at hand.” Commonwealth v. Heinbaugh,

354 A.2d 244, 245 (Pa. 1976) (quotation omitted). When reviewing whether

a statute is unconstitutionally vague, we presume the statute is constitutional

and will only be invalidated if it “clearly, palpably and plainly violates the

Constitution.” Commonwealth v. Davidson, 938 A.2d 198, 207 (Pa. 2007).

      This case is controlled by our recent decision in Commonwealth v.

Storey, 167 A.3d 750 (Pa. Super. 2017).         There, Storey sold heroin to a

buyer, who then sold it to Donald J. O’Reilly, a recovering heroin addict.

                                      -3-
J-S69022-18



Thereafter, O’Reilly died of a heroin overdose. Storey was convicted of drug

delivery resulting in death. On appeal, he challenged the constitutionality of

the statute as applied to him.     Storey argued that because he did not

specifically intend to sell heroin to O’Reilly and was unaware that O’Reilly

would ultimately ingest the drugs, he could not be liable under the statute.

Storey further argued that because he was unaware of O’Reilly’s existence at

the time he sold the drugs, “he could not have had the reckless state of mind

that O’Reilly might die as a result of [Storey’s] drug sales.” 167 A.3d at 757.

In rejecting this argument, we stated:

      Under the holding of [Commonwealth v.] Kakhankham, [132
      A.3d 986 (Pa. Super. 2015)], and the statute’s own words, this
      difference is immaterial. The statute requires that “another person
      dies as a result of using the substance [sold].” 18 Pa.C.S.A. §
      2506(a) (emphasis added). It does not require the death of the
      person to whom the defendant originally sold the illegal
      substance. Therefore, section 2506 clearly applies to Storey’s
      conduct; but for Storey’s illegal sale of drugs, O’Reilly would not
      have died. . . . For the foregoing reasons, section 2506 is not
      unconstitutionally vague as applied to Storey.

Storey, 167 A.3d at 757.

      Similarly, here, Palson contends the statute is unconstitutional as

applied to him because he did not engage in a transaction with the victims

and was not aware that the sale of drugs to Blais would result in the deaths

of the ultimate victims.   Pursuant to Storey, this argument fails.         It is

immaterial whether Palson knew the victims existed.      The first element of

section 2506(a) requires only that the defendant intentionally sell drugs.

Here, Palson intentionally sold drugs to Blais. The second element requires

                                     -4-
J-S69022-18



that another person die as a result of using the substance; it does not require

the person be the person to whom defendant originally sold the substance.

Further, pursuant to Storey, the recklessness mens rea is satisfied where a

person died because of the sale of heroin.     See Storey, 167 A.3d at 757

(“Since the dangers of heroin are so great and well-known . . . the sale of

heroin, itself, is sufficient to satisfy the recklessness requirement when a

death occurs as a result of the sale.”)(citing Kakhankham, 132 A.3d at 995-

96). Therefore, we conclude that section 2506 it is not unconstitutionally

vague as applied to Palson.

      Palson next claims that he trial court abused its discretion “when it

sentenced [him] to an aggravated-range sentence resulting in a sentence that

was unreasonable.”     Appellant’s Brief, at 10.   This claim implicates the

discretionary aspects of Palson’s sentence. To determine if this Court may

review such a claim, we employ a four-part test:

      (1) whether Appellant has timely filed a notice of appeal; (2)
      whether the issue was properly preserved at sentencing or in a
      motion to reconsider and modify sentence; (3) whether
      Appellant’s brief has a fatal detect; 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. Evans, 901 A.3d 528, 533 (Pa. Super. 2006) (internal

citation omitted).




                                     -5-
J-S69022-18


       The trial court sentenced Palson on December 20, 2016 and Palson filed

a timely post-sentence motion and notice of appeal.4 Palson, therefore, has

preserved his sentencing issue.           Additionally, Palson has included in his

appellate brief a Pa.R.A.P. 2119(f) statement. Evans, supra.

       We must now assess whether Palson presented a substantial question.

“A defendant presents a substantial question when he sets forth a plausible

argument that the sentence violates a provision of the Sentencing Code or is

contrary    to    the   fundamental       norms   of   the   sentencing   process.”

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013).                     A

defendant raises a substantial question if he alleges that a court has failed to

adequately state on the record its reasoning for imposing an aggravated-range

sentence. Commonwealth v. Wellor, 731 A.2d 152, 155 (Pa. Super. 1999).

       Here, the sentencing court imposed consecutive sentences for each of

the three counts of drug delivery resulting in death and a consecutive sentence


____________________________________________


4 On December 21, 2016, Palson filed a petition in arrest of judgment,
modification of sentence and request for new trial. The court denied this
petition on January 9, 2017 and appointed post-trial counsel on February 14,
2017. On February 24, 2017, counsel filed a request for reconsideration
requesting 90 days to prepare for argument. The trial court granted Palson
45 days to file supplemental post-sentence motions. On April 3, 2017, counsel
sought an additional 45 days to submit post-sentence motions, which the
court granted. On May 31, 2107, counsel filed an amended post-sentence
motion and, therefore, counsel sought leave to vacate the appointment due
to a conflict of interest. The court appointed new counsel and allowed new
counsel an additional ninety days to file an amended post-sentence motion.
Counsel filed a post-sentence motion on September 14, 2017, and the trial
court denied it on December 14, 2017. Palson filed his timely notice of appeal
on January 11, 2018.

                                           -6-
J-S69022-18


for the criminal conspiracy count. Palson asserts that the sentencing court

abused its discretion by failing to state its reasons for sentencing in the

aggravated range.     At sentencing, the court stated, “[N]o lesser sentence

would address the crimes committed upon each victim on the three counts.”

N.T. Sentencing, 12/20/16 at 25. Palson argues this was insufficient

justification for an aggravated-range sentence and, thus, an abuse of

discretion.

      We agree that a failure to state a reason justifying an aggravated-range

sentence raises a substantial question. Wellor, supra. However, because it

is unclear in this matter whether Palson’s sentence actually falls in the

aggravated range, we are compelled to vacate and remand for resentencing.

      The presentence investigation reports states that Palson’s prior record

score was RFEL (repeat felon). However, in the sentencing transcript, the

court agreed with Palson’s counsel that, in light of Palson’s prior convictions

of felony robbery and conspiracy to commit robbery, his prior record score is

a five (5), and not RFEL. In its opinion, however, the court states, “[t]he

presentence investigation correctly determined that [Palson] is a repeat felon

[RFEL][.]”    See Trial Court Opinion, 4/17/18, at 18-19.   Additionally, at the

sentencing hearing, the Assistant District Attorney requested that the court




                                     -7-
J-S69022-18


sentence Palson to 126 months’ incarceration5 for each count of drug delivery

resulting in death, which is within the standard range of the guidelines if a

prior record score is RFEL; it is within the aggravated range if a prior record

score is 5.6 In its opinion, the court states, “all the sentences are within the

standard guidelines.” Id. at 19.         From our review of the record, we cannot

discern whether the court sentenced Palson in the standard or aggravated

range.

      When a presentence investigation report exists and the sentence is

within the standard range, we presume the court is fully informed as to the

report and it need not “employ checklists or any extended or systematic

definitions of their punishment procedure.” Commonwealth v. Devers, 546

A.2d 12, 18 (Pa. 1988). Cf. Commonwealth v. Scullin, 607 A.2d 753 (Pa.

Super. 1992) (if court deviates from standard guidelines it must provide

statement explaining deviation).          Here, while a presentence investigation

report existed, the court questioned its accuracy and ultimately assigned

Palson a different prior record score at the time of sentencing.      If the court

imposed an aggravated-range sentence, it was required to state its reasons


____________________________________________


5  The assistant district attorney requested a sentence of 126 months’
incarceration to the maximum for each count consecutively.

6At the same time the assistant district attorney stated that this sentence was
at the top of the aggravated range, the court stated that this was at the top
of the standard range. However, moments before, the court stated that the
prior record score was a five (5), which would render the 126 months’
sentence an aggravated sentence. N.T Sentencing, 1/3/17, at 21.

                                           -8-
J-S69022-18


for such. See Commonwealth v. Rodda, 723 A.2d 212, 217-18 (Pa. Super.

1999) (“If the sentence is within the aggravated range, the sentencing court

is still required to state its reasons for choosing an aggravated sentence on

both the record and on the Pennsylvania Commission on Sentencing Guideline

Sentence Form.”). In its opinion, the trial court noted that the pre-sentence

investigation was correct and the prior record score was RFEL; if that is true,

the sentence was in the standard range. However, at sentencing, the court

found that the presentence investigation was incorrect and accepted, on the

record, the prior record score of 5. Using the prior record score of five (5),

126 months’ is an aggravated-range sentence; the court, therefore, would

have been required to explain its reasons for imposing an aggravated

sentence, and it failed to do so. Rodda, supra.

      This Court has previously held that if the trial court “erroneously

calculates the starting point under the guidelines,” this Court must vacate and

remand for reconsideration. Scullin, 607 A.2d at 754. Section 9781 guides

our decision:


      (c) Determination on appeal.--The appellate court shall vacate
      the sentence and remand the case to the sentencing court with
      instructions if it finds:

      (1) the sentencing court purported to sentence within the
      sentencing guidelines but applied the guidelines erroneously;
      (2) the sentencing court sentenced within the sentencing
      guidelines but the case involves circumstances where the
      application of the guidelines would be clearly unreasonable; or
      (3) the sentencing court sentenced outside the sentencing
      guidelines and the sentence is unreasonable.

                                     -9-
J-S69022-18



      In all other cases the appellate court shall affirm the sentence
      imposed by the sentencing court.

42 Pa. C.S.A. § 9781.

      Because it is unclear whether the trial court used the correct prior record

score, we must vacate and remand for resentencing.

      Conviction affirmed; judgment of sentence vacated and remanded for

resentencing. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2018




                                     - 10 -
