Com. v. Marmillion, M.

2023 Pa. Super. 267, 306 A.3d 936

• Court: Superior Court of Pennsylvania
• Decided: December 13, 2023
• Docket: 99 MDA 2023
• Status: Published

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. J-A20002-23

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

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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