J-A33034-16
                             2017 Pa. Super. 30


COMMONWEALTH OF PENNSYLVANIA,          :    IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                 Appellee              :
                                       :
                   v.                  :
                                       :
JONATHAN MICHAEL PROCTOR,              :
                                       :
                 Appellant             :    No. 168 WDA 2016

        Appeal from the Judgment of Sentence December 21, 2015,
             in the Court of Common Pleas of Potter County,
           Criminal Division at No(s): CP-53-CR-0000249-2014

BEFORE: LAZARUS, SOLANO, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:                  FILED FEBRUARY 09, 2017

      Jonathan Michael Proctor (Appellant) appeals from the judgment of

sentence imposed following his convictions for drug delivery resulting in

death; flight to avoid apprehension, trial, or punishment; manufacture,

delivery, or possession of a controlled substance with intent to manufacture

or deliver; possession of a controlled substance; criminal conspiracy; and

use or possession of drug paraphernalia. Upon review, we affirm.

      On September 30, 2015, following a jury trial, Appellant was convicted

of the aforementioned crimes stemming from an incident wherein Daniel

Lowe (Lowe) died from an overdose after ingesting heroin that was provided

to him by Appellant. Appellant was sentenced on December 21, 2015, to an

aggregate term of 12 years and 10 months to 26 years and 10 months of

incarceration.



*Retired Senior Judge assigned to the Superior Court.
J-A33034-16


         Appellant filed post-sentence motions, which were denied. On January

22, 2016, Appellant filed a notice of appeal to this Court. On January 26,

2016, the trial court directed Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).           After requesting

and receiving an extension of time, Appellant filed his concise statement.

The trial court issued its opinion pursuant to Pa.R.A.P. 1925(a) on April 28,

2016.

         Appellant raises the following issues for our consideration:

    I.      Did the Commonwealth present insufficient evidence to
            support [Appellant’s] conviction for drug delivery resulting in
            death?

   II.      Was [Appellant’s] conviction for drug delivery resulting in
            death against the weight of the evidence?

  III.      Is 18 Pa.C.S. § 2506 unconstitutionally vague and does
            § 2506 violate due process pursuant to the United States and
            Pennsylvania Constitutions because the statute does not
            provide sufficient notice as to what conduct it criminalizes and
            the statute encourages arbitrary enforcement?

   IV.      Did the trial court err when the court instructed the jury the
            final element of drug delivery resulting in death is “that a
            person has died as a result of using the substance even if
            other substances were found in his system” and that … Lowe
            “died as a result of using the substance even though other
            substances were found in his system[]”?

   V.       Did the trial court err when the court denied defense
            counsel’s request for a mistrial after the Commonwealth
            referred to [Appellant’s] lack of remorse during [its] closing
            argument, thereby violating his right to remain silent?

   VI.      Did the sentencing court abuse its discretion when the court
            imposed an aggravated sentence for Appellant[’s] conviction


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          for drug delivery resulting in death and then imposed two
          additional consecutive sentences?

  VII.    Does Appellant’s sentence and § 2506 itself violate the Eighth
          Amendment’s      restriction   against  cruel  and     unusual
          punishment because Appellant was a drug addict and never
          intended to cause any loss of life and the statute permits
          severely    disproportionate    punishments   of    individuals
          tangentially involved in a drug overdose?

Appellant’s Brief at 5 (unnecessary capitalization omitted).

         We   address   together   Appellant’s   first   two   issues,   wherein   he

challenges the sufficiency and weight of the evidence to support his

conviction for the offense of drug delivery resulting in death. In support of

his sufficiency challenge, Appellant argues that the Commonwealth failed to

prove that (1) he acted with reckless disregard to the likelihood of Lowe’s

death from injecting himself with heroin, and (2) Lowe’s death was

reasonably foreseeable to Appellant and thus Appellant’s conduct was the

legal cause of his death. Appellant’s Brief at 20-32. Appellant argues that

the jury’s guilty verdict for drug delivery resulting in death is against the

weight of the evidence because (1) he lacked any culpable mens rea

concerning the likelihood of Lowe’s death and it was the “product of a legally

invalid prosecution theory” that no mens rea in that regard was required,

and (2) the “overwhelming medical evidence” suggests that Appellant did

not proximately cause Lowe’s death. Id. at 32-34.




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      Notwithstanding Appellant’s claims on appeal, our review of the record

reveals that the only issues Appellant included in his Rule 1925(b) statement

relating to sufficiency or weight of the evidence state as follows:

      3. Was [Appellant’s] conviction for drug delivery resulting in
         death against the weight of the evidence because the cause
         of [Lowe’s] death was combined drug toxicity?

      4. Did the Commonwealth present insufficient evidence to
         support [Appellant’s] conviction for drug delivery resulting in
         death because the cause of [Lowe’s] death was combined
         drug toxicity?

Appellant’s    Rule   1925(b)   Statement,   4/25/2016,   at   2   (unnecessary

capitalization omitted).

      As written, Appellant’s issues fail to make any mention of a challenge

with respect to the mens rea required or whether Lowe’s death was

reasonably foreseeable to Appellant.1     Rather, Appellant’s issues challenge

the sufficiency and weight of the evidence only as it relates to the factual

cause of Lowe’s death (which, as alleged by Appellant, was combined drug

toxicity).    Indeed, in its Rule 1925(a) opinion, the trial court addressed

Appellant’s issues as challenging whether the verdict was against the weight

of the evidence and whether the Commonwealth failed to present sufficient


1
  To be clear, this Court has held that, with respect to the crime of drug
delivery resulting in death, the statute requires “but-for” causation in
addition to requiring that “the results of the defendant’s actions cannot be so
extraordinarily remote or attenuated that it would be unfair to hold the
defendant criminally responsible.” Commonwealth v. Kakhankham, 132
A.3d 986, 993 (Pa. Super. 2015) (internal quotation marks and citation
omitted). Moreover, the “results from” element of Section 2506 has a mens
rea requirement; the “death must be at least ‘reckless.’” Id. at 995.
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evidence “because [Lowe’s] death was caused by combined drug toxicity as

opposed   to   being   caused   solely   by   the   heroine   [sic]   provided   by

[Appellant].” Trial Court Opinion (TCO), 4/28/2016, at 1-2.

      A court-ordered concise statement “shall concisely identify each ruling

or error that the appellant intends to challenge with sufficient detail to

identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii).      “The

Pennsylvania Supreme Court has explained that Rule 1925 is a crucial

component of the appellate process, which is intended to aid trial judges in

identifying and focusing upon those issues which the parties plan to raise on

appeal.” Commonwealth v. Freeman, 128 A.3d 1231, 1248 (Pa. Super.

2015) (internal quotation marks and citation omitted). Moreover, it is well-

settled that “[i]issues that are not set forth in an appellant’s statement of

matters complained of on appeal are deemed waived.” Commonwealth v.

Perez, 103 A.3d 344, 347 n.1 (Pa. Super. 2014) (citing Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”)).

      Based on the foregoing, we conclude that Appellant has waived his

sufficiency and weight challenges as presented on appeal,2 as he did not




2
  In his sufficiency argument on appeal, Appellant also presents a separate
claim that the trial court erred in relieving the prosecution of its burden to
prove an element of the offense with respect to the requisite mens rea,
which cannot be said to have been harmless error. Appellant’s Brief at 25-
27. Appellant likewise failed to raise any such issue in his Rule 1925(b)
                                     -5-
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specify them in his Rule 1925(b) statement and the trial court did not

address them in its opinion. Commonwealth v. Reeves, 907 A.2d 1, 2-3

(Pa. Super. 2006) (explaining that, from a reading of Reeves’ Rule 1925(b)

statement, “the trial court reasonably thought that Reeves was only

complaining about the quantum of evidence, not the specific issue that

SEPTA is not a ‘person’ under the terms of the statute” and concluding that

“[b]ecause the specific issue as to whether SEPTA was a ‘person’ was not

presented to the trial court to give [the trial court] a chance to address it in

[its] opinion, the issue has been waived”); see also Commonwealth v.

Lincoln, 72 A.3d 606, 610 (Pa. Super. 2013) (quoting Commonwealth v.

Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (stating “for any claim that was

required to be preserved, this Court cannot review a legal theory in support

of that claim unless that particular legal theory was presented to the trial

court”)). Thus, he is not entitled to relief on those claims.

      In his third issue, Appellant argues that, if we reject his sufficiency and

weight challenges, then the drug delivery resulting in death statute is void

for vagueness. Analysis of the constitutionality of a statute is a question of

law and, thus, our standard of review is de novo.          Commonwealth v.

Kakhankham, 132 A.3d 986, 990 (Pa. Super. 2015). “Our scope of review,




statement. Thus, any claim in this regard is waived as well.        Perez, 103
A.3d at 347 n.1; Pa.R.A.P. 1925(b)(4)(vii).
                                      -6-
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to the extent necessary to resolve the legal question[] before us, is

plenary…” Id.

       The offense of drug delivery resulting in death is defined as follows.

       (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. § 2506(a) (footnote omitted).

       In Kakhankham, this Court rejected a vagueness challenge to section

2506, explaining, in part, as follows:

       The crime … consists of two principal elements: (i) [i]ntentionally
       administering, dispensing, delivering, giving, prescribing, selling
       or distributing any controlled substance or counterfeit controlled
       substance and (ii) death caused by (“resulting from”) the use of
       that drug. It is sufficiently definite that ordinary people can
       understand what conduct is prohibited, and is not so vague that
       men of common intelligence must necessarily guess at its
       meaning and differ as to its application.

Kakhankham, 132 A.3d at 991-92 (footnote, citations, and some internal

quotation marks omitted).         The Court continued by concluding that

Kakhankham’s conduct in providing drugs to a person who died as a result of

ingesting them was “precisely what the legislature intended to proscribe

when    it   enacted   Section   2506.     Accordingly,   Section   2506   is   not

unconstitutionally vague.” Id. at 992.




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      In advancing his argument, Appellant contends that Lowe died not

solely because of the heroin, but as a result of having already taken other

drugs unbeknownst to Appellant.      Appellant’s Brief at 36-37.    Appellant

argues that, in light of these facts, the statute as applied fails to provide

adequate notice “that engaging in criminal conduct, but conduct that does

not generally cause death, can, in some rare and unlucky situations, be the

source of criminal liability for the unforeseen and unforeseeable death of a

third party.” Id. (citation, internal quotation marks, and emphasis omitted).

      The Kakhankham Court observed that

      [An appellant] who engages in some conduct that is clearly
      proscribed cannot complain of the vagueness of the law as
      applied to the conduct of others. A court should therefore
      examine the complainant’s conduct before analyzing other
      hypothetical applications of the law.       In cases that do not
      implicate First Amendment freedoms, facial vagueness
      challenges may be rejected where an appellant’s conduct is
      clearly prohibited by the statute in question.

Id. at 992 (internal quotation marks and citations omitted)).

      Appellant’s argument does not entitle him to relief under the facts of

this case.   Specifically, the Commonwealth offered expert testimony that,

notwithstanding the other drugs in Lowe’s system, the amount of heroin

ingested by Lowe was a lethal dose.         N.T., 9/29-30/2015, at 477-89

(Michael Coyer, forensic toxicologist, discussing one study wherein it was




                                    -8-
J-A33034-16


found that a morphine3 level “over 100 nanograms is lethal” and another

study finding “between 41.3 and 145.7 nanograms” is a fatal range;

testifying that the level of 160 nanograms of morphine herein is a lethal

dose by itself; and opining that the “[c]ause of [Lowe’s] death is [h]eroin[]

overdose”); see also id. at 348, 350 (Kevin Dusenbury, Sr., coroner of

Potter County, explaining that “[t]he level of the [h]eroin[] metabolite was a

lethal level” and, when asked whether “[h]eroin[] in and of itself when you

inject it is not lethal, correct?,” answering, “It was in this case I believe.”).

Indeed, even Appellant’s expert testified that the dose of heroin herein was

“potentially fatal.”   Id. at 419, 428-49, 435, 437, 439-40 (Dr. Bill Manion

explaining that the level of morphine in this case “could cause, can cause

death” and “is potentially fatal”); see also id. at 452, 460 (Commonwealth

witness Dr. Eric Vey, forensic pathologist, testifying that the level of

morphine in this case is “a potentially lethal level”). Clearly, it is foreseeable

that, if you give a person a lethal dose—or even a potentially lethal dose—of

heroin, that person could die. Thus, as applied to Appellant, section 2506 is

not vague.4



3
  “Heroin[] technically is called diacetyl morphine.” N.T., 9/29-30/2015, at
470; see also id. at 423 (explaining that morphine is the active ingredient
in heroin).
4
  Appellant also contends that the statute encourages arbitrary enforcement
as exemplified by this case, as the person who sold the heroin to Appellant
was not prosecuted with causing Lowe’s death. Appellant’s Brief at 37. We
are unpersuaded that Appellant has met his “heavy burden” to show that the
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        In his fourth issue, Appellant challenges a portion of the jury

instructions provided by the trial court.

        [W]hen evaluating the propriety of jury instructions, this Court
        will look to the instructions as a whole, and not simply isolated
        portions, to determine if the instructions were improper. We
        further note that, it is an unquestionable maxim of law in this
        Commonwealth that a trial court has broad discretion in phrasing
        its instructions, and may choose its own wording so long as the
        law is clearly, adequately, and accurately presented to the jury
        for its consideration. Only where there is an abuse of discretion
        or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)

(quoting Commonwealth v. Trippett, 932 A.2d 188, 200 (Pa. Super.

2007)).

        Moreover, “it is not improper for an instructing court to refer to the

facts    and/or   the   evidence   of    the     case   when   giving   a   charge.”

Commonwealth v. Meadows, 787 A.2d 312, 318 (Pa. 2001).

        On one hand, the trial court must frame the legal issues for the
        jury and instruct the jury on the applicable law, while on the
        other hand, it must not usurp the power of the jury to be sole
        judge of the evidence. Plainly, these principles may conflict with
        each other, for in order to instruct the jury on the law the court
        may have to refer to the evidence. The proper balance to be
        struck will depend heavily on the facts and circumstances of
        each case. However, some general guidelines have been
        formulated. Thus the court may not comment on, or give its
        opinion of, the guilt or innocence of the accused. Nor may it
        state an opinion as to the credibility of witnesses, nor remove


statute encourages arbitrary enforcement simply based on Appellant’s
representation that the person who supplied the heroin to Appellant was not
charged in this case. See Kakhankham, 132 A.3d at 991 (“[T]he party
challenging a statute’s constitutionality bears a heavy burden of persuasion.”
(citation omitted)).
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      from the jury its responsibility to decide the degree of
      culpability. However, the court may summarize the evidence and
      note possible inferences to be drawn from it. In doing so, the
      court may “....express [its] own opinion on the evidence,
      including the weight and effect to be accorded it and its points of
      strength and weakness, providing that the statements have a
      reasonable basis and it is clearly left to the jury to decide the
      facts, regardless of any opinion expressed by the judge.”

Id. (citations omitted) (quoting Commonwealth v. Leonhard, 485 A.2d
444, 444 (Pa. Super. 1984)).

      Appellant takes issue with the following specific instruction relating to

the causation element of the crime of drug delivery resulting in death:

      And fourthly, that a person has died as a result of using the
      substance even if other substances were found in his system. I
      will say that again because that seemed to be [a] point of
      contention. He died as a result of using the substance even
      though other substances were found in his system.

N.T., 9/29-30/2015, at 641.     Appellant argues that the above instruction

improperly suggested that the jury should reach the conclusion that, despite

Appellant’s defense that the cause of death was combined drug toxicity and

not just Lowe’s act of injecting himself with heroin, Lowe died as a result of

using the heroin even though other substances were found in his system.

Appellant’s Brief at 39. Appellant contends that this usurped the role of the

jury and improperly expressed an opinion as to the existence of facts to

support an element of the offense, warranting a new trial.         Id. at 39.

Appellant further contends that the instruction “completely ignore[d] the




                                    - 11 -
J-A33034-16


proximate causation requirement imposed by the law, and [wa]s a direct

command to the jury to reject [Appellant’s] defense.” Id. at 39-40.

       Preliminarily,        we       observe     that    counsel    did    not     lodge    a

contemporaneous objection to the trial court’s instruction.                       N.T., 9/29-

30/2015, at 641. Moreover, the trial court asked counsel if there were “any

questions regarding the charges” after instructing the jury on them, and

later asked if counsel had “anything further before release [sic] the jury.”

Id. at 650, 656. Appellant’s trial counsel did not respond in either instance.

This Court has held that “[a] specific and timely objection must be made to

preserve a challenge to a particular jury instruction. Failure to do so results

in waiver.”    Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super.

2010)     (internal       citations    omitted)       (“Generally,   a   defendant    waives

subsequent challenges to the propriety of the jury charge on appeal if he

responds in the negative when the court asks whether additions or

corrections    to     a    jury   charge        are   necessary”);   Commonwealth            v.

McCloskey, 835 A.2d 801, 812 (Pa. Super. 2003) (finding claims concerning

jury   instructions       waived because          McCloskey “did not object to              the

instructions at the time they were made and, further, did not mention the

alleged errors at the close of the jury charge when the court specifically

asked both parties if they were satisfied”).                   Thus, Appellant’s claim is

waived.




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      Assuming arguendo that Appellant had not waived his claim, we would

reject it on the merits. The trial court explained that the instruction

      was necessary to avoid jury confusion in this case as the defense
      had routinely drawn attention to the fact that other drugs were
      present in [Lowe’s] body when he died and that the cause of
      death was combined drug toxicity. The … instruction given at
      trial clarified that despite any defense assertions otherwise, the
      test for the final element of the offense is one of “but-for”
      causation.

TCO, 4/28/2016, at 3.

      As explained by the trial court, the Kakhankham Court held that the

statute “requires a ‘but-for’ test of causation.” Kakhankham, 132 A.3d at

993. In so doing, it noted that a defendant’s “conduct need not be the only

cause of the victim’s death in order to establish a causal connection” and

that “[c]riminal responsibility may be properly assessed against an individual

whose conduct was a direct and substantial factor in producing the death

even though other factors combined with that conduct to achieve the

result.”5 Id. at 993 n.8 (quoting Commonwealth v. Nunn, 947 A.2d 756,

760 (Pa. Super. 2008)). In light of the foregoing, we discern no error in the

portion of the jury instruction challenged above. See Meadows, 787 A.2d

at 318-19 (concluding that “the trial court’s instruction properly informed the




5
  To the extent Appellant argues that the instruction ignored the proximate
cause requirement of causation, we note that Appellant did not include a
challenge to the instructions with respect to proximate causation in his Rule
1925(b) statement. Thus, this claim is waived on this basis as well. Perez,
103 A.3d at 347 n.1; Pa.R.A.P. 1925(b)(4)(vii); Lincoln, 72 A.3d at 610.
                                     - 13 -
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jury of the law and, while noting certain facts of record, left the ultimate

determination of the facts to the jury”).

      Appellant next argues that “the [t]rial [c]ourt erred when it refused to

grant a mistrial after the [Commonwealth] argued that the jury should

consider the fact that [Appellant] expressed no remorse during the trial as

evidence of his guilt.” Appellant’s Brief at 41. Appellant contends that the

“prosecutor improperly suggested that the jury should use [Appellant’s]

decision [not to] testify as substantive evidence of guilt by imploring them,

in his final substantive comment in closing argument, to consider whether

they had ‘seen one ounce of remorse’ from [Appellant] through the trial.”

Id. at 41-42; see N.T., 9/29-30/2015, at 624 (“Have any of you during the

facts of this case or observing [Appellant] these last 3 days have any of you

seen one ounce of remorse? Have any of you seen one ounce of remorse?”).

Appellant contends that the comment could only be relevant for the

improper purpose of implying that Appellant lacked remorse because he had

not testified in his own defense, and the trial court’s handling of the

comment by failing to give an immediate limiting instruction and instead

simply giving general instructions regarding Appellant’s right to remain silent

did not remedy the harm that was caused. Id. at 42-43.

      Our standard of review for a claim of prosecutorial misconduct is
      limited to whether the trial court abused its discretion. In
      considering this claim, our attention is focused on whether the
      defendant was deprived of a fair trial, not a perfect one.



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            [A] prosecutor’s arguments to the jury are
            [generally] not a basis for the granting of a new trial
            unless the unavoidable effect of such comments
            would be to prejudice the jury, forming in their
            minds fixed bias and hostility towards the accused
            which would prevent them from properly weighing
            the evidence and rendering a true verdict.

            A prosecutor must have reasonable latitude in fairly
            presenting a case to the jury and must be free to
            present [his] arguments with logical force and vigor.
            The prosecutor is also permitted to respond to
            defense arguments. Finally, in order to evaluate
            whether the comments were improper, we do not
            look at the comments in a vacuum; rather we must
            look at them in the context in which they were
            made.

Commonwealth v. Solomon, 25 A.3d 380, 383 (Pa. Super. 2011) (internal

quotation marks and citations omitted).

     Appellant’s claim does not entitle him to relief. First, we disagree that

the Commonwealth’s brief comments in this regard implied that Appellant

lacked   remorse   because   he   had   not   testified   in   his   own   defense.

Commonwealth v. Fletcher, 861 A.2d 898, 918 (Pa. 2004) (concluding

that the prosecutor did not improperly comment on Fletcher’s lack of

remorse, explaining that the comments “did not inappropriately implicate

[Fletcher’s] constitutional right to remain silent,” as “the prosecutor in no

way inferred or implied that [Fletcher] had a duty to testify. Instead, the

prosecutor explicitly limited his remorse comments to [Fletcher’s] non-verbal

demeanor and behavior during trial and on the morning of the murders”);

Commonwealth v. Robinson, 864 A.2d 460, 519 (Pa. 2004) (explaining

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that the prosecutor’s “brief statement … did not contain a direct reference to

the fact that [Robinson] did not testify during the trial”). Second, this Court

has held that references to a defendant’s lack of remorse is not improper.

Commonwealth v. Tillia, 518 A.2d 1246, 1254 (Pa. Super. 1986)

(rejecting Tillia’s contention that the trial court permitted the prosecutor to

make improper comments during closing argument regarding Tillia’s lack of

remorse, explaining that “[w]hether or not [Tillia] expressed remorse is

irrelevant to the determination of guilt”).

      Finally, prior to closing statements, the trial court instructed the jury

that Appellant “did not have to call any witnesses either through his own

testimony or other witnesses and that is his constitutional right. You should

make no inference whatsoever concerning that decision.”            N.T., 9/29-

30/2015, at 585; see also id. at 494 (“Again, [Appellant] does not have to

offer any evidence whatsoever.        If they decide to offer nothing that’s

appropriate, you cannot use against them that fact. So we’ll see when [the]

appropriate time comes whether or not they want to present any evidence.

Of course [Appellant] does not have to testify, that’s his constitutional right

and again you should not make any inference if he decides not to testify.”).

Following closing arguments, the trial court instructed the jury that

      [a] person accused of a crime is not required to present any
      evidence or to prove anything in his own defense. He doesn’t
      have to call any witnesses. Any reference that he didn’t call a
      witness is immaterial to your consideration. You are not to give
      any thought as to or any inference as to whether he didn’t call

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      any witnesses, that is [not] his responsibility. His responsibility
      is to not present anything in his own defense if he so wishes.

Id. at 633. The trial court also instructed that closing statements are not

evidence, id. at 585, and that the jurors “should not base [their] decision on

which attorney made the better speech or which attorney [they] like better

that should not play any part in [their] decision.” Id. at 632. As “[j]uries

are presumed to follow a court’s instructions,” Commonwealth v. Mollett,

5 A.3d 291, 313 (Pa. Super. 2010), Appellant’s claim fails. See also

Robinson, 864 A.2d at 519-20 (explaining that the trial court’s specific

instruction that “[i]t is entirely up to the defendant whether to testify and

you must not draw any adverse inference from his silence … more than

adequately cured any ill effect of this fleeting comment that … did not even

contain a direct reference to [Robinson’s] exercise of his Fifth Amendment

right”).

      In his sixth claim of error, Appellant contends that the sentencing

court abused its discretion by imposing an aggravated sentence for his

conviction for drug delivery resulting in death in addition to consecutive

sentences for other convictions.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court’s jurisdiction by satisfying a four-part test:

            We 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

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           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.[ ] § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some

citations omitted) (quoting Commonwealth v. Evans, 901 A.2d 528, 533

(Pa. Super. 2006)).

     Instantly, Appellant timely filed a notice of appeal, challenged the

discretionary aspects of his sentence in his post-sentence motion, and

included a statement pursuant to Rule 2119(f) in his brief. Thus, we now

consider whether he has raised a substantial question worthy of appellate

review.

     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). “A substantial question exists only 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.” Griffin, 65 A.3d at 935 (citation and internal quotation

marks omitted).

     In his Rule 2119(f) statement, Appellant contends that he raises a

substantial question in that “[t]he sentencing court did not place any valid

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reasons on the record pursuant to 42 [Pa.C.S.] § 9721(b) to justify the

imposition of an aggravated sentence.” Appellant’s Brief at 19. “The failure

to set forth adequate reasons for the sentence imposed has been held to

raise a substantial question.” Commonwealth v. Macias, 968 A.2d 773,

776 (Pa. Super. 2009). Thus, we proceed to the merits.

      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. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)

(citation omitted).

      Appellant contends that the trial court did not give adequate reasons

for its sentence. Specifically, the “trial court’s sentence was unreasonable …

because it failed to account for any of the mitigating factors and imposed the

same sentence it would have had none been present.” Appellant’s Brief at

45.   Appellant specifically references his genuine remorse, his severe

addiction to heroin and inability to attend a rehabilitation program despite

numerous attempts, and Appellant’s mother’s testimony at the sentencing

hearing that she had tried to help Appellant receive treatment but had not

been able to because they lacked money and insurance coverage.            Id.

Appellant argues that, instead of accounting for these factors, the court



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“simply determined that … Lowe’s resulting death, even if accidental and

unforeseen by [Appellant], warranted the maximum sentence,” which

represents a misunderstanding concerning the elements of the offense of

drug delivery resulting in death and presents a profound unfairness.      Id.

Appellant further argues that “[e]ven if the court were correct concerning

the legal requirements for liability, certainly the fact that … Lowe’s death

was an unforeseeable accident bears some mitigation.” Id.

      With respect to the mitigating factors Appellant sets forth above, the

court heard testimony at the sentencing hearing from both Appellant and

Appellant’s mother, as well as argument from Appellant’s counsel, regarding

Appellant’s severe addiction to heroin, his attempts at getting treatment, his

remorse, and his lack of intent. N.T., 12/21/2015, at 9-25. Finally, the trial

court had the benefit of a presentence investigation report (PSI).       See

Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (“Our

Supreme Court has determined that where the trial court is informed by a

[PSI], it is presumed that the court is aware of all appropriate sentencing

factors and considerations, and that where the court has been so informed,

its discretion should not be disturbed.”). In sentencing Appellant, the trial

court explained that it considered, inter alia, “the [PSI] and evidence that’s

been presented” at the hearing.6      Id. at 69.    Based on the foregoing,



6
 Although the trial court offered reasons for its sentence in generic terms,
we note that the evidence included, inter alia, testimony regarding
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Appellant’s arguments do not persuade us that the trial court abused its

discretion in imposing sentence. The court did consider the above mitigating

factors, and simply did not accord them the weight Appellant wished it did.

See Commonwealth v. Raven, 97 A.3d 1244, 1255 (Pa. Super. 2014) (in

rejecting Raven’s discretionary aspects of sentencing claim, explaining that

“[t]he gist of Raven’s argument is not that the court failed to consider the

pertinent sentencing factors, but rather that the court weighed those factors

in a manner inconsistent with his wishes” and that “the court carefully

considered all of the evidence presented at the sentencing hearing”).       No

relief is due.

      In his final issue, Appellant argues that his sentence and section 2506

violate the Eighth Amendment’s restriction against cruel and unusual

punishment.       Appellant   argues    that   his   aggregate   sentence    is

disproportionate to his culpability, as he had no idea that giving Lowe heroin

would result in Lowe’s death and his conduct does not reflect any particular

depravity or callousness. Appellant’s Brief at 47. Appellant argues that this

was a tragic accident resulting from his drug addiction, which shows that he



Appellant’s delivery of heroin to another individual at the scene of the death
during the period of time in which Lowe was unresponsive.                 N.T.,
12/21/2015, at 52. See also N.T., 9/29-30/2015, at 243-46 (testimony of
Jacob Blass explaining that he had given Appellant money to buy heroin
earlier in the day of Lowe’s death and that, later that night, he contacted
Appellant to make sure Appellant had obtained the heroin, at which point
Appellant said Lowe was unresponsive; Blass went to the scene and, while
Lowe was unresponsive, Appellant delivered two bags of heroin to Blass).
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is “less culpable because his conduct was the product of impaired judgment

and the simple failure to appreciate risks,” and demonstrates his capacity to

be rehabilitated. Id.

     We address Appellant’s claim mindful of the following.

     All properly enacted statutes enjoy a strong presumption of
     constitutionality.

        Accordingly, a statute will not be declared unconstitutional
        unless it clearly, palpably, and plainly violates the
        Constitution. All doubts are to be resolved in favor of
        finding that the legislative enactment passes constitutional
        muster. Thus, there is a very heavy burden of persuasion
        upon one who challenges the constitutionality of a statute.

     Appellate review of constitutional challenges to statutes,
     disputes over the legality of a sentence, a court’s application of a
     statute, and general questions of law involve a plenary scope of
     review. As with all questions of law, the appellate standard of
     review is de novo. ...

                                     ***

        The Eighth Amendment does not require strict
        proportionality between crime and sentence. Rather, it
        forbids only extreme sentences which are grossly
        disproportionate to the crime. In Commonwealth v.
        Spells, [] 612 A.2d 458, 462 ([Pa. Super.] 1992) (en
        banc), the Superior Court applied the three-prong test for
        Eighth Amendment proportionality review set forth by the
        United States Supreme Court in Solem v. Helm, 463 U.S.
277, 292[] (1983), and determined that a five-year
        mandatory minimum sentence for offenses committed with
        a firearm does not offend the Pennsylvania constitutional
        prohibition against cruel punishments. The Spells court
        observed that the three-prong Solem proportionality test
        examines: “(i) the gravity of the offense and the harshness
        of the penalty; (ii) the sentences imposed on other
        criminals in the same jurisdiction; and (iii) the sentences
        imposed for commission of the same crime in other

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         jurisdictions.” The Spells court correctly observed that a
         reviewing court is not obligated to reach the second and
         third prongs of the test unless “a threshold comparison of
         the crime committed and the sentence imposed leads to an
         inference of gross disproportionality.”4
            4
              Justice Kennedy’s understanding of the first prong
            of the Solem test as a threshold hurdle in
            establishing an Eighth Amendment violation has
            been recently cited with approval by the High Court
            as well. “A court must begin by comparing the
            gravity of the offense and the severity of the
            sentence.” In the “rare case” in which this threshold
            comparison leads to an inference of gross
            disproportionality, the reviewing court “should then
            compare the defendant’s sentence with the
            sentences received by other offenders in the same
            jurisdiction and with the sentences imposed for the
            same crime in other jurisdictions.” “If this
            comparative analysis ‘validate[s] an initial judgment
            that [the] sentence is grossly disproportionate,’ the
            sentence is cruel and unusual.”

Commonwealth v. Colon-Plaza, 136 A.3d 521, 530-31 (Pa. Super. 2016)

(some citations and internal quotation marks omitted).

      Herein, Appellant was convicted of several crimes stemming from his

providing Lowe with a dose of heroin that resulted in Lowe’s death.

Appellant was sentenced to a term of incarceration of 10 years to 20 years,

10 months for his drug-delivery-resulting-in-death conviction, and an

aggregate sentence of 12 years and 10 months to 26 years and 10 months

of incarceration.   In light of the gravity of the offense(s) at issue, most

importantly the death of a young man, and the severity of the sentences

imposed, we conclude that this is not a “rare case” in which this threshold



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comparison leads to an inference of gross disproportionality.          Thus,

Appellant’s claim is without merit.

      Based on the foregoing, Appellant has failed to establish that he is

entitled to relief. Accordingly, we affirm his judgment of sentence.

      Judgment of sentence affirmed.

      Judge Lazarus joins.

      Judge Solano concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/9/2017




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