Com. v. Shreffler, S. ( 2021 )

J-S08041-21
2021 PA Super 59COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT ALLEN SHREFFLER :
:
Appellant : No. 1790 MDA 2019
Appeal from the Judgment of Sentence Entered July 25, 2019
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000250-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SCOTT ALLEN SHREFFLER :
:
Appellant : No. 1791 MDA 2019
Appeal from the Judgment of Sentence Entered July 25, 2019
In the Court of Common Pleas of Mifflin County Criminal Division at
No(s): CP-44-CR-0000247-2016
BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED APRIL 6, 2021
Appellant, Scott Allen Shreffler, appeals from the July 25, 2019,
judgment of sentence entered in the Court of Common Pleas of Mifflin County
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S08041-21
following his conviction by a jury on three counts of delivery of a controlled
substance.1 After a careful review, we affirm.
We glean the following relevant facts and procedural history from the
record: On March 21, 2016, the police conducted a controlled buy at
Appellant’s house between Appellant and a then-confidential informant
(“CI”),2 who purchased crack cocaine. N.T., 3/21/17, jury trial, at 34-39. As
a result of this purchase, the police obtained a warrant to intercept
communications inside of Appellant’s home.
On March 25, 2016, the police conducted a second controlled buy
between Appellant and the CI, who was wearing a wire. Id. at 45-51. The CI
purchased heroin from Appellant. Id. at 51-52. On March 28, 2016, the
police conducted a third controlled buy at Appellant’s house between Appellant
and the CI, who was again wearing a wire, at which time the CI purchased
Buprenorphine pills. Id. at 60-65.
____________________________________________
1 35 P.S. § 780-113(a)(30). Two counts are docketed at CP-44-CR-0000250-
2016 (“250-2016”), and one count is docketed at CP-44-CR-0000247-2016
(“247-2016”).
As discussed infra, Appellant previously filed a direct appeal and, after
a careful review, this Court vacated Appellant’s judgment of sentence and
remanded for Appellant to file an amended suppression motion.
Commonwealth v. Shreffler, 201 A.3d 757 (Pa.Super. 2018). On remand,
the trial court denied Appellant’s amended suppression motion and, in
accordance with our previous Opinion, the trial court re-imposed Appellant’s
judgment of sentence. Id. The matter is now before this Court again on
direct appeal.
2 The CI was later identified and testified at trial.
-2-
J-S08041-21
Later that evening, the police obtained and executed a search warrant
at Appellant’s house. Id. at 72-87. They seized a bottle of Buprenorphine
pills. Id. at 87. Following Appellant’s arrest, the police recovered from
Appellant’s wallet the money used by the CI to purchase the Buprenorphine
pills. Id. at 80-81.
On August 22, 2016, Appellant filed a counseled pre-trial motion seeking
the identity of the CI, and on November 16, 2016, Appellant filed a
supplemental pre-trial motion seeking to suppress the evidence obtained as a
result of the wiretap. In the suppression motion, Appellant presented various
arguments related to the March 25 and 28, 2016, recordings from the wiretap
worn by the CI during the second and third controlled buys. He argued the
Commonwealth failed to comply with various sections of the Wiretapping and
Electronic Surveillance Control Act (“Wiretap Act”), 18 Pa.C.S.A. §§ 5701-
5782.
Following hearings on the matter, the trial court denied Appellant’s initial
and supplemental pre-trial motions. The trial court scheduled a jury trial to
begin on March 21, 2017. That morning, Appellant filed a motion in limine
seeking to preclude the use of the intercepted communications on the basis
the Commonwealth failed to disclose the application, supporting affidavit, and
final report as required under Pa.R.Crim.P. 573(B)(1)(g). The trial court
denied the motion.
-3-
J-S08041-21
The jury trial commenced, and during trial, the Commonwealth played
the March 25 and 28, 2016, recordings of the conversations between Appellant
and the CI. The CI testified the March 25, 2016, recording pertained to his
purchase of heroin from Appellant. Id. at 141. Regarding the March 28,
2016, recording, the CI confirmed his voice and Appellant’s voice were on the
recording. Id. No party introduced the wiretap application, affidavit of
probable cause, or the final report into evidence.
At the conclusion of the trial, the jury convicted Appellant of the charges
indicated supra, and following a pre-sentence investigation, the trial court held
a sentencing hearing on May 26, 2017.
During the sentencing hearing, Appellant’s counsel recognized the trial
court had before it “an extensive” pre-sentence investigation report to review.
N.T., 5/26/17, at 3. Appellant’s counsel noted Appellant has “some significant
health issues.” Id. at 5. The trial court acknowledged Appellant has “back
and leg issues.” Id.
Appellant addressed the trial court and indicated he wished to
acknowledged that he had been disrespectful previously on the day of jury
selection, and he wanted “to take an opportunity to apologize for [his] actions
that day.” Id. at 11. Appellant also indicated the following:
When I went upstate, when [sic] I was 17, I was thrown into
the prison riots which were in Camp Hill three weeks later. My
federal litigation, I spent seven and a half, eight years finding out
the law. I like to concentrate on myself.
If I was being released today, I would be the first one to say
I’m not ready to go back into society. I’m bitter. I got hatred in
-4-
J-S08041-21
me. I was on solid ground when I got out last time. I wouldn’t
want to leave today. Like, I got bad stuff in my head. You know,
I got problems with my bipolar, my manic, the rants. I went to
my counselor, [and] we were addressing mental health issues that
resulted in this new criminal charge.
I understand the notes that [the District Attorney] received
and how they are viewed, but things were taken highly out of
context. There [are] things that shouldn’t have been said that
aren’t on that level. That’s all the result of the mental health
issues I was having especially at that time, not being on my manic,
bipolar medications and other problems.
Id. at 13-14.
The District Attorney informed the trial court that the pre-sentence
investigation report contained detailed information regarding Appellant’s adult
criminal record. Id. at 14. The District Attorney noted Appellant has a “quite
lengthy” record, including “felonies [and] drug cases since the 1980s,” which
should be considered in sentencing Appellant. Id.
The District Attorney further noted Appellant’s criminal record includes
“federal drug distribution charges” and demonstrates “a longstanding pattern
of misbehavior in the community, which has gotten [Appellant] to where [he
is] today.” Id. at 18. The District Attorney indicated that, given Appellant’s
“long history of drug crimes both here and in other places[,]” it agreed with
the probation office’s sentencing recommendations, which were included in
the pre-sentence investigation report. Id. The Commonwealth urged the trial
court to examine Appellant’s adult criminal record and the recommendations
of the probation office contained in the pre-sentence investigation report. Id.
-5-
J-S08041-21
Additionally, the Commonwealth indicated it had requested and given
notice of its intent to seek application of 35 P.S. § 780-115. The
Commonwealth suggested application of the sentencing enhancement was
“appropriate in this matter based on [Appellant’s] long history of drug crimes
both here and in other places.” Id.
Appellant’s counsel recognized the pre-sentence investigation report
correctly stated the offense gravity scores and included the relevant
sentencing guidelines. Id. at 19-21. Appellant’s counsel requested that the
trial court not apply Section 780-115’s sentencing enhancement since the
effect would be to “double count” Appellant’s prior drug offenses, which are
part of his prior record score. Id. at 19.
Moreover, Appellant’s counsel questioned whether Appellant’s prior
record score is “a five” as indicated in the pre-sentence investigation report
or is actually “a four.” Id. at 21-23. In this regard, Appellant’s counsel
indicated Appellant’s prior lengthy criminal record, which included
Pennsylvania state charges, federal charges, and out-of-state charges, is
confusing. Id.
Appellant suggested his Florida drug conviction is the equivalent to a
Pennsylvania possession of paraphernalia conviction. Id. at 22-23. In this
vein, Appellant claimed he possessed solely “an empty bag of heroin” in
Florida. Id. at 23. Appellant’s counsel then provided the trial court with the
-6-
J-S08041-21
standard range sentences for Appellant’s convictions if his prior record score
is, in fact, four. Id. at 23-24.
With regard to the remaining portions of the pre-sentence investigation
report, Appellant’s counsel indicated:
The rest of the pre-sentence investigation report, as [the trial
judge] indicates, certainly there was a lot of interview time put in
there. It lists a lot of the health issues that [Appellant] testified
to here or stated, his medical concerns. It also details, you know,
a history of mental health, psychiatric issues, substance abuse.
Certainly—and [Appellant] I think from his comments to the Court
recognizes that he has mental health needs that he needs to
continue to address.
Id. at 24.
Regarding Appellant’s prior record score, the District Attorney indicated
the probation office properly determined Appellant “is a five” based on his
prior record. Id. at 26.
The trial court indicated that it agreed Appellant’s prior record score is
“a five,” and it was applying the sentencing enhancement under Section 780-
115. Id. at 27. The trial court then sentenced Appellant to 32 months to 64
months in prison for delivery of Buprenorphine, 32 months to 64 months in
prison for delivery of cocaine, and 42 months to 84 months in prison for
delivery of heroin. The trial court indicated the sentences would run
consecutively, and thus, the aggregate sentence was 106 months to 212
months in prison.
Thereafter, Appellant filed a motion to clarify his sentence, which the
trial court granted, in part. Specifically, the trial court indicated it erred by
-7-
J-S08041-21
sentencing Appellant to a term exceeding the five year statutory maximum
for distribution of Buprenorphine. Trial Court Order, filed 8/9/17. Thus, the
trial court corrected the original sentence of 32 months to 64 months in prison
for delivery of Buprenorphine to 30 months to 60 months in prison. Id. The
trial court directed the remaining sentences would be unchanged, and the
sentences would continue to run consecutively. Id. Thus, Appellant’s
corrected aggregate sentence was 104 months to 208 months in prison. Id.
Appellant filed a timely, counseled post-sentence motion, which the trial
court denied on August 4, 2017. Thereafter, Appellant filed a timely notice of
appeal, which was docketed in this Court at 1375 MDA 2017 and 1376 MDA
2017.3
On appeal, Appellant averred the trial court erred in failing to suppress
the intercepted communications on the basis the Commonwealth failed to
comply with various sections of the Wiretap Act. See Commonwealth v.
Shreffler, 201 A.3d 757 (Pa.Super. 2018). He also alleged the order
authorizing the in-home wiretap was discoverable under Pa.R.Crim.P.
573(B)(1)(g), pertaining to mandatory disclosure by the Commonwealth.4
See id.____________________________________________
3 This Court consolidated the appeals.
4 Appellant also presented a sentencing claim in this appeal; however, given
the disposition of the appeal, this Court did not address Appellant’s sentencing
claim.
-8-
J-S08041-21
Following a thorough review, a panel of this Court relevantly held the
following:
Appellant moved to exclude the wiretapped conversations
on the basis that the Commonwealth failed to provide the affidavit
of probable cause, wiretap application, and order approving the
wiretap. At the hearing on the motion, Appellant accurately noted
that the Commonwealth bore the burden of establishing probable
cause for the wiretap order. The Commonwealth’s argument that
only the court could unseal the requested documents is in tension
with [subsections] 5721.1(c)(4) and (c)(5) [of the Wiretap
Act]….[T]hose subsections state that in considering a motion to
exclude under those subsections, the Commonwealth generally
bears the burden of proof.
But even if section 5721.1 did not apply, the Commonwealth
failed to comply with its mandatory discovery obligations under
Pa.R.Crim.P. 573(B)(1)(g). Rule 573(B)(1)(g) obligated the
Commonwealth to disclose the authority for the wiretap. See
Pa.R.Crim.P. 573(B)(1)(g). The Commonwealth did not.
The Commonwealth attempts to evade responsibility by
shifting the burden to Appellant to file a motion to unseal. But the
Commonwealth, in response to an appropriate motion to
suppress, has the burden of establishing, by a preponderance of
the evidence, that it had consent or probable cause, or both. See
18 Pa.C.S.A. § 5721.1(c)(4), (c)(5). It cannot sidestep its burden
of proof by claiming that Appellant had the burden of filing a
motion to unseal. See id.
Given our Supreme Court’s admonition that the Wiretap Act
must be strictly construed to preserve the fundamental
Pennsylvania constitutional right of privacy, Appellant need not
establish any prejudice from the Commonwealth’s procedural
violations. Accordingly, having discerned an error of law, we are
reluctantly compelled to vacate Appellant’s judgment of sentence,
vacate the order denying Appellant’s post-sentence motion,
vacate the January 17, 2017, order denying Appellant’s
[suppression] motion, and remand for a new suppression hearing.
The Commonwealth must file a motion to unseal the affidavit of
probable cause, order authorizing the wiretap, and documentation
evidencing consent, and also provide them to Appellant’s counsel.
Appellant’s counsel may file an amended motion to suppress
based upon the sealed documents and the trial court has the
discretion to hold a new suppression hearing. If the trial court
-9-
J-S08041-21
again denies Appellant’s suppression motion, then it shall
reimpose the corrected sentence, and Appellant is entitled
to his post-sentence and appellate rights.
Shreffler, 201 A.3d at 767 (citations omitted) (emphasis added).5
Upon remand, the Commonwealth filed the motion to unseal and
produce the required items, which the trial court granted on February 1, 2019.
Appellant filed an amended motion to suppress evidence, and the trial court
held a suppression hearing on June 17, 2019.
By order filed on July 25, 2019, the trial court denied Appellant’s
amended motion to suppress, and, in accordance with this Court’s December
21, 2018, Opinion, the trial court re-imposed Appellant’s judgment of
sentence.
Appellant filed a timely, counseled post-sentence motion at each lower
court docket number, and by order filed on October 1, 2019, the trial court
denied the post-sentence motions. On October 29, 2019, Appellant filed a
timely, counseled separate notice of appeal at each lower court docket
number, and this Court consolidated the appeals. On November 4, 2019, the
trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement,6 Appellant
____________________________________________
5 This Court relinquished its jurisdiction. See id.
6 We note the trial court’s order informed Appellant he had twenty-one days
to file a Rule 1925(b) statement, the statement shall be filed of record and
served upon the judge, and any issue not properly included in the Statement
would be deemed waived. See Pa.R.A.P. 1925(b)(3). Moreover, the trial
court’s Rule 1925(b) order was served upon Appellant’s counsel at his mailing
address on November 4, 2019.
- 10 -
J-S08041-21
timely complied on November 21, 2019, and the trial court filed a brief
Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant sets forth the following issues in his “Statement of
Questions Involved” (verbatim):
1. Did the trial court abuse its discretion by permitting the jury to
review transcripts of tape-recorded conversations during its
deliberation when the trial court did not issue any cautionary
instructions either at the time of the playing of the audio tape
during the trial nor at the time the trial court provided the tape-
recorded conversations to the jury for its deliberations?
2. Did the trial court abuse its discretion when, in sentencing
Defendant, it incorrectly calculated Defendant’s prior record
score and sentencing guidelines?
3. Did the trial court abuse its discretion when, in sentencing
Defendant, it applied the doubling provisions of 35 P.S. § 780-
115 when the Defendant had not been previously convicted of
35 P.S. § 780-113(a)(30) or an equivalent offense outside of
the Commonwealth of Pennsylvania?
Appellant’s Brief at 4-5.
In his first issue, Appellant contends the trial court abused its discretion
in permitting the jury to review a written transcript of the tape-recorded
conversations between Appellant and the CI, who was wearing a wire.
Specifically, he avers the trial court erred in permitting the jury to view the
written transcript during deliberations since the transcript was never entered
into evidence, and additionally, the trial court failed to give a cautionary
instruction. In response, the Commonwealth avers Appellant has waived this
issue on appeal.
- 11 -
J-S08041-21
Initially, we agree with the Commonwealth that Appellant waived his
first issue by failing to include it in his court-ordered Rule 1925(b) Statement.
In his Rule 1925(b) statement, the sole issue Appellant presented with regard
to the subject transcript is as follows:
Despite the poor quality of the recordings of the intercepted oral
in-home communications of [Appellant], those recordings were
admitted erroneously into evidence at trial without first providing
[Appellant] with transcripts of same in a timely manner consistent
with the requirements of the Wiretap Act and the Rules of Criminal
Procedure relating to discovery.
Appellant’s Rule 1925(b) Statement, filed 11/21/19, at 1-2 ¶ 2.
As is evident, in his Rule 1925(b) statement, Appellant contended the
trial court erred in admitting the audio recordings of the tape-recorded
conversations between Appellant and the CI because Appellant was not
provided with written transcripts of the recordings prior to trial. However, in
his appellate brief, Appellant abandons this claim, and he now alleges the trial
court erred in permitting the jury to view the written transcripts of the tape-
recorded conversations during deliberations. Accordingly, we conclude
Appellant’s first issue is waived on this basis. Commonwealth v. Castillo,
585 Pa. 395, 888 A.2d 775 (2005) (holding issues not raised in a Rule 1925(b)
statement will be deemed waived for appellate review).
Additionally, we conclude Appellant’s first issue is waived since, as
Appellant concedes in his appellate brief, “trial counsel did not object to the
trial judge providing the transcript of the audio recording to the jury.”
Appellant’s Brief at 26.
- 12 -
J-S08041-21
In this regard, we note that, during deliberations, the jury asked, “[C]an
we have a transcript of the audio recordings from the controlled buys?” N.T.,
3/21/17, at 297. The trial court indicated it was not going to provide the
transcript to the jury, and neither counsel objected. Id. at 298-99. However,
the jury subsequently asked two additional questions and, after answering
these questions, the trial court informed the parties that it was reconsidering
its ruling as to the jury’s request for the transcript of the audio recordings.
Id. at 300.
The trial court stated, “If we have an agreement, I don’t have a problem”
giving the jury the transcript. Id. The trial court further stated, “Unless I
would hear an objection from somebody otherwise, I wouldn’t have a problem
with it. I read it to them. I wouldn’t have a problem if they looked at it.” Id.
at 302. Further, the trial court indicated “[I]t’s a regurgitation of what was
on the audio, I don’t have a problem with that unless I hear a stern objection
otherwise to rule on it.” Id. at 303. Neither party objected. See id. at 302-
307.
It is well-settled that “[i]ssues not raised in the trial court are waived
and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Since
Appellant did not object to the jury reviewing the written transcript of the
- 13 -
J-S08041-21
tape-recorded conversations during deliberations, and he did not request a
cautionary instruction, we find this issue to be waived.7 See id.
In his next issue, Appellant contends the trial court abused its discretion
in imposing a manifestly excessive sentence based upon an incorrect prior
record score. Specifically, Appellant contends “he believes” his prior record
score is “four,” but the trial court used a prior record score of “five.” See
Appellant’s Brief at 33.
It is well-settled that a challenge to the calculation of a prior record
score goes to the discretionary aspects, not legality, of sentencing. See
Commonwealth v. Sanchez, 848 A.2d 977, 986 (Pa.Super. 2004) (holding
miscalculation of prior record score “constitutes a challenge to the
discretionary aspects of [a] sentence”). When an appellant challenges the
discretionary aspects of his sentence, we must consider his brief on this issue
____________________________________________
7 To the extent Appellant contends trial counsel was ineffective in failing to
object to the jury viewing the transcript during deliberations and/or in failing
to request a cautionary instruction, we dismiss the claim without prejudice to
Appellant’s right to raise the claim on collateral review. See Commonwealth
v. Holmes, 621 Pa. 595, 79 A.3d 562, 583 (2013) (claims of ineffective
assistance of trial counsel in Pennsylvania generally are deferred to PCRA
review and generally are not available on direct appeal); Commonwealth v.
Grant, 572 Pa. 48, 813 A.2d 726 (2002). While the Pennsylvania Supreme
Court has recognized limited exceptions to this rule, there is no indication that
those exceptions apply in the instant case or that Appellant has waived his
right to collateral review. See Holmes, supra. See also Commonwealth
v. Delgros, 646 Pa. 27, 183 A.3d 352, 361 (2018).
- 14 -
J-S08041-21
as a petition for permission to appeal. See Commonwealth v. Moury, 992
A.2d 162 (Pa.Super. 2010).
Prior to reaching the merits of a discretionary sentencing issue,
[this Court conducts] a four[-]part analysis to determine: (1)
whether [A]ppellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether [A]ppellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
Here, Appellant filed a timely appeal, and he preserved his issue at the
sentencing hearing, as well as in a post-sentence motion. His appellate brief
also contains the requisite 2119(f) concise statement. Furthermore, this Court
has held that a claim that a trial court miscalculated the appellant’s prior
record score raises a substantial question. Commonwealth v. Spenny, 128
A.3d 234, 242 (Pa.Super. 2015). We, therefore, turn to the merits of
Appellant’s issue.
It is well-settled that:
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.
- 15 -
J-S08041-21
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)
(quotation omitted).
Appellant takes issue with the trial court including in his prior record
score his drug conviction in Florida. As Appellant admits, “[i]n order to
determine the prior record score of [Appellant], this…Court must look to the
Pre-Sentence Investigation Report[.]” Appellant’s Brief at 33. However,
neither the pre-sentence investigation report nor a copy of the sentence
guideline form utilized by the trial court in calculating Appellant’s sentence is
included in the certified record.8
“It is the obligation of the appellant to make sure that the record
forwarded to an appellate court contains those documents necessary to allow
a complete and judicious assessment of the issues raised on appeal.” Everett
Cash Mutual Insurance Company v. T.H.E. Insurance Company, 804
A.2d 31, 34 (Pa.Super. 2002) (quotation omitted)). Ordinarily, we can only
consider documents which are part of the certified record. Roth Cash
____________________________________________
8 In the appellate brief, Appellant’s counsel, who was appointed for purposes
of appeal, recognizes the trial court accepted the probation office’s
calculations of Appellant’s prior record score, and these calculations are
included in the pre-sentence investigation report. Appellant’s Brief at 36-37.
Appellant’s counsel also acknowledges the pre-sentence investigation report
is not in the record. See id. However, Appellant’s counsel has not explained
what steps he took to ensure the pre-sentence investigation report was
included in the certified record and/or why he was otherwise prevented from
seeking a copy of the pre-sentence investigation report.
- 16 -
J-S08041-21
Register Company, Inc. v. Micro Systems, Inc., 868 A.2d 1222, 1223
(Pa.Super. 2005). Absent the pre-sentence investigation report or sentence
guideline form, we cannot review the calculations utilized by the trial court in
determining Appellant’s prior record score.9
In his final claim, Appellant contends the trial court erred in applying the
sentencing enhancement provided for in 35 P.S. § 780-115. Specifically, he
____________________________________________
9In any event, we note:
A prior conviction from another state court, federal court, or
foreign jurisdiction “is scored as a conviction for the current
equivalent Pennsylvania offense.” 204 Pa.Code § 303.8(f)(1). If
there is no current Pennsylvania equivalent, the trial court must
base the grading of the crime on the maximum sentence allowed;
if the grade of the prior felony conviction is unknown, it must be
treated as an F3. 204 Pa.Code § 303.8(d)(2), (f)(3).
***
[W]hen determining the Pennsylvania equivalent statute for a
prior, out-of-state conviction for prior record score purposes,
courts must identify the elements of the foreign conviction and on
that basis alone, identify the Pennsylvania statute that is
substantially identical in nature and definition to the out-of-state
offense. Courts are not tasked with ascertaining the statute under
which the defendant would have been convicted if he or she had
committed the out-of-state crime in Pennsylvania. Rather, we
must compare the elements of the foreign offense in terms of
classification of the conduct proscribed, its definition of the
offense, and the requirements for culpability to determine the
Pennsylvania equivalent offense.
Spenny, 128 A.3d at 242, 250 (footnote, quotation marks, quotations
omitted).
Instantly, during the sentencing hearing, Appellant suggested his Florida
drug conviction should be scored equivalent to a possession of paraphernalia
charge in Pennsylvania because what he possessed in Florida was actually “an
empty bag of heroin.” N.T., 5/26/17, at 22-23. The trial court rejected
Appellant’s bald, self-serving argument.
- 17 -
J-S08041-21
avers the trial court had no statutory authority to apply the sentencing
enhancement since he has not been convicted of a prerequisite “second or
subsequent offense” in Pennsylvania or outside of Pennsylvania.
Appellant’s claim implicates a challenge to the legality of his sentence.
See Commonwealth v. Warren, 84 A.3d 1092 (Pa.Super. 2014) (holding
claim challenging the trial court’s interpretation of and authority to impose
enhancement under 35 P.S. § 780-115 implicates a question of law);
Commonwealth v. Watson, 945 A.2d 174 (Pa.Super. 2008) (holding claim
there is no statutory authority to impose enhancement under 35 P.S. § 780-
115 presents challenge to legality of sentence). Accordingly, “our scope of
review is plenary, and our standard of review is de novo.” Commonwealth
v. Dixon, 53 A.3d 839, 842 (Pa.Super. 2012) (citations omitted).
Section 780–115 of Title 35, a recidivist statute for drug offenders, is a
discretionary sentencing enhancement statute. Specifically, the statute
relevantly provides:
§ 780-115. Second or subsequent offense
(a) Any person convicted of a second or subsequent offense under
clause (30) of subsection (a) of section 13 of this act or of a similar
offense under any statute of the United States or of any state may
be imprisoned for a term up to twice the term otherwise
authorized, fined an amount up to twice that otherwise
authorized, or both.
(b) For purposes of this section, an offense is considered a second
or subsequent offense, if, prior to the commission of the second
offense, the offender has at any time been convicted under clause
(30) of subsection (a) of section 13 of this act or of a similar
offense under any statute of the United States or of any state
relating to controlled substances.
- 18 -
J-S08041-21
35 P.S. § 780-115(a), (b) (footnote omitted).
Here, Appellant baldly asserts he has not committed a second or
subsequent offense as is required for the application of 35 P.S. § 780-115.
He contends the trial court’s reliance on the probation office’s pre-sentence
investigation report as to Appellant’s prior drug offenses was erroneous.10
See Appellant’s Brief at 40.
However, as with Appellant’s previous sentencing issue, our meaningful
review is hampered by Appellant’s failure to ensure the certified record
contains the necessary pre-sentence investigation report. See Everett Cash
Mutual Insurance Company, supra. Even though Appellant presents a
challenge to the legality of his sentence, such an issue may be waived on
appeal where it is underdeveloped and/or the appellant fails in his obligation
to ensure the certified record is sufficient for review. See generally
Commonwealth v. Gibbs, 981 A.2d 274 (Pa.Super. 2009).
Here, Appellant baldly asserts he has not been convicted of a second or
subsequent offense. Further, he acknowledges meaningful review is hampered
____________________________________________
10 In its opinion, the trial court indicated it relied on, inter alia, information
provided by the probation office during Appellant’s pre-sentence investigation,
and the court applied 35 P.S. § 780-115(a) based on Appellant’s prior record,
history of drug crimes, and the relevant statutory language. See Trial Court
Opinion, filed 10/28/17, at 2.
- 19 -
J-S08041-21
in this case by the absence of the pre-sentence investigation report and record
pertaining to his prior convictions.
For all of the foregoing reasons, we affirm.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/06/2021
- 20 -