Commonwealth v. Shreffler

249 A.3d 575

COMMONWEALTH of Pennsylvania

v.Scott Allen SHREFFLER, Appellant

Commonwealth of Pennsylvania

v.Scott Allen Shreffler, Appellant

No. 1790 MDA 2019

No. 1791 MDA 2019

Superior Court of Pennsylvania.

Submitted March 8, 2021

Filed April 6, 2021

Lance T. Marshall, State College, for appellant.

Christopher R. Torquato, District Attorney, Lewistown, for Commonwealth, appellee.

BEFORE: STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant, Scott Allen Shreffler, appeals from the July 25, 2019, judgment of sentence entered in the Court of Common Pleas of Mifflin County 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.

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.

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 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.

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 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 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

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