Com. v. Atkinson, P. ( 2015 )

J-A35025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
PAMELA D. ATKINSON,
Appellant No. 193 WDA 2014
Appeal from the Judgment of Sentence entered December 16, 2013,
in the Court of Common Pleas of Erie County,
Criminal Division, at No(s): CP-25-CR-0002704-2012
BEFORE: BENDER, P.J.E., BOWES and ALLEN, JJ.
MEMORANDUM BY ALLEN, J.: FILED JANUARY 05, 2015
Pamela D. Atkinson (“Appellant”) appeals from the judgment of
sentence imposed after a jury convicted her of corrupt organizations,
conspiracy to violate 18 Pa.C.S.A. § 911(b)(4), three counts of possession of
a controlled substance with intent to deliver (“PWID”), and criminal use of a
communication facility.1 We affirm.
The pertinent facts and procedural history may be summarized as
follows: Following a grand jury investigation into the distribution of
OxyContin and other controlled substances in Erie County, Pennsylvania,
Agent Alan McGill of the Office of Attorney General, Bureau of Narcotics
Investigation and Drug Control learned that Appellant was involved in a drug
____________________________________________
1
18 Pa.C.S.A. §§ 911(b)(3), 903, 35 P.S. § 780-113(a)(3) and 18 P.S. §
7512(a).
J-A35025-14
distribution ring. Affidavit of Probable Cause, 6/18/12. Utilizing a
confidential informant named Ryan Fatica, Officer McGill conducted
controlled purchases of OxyContin from an individual name Denise
McConnell on July 7, 2010. Id.; N.T., 9/24/13, at 35-42. Ms. McConnell
was thereafter arrested and informed the police that Appellant and a woman
known only as “Viola” were her drug suppliers and that Appellant
transported the drugs from New York to Erie approximately once a month.
Affidavit of Probable Cause, 6/18/12. An investigation into Appellant’s
medical records revealed that over several years, Appellant had received
numerous OxyContin prescriptions, with a value of approximately seventy
thousand ($70,000.00) dollars, from a New York City physician. Id.
Appellant was subsequently arrested and charged with the aforementioned
crimes.
A jury trial commenced on September 24, 2013, at the conclusion of
which the jury rendered its convictions. Following a hearing on December
16, 2013, the trial court sentenced Appellant to an aggregate term of
imprisonment of 48 to 124 months. Appellant filed a post-sentence motion
on December 27, 2013, which the trial court denied by order entered on
January 6, 2014. This timely appeal followed. The trial court did not direct
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925. On February 5, 2014, the trial court entered a
memorandum opinion stating that the testimony given at trial, the
-2-
J-A35025-14
sentencing record, and the trial court’s January 6, 2014 order would suffice
to address the issues raised on appeal.
Appellant presents the following issues for our review:
1. WHETHER THE EVIDENCE PRESENTED WAS INSUFFICIENT TO
SHOW BEYOND A REASONABLE DOUBT THAT [APPELLANT]
PERPETRATED, CONSPIRED TO COMMIT, OR ASSISTED WITH
ANY OF THE CRIMES CHARGED HEREIN RELATED TO THE
DELIVERY OF OXYCONTIN AS ALLEGED BY THE
COMMONWEALTH?
2. DID THE TRIAL COURT COMMIT AN ABUSE OF DISCRETION
AND/OR ERROR OF LAW WHEN IT ALLOWED THE
COMMONWEALTH TO INTRODUCE CELL PHONE RECORDS, A
DATABASE PRINTOUT FROM THE NATIONAL DRUG CODE
DIRECTORY, AND PRESCRIPTION RECORDS, AS BUSINESS
RECORDS UNDER PA.R.E. 803(6)?
Appellant’s Brief at 4
In her first issue, Appellant argues that the evidence was insufficient
to support her convictions. Appellant’s Brief at 34-41.
Our standard when reviewing the sufficiency of the
evidence is whether the evidence at trial, and all reasonable
inferences derived therefrom, when viewed in the light most
favorable to the Commonwealth as verdict-winner, are sufficient
to establish all elements of the offense beyond a reasonable
doubt. We may not weigh the evidence or substitute our
judgment for that of the fact-finder. Additionally, the evidence
at trial need not preclude every possibility of innocence, and the
fact-finder is free to resolve any doubts regarding a defendant's
guilt unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from the
combined circumstances. When evaluating the credibility and
weight of the evidence, the fact-finder is free to believe all, part
or none of the evidence. For purposes of our review under these
principles, we must review the entire record and consider all of
the evidence introduced.
Commonwealth v. Emler, 903 A.2d 1273, 1276–77 (Pa. Super. 2006).
-3-
J-A35025-14
Appellant was charged with corrupt organizations (18 Pa.C.S.A. §
911(b)(3)), conspiracy to violate 18 Pa.C.S.A. § 911(b)(4), three counts of
possession of a controlled substance with intent to deliver (35 P.S.. § 780-
113(a)(30)), and criminal use of a communication facility (18 P.S. §
7512(a)).
With respect to Appellant’s conviction for the crime of corrupt
organizations, 18 Pa.C.S.A § 911(b)(3) provides:
It shall be unlawful for any person employed by or associated
with any enterprise to conduct or participate, directly or
indirectly, in the conduct of such enterprise's affairs through a
pattern of racketeering activity.
To sustain a conviction for corrupt organizations, “the Commonwealth
must prove that there was an ongoing organization engaged in commerce
and that the associates of the organization functioned as a continuing
unit...” Commonwealth v. Donahue, 630 A.2d 1238, 1245 (Pa. Super.
1993). The statute further defines “pattern of racketeering activity” as “a
course of conduct requiring two or more acts of racketeering activity one of
which occurred after the effective date of this section.” 18 Pa.C.S.A. §
911(h)(4). “Racketeering activity,” in turn, is defined as, inter alia, “any
violation of the Controlled Substance, Drug, Device and Cosmetic Act.” 18
Pa.C.S.A. § 911(h)(1)(ii).
To sustain Appellant’s criminal conspiracy conviction, the
Commonwealth was required to establish that Appellant: (1) entered into an
agreement to commit or aid in an unlawful act with another person or
-4-
J-A35025-14
persons, (2) with a shared criminal intent, and (3) an overt act was done in
furtherance of the conspiracy. Commonwealth v. McCall, 911 A.2d 992,
996 (Pa. Super. 2006). “This overt act need not be committed by the
defendant; it need only be committed by a co-conspirator.” Id (citations
omitted).
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a
particular criminal objective be accomplished. Therefore, a
conviction for conspiracy requires proof of the existence of a
shared criminal intent. An explicit or formal agreement to
commit crimes can seldom, if ever, be proved and it need not
be, for proof of a criminal partnership is almost invariably
extracted from the circumstances that attend its activities.
Thus, a conspiracy may be inferred where it is demonstrated
that the relation, conduct, or circumstances of the parties, and
the overt acts of the co-conspirators sufficiently prove the
formation of a criminal confederation. The conduct of the
parties and the circumstances surrounding their conduct may
create a web of evidence linking the accused to the alleged
conspiracy beyond a reasonable doubt. Even if the conspirator
did not act as a principal in committing the underlying crime, he
is still criminally liable for the actions of his co-conspirators in
furtherance of the conspiracy.
Commonwealth v. Johnson, 719 A.2d 778, 784–85 (Pa. Super. 1998) (en
banc).
With respect to PWID, 35 P.S. § 780–113 provides:
(a) The following acts and the causing thereof within the
Commonwealth are hereby prohibited:
...
(30) Except as authorized by this act, the manufacture,
delivery, or possession with intent to manufacture or
deliver, a controlled substance by a person not registered
under this act, or a practitioner not registered or licensed
-5-
J-A35025-14
by the appropriate State board, or knowingly creating,
delivering or possessing with intent to deliver, a
counterfeit controlled substance.
Finally, in order to sustain Appellant’s conviction for criminal use of a
communications facility, the Commonwealth was required to demonstrate:
(1) Appellant knowingly and intentionally used a communication facility; (2)
Appellant knowingly, intentionally or recklessly facilitated an underlying
felony; and (3) the underlying felony occurred. Commonwealth v. Moss,
852 A.2d 374, 382 (Pa. Super. 2004). “Facilitation has been defined as ‘any
use of a communication facility that makes easier the commission of the
underlying felony.’ If the underlying felony never occurs, then [the
defendant has] facilitated nothing and cannot be convicted under § 7512.”
Id. (citations omitted).
At trial, the Commonwealth presented the testimony of Ryan Fatica,
who testified that he acted as a confidential informant for the police officers
investigating OxyContin distribution in Erie. N.T., 9/24/13, at 35-42. In his
capacity as a confidential informant, on July 7, 2010, he purchased 49
OxyContin pills from Denise McConnell, from whom he had obtained drugs in
the past. Id.
The Commonwealth also presented the testimony of Ms. McConnell,
who testified that she had regularly purchased OxyContin from Appellant
over the course of three years. N.T., 9/25/13, at 8-14. Ms. McConnell
testified that on July 7, 2010, after Mr. Fatica contacted her to request
-6-
J-A35025-14
drugs, she spoke with Appellant over the phone to set up the drug purchase,
drove to Appellant’s house on East 22nd Street, and was met there by a
woman named “Vi” who provided Ms. McConnell with the OxyContin that was
subsequently delivered to Mr. Fatica. Id. Ms. McConnell testified that she
had in the past participated in numerous drug transactions with Appellant,
where Ms. McConnell acted as the “middleman,” obtaining drugs from
Appellant to provide to various customers. Id. at 16-22.
Additionally, the Commonwealth presented the testimony of Jody
Jefferson, who testified that he had purchased OxyContin from Appellant at
her residence on East 22nd Street. Id. at 56. The Commonwealth also
presented the testimony of Vivian Schwindt, James Wentz, and Jeremy
Cook, who testified that although they never entered Appellant’s residence
at East 22nd Street or dealt personally with Appellant, they regularly
accompanied Ms. McDonnell and/or Mr. Jefferson to that location to purchase
drugs, and waited outside while Ms. McDonnell or Mr. Jefferson entered the
residence and returned with OxyContin pills. Id. at 79-126. Additionally, Jill
Valentino, an investigator from the New York State Department of Health,
Bureau of Narcotic Enforcement, testified that her review of the New York
State Department of health records revealed that OxyContin in quantities of
300 units were dispensed to Appellant on 14 different occasions between
2009 and 2011. Id. at 135-139. Moreover, the Commonwealth introduced
-7-
J-A35025-14
telephone records revealing that on July 7, 2010, Ms. McConnell placed calls
to a telephone number which was listed to Appellant. Id. at 162-165.
We conclude that the foregoing evidence, when viewed in the light
most favorable to the Commonwealth as verdict winner, was sufficient to
support Appellant’s convictions for corrupt organizations, conspiracy, PWID
and criminal use of a communication facility.
Appellant asserts, nevertheless, that the evidence was insufficient to
support her convictions because the Commonwealth presented evidence of
only one actual drug delivery that occurred on July 7, 2010 between Ryan
Fatica and Denise McConnell. Appellant’s Brief at 34-41. Appellant argues
that that there was insufficient evidence to demonstrate that she was
physically present during the July 2, 2010 drug transaction, and that given
the lack of any testimony as to her involvement in any other specific drug
transactions, the evidence was insufficient to support any of her convictions.
This claim is meritless because the jury could have reasonably concluded
from the testimony that on July 7, 2010, Appellant sold Ms. McConnell the
OxyContin that she later provided to Mr. Fatica; moreover, the jury could
have reasonably concluded, based on the testimony of Ms. McConnell, Mr.
Fatica and Mr. Jefferson, among others, that Appellant regularly distributed
OxyContin.
Appellant next challenges the credibility of Mr. Fatica, given that he
described himself as a drug addict and pathological liar, and also challenges
-8-
J-A35025-14
the credibility of Ms. McConnell, Mr. Jefferson, Ms. Schwindt, Mr. Wentz, and
Mr. Cook, on the basis that they were drug users, thus rendering their
testimony incredible. Id. However, it is well settled that the jury, as the
finder of fact, is free to believe all, part or none of a witness’ testimony.
Indeed, “[i]t is the function of the jury to evaluate evidence adduced at trial
to reach a determination as to the facts.” Commonwealth v. G.Y., 63 A.3d
259, 269-270 (Pa. Super. 2013). Here, even after Appellant conducted a
rigorous cross-examination of the Commonwealth’s witnesses designed to
call into question their credibility and reveal weaknesses in their testimony,
the jury, which was aware that the aforementioned witnesses were drug
users, nevertheless found their testimony persuasive. We will not disturb
such credibility determinations on appeal. See Commonwealth v.
Hudson, 414 A.2d 1381 (Pa. 1980) (holding that the fact that the witness
used drugs and had a prior criminal record was a matter of credibility
properly left to the jury's consideration). Appellant’s sufficiency challenge
fails.
In her second issue, Appellant argues that the trial court erred in
permitting the Commonwealth to introduce evidence of: (a) cell phone
records, (b) a database printout from the National Drug Code Directory, and
(c) prescription records from Express Scripts, as business records under
Pa.R.E. 803(6).
-9-
J-A35025-14
“The admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court clearly
abused its discretion.” Commonwealth v. Treiber, 874 A.2d 26, 31 (Pa.
2005). Here, Appellant first objects to the trial court’s decision to allow the
Commonwealth to introduce evidence and testimony pertaining to AT&T and
Sprint telephone records that revealed Appellant’s involvement in the July 7,
2010 drug transaction with Mr. Fatica and Ms. McDonnell. Specifically, at
trial, the trial court permitted the Commonwealth to present the testimony
of Agent Robert Mattis, a narcotics agent with the Erie County Attorney
General’s Technical Services Unit, who testified with regard to the
aforementioned telephone records which he received after making an official
request with the respective telephone companies. N.T., 9/25/13, at 143.
Appellant argues that the telephone records constituted hearsay that did not
fall within any exception, and were therefore inadmissible because the
Commonwealth failed to demonstrate that Agent Mattis was familiar with the
record-keeping practices of AT&T and Sprint, and could not testify to
whether the records were kept in the ordinary course of those businesses, in
order for the records to be admissible under the business records exception.
Pa.R.E. 803(6), known as the ‘business record exception’ to hearsay,
provides:
The following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
- 10 -
J-A35025-14
(6) Records of a Regularly Conducted Activity. A record
(which includes a memorandum, report, or data
compilation in any form) of an act, event or condition if,
(A) the record was made at or near the time by – or
from information transmitted by – someone with
knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a “business”, which term
includes business, institution, association,
profession, occupation, and calling of every kind,
whether or not conducted for profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of
the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12)
or with a statute permitting certification; and
(E) neither the source of information nor other
circumstances indicate a lack of trustworthiness
The Uniform Business Records as Evidence Act, codified at 42
Pa.C.S.A. § 6108, additionally provides:
A record of an act, condition or event shall, insofar as relevant,
be competent evidence if the custodian or other qualified witness
testifies to its identity and the mode of its preparation, and if it
was made in the regular course of business at or near the time
of the act, condition or event, and if, in the opinion of the
tribunal, the sources of information, method and time of
preparation were such as to justify its admission.
42 Pa.C.S.A. § 6108.
Here, Agent Mattis testified that he was “very familiar” with the way
that telephone companies in general compile subscriber telephone data.
- 11 -
J-A35025-14
N.T., 9/25/13, at 144. Agent Mattis testified that “telecommunications
providers [are] mandated by Congress to keep records of customer usage
and subscriber information relative to those clients so they’re available for
law enforcement agencies upon valid requests that are supported by court
orders, subpoenas, and backed by affidavit of probable cause. Those are the
records that they keep in the regular course of their business.” Id. He
testified that every time a subscriber uses their cell phone, “it would
generate an electronic record that’s kept in a database [and] upon the
inquiry of law enforcement ... those records would then be compiled to a
report, either paper or electronically, and then provided to the requesting
law enforcement agency.” Id. at 145. Moreover, at the time records were
introduced, the Commonwealth presented documents entitled “Declarations
of Authenticity” from the custodian of records at both Sprint and AT&T,
attesting to the authenticity of the records. See Pa.R.E. 803(6)(D).
Based on the foregoing, we find no abuse of discretion in the trial
court’s determination that Agent Mattis was a “qualified witness.” See
Pa.R.E. 803(D). In addition, the Commonwealth separately verified the
trustworthiness of the documents through “Declarations of Authenticity”
signed by the record custodians at both AT&T and Sprint attesting to their
legitimacy. Id. We conclude therefore that the trial court did not err in
permitting the Commonwealth to introduce evidence of the telephone
records. We are satisfied that the Commonwealth presented sufficient
information to justify a presumption of the trustworthiness of the telephone
- 12 -
J-A35025-14
records so as to offset the hearsay character of the evidence. See Pa.R.E.
603(6)(E). Accordingly, Appellant’s challenge to the admission of the
evidence fails.
Appellant next challenges the trial court’s decision to permit the
Commonwealth to introduce a database printout from the National Drug
Code Directory Website. The database printout was offered to rebut
Appellant’s testimony that in April of 2010, Purdue Pharmaceutical Company
(the manufacturer of OxyContin) ceased providing her with “OxyContin OC”,
the version of Oxycontin she had previously been receiving. N.T., 9/26/13,
at 58-62. Instead, Appellant claimed that after April 2010, she began to
receive a new version of OxyContin labeled “OxyContin OP” which was gel-
like in form and could not be crushed or dissolved and therefore could not be
abused, unlike the prior “OC” formulation. Id. By asserting that she last
received “OxyContin OC” in April 2010, Appellant sought to demonstrate
that she could not have been involved in the July 7, 2010 controlled buy
involving Ms. McConnell and Mr. Fatica, in which police officers recovered 49
“OxyContin OC” pills.
To rebut Appellant’s testimony that she no longer received any
“OxyContin OC” pills after April 2010, the Commonwealth introduced the
testimony of Agent Christopher Parker of the Erie County Office of the
Attorney General Diversion Investigative Unit, who testified, based on a
printout from the “National Drug Code Directory” website – which is
generated by the United States Food and Drug Administration (FDA) – that
- 13 -
J-A35025-14
“Oxycontin OP” only became available for distribution on August 8, 2010.
N.T., 9/26/13, at 133-140. Appellant argues that the trial court erred in
permitting the Commonwealth to introduce under the business records
exception the information from the FDA’s online “National Drug Code
Directory” because Agent Parker was not qualified to testify as to the
business practices of the FDA and whether the FDA prepared and maintained
the National Drug Code Directory in the regular course of its business.
Appellant’s Brief at 54-58.
We conclude that even if the Commonwealth failed to lay an adequate
foundation for the introduction of the National Drug Code Directory printout
as a business record, the trial court could have properly taken judicial notice
of the FDA’s National Drug Code Directory as a source “whose accuracy
cannot reasonably be questioned.” See Pa.R.E., Rule 201(2) (“The court
may judicially notice a fact that is not subject to reasonable dispute because
it ... can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”); 34 FR 11157 (July 1, 1969) (“The
Secretary of Health, Education, and Welfare ... has directed the
Commissioner of Food and Drugs to establish a National Drug Code System.
The National Drug Code System will provide an identification system in
computer language to permit automated processing of drug data by
Government agencies, drug manufacturers and distributors, hospitals and
insurance companies. The system has been developed with Government-
industry agreement and will consist of a nine-character National Drug Code
- 14 -
J-A35025-14
(NDC)”); 36 FR 27; 21 U.S.C.A. § 360 (Registration of producers of drugs or
devices). Accordingly, Appellant’s evidentiary challenge fails.
Finally, Appellant challenges the trial court’s decision to permit the
Commonwealth to introduce documentary evidence of Appellant’s
prescription records from Express Scripts, the pharmacy that provided her
with OxyContin. Appellant’s Brief at 58-59. Our review of the record reveals
that when the Commonwealth introduced the Express Scripts prescriptions
into evidence, Appellant did not object to their introduction. N.T., 9/26/13,
at 140-142. See Commonwealth v. Boyd, 679 A.2d 1284, 1289 (Pa.
Super. 1996) (“In order to preserve for appellate review any claim of error
regarding the admission of evidence, a party must specifically object to the
admission of such evidence at trial. Failure to do so results in a waiver of
that claim of error in the evidence's admission.”). This claim is therefore
waived.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2015
- 15 -
J-A35025-14
- 16 -