Com. v. Rondon Villegas, S. ( 2019 )

J-S43044-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAIBEL RONDON VILLEGAS :
:
Appellant : No. 129 MDA 2019
Appeal from the Judgment of Sentence Entered December 5, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005016-2015
BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 10, 2019
Appellant, Saibel Rondon Villegas, appeals from the judgment of
sentence entered in the Court of Common Pleas of Dauphin County after a
jury found her guilty of criminal conspiracy to commit fraud and acquisition of
a controlled substance. Sentenced to five and one-half to 15 years’
incarceration, Appellant raises alternative challenges to the sufficiency and
weight of the evidence, and she claims the court abused its sentencing
discretion in imposing what she labels a manifestly excessive sentence. We
affirm.
The trial court has aptly summarized the factual history of this case by
describing how Appellant used her position as a medical assistant in a
physician’s office to supply prescription papers to other actors involved in a
fraudulent prescription drug distribution scheme. See generally, Trial Court
Opinion, 5/2/19, at 1-7. As noted, supra, a two-day jury trial resulted in
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S43044-19
guilty verdicts on all counts against Appellant, and, on December 5, 2018, the
court sentenced her to five and one-half to 15 years of imprisonment, plus
fines and costs, with RRRI eligibility commencing at 55 months into her
sentence. Appellant filed a timely post-sentence motion, which the trial court
denied. This timely appeal followed.
On appeal, Appellant raises the following three issues for our
consideration.
1. Whether the evidence presented by the Commonwealth at trial
was insufficient to prove acquisition of a controlled substance
by fraud and conspiracy beyond a reasonable doubt?
2. Whether the trial court abused its discretion when it denied
Appellant’s post sentence motion based on the weight of the
evidence?
3. Whether the trial court abused its discretion when it imposed a
five and a half to fifteen years sentence where Appellant’s
conduct was not so egregious to warrant such a sentence?
Appellant’s brief, at 9.
Initially, we set forth the standard of review applicable to each of
Appellant’s three issues. With respect to Appellant’s sufficiency claim, we
apply the following standard:
A challenge to the sufficiency of the evidence is a question of law,
subject to plenary review. When reviewing a sufficiency of the
evidence claim, the appellate court must review all of the evidence
and all reasonable inferences drawn therefrom in the light most
favorable to the Commonwealth, as the verdict winner. Evidence
will be deemed to support the verdict when it establishes each
element of the crime charged and the commission thereof by the
accused, beyond a reasonable doubt. The Commonwealth need
not preclude every possibility of innocence or establish the
-2-
J-S43044-19
defendant's guilt to a mathematical certainty. Finally, the trier of
fact while passing upon the credibility of witnesses and the weight
of the evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Teems, 74 A.3d 142, 144-45 (Pa.Super. 2013) (citation
omitted).
A person commits the crime of unlawful acquisition of a controlled
substance if she acquires or obtains possession of a controlled substance “by
misrepresentation, fraud, forgery, deception or subterfuge.” 35 P.S. § 780-
113(a)(12). Commonwealth v. Farone, 808 A.2d 580, 581 (Pa.Super.
2002).
Regarding the charge of conspiracy to commit the above crime, the
Commonwealth must prove three elements: “1) an agreement, 2) shared
criminal intent, and 3) an overt act.” Commonwealth v. Johnson, 180 A.3d
474, 479 (Pa.Super. 2018), citing 18 Pa.C.S.A. § 903. Moreover,
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, [she]
is still criminally liable for the actions of his co-conspirators taken
in furtherance of the conspiracy.
-3-
J-S43044-19
Johnson, 180 A.3d at 479 (internal citation omitted).
Appellant’s second and third issues, which challenge the weight of the
evidence and the discretionary aspects of sentencing, respectively, implicate
the court’s exercise of discretion.
We do not review challenges to the weight of the evidence de novo
on appeal. See Commonwealth v. Rivera, 603 Pa. 340, 983
A.2d 1211, 1225 (Pa. 2009). Rather, we only review the trial
court's exercise of its discretionary judgment regarding the weight
of the evidence presented at trial. See id.“[W]e may only reverse the lower court's verdict if it is so
contrary to the evidence as to shock one's sense of justice.”
Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408
(2003) (citations omitted). A verdict is said to be contrary to the
evidence such that it shocks one's sense of justice when “the
figure of Justice totters on her pedestal,” or when “the jury's
verdict, at the time of its rendition, causes the trial judge to lose
his breath, temporarily, and causes him to almost fall from the
bench, then it is truly shocking to the judicial conscience.”
Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa. Super.
2004) (citations omitted).
Commonwealth v. Lineman, --- A.3d----, 2019 PA Super 283 (Pa.Super.
filed Sept. 16, 2019).
Challenges to the discretionary aspects of sentencing are not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136, 1144 (Pa.Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue, we must determine: (1) whether an appellant
has filed a timely notice of appeal; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify sentence; (3)
whether an appellant’s brief sufficiently addresses the challenge in a
-4-
J-S43044-19
statement included pursuant to 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. Commonwealth v. Evans, 901 A.2d 528, 533
(Pa.Super. 2006).
Here, the trial court has authored a cogent and comprehensive opinion
that thoroughly addresses and disposes of Appellant’s claims on appeal.
Specifically, the trial court opines that evidence viewed in a light most
favorable to the Commonwealth as verdict-winner sufficed to convict Appellant
of the crimes charged. We agree.
Uncontested testimony established that Appellant was a medical
assistant and sole employee working in the office of a physician, whose name
and DEA number had appeared on numerous fraudulent prescriptions for
oxycodone. Appellant had access to both the physician’s prescription notepad
and his DEA number, and evidence established that she had verified fraudulent
prescriptions when the pharmacy called for confirmation. Moreover, several
names appearing on the fraudulent prescriptions belonged to Appellant’s
relatives.
A co-conspirator in the scheme testified that she would pay about
$1,000 to Appellant in exchange for a prescription of between 100 and 180
oxycodone pills, which had a street value of $15.00 per pill. Appellant denied
knowing the co-conspirator, but a consent search of her cell phone disclosed
an email containing the co-conspirator’s email address, a notation to her first
name, “Sharde,” and a reference to Appellant’s nickname.
-5-
J-S43044-19
Investigators placed Appellant under arrest, and a warrant search of her
purse—which, she warned police, contained a handgun—revealed sticky notes
with five names and dates of birth matching those appearing on the fraudulent
prescriptions. Additionally, GPS location retrieval from Appellant’s cell phone
showed Appellant’s phone had been at the co-conspirator’s house, and an
extracted email read, in part, “getting my money from Sharde.” Collectively,
this evidence sufficed to prove each element of the Unlawful Acquisition and
Conspiracy charges against Appellant, and for this reason, we reject
Appellant’s sufficiency of the evidence challenge.
With respect to Appellant’s weight of the evidence claim, the trial court
acknowledges evidence that one fraudulent prescription had not been verified
by Appellant and that the co-conspirator and another person involved in the
scheme were printing their own prescriptions at their property. Nevertheless,
the court concluded that such evidence “does not nullify the evidence of
[Appellant’s] involvement and conviction.” TCO, at 8.
We agree, because the jury was free to believe the co-conspirator’s
testimony as the only alleged eyewitness to Appellant’s role in the illegal
scheme, and ample evidence supported her testimony. The court determined
that the verdict did not shock the conscience, and we discern no reason to
disturb this determination.
Finally, the court’s opinion reasonably disposes of Appellant’s claim that
the imposition of a standard-range sentence under the circumstances
constituted a manifestly excessive sentence. We note, initially, that Appellant
-6-
J-S43044-19
properly preserved this issue—that the sentencing court failed to consider
rehabilitative needs and mitigating factors, which called for a lower sentence
than the standard range sentence she received—by preserving the issue in a
Post-Sentence Motion and including a statement pursuant to Pa.R.A.P. 2119(f)
in her brief.
Proceeding to whether this sentencing challenge raises a substantial
question for our review, we observe that this Court makes such a
determination on a case-by-case basis. Commonwealth v. Moury, 992 A.2d
162, 170 (Pa.Super. 2010). “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.” Id. (citation and quotation omitted).
Here, the trial court imposed a standard range sentence, but Appellant
avers that the trial court should have imposed a lesser sentence based on her
lack of a previous criminal history, the non-violent nature of the offenses, her
law-abiding and self-sufficient conduct during her three-year pretrial release
in the community, and the needs of her minor daughter and physically
impaired husband. Appellant’s brief at 22-23.
Claims that the sentencing court did not adequately consider mitigating
factors generally do not raise a substantial question. Commonwealth v.
Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013). A specific claim that the court
refused to weigh mitigating factors as an appellant wished, absent more, does
-7-
J-S43044-19
not raise a substantial question. Moury, 992 A.2d at 175; Commonwealth
v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (“[W]e have held that a claim
that a court did not weigh the factors as an appellant wishes does not raise a
substantial question”).
Assuming, arguendo, that Appellant’s claim presents a substantial
question warranting merits review, we turn to the trial court’s explanation of
its sentence, in which it notes that it considered the pre-sentence investigation
report and was aware of “all aspects of [Appellant’s] background.” TCO, at
13. The court fairly emphasized, however, that Appellant was a central figure
in a “major criminal enterprise that put 15,000 pills on the street[,]”
contributing to a process that “create[s] violent and dangerous and
destructive aspects throughout our society.” TCO, at 12, 13. The court further
considered the effect Appellant’s crime had on the physician’s position of trust
in society and the extended length of time the criminal enterprise lasted. For
these reasons, it deemed a standard range sentence appropriate, and we
discern nothing in either the record or Appellant’s argument to warrant
disrupting the sentence imposed.
Therefore, following our careful review of the record, party briefs, and
relevant law, we perceive no merit to Appellant’s appeal. The opinion of the
Honorable Scott Arthur Evans is consistent with our view in this regard, such
that we may adopt it as our own for purposes of accomplishing appellate
review. Accordingly, we affirm on the basis of the rationale stated therein.
Judgment of sentence affirmed.
-8-
J-S43044-19
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2019
-9-
\ .... , Circulated 09/20/2019 12:10 PM
I 3
- '
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
DAUPHINCOUNTY, PENNSYLVANIA
,.
vs. NO. 5016-CR-2015
11
SAIBEL RONDON VILLEGAS
MEMORANDUM.OPINION
Defendant Saibel Rondon Villegas has appealed from a judgment of sentence following a
conviction of criminal conspiracy to commit fraud and acquisition of:a controlled substance.
Defendant was found guilty after ajury trial on September26, 2018, and was sentenced on
December 5, 2018 to five and one-half(5 Yz) to fifteen(l5) years of imprisonment. The
following issues have been raised in Defendant's statement of errors complained of on appeal:
1. The evidence presented by the Commonwealth at trial was not sufficient to
prove the substantive offense and the conspiracy to acquisition of a controlled
substance by fraud.
2. The trial court erred when denying Defendant's motion for a new trial based
on the weight of the evidence.
3. The sentence imposed by the trial court is unreasonable and excessive under
the circumstances in this matter.
The following evidence was adduced at trial. Subha Iyer testified for the
./
Commonwealth. Mrs. Iyer is an immigration attorney, is married to Dr. Viswanathan Iyer, and
works as a part-time office manager in her husband's medical practice. She identified Defendant
as a former employee/medical assistant in Dr. Iyer's medical office, stating that Defendant
worked there from approximately June of2013 to the first week in April, 2015. [Jury Trial,
September 25, 2018, Vol. I, pp. 5-7]. According to Mrs. Iyer, as a medical assistant, Defendant
worked Monday through Friday, and her duties included calling patients for appointments,
I -:»
�SCANNED
-- jf-13
checking them in, and ordering lab work. At the end of March, 2015, Mrs. Iyer was filling in for
Defendant and received a telephone call from a pharmacist at Rite Aid, wanting to verify that Dr.
Iyer had ordered a prescription of oxycodone. She believes she was given the last name "Colon"
and Mrs. Iyer determined it was someone who was not in Dr. Iyer's medical records, either as a
regular patient or one Dr. Iyer had seen in the hospital. She called the pharmacy back to let them
know the prescription had not come from Dr. lyer's office and asked them to not give any
medications to that patient. Mrs. Iyer also testified that Dr. Iyer kept his prescription notepads in
his office, usually with one in his pocket and the rest in a safe place. [N.T., 9-25-18, Vol. I, pp.
8-10].
Dr. Iyer also testified. He is a kidney doctor, specializing in hypertension internal
medicine and has been in the medical field for over twenty years. Dr. Iyer's practice is located in
1
a medical office building behind Holy Spirit Hospital in Camp Hill, Pennsylvania. Dr. Iyer
testified that in June of 2014, Defendant Villegas was his only employee, also noting that his
wife helped out occasionally. Dr. Iyer confirmed that he prescribes drugs, butprescribes
oxycodone "very rarely." He attested that he is not a primary care physician for most patients
but, rather, a consultant. Thus, generally he does not have to prescribe pain medications to
patients. [N .T., 9-25-18, Vol. I, pp. 14-18]. Dr. Iyer indicated that prescription medications
must be handwritten on prescription slips, which come from an outside company who prints and
sends them to the office. He stated that he keeps his prescription pad in his pocket most of the
time, but also on his table or inside of a drawer. Dr. Iyer also testified that he is at the hospital
nearly every day, so there is a lot of back-and-forth. [N.T., 9-25-18, Vol. I, pp. 19-20].
At trial, Dr. Iyer was presented with prescription images for any oxycodone product
written by DEA number FI0288452 during the time frame from January 1, 2013 through January
2
i.
1, 2016. Referring to Commonwealth's Exhibit 2, Dr. Iyer testified that all prescriptions
reflected in such exhibit were prescriptions written by him; it was his handwriting and he
recognized the patients' names. In contrast, referring to Commonwealth's Exhibit 3, Dr. Iyer
testified that those prescriptions were not written by him; the handwriting was not his, the patient
names were not known to him, and the "style" of the prescriptions were completely different.
[N.T., 9-25-18, Vol. I, pp. 20-23]. Dr. Iyer also testified that he does not include his DEA
number when he is writing a prescription because the pharmacies that he uses already have his
DEA number on file and know who he is. In Commonwealth's.Exhibit 3, Dr. Iyernoted that
nearly all of the prescriptions included his DEA number. He acknowledged that it was very
likely that Defendant had' access to his DEA number in the course of her employment. Dr. Iyer
also observed that the Exhibit 3 prescription paper looked a bit different both in size and in font
than the ones he uses, and the telephone number provided was not his office phone number.
Finally, Dr. Iyer explained that he doesn't generally prescribe straight oxycodone. Rather, as
reflected by the prescriptions actually written by him, a combination of two pain pills is given.
For example, oxycodone acetaminophen (also known as Percocet) or oxycodone hydrochloride.
[N.T., 9-25-18, Vol. I, pp. 23-29].
Shartle Chenault, who was charged as a co-conspirator in this case, also testified on
behalf of the Commonwealth. Ms. Chenault attested that while she was hoping to receive some
sort of credit or consideration for her testimony, the prosecut�on made no promises, negotiation,
or plea deal with her. [N .T., 9-25-18, Vol, I, p. 39]. Ms.' Chenault explained that she knew
Defendant by the name "Choo-choo," and they met through a mutual friend. Ms. Chenault was
referred to Defendant and put in contact with her to obtain prescriptions for oxycodone. Ms.
Chenault communicated with Defendant starting in 2014 via telephone calls or text messages.
3
:.. � '
. . ...
1.., ••
Ms. Chenault would meet Defendant and would pay her for a prescription paper. The meeting
places varied- Ms. Chenault's house on Boas Street in Harrisburg or the parking lot at Dr. Iyer's
medical office. At times Ms. Chenault would take the prescription papers out of Defendant's car
and paid her later. Ms. Chenault testified that she would pay around $1,000 for a prescription,
depending on the quantity and strength of the oxycodone. She also attested that Defendant
would write the names and fill out the prescriptions, but Ms. Chenault did that herself sometimes
as well. When asked if she recognized of the names written on the prescriptions in
Commonwealth's Exhibit 3, Ms. Chenault admitted to recognizing some, and specified that
Isabel Colon was one of Defendant's family members. Ms. Chenault also knew Krystal Lopez.
After Ms. Chenault received the prescription from Defendant, she would give it to Ms. Lopez to
get it filled at Rite Aid. After Ms. Lopez would get the prescriptions filled, she would bring
them to Ms. Chenault, who would sell each pill for $15.00. Each prescription was made out for
between 100 and 180 pills. [N.T., 9-25-18, Vol. I, pp. 40-49].
When Ms. Chenault was asked about Dr. Iyer's testimony regarding the discrepancy in
some of the printed prescription papers, she stated that she thought that might be true but was not
sure. She also admitted that the police found a printer and blank prescription paper at her home,
and claimed that Ms. Lopez was the one who was printing the prescriptions. Ms. Chenault was
'
"not sure" when asked why she or Ms. Lopez started printing the prescriptions rather than getting
the prescription papers from Defendant. [N .T., 9-25-18, Vol. I,. p, 50].
Aaron Osman, a patrol sergeant with the Susquehanna Township Police Department also
testified on behalf of the Commonwealth. Sergeant Osman was assigned to this case after a
pharmacist at Rite Aid contacted the police department. Specifically, Rite Aid had received a
couple of fraudulent prescriptions which were confirmed with phone calls to Dr. lyer's office. In
4
order to make an arrest, Rite Aid flagged two prescriptions as fake/fraudulent. They were
dropped off by a female at a Rite Aid pharmacy at 3601 Walnut Street. One was in the name of
Isabel Colon with a notation on it in the upper left-hand comer that read, "per Saibel, not a
patient of Dr. Iyer." When she called to ask what time the prescription would be ready, the
pharmacist gave her a time and Sergeant Osman waited at the store for her to pick it up. Sergeant
Osman waited for hours and the woman, later identified as Krystal Lopez, came in as he was
leaving, so Detective Torasi was the one to physically take her into custody. [N.T., 9-26-18,
Vol. II, pp. 118-124]. Through the course of the investigation, Sergeant Osman learned that Ms.
Lopez was working for Shartle Chenault. Sergeant Osman got a search warrant.for Ms.
Chenault's home and arrested her. He confirmed that a printer was found in her home with
prescription sheets, prescription bottles with the labels removed, and Rite Aid bottles. [N .T., 9-
26-18, Vol. II, p. 125].
Sergeant Osman testified that he interviewed Defendant separately from Dr. Iyer and his
wife. The first thing Defendant told the sergeant was that she 'had received a phone call from
Rite Aid and told the pharmacist that the patient in question, Isabel Colon, was not one of Dr.
Iyer's patients. She told Sergeant Osman that Ms. Colon was a relative of hers, and that she had
no idea how she got a hold of the prescription. Sergeant Osman also testified that Dr. and Mrs.
Iyer spoke very highly of Defendant and did not believe shecould be involved. [N.T., 9-26-18,
Vol. II, p. 127-28]. When he returned to the police station, Sergeant Osman received a message
from Ms. Chenault's mother asking that he visit her in prison, which he did the following day.
Sergeant Osman read Ms. Chenault her Miranda rights; he knew she was represented by counsel
at that point. Ms. Chenault proceeded to talk to Sergeant Osman, and told him that she
purchased the prescriptions in question from a girl she knew as "Chewy," who was a receptionist
5
at a doctor's office. The physical description given by Ms. Chenault matched Sergeant Osman's
recollection of Defendant's appearance. Ms. Chenault proceeded to reveal places where she met
Chewy and was also able to recite Chewy's phone number, which was the same number that
Defendant gave Sergeant Osman as her own. [N.T., 9-26-18, Vol. II, pp. 129-133].
Sergeant Osman contacted Defendant and asked to question her again. She was given
Miranda warnings and was interviewed at the police station. Defendant denied knowing Ms.
Chenault and other names on the list that were tied to fraudulent prescriptions. She admitted to
knowing two of the people, both of which were her relatives, and denied having any involvement
in the fraudulent prescription scheme. Sergeant Osman asked if Defendant would mind looking
through her iPhone, and said absolutely. Sergeant Osman did some quick searches and came
across an email address with the name "Shartle" in it. Defendant said she had no idea where that
email came from. In the text of the email was the word "Choo-choo," which the sergeant
recognized as referring to "Chewy." Sergeant Osman also found a text message string with one
of the people named in the fraudulent prescriptions. At this point in the interview, Defendant
decided she did not wish to speak to the sergeant any longer; Sergeant Osman placed her under
arrest and told her she was not free to go. [N.T., 9-26-18, Vol. II, pp. 134-139]. Defendant
requested items from her car, and told the sergeant that she needed items from her purse.
Sergeant Osman told her he was happy to retrieve those items, and Defendant told him she had a
firearm in her purse. Sergeant Osman explained that the purse would be logged into evidence
and he had to do an inventory search, as he could not leave the gun and purse sitting in the
parking lot. There were many receipts and yellow adhesive notes in Defendant's wallet.
Sergeant Osman obtained a search warrant for the purse and retrieved several items. At trial,
Sergeant Osman explained the evidence from Defendant's wallet. [N.T., 9-26-18, Vol. II, pp.
6
140-41]. On the sticky notes there were five people listed, along with their dates of birth: Holly
Heefner, Dwayne Carter, Tanya Lowery, Margaret Anderson, and Isabel Cohen. Sergeant
Osman attested that these names and dates of birth matched a list of the fraudulent prescriptions
issued. Additionally, the extraction report of Defendant's phone from the Attorney General's
office revealed Defendant's past GPS locations, including a depiction of Ms. Chenault's home.
There was also an email found that read, "getting my money from Shartle." [N.T., 9-26-18, Vol.
II, pp. 141-46].
In reviewing a sufficiency claim, we consider the entirety of the evidence
introduced. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en
bane). We view that evidence in a light most favorable to the Commonwealth,
drawing all reasonable inferences in favor of the Commonwealth. Id. The
evidence "need not preclude every possibility of innocence and the fact-finder is
free to believe all, part, or none of the evidence presented." Id. Only where "the
evidence is so weak and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances[,]" is a defendant entitled to
relief. Id. We do not "re-weigh the' evidence and substitute our judgment for that
of the fact-finder." Id. As the question of the sufficiency of the evidence is one of
law, we consider the evidence de novo. Commonwealth v. Sanchez, 614 Pa. 1, 36
A.3d 24, 37 (2011).
Commonwealth v. Ford, 141 A.3d 547, 552-53 (Pa. Super. 2016). With sufficiency of evidence
. .
issues, it is well-settled that the Commonwealth's burden may be sustained by means of wholly
circumstantial evidence. Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007). Only
when the evidence offered to support the. verdict is in contradiction to the physical facts, or
incontravention to human experience and the laws of nature, can the evidence be considered
insufficient as a matter of law. Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745 (2000).
A person commits the crime of unlawful acquisition of a controlled substance if he or
she acquires or obtains possession of a controlled substance "by misrepresentation, fraud,
forgery, deception or subterfuge." 35 P.S. § 780-113(a)(l2). Defendant asserts that the evidence
7
presented at trial implicated Sharde Chenault and Krystal Lopez, but was not sufficient to
convict Defendant of the crimes charged. We disagree. A totality of the evidence, viewed in the
light most favorable to the Commonwealth, supports the jury's verdict that Defendant obtained
possession of the oxycodone by means of fraudulent prescriptions given by Defendant to Ms.
Chenault, and subsequently filled by Ms. Lopez.
Defendant was working for Dr. Iyer as his sole employee during the time the fraudulent
prescriptions were being issued by his medical practice. The fraudulent prescriptions often
included his DEA number, to which Defendant very likely had access during her employment,
along with the doctor's prescription pads. There was evidence that Defendant paid Ms. Chenault
for prescription papers for approximately $1,000 per prescription, and wrote out the names and
quantity of oxycodone on such prescriptions, including at least one of Defendant's family
members. While Defendant denied knowing Ms. Chenault, an email referring to her was found
in Defendant's phone, and notes in Defendant's purse reflected the names and birthdates of thbse
matched with fraudulent prescriptions for oxycodone. Moreover, an examination of Defendant's
past GPS locations included Ms. Chenault's home. While there was also testimony presented
that Defendant did not verify one of the fraudulent prescriptions in the course of her
employment, along with evidence that Ms. Chenault and Ms. Lopez may have also been printing
their own prescriptions, such evidence does not nullify the evidence of Defendant's involvement
and conviction. The fact-finder was free to believe all, part, or none of the evidence presented,
and, considering the foregoing, this is not a case where the evidence is too weak or inconclusive
to support the outcome. To the contrary, the Commonwealth clearly proved the elements of
unlawful acquisition of a controlled substance. Ford, supra; Widmer, supra.8
For the same reasons, the evidence was clearly sufficient to support Defendant's
conviction for conspiracy to commit unlawful acquisition of a controlled substance. With
respect to the crime of criminal conspiracy, the Commonwealth must prove that the defendant
(l) entered into an agreement to commit or aid in an unlawful act Vv'.ith another person or persons,
(2) with a shared criminal intent and (3) an overt act was done b� the appellant or one or more of
the other co-conspirators in furtherance of the
I
agreed upon crime.
.
Commonwealth v. McCall,
911 A.2d 992 (Pa. Super. 2006). A conspiracy can be proven by the relation, conduct or
circumstances surrounding the parties and the incidents involved. Commonwealth v. Glover, 582
A.2d 1111 (Pa. Super. 1990). It is not necessary to prove a formal agreement or contract; it can
be proven by circumstantial evidence. Commonwealth v. Roux, 645 Pa: 482, 350 A.2d 867(1976). See Commonwealth v. Murphy, 795 A.2d 1025 (Pa. Super. 2002) (the fact that evidence
establishing a defendant's participation in acrime is circumstantial does not preclude a
conviction where the evidence coupled with reasonable inferences drawn therefrom overcomes
the presumption of innocence).
The trial testimony revealed that Defendant and her co-conspirator Ms. Chenault met
through a mutual friend and they began communications via phone calls and texts forthe
purpose of obtaining fraudulent prescriptions for oxycodone. They met at Ms. Chenault's home
and in the parking lot of Dr. Iyer's office, where Ms. Chenault would sometimes take
prescription papers from Defendant's car, provided by Defendant, in exchange for payment.
Items retrieved from Defendant's phone included an email indicating that she was "getting
money from Sharde," along with evidence placing her a the location of Ms. Chenault's home.
The circumstances surrounding the conduct of Defendant and Ms. Chenault undoubtedly support
'
a finding that they agreed to commit fraud with a shared criminal intent, complete with the overt
9
acts of falsifying prescriptions for oxycodone and exchanging such prescriptions for money.
Johnson, supra; Glover, supra. The circumstantial evidence, coupled with all reasonable
inferences drawn therefrom, supports Defendant's conviction for conspiracy to commit
acquisition of a controlled substance by fraud. Murphy, supra.Defendant next asserts that this Court erred in denying her motion for a new trial based
on a weight of the evidence claim. With respect to a weight of the evidence claim, the following
standard of review has been set forth by our appellate courts:
Our standard of review for a challenge to the weight of the
evidence is well-settled: The finder of fact is the exclusive judge of
the weight of the evidence as the fact finder is free to believe all,
part, or none of the evidence presented and determines the
credibility of the witnesses. See Commonwealth v. Champney, 574
Pa. 435, 444, 832 A.2d 403, 408 (2003), cert. denied, 542 U.S.
939, 124 S. Ct. 2906, 159 L. Ed. 2d 816 (2004). As an appellate
court, we cannot substitute our judgment for that .of the finder of
fact. See id. Therefore, we will reverse a jury's verdict and grant a
new trial only where the verdict is so contrary to the evidence as to
shock one's sense of justice. See Commonwealth v. Passmore, 857
A.2d 697, 708 (Pa. Super. 2004), appeal denied, 582 Pa. 673, 868
A.2d 1199 (2005). Our appellate courts have repeatedly
emphasized that 11[0Jne of the least assailable reasons for granting
or denying a new trial is the lower court's conviction that the
verdict was or was not against the weight of the evidence. 11
Commonwealth v. Forbes, 867 A.2d 1268, 1273 (Pa. Super. 2005)
(internal quotes omitted).
Furthermore, where the trial court has ruled on the weight claim
below, an appellate court's role is not to consider the underlying
question. of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Champney, 574 Pa. at 444, 832 A.2d at 408 (citation omitted).
Commonwealth v. Rabold, 920 A.2d 857, 860-861 (Pa. Super. 2007).
Defendant asserts that the only evidence implicating her in the crimes was the testimony
of Ms. Chenault, who was expecting consideration from the Commonwealth based on her
10
cooperation. As set forth above, the record reflects that while Ms. Chenault was hoping for
credit or consideration for her testimony, the prosecution made no promises or deals with her.
Moreover, the jury clearly found Ms. Chenault's testimony credible and was free to believe all of
it. Additionally, the record belies Defendant's claim that Ms. Chenault was the only witness to
implicate her in the crimes charged. There is nothing about the verdict that is so contrary to the
evidence as to shock one's sense of justice and, therefore, no error. Rabold, supra.Finally, Defendant challenges her sentence as unreasonable and excessive. 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. Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa. Super. 2014).
[ A]n abuse of discretion is more than a mere error of judgment, thus, a
sentencing court will not have abused its discretion unless the record discloses
that the judgment exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. In more expansive terms, .... An abuse of
discretion may not be found merely because an appellate court might have
reached a different conclusion, but requires a result of manifest unreasonableness,
or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing court is in the best
position to determine the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it. Simply stated, the sentencing
court sentences flesh-and-blood defendants and the nuances of sentencing
decisions are difficult to gauge from the cold transcript used upon appellate
review. Moreover, the sentencing court enjoys an institutional advantage to
appellate review, bringing to its decisions an expertise, experience, and judgment
that should not be lightly disturbed. Even with the advent of the sentencing
guidelines, the power of sentencing is a function to be performed by the
sentencing court. Thus, rather than cabin the exercise of a sentencing court's
discretion, the guidelines merely inform the sentencing decision.
Commonwealth v. Walls, 592 Pa. 557, 564-70, 926 A.2d 957, 961-65 (2007) (internal quotation
marks, footnotes, and citations omitted). A sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence. Commonwealth v. Crump, 995 A.2d 1280,
11
. ' ' I
1283 (Pa. Super. 2010). Rather, the record as a whole must reflect the sentencing court's
consideration of the facts of the case and the defendant's character. Id. It is presumed that
where a pre-sentence report exists the sentencing court is aware of relevant information
concerning the defendant's character, and considered that information along with mitigating
statutory factors, when imposing its sentence. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d
12 (1988); see also Commonwealth v. Bonner, 135 A.3d 592, 605 (Pa. Super. 2016) (A
presentence investigation report constitutes the record and speaks for itself.).
Here, the Court had the benefit of a pre-sentence report and heard from various family
members at the sentencing hearing. [Sentencing Hearing, December 5, 2018, Notes of
Testimony, pp. 1-18]. The Commonwealth noted that the standard range guidelines were 60 to
78 months, and asked for an aggravated sentence based on all of the factors. The Court was
made aware that Defendant had rejected an .offer of ARD and pointed out that Defendant was the
leader of a major criminal enterprise that put 15,000 pills on the street. [Sentencing Hearing, 12-
5-2-18, N.T. pp. 23-26. This Court stated the following at sentencing:
[O]ne would think that if one truly cared about the special needs of her daughter
you wouldn't have gone in this direction. One would have thought that as she
was finishing up to have a career professionally you wouldn't ... Now I
understand she had a very traumatic experience in her life, much greater than
most folks have, granted. But she also has the wonderful love and support of her
family. And so many other folks who come before me don't have.
She had so many things going for her and then she came into not just a
spontaneous criminal act, one that was a scheme that put thousands of pills out on
the street that create violent and dangerous and destructive aspects throughout our
society. She was one that was activating and allowing that to happen. The loss of
trust from the doctor and· what she put at risk for he and his wife has to be
considered here as well.
I'm shocked at the offer that was made earlier ... .If I knew it I had forgotten
because of the activity of the number of folks that were involved in this process
and the way that she used her position to continue to effectuate the scheme ...
12
.' . .
going on for a lengthy period of time. So although there is a jab of, gee, you
consolidated them to increase the OGS. Well, that's because that's what it was.
Let's be honest about it. That's what it was. This was not some isolated incident
that occurred one or two times.
[Sentencing Hearing, 12-5-18, N.T. pp. 23-24]. The record as a whole reflects the Court's
consideration in imposing a sentence of 5 12 to 15 years of imprisonment. There has been no
abuse of discretion, as there is nothing of record that such sentence is manifestly unreasonable,
or the result of prejudice or ill will. This Court considered the pre-sentence report and made
clear in its remarks that it was aware of all aspects of Defendant's background and gravity of the
offenses. There is no merit to Defendant's sentencing challenge.
BY THE COURT:
Scott Arthur Evans, Judge
DATED: (\Ai'"'(t(.1-t 2-, , "" '\
Distribution: <3,/;2.r9-/ lC/ @...�pm
-,0
Ryan P. Shovlin, Esq., District Attorney's Office
Damian J. Destefano, Esq., 3800 Market St., Ste. 205, Camp Hill, PA 17011
Prothonotary, Superior Court of Pennsylvania m£U.J)
Chambers of Judge Scott Arthur Evans 1:)
13