Com. v. Davis, S.

J-A31029-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SOPHIA R. DAVIS :
:
Appellant : No. 1273 EDA 2017
Appeal from the Judgment of Sentence March 16, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002825-2016
BEFORE: PANELLA, J., OLSON, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED APRIL 30, 2018
Appellant, Sophia R. Davis, appeals from the judgment of sentence
entered on March 16, 2017 in the Criminal Division of the Court of Common
Pleas of Delaware County following her jury trial convictions for forgery1 and
criminal attempt to acquire a controlled substance by fraud.2 On appeal,
Appellant challenges the sufficiency of the evidence introduced at trial to
establish that she committed the foregoing offenses. After careful review,
we affirm.
At the conclusion of trial on January 20, 2017, a jury found Appellant
guilty of forgery and criminal attempt to acquire or obtain a controlled
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1 18 Pa.C.S.A. § 4101.
2 35 P.S. § 780-113(a)(12), 18 Pa.C.S.A. § 901.
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* Former Justice specially assigned to the Superior Court.
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substance by fraud. Thereafter, on March 16, 2017, the trial court
sentenced Appellant to a term of eight to 36 months’ imprisonment, followed
by three years’ probation, for criminal attempt to acquire or obtain a
controlled substance by fraud. Appellant also received a concurrent term of
three to 12 months’ incarceration for forgery.
Appellant’s convictions and sentence arose from the following incident.
At approximately 2:00 p.m. or 2:30 p.m. on Saturday, April 30, 2016,
Appellant entered a pharmacy located in Upper Darby, Delaware County.
Once inside, Appellant presented a prescription to the pharmacist, Igdaliah
Jackson, seeking 120 pills of (15 mg) Oxycodone. Appellant had not
previously been a customer at the pharmacy. In addition to filling the
prescription for Oxycodone, Appellant asked whether she could transfer
prescriptions for other, non-narcotic medications from a Rite Aid pharmacy
to Mr. Jackson’s pharmacy. Mr. Jackson made a list of the prescriptions that
Appellant sought to transfer and telephoned Rite Aid to discuss the matter.
At trial, Mr. Jackson explained to the jury that, in order for a
prescription for narcotic medication to be valid and legal, the prescribing
physician must include an identifying Drug Enforcement Agency (DEA)
number identifying the doctor who wrote it. When Mr. Jackson examined
the prescription that Appellant provided him, he noticed that it did not have
a doctor’s DEA number on it as required by law. The prescription did,
however, have the name of Dr. Anthony M. Eubanks on it.
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Mr. Jackson called Dr. Eubanks’ office to verify the information on the
prescription. After speaking with Dr. Eubanks, Mr. Jackson came to believe
that the prescription presented by Appellant was fraudulent.3 N.T. Trial,
1/19/17, at 40.
Mr. Jackson then asked Appellant to explain how she obtained the
prescription for Oxycodone tablets. Appellant stated that she received it
from someone who worked at Dr. Eubanks’ office. Before Mr. Jackson could
find out more from Appellant or call Dr. Eubanks’ office again, the police
arrived at Mr. Jackson’s pharmacy.
Officer Francis Devine of the Upper Darby Police Department, a
ten-year veteran, arrived at Mr. Jackson’s pharmacy at about 2:30 p.m.
Officer Devine testified that he responded to a call from an employee at the
pharmacy regarding a woman trying to pass a fraudulent prescription.
Based upon his observation of Appellant’s frantic behavior and mannerisms,
Officer Devine stated that Appellant appeared to be under the influence of
narcotics. Officer Devine described Appellant as rambling, moving all around
the pharmacy, and unable to maintain eye-contact. Appellant told Officer
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3 The trial court sustained defense counsel’s hearsay objection when the
prosecutor asked Mr. Jackson what Dr. Eubanks said when asked whether
Appellant was one of his patients and whether he wrote the challenged
prescription for her. See N.T. Trial, 1/19/17, at 39-40. Defense counsel did
not object when the prosecutor asked Mr. Jackson to state his belief about
the status of the prescription based upon his telephone conversation with Dr.
Eubanks. See id. at 40.
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Devine that she lived in Philadelphia, in the East Fairmont Park section,
about 7 miles away. Appellant also told Officer Devine that she took a bus
or public transportation to get to Mr. Jackson’s pharmacy from Philadelphia.
She also told the officer that she tried to fill the prescription at another
pharmacy before coming to the Upper Darby pharmacy.
Officer Devine also telephoned Dr. Eubanks to verify the prescription
presented by Appellant. During the call, Officer Devine learned that
prescription pads had recently been stolen from the doctor’s office. When
Officer Devine asked Appellant about the prescription, Appellant told him she
was Dr. Eubanks’ patient and that she obtained the prescription from a
nurse who filled it out even though the signature on it was that of Dr.
Eubanks. Over the objection of defense counsel, Officer Devine testified
that, to the best of his knowledge, Appellant had never been Dr. Eubanks’
patient.4 See N.T. Trial, 1/19/17, at 55.
Following the imposition of sentence on March 16, 2017, Appellant
filed a timely notice of appeal on April 12, 2017. Thereafter, pursuant to
order of court, Appellant filed a timely concise statement of errors
complained of on appeal on May 12, 2017. See Pa.R.A.P. 1925(b).
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4 Dr. Eubanks was subpoenaed to testify at trial but he failed to appear for
court despite assuring the prosecutor that he would be there. Appellant did
not testify on her own behalf.
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Appellant’s concise statement preserved the sole issue she raises before this
Court. The trial court issued its Rule 1925(a) opinion on May 25, 2017.
Appellant lists the following issue in her brief:
Whether the evidence is insufficient to establish all the elements
of the crimes of forgery and attempt to acquire or obtain
controlled substances by misrepresentation or fraud beyond a
reasonable doubt where the entire case against [Appellant]
consisted of conclusions based on out-of-court statements by a
necessary third party who never testified.
Appellant’s Brief at 7 (complete capitalization omitted).
We assess Appellant’s sufficiency challenge under a well settled
standard and scope of review.
“Whether sufficient evidence exists to support the verdict is a
question of law; our standard of review is de novo and our scope
of review is plenary.” Commonwealth v. Walls, 144 A.3d 926,
931 (Pa. Super. 2016) (citation omitted). “In assessing
Appellant's sufficiency challenge, we must determine whether,
viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable
inferences therefrom, the trier of fact could have found that the
Commonwealth proved [each] element of the crime beyond a
reasonable doubt.” Commonwealth v. Ansell, 143 A.3d 944,
949 (Pa. Super. 2016) (citation omitted). “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.”
Commonwealth v. Ford, 141 A.3d 547, 552 (Pa. Super. 2016)
(citation omitted).
Commonwealth v. Giron, 155 A.3d 635, 638 (Pa. Super. 2017).
Appellant’s specific claim in this appeal focuses upon the type and
source of evidence introduced by the Commonwealth to establish that
Appellant committed forgery and criminal attempt to acquire a controlled
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substance by fraud. Hence, we shall dispense with citations to the crimes
code and interpretative case law setting forth the elements of Appellant’s
offenses.
Here, Appellant argues that “[t]he key evidence necessary to convict
[her] of [f]orgery and [a]ttempt to [a]cquire a [c]ontrolled [s]ubstance by
[f]raud … revolved around the factual determination as to whose signature
appeared on the prescription that [Appellant] presented to the pharmacist
on April 30, 2016.” Appellant’s Brief at 13. In view of this, “it was
incumbent upon the [Commonwealth] to present the testimony of … the only
person with firsthand knowledge as to the validity of the signature on the
prescription[, Dr. Eubanks.]” Id. Appellant insists that her judgment of
sentence must be vacated because the Commonwealth’s evidence, i.e. the
testimony of Mr. Jackson and Officer Devine, “was not factual in nature but
amounted to nothing more than the conclusions of the main witnesses [who
testified without personal knowledge of Appellant’s alleged criminal
conduct.]” Id. at 10. This claim merits no relief.
Our Supreme Court has observed:
[A] challenge to the admissibility of evidence is separate from a
sufficiency claim. Indeed, it is improper for a court, when
reviewing a sufficiency challenge, to eliminate from its
consideration any evidence which it deems to be inadmissible.
This [C]ourt has stated with great precision that in addressing
sufficiency of the evidence claims,
we are called upon to consider all of the testimony that was
presented to the jury during the trial, without
consideration as to the admissibility of that evidence.
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The question of sufficiency is not assessed upon a
diminished record. Where improperly admitted evidence
has been allowed to be considered by the jury, its
subsequent deletion does not justify a finding of insufficient
evidence. The remedy in such a case is the grant of a new
trial.
Commonwealth v. Sanford, 863 A.2d 428, 431-432 (Pa. 2004) (emphasis
added), citing Commonwealth v. Smith, 568 A.2d 600, 603 (1989).
We are bound, in this case, to consider the testimony of Mr. Jackson
and Officer Devine in reviewing Appellant’s sufficiency challenge. Viewed in
the light most favorable to the Commonwealth, the testimony offered by
these witnesses supported reasonable inferences by the jury that Appellant
was not a patient of Dr. Eubanks and that the prescription she presented
was fraudulent. Whether correctly admitted or not,5 the testimony and
evidence as a whole demonstrated Appellant’s guilt beyond a reasonable
doubt. Accordingly, Appellant’s sufficiency challenge merits no relief.
Judgment of sentence affirmed.
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5 Appellant neither raised nor preserved a challenge to the trial court’s
evidentiary rulings in her concise statement filed pursuant to Pa.R.A.P. 1925
and she did not include such a claim in her brief to this Court. Because we
have not been asked to consider the trial court’s evidentiary determinations,
we cannot grant the remedy of a new trial.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/18
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