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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.


____________________________________
* 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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