J-S53022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                  Appellee                :
                                          :
            v.                            :
                                          :
VICTOR DELOATCH                           :
                                          :
                  Appellant               :         No. 69 MDA 2015

       Appeal from the Judgment of Sentence of September 9, 2013
               in the Court of Common Pleas of York County,
             Criminal Division, No. CP-67-CR-0000532-2012

BEFORE: DONOHUE, OTT and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                   FILED DECEMBER 30, 2015

      Victor Deloatch (“Deloatch”) appeals from the judgment of sentence

entered following his convictions of criminal conspiracy (forgery) and

criminal attempt (acquisition or obtaining of possession of a controlled

substance by misrepresentation, fraud, forgery, deception or subterfuge).1

We reverse and remand for resentencing.

      The trial court aptly summarized the relevant history underlying the

instant appeal as follows:

            On August 23, 2011, [Deloatch] acted as the getaway
      driver for an accomplice[, Nikia McDonald (“McDonald”),] who
      attempted to pass a false prescription for oxycodone. Officer
      John Hanuska [“Officer Hanuska”] of the West Manchester
      Township Police [D]epartment ultimately filed criminal charges
      against [Deloatch]. A jury trial was held from June 13 to June
      15, 2012. The jury found [Deloatch] guilty of Count 1: Criminal
      Conspiracy to Commit Forgery and Count 2: Criminal Attempt to

1
  See 18 Pa.C.S.A. §§ 903, 4101(a)(2), 901; 35 Pa.C.S.A. § 780-
113(a)(12).
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     Acquire or [Obtain] Possess[ion of] a Controlled Substance by
     Misrepresentation[, Fraud, Forgery, Deception or Subterfuge].
     On September 9, 2013, the [trial c]ourt sentenced [Deloatch]
     [o]n Count 2 [to] 5 to 10 years in the State Correctional
     Institut[ion; and [o]n Count 1 [to] 5 years [of] probation. The
     sentence [o]n Count 1 was to run consecutively to the sentence
     [o]n Count 2.

Trial Court Opinion, 3/10/15, at 1-2 (footnotes omitted).     Deloatch filed

post-sentence Motions, which, after a hearing, the trial court denied.

Deloatch did not immediately file a direct appeal of his judgment of

sentence.   Ultimately, on December 23, 2014, the trial court granted

Deloatch permission to file a direct appeal, nunc pro tunc.   On January 2,

2015, Deloatch filed his nunc pro tunc Notice of Appeal and a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.

     Deloatch now presents the following claims for our review:

     1. Whether the Commonwealth’s evidence at trial was sufficient
        to support the jury’s verdict[,] finding [Deloatch] guilty of
        Criminal Conspiracy to commit Forgery and Criminal Attempt
        to Acquire or Obtain Possession of a Controlled Substance by
        Misrepresentation, Fraud, Forgery, Deception or Subterfuge?
        Specifically, whether the Commonwealth’s evidence at trial
        was sufficient to establish that [Deloatch] acted as an
        accomplice or as a co-conspirator to the principal, without any
        evidence that [Deloatch] entered into a firm agreement with
        the principal to acquire controlled substances with a
        fraudulent script, nor was aware of the principal’s mens rea
        prior to the principal’s attempt to acquire controlled
        substances with a fraudulent script?

     2. Whether the trial court erred in denying [Deloatch’s] Post-
        Sentence Motion challenging the sufficiency of the
        Commonwealth’s evidence to support the jury’s verdict?

     3. Whether the trial court erred in imposing separate sentences
        for the two inchoate offenses, Criminal Conspiracy to [C]omit
        Forgery and Criminal Attempt to Acquire or Obtain Possession
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          of a Controlled Substance by Misrepresentation, Fraud,
          Forgery, Deception or Subterfuge, in violation of Section 906
          of the Crimes Code?

Brief for Appellant at 4.

       Deloatch’s first two claims challenge the sufficiency of the evidence

underlying his convictions. Regarding his forgery conviction, Deloatch claims

that the Commonwealth presented no evidence that he was aware of

McDonald’s criminal intent, or that the two had entered into an agreement to

attempt to “utter a fraudulent script[.]” Id. at 8. Further, Deloatch argues

that

       [n]o evidence was presented that [he had] entered into any
       agreement, express or implied, to drive [] McDonald to the
       Target pharmacy in order to pass a fraudulent script for
       [o]xycodone. No evidence was presented that [Deloatch] was
       even aware of [] McDonald’s plan to use a fake name to pass a
       fake script inside the store.

Id. at 14.     Although police recovered another forged prescription for

oxycodone from Deloatch’s vehicle, Deloatch contends that there was no

testimony regarding the prescription’s precise location in the vehicle. Id. at

12.    Further, Deloatch asserts, the Commonwealth presented no evidence

that he had participated in McDonald’s “charade” at the pharmacy counter or

concealed his identity while he waited in his truck for McDonald.           Id.

According to Deloatch,

       the Commonwealth’s evidence demonstrated that he was only a
       driver. He did not enter the store or otherwise engage with
       anyone inside or outside the Target store.          His name or
       handwriting did not appear on any of the fictitious scripts found,
       somewhere, inside the pickup truck. He did not flee the scene or

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     otherwise attempt to evade the police. When asked, he provided
     a written statement of his account that evening.

Id. at 17-18.

     In reviewing a challenge to the sufficiency of the evidence, we

evaluate the record “in the light most favorable to the verdict winner[,]

giving the prosecution the benefit of all reasonable inferences to be drawn

from the evidence.”   Commonwealth v. Bibbs, 970 A.2d 440, 445 (Pa.

Super. 2009) (citation omitted).

     Evidence will be deemed sufficient to support the verdict when it
     established each element of the crime charged and the
     commission thereof by the accused, beyond a reasonable doubt.
     Nevertheless, the Commonwealth need not establish guilt to a
     mathematical certainty, and may sustain its burden by means of
     wholly circumstantial evidence.[2] Significantly, [we] may not
     substitute [our] judgment for that of the factfinder; if the record
     contains support for the convictions they may not be disturbed.

Id. (citation and quotation marks omitted, footnote added).       “Any doubt

about the defendant’s guilt is to be resolved by the factfinder unless the

evidence is so weak and inconclusive that, as a matter of law, no probability

of fact can be drawn from the combined circumstances.” Commonwealth

v. Scott, 967 A.2d 995, 998 (Pa. Super. 2009).

     “To sustain a criminal conspiracy conviction, the Commonwealth must

establish that a defendant entered into an agreement to commit or aid in an

unlawful act with another person or persons, with a shared criminal intent,

2
  “[C]ircumstantial evidence is reviewed by the same standard as direct
evidence—a decision by the trial court will be affirmed so long as the
combination of the evidence links the accused to the crime beyond a
reasonable doubt.” Commonwealth v. Bricker, 882 A.2d 1008, 1014 (Pa.
Super. 2005) (internal quotation marks and citation omitted).
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and   an    overt   act   was    done    in   the   conspiracy’s   furtherance.”

Commonwealth v. Sanchez, 82 A.3d 943, 973 (Pa. 2013) (citing 18

Pa.C.S.A. § 903, and Commonwealth v. Weimer, 977 A.2d 1103, 1105-06

(Pa. 2009)).

      The overt act need not accomplish the crime—it need only be in
      furtherance thereof. … In most cases of conspiracy, it is difficult
      to prove an explicit or formal agreement; hence, the agreement
      is generally established via circumstantial evidence, such as by
      the relations, conduct, or circumstances of the parties or overt
      acts on the part of co-conspirators.

Sanchez, 82 A.3d at 973 (internal quotation marks and citations omitted).

      Deloatch was convicted of conspiracy to commit the crime of forgery.

A person commits the crime of forgery if,

      (a) … with intent to defraud or injure anyone, or with knowledge
      that he is facilitating a fraud or injury to be perpetrated by
      anyone, the actor:

                                *        *     *

           (2) makes, completes, executes, authenticates, issues or
           transfers any writing so that it purports to be the act of
           another who did not authorize that act, or to have been
           executed at a time or place or in a numbered sequence other
           than was in fact the case, or to be a copy of an original when
           no such original existed[.]

18 Pa.C.S.A. § 4101(a)(2).

      Regarding Deloatch’s criminal attempt conviction, we observe that “[a]

person commits an attempt when, with intent to commit a specific crime, he

does any act which constitutes a substantial step toward the commission of

that crime.” Id. § 901. Deloatch was convicted of an attempted violation of

35 P.S. § 780-113(a)(12), which prohibits “[t]he acquisition or obtaining of
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possession of a controlled substance by … forgery ….”                 35 P.S. § 780-

113(a)(12).

     Finally, we are cognizant that Deloatch was convicted of criminal

attempt in his role as McDonald’s accomplice.                   “An individual is an

accomplice if, with intent to promote or facilitate the commission of the

offense, he solicits, aids, agrees, or attempts to aid another person in

planning or committing the offense.” Commonwealth v. Treiber, 121 A.2d

435, 459 (Pa. 2015) (citing 18 Pa.C.S.A. § 306(c)(1)).

     Our     review   of   the   record,    in   a   light   most   favorable   to   the

Commonwealth as verdict winner, discloses evidence sufficient to sustain

Deloatch’s convictions.     At trial, Deloatch did not dispute that McDonald

presented a forged prescription at Target.            See N.T., 6/15/12, at 93-94

(where, in opening statements, the prosecutor explains the parties’

agreement that the prescription at issue was forged).                Brian Wrightson

(“Wrightson”), a pharmacist at the Target pharmacy in West York,

Pennsylvania, testified that on August 23, 2011, at about 6:30 p.m., he

notified police about a telephone inquiry as to whether the pharmacy had, in

stock, 30 mg. oxycodone tablets.           Id. at 102.       According to Wrightson’s

testimony,

     [a]t a little after 7 [p.m.], a guest reported to the pharmacy with
     a prescription for [o]xycodone from the State of Maryland. The
     guest informed one of my technicians that she was from the
     State of Maryland. When I saw this, red flags kind of went off.
     We’re in York, a prescription is written for an acute pain
     medicine from the State of Maryland, and we’re in York. So[,] I

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J-S53022-15

      informed her that I would have to call and verify that this is real,
      and she said, go ahead, I need it, I’m up visiting.

            So I called the hospital that was on the prescription, and I
      was transferred to the emergency department. The emergency
      department stated that they did not have a patient by the name
      of Keyona Lyde, which was the name on the prescription.[3]

                                *      *      *

            [The guest, McDonald,] was going in and out of the store.
      When I said that I was going to call and verify it, she left the
      pharmacy, at which point, oftentimes with fake scripts[,] they
      leave and don’t come back, but she continued to come back and
      check the progress and status of the prescriptions.

Id. at 102-03, 107 (footnote added).          The record reflects that after

discovering that the prescription was invalid, Wrightson telephoned 911. Id.

at 113. Wrightson explained that, as he described McDonald during the 911

call, McDonald left the store for the final time. Id.

      At trial, Wrightson authenticated a store surveillance video from the

date and time in question.     Id. at 106 (Exhibit No. 2).     The surveillance

video, which depicted the exterior and interior of the Target store, was

played for the jury. Id. Of particular note, the surveillance video depicted

the following events:

      7:09:05 p.m. — McDonald enters the Target store.

      7:25:20 p.m. — McDonald exits Target store.



3
  The parties stipulated that “if Dr. Edana Mann would come in to testify, she
would state that the signature on that prescription was not her signature and
that she had no patient by the name of Keyona Lyde.” N.T., 6/15/12, at
105.

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J-S53022-15

      7:35:05-07 p.m. — McDonald closes the passenger door to
      Deloatch’s vehicle and stands beside the door.

      7:35:07-7:35:15 p.m. — McDonald walks behind Deloatch’s
      vehicle. As she does so, the truck’s backing lights engage. As
      McDonald walks behind the vehicle and toward Target, Deloatch
      backs his vehicle out of the parking space.

      7:35:16-7:36:02 p.m.           — McDonald is visible walking
      across the parking lot toward the Target entrance. As she
      approaches the doors to Target, Deloatch’s vehicle is visible
      driving very slowly in the left (oncoming traffic) lane. (The left
      traffic lane is the lane closest to Target’s entrance doors.) As
      McDonald walks through the first set of entrance doors,
      Deloatch’s vehicle stops for two seconds, then slowly pulls up
      alongside the entrance doors. The brake lights to Deloatch’s
      vehicle remain lit.

      7:36:49 p.m. — The brake lights on Deloatch’s vehicle
      disengage briefly, then re-engage.

      7:38:37 p.m. — McDonald is visible exiting the Target store and
      walking to Deloatch’s truck.

      7:38:41–7:38:48 p.m. — The surveillance video focuses on the
      vehicle’s license plate.

      7:38:48 p.m. — The passenger door to Deloatch’s vehicle closes
      and the truck’s brake lights disengage.

      7:38:49 p.m. — The truck is visible pulling away from the
      Target entrance.

Commonwealth’s Exhibit No. 2.

      Pennsylvania State Trooper Ryan Wildermuth (“Trooper Wildermuth”)

testified that just prior to 8:00 p.m. that same evening, he received a

bulletin describing a vehicle involved in a possible prescription fraud. N.T.,

6/15/12, at 125-26. Trooper Wildermuth stated that the vehicle was a white




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Ford F150 truck, with a registration number of 2A14764.4 Id. at 125. Upon

stopping the vehicle, Trooper Wildermuth took McDonald and Deloatch into

custody, and had the vehicle towed. Id. at 126-28.

     Officer Hanuska testified at trial that, while executing a search warrant

on Deloatch’s truck, he discovered another forged prescription:

            I see a prescription laying there, a prescription paper
     laying there in the truck, and I immediately noticed at the top
     the name was John Doe. I went in and as I started to review it
     further, I realized that this, in my belief, was a prescription that
     was forged in order to practice for doing the real thing at some
     point.

           And then[,] as I flipped it over and began to review it even
     further, I started to recognize not only the prescription that was
     passed to [] Wrightson, but the names and the drugs and the
     quantities and the dosages were all very similar to the …
     fraudulent prescription that was passed at the Target store.

Id. at 141. Officer Hanuska observed that the name of the doctor on the

prescription tendered at Target, Edana Mann, also was handwritten on the

back of the forged prescription found in Deloatch’s truck.        Id. at 142.

Further, the name “Keyona,” which was written on the forged prescription

tendered by McDonald, also was handwritten on the prescription found in the

truck. Id. at 144.

     In addition, Officer Hanuska testified that Deloatch offered two

versions of the incident. Id. at 136. According to Officer Hanuska, Deloatch

first claimed that, at McDonald’s request, he drove McDonald and another



4
  The license plate matches the plate seen on the surveillance DVD. N.T.,
6/15/12, Commonwealth Exhibit No. 2 (7:38:41 – 7:38:41 p.m.).
                                   -9-
J-S53022-15

female to Target. Id. Subsequently, Deloatch admitted to police that there

was no other woman present during the incident. Id. at 138.

      Deloatch testified on his own behalf at trial. Deloatch explained that

after he had completed a moving job in York, McDonald requested a ride

back to Maryland.   Id.at 172-74.   According to Deloatch, McDonald asked

him to stop at “the store” on the way home. Id. at 175. Deloatch indicated

that while McDonald went into Target, he remained in his vehicle so that he

could smoke a cigarette. Id. Deloatch testified that McDonald returned to

Deloatch’s truck, stating that she had to wait for her “stuff.”   Id. at 176.

However, Deloatch explained, McDonald never identified the “stuff” for which

she was waiting. Id.

      Deloatch further testified that when McDonald exited the vehicle, he

drove to Target’s entrance:

      As you all can see, [McDonald is] kind of heavyset, breathing, all
      these things, so she said, can you pull up to the door so I don’t
      have to walk all the way back to the end of the parking lot. So
      she walked up, I parked up, and just waited.

Id.

      This evidence, when viewed in a light most favorable to the

Commonwealth, is sufficient to establish that Deloatch conspired with

McDonald to forge a prescription for a controlled substance. Police found, in

Deloatch’s vehicle, another forged prescription slip, substantially similar to

the one presented by McDonald at Target.            Further, Deloatch drove

McDonald to Target, waited for McDonald in his vehicle while McDonald

                                    - 10 -
J-S53022-15

presented the forged prescription at Target, and placed his vehicle so as to

allow a fast getaway.5 Contrary to Deloatch’s assertions, the circumstantial

evidence demonstrated more than Deloatch’s mere presence at the scene.

      Further, the evidence is sufficient to establish that Deloatch and

McDonald, with shared criminal intent, attempted to obtain or possess

oxycodone by forgery.    Deloatch facilitated the presentation of the forged

prescription by driving McDonald to Target, waiting in his vehicle for

McDonald, and parking so as to allow a fast getaway.       Although Deloatch

offered a different explanation for parking in front of Target, the jury, as

factfinder, was free to believe all, part or none of his testimony.       See

Commonwealth v. Martin, 101 A.3d 706, 718 (Pa. 2014) (stating that the

factfinder is free to believe all, part or none of the testimony presented).

Finally, when questioned, Deloatch initially lied about the presence of a third

person during the incident. See Commonwealth v. Wagaman, 627 A.2d

735, 739 (Pa. Super. 1993) (recognizing that offering a false explanation can

be evidence of guilt).      Because the evidence is sufficient to sustain

Deloatch’s convictions, we cannot grant him relief on his first two claims.

See Sanchez, 82 A.3d at 973; see also Commonwealth v. Bibbs, 970

A.2d 440, 445 (Pa. Super. 2009) (stating that the Commonwealth need not



5
 Further, the jury was able to view surveillance video showing that, despite
Deloatch’s stated concern for McDonald’s physical condition, Deloatch did not
drive McDonald back to the Target store.        Rather, he slowly followed
McDonald to Target’s entrance. N.T., 6/15/12, Commonwealth Exhibit No. 2
(7:35:50- 7:35:58 p.m.).
                                   - 11 -
J-S53022-15

establish guilt to a mathematical certainty, and may sustain its burden by

means of wholly circumstantial evidence).

     In his final claim, Deloatch challenges the legality of his sentences.

Specifically, Deloatch claims that the trial court erred when it “imposed

separate consecutive sentences for two inchoate offenses[,] in violation of

Section 906 of the Pennsylvania Crimes Code.”    Brief for Appellant at 22;

see also Commonwealth v. Ford, 461 A.2d 1281, 1288-89 (Pa. Super.

1983) (recognizing that a claim that a sentence violated section 906 of the

Crimes Code implicates the legality of the sentence).   As Deloatch’s claim

poses a question of law, our scope of review is plenary and our standard of

review is de novo.   Commonwealth v. Wilson, 67 A.3d 736, 741 (Pa.

2013).

     Section 906 of the Crimes Code provides that “[a] person may not be

convicted of more than one of the inchoate crimes of criminal attempt … or

criminal conspiracy for conduct designed to commit or to culminate in

the commission of the same crime.”          18 Pa.C.S.A. § 906 (emphasis

added). As our Supreme Court has recognized, “inchoate crimes merge only

when directed to the commission of the same crime, not merely because

they arise out of the same incident.” Commonwealth v. Jacobs, 39 A.3d

977, 983 (Pa. 2012) (citation omitted).

     Here, the crimes underlying Deloatch’s inchoate convictions are

“forgery” and “the acquisition or obtaining of possession of a controlled

substance by … forgery.” 18 Pa.C.S.A. § 4101; 35 P.S. § 780-113(a)(12)
                                   - 12 -
J-S53022-15

(emphasis added).      As prohibited by 18 Pa.C.S.A. § 906, the conduct

underlying Deloatch’s conviction for criminal conspiracy (forgery) was

designed to commit or to culminate in the commission of the same crime:

“[t]he acquisition or obtaining of possession of a controlled substance by …

forgery[.]”   35 P.S. § 780-113(a)(12) (emphasis added).          As such, we

conclude that the trial court’s imposition of separate sentences for Deloatch’s

convictions of criminal conspiracy and criminal attempt violated section 906

of the Crimes Code, resulting in an illegal sentence. Accordingly, we reverse

Deloatch’s judgment of sentence and remand for resentencing.               See

Commonwealth v. Dobbs, 682 A.2d 388, 392 (Pa. Super. 1996) (noting

that while this Court has the option of amending an illegal sentence directly

or remanding it to the trial court for re-sentencing, “[i]f a correction by this

[C]ourt may upset the sentencing scheme envisioned by the trial court, the

better practice is to remand.”).

      Judgment of sentence reversed; case remanded for resentencing

consistent with this Memorandum; Superior Court jurisdiction relinquished.

      Donohue, J., joins the memorandum.

      Ott, J., files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/30/2015

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