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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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). 
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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 
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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). 
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 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 
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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 
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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 
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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 
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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 
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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). 
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“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: 
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(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. 
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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 
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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 gellike 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 
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“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 Governmentindustry agreement and will consist of a nine-character National Drug Code 
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(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 
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