J-S20017-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ELVA MARIE WARNER-CONFER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1052 WDA 2018

Appeal from the Judgment of Sentence Entered July 2, 2018

In the Court of Common Pleas of Clarion County Criminal Division at 

No(s): 

CP-16-CR-0000328-2017

BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED JUNE 19, 2019

Elva Marie Warner-Confer appeals from the judgment of sentence 

entered following her jury-trial conviction for drug delivery resulting in death, 

delivery of a controlled substance, and possession with intent to deliver a 

controlled substance (“PWID”).1 Warner-Confer alleges the trial court abused 

its discretion when it permitted the Commonwealth to ask her on crossexamination whether she was addicted to Fentanyl. Because we agree with 

the trial court that Warner-Confer’s testimony on direct examination opened 

the door to the cross-examination and that the evidence was more probative 

than prejudicial, we conclude the trial court did not abuse its discretion. We 

affirm.

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1 18 Pa.C.S.A. § 2506(A) and 35 P.S. §§ 780-113(A)(30), respectively.
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On April 2, 2016, Donald Brown died of Fentanyl toxicity. N.T., 6/12/18, 

at 3, 50. Prior to his death, Warner-Confer delivered to Brown Fentanyl 

patches.

At trial, Warner-Confer testified in her own defense. She testified 

extensively on direct examination that she used Fentanyl patches to combat 

pain, but obtained them not with a prescription, but from a relative because 

she thought her doctor would not prescribe them. She also said she would put 

whole patches in her mouth and chew on them if she “wanted it,” and would 

sometimes put the patches in pieces and chew on the pieces:

Q. Now, I want to move on to talking about Ms. Best real

quick. We heard testimony from Ms. Best that you had

purchased Fentanyl patches from her?

A. I have.

Q. You admit you have purchased patches from her?

A. Yes.

Q. Her testimony was that you mentioned something about

an accident and pain and something like that; is that an

accurate statement from her?

A. It is.

Q. So you had an accident?

A. I had a bad car accident.

Q. When was that?

A. 2001.

Q. And you’re not a doctor, so I want to ask you just of the

symptoms that you experienced. What were the major

problems as a part of this accident?

A. The ones that I still have?
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Q. Any of them.

A. I broke my neck in three places - the cervical 1, 2 and 3.

Cervical 1 is replaced, so I have horrible pain halfway down 

my shoulder blades.

My shoulder blade on my right side had compound fractures. 

They came through my back causing awful pain.

I have a lot of nerve damage on my left side from that, the

whole way to my foot. Sometimes it’s so bad that it puts me 

down in bed for a day or two, I suppose.

And I had 17 fractures in my spine.

I ripped half of my left side of my face off. I ripped it clean 

down to the eye socket, and I spent 62 weeks that year 

trying to have skin grafts and plastic surgery trying to get it 

fixed to the point where it is now.

The left side of my jaw is still crooked.

Q. So as far as this accident, I mean, this is severe stuff.

Were you - so you said the accident was in 2001?

A. Yes.

Q. By the time all of your medical treatments are done, do

you remember, approximately, when this was?

A. 2006.

Q. So about five years total of on and off treatment?

A. Yes.

Q. During that time - you mentioned some of the pain you're 

dealing with, nerve pain and things like that, and it laid you 

up. Were there any other associated pains that you had as 

a result of that accident?

A. I still get horrible headaches. My neck causes me a lot of

pain, front and back for some reason. My back aches bad in 

the lower lumbar region on and off, not constantly.

Q. What about the other pain?

A. It’s off and on with the nerve damage. But when it comes

back, it’s bad.
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Q. Just for the jury’s purposes, when you say it’s off, does

that mean there’s no pain at all?

A. No. It’s never no pain at all. There’s always an edge.

Q. So can you describe for the jury how exactly did it come

to be that you were purchasing Fentanyl?

A. Aunt Lorraine said that she had gotten Fentanyl when she 

went to the doctor, and she asked me if I wanted one to try 

to see if it helped me. I mowed her yard and I tried it. That’s 

what started it.

Q. Describing this pain, did it work?

A. Yeah. It worked real well.

Q. So we’re talking you went from potentially debilitating

pain to what?

A. Nothing.

Q. Like walking just fine? No issues? No headaches?

A. Nothing.

Q. Had you - the obvious question is, had you ever thought

about going to a doctor to see about asking for better

medication?

A. I had.

Q. Well, so you were taking other medication?

A. I was.

Q. And how was it in dealing your pain?

A. Sometimes it would take the edge off, at least, but it 

never worked like I thought they should; especially, the

headaches. I tried so many different muscle relaxers.

Doctor Zlotnicki, he sent me to different specialists to have 

it checked and different medications to be administered. 

Nothing worked. I got sick with half of them. Rashes. I had 

a horrible reaction to medications.

Q. Well, I mean, did you try to ask for something stronger,

for Fentanyl?
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A. No.

Q. Why not?

A. I just didn’t think he would give it to me. I figured the

doctor - Dr. Zlotnicki is my doctor. I figured if I asked him 

for Fentanyl - I wasn’t missing an appendage and I didn't 

have anything terminal, I just figured he would tell me no. 

And I figured I wouldn’t even ask. He’s been my doctor the 

entire time. He flew to Pittsburgh when I broke my neck.

Q. So you’ve been in his care for a number of years now?

A. Twenty-four, 25 years.

Q. Now, we heard testimony today that you would – that

the practice, I guess, was sometimes you would either cut

up the patch, and then the grand jury transcript said that

you would almost do a whole path at once. So I’ll ask you, 

is that accurate?

A. It just depended on how I was feeling or if I was in pain

or what I was trying to do. It just depended on what day or 

how much I had.

Fentanyl is not easy to get. My aunt testified that she got

ten a month. People that get those need them, for the most 

part. They’re not going to sell five or six when they’re 

missing a leg or anything.

Q. But we’re asking about you right now.

A. I could only get one a month or maybe just two -

Q. I just need you to answer the question.

A. Well that’s – I’m explaining.

Q. Okay. But my question was: Is it accurate that you would 

sometimes cut up the patches or take a whole one from time 

to time?

A. I would take a whole one from time to time. But if I didn’t 

have many, I would cut them up. Does that make sense?

Q. Yeah. So I guess the question that the jury is probably

thinking, I think it’s a fair question, why would you put them 

in your mouth?
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A. Because I get a rash, horrible rash. Like if I take the sticky

off and stick it on my skin, I get a horrible rash. And if you 

stick them in your mouth and chew them, they bust open 

quicker.

Q. You couldn’t deal with the rash?

A. No.

Q. What would you do?

A. I cut them. With the patches?

Q. What would you do if you started getting a rash?

A. Take it off.

Q. And then you just -

A. Peel the back off of it. If it was a big patch I would stick

the whole patch in my mouth if I wanted it. If I didn’t want 

it, I would peel the back off of it and cut it and stick it in my 

mouth and chew it.

N.T., 6/14/18, at 120-125.

On cross-examination of Warner-Confer, the prosecutor asked if she 

was addicted to Fentanyl:

Q. So, first of all, Miss [Warner-]Confer, you’re not a doctor, 

correct?

A. No, sir, I am not.

Q. Okay. You are not a pharmacist?

A. No, sir.

Q. You have no license to dispense controlled substances; is

that correct?

A. No, sir.

Q. Now would it be fair to say that during the time period

we’re talking about, to the death of Mr. Brown on April 2nd

and the weeks leading up to that, you were addicted to

Fentanyl, were you not?
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Id. at 142. Defense counsel objected, and, at a side-bar, stated the 

questioning was “prejudicial” and beyond the scope of Warner-Confer’s 

testimony on direct. The trial court overruled the objection:

MR. SPESSARD: Your Honor, I object to that as being wholly

prejudicial, giving the nature of the work we did with limiting

the Grand Jury transcript. And as far as I’m aware, Miss 

Confer did not testify in a way that would open herself up to 

some sort of impeachment regarding addiction.

MR. AARON: I think it’s a fair question. She stated she’s

seeking Fentanyl, and she’s seeking it for her pain. Then she

bought it from Lorraine Best. And I believe it's a fair 

question, Your Honor, based on the situation.

MR. SPESSARD: She never stated it was only for pain. In 

fact, I believe she equivocated a bit about what she may 

have purchased it for, but never in any way intimated that 

she was addicted. I don't think this is a fair question for 

impeachment purposes.

MS. SHEEHAN-BALCHON: The redaction issue, the reason

we redacted the transcript the way we did was because we

could not predict what she was going to testify, so we 

sanitized it. She’s testifying now.

THE COURT: I appreciate that. I don’t want to be

unreasonable here, but we can’t tag team on this. This is 

Mr. Aaron’s time before the Court. We’re not going to switch 

back and forth here. I think based on her testimony, her 

roundabout testimony, about why she didn’t get a 

prescription for it, I think maybe it is a proper question. I’ll 

allow it. Overruled.

Id. at 142-43. Following the side-bar, Warner-Confer testified that she was, 

in fact, addicted:

Q. Miss Confer, is it not true that during the weeks

immediately leading up to the death of Mr. Brown, which

occurred on April 2nd, that you were a Fentanyl addict?

A. I wasn’t real bad until after.
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Q. Sorry?

A. Honestly, it wasn’t real bad until afterwards.

Q. So it got worse after?

A. Way worse.

Q. Worse after he died?

A. Yes, sir.

Q. But this addiction existed before he died?

A. I suppose you could say that.

Id. at 144.

The jury found Warner-Confer guilty of drug delivery resulting in death, 

delivery of a controlled substance, and PWID. In June 2018, the trial court 

sentenced Warner-Confer to 108 to 216 months’ incarceration for the drug 

delivery resulting in death conviction. The delivery of a controlled substance 

and PWID convictions merged with the drug delivery resulting in death 

conviction for sentencing purposes. Warner-Confer filed a Notice of Appeal.

On appeal, Warner-Confer raises the following issue: “Did the trial court 

err in permitting testimony regarding [Warner-Confer’s] history of abusing 

Fentanyl because such testimony was irrelevant, or if relevant, the probative 

value thereof was outweighed by the risk of undue prejudice?” WarnerConfer’s Br. at 4.

We review a trial court’s ruling as to the admission of evidence for an 

abuse of discretion. Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 

2015); Commonwealth v. Murphy, 182 A.3d 1002, 1004 (Pa.Super. 2018) 

(quoting Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015)). “An 
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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.” Poplawski, 130 A.3d at 716 (quoting 

Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009)).

“[E]vidence of prior bad acts, while generally not admissible to prove 

bad character or criminal propensity, is admissible when proffered for some 

other relevant purpose so long as the probative value outweighs the 

prejudicial effect.” Commonwealth v. Powell, 171 A.3d 294, 299 (Pa.Super. 

2017) (quoting Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017)); 

Pa.R.E. 404(b). Evidence that might otherwise be inadmissible, such as 

evidence of prior bad acts, may be introduced where a defendant “opens the 

door . . . by presenting proof that creates a false impression refuted by the 

otherwise prohibited evidence.” Id. (quoting Commonwealth v. Nypaver, 

69 A.3d 708, 716 (Pa.Super. 2013)); see Pa.R.E. 607(b) (“The credibility of 

a witness may be impeached by any evidence relevant to that issue, except 

as otherwise provided by statute or these rules.”). Further, “trial judges retain 

wide latitude as to the scope of cross-examination and will not be reversed 

absent an abuse of that discretion.” Murphy, 182 A.3d at 1005.

The trial court determined that the Commonwealth could question 

Warner-Confer as to whether she was addicted to Fentanyl to counter her 

testimony on direct examination that she used Fentanyl to address her pain. 

Trial Court Opinion, filed Sept. 26, 2018, at 5. The trial court further found 
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that the probative value of the evidence outweighed its potential for unfair 

prejudice. Id. at 6. The court noted the following:

[Warner-Confer] testified that she did not get the Fentanyl 

through her physician, but illegally from someone who had 

a prescription. She also admitted that she did not use the 

medicine as intended by applying the patch to her back to 

allow the medicine to be time released, but instead tore or 

cut the patches apart and ate the capsules. Given these 

admissions it would not be unusual for the trier of fact to be 

considering that there was a reason other than pain 

prompting the drug use. Given the information that 

[Warner-Confer] had given the jury through her own direct 

testimony it would not be shocking nor surprising to learn 

that she was addicted.

Id.

The trial court did not abuse its discretion in determining that WarnerConfer’s direct testimony, which discussed her use of illegally-obtained 

Fentanyl for pain, opened the door to a question regarding addiction on crossexamination. Further, in light of her testimony on direct examination,

including her testimony that she obtained Fentanyl illegally and that she at 

times used the drug by chewing on the patches, rather than putting them on 

her skin, it was not an abuse of discretion to conclude that the probative value 

of the evidence outweighed any unfair prejudice. 

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/19/2019