J-A31029-17

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* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SOPHIA R. DAVIS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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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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,5the 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