J-A18033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NICOLETTA MICHELLE ROBINSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1177 WDA 2021

Appeal from the Judgment of Sentence Entered May 7, 2021

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

No(s): 

CP-43-CR-0001795-2019

BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: December 2, 2022

Nicoletta Michelle Robinson appeals the judgment of sentence entered 

after a jury found her guilty of drug delivery resulting in death (“DDRD”), 

aggravated assault, criminal use of communication facility, simple assault, 

recklessly endangering another person (“REAP”), and possession with intent 

to deliver a controlled substance (“PWID”).

1 We vacate the conviction for 

aggravated assault and affirm the judgment of sentence in all other 

respects. 

On June 16, 2019, the victim searched the internet for a taxi service, 

found Robinson’s service, and contacted her. That day and the following day, 

____________________________________________

1 18 Pa.C.S.A. §§ 2506(a), 2702(a)(1), 7512(a), 2701(a)(1), 2705, and 35 

P.S. § 780-113(a)(30), respectively. 
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June 17, 2019, Robinson drove the victim, who had Crohn’s disease, to 

various locations, including to hospitals in both Pennsylvania and Ohio. The 

two women were in communication via text message during those two days.

The victim lived with her father in Mercer County, Pennsylvania, while 

Robinson was based in Youngstown, Ohio. 

On June 16, the victim and Robinson exchanged the following texts:

2

Victim: thank you so much for everything. I appreciate you 

more than you know

Robinson: No problem, hun. Trust me, the money helped 

me, too. It’s been rough with school. Hopefully you’ll feel

better soon.

Victim: Hoping

Victim: Really, really hoping.

Robinson: FYI my house is only 34 minutes.

Robinson: There’s no way nor. 

Robinson: Not

Victim: Should I wait to take the other? Only think I’m 

scared of is I actually have a blockage.

Robinson: It should still help, though. If it’s not you might 

have blockage [because] you should vm [sic] feel better.

Victim: Maybe I should have went in ugh this pain is 

agony. 

Victim: It’s like a stabbing pain that just won’t go away.

Robinson: Did it ease up at all?

____________________________________________

2 The Commonwealth presented the text messages as exhibits. Those 

exhibits are not part of the record. However, portions of the text messages 

were put into the record through the testimony of Trooper Joseph Morris. 
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Victim: I couldn’t ask you to come back. I have no cash lol. 

I have money in the bank but couldn’t get it till tomorrow. 

I left my debit card in Cleveland. 

See N.T., 3/10/21 (Morning Session), at 40-43.

That same day, June 16, the victim searched the internet for “side 

effects and long-term effects of methadone,” “is methadone an opiate,”

“how much methadone is too much,” and “does methadone make you high.”

Id. at 57-58. 

The next day, June 17, the victim texted Robinson, “Do you have 250 

ml of that stuff I can buy?” Id. at 67. Robinson texted back, “yeah.” Id.

According to cell phone records and medical records, the victim was in 

Sharon Regional Medical Center in Mercer County, Pennsylvania, when she 

sent the message. See id. at 50 (victim sent text on June 17, 2019, at 7:37 

p.m.); N.T., 3/10/21 (Afternoon Session), at 61 (victim was admitted to 

Sharon Regional Medical Center on June 17, 2019, at 11:43 a.m.); id. at 64 

(victim left Sharon Regional Medical Center on June 17, 2019, at 8:43 p.m.).

Robinson and the victim then discussed payment and decided that the 

victim would pay Robinson $100 by check. N.T., 3/10/21 (Morning Session), 

at 67. Robinson picked the victim up from the hospital in Sharon and the two 

went to a gas station in Hermitage, Pennsylvania. Id. at 3-16. After they

purchased some items, Robinson drove the victim home to her father’s 

house in Mercer County, Pennsylvania. When they arrived, the victim paid 

Robinson. Id. at 71. Later that night, the victim texted Robinson not to cash 

the check and told her that she would pay her in cash the following day. Id.
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At 72. During that night, the victim ingested the methadone and died. The 

victim’s father, who had been on vacation at the time of her death,

discovered her body in the home six days later. Trooper Joseph Morris 

recovered a vial with pink fluid from the home that the lab determined 

contained methadone, a Schedule II substance. See N.T., Trial, 3/9/21 

(Afternoon Session), at 85, 114-15.

An expert in forensic pathology, Dr. Eric Vey, testified that the victim’s 

cause of death was a lethal dose of methadone. N.T, Trial, 3/10/21 

(Afternoon Session), at 80. He also testified that upon a review of her 

autopsy photographs, certain characteristics of her body were indicative of 

an overdose. Id. at 99. Dr. Vey also testified about the effect of postmortem 

redistribution on the level of methadone found in the decedent’s blood,

which he described as a phenomenon that occurs when time has elapsed 

between the time of death and when the blood of the decedent is tested. 

During this time, “the blood that got deposited into the central tissues and 

organs, the lungs and the liver and the heart, diffuses back out of the 

tissues and into the blood creating an elevated central blood level compared 

to peripheral blood level.” Id. at 95. He said that postmortem redistribution 

had not affected the level of methadone they found. 

The chief deputy coroner in Mercer County, Robert L. Snyder, testified

that the victim had dried secretions in her nose consistent with a drug 

overdose. N.T., 3/9/21 (Afternoon Session), at 14. He testified that with an 

overdose, “the lungs become compromised, they fill with fluid, and then the 
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frothiness comes out of the nasal cavity.” Id. at 15. He also testified that the 

dose of methadone in the victim’s body was in the fatal range. Id. at 30. Dr. 

Snyder ruled that the manner of death was accidental, and the cause of 

death was “respiratory failure due to drug toxicity.” Id. at 31. In layman’s 

terms, he stated that it was a way of saying her cause of death was from a 

drug overdose or a combination of the drugs. Id.

The Commonwealth also presented portions of Robinson’s interview 

with Trooper Morris, after the victim died.

[Commonwealth]: Okay. Now, Ms. Robinson - - we also 

heard her say right about the 20-minute mark, and I might 

be misquoting here, but essentially, so you are saying 

she overdosed and you think I gave it to her. My 

question is up until that point had you ever said the word 

overdose to her?

[Trooper Morris]: No.

[Commonwealth]: Not in the lobby, not on the phone, not 

anywhere?

[Trooper Morris]: No[.]

[Commonwealth]: Up until that point had you ever told her 

how [the victim] died?

[Trooper Morris]: No.

N.T., Trial, 3/10/21 (Afternoon Session), at 32-33 (emphasis added).

Following a four-day trial, the jury found Robinson guilty. The court 

sentenced Robinson for the DDRD and criminal use of a communication 

facility convictions to an aggregate term of nine years and three months to 

27 years of imprisonment. The court determined that aggravated assault, 
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PWID, REAP, and simple assault merged for sentencing purposes. Robinson 

filed a post-sentence motion which the trial court denied.3 This timely appeal 

followed. 

Robinson raises the following issues: 

I. Was the evidence at trial insufficient to support 

Robinson’s conviction for drug delivery resulting in 

death because:

a. It was insufficient to support a finding that the 

alleged drug delivery occurred within the 

Commonwealth of Pennsylvania; and/or

b. It was insufficient to support a finding that 

Robinson was reckless as to the allegedly 

delivered drug, methadone, causing the 

decedent’s death; and/or

c. It was insufficient to supporting a finding that the 

allegedly delivered drug actually caused the 

decedent’s death because the Commonwealth’s 

expert testimony concluding as much was 

predicated on a basic statistical error ruling out an 

exculpatory phenomenon by resort to the average 

effect of that phenomenon rather than the range 

of effects of that phenomenon? 

II. Was the evidence at trial insufficient to support 

Robinson’s conviction for aggravated assault 

because:

a. It was insufficient to support a finding that 

Robinson was malicious as to the allegedly 

delivered drug, methadone, causing the 

decedent’s death; and/or not true

____________________________________________

3 The court sentenced Robinson on May 10, 2021. On May 17, the court 

granted Robinson’s motion for an extension to file her post-sentence motion. 

Robinson filed her post-sentence motion on May 25, within the allotted time 

ordered by the court. Thus, this appeal is timely. 
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b. It was insufficient to support a finding that she 

engaged in any assault? 

III. Was the evidence at trial insufficient to support 

Robinson’s conviction for simple assault because it 

was insufficient to support a finding that she 

engaged in any assault?

IV. Was the evidence at trial insufficient to support 

Robinson’s conviction for recklessly endangering 

another person because it was insufficient to support 

a finding that she engaged in contact or created a 

risk of [contact] causing harm?

V. Was the evidence at trial insufficient to support 

Robinson’s conviction for delivery of a controlled 

substance because it was insufficient to support a 

finding that she delivered a controlled substance 

within the Commonwealth of Pennsylvania? 

VI. In light of the foregoing, was the evidence at trial 

insufficient to support Robinson’s conviction for 

criminal use of a communication facility because it 

was qualitatively or quantitatively insufficient to 

support a finding that she used communications 

facility to commit the predicate violation of the Drug 

Act? 

Robinson’s Br. at 4-5 (suggested answers omitted).

Robinson challenges the sufficiency of the evidence for each of her 

convictions. When reviewing a challenge to the sufficiency of the evidence, 

we determine “whether viewing all the evidence admitted at trial in the light 

most favorable to the verdict winner, there is sufficient evidence to enable 

the fact-finder to find every element of the crime beyond a reasonable 

doubt.” Commonwealth v. Storey, 167 A.3d 750, 757 (Pa.Super. 2017)

(citation omitted). We review the entire record and the evidence. See id. We 

do not “weigh the evidence and substitute our judgment for the fact-finder.” 
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Id. (citation omitted). Furthermore, “the trier of fact while passing upon the

credibility of witnesses and the weight of the evidence produced, is free to 

believe all, part or none of the evidence.” Id. (citation omitted). 

Drug Delivery Resulting in Death (DDRD)

Robinson claims that the Commonwealth failed to present sufficient 

evidence for the crime of DDRD. She argues that it failed to show that the 

drug delivery occurred in Pennsylvania, that she was reckless in delivering 

methadone to the victim, and that the ingestion of methadone caused the 

victim’s death. Robinson points to an alleged gap in the timeline and claims 

that the evidence suggested that she drove the victim through Ohio to 

return to the victim’s house. She also maintains that the record does not 

support a finding that she delivered the methadone to the victim once they 

arrived at her home in Pennsylvania. According to Robinson, the evidence 

shows “that Robinson had been providing services and goods to [the victim] 

with promises of future payment, and that they had agreed to simply settle 

the proverbial tab at the trailer.” Robinson’s Br. at 21. 

Robinson also challenges the mens rea. She argues that the evidence 

suggested that she was not reckless but rather “believed that providing 

methadone to [the victim would help her[.]]” Id. at 24. She also takes issue 

with the Commonwealth’s evidence of causation because, in her view, Dr. 

Vey erred in his statistical calculation of postmortem redistribution. 

DDRD occurs when someone dies as a result of using a controlled 

substance and the defendant intentionally administered, dispensed, 
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delivered, gave, prescribed, sold, or distributed it in violation of specified 

provisions of the Controlled Substance, Drug, Device and Cosmetic Drug Act

(“Drug Act”). See 18 Pa.C.S.A. § 2506(a). Pursuant to the terms of the Drug 

Act, the delivery must have occurred “within the Commonwealth [of 

Pennsylvania].” 35 P.S. § 780-113(a). 

Thus, to sustain its burden, the Commonwealth must prove that the 

delivery of the drug occurred in Pennsylvania and the use of that drug 

resulted in the death of another. See 18 Pa.C.S.A. § 2506(a); 

Commonwealth v. Peck, 242 A.3d 1274, 1285 (Pa. 2020) (vacating 

judgment of sentence for DDRD where drug delivery occurred in Maryland). 

As for mens rea, the Commonwealth must show that the defendant acted 

intentionally when delivering the drug and that the decedent’s death was a 

result of the defendant’s recklessness. See Commonwealth v. 

Kakhankham, 132 A.3d 986, 992, 995 (Pa.Super. 2015). The crime 

consists of “an intentional act in providing contraband, with a reckless 

disregard of death from the use of the contraband.” Commonwealth v. 

Carr, 227 A.3d 11, 16-17 (Pa.Super. 2020). 

Robinson’s claims lack merit. The evidence was sufficient to prove 

circumstantially that the delivery occurred in Pennsylvania. Robinson and the 

victim discussed via text message the purchase of 250 ml of “stuff” while the 

victim was in the hospital in Sharon. Robinson then picked up the victim 

from the hospital, took her to the gas station in Hermitage, and ultimately to 

her home in Mercer County. The evidence of the trip between points in 
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Pennsylvania was sufficient to prove that the delivery occurred in 

Pennsylvania. Robinson points to an alleged gap in the timeline and local 

geography to argue that the gap is better explained by a route through Ohio, 

rather than only through Pennsylvania. We think the evidence was sufficient 

to raise the reasonable inference that they did not needlessly double-back 

into Ohio, particularly in the absence of any affirmative evidence that the 

trip crossed the border. The Commonwealth has to prove guilt beyond a 

reasonable doubt, not to a mathematical certainty or beyond all possibility of 

innocence.4

Robinson’s claim that the Commonwealth failed to prove recklessness

likewise fails. The Commonwealth presented evidence that Robinson sold the 

victim methadone. Methadone is an opioid “used to help dependent patients 

reduce their craving and symptoms of withdrawal.” See Int. of L.J.B., 199 

A.3d 868, 871 n.3 (Pa. 2018). Robinson sold this opioid to the victim without 

any consideration of the effects that it would have on the victim, including 

whether she could possibly overdose. See id. at 870 n.2 (discussing opioid 

addiction crisis in the United States and noting “[r]ecent statistics place 

Pennsylvania among the states with the highest rates of drug overdose 

____________________________________________

4

In her reply brief, Robinson includes Google maps to support her claim that 

she and the victim could have driven though Ohio. However, these maps 

were not presented to the jury, and the jury was not offered any evidence 

that would suggest Robinson and the victim left the state while traveling to 

the trailer. 
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deaths, with opioid-related overdose deaths occurring at a rate of 18.5 per 

100,000 persons”). The Commonwealth also presented Robinson’s interview 

with Trooper Morris where she stated, “So you’re saying that she overdosed

and you think I gave it to her.” N.T., Trial, 3/10/21 (Afternoon Session), at 

32. Robinson made this statement with no knowledge of the cause of the 

victim’s death, thus exhibiting that she understood the risk of death from the 

ingestion of methadone. See Commonwealth v. Burton, 234 A.3d 824, 

833 (Pa.Super. 2020) (stating the sale of fentanyl establishes the mens rea

for recklessness for drug delivery resulting in death).

As to Robinson’s claim regarding causation, we conclude the 

Commonwealth established causation. Robinson takes issue with Dr. Vey’s

statistical calculations of the postmortem redistribution. She faults him for 

basing his opinion on the average effect of postmortem redistribution, rather 

than on its average effect. This argument does not render the evidence 

insufficient. Her challenge goes to the weight and not the sufficiency of the 

evidence. See Commonwealth v. Meals, 912 A.2d 213, 223–24 (Pa. 

2006).

Aggravated Assault

Robinson maintains that the evidence was insufficient to support the 

conviction of aggravated assault because the Commonwealth did not prove 

that Robinson “assaulted” the victim. She also maintains that the 

Commonwealth failed to show that she acted maliciously, arguing there was 

“no evidence that Robinson knew . . . that[] providing methadone to 
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McConnell was virtually certain to result in her death or serious bodily 

injury.” Robinson’s Br. at 33.

To prove aggravated assault, the Commonwealth was required to 

prove that Robinson attempted “to cause serious bodily injury to [the 

victim], or cause[d] such injury intentionally, knowingly or recklessly under 

circumstances manifesting extreme indifference to the value of human 

life[.]” 18 Pa.C.S.A. § 2702(a)(1).5 The required mens rea for aggravated 

assault is malice, which is defined as “wickedness of disposition, hardness of 

heart, cruelty, recklessness of consequences, and a mind regardless of social 

duty, although a particular person may not be intended to be injured.” 

Commonwealth v. Packer, 168 A.3d 161, 168 (Pa. 2017) (citation 

omitted). The crime of aggravated assault requires a state of mind that is 

“equivalent to that which seeks to cause injury.” Commonwealth v. 

O’Hanlon, 653 A.2d 616, 618 (Pa. 1995).

Here, the Commonwealth suggests that it established the mens rea by 

showing that Robinson “seized upon an opportunity to make money at the 

expense of a person in chronic pain and who was naïve as to the effects of 

methadone.” Commonwealth’s Br. at 30-31. It maintains that Robinson 

____________________________________________

5 Serious bodily injury is defined as “[b]odily injury which creates a 

substantial risk of death or which causes serious, permanent disfigurement, 

or protracted loss or impairment of the function of any bodily member or 

organ.” 18 Pa.C.S.A. § 2301 (“Serious bodily injury”). Bodily injury is 

defined as “[i]mpairment of physical condition or substantial pain.” Id.

(“Bodily injury”).
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“consciously disregarded an unjustifiable and extremely high risk her actions 

of selling a narcotics naïve victim methadone.” Id. at 31. It also suggests 

that Robinson’s malice may be inferred from her statement to police that she 

understood that they were suggesting that the victim overdosed and that 

she had given the victim methadone. It further points out that Robinson “not 

only negotiate[d] the sale of 250 ml of methadone to the victim, but actively 

encouraged the victim to consume the methadone over the victim’s 

concerns,” noting that Robinson encouraged the victim through text 

messages to take the methadone even though the victim was concerned 

about a blockage. Id. at 30. Similarly, the trial court suggests that Robinson 

“knowingly preyed upon a naïve and vulnerable victim” and because of this,

the element of malice was satisfied. Opinion, 9/16/21, at 6. 

The Commonwealth contends that this case is akin to 

Commonwealth v. Busbey, No. 186 MDA 2019, 2020 WL 865044 

(Pa.Super. filed Feb. 21, 2020) (unpublished memorandum).6 There, the 

victim, the defendant, and the defendant’s boyfriend purchased heroin. The 

victim was “narcotics naïve,” as he had not developed a tolerance to heroin. 

Id. at *1. The defendant injected the victim with heroin, while the 

defendant’s boyfriend injected the defendant and himself. Id. The defendant 

watched as the victim started convulsing and his lips turned blue. To 

____________________________________________

6 Non-precedential decisions are not binding, but may be cited as 

“persuasive” authority pursuant to Pa.R.A.P. 126(b)(2).
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“distance herself from the whole issue” and not be involved, the defendant 

left the victim and went home, without calling 911. Id. The Commonwealth 

presented the testimony of three medical witnesses at trial, including an 

expert in forensic toxicology who testified, among other things, that the 

victim “had a long period of survival following the ingestion of the drug.” Id.

at * 2. 

On appeal, this Court concluded the evidence was sufficient to prove 

malice. We pointed out that the defendant knew the victim was narcoticnaïve and the heroin was of good quality and that she watched the victim 

begin to exhibit signs of an overdose, as he began to convulse and his lips 

turned blue. Id. at *5. We pointed out that the defendant and her boyfriend 

discussed calling for medical assistance but did not, choosing instead to 

leave and sell or stash the remainder of the heroin. Id. We noted that the 

victim “suffered from a slow, hours-long overdose death that could have 

been halted if medical personnel had been called.” Id. We concluded that 

the defendant’s actions of injecting the victim with heroin, watching him 

overdose, and then leaving the victim to die, “showed the hardness of heart, 

and disregard of social duty characteristic of the mental state of malice.” Id.

We also concluded that providing the heroin to the victim and then not 

seeking medical care “created ‘an unjustified and extremely high risk that 

[her] actions might cause death or serious bodily harm.’” Id. (quoting

Packer, 168 A.3d at 168). We further noted that heroin “has a ‘high 

potential for abuse’” and its dangers are “legendary and known on a 
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widespread basis[.]” Id. (quoting Minn. Fire and Cas. Co. v. Greenfield, 

805 A.2d 622, 627 (Pa.Super. 2002)). 

Here, we agree with Robinson that the Commonwealth failed to 

present sufficient evidence to prove malice. Unlike the defendant in Busbey, 

no evidence showed that Robinson knew that the victim had overdosed or 

that she failed to seek medical assistance while knowing the victim was in 

danger due to the drug. Even considering the victim’s apparent naivety and 

the text messages that occurred on the day prior to her death, there is no 

evidence that at the time Robinson sold the methadone or at the time the 

victim ingested the methadone, Robison had a “wickedness of disposition, 

hardness of heart, cruelty, recklessness of consequences, and a mind 

regardless of social duty[.]” Packer, 168 A.3d at 168. Nor was there

evidence that, like heroin, methadone’s dangers are “legendary and known 

on a widespread basis.” Busbey, 2020 WL 865044, at *5; see 

Kakhankham, 132 A.3d at 996 (discussing inherent dangerous nature of 

heroin and that the risk of death that comes with ingesting the drug is 

foreseeable). The Commonwealth failed to present evidence that Robinson 

sought to cause the victim’s death or injury, or that she acted with an 

extreme difference to human life. 

Simple Assault

Robinson maintains that there was no evidence that she “assaulted”

the victim and therefore the Commonwealth failed to sustain its burden for 
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simple assault. Robinson argues that a physical, contact-based assault is 

required to satisfy the element of bodily injury. 

The Commonwealth presents sufficient evidence for the charge of 

simple assault where it proves that the defendant “attempt[ed] to cause or 

intentionally, knowingly or recklessly cause[d] bodily injury to another[.]” 18 

Pa.C.S.A. § 2701(a)(1). Bodily injury is defined as “[i]mpairment of physical 

condition or substantial pain.” Id. at § 2301 (“Bodily injury”).

Here, the court rejected Robinson’s claim that the Commonwealth was 

required to prove physical contact to prove an actual assault. The court held 

that because Robinson did not cite “any authority directly on point for the 

proposition that her actions must have conformed to a traditional notion of 

an assault,” the claim had no merit. 

Before this Court, Robinson relies on the common-law definition of 

assault and argues that it is reasonable to believe that the crime of simple 

assault requires a physical, contact-based assault. Robinson has not 

supported this claim with any citation to legal authority. Therefore, 

Robinson’s claim is waived. See Commonwealth v. Miller, 212 A.3d 1114, 

1131 (Pa.Super. 2019) (“waiver of an issue results when an appellant fails to 

properly develop an issue or cite to legal authority to support his contention 

in his appellate brief”) (citation omitted). Moreover, this claim fails on the 

merits. The plain statutory language merely requires that the defendant 

“cause . . . bodily injury,” which is defined in a way as not to require 

contact. This claim fails.
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REAP 

Robinson maintains that the REAP statute implies that physical contact 

must occur, and because the Commonwealth failed to present any evidence 

that she physically touched the victim, the evidence was not sufficient to 

support the conviction. 

The Commonwealth may sustain its burden for REAP if it proves that 

the defendant recklessly engaged in conduct that placed or may have placed 

another person in danger of death or serious bodily injury. See 18 Pa.C.S.A. 

§ 2705. Recklessness may be proven when the Commonwealth shows that 

the defendant consciously disregarded “a substantial and unjustifiable risk 

that the material element exists or will result from his conduct.” 18 

Pa.C.S.A. § 302(b)(3). 

Like her argument for simple assault, Robinson relies on the commonlaw definition of recklessness and argues that it is reasonable to believe that 

the crime of REAP requires a physical, contact-based assault. Robinson’s 

claim is waived because she has not supported her claim with any citation to 

legal authority. See Miller, 212 A.3d at 1131.

Even if Robinson had supported her claim, we would conclude that the 

issue lacks merit. The evidence in the light most favorable to the 

Commonwealth shows that Robinson placed the victim in danger of death or 

serious bodily injury by giving her methadone. Robinson did not consider 

any risk that could have resulted from her conduct of selling the victim 
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methadone and the eventual ingestion of the methadone by the victim. This 

sufficiently sustains the REAP conviction. 

PWID

Robinson claims that the Commonwealth presented no evidence that 

she delivered a controlled substance to the victim while in the state of 

Pennsylvania. Robinson incorporates her argument regarding her conviction 

for DDRD. 

An individual is guilty of PWID where the Commonwealth proves that 

the individual possessed a controlled substance with the intent to 

manufacture, distribute, or deliver it. See 35 P.S. § 780-113(a)(30).

As discussed above, the evidence was sufficient to show that Robinson 

sold methadone to the victim in Pennsylvania. Therefore, the evidence is 

sufficient to support the PWID conviction. Robinson’s claim fails. 

Criminal Use of Communication Facility 

Robinson alleges that “[i]nasmuch as the evidence produced at trial 

was insufficient to support a finding that Robinson engaged in the delivery of 

a controlled substance,” the evidence is also insufficient to support the crime 

of criminal use of a communication facility. Robinson’s Br. at 50.

To prove the crime of criminal use of a communication facility, the 

Commonwealth must show that a person “use[d] a communication facility to 

commit, cause or facilitate the commission or the attempt thereof of any 

crime which constitutes a felony under this title[.]” 18 Pa.C.S.A. § 7512(a).

A communication facility includes a cell phone. Id. at § 7512(c); see 
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Commonwealth v. Kane, 210 A.3d 324, 327-28 (Pa.Super. 2019) 

(judgment of sentence affirmed for criminal use of a communication facility 

where defendant used cell phone to obtain child pornography). 

The evidence was sufficient to sustain the conviction. Robinson used 

her cell phone to commit a felony, i.e., PWID. Robinson’s claim is meritless.

We vacate the sentence on the conviction of aggravated assault, but 

otherwise affirm the judgment of sentence. 

Judgment of sentence affirmed in part and vacated in part. Case 

remanded. Jurisdiction relinquished.

Judge Murray joins the memorandum.

Judge Stabile concurs in the result. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2022