Opinion
J-S43044-19 No. 129 MDA 2019
10-10-2019
COMMONWEALTH OF PENNSYLVANIA v. SAIBEL RONDON VILLEGAS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered December 5, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005016-2015 BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court. --------
Appellant, Saibel Rondon Villegas, appeals from the judgment of sentence entered in the Court of Common Pleas of Dauphin County after a jury found her guilty of criminal conspiracy to commit fraud and acquisition of a controlled substance. Sentenced to five and one-half to 15 years' incarceration, Appellant raises alternative challenges to the sufficiency and weight of the evidence, and she claims the court abused its sentencing discretion in imposing what she labels a manifestly excessive sentence. We affirm.
The trial court has aptly summarized the factual history of this case by describing how Appellant used her position as a medical assistant in a physician's office to supply prescription papers to other actors involved in a fraudulent prescription drug distribution scheme. See generally, Trial Court Opinion, 5/2/19, at 1-7. As noted, supra , a two-day jury trial resulted in guilty verdicts on all counts against Appellant, and, on December 5, 2018, the court sentenced her to five and one-half to 15 years of imprisonment, plus fines and costs, with RRRI eligibility commencing at 55 months into her sentence. Appellant filed a timely post-sentence motion, which the trial court denied. This timely appeal followed.
On appeal, Appellant raises the following three issues for our consideration.
1. Whether the evidence presented by the Commonwealth at trial was insufficient to prove acquisition of a controlled substance by fraud and conspiracy beyond a reasonable doubt?Appellant's brief, at 9.
2. Whether the trial court abused its discretion when it denied Appellant's post sentence motion based on the weight of the evidence?
3. Whether the trial court abused its discretion when it imposed a five and a half to fifteen years sentence where Appellant's conduct was not so egregious to warrant such a sentence?
Initially, we set forth the standard of review applicable to each of Appellant's three issues. With respect to Appellant's sufficiency claim, we apply the following standard:
A challenge to the sufficiency of the evidence is a question of law, subject to plenary review. When reviewing a sufficiency of the evidence claim, the appellate court must review all of the evidence and all reasonable inferences drawn therefrom in the light most favorable to the Commonwealth, as the verdict winner. Evidence will be deemed to support the verdict when it establishes each element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. The Commonwealth need not preclude every possibility of innocence or establish the
defendant's guilt to a mathematical certainty. Finally, 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.Commonwealth v. Teems , 74 A.3d 142, 144-45 (Pa.Super. 2013) (citation omitted).
A person commits the crime of unlawful acquisition of a controlled substance if she acquires or obtains possession of a controlled substance "by misrepresentation, fraud, forgery, deception or subterfuge." 35 P.S. § 780-113(a)(12). Commonwealth v. Farone , 808 A.2d 580, 581 (Pa.Super. 2002).
Regarding the charge of conspiracy to commit the above crime, the Commonwealth must prove three elements: "1) an agreement, 2) shared criminal intent, and 3) an overt act." Commonwealth v. Johnson , 180 A.3d 474, 479 (Pa.Super. 2018), citing 18 Pa.C.S.A. § 903. Moreover,
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, [she] is still criminally liable for the actions of his co-conspirators taken in furtherance of the conspiracy.Johnson , 180 A.3d at 479 (internal citation omitted).
Appellant's second and third issues, which challenge the weight of the evidence and the discretionary aspects of sentencing, respectively, implicate the court's exercise of discretion.
We do not review challenges to the weight of the evidence de novo on appeal. See Commonwealth v. Rivera , 603 Pa. 340, 983 A.2d 1211, 1225 (Pa. 2009). Rather, we only review the trial court's exercise of its discretionary judgment regarding the weight of the evidence presented at trial. See id .Commonwealth v. Lineman , --- A.3d----, 2019 PA Super 283 (Pa.Super. filed Sept. 16, 2019).
"[W]e may only reverse the lower court's verdict if it is so contrary to the evidence as to shock one's sense of justice." Commonwealth v. Champney , 574 Pa. 435, 832 A.2d 403, 408 (2003) (citations omitted). A verdict is said to be contrary to the evidence such that it shocks one's sense of justice when "the figure of Justice totters on her pedestal," or when "the jury's verdict, at the time of its rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience." Commonwealth v. Davidson , 860 A.2d 575, 581 (Pa. Super. 2004) (citations omitted).
Challenges to the discretionary aspects of sentencing are not automatically reviewable as a matter of right. Commonwealth v. Hunter , 768 A.2d 1136, 1144 (Pa.Super. 2001). Prior to reaching the merits of a discretionary sentencing issue, we must determine: (1) whether an appellant has filed a timely notice of appeal; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) whether an appellant's brief sufficiently addresses the challenge in a statement included pursuant to Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code. Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006).
Here, the trial court has authored a cogent and comprehensive opinion that thoroughly addresses and disposes of Appellant's claims on appeal. Specifically, the trial court opines that evidence viewed in a light most favorable to the Commonwealth as verdict-winner sufficed to convict Appellant of the crimes charged. We agree.
Uncontested testimony established that Appellant was a medical assistant and sole employee working in the office of a physician, whose name and DEA number had appeared on numerous fraudulent prescriptions for oxycodone. Appellant had access to both the physician's prescription notepad and his DEA number, and evidence established that she had verified fraudulent prescriptions when the pharmacy called for confirmation. Moreover, several names appearing on the fraudulent prescriptions belonged to Appellant's relatives.
A co-conspirator in the scheme testified that she would pay about $1,000 to Appellant in exchange for a prescription of between 100 and 180 oxycodone pills, which had a street value of $15.00 per pill. Appellant denied knowing the co-conspirator, but a consent search of her cell phone disclosed an email containing the co-conspirator's email address, a notation to her first name, "Sharde," and a reference to Appellant's nickname.
Investigators placed Appellant under arrest, and a warrant search of her purse—which, she warned police, contained a handgun—revealed sticky notes with five names and dates of birth matching those appearing on the fraudulent prescriptions. Additionally, GPS location retrieval from Appellant's cell phone showed Appellant's phone had been at the co-conspirator's house, and an extracted email read, in part, "getting my money from Sharde." Collectively, this evidence sufficed to prove each element of the Unlawful Acquisition and Conspiracy charges against Appellant, and for this reason, we reject Appellant's sufficiency of the evidence challenge.
With respect to Appellant's weight of the evidence claim, the trial court acknowledges evidence that one fraudulent prescription had not been verified by Appellant and that the co-conspirator and another person involved in the scheme were printing their own prescriptions at their property. Nevertheless, the court concluded that such evidence "does not nullify the evidence of [Appellant's] involvement and conviction." TCO, at 8.
We agree, because the jury was free to believe the co-conspirator's testimony as the only alleged eyewitness to Appellant's role in the illegal scheme, and ample evidence supported her testimony. The court determined that the verdict did not shock the conscience, and we discern no reason to disturb this determination.
Finally, the court's opinion reasonably disposes of Appellant's claim that the imposition of a standard-range sentence under the circumstances constituted a manifestly excessive sentence. We note, initially, that Appellant properly preserved this issue—that the sentencing court failed to consider rehabilitative needs and mitigating factors, which called for a lower sentence than the standard range sentence she received—by preserving the issue in a Post-Sentence Motion and including a statement pursuant to Pa.R.A.P. 2119(f) in her brief.
Proceeding to whether this sentencing challenge raises a substantial question for our review, we observe that this Court makes such a determination on a case-by-case basis. Commonwealth v. Moury , 992 A.2d 162, 170 (Pa.Super. 2010). "A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Id. (citation and quotation omitted).
Here, the trial court imposed a standard range sentence, but Appellant avers that the trial court should have imposed a lesser sentence based on her lack of a previous criminal history, the non-violent nature of the offenses, her law-abiding and self-sufficient conduct during her three-year pretrial release in the community, and the needs of her minor daughter and physically impaired husband. Appellant's brief at 22-23.
Claims that the sentencing court did not adequately consider mitigating factors generally do not raise a substantial question. Commonwealth v. Disalvo , 70 A.3d 900, 903 (Pa. Super. 2013). A specific claim that the court refused to weigh mitigating factors as an appellant wished, absent more, does not raise a substantial question. Moury , 992 A.2d at 175; Commonwealth v. Zirkle , 107 A.3d 127, 133 (Pa. Super. 2014) ("[W]e have held that a claim that a court did not weigh the factors as an appellant wishes does not raise a substantial question").
Assuming, arguendo, that Appellant's claim presents a substantial question warranting merits review, we turn to the trial court's explanation of its sentence, in which it notes that it considered the pre-sentence investigation report and was aware of "all aspects of [Appellant's] background." TCO, at 13. The court fairly emphasized, however, that Appellant was a central figure in a "major criminal enterprise that put 15,000 pills on the street[,]" contributing to a process that "create[s] violent and dangerous and destructive aspects throughout our society." TCO, at 12, 13. The court further considered the effect Appellant's crime had on the physician's position of trust in society and the extended length of time the criminal enterprise lasted. For these reasons, it deemed a standard range sentence appropriate, and we discern nothing in either the record or Appellant's argument to warrant disrupting the sentence imposed.
Therefore, following our careful review of the record, party briefs, and relevant law, we perceive no merit to Appellant's appeal. The opinion of the Honorable Scott Arthur Evans is consistent with our view in this regard, such that we may adopt it as our own for purposes of accomplishing appellate review. Accordingly, we affirm on the basis of the rationale stated therein.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/10/2019
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