Com. v. Gordon

CourtSuperior Court of Pennsylvania
Writing for the CourtPER CURIAM; OLSZEWSKI; OLSZEWSKI
Citation493 A.2d 691,342 Pa.Super. 480
Decision Date22 May 1985
PartiesCOMMONWEALTH of Pennsylvania v. Barry Charles GORDON, Appellant.

Page 691

493 A.2d 691
342 Pa.Super. 480
COMMONWEALTH of Pennsylvania
v.
Barry Charles GORDON, Appellant.
Superior Court of Pennsylvania.
Argued Sept. 5, 1984.
Filed March 15, 1985.
Reargument Denied May 22, 1985.

Page 692

[342 Pa.Super. 482] H. Robert Fiebach, Philadelphia, for appellant.

Sandra L. Elias, Deputy Dist. Atty., Media, for Commonwealth, appellee.

Before CIRILLO, OLSZEWSKI and MONTGOMERY, JJ.

PER CURIAM:

This is an appeal from the judgment of sentence issued by the Honorable Charles C. Keeler on May 23, 1983 in the Court of Common Pleas of Delaware County.

On July 15, 1982 Barry Gordon, a licensed pharmacist and appellant in this case, sold a prescription drug to a criminal [342 Pa.Super. 483] informant without a prescription. The drug sold by appellant was dilaudid, a Schedule II opiate derivative drug. The sale of the dilaudid took place at a motel in Springfield Township. Appellant was immediately arrested by police following the $800 sale to the informant, and was charged with violating subdivisions 13(a)(16) and (30) of the Controlled Substance, Drug, Device, and Cosmetic Act, Act of April 14, 1972, P.L. 233, No. 64 (as amended), 35 P.S. § 780-113(a)(16) and (30).

On November 12, 1982, the appellant waived his right to a jury trial and a bench trial commenced before the Honorable Charles C. Keeler. The uncontroverted evidence at trial showed that Mr. Gordon was a pharmacist licensed by the State Board of Pharmacy. At the conclusion of the Commonwealth's case the appellant demurred to the evidence and at the conclusion of his own case moved for a directed verdict of acquittal, contending that as a licensed pharmacist he could not be found guilty of violating the sections the Commonwealth had charged him with. Appellant maintained that subdivisions 13(a)(16) and (30) of the CSDDCA by their very terms did not apply to practitioners which included licensed pharmacists. The trial court denied these motions and on November 15, 1982 found the appellant guilty of the offenses charged. The trial court also denied the appellant's post-verdict motions for a new trial and in arrest of judgment. This appeal followed.

Appellant raises three contentions on appeal: 1) that appellant, a pharmacist licensed with the State Board of Pharmacy, cannot be convicted under Sections 13(a)(16) and (30) of the CSDDCA because these sections exempt "practitioners"; 2) that the Commonwealth withheld exculpatory evidence requested by appellant; and 3) that the Commonwealth violated the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701-5726.

Page 693

We agree with appellant's contention that because he is a licensed pharmacist he cannot be found guilty of violating two statutory provisions of the CSDDCA which by their very terms do not apply to pharmacists. Because appellant [342 Pa.Super. 484] was wrongly charged and convicted under sections of the CSDDCA which expressly exempt licensed pharmacists, we must reverse the conviction. We therefore need not address the other arguments raised.

Section 780-113(a)(16), under which appellant was convicted, prohibits the following:

Knowingly or intentionally possessing a controlled or counterfeit substance by a person not registered under this Act, or a practitioner not registered or licensed by the appropriate State Board....

(Emphasis ours). He was also convicted of violating Section 780-113(a)(30), which prohibits:

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 by the appropriate State Board, or knowingly creating, delivering or possessing with intent to deliver, a counterfeit controlled substance.

(Emphasis ours).

An element of both offenses is that the defendant not be registered under the Act (the CSDDCA) nor be licensed or registered by the appropriate State Board. Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979). Once the defendant comes forward with some evidence of licensure or registration, the Commonwealth has the burden of proving non-licensure or non-registration beyond a reasonable doubt. Id.; Commonwealth v. Herman, 288 Pa.Super. 219, 431 A.2d 1016 (1981).

In the present case, appellant introduced into evidence an affidavit from the Commissioner of Professional and Occupational Affairs for the Commonwealth of Pennsylvania. The affidavit attested that Mr. Gordon was a licensed pharmacist on the date of the drug transaction. The Commonwealth...

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4 practice notes
  • Com. v. Gordon
    • United States
    • Superior Court of Pennsylvania
    • 30 Junio 1987
    ...OLSZEWSKI and MONTGOMERY, JJ. PER CURIAM: We have this appeal on remand from the Pennsylvania Supreme Court. In Commonwealth v. Gordon, 342 Pa.Super. 480, 493 A.2d 691 (1985), rev'd, 511 Pa. 481, 515 A.2d 558 (1986), we found insufficient evidence to support appellant's convictions for poss......
  • Com. v. Mlinarich
    • United States
    • Superior Court of Pennsylvania
    • 30 Agosto 1985
    ...be strictly construed. Commonwealth v. Driscoll, 485 Pa. 99, 107, 401 A.2d 312, 316 (1979) (plurality opinion); Commonwealth v. Gordon, 342 Pa.Super. 480, ---, 493 A.2d 691, 695 (1985); Commonwealth v. Darush, 256 Pa.Super. 344, 348, 389 A.2d 1156, 1158 (1978). Strict construction is necess......
  • Ackler v. Raymark Industries, Inc.
    • United States
    • Superior Court of Pennsylvania
    • 9 Diciembre 1988
    ...issue of whether claimant should have known of his injuries as that argument was not raised by the parties. Wheeler v. Johns-Manville, 342 Pa.Super. at 480, 493 A.2d at 3 In Trieschock, supra, the Court stated that a plaintiff in a creeping disease case is not required to have a greater kno......
  • Com. v. Gordon
    • United States
    • United States State Supreme Court of Pennsylvania
    • 26 Noviembre 1985
    ...26, 1985. Appeal No. 728 E.D. Allocatur Docket 1985, from Order of Superior Court entered March 15, 1985, No. 1630 Philadelphia 1983, 342 Pa.Super. 480, 493 A.2d 691 (1985), Reversing Order of Court of Common Pleas, Delaware County, Criminal Division, No. 2739 of Petition for Allowance of A......
4 cases
  • Com. v. Gordon
    • United States
    • Superior Court of Pennsylvania
    • 30 Junio 1987
    ...OLSZEWSKI and MONTGOMERY, JJ. PER CURIAM: We have this appeal on remand from the Pennsylvania Supreme Court. In Commonwealth v. Gordon, 342 Pa.Super. 480, 493 A.2d 691 (1985), rev'd, 511 Pa. 481, 515 A.2d 558 (1986), we found insufficient evidence to support appellant's convictions for poss......
  • Com. v. Mlinarich
    • United States
    • Superior Court of Pennsylvania
    • 30 Agosto 1985
    ...be strictly construed. Commonwealth v. Driscoll, 485 Pa. 99, 107, 401 A.2d 312, 316 (1979) (plurality opinion); Commonwealth v. Gordon, 342 Pa.Super. 480, ---, 493 A.2d 691, 695 (1985); Commonwealth v. Darush, 256 Pa.Super. 344, 348, 389 A.2d 1156, 1158 (1978). Strict construction is necess......
  • Ackler v. Raymark Industries, Inc.
    • United States
    • Superior Court of Pennsylvania
    • 9 Diciembre 1988
    ...issue of whether claimant should have known of his injuries as that argument was not raised by the parties. Wheeler v. Johns-Manville, 342 Pa.Super. at 480, 493 A.2d at 3 In Trieschock, supra, the Court stated that a plaintiff in a creeping disease case is not required to have a greater kno......
  • Com. v. Gordon
    • United States
    • United States State Supreme Court of Pennsylvania
    • 26 Noviembre 1985
    ...26, 1985. Appeal No. 728 E.D. Allocatur Docket 1985, from Order of Superior Court entered March 15, 1985, No. 1630 Philadelphia 1983, 342 Pa.Super. 480, 493 A.2d 691 (1985), Reversing Order of Court of Common Pleas, Delaware County, Criminal Division, No. 2739 of Petition for Allowance of A......

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