Com. v. Gordon

CourtUnited States State Supreme Court of Pennsylvania
Writing for the CourtBefore NIX; PAPADAKOS; HUTCHINSON; ZAPPALA, J., files a dissenting opinion in which NIX; ZAPPALA; NIX
Citation515 A.2d 558,511 Pa. 481
PartiesCOMMONWEALTH of Pennsylvania, Appellant, v. Barry Charles GORDON, Appellee.
Decision Date26 September 1986

Page 558

515 A.2d 558
511 Pa. 481
COMMONWEALTH of Pennsylvania, Appellant,
v.
Barry Charles GORDON, Appellee.
Supreme Court of Pennsylvania.
Argued April 18, 1986.
Decided Sept. 26, 1986.

[511 Pa. 482] John A. Reilly, Dist. Atty., Sandra L. Elias, Media, for appellant.

H. Robert Fiebach, Kenneth J. Warren, Philadelphia, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice.

This is an appeal by the Commonwealth of Pennsylvania (Appellant) from the March 15, 1985, Order of the Superior Court reversing the judgment of sentence of the Court of Common Pleas of Delaware County and discharging Barry Charles Gordon (Appellee). 1

Page 559

On July 15, 1982, Appellee, a licensed pharmacist, sold a prescription drug to Mr. Cawley, a criminal informant, without a prescription. The drug sold by Appellee was [511 Pa. 483] Dilaudid, a Schedule II opiate derivative drug. The sale took place at a motel in Springfield Township, Delaware County. The arrangement was that Mr. Cawley was to purchase two bottles, each containing one hundred pills, at a price of eight hundred ($800.00) dollars per bottle. Additionally, Mr. Cawley was to procure both a prostitute and a motel room for Appellee's use. Mr. Cawley signed a consent form manifesting his willingness to have his conversation with Appellee intercepted and recorded, and he was wearing a "body wire," an electrical surveillance device, while consummating the transaction with Appellee.

When Appellee brought two bottles of Dilaudid with him, Mr. Cawley explained that he could "scrounge up" only eight hundred ($800.00) dollars, and was, therefore, only able to purchase one bottle of pills. Appellee agreed to the sale of a single bottle at that time, and a subsequent sale the next day, when Mr. Cawley would be able to acquire an additional eight hundred ($800.00) dollars for that purchase. Mr. Cawley neither possessed a prescription for Dilaudid, nor did Appellee request Mr. Cawley to provide him with one. Upon a transfer of possession of the pills from Appellee to Mr. Cawley, Appellee was immediately arrested and charged with violating subdivisions 13(a)(16) and 13(a)(30) of the Controlled Substance, Drug, Device and Cosmetic Act (CSDDCA). 2

[511 Pa. 484] On November 12, 1982, Appellee waived his right to a jury trial and a non-jury trial commenced before the Honorable Charles C. Keeler of the Court of Common Pleas of Delaware County. The uncontroverted evidence at trial showed that Appellee was a pharmacist licensed by the State Board of Pharmacy. At the conclusion of the Commonwealth's case, Appellee 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 with which the Commonwealth had charged him. Appellee 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 both motions and, on November 15, 1982, found Appellee guilty of the offenses charged. Post-verdict motions were denied and Appellee was sentenced on May 23, 1983, to pay costs and fines in the amount of two thousand five hundred ($2,500.00) dollars, and to undergo imprisonment in the Delaware County Prison for a minimum of eleven (11) months to a maximum of twenty-three (23) months, less one day.

Appellee filed a timely appeal to the Superior Court, which held that he could not be convicted under Sections 13(a)(16) and (30) because those sections specifically exempt licensed pharmacists. Superior Court, therefore, reversed Appellee's conviction and discharged him. We then granted the Commonwealth's Petition for Allowance of Appeal to determine the interesting question of whether a pharmacist

Page 560

licensed to distribute drugs in the course of his professional conduct, who sells drugs outside the course of his profession in exchange for money and the use of a prostitute, is exempt from prosecution under 35 Pa.S. § 780-113(a)(16) and (30) of the CSDDCA. Appellee maintains, and, indeed, the Superior Court held, that his status as a licensed pharmacist precludes prosecution under these sections of the Act, and that once one obtains a license as a physician, [511 Pa. 485] pharmacist, etc., he attains the status of "practitioner" and can be prosecuted, if at all, only under 35 Pa.S. § 780-113(a)(14), 3 when he engages in illegal deliveries of drugs, regardless of the place, method, nature or circumstances of the delivery.

The Commonwealth, on the other hand, maintains that these three sections are not "status" controlled, but, rather, pertain to the manner, nature and guise of the delivery or transaction. Under the Act, the definition of practitioner is provided by 35 Pa.S. § 780-102(b):

Practitioner means: (i) a physician, osteopath, dentist, veterinarian, pharmacist, podiatrist, nurse, scientific investigator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance, other drug or device IN THE COURSE OF PROFESSIONAL PRACTICE or research in the Commonwealth of Pennsylvania; (ii) a pharmacy, hospital, clinic or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance, other drug or device in the course of professional practice or research in the Commonwealth...

To continue reading

Request your trial
22 practice notes
  • Com. v. Gordon
    • United States
    • Superior Court of Pennsylvania
    • June 30, 1987
    ...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 possession and delivery of a controlled substance......
  • Com. v. Booth
    • United States
    • United States State Supreme Court of Pennsylvania
    • February 20, 2001
    ...narrowest possible meaning or that legislative intent be disregarded, see Wooten, 519 Pa. at 53, 545 A.2d at 880; Commonwealth v. Gordon, 511 Pa. 481, 487, 515 A.2d 558, 561 (1986); Commonwealth v. Duncan, 456 Pa. 495, 497, 321 A.2d 917, 919 (1974), nor does it override the more general pri......
  • Com. v. Collins
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 17, 2001
    ...in favor of the accused. See 1 Pa.C.S. § 1928(b)(1); Commonwealth v. Wooten, 519 Pa. 45, 545 A.2d 876, 879 (1988); Commonwealth v. Gordon, 511 Pa. 481, 515 A.2d 558, 561 (1986). In the context at issue here, the rule merely means that if the legislature does not fix the punishment for an of......
  • U.S. v. Parise, No. 97-1740
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 28, 1998
    ...of a criminal statute be given their narrowest meaning or that the legislature's evident intent be disregarded." Commonwealth v. Gordon, 511 Pa. 481, 515 A.2d 558, 561 (Pa.1986). Furthermore, we must also refrain from reading additional provisions into a statute when its meaning is clear. S......
  • Request a trial to view additional results
22 cases
  • Com. v. Gordon
    • United States
    • Superior Court of Pennsylvania
    • June 30, 1987
    ...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 possession and delivery of a controlled substance......
  • Com. v. Booth
    • United States
    • United States State Supreme Court of Pennsylvania
    • February 20, 2001
    ...narrowest possible meaning or that legislative intent be disregarded, see Wooten, 519 Pa. at 53, 545 A.2d at 880; Commonwealth v. Gordon, 511 Pa. 481, 487, 515 A.2d 558, 561 (1986); Commonwealth v. Duncan, 456 Pa. 495, 497, 321 A.2d 917, 919 (1974), nor does it override the more general pri......
  • Com. v. Collins
    • United States
    • United States State Supreme Court of Pennsylvania
    • January 17, 2001
    ...in favor of the accused. See 1 Pa.C.S. § 1928(b)(1); Commonwealth v. Wooten, 519 Pa. 45, 545 A.2d 876, 879 (1988); Commonwealth v. Gordon, 511 Pa. 481, 515 A.2d 558, 561 (1986). In the context at issue here, the rule merely means that if the legislature does not fix the punishment for an of......
  • U.S. v. Parise, No. 97-1740
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 28, 1998
    ...of a criminal statute be given their narrowest meaning or that the legislature's evident intent be disregarded." Commonwealth v. Gordon, 511 Pa. 481, 515 A.2d 558, 561 (Pa.1986). Furthermore, we must also refrain from reading additional provisions into a statute when its meaning is clear. S......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT