Com. v. Larsen

• Decision Date: 16 October 1996
• Citation: 452 Pa.Super. 508,682 A.2d 783
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Rolf LARSEN, Appellant (Three Cases).
• Court: Pennsylvania Superior Court

Page 783

682 A.2d 783

452 Pa.Super. 508

COMMONWEALTH of Pennsylvania, Appellee v. Rolf LARSEN, Appellant (Three Cases).

Superior Court of Pennsylvania.

Argued May 7, 1996.

Filed Aug. 5, 1996.

Reargument Denied Oct. 16, 1996.

Stanton D. Levenson, Pittsburgh, for appellant.

Robert A. Graci, Deputy Attorney General, Harrisburg, for the Commonwealth, appellee.

Before POPOVICH, SAYLOR and EAKIN, JJ.

POPOVICH, Judge:

We are asked to review the judgment of sentence (two years probation, costs of prosecution and removal from judicial office) by the defendant/appellant, Rolf Larsen, by the Court of Common Pleas of Allegheny County (per O'Brien, J.) for two counts of conspiracy to obtain possession of controlled substances. We affirm the convictions but remand for resentencing.

The facts, viewed in a light most favorable to the verdict-winner and drawing all reasonable inferences therefrom, reveal that in 1960 the defendant graduated from law school and practiced in Allegheny County for thirteen years before election to the Common Pleas Court. Four years later, the defendant won a seat on the Supreme Court of Pennsylvania and served seventeen years before a grand jury indicted him on two counts of criminal conspiracy regarding controlled substances and fourteen counts of possession of controlled substances. ¹

During a week-long jury trial, the evidence produced indicated that, beginning in the 1960s, the defendant was in therapy and receiving prescription medications. Once the defendant obtained judicial office, however, he became the subject of newspaper accounts in the Philadelphia Inquirer and the Pittsburgh Post-Gazette which triggered his desire to keep his mental illness a secret and avoid the societal stigma associated with this malady. Toward that end, the defendant was able to convince his attending physician (Dr. Earl Humphreys) to issue prescriptions in the names of his office employees (Barbara Roberts, Janice Uhler, Jamie Lenzi and Vera Freshwater) to treat his clinical depression and anxiety. This surreptitious activity continued for over twelve years before it was uncovered by the Attorney General's Office. During this time, prescriptions for Diazepam (a/k/a Valium) and Prozac would be retrieved at a pharmacy by the defendant's employees using their NPA ² cards (issued to state judicial employees), which allowed for a discount in the payment of drugs and reimbursement by the defendant upon receipt of the medication.

The drugs would be issued on prescriptions written by Dr. Humphreys at the direction of the defendant utilizing a staff employee's name as the patient, for the purpose of maintaining the defendant's privacy concerning his diagnosed mental illness and treatment (weekly therapy and psychotropic drugs ³) from the news media in particular and the public in general. To facilitate secrecy regarding the defendant's condition and treatment, Dr. Humphreys kept no written account of the type, quantity or the date drugs were prescribed for the defendant (via his employees) in his office medical records, all to insure the defendant's privacy, despite the violation of state and federal record-keeping laws in the dispensation of controlled substances. ⁴

The defense painted a picture of the defendant as one rising like Phoenix from the ashes of a dysfunctional home to the singularly prestigious position of Justice of the Pennsylvania Supreme Court. Also, the defense paraded a host of esteemed witnesses to give testament to Larsen's "excellent" reputation in the community for being law-abiding and truthful. Lastly, the defendant submitted a cascade of letters of commendation and awards extolling his altruism and integrity as beyond reproach.

Yet, despite the accolades bestowed upon the defendant by his character witnesses (friends and employees alike), his undoing was his rationale for anonymity from the press and public regarding his mental illness and treatment with a scheme (labelled by the defendant as a mere "arrangement") executed with the aid of his physician and employees to keep his use of Prozac and Diazepam private. This did not sway the jury, which returned a verdict of guilty on two of the sixteen counts of the indictment charging criminal conspiracy to possess Schedule IV substances in violation of The Controlled Substance, Drug, Device & Cosmetic Act (hereinafter the "Drug Act"). ⁵ An oral motion for a judgment of acquittal or a new trial was denied, sentence was imposed and this appeal followed raising twenty-nine trial and sentencing issues, along with eighteen ineffectiveness of counsel claims.

The first issue we shall address challenges the sufficiency of the evidence in that the defendant's conduct "in obtaining his medically required and medically prescribed prescription medicines through the use of an agent does not constitute a crime[.]" We disagree and look, initially, to Subsections 12 and 14 of Section 780-113 of the Drug Act, which reads:

(a) The following acts and the causing thereof within the Commonwealth are hereby prohibited:

* * * * * *

(12) The acquisition or obtaining of possession of a controlled substance by misrepresentation, fraud, forgery, deception or subterfuge....

* * * * * *

(14) The administration, dispensing, delivery, gift or prescription of any controlled substance by any practitioner or professional assistant under the practitioner's direction and supervision unless done (i) in good faith in the course of his professional practice; (ii) within the scope of the patient relationship; (iii) in accordance with treatment principles accepted by a responsible segment of the medical profession.

35 P.S. § 780-113(a)(12), (14). Additionally, the law requires written prescriptions for all controlled substances to assure that pharmacists keep accurate records of the drugs dispensed and to whom they were dispensed. Id. at §§ 780-111(b), 780-112.

There is no dispute that Dr. Humphreys, as a physician of thirty years, was aware of the law requiring records to be kept, and he considered that ministerial act an "important" part of the physician's practice. Nonetheless, he avoided maintaining any documentation of the appellant's mental illness or drug prescriptions because of his long-standing friendship with the appellant and the need for privacy regarding his mental condition, a courtesy never extended to any other patient.

With regard to Subsection 14, the prescribing of drugs by a practitioner must be performed in "good faith," within the scope of the "patient-physician" relationship, and be in compliance with accepted treatment principles endorsed by "a responsible segment of the medical community."

At bar, regarding treatment principles accepted by a responsible portion of the medical community, Drs. Fuller, McCormick and Wettstein were in agreement that record-keeping was "very important" in the long-term care of any patient, and to monitor the effects of prescription drugs a face-to-face meeting with the patient was necessary to gauge the continuation or change of treatment none of which was adhered to by the appellant's physician. ⁶ Further, the physicians were adamant in their refusal to prescribe medication for a patient in another's name. It was felt to be too dangerous, nonetheless Dr. Humphreys indulged the appellant's wishes and issued medication for him through his employees.

In light of such behavior by the patient and physician, viewed against the backdrop of accepted medical treatment at odds with the events which transpired here, we find sufficient evidence to establish a violation of Subsection 14 of Section 780-113. See Commonwealth v. West, 261 Pa.Super. 246, 396 A.2d 380, 382 (1978) ("The purpose of [the Drug Act] ... is to regulate the distribution of drugs, avoid abuse and insure proper medical use."). To hold otherwise would ignore the clear mandate of the Legislature in requiring record-keeping in controlled substance cases, with the obvious benefit of avoiding abuse, tracking sales and checking a patient's consumption. See generally Commonwealth v. Bernabei, 86 Pa.Super. 550, 555 (1926); People v. Oviedo, 106 Cal.App.2d 690, 235 P.2d 612, 613-14 (1951) (Use of false name to obtain prescription prohibited by Health and Safety Code, notwithstanding the defendant's ability to have received the narcotics if he had not committed acts forbidden by law).

Similarly, we find that the appellant's securement of Diazepam (Valium) was in direct contravention of Subsection 12 of Section 780-113. Once the appellant put in motion a scheme to deceive the pharmacists who dispensed drugs prescribed for his employees, but intended for his use, the subsequent possession of the drug was not lawful. Rather, it was a deception perpetrated upon a third party/pharmacist by the concerted acts of the appellant's unindicted co-conspirator/physician. For example, each pharmacist who testified was unanimous in his refusal to fill a prescription for other than the named patient. Each physician testifying for the prosecution echoed the same sentiments by refraining from issuing prescriptions for other than the patient. ⁷ Anything less would violate the medical professionals' Code of Ethics. See Vol. II, 4/5/94 at 587, 601-02.

The appellant states that Dr. Humphreys intended the prescribed medication to end up in his possession ultimately, and it merely took a circuitous route by way of his staff before reaching its destination. We find this "end justifies the means" argument rings hollow when viewed against the clear and unambiguous language of Subsections 12 and 14 of Section 780-113. See Statutory Construction Act, 1 Pa.C.S.A. § 1921(b) (The clear language of a statute is not to be ignored under the pretext to pursue its spirit). ⁸ Likewise, the appellant's argument that he did not "know that the innocent use of an agent to obtain the medicine he medically needed would be deemed to be criminal conduct" was an issue of credibility decided...