Commonwealth v. West
| Decision Date | 22 December 1978 |
| Citation | 261 Pa.Super. 246,396 A.2d 380 |
| Parties | COMMONWEALTH of Pennsylvania v. Stanley Q. WEST, Appellant. |
| Court | Pennsylvania Superior Court |
Submitted Dec. 31, 1977.
Gregory V. Smith, Williamsport, for appellant.
Robert F. Banks, First Asst. Dist. Atty., Williamsport, for Com appellee.
Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE PRICE, VAN der VOORT and SPAETH, JJ.
This case involves a medical practitioner who was convicted of thirty-five counts of violation of the Controlled Substance Drug, Device and Cosmetic Act of 1972, April 14, P.L. 233, § 13(a)(12) 35 P.S. § 780-113(a)(12). [1] He was sentenced to three to seven years imprisonment, and ordered to pay a fine of fifteen hundred dollars. The defendant, Stanley Q. West, now appeals to this court, alleging seven areas of error. He contends: first, that Section 13(a) (12) of the Controlled Substances Act does not apply to medical practitioners; second, that the information should have been quashed because of pre-arrest delay; third, that an application for suppression of evidence should have been granted; fourth, that appellant was not given a fair trial because of prosecutorial misconduct; fifth, that the trial judge erred in permitting inquiry into appellant's record-keeping of controlled substances dispensed for a two year period; sixth, that evidence of other possible crimes and cross-examination of appellant regarding those incidents should have been excluded; and finally, that the sentence imposed was illegal in that it exceeded the statutory maximum. We disagree with appellant's first six contentions; we do, however, agree that the sentence was illegal, and we therefore reverse the judgment and remand for resentencing purposes only.
The prosecution of appellant arose from the filling of some thirty-five [2] prescriptions for methaqualone (commonly known as quaaludes) over a six month period. A licensed physician, appellant had written the prescriptions in the names of local patients, but had personally presented them at Lehman's Pharmacy in Jersey Shore, where appellant practiced. The pharmacists filled each prescription under the assumption that appellant would deliver the drugs to the named patients. As a professional courtesy, appellant was able to purchase the drugs at cost.
At trial, testimony of local mail carriers, voter registrars, and tax clerks established that thirty-two of the thirty-five named patients did not exist in Lycoming County. The other three individuals did reside in the area, but had never received the prescribed drugs from appellant.
Other pertinent facts adduced at trial concerned appellant's professional career. He began practicing medicine in 1953, and moved to Lycoming County in 1969. His first office in Jersey Shore was destroyed in the 1972 flood. Subsequently, he has had offices in a camper parked in a friend's driveway, an old motorcycle showroom, and his mobile home.
Appellant's first argument questions the applicability of Section 13(a)(12) of the Controlled Substance, Drug, Device and Cosmetic Act (hereinafter referred to as Act) to practitioners. Appellant contends that because they are allowed by statute to possess and distribute controlled substances, the subsection in question was not meant to apply to physicians. We find this argument untenable.
The purpose of any statute such as the one in issue here is to regulate the distribution of drugs, avoid abuse, and insure proper medical use. Throughout the statute, the word "practitioner" is used, and is defined to mean:
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 . . . [3]
The legislature was careful to distinguish between practitioners and laypersons when such a distinction was warranted. [4] But when that distinction is not made, it is clear that the provision is intended to apply to All persons, including practitioners. The section in question here makes no distinction it must apply equally to laypersons and practitioners.
It is instructive to note that the same argument was advanced by a physician in United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975). The defendant was convicted of sale of a controlled substance under a federal statute similar to Pennsylvania's controlled substance act. [5] Writing for a unanimous court, Justice Lewis Powell stated: "We think the statutory language cannot fairly be read to support the view that all activities of registered physicians are exempted from the reach of § 841 simply because of their status." 423 U.S. at 131, 96 S.Ct. at 340. This case definitively holds that doctors have no more authority to violate drug laws than do laypersons. It certainly could not have been the intent of the Pennsylvania legislature to exclude practitioners from the reach of 35 P.S. § 780-113(a)(12) merely because of their status.
The second argument made by appellant is that the information against him should have been quashed because of pre-arrest delay. The alleged offenses occurred between September 25, 1975, and March 5, 1976; the prescriptions were taken from the pharmacy March 17, 1976; and charges were filed May 11, 1976 thus, a period of less than two months elapsed. Such a short amount of time certainly cannot be said to be unreasonable; that time period was in fact necessary for investigation. This court has recently held that a delay of one year between offense and arrest was reasonable to conduct a narcotics investigation, and did not deny the defendant due process of law. Commonwealth v. Cluck, 252 Pa.Super. 228, 381 A.2d 472 (1977). [6] Appellant maintains that the two month delay prejudiced his ability to locate patients and prepare a defense. The possibility of prejudice must, of course, be weighed against the "reasonableness of the delay necessitated by the conduct of an effective investigation." Commonwealth v. McCloud, 218 Pa.Super. 230, 236, 275 A.2d 841, 844 (1971). But it is difficult to imagine how a thorough investigation into thirty-five drug charges could be conducted in a shorter period than that which elapsed here. The police must be given a reasonable time to diligently pursue an investigation. A two month delay is certainly reasonable, and appellant was not prejudiced.
An application to suppress evidence was filed by appellant, alleging that the prescriptions in issue had been unlawfully seized from Lehman's Pharmacy. [7] The court below denied the application, holding that appellant lacked standing to challenge the search. In light of the four requirements to establish standing, set forth in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973), we agree. Those requirements state that an individual has standing to contest a search and seizure where he or she: 1) was present on the premises at the time of the contested search and seizure; 2) has alleged a possessory interest in the evidence seized; 3) was charged with an offense which includes as an essential element of the prosecutor's case the element of possession at the time of the contested search and seizure; or 4) has a proprietary or possessory interest in the searched premises. 411 U.S. at 229, 93 S.Ct. 1565. Only the second element applies to the case here appellant has alleged that a physician has a possessory interest in prescriptions written for patients. But once those prescriptions are presented to be filled by a pharmacist, they become part of the pharmacy's records a record of drugs dispensed, required to be kept by state law. These records are available for inspection at any time by state drug agents, but are not available to physicians once they have been surrendered to the pharmacy. Thus, appellant had no possessory interest in the prescription forms which were seized from the pharmacy. Consequently, appellant lacked standing to challenge the search.
Even if appellant could show some possessory interest in the prescription records, his challenge to the admission of the evidence would fail because the search was made with the consent of one with an even greater possessory interest in the prescription records the owner of Lehman's Pharmacy. It is hornbook law that a warrantless search is valid if made with the consent of the owner or possessor of the premises. Here, the pharmacist/owner had authority to consent to the search of his records, and therefore the search and subsequent seizure of the prescription forms were valid. Appellant's application to suppress was properly denied.
Appellant contends fourthly that, due to prosecutorial misconduct, he did not receive a fair trial. He specifically alleges that the Commonwealth attempted to create a prejudicial atmosphere during the trial. Testimony was offered, over the objections of defense counsel, as to appellant's finances, his failure to report income to the Internal Revenue Service during two years, and the street value of quaaludes all issues which the prosecution deemed important to show motive, but which the defense argued were improper and prejudicial.
We have examined the record very carefully, and conclude that the lower court did not abuse its discretion in admitting this evidence. Appellant argues that the testimony could reasonably lead the jury to believe that he was involved in other crimes or improprieties. This is, of course, an area which must be carefully scrutinized because "the effect of such testimony upon a jury (of testimony...
To continue reading
Request your trial